author: BADALAMENTI, Judge.

text:
    Lee KALLETT, Appellant, v. Sheryl KASTRINER, Appellee.
    Case No. 2D16-1219
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017
    Allison M. Perry of Florida Appeals & Mediations, P.A., Tampa, for Appellant.
    Raymond T. Elligett, Jr., and Amy S. Farrior, of Buell & Elligett, P.A., Tampa, for Appellee.
   BADALAMENTI, Judge.

Lee. Kallett, the Former Husband* appeals from the trial court’s order denying his postdissolution petition for downward modification of his alimony obligation.. The trial court concluded that the Former Husband, in a 2008 settlement agreement, forever waived his right to seek a downward modification unless he became involuntarily unemployed. Because our review of the settlement agreement does not reveal a clear and unambiguous intent to waive the Former Husband’s statutory right to seek modification, we reverse and remand for further proceedings pursuant to section 61.14, Florida Statutes (2014).

FACTUAL AND PROCEDURAL BACKGROUND

The Former Husband and the Former Wife, Sheryl Kastriner, dissolved their marriage in 2006. The trial court ordered the Former Husband to pay the Former Wife permanent periodic alimony in the amount of $4000 per month. In 2008, the parties entered into a stipulated settlement agreement where they agreed to reduce the Former Husband’s alimony obligation by $500 per month on account of a reduction in his income. The trial court later ratified this stipulation.

Six years later, in 2014, the Former Husband filed a petition seeking an additional reduction of his alimony obligation. In response to this petition for modification, the Former Wife filed a motion for summary judgment arguing that the 2008 stipulation prohibits the Former Husband from seeking further reduction of his alimony obligation unless he is involuntarily unemployed. In making this argument, the Former Wife relied on paragraph seven of the 2008 stipulation, which reads as follows:

The Former Husband shall seek no further reduction of his alimony obligation before December 31, 2010, and the Former Husband shall not be entitled to any further reduction of his alimony obligation prior to December 31, 2010. The Former Husband may seek downward modification of his -alimony obligation only if he is involuntarily unemployed.

The Former Wife argued that paragraph seven should be interpreted as accomplishing two things. First, paragraph seven prohibits the Former Husband from seeking modification of alimony for any reason pri- or to December 31, 2010. Second, paragraph seven prohibits the Former Husband from seeking alimony modification after December 31, 2010, unless he is involuntarily unemployed. She thus asserted that because it was undisputed that the Former Husband was not involuntarily unemployed at the time of filing his 2014 petition for a reduction in alimony, she should be granted summary judgment.

The trial court agreed with the Former Wife that paragraph seven permanently barred the Former Husband from seeking modification of his alimony obligation unless he is involuntarily unemployed. The court noted that it was applying “a strict construction” of paragraph seven. Concluding that the Former Husband was not involuntarily unemployed, the court granted the Former Wife’s motion for summary judgment, denied the Former Husband’s 2014 petition for alimony reduction, and entered final judgment in favor of the Former Wife.

DISCUSSION

On appeal, the Former Husband argues that paragraph seven of the parties’ 2008 stipulation did not represent an unambiguous permanent waiver of his right to seek modification of his alimony obligation. We agree and reverse.

We review a trial court’s order granting summary judgment de novo. Jarrard v. Jarrard, 157 So.3d 332, 337 n.5 (Fla. 2d DCA 2015) (citing Hornfischer v. Manatee Cty. Sheriff's Office, 136 So.3d 703, 706 (Fla. 2d DCA 2014)). Likewise, we review a trial court’s interpretation of a settlement agreement, as incorporated into a dissolution judgment, de novo. Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004) (citing Johnson v. Johnson, 848 So.2d 1272 (Fla. 2d DCA 2003)).

Section 61.14(l)(a) allows a party to apply to a circuit court for an order modifying an alimony obligation created by agreement. This statutory right to seek modification may be waived only “if the language in the agreement clearly and unambiguously expresses waiver or if the ‘interpretation of the agreement as a whole can lead to no other conclusion but waiver.’ ” Tapp, 887 So.2d at 444 (quoting Sasnett v. Sasnett, 683 So.2d 177, 178 (Fla. 2d DCA 1996)). If a party has not expressed a clear and unambiguous intent to waive their statutory right to seek modification, it is error for a trial court to conclude that a party has waived such right. See Centeno v. Centeno, 109 So.3d 1259, 1261 (Fla. 2d DCA 2013) (reversing the denial of a petition to modify alimony where the terms of the settlement agreement did not provide “a clear and unambiguous waiver by the Former Husband of his statutory right to seek modification”); Tapp, 887 So.2d at 445 (reversing the dismissal of a petition to modify alimony where the terms of the settlement agreement did not express an “unambiguous and irrevocable intent to waive all future modifications”).

Here, the 2008 stipulation reduced the Former Husband’s alimony obligation effective June 1, 2008. Paragraph seven of that stipulation contains only two sentences. The first sentence of paragraph seven restricts the Former Husband from seeking a further reduction of alimony before December 31, 2010, as follows, “The Former Husband shall seek no further reduction of his alimony obligation before December 31, 2010, and the Former Husband shall not be entitled to any further reduction of his alimony obligation prior to December 31, 2010.” The second sentence sets forth that involuntary unemployment is the only condition upon which the Former Husband may seek a reduction of alimony as follows, “The Former Husband may seek downward modification of his alimony obligation only if he is involuntarily unemployed.” But it is unclear as to what time period this second sentence applies.

The trial court construed paragraph seven to mean that the Former Husband: (1) could not seek an alimony reduction prior to December 31, 2010, for any reason, even involuntary unemployment, and (2) could only seek an alimony reduction after Dé-cember 31, 2010, if he is involuntarily unemployed. In other words, the trial court determined that the second sentence of paragraph seven permanently limits the Former Husband’s ability to seek modification after December 31, 2010, unless he becomes involuntarily unemployed.

But, reading both sentences of paragraph seven together, another reasonable interpretation is that the second sentence’s purpose is to directly modify the first sentence to give the Former Husband a relief valve should he become involuntarily unemployed before the expiration of the time period ending December 31, 2010. Under this latter interpretation, the second sentence applies only to the time period ending December 31, 2010, and therefore does not act to permanently limit the Former Husband’s ability to seek modification for reasons other than involuntary unemployment.

It is simply unclear whether the Former Husband intended the “involuntary unemployment” language set forth in the 2008 stipulation to apply as the sole exception to him filing a petition for modification prior to December 31, 2010, or as the sole exception to him filing a petition for modification after December 31,. 2010. Or, as the trial court noted, it may be that there were no circumstances under which the Former Husband could have requested an additional alimony reduction prior to Decern-ber.31, 2010, and only one circumstance— involuntary unemployment—under which the Former Husband could have requested an additional alimony reduction in perpetuity. Gleaning these various interpretations of the 2008 stipulation supports our conclusion that it did not express an unambiguous and irrevocable intent to waive all future modification requests by the Former Husband unless he became involuntarily unemployed. As such, we reverse the summary judgment and remand with instructions for the trial court to reinstate the Former Husband’s petition and for further proceedings pursuant to section 61.14. See Tapp, 887 So.2d at 445.

Reversed and remanded for further proceedings.

VILLANTI and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bentzion KORF and Channah Korf, Appellants, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 3D16-2147
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Pomeranz & Associates and ’ Mark L. Pomeranz (Hallandale), for appellants,
    Straus & Eisler and Michael J. Eisler (Weston), for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979); SunTrust Mortg., Inc. v. Garcia, 186 So.3d 1036 (Fla. 3d DCA 2016); Bank of New York Mellon v. Nunez, 180 So.3d 160 (Fla. 3d DCA 2015).


text:
    Elsa PEDROZA, Appellant, v. HSBC BANK USA, N.A., as trustee, Appellee.
    No. 3D16-754
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Corona Law Firm, P.A., Ricardo Corona and Ricardo M. Corona, for appellant.
    Lapin & Leichtling, LLP and Jonathan R. Rosenn, for appellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009 (Fla. 2016).


text:
    COCONUT COVE RESORT & MARINA, INC., et al., Appellants, v. FLORIDA WOOD TREATERS, INC., et al., Appellees.
    No. 3D16-468
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    McDonald & McDonald, P.A. and David M. McDonald, for appellants.
    Kubicki Draper and Valerie A, Dondero, for appellees.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So.2d 367, 371 (Fla. 3d DCA 2002).


author: SUAREZ, J.

text:
    Wayne DUNBAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1464
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017.
    Wayne Dunbar, in proper person:
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.'
   SUAREZ, J.

Wayne Dunbar appeals from an order denying his Florida Rule of Criminal Procedure 3.800 motion to correct an illegal sentence or, alternatively, his Florida Rule of Criminal Procedure 3.801 motion for additional credit for time served. We affirm without prejudice for Dunbar to first exhaust his administrative remedies with the Department of Corrections (“DOC”) and to file a petition for writ of mandamus should he feel the decision of the DOC is incorrect.

Last year, this Court affirmed without elaboration Dunbar’s conviction for possession of a firearm by a convicted felon. Dunbar v. State, 185 So.3d 1248 (Fla. 3d DCA 2016) (table). In August of 2016, Dunbar filed a motion to correct his sentence pursuant to Rule 3.850. The State responded on August 24, 2016. The following day, the trial court adjudicated Dunbar’s motion (granting his motion, in part, as to a jail credit calculation, but otherwise denying the motion), and Dunbar appealed the order to this Court on September 26, 2016. On April 12, 2017, this Court affirmed the decision of the trial court in case number 3D16-2361. Dunbar v. State, 217 So.3d 1103, 1104 (Fla. 3d DCA 2017). Dunbar then filed the current motion seeking additional gain time. The trial court summarily denied the petition, and Dunbar here appeals.

As an inmate in the custody of the DOC, Dunbar must fully exhaust his administrative remedies regarding gain time or credit owed within the DOC before he is entitled to pursue judicial remedies. Bush v. State, 945 So.2d 1207, 1210 (Fla. 2006); Wilson v. State, 9 So.3d 630 (Fla. 3d DCA 2009) (table); Reeves v. State, 987 So.2d 779, 780 (Fla. 3d DCA 2008); Patterson v. State, 784 So.2d 451, 452 (Fla. 3d DCA 2000) (mem.). If after exhausting his administrative remedies, Dunbar is not afforded the relief sought, he may file a petition seeking a writ of mandamus to compel the DOC to credit him with the full amount of jail time he asserts is owed him. See LaFerte-Diaz v. Dep’t of Corr., 187 So.3d 908, 909 (Fla. 3d DCA 2016). Any such petition must be filed with the circuit court in Leon County, where the DOC is located. Wilson, 9 So.3d 630.

Affirmed.

      . Although alternatively styled as an appeal from denial of a Rule 3.800 petition to correct an illegal sentence, Dunbar's sole assertion in the underlying petition is not that the sentence is illegal, but rather that he is entitled to additional gain time. We thus treat this as an appeal from the denial of a Rule 3.801 petition.


author: ROTHENBERG, C.J.

text:
    Parley Jay PASKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1241
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017.
    Parley Jay Paskett, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Parley Jay Paskett (“Paskett”) entered into a negotiated plea with the State on January 26, 2015, wherein he pled guilty to two counts of second degree murder, one count of possession of a firearm by a convicted felon, and one count of armed home invasion robbery, in exchange for a twenty-five-year state prison sentence with a twenty-year minimum mandatory, followed by five years of reporting probation. On February 21, 2017, Paskett filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging numerous grounds of ineffective assistance of counsel. We affirm, without further elaboration, the trial court’s thorough and well-reasoned order.

Affirmed.


text:
    Victor M. BARRIOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-332
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Victor M. Barrios, in proper person.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LAGOA, ÉMAS and SCALES, JJ.
   PER CURIAM.

Victor Barrios, the defendant below, appeals an order summarily denying his motion for correction of jail sentence pursuant to Florida Rule of Criminal Procedure 3.801.

On this appeal, the parties are in agreement that Barrios’s rule 3.801 motion was legally insufficient for failure to contain the contents required under subsection (c) of the rule, but that the trial court erred in denying his motion without first giving Barrios an opportunity to amend his timely, but facially insufficient motion. See Fla. R. Crim. P. 3.801(e) (incorporating Florida Rule of Criminal Procedure 3.850(f)(2), which provides that where a timely, but facially insufficient motion is filed, “the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion”); Belanger v. State, 146 So.3d 136, 137 (Fla. 3d DCA 2014) (“Based on our review of the defendant’s motion, we agree with the trial court that the defendant’s motion fails to include all of the information required by rule 3.801(c). However, because this was the defendant’s first attempt to file such a motion, the trial court erred by denying the defendant’s motion without giving the defendant leave to amend his motion.”) (footnote omitted).

Upon the State’s proper confession of error, and our own review of the scant record before us, we reverse the order under review to allow Barrios to file a facially sufficient rule 3.801 motion within sixty days of the issuance of this Court’s mandate. See Belanger, 146 So.3d at. 137.

Reversed.


author: LINDSEY, J.

text:
    David SIEGEL and Tamara Siegel, Appellants, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    No. 3D16-1861
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Míntz Truppman, P.A., and Timothy H. Crutchfield; Insurance Litigation Group, P.A., and Tracy L. Kramer and John F. Lakin, for appellants.
    Kelley Kronenberg and Jorge L. Cruz-Bustillo; Methe & Rockenbach, P.A., and Kara Berard Rockenbach and David A. Noel (West Palm Beach), for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   LINDSEY, J.

⅛ Insured homeowners David and Tamara Siegel appeal two orders granting final summary judgment in favor of their, insurer, Tower Hill Signature Insurance Company. The court below concluded that Tower Hill complied with its policy obligations by paying the Siegels’ claim based on its independent adjuster’s estimate. The court also determined that the Siegels breached a condition precedent by failing to allow a plumbing inspection before filing suit. Because we find that genuine issues of material fact exist as to (1) Tower Hill’s initial payment and (2) the Siegels’ post-loss obligation to allow inspection, we reverse.

I. BACKGROUND

On May 15, 2015, a drain line collapsed under the foundation of the Siegels’ home. The property was covered under a Tower Hill homeowners’ policy and insured at replacement cost value. The Siegels notified Tower Hill of their claim on June 8, 2015, and on June 19, 2015, the property was inspected by Tower Hill’s independent adjuster. On August 12, 2016, the Siegels submitted an estimate to Tower Hill prepared by a public adjuster in the amount of $30,716.23 ($33,216.23 minus the $2,500 deductible). Tower .Hill then sent a payment letter dated August 17, 2015, informing the Siegels that, based on Tower Hill’s current information, the amount of their claim settlement was $4,304.75, which represented the $6,804.75 estimate prepared by Tower Hill’s independent adjustor, less the $2,500 deductible. The payment letter advised the Siegels that this amount does not necessarily constitute a full and final settlement of their claim and stated that the Siegels could submit supplemental claims for any damages discovered in the covered reconstruction and repair of the above mentioned property. On August 28, 2015, the.Siegels filed suit against Tower Hill for breach of contract, alleging that the $4,304.75 payment was inadequate.

Before Tower Hill was served with the lawsuit, it sent the Siegels two-additional letters. In the first letter, dated September 3, 2015, Tower Hill informed the Siegels of their post-loss obligation to show the damaged property as often as reasonably required. Additionally, the letter stated that “Master Plumbing has been requesting inspection of the plumbing system of your home since August 18, 2015. To date, we have not been able to gain access.” In another letter, dated September 9, 2015, Tower Hill informed the Siegels that it was rejecting their proof of loss and continuing its investigation. Tower Hill was served on September 10, 2015'.

On February 10,2016, Tower Hill moved for summary judgment, arguing that it had performed as required under the policy, applicable statute, and case law. The motion was supported by an affidavit of Tower- Hill’s corporate representative, David Poison, with the insurance policy, the estimate prepared by Tower Hill’s independent adjustor, and the August 17, 2015 payment letter attached as exhibits. Tower Hill filed a second motion for summary judgment on February 23, 2016, contending that the Siegels were in breach for failing to allow Master Plumbing to inspect their plumbing system prior to filing suit. In support, Tower Hill submitted another affidavit from - Mr. Poison attaching the insurance policy, the September 3,- 2015 letter, and the September 9, 2015 letter as exhibits. On June 7, 2016, the trial court held a hearing, and subsequently entered two orders granting Tower Hill’s motions for summary judgment. After denying the Siegels’ motion for rehearing and reconsideration of both of those orders, the trial court entered a final judgment on June 15, 2016. This appeal follows.

II. STANDARD OF REVIEW

The two issues before us are whether genuine issues of material fact exist as to (1) Tower Hill’s required initial payment and (2) the Siegels’ compliance with the policy’s post-loss obligation to allow reasonable inspections. We review the trial court’s orders granting final summary judgment de novo. See Save Calusa Trust v. St. Andrews Holdings, Ltd., 193 So.3d 910, 914 (Fla. 3d DCA 2016). Similarly, a trial court’s decision construing a contract presents an issue of law subject to de novo review. Flagship Resort Dev. Corp. v. Interval Int’l, Inc., 28 So.3d 915, 920-21 (Fla. 3d DCA 2010) (citing Florida Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001)).

III. ANALYSIS

Summary judgment is proper under Florida Rule of Civil Procedure 1.510(c) where “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact.” Arce v. Wackenhut Corp., 40 So.3d 813, 815 (Fla. 3d DCA 2010). The movant bears the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Id. (citing Valderrama v. Portfolio Recovery Assocs., LLC, 972 So.2d 239 (Fla. 3d DCA 2007)). “Once competent evidence to support the motion has been tendered, the opposing party must come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact.” Arce, 40 So.3d at 815 (emphasis in original) (citing Fla. R. Civ. P. 1.510; Michel v. Merrill Stevens Dry Dock Co., 554 So.2d 593, 596 (Fla. 3d DCA 1989)).

A. Tower Hill’s Initial Payment

Tower Hill’s position is that although the Siegels obtained an estimate that was significantly higher than its initial payment, Tower Hill fully complied with the policy because its payment was based on the estimate prepared by its independent adjuster. In support, Tower Hill relies on Slayton v. Universal Prop. & Cas. Ins. Co., 103 So.3d 934 (Fla. 5th DCA 2012).

As in this case, the underlying action in Slayton was for breach of contract, resulting from a disagreement over claim estimates. Following property damage suffered in a windstorm, Ms. Slayton, the insured homeowner, submitted an estimate prepared by a public adjuster for $61,638.00. Id. at 936. Her insurer paid $27,915.87, which was based on its lower estimate of the cost of repair. Id The insurer notified Ms. Slayton that she could submit supplemental claims for additional damages “discovered in the covered reconstruction and repair” of her property. Id. Ms. Slayton did not submit any supplemental claims and instead filed suit against her insurer for breach of contract. Id. Despite Ms. Slayton’s higher estimate, the Fifth District Court of Appeal upheld entry of a directed verdict in favor of the insurer, finding that the insurer’s decision to pay the amount of its estimate was consistent with the unambiguous loss settlement provision in the policy. Id.

Tower Hill argues that Slayton controls and mandates affirmance because the loss settlement provision in this case is “identical” to the provision in Slayton. We disagree. Both loss settlement provisions provide, in pertinent part, as follows:

b. Buildings under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
(1) If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) The limit of liability under this policy that applies to the building;
(b) The replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) The necessary amount actually spent to repair or replace the damaged building.

As the Fifth District explained in Slayton, “[t]he insurance provision cited above unambiguously limited [the insurer’s] liability for the replacement or repair costs to the lesser of [a] the policy limits, [b] the replacement costs for like construction and use, or [c] the necessary amounts actually spent to repair or replace.” 103 So.3d at 936 (emphasis added). Consequently, an initial payment based on the amount of the insurer’s estimate (less deductible) coupled with an allowance for supplemental claims is certainly consistent with the terms of the loss settlement provision, as the Fifth District held in Slayton. Id. However, the analysis does not end there.

Section 627.7011(3)(a), Florida Statutes (2017), sets a minimum amount for initial payments made pursuant to a replacement cost homeowners’ policy:

(3) In the event of a loss for which a dwelling or personal property is insured on the basis of replacement costs:
(a) For a dwelling, the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible. The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred. If a total loss of a dwelling occurs, the insurer shall pay the replacement cost coverage without reservation or hold-back of any depreciation in value, pursuant to s. 627.702.

(emphasis added). On its face, the current version of the statute requires an initial payment of at least the actual cash value; that is, the replacement cost less depreciation. This statutory requirement is reflected in an endorsement to the policy before us now:

b. (4) We will initially pay at least the “actual cash value” of the insured loss, less any applicable deductible. We shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred. We will not require you to advance payment for such repairs or expenses, with the exception of incidental expenses to mitigate further damage. If a total loss of the covered dwelling occurs, we shall pay the replacement cost coverage without reservation or hold-back of any depreciation in value, subject to the policy limits,

(emphasis added). Were it not for this endorsement, the loss settlement provision cited above in Slayton and in the Seigels’ policy, standing alone, would violate the initial payment requirement in section 627.7011 because the current version requires the insurer to pay “at least the actual cash value” as opposed to the lower of either the limit of liability, the replacement cost or the amount actually spent to repair or replace the damaged building.

Tower Hill contends that Slayton allows an insurer to fully comply with the initial payment requirement by simply paying the amount of its own estimate. This is plainly not so since Slayton explicitly declined to address the payment requirement in section 627.7011. Although Ms. Slayton argued on appeal .that the loss settlement provision above violated section 627.7011, Florida Statutes (2009), the Fifth District declined to address the argument because it was not preserved below. Slayton, 103 So.3d at 936; see also Francis v. Tower Hill Prime Ins. Co., 224 So.3d 259, 2017 WL 2960690 (Fla. 3d DCA July 12, 2017). In short, Tower Hill cannot rely on Slay-ton because Slayton is silent as to the initial payment requirement found in section 627.7011 and in the endorsement to the Siegels’ policy.

'Tower Hill also argues on appeal that it complied with the initial payment requirement of the policy and section 627,7011 because it paid more than required: the replacement cost value instead of the lower actual cash value. We reject this argument because even if Tower Hill did pay the replacement cost based. on its estimate, this amount would still be lower than the Siegels’ actual cash value estimaté, and consequently, a genuine issue of fact would still exist as' to actual cash value. We find no support in Slayton—or any other authority Tower Hill cites—for the proposition that the insurer is able to unilaterally determine, as a matter of law, actual cash value or replacement cost value.

Simply stated, Tower Hill, as the mov-ant for summary judgment, has the initial burden to establish that it. paid at least the actual cash value of the cost of repairs in compliance with the policy and the statute. Mr. Poison’s affidavit does not do that. Rather, he merely avers that the property was inspected by Tower Hill’s independent adjuster, the adjuster prepared an estimate for damages, and Tower Hill paid based on the estimate.

In addition to its Slayton argument, Tower Hill also contends that the Siegels’ lawsuit was premature because Tower Hill had not yet issued a complete and final initial payment. It is clear from the August 17, 2015 payment letter that the $4,304.75 payment was based on the information Tower Hill had at the time. Undisputedly, by August 17, 2015, Tower Hill had both inspected the property and received the Siegels’ estimate in the amount of $30,716.23. While it is true that Tower Hill informed the Siegels that the investigation was ongoing and that they could submit supplemental claims, Tower Hill indicated that a supplemental claim could only be submitted if the Siegels performed repairs. In other words, the payment letter suggests that Tower Hill had made its initial payment, and any subsequent payments were conditioned upon the Siegels initiating repairs. Indeed, this is the position Tower Hill takes in its Answer Brief, which states the following:

Here, consistent with the policy, statute, and Slayton, Tower Hill paid at least the ACV of the loss by paying the higher RCV of the loss. Additionally, Tower Hill would be required by both the policy and the statute to pay additional money for the loss to Plaintiffs if they performed repairs in excess of the paid RCV of the loss. However, Plaintiffs admittedly performed no repairs.

Accordingly, Tower Hill has failed to meet its initial burden leaving a genuine issue of material ,fact as to whether Tower Hill is in compliance with the policy and the stature.

B. The Policy’s Post-Loss Inspection Provision

The court below found that the Sie-gels failed to allow a re-inspection of the property prior to filing this action and that such failure constituted a material breach on their part. The policy sets forth certain conditions, one of which is the following:

SECTION I—CONDITIONS

2. Your Duties After Loss. In case of a loss to covered property, you must see 'that the following are done:.
f. As often as we reasonably require:
(1) Show the damaged property;

The policy also includes a “Suits Against Us” provision, which provides that “No legal action can be brought against us unless the policy provisions have- been complied with .....■”

Tower Hill contends that Master Plumbing’s inability to schedule an inspection before the Siegels filed suit resulted in a violation of a condition precedent, giving rise to a presumption of prejudice—a presumption the Siegels made no effort to rebut. The court below agreed and specifically found in its order granting Tower Hill’s motion for summary judgement that “there was a failure to allow a re-inspection of the insured property before the lawsuit was filed.”

It is the Siegels’ position that Towér Hill never requested a plumbing inspection pri- or to the Siegels filing'suit and that there cannot be a failure to allow something that was never requested. Tower Hill contends that the affidavit of its corporate representative and attached letters, dated September 3 and 9, respectively, along with two unauthenticated emails, purportedly from Ms. Heidi Moore at Tower Hill to Priscilla Rivera and Chrissy Fillmon, who are otherwise unidentified, are sufficient to meet this burden. We respectfully disagree.

Mr. Poison avers that Tower Hill assigned Master Plumbing to inspect the Siegels’ plumbing system on August 18, 2015 but that Master Plumbing was unable to inspect. Absent from the affidavit is any averment that Master Plumbing actually made contact with the Siegels and, if so, that the Siegels refused Tower- Hill’s request. Mr. Poison further avers that on September 3, Tower Hill sent correspondence to the Siegels stating that “Master Plumbing has been requesting inspection of the plumbing system of your home since August 18, 2015. To date, we have not been able to gain access.” On its face, neither the affidavit nor the letter state that Tower Hill made the request of the Siegels or, if not, either that Tower Hill or Master Plumbing advised the Siegels that Master Plumbing was making a request on Tower Hill’s behalf. Similarly, there is no averment that the Siegels affirmatively refused such request.

Mr. Poison next avers that the September 9 letter informs the Siegels that “[w]e have requested numerous times to have Master Plumbing inspect the plumbing to no avail.” However, there is no further elaboration or explanation as to how or to whom such request was made or as to why the plumbing inspection did not occur. Irrespective of the language used, both of these letters, as well as the unauthenticated emails, were dated after the lawsuit was filed. It is undisputed that the Siegels allowed Tower Hill’s independent adjuster to inspect the property on June 19, 2017, yet, absent from Mr. Poison’s affidavit is any averment that the Siegels refused to comply with any pre-litigation request made by either Tower Hill or Master Plumbing. Simply stated, there is no allegation anywhere in the record that Tower Hill requested the Siegels to provide a pre-litigation plumbing inspection and that the Siegels refused to do so. Accordingly, Tower Hill does not meet its initial summary judgment burden to demonstrate that the Seigels are in breach for failure to comply with the policy’s post-loss obligation to allow reasonable inspections.

IV. CONCLUSION

For the foregoing reasons, we find that genuine issues of material fact exist as to Tower Hill’s required initial payment and the Siegels’ compliance with the policy’s post-loss obligation to allow reasonable inspections.

Reversed and remanded for further proceedings consistent with this opinion.

      . Covered losses can be adjusted on the basis of either replacement cost value or actual cash value. Actual cash value is simply the replacement cost value minus depreciation.

      . The statute was amended in 2011. The prior version required payment of "replacement cost without reservation or holdback of any depreciation in value, whether or not the insured replaces or repairs the dwelling or property.” § 627.7011(3), Fla. Stat. (2010). The Senate Staff Analysis for the provision now in effect explains the rationale behind the Legislature’s enactment of the amendment:
      Insurance companies assert that the current replacement cost and holdback provisions allow some homeowners to file inflated or even fraudulent claims because they are not required to make needed repairs to their dwellings or replace their personal property if they sustain a loss. Many states require the insurer to pay initially only the actual cash value, and then provide the balance of the replacement cost once the insured has replaced or repaired the property.
      Fla. S. Comm. On Banking & Ins., SB 408 (2011) Staff Analysis 5 (Jan. 24, 2011).

      . No comparable policy endorsement is mentioned in Slayton.

      . Under the statute in effect in 2009, the required-payment was more demanding. See supra note 2.

      . In addition to Slayton, Tower Hill relies on Luciano v. United Prop. & Cas. Ins. Co., 156 So.3d 1108 (Fla. 4th DCA 2015) and Rizo v. State Farm Florida Ins. Co., 133 So.3d 1114 (Fla. 3d DCA 2014). In both cases, the insureds brought breach of contract actions against their respective insurers for failure to pay supplemental claims. The circuit courts in both cases granted summary judgment in favor of the insurers on statute of limitations grounds. On appeal, this. Court and the Fourth District reversed, finding that under a prior version of § 95.11(2)(e), the statute of limitations did not begin to run until the allegations of breach for failure to pay supplemental claims. See Rizo, 133 So.3d at 1114 n.1 (citing. § 95.11(2)(e), Fla. Stat (2011)) (noting that the 2011 amendment to § 95,11(2) shortened the limitations period for property insurance claims and that subsection .(e) was added to specify that in "an action for breach of a property insurance contract,” the' limitations period runs from the date of loss); Luciano, 156 So.3d at 1110 n.1 (citing § 95.11(2)(e), Fla. Stat. (2011)) (§ 95.11(2)(e) was amended in 2011 to provide that the limitations period for an action for breach- of property insurance contract runs from the date of loss). Tower- Hill points us to language in both cases holding that the insurers’ initial payments evidenced perform-•anee under the policy. -But this language does not advance Tower Hill’s position because unlike here, there were no allegations in Luciano or Rizo that the initial payments themselves were insufficient and constituted a breach.


text:
    INSPIRED CAPITAL, LLC, and Erica Gary, derivatively on behalf of Inspired Food Solutions, LLC, Appellants, v. CONDÉ NAST, an unincorporated division of Advance Magazine Publishers, Inc., and FremantleMedia North America, Inc., Appellees.
    No. 3D17-547
    District Court of Appeal of Florida, Third District.
    Opinion filed September 06, 2017

      Wallen Hernandez Lee Martinez, LLP, and Jermaine A. Lee and Eric Hernandez, for appellants.
    Adams and Reese LLP, and Eric J. Partlow and Donald A. Mihokovich (Tampa), for appellee Condé Nast.
    Stearns Weaver Miller Weissler Alha-deff <& Sitterson, P.A., and Jose G. Se-pulveda; Glaser Weil, LLP, and Sean Riley (Los Angeles, CA), for appellee FremantleMedia North America, Inc.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

The plaintiffs below, Inspired Capital, LLC, and Erica Gary, derivatively on behalf of Inspired Food Solutions, LLC, appeal from a non-final order dismissing their first amended complaint against defendants Condé Nast and FremantleMedia North America, Inc. (“Fremantle”) based on a forum selection clause contained in a License Agreement. Because the forum selection clause is mandatory and the claims asserted against Condé Nast and Freman-tle are “relating to” the License Agreement, we affirm.

Condé Nast, as licensor, Inspired Foods Solutions, LLC, as licensee, and Fremantle, as Condé Nast’s authorized representative, executed a Licensing Agreement. The parties agree that the following forum selection clause in subsection 12.4 of the License Agreement is mandatory:

Any action or proceeding between Li-censor and Licensee relating to this Agreement, whether pertaining to the interpretation or enforceability hereof or others, may only be brought in the courts of the State of New York, county of New York or the federal courts located therein, and both parties consent to the exclusive jurisdiction of such courts,

(emphasis added). The sole issue before this Court is whether the claims the plaintiffs asserted against Condé Nast and Fre-mantle in the first amended complaint— aiding and abetting (Count 8), civil conspiracy (Count 13), and misappropriation of trade secrets (Count 16)—are “relating to” the License Agreement and therefore within the scope of the forum selection clause.

In Jackson v. Shakespeare Foundation, Inc., 108 So.3d 587 (Fla. 2013), the Florida Supreme . Court addressed the scope of an arbitration provision based on whether the provision utilizes the term “arising out of’ or “relating to”:

Two basic types of arbitration provisions have emerged: (1) provisions with lan.guage and application narrow in scope, and (2) provisions with language and application broad in scope. An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies “arising out of’ the subject contract. This type of-provision limits arbitration to those claims that have a direct relationship to a contract’s terms and provisions. In contrast, an arbitration provision that is considered to be broad in scope typically requires arbitration for claims or controversies “arising out of or relating to” the subject contract. The addition of the words “relating to” broadens the scope of an arbitration provision to include those claims,-that are described as- having -a “significant relationship” to the contract—regardless of whether the claim is founded in tort or contract law.

Id. at 593 (citations omitted). The Court also explained that “a significant relationship is described to exist between an arbitration provision and a claim if there is a ‘contractual nexus’ between the claim and the contract.” Id. at 594. Further, “[a] contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction. of, a portion of the contract.” Id.

Although Jackson' addressed the scope of an arbitration provision, in Fairbanks Contracting & Remodeling, Inc. v. Hopcroft, 169 So.3d 282 (Fla. 4th DCA 2015), the Fourth District Court of Appeal applied the principles set forth in Jackson to a forum selection clause. The Fourth District recognized that the phrase any claim “relating to” the contract is broader in scope than the phrase any claim “arising out of’ the contract. Fairbanks Contracting, 169 So.3d at 283. Based on its review of the claim asserted in the complaint, the Fourth District held that the forum selection clause was enforceable because the claim had “a significant relationship and clear nexus with the contract entered into between these parties.” Id. at 283.

In the instant case, the forum selection clause utilized the term “relating to,” and therefore, the scope of the forum selection clause is broad. Id. at 283. Our review of the claims asserted in the first amended complaint against Condé Nast and Fre-mantle clearly “relat[e] to” the License Agreement. The general allegations in the first amended complaint specifically refer to the License Agreement and these allegations are. incorporated into the claims asserted against.Condé Nast and Freman-tle. The resolution of the plaintiffs’ claims requires reference to the License Agreement. Thus, the claims asserted against Condé Nast and Fremantle have “a significant relationship and -clear nexus” to the License Agreement. Accordingly, we affirm the order granting the motion to dismiss without prejudice to the plaintiffs’ right to file those claims in the courts of the state of New York, county of New York, or the federal courts located therein.

Affirmed.

      . The plaintiffs’ argument that the forum selection clause is not applicable because the License Agreement was terminated lacks merit. Subsection 12.13 of the License Agreement provides that subsection 12.4, which contains the forum selection clause, "shall survive termination or expiration of this Agreement.”


text:
    Nooi KOE, et al., Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Nos. 3D16-2892 & 3D16-2696
    District Court of Appeal of Florida, Third District.
    Opinion filed September 06, 2017
    Barnard Law Offices, L.P., and Andrew C. Barnard and Keller F. Fisher, for appellants.
    Methe & Rockenbach, and Kara Berard Rockenbach and Kristi Bergemann Rothell (West Palm Beach), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Upon the Court’s own motion, we dismiss these two consolidated appeals for lack of jurisdiction. The trial court’s orders dismiss with prejudice the Appellants’ declaratory judgment claims and a reformation claim in the operative complaints. Appellants primarily rely on Florida Rule of Appellate Procedure 9.110(k) for the proposition that these orders are appealable as partial final judgments. However, contrary to the appellants’ contentions, these orders do not amount to partial final judgments under rule 9.110(k) because interrelated .claims involving the same parties and underlying facts in both cases remain pending below. Universal Underwriters Ins. Co. v. Stathopoulos, 113 So.3d 967, 959 (Fla. 2d DCA 2013) (“Because the amended complaint reflects that the three counts are based on the same facts and are intertwined, we conclude that allowing an appeal of the declaratory count at this stage would foster impermissible piecemeal review.”); Gonzalez v. Best Meridian Inter. Ins. Co., 12 So.3d 232 (Fla. 3d DCA 2009) (“Florida Rule 9.110(k) ‘only applies to partial judgments which are unrelated to the remaining portions of the case.’ ”) (citing Hallock v. Holiday Isle Resort & Marina, Inc., 886 So.2d 459, 461-62 (Fla. 3d DCA 2004)). We also find the appellants’ remaining arguments regarding jurisdiction to be without merit, and therefore, we decline to discuss them further.

Dismissed.


author: SCALES, J. '

text:
    Iman EMAMI, Appellant, v. PROGRESSIVE BRANDS, INC., Appellee.
    No. 3D16-2227
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017

      Weiss Serota Helfman Cole & Bierman, P.L., and Roger S. Robert, for appellant.
    Gerson M. Joseph, P.A., and Gerson M. Joseph (Weston), for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SCALES, J. '

Appellant, defendant below, Iman Ema-mi appeals a final default judgment entered in favor of appellee, plaintiff below, Progressive Brands, Inc. (“Progressive”). Because the trial court failed to give Ema-mi an opportunity to contest damages before entering the final default judgment, we hold that the judgment is void and reverse.

Relevant Facts and Procedural Background

In November 2013, Progressive filed the instant action against several defendants in the Miami-Dade' Circuit Court, including Emami. As the case progressed, Progressive dismissed one defendant; another corporate defendant, Eastgate Tobacco Company, LLC, stipulated to entry of a $247,620.88 judgment against it. The only claims then remaining were Progressive’s claims against Emami for fraud (count II) and to impose individual liability on Ema-mi by piercing the corporate veil of East-gate (count IV). Emami’s initial lawyer withdrew from the case in August 2014, and in November 2014, Emami’s new lawyer, Kramer Huy, P.A. (“Kramer”) filed an Answer and Affirmative Defenses to Progressive’s Amended Complaint.

In July 2015, Progressive served Emami with interrogatories, requests for admissions and requests for production. Pursuant to Florida Rule of Civil Procedure 1.080(a) and Florida Rule of Judicial Administration 2.516(b), Progressive served Emami with this discovery by serving Kramer. The record reflects that Kramer forwarded the discovery to Emami via email. The record also reflects that Progressive’s counsel requested Kramer to provide dates for Emami’s deposition. No discovery responses were ever provided to Progressive, and Kramer never provided deposition dates to Progressive’s counsel.

On September 2, 2015, Kramer informed Progressive’s counsel of Kramer’s intent to withdraw from representation of Emami. That same day, Progressive filed a motion to compel discovery and for sanctions, noting therein that Kramer intended to withdraw as Emami’s counsel, and that Progressive would not set the September 2 motion for hearing until after Kramer had a reasonable time both to inform Emami of Progressive’s September 2 motion, and to file his motion to withdraw. On September 21, 2015, Progressive served Kramer with a notice setting an October 5, 2015 hearing date on its September 2 motion. Also on September 21, Kramer filed his motion to withdraw as Emami’s counsel, but did not set that motion for hearing.

On October 2, 2015, Progressive’s counsel purportedly sent Kramer an e-mail asking if Emami would be opposing Progressive’s September 2 motion, and Kramer purportedly responded to this e-mail notifying Progressive that Emami would not be opposing Progressive’s September 2 motion. Based on Kramer’s representation, Progressive’s counsel dispensed with the October 5, 2015 hearing, and, instead submitted to the trial court an Agreed Order Granting Plaintiffs Motion to Compel. This order, signed by the trial court on October 5, required Emami to provide the discovery responses and deposition dates to Progressive’s counsel within ten days. No sanctions were imposed in this October 5 Agreed Order.

Having received neither the discovery responses nor deposition dates from' Ema-mi (or Kramer), on October 21, 2015, Progressive moved for a default against Ema-mi as a sanction for failing to comply with the trial court’s October 5 Agreed Order. That same day, Progressive noticed its October 21 motion for default for a November 2, 2015 hearing.

Prior to the November 2 hearing, on October 29, 2015, Progressive’s counsel sent Kramer an é-mail asking whether Kramer will be setting his motion to withdraw for hearing, and whether Kramer will be attending the November 2, 2015 hearing to oppose Progressive’s motion. Later on October 29, Kramer’s office responded to the e-mail by stating: “Mr. Kramer will not be attending Monday’s hearing and he has no objection to your motion for default.”

At the November 2, 2015 hearing, the trial court entered an order granting Progressive’s motion for , default, therein (i) finding Emami’s conduct was deliberate and contumacious, (ii) entering a default against Emami, (iii) stating that damages would be determined separately at a hearing to be held on a later date, and (iv) inviting Progressive to file the appropriate motion to fix damages so that a final default judgment could be entered.

Later on November 2, 2015, Progressive filed a Motion for Final Judgment' after Default, in which Progressive sought $263,287.04 in damages, plus costs and interests. Progressive’s November 2 motion also included an affidavit of damages (and other allegations) from Progressive’s principal. That same day, Progressive noticed its November 2 motion for hearing on November 9, 2015.

For reasons that are not clear from the record, the following day, on November 3, 2015, Progressive filed a second Motion for Final Judgment after Default that is identical to the motion Progressive filed the prior day, except that the word “UNOPPOSED” was added as the first word to the motion’s caption. Similarly, on November 4, 2015, for reasons that are again unclear, Progressive filed a third, identical Motion for Final Judgment after Default that also included the word “UNOPPOSED” as the caption’s first word. Based on Kramer’s October 29 email to Progressive’s counsel, in each of its three motions seeking final default judgment, Progressive characterized its October 21 motion for default as “unopposed.”

■ On November 5, 2016, without conducting the -hearing which 'had been set for November 9—the one expressly referenced in its November 2 order granting Progressive’s motion for-default—the trial court entered a final default judgment against Emami in the principal amount of $263,287.04, plus costs and interests. While the judgment contains no insight as to why the previously noticed November 9 hearing was cancelled, .the trial court apparently dispensed, with. the November 9 hearing after. being “informed”- of the alleged “UNOPPOSED” nature of the final default judgment.

Later that same day, Emami’s new counsel, Weiss Serota Helfman Cole & Bierman, P.L. (“Weiss Serota”), filed its notice of appearance as Emami’s co-counsel. Weiss Serota’s notice also included a letter to the trial judge informing her that Ema-mi had never authorized Kramer, to consent to entry of any orders* including an order granting a default' against Emami. Apparently unaware that the trial court had already signed the final default judgment provided to her by Progressive, the letter further urged the trial court “not to enter the proposed ‘unopposed’ judgment against Mr. Emami” as Progressive’s Unopposed Motion for Judgment after Default was, indeed, opposed.

On November 20, 2015, Emami, through his new counsel, Weiss Serota, filed a motion seeking rehearing and to vacate the November 5, 2015 final default judgment. This motion argued that the final default judgment should be vacated because it was the result of excusable neglect. The motion also stressed that “Progressive’s motion for final [default] judgment was entered just hours before undersigned counsel could file a notice of appearance and submit a letter via e-courtesy imploring the Court not to enter the contested judgment ...Emami’s affidavit was appended to the motion. In it, Emami asserted, among other things, that, “I did not know or understand until very recently, when I received a motion by Mr. Kramer to withdraw as my lawyer, that an order punishing me was signed by this Court. I also did not know that I was being punished for failing to answer questions, or that that was even a possibility. None of this was explained to me, as far as I know.”

On June 6, 2016, the trial court conduct-, ed a hearing on Emami’s November 20, 2015 rehearing/vacatur motion at which Emami’s counsel argued, for the first time, that the final default judgment was void because Kramer lacked the authority to consent to the entry of either the November 2, 2015 default or the November 5, 2015 final default judgment. The trial court ordered additional briefing on this issue, and, on August 23, 2016, entered an order denying Emami’s motion for rehearing and to vacate the November 5, 2015 final default judgment.

Emami appeals both the final default judgment and the trial court’s denial of his motion for rehearing and to vacate same.

Standard of Review

This Court reviews the denial of a motion to vacate a final judgment for an abuse of discretion; however, where the final judgment is void, the lower court has no discretion and is obligated to vacate the judgment. See Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015). Whether a judgment is void is a question of law reviewed de novo. Infante v. Vantage Plus Corp., 27 So.3d 678, 680 (Fla. Bd DCA 2009) (“The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo.”).

Analysis

It is well settled in Florida that a defaulting party shall be afforded the opportunity to contest damages. See Fla. R. Civ. P. 1.440(c) (“In actions in which the damages- are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080.”); Ciprian-Escapa v. City of Orlando, 172 So.3d 485, 488 (Fla. 5th DCA 2015) (“[I]t is fundamental error to set unliquidated damages without the notice, proof, and hearing required by rule 1.440(c).”); Belcourt v. Haraczka, 987 So.2d 175, 176 (Fla. 1st DCA 2008) (“A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidat-ed damages.” (quoting Sec. Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So.2d 795, 800 (Fla. 3d DCA 1996))). In furtherance of this well-established principle, this Court finds the final default judgment is void as a matter of law because Emami was not afforded an opportunity to contest damages prior to its entry.

The trial court entered its default order on November 2, 2015, ostensibly on the basis that the default was unopposed. The trial court’s November 2 order expressly and unambiguously conditioned entry of a judgment on Progressive’s submission of an appropriate motion. That same day, accepting the trial court s invitation, Progressive moved for a final default judgment, attaching an affidavit of damages, and noticed the motion for a hearing. For unclear reasons, Progressive then filed two, identical “UNOPPOSED” motions, which purported to negate the necessity of holding a hearing. Because Progressive’s Motion for Final Judgment after Default was seemingly “UNOPPOSED,” the trial court understandably entered a final default judgment without holding the previously scheduled November 9 hearing.

Immediately after the final default judgment was entered, Emami, under the guidance of new counsel, advised the lower court that Progressive’s motion was, in fact, opposed, and moved for rehearing and to vacate the final default judgment. Under these circumstances, we hold that the trial court reversibly erred by failing to vacate the final default judgment as void. Immediately upon being informed that Emami opposed the entry of the final default judgment, the trial court should have taken the steps necessary to protect Emami’s due process rights and rescheduled the hearing on damages that had previously been set for November 9, 2015.

While obviously unintended, and presumably based on a misunderstanding, Emami was deprived of his right to contest damages under Florida law. See Krueger v. Ponton, 6 So.3d 1258, 1261 (Fla. 5th DCA 2009) (“A defaulting party has a due process entitlement to receive notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages.”); Bou-los v. Yung Sheng Xiamen Yong Chem. Indus. Co., 855 So.2d 665, 667 (Fla. 4th DCA 2003) (finding that, after a default was entered against the defendant as to liability in a breach of contract action, the “trial court erred in denying [the defendant’s] motion to set aside the default final judgment on the issue of unliquidated damages”); see also Premise, Inc. v. Withlacoochee River Elec. Coop., Inc., 215 So.3d 123, 124 (Fla. 2d DCA 2017) (providing that Florida Rule of Civil Procedure 1.440(c) requires an evidentiary hearing on claims for unliquidated damages against parties in default).

Conclusion

Under these facts, we hold that the final default judgment is void for failure to afford Emami an opportunity to contest damages. We therefore vacate the November 5, 2015 final default judgment, reverse, and remand this cause for an evidentiary hearing on Progressive’s contested November 2, 2015 Motion for Entry of Judgment after Default.

Judgment vacated; reversed and remanded for further proceedings consistent with this opinion.

      . Progressive’s Amended Complaint alleged that Emami was a member, and is now the manager, of Eastgate. Emami denied this allegation in his Answer, later averring by affidavit that he is the president of a French company, which is the parent company of a Florida corporation, which is the parent company of Eastgate.

      .These rules provide that, when service is required to be made upon a party represented by an attorney, service must be made upon the attorney, unless otherwise ordered by the trial court. See Fla. R. Civ. P. 1.080(a); Fla. R. Jud. Admin. 2.516.

      . The record reflects that, at all times material, Emami resided in France.

      . Neither Progressive's October 2, 2015 email, nor Kramer’s alleged response to same, are in the record on appeal.

      . There is no transcript from this hearing.

      . While not explicit in this order, the trial court, implicitly must have stricken Emami’s November 2014 Answer and Affirmative Defenses in order to enter the default against Emami.

      . The two claims against Emami for fraud (count II) and to pierce the corporate veil of Eastgate (count IV) were pending when default was entered. While it is unclear both from the November 2 default order, and Progressive’s ensuing Motion for Final Judgment after Default, which claims were resolved in these proceedings, we presume that the trial court defaulted Emami on both claims in its November 2 order.

      .On November 16, 2015, the trial court held a hearing on Kramer’s September 21, 2015 motion to withdraw, and granted the motion without objection,

      . The November 2 default order states, “Plaintiff’s Motion for Default Against Defendant Emami is GRANTED, Damages to. be determined separately at a hearing on a Motion for Final Judgment against Defendant Emami.”

      . We do not disturb the trial court’s November 2 default order. We agree with the trial court that Kramer’s October 29, 2015 email stating “he has no objection to your motion for default” is significantly different from a party's attorney’s unauthorized stipulations and settlements rejected in Noeling v. State, 87 So.2d 593 (Fla. 1956), Kramer v. City of Lakeland, 38 So.2d 126 (Fla. 1948), Pardo v. The Decoplage Condominium Ass'n, 833 So.2d 782 (Fla. 3d DCA 2002), Cross-Aero Corp. v. Cross-Aero Service Corp., 326 So.2d 249 (Fla. 3d DCA 1976), Bursten v. Green, 172 So.2d 472 (Fla. 2d DCA 1965), and Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963).


text:
    Carlos Alberto ZALDIVAR, Petitioner, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Respondent.
    No. 3D17-694
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017.
    Howard J. Hochman; Bruce S. Rogow (Fort Lauderdale), for petitioner.
    Chasity O’Steen, General Counsel, and Matthew Daley, Assistant General Counsel (Tallahassee), for respondent.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Petition denied. See §§ 626.611(2) and 626.207(2), Fla. Stat. (2017); Bethencourt-Miranda v. State, Dept. of Health, 910 So.2d 927 (Fla. 1st DCA 2005); Grantham v. Gunter, 498 So.2d 1328 (Fla. 4th DCA 1986).


text:
    Jose Antonio CANALS, Appellant, v. Suzy Ann MACHADO, Appellee.
    No. 3D17-345
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017
    Law Offices of Emmanuel Perez & Associates, P.A., and Emmanuel Perez, for appellant.
    Suzy Ann Machado, in proper person.
    Before ROTHENBERG, C.J., and SCALES and LUCK, JJ.
   PER CURIAM.

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


text:
    MIAMI BEVERLY LLC, et al., Appellants, v. CITY OF MIAMI, Appellee.
    No. 3D17-549
    District Court of Appeal of Florida, Third District.
    Opinion filed September 06, 2017

      Renee M. Smith, for appellants.
    Victoria Méndez, City Attorney, and Kerri L. McNulty and Rachel S. Glorioso Dooley, Assistant City Attorneys, for ap-pellee.

      Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   ROTHENBERG, C.J.

Miami Beverly, LLC, et al., who are the appellants here and the defendants below, appeal the trial court’s order denying their motion for relief from a final monetary judgment entered against them on December 24, 2015, after the entry of a default on February 23, 2015, and a default final judgment on June 4, 2015. In this appeal, the appellants do not contest the entry of the default or the default final judgment. What they contest is the entry of a final monetary judgment on December 24, 2015, awarding damages in favor of the appellee, the City of Miami, in the amount of $3,126,387.62.

The appellants contend that the damages are unliquidated damages, requiring an evidentiary hearing and an opportunity to be heard. Because no evidentiary hearing was conducted, and the appellants were not given an opportunity to contest the amount of the City of Miami’s damages, the appellants argue that the final monetary judgment is void. We conclude, however, that the damages were liquidated, and although the appellants received notice and were present when the calculation of the damages was addressed, they failed to object or offer any contrary evidence or proof. Thus, the final monetary judgment is, at best, voidable, not void. The appellants’ failure to move to vacate or set aside the final monetary judgment for more than one year after the judgment was entered was, therefore, untimely. Accordingly, we affirm. •

The operative facts are as follows. On October 29, 2014, the City of Miami filed a complaint against the appellants seeking abatement of a public nuisance, injunctive relief, and monetary damages based on substantial and continuing fines for code violations at various apartment complexes owned by the appellants. Attached to the complaint were detailed reports regarding each property, the specific infractions^ information on the liens placed on each property as a penalty, and the amount and nature of each lien (whether the lien was for a specific amount or whether it was a “rolling lien” with a specific per diem accrual rate).

A default was entered on February 23, 2015, and a default final judgment was entered on June 20, 2015. After the appellants’ initial appeal was dismissed on December 21, 2015, the trial court entered a final judgment on December 24, 2015, granting a permanent injunction and a money judgment against the appellants and in favor of the City of Miami.

On December 28, 2016, over one year after the entry of the final monetary judgment, the appellants filed their motion to vacate or set aside the judgment under Florida Rule of Civil Procedure 1.540(b). Rule 1.540(b)(l-3), however, is unavailable to the appellants as they untimely filed their motion to vacate more than one year after the final judgment was entered. The appellants .have not alleged that the judgment has been satisfied or released, so rule 1.540(b)(5) also does not apply. Thus, the only possible remedy available to the appellants under rule 1.540(b) is under subsection (4), which permits a court to grant relief from a void judgment, decree, or order if the motion to vacate is filed within “a reasonable time.” The issue in this appeal is therefore whether the final monetary judgment is a void judgment.

A void judgment is one entered without subject matter or personal jurisdiction, see Sterling Factors Corp. v. U.S. Nat'l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007), or where there has been a violation of the due process guaranty of notice and an opportunity to be heard. Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006). Because there is no dispute that the trial court had jurisdiction over the matter and the parties, this appeal turns on whether the damages awarded to the City of Miami were liquidated or unliquidated, and if liquidated, whether the failure to conduct an evidentiary hearing or otherwise provide the appellants with an opportunity to contest the calculation of the damages amounts to a violation of due process.

I. Were the damages liquidated or un-liquidated?

Whether damages are liquidated or unliquidated is a question of law reviewable de novo. R & B Holding Co., Inc. v. Christopher Advert. Grp., Inc., 994 So.2d 329, 331 (Fla. 3d DCA 2008). Damages are liquidated when the amount to be awarded can be determined with exactness from the cause of action as pled, by an agreement by the parties, by an arithmetical calculation, or through application of definite rules of law. Wells Fargo Bank, Nat'l Ass’n v. Sawh, 194 So.3d 475, 480 (Fla. 3d DCA 2016); Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006). Damages are not liquidated if testimony is required to determine how to evaluate the damages. Ciprian-Escapa v. City of Orlando, 172 So.3d 485, 489 (Fla. 5th DCA 2015). For example, a demand for attorney’s fees and costs has been held to be a request for unliquidated damages because the reasonableness of the requested fees must be determined. See Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So.2d 723, 724 (Fla. 5th DCA 2000); Gold v. M & G Servs., Inc., 491 So.2d 1297 (Fla. 3d DCA 1986).

The appellants contend that the damages in this case were unliquidated because they differ from the amount of damages specifically pled in the complaint and cannot be calculated by a specific formula. Thus, the appellants argue that they were entitled to an evidentiary hearing with notice and an opportunity to be heard. Although a - default was entered against the appellants, they would still be entitled to an evidentiary hearing if the amount of the damages were unliquidated. See Fla. R. Civ. P. 1.440(c) (“In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080.”); Watson v. Internet Billing Co., 882 So.2d 533, 534-35 (Fla. 4th DCA 2004).

However, the record reflects that although the damages awarded to the City of Miami exceeded the amount pled in the complaint, they were determined through an arithmetical calculation and were therefore liquidated damages. The City of Miami’s damages were reflected in documented code enforcement liens against the appellants’ properties, and this documentation was attached to the complaint. The increase from the dollar amounts pled and the amount awarded resulted from the per diem accrual of additional fines imposed since the filing of the complaint. The complaint also put the appellants on notice that, as to each of the liens identified, the per diem fines would continue to accrue until the pending violations were cured. Additionally, the City of Miami provided the trial court with up-to-date reports supplementing the attachments to the complaint, which detailed the accrual of the fines, along with sworn statements from both the Chief of Unsafe Structures and the Director of Code Compliance for the City of Miami who attested to the veracity of the calculations.

Because the liens attached to the complaint specified the daily accrual rates, and the calculation of the damages was based upon a simple arithmetical calculation, the damages were, as the trial court concluded, liquidated damages.

II. Was the final monetary judgment subject to rule 1.540(b)(4)?

The answer to this question is self-evident. Because the damages were liquidated, no evidentiary hearing was required. To be entitled to relief under rule 1.540(b)(4), the appellants were required to demonstrate that the final monetary judgment was void. The failure to provide a defendant with notice and an opportunity to be heard where the damages are unliq-uidated is a due process violation and constitutes fundamental error requiring that the judgment awarding such damages be set aside. See Sarasota Estate & Jewelry Buyers, Inc. v. Joseph Gad, Inc., 25 So.3d 619, 621 (Fla. 2d DCA 2009) (holding that while a trial court may award liquidated damages without notice, it is fundamental error for the court to award unliquidated damages without providing the required notice and proof of the damages); Tand v. C.F.S. Bakeries, Inc., 559 So.2d 670, 671 (Fla. 3d DCA 1990) (holding that when a claim involves unliquidated damages, the defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary in order to determine the amount of the damages).

The record in the instant case reflects that the appellants received notice and were afforded an opportunity to contest the amount of damages prior to the entry of the final monetary judgment. Although the appellants were present for the June 4, 2015 hearing, when the issue of supplementing the lien total to reflect the current amounts owed was addressed, the appellants were provided with the supplemental figures on December 9, 2015, and the final monetary judgment was entered on December 24, 2015 incorporating the new totals, the appellants did not object. The appellants therefore cannot prevail under any scenario.

The appellants cannot prevail under rule 1.540(b)(4) because the monetary judgment is not void. The damages were liquidated, so no notice or opportunity to be heard was required. But even if the damages were unliquidated, the appellants were afforded due process. We, therefore conclude that the trial court did not err by denying the appellants’ motion for relief of the final monetary judgment filed more than one year after the entry of the final monetary judgment.

Affirmed.

      . The appellants appealed the default final judgment but that appeal, was dismissed for failure to pay the filing fee, '


author: PER CURIAM

text:
    STATE of Florida, Appellant, v. Nathan Patrick RYAN, Appellee.
    Case No. 5D16-3318
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    Michael Ufferman, of Michael Ufferman Law Firm, PA, Tallahassee, for Appellee.
   PER CURIAM

We affirm the trial court’s order granting Appellee’s motion for post-conviction relief, which found that Appellee is entitled to a new trial because he was prejudiced by ineffective assistance of trial counsel. However, if a new trial is conducted;.and if Detective Voyles is called upon to testify, we agree with the State that he should not be asked nor permitted to state his opinion of whether the circumstances, as he knew them, amounted to consensual sex or some form of attempted sexual battery. That issue is one for the trier of fact. See Jackson v. State, 107 So.3d 328, 339-40 (Fla. 2012).

AFFIRMED.

ORFINGER, EVANDER, and EDWARDS, JJ., concur.

      . Appellee, having served his prison term, was on probation when the appealed order was entered,

      . Wé note that Detective Voyles, the primary investigating detective, was never contacted by or called as a trial witness by defense counsel, Voyles did testify at the evidentiary hearing on Appellee's post-conviction motion. Voyles testified that, based upon his.observations together with what he had been told, he held the opinion that the sexual encounter involving Appellee and the victim was a "consensual hook-up” rather than any form of rape. However, he confirmed that.he had no intention of offering that opinion testimony at trial.


author: COHEN, C.J.

text:
    David J. NUGENT, Appellant, v. Joy E. NUGENT, Appellee.
    Case Nos. 5D16-2587 & 5D16-3284
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017

      Theodore R. Doran and Carol Yoon, of Doran, Sims Wolfe & Ciocchetti, Daytona Beach, for Appellant.
    Joan Stefanec Briggs, of Adams, Briggs and Briggs, Daytona Beach, for Appellee.
   COHEN, C.J.

David Nugent (“Former Husband”) appeals the final judgment dissolving his marriage to Joy Nugent (“Former Wife”). Former Husband also appeals the order awarding attorney’s fees and costs to Former Wife. We affirm in part, reverse in part, and remand for the trial court to readdress the equitable distribution of the parties’ assets.

The parties were married for over nine years; they had no children together. Former Husband worked throughout the marriage as an auto-body technician. Former Wife worked sporadically during the marriage but ■ has not been employed since 2007. She testified that she is unable to work because of health issues. Former Wife testified that she planned to move to Arkansas where she would live in her elderly mother’s home in order to save on rent, but that she needed money to facilitate the move, including funds to rent a moving truck, money for fuel, and new tires and brakes for her car. She also testified that she was in need of new glasses and dental services.

The parties stipulated that Former Husband would retain his non-marital assets, which totaled slightly over $90,000. The parties also stipulated that the marital home was devoid of equity. However, the parties disputed the valuation of other marital assets, such as Former Wife’s automobile, Former Husband’s motorcycle, personal property within the home, and a bank account in Former Husband’s name. The former couple also had liabilities from consumer credit cards and outstanding medical bills that totaled approximately $28,000.

The court distributed the parties’ marital assets, largely making each party responsible for their respective assets and liabilities, and awarded the marital home to Former Husband. The trial court awarded Former Wife $750 per month in durational alimony for seven years. Former Wife was also awarded a $2500 lump-sum payment of bridge-the-gap alimony. The court subsequently granted Former Wife’s request for attorney’s fees and costs. This appeal followed,

Former Husband first argues that the trial court erred in awarding alimony to Former Wife. We review a trial court’s ruling on alimony for abuse of discretion. See Duke v. Duke, 211 So.3d 1078, 1080 (Fla. 5th DCA 2017). Durational alimony is available “to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration.” § 61.08(7), Fla. Stat. (2015). “Bridge-the-gap” alimony is awarded “to assist a party by providing support to allow the party to make a transition from being married to being single.” Id. § 61.08(5). Before awarding alimony, the court must make a finding regarding each party’s need for alimony and the other party’s ability to pay. Id. § 61.08(2). The court must also consider the factors outlined in subsections 61.08(2)(a)-(j). Id.

The trial court found that “after considering all of the factors of Section 61.08,” Former Wife had a need for alimony and Former Husband had the ability to pay. The court pointed out that Former Husband’s income was $52,896, while Former Wife had been unemployed for many years. The court imputed annual part-time income to Former Wife at $10 per hour, although the court did not provide a dollar amount for the total. The court also noted that Former Husband had significantly more non-marital assets than Former Wife, the preferential tax treatment he would receive on his alimony payments, his savings on health insurance premiums by no longer providing coverage for Former Wife, and the additional expense Former Wife would incur by paying for her own health insurance. Regarding the $2500 lump-sum payment of bridge-the-gap alimony, the court found that based on his non-marital assets, Former Husband had the ability to pay and Former Wife was in need of support to assist with her immediate dental, vision, and vehicle needs prior to her move to Arkansas.

Former Husband first challenges the lump-sum payment of $2500 to Former Wife. However, the trial court’s findings are sufficient to support the award. Former Wife’s expenses are precisely the type that the statute contemplates. See id. § 61.08(5) (“Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single.... [It] is designed to assist a party with legitimate identifiable short-term needs .... ”).

Regarding the durational alimony award, it is undisputed that Former Wife never worked full-time for longer than a few months during the marriage and never earned more than $9000 per year. Beyond the brief periods in 2007 and 2013 when Former Wife worked full-time, no evidence supported imputing a full-time wage to Former Wife as advocated by Former Husband. Although the trial court mistakenly found that Former Wife had not worked full-time since 1999, the record supports the more important finding—that Former Wife is not capable of full-time work. Based on the evidence and findings as to Former Husband’s income and assets, the trial court did not abuse its discretion in finding that Former Husband has the ability to pay durational alimony of $750 per month.

Former Husband next argues that the trial court erred in the equitable distribution of the parties’ assets. This Court reviews orders on equitable distribution for abuse of discretion. Coleman v. Bland, 187 So.3d 298, 299 (Fla. 5th DCA 2016). Former Wife concedes that the equitable distribution award contains numerous valuation errors. She acknowledges that the proper calculation for the distribution of marital assets would leave her with approximately $1314 more than Former Husband. While the parties stipulated to the values of many marital assets, the parties did not stipulate to an unequal distribution. Therefore, we decline to treat the trial court’s calculation errors as de minim-is. See Packo v. Packo, 120 So.3d 232, 234 (Fla. 5th DCA 2013) (‘Without proper valuation of the marital assets, this Court is unable to meaningfully review the trial court’s distribution .... ”). Moreover, the trial court neglected to make findings as to why each party should take an unequal share. See § 61.075(1), (3), Fla. Stat. (2015); Packo, 120 So.3d at 233.

Accordingly, we reverse the final judgment of dissolution and remand for the trial court to correct the calculation errors in the equitable distribution order and to determine whether an equalizing payment is appropriate. See Neiditch v. Neiditch, 187 So.3d 374, 376 (Fla. 5th DCA 2016). We affirm as to the remaining issues raised by Former Husband, including the order awarding attorney’s fees to Former Wife.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PALMER and EISNAUGLE, JJ., concur.

      . Case no. 5D16-2587 is an appeal from the final judgment of dissolution; case no. 5D16-3284 is an appeal from the order granting Former Wife’s request for attorney’s fees. These cases were consolidated for purposes of this appeal.

      . The trial court’s order did not use the phrase "bridge-the-gap” alimony—referring instead only to “lump-sum alimony.” Yet "lump-sum” is not a type of alimony but rather a method of allocating payments—any form of alimony can be awarded either as a lump sum or as a periodic payment. See § 61.08(1), Fla. Stat. (2015). It is clear from the court’s rationale for this award that the court was ordering bridge-the-gap alimony.

      . The final judgment does not explicitly address the length of the parties’ marriage, which was nine years. Presumably this was a marriage of moderate duration, as it lasted more than seven years but less than seventeen years. See § 61.08(4), Fla. Stat. (2015).

      . However, the relatively small amount resulting from the unequal distribution is not sufficient to merit reconsideration of the alimony award.


text:
    Cameron J. ROSE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1028
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Eneid Baño, of Bano Law Firm PL, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora H. Hall, Assistant Attorney General, Daytona Beach, for Appel-lee.
   COHEN, C.J.

Cameron Rose appeals his conviction for attempted burglary. He raises three issues on appeal, only one of which merits discussion. Rose argues that the trial court erred in denying his motion for mistrial after his status as a probationer was admitted into evidence, despite an order granting a motion in limine prohibiting admission of that evidence. We affirm.

Rose represented himself at trial. The victim owns the Palms Hotel, where Rose resided when a dispute over toiletry items ensued. The victim testified that Rose, while threatening to kill him, attempted to break into the hotel’s locked office. Rose broke the office door’s glass pane; his hand was bleeding as a result, and his blood was recovered from the office door. There was conflicting testimony on whether he reached through the door, attempting to unlock it.

The State did not introduce evidence regarding Rose’s probationary status at trial. Rather, Rose elicited this information from the victim on cross-examination. Rose asked the victim how many times he had stayed at the hotel, and the victim stated that Rose was first placed at the hotel by a probation office, which assisted Rose with rent payments. Rose did not object or move for a mistrial at that point. Instead, he followed up with a series of questions, confirming that the probation office paid for his initial stay. Notably, in the questions Rose posed, he himself mentioned his probationary status several times.,None of the disputed testimony related to whether Rose committed the burglary.

The trial court correctly found that Rose opened the door to the victim’s testimony about his probationary status. Because Rose elicited the victim’s statements about the arrangement with the probation office, and the victim’s answers were responsive to- the questions Rose asked, any error in the admission of this testimony was invited. “‘[A] party may not make or invite error at trial and then take advantage of the error on appeal.’” Morgan v. State, 146 So.3d 508, 512-13 (Fla. 5th DCA 2014) (quoting Sheffield v. Superior Ins. Co., 800 So.2d 197, 202-03 (Fla. 2001)); see, e.g., Buggs v. State, 640 So.2d 90, 91 (Fla. 1st DCA 1994) (finding defense counsel’s question on cross-examination that elicited information subject to order on motion in limine was invited error because answer was responsive to question counsel posed).

AFFIRMED.

WALLIS and LAMBERT, JJ., concur.

      . It appears that Rose was. trying to portray the victim in a bad light by eliciting testimony that the victim had terminated Rose’s stay at the hotel for non-payment.


text:
    Alvaro ABAUNZA, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2280
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Alvaro Abaunza, pro se, Petitioner.
    ' Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Cartwright v. State, 859 So.2d 526 (Fla. 1st DCA 2003).

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Lymon BELL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3304
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017

      Lymon Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


text:
    Keith Raymond GINNETTI, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1664
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Keith Raymond Ginnetti, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Michael CURTIS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2235
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Michael Curtis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Marvin F. CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3000
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.

      Marvin F. Campbell, 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.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Clarence PERKINS Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0716
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Clarence Perkins, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 738 (Fla. 1st DCA 2002).

RAY, BILBREY and WINSOR, JJ., CONCUR.


text:
    Roderick FARLIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2762
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Roderick Farlin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Robert MCKINNON, III, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2582
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Robert McKinnon, III, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    Terrance Eugene SHAW, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2901
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Terrance Eugene Shaw, 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.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Branden J. BAILEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2761
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017
    Branden J. Bailey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


text:
    Sherlin HERARD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1405
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017.
    Sherlin Herard, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition seeks belated appeal of a judgment and sentence. Although a timely notice of appeal was originally filed and docketed in this Court as case number 1D16-4231, appellate counsel failed to file the initial brief, and the result was dismissal of the direct appeal. Accordingly, we grant the petition, reinstate petitioner’s appeal in case number 1D16-4231, and relinquish jurisdiction to the lower court for a period of thirty days to appoint substitute appellate counsel in that proceeding. Substitute counsel shall have thirty days from the date of appointment by the lower court within which to ensure transmittal of the record on appeal to this Court and thirty days thereafter in which to file appellant’s initial brief.

ROWE, MAKAR, and JAY, JJ., CONCUR.


text:
    Vernon L. SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5123
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017
    Vernon L. Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

The Court reserves jurisdiction to consider the imposition of sanctions.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Benjamin BUCHANAN, Father, Appellant, v. Kristin BUCHANAN, Mother, Appellee.
    CASE NO. 1D16-4492
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017

      Gary Baker of Baker & Rhodes, Attorneys at Law, Callahan, for Appellant.
    Alexa, K. Alvarez of Alvarez & Wallace, P.A, Femandina Beach, for Appellee.
   PER CURIAM.

Appellant, the Husband in a pending dissolution action, appeals the trial court’s temporary support order. The order requires Husband to pay child support and to continue, paying family and- household expenses, as he had. been doing voluntarily, and requires the company in which he is a partner to continue paying his wife a weekly stipend. We remand the trial court’s order requiring Husband to continue paying these family and household expenses. We reverse the portion of the award requiring the Husband’s company to continue paying Wife’s stipend.

Although awards of temporary alimony are within a trial court’s broad discretion, the record must contain competent, substantial evidence that demonstrates the receiving spouse’s need for support and the paying spouse’s ability to pay. de Gutierrez v. Gutierrez, 19 So.3d 1110, 1112-13 (Fla. 2d DCA 2009); Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005). If an award is in excess of a party’s ability, to pay, then it is not supported by competent, substantial evidence, and a trial court abuses its discretion.by ordering such an award. Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007).

In its Order on Wife’s Petition for Temporary Needs and Faculties, the trial court found that since the parties’ separation, Husband had been paying the. mortgage, electricity and cable on the marital home, the insurance for the parties’ vehicles, Wife’s car payment, and loan payments on the parties’ camper and motorcycle. The trial court ordered that Husband continue to pay these expenses, along with $250 per week for support of the parties’ minor children. The trial court also ordered Husband’s company, where he is a partner, to continue paying the Wife a “salary” of $135.64 per week. At the hearing on Wife’s petition, Wife testified she did not perform any work for the company in exchange for the salary.

The trial court, however, did not make a specific finding as to Husband’s ability to pay. The evidence and testimony was conflicting: Husband’s financial affidavit stated a net monthly income of $4,023.08 and a gross annual income in 2015 of $57,200; at the hearing, Wife testified that Husband earned that amount, and Husband and Wife both testified that Husband’s income was $1,100 per week, however, Husband also testified his income was “[sjeventy-two annually.”

Additionally, the trial court did not make a specific finding as to the specific amounts for the expenses Husband was required to continue paying, and Husband’s and Wife’s financial affidavits differ materially in stating each party’s income and the amounts of household expenses. Husband’s financial affidavit lists “Monthly mortgage or rent” of $2,591.46, yet under “Liabilities” he lists “Suntrust (mortgage)” of $1,396.46. Wife’s financial affidavit lists the mortgage payment as $1,259.45 per month, yet she testified that Husband had been paying the mortgage since their separation, which she estimated was $1,400.

“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” § 61.08(2) Fla. Stat. (2016). Where the basis for an award is reasonably clear and supported by the record, an appellate court should not reverse for absence of statutory findings in the written order. Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001). Here, the trial court’s lack of statutory findings frustrates appellate review because the record indicates differing claims as to Husband’s net income and the amount of support needed, making it impossible to determine on appeal whether the award is within Husband’s ability to pay. Husband and Wife continue to argue two different values as to Husband’s income and the amount of support owed. Depending on the facts, the trial court’s award may be within Husband’s ability to pay and thus within the trial court’s discretion to award, or in excess of Husband’s ability to pay and thus an abuse of the trial court’s discretion to award. We remand to the trial court for a specific factual determination as to the amount of Wife’s need, Husband’s ability to pay, and any other factors described in section 61.08, Florida Statutes, to establish a basis for the award.

Regarding the trial court’s order that Husband’s company continue to pay Wife’s salary, Husband’s company has not been joined as a party to the dissolution action, and “the trial court has no power to order a transfer of corporate assets without joinder of the corporation.” Ashourian. v. Ashourian, 483 So.2d 486 (Fla. 1st DCA 1986); see also Minsky v. Minsky, 779 So.2d 375, 377 (Fla. 2d DCA 2000) (holding that in dissolution action, “the trial court does not have jurisdiction. to adjudicate property rights of nonparties”). While the trial court has the authority to distribute a spouse’s interest in company stock, it does not have the authority to distribute assets of the non-joined company itself. See Mathes v. Mathes, 91 So.3d 207, 208 (Fla. 2d DCA 2012); Minsky, 779 So.2d at 377; Ashourian, 483 So.2d at 486-87.

Appellate courts have expanded the rule barring transfer of non-party corporate assets to also bar transfer of assets owned by non-party limited liability companies. Ehman v. Ehman, 156 So.3d 7, 8 (Fla. 2d DCA 2014) (holding it was “error to award property owned by [Husband’s limited liability company] to the Wife as part of the equitable distribution of marital assets”). Here, Husband’s company, from which Wife receives a stipend, is a limited liability company. The trial court had no authority to order a non-party company to pay a salary to someone who does not work for that company, and the trial court erred by doing so.

We therefore remand to the trial court for a specific factual determination as to Wife’s need and Husband’s ability to pay, and any other relevant factors under section 61.08, Florida Statutes, to establish a basis for the award. We reverse the portion of the award requiring Husband’s company to continue paying Wife a stipend.

REVERSED and REMANDED.

B.L. THOMAS, C.J., and LEWIS and ROWE, JJ., CONCUR.