author: ROTHENBERG, J.

text:
    Heather THEOBALD, etc., et al., Appellants, v. PIPER AIRCRAFT, INC., ET AL., Appellees.
    No. 3D16-1504
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    The Wolk Law Firm, and Michael S. Miska (Philadelphia, PA); The Fleet Law Firm, P.A., and Brad Steven Fleet, for appellants.
    Cunningham Swaim, LLP, and Steven D. Sanfelippo, Gary Don Swaim, and Alex Whitman (Dallas, Texas), for appellee Piper Aircraft, Inc.

      Adler Murphy & McQuillen LLP, and Austin W, Bartlett (Chicago, Illinois); McIntosh Sawran & Cartaya, P.A., and Douglas M. McIntosh and Kimberly Ka-noff Berman (Ft. Lauderdale), for appellee S.-Tec Corp.
    Before ROTHENBERG, SALTER, and EMAS, JJ.
   ROTHENBERG, J.

The appellants, who are the plaintiffs in a wrongful death lawsuit filed in Miami-Dade County, appeal the trial court’s non-final order granting Piper Aircraft, Inc.’s (“Piper, Inc.”) motion to transfer venue from Miami-Dade County, Florida, to Indian River County, Florida, based on forum non conveniens. Because we find no abuse of discretion with the trial court’s ruling, we affirm.

The record reflects that the appellants are the surviving family members of three people who were killed when the Piper Seneca II airplane they were riding in crashed near Johnstown, New York. The flight originated in Bedford, Massachusetts, and was on its way to Rome, New York, when it crashed, killing all three individuals on board: the pilot and two passengers. The three individuals were residents of New York, and the surviving family plaintiffs reside in New York, Connecticut, and California.

Piper, Inc. is the successor entity that was created as a result of a bankruptcy action filed by the original manufacturer of the aircraft, Piper Aircraft Corporation. Piper Aircraft Corporation designed and manufactured the aircraft in Vero Beach, which is in Indian River County, Florida. The aircraft was then sold and shipped to an aviation company in Washington and the aircraft was later acquired by a Connecticut company. The subject aircraft was never serviced and had never touched down in Miami-Dade County. Piper, Inc. is a Delaware corporation, and its corporate headquarters and only location is, and always has been, in Vero Beach, Florida. The plaintiffs are not seeking damages against Piper Aircraft Corporation in this lawsuit.

Besides Piper, Inc., the other defendants being sued in this action are the various One S-TEC Way defendants, which are corporations organized and existing under the laws of Texas. Although it is alleged that the One S-TEC Way defendants do business in the state of Florida, they are not “located” in Florida, and they do not have an office or registered agent in the state of Florida.

The complaint alleges that when the subject aircraft was built by Piper Aircraft Corporation in 1978, Piper Aircraft Corporation installed a stabilator which, based upon its flawed design, caused the aircraft to break up and disintegrate inflight. The complaint alleges that Piper, Inc. was aware of this design defect based on other in-flight break-ups of other Piper Seneca aircraft resulting in the disintegration of the aircraft and the death of the aircraft’s occupants. These accidents were investigated by the Piper defendants and resulted in the filing of lawsuits against the Piper defendants, which were settled.

Despite Piper, Inc.’s knowledge of this design defect, it is alleged that Piper, Inc. failed to warn the current owners of Piper Senecas of the danger; recall or retrofit Piper Senecas in the field with newly-designed stabilators, rudders, and tails capable of safely handling normal air loads; continued to vouch for the airworthiness of their aircraft to the public and the FAA; continued to manufacture aircraft using the same dangerously defective stabilator; and hid the design defect and dangers from consumers and the public.

The allegations and claims against the One S-TEC Way defendants are similar to those asserted against the Piper defendants, but involve the autopilot and the autopilot hardware equipment the Piper defendants installed in the subject aircraft, which the complaint alleges were defective in design and/or manufacture. The complaint alleges that the One S-TEC Way defendants knew of the design defects and failed to warn, rectify, report, or disclose these defects. The alleged design defects involve the autopilot, autopilot hardware, certain equipment, the servos, and the avionics. Specifically, it is alleged that the servos used on the Piper Seneca had a propensity to malfunction and to incorrectly pitch the aircraft and/or render the aircraft uncontrollable. The autopilot system also had a propensity to lose reference to the horizon and cause “trim-run-aways” and “hard-overs.” The design and/or manufacture defect that caused these malfunctions was further exacerbated by the design and/or manufacture defects that did not allow the autopilot system to be overpowered by the pilot so that the pilot could correct the problem, but instead allowed for a single failure of the system to cause the complete loss of control over the aircraft.

Legal Analysis

Section 47.122, Florida Statutes (2015), provides: “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” Section 47.122, as well as the case law interpreting the statute, identifies three distinct factors to consider when determining whether to transfer venue: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) in the interest of justice. The trial court may transfer venue if it finds that any of these factors weigh in favor of the alternate forum.

“The decision to transfer venue based upon Section 47.122 is one which is within the sound discretion of the court, and the party contesting the [trial court’s venue decision] must show an abuse of discretion in order to successfully challenge the court’s determination.” Burger King Corp. v. Koeppel, 564 So.2d 209, 210 (Fla. 3d DCA 1990). “[A]bsent a demonstration of an abuse of that discretion, the lower court’s determination will not be overturned on appeal.” Fla. Patient’s Comp. Fund v. Fla. Physicians’ Ins. Reciprocal, 507 So.2d 778, 779 (Fla. 3d DCA 1987) (quoting Hu v. Crockett, 426 So.2d 1275, 1281 (Fla. 1st DCA 1983)).

In Levy v. Hawk’s Cay, Inc., 505 So.2d 24, 24 (Fla. 3d DCA 1987), this Court stated that where there is a reasonable basis in the record to support the trial court’s decision, we must affirm. A review of the record reflects that the trial court’s transfer of the subject litigation from Miami-Dade County to Indian River County, Florida, was reasonable. The airplane was manufactured in Vero Beach, Florida, which is located in Indian River County; Piper, Inc. is, and has always been, located in Vero Beach; none of the parties, decedents, or witnesses are or were residents of Miami-Dade County; the airplane crashed in New York; and the One S-TEC Way defendants are all located in Texas. Miami-Dade County has no connection whatsoever with this lawsuit.

Piper, Inc. also submitted affidavits articulating the convenience of litigating this case in Indian River County, where the aircraft was manufactured, the witnesses reside, and relevant documents are located. The affidavit also set forth the inconvenience of litigating the lawsuit in Miami-Dade County where none of its witnesses, company, or documents are located. Thus, the record supports the trial court’s order transferring the lawsuit to Indian River County based on all three of the factors identified in section 47.122: the convenience of the parties; the convenience of the witnesses; and in the interest of justice.

In fact, this Court has held in other similar cases that it was an abuse of discretion to not have transferred the case. For example, in Prudential Property & Casualty Insurance Co. v. Palma, 622 So.2d 594 (Fla. 3d DCA 1993), this Court held that the trial court abused its discretion when it denied Prudential’s motion to transfer the lawsuit from Miami-Dade County to Daytona Beach, Volusia County, Florida, where the lawsuit involved a collision that occurred in Daytona Beach, the insured and her husband were residents of New York, the insured and her husband received initial medical treatment in Volu-sia County and follow-up medical care in New York State, and the witnesses were located in either New York State, Volusia, Seminole, or Orange Counties. Although Prudential did business in both Volusia and Miami-Dade Counties, this Court concluded that because “the record [was] devoid of any connection between Dade County and any of the factual occurrences in this case or any of the witnesses who might be called to testify in this case, we find that the trial court abused its discretion in denying the insurance company’s motion for a change in venue.” Id at 595 (citing Tindall v. Smith, 601 So.2d 627 (Fla. 2d DCA 1992)); see also Burger King, 564 So.2d at 209; Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451, 452 (Fla. 3d DCA 1978).

The appellants contend that although the crash did not occur in Miami-Dade County, no witnesses or parties reside in Miami-Dade County, and the aircraft was not manufactured, purchased, or serviced in Miami-Dade County, that venue should not have been transferred to Vero Beach, Indian River County, where some of the witnesses reside, the aircraft was manufactured, and Piper, Inc. is located, because Miami-Dade is a metropolitan city with a large airport and various accommodations that would make it a more convenient forum for the traveling witnesses and parties. This Court and others have, however, rejected this argument where the metropolitan city has no connection to the lawsuit or the underlying claim. See ATP Tour, Inc. v. Skoff, 758 So.2d 1226, 1228 (Fla. 4th DCA 2000) (recognizing that while transportation facilities are generally better in metropolitan areas, “the lawsuit should be tried in the area where the cause of action arose whenever consonant with the residence and convenience of the parties”); Peterson, Howell & Heather v. O’Neill, 314 So.2d 808, 810 (Fla. 3d DCA 1975) (holding that it was an abuse of discretion not to transfer the case to Polk County where the only ground in support of the decision to deny transfer was that Miami-Dade County was a large metropolitan area with more adequate facilities).

Conclusion

Based on our standard of review and because Miami-Dade County has absolutely no connection to the subject lawsuit, we affirm the trial court’s order transferring the lawsuit to Indian River County where Piper, Inc. (a party) is located, the aircraft was manufactured, several witnesses reside, and relevant documents are kept.

Affirmed.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Katia Maria DURAN, Appellant, v. Ramon Jose DURAN, Appellee.
    No. 3D16-823
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    A. Antonio Tomas, for appellant.
    Harvey D. Rogers, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

The former wife seeks review of the trial court’s amended final judgment of injunction against domestic violence in favor of the former husband. After a careful review of the testimony in the record and the briefs of the parties, we affirm the judgment below. “The trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.” Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006).

Affirmed.


author: FERNANDEZ, J.

text:
    Joyce HARDIN, as Personal Representative of the Estate of Thomas B. Hardin, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, a Foreign Corporation, Appellee/Cross-Appellant.
    No. 3D16-510
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.

      The Ferraro Law Firm, P.A., Paulo R. Lima, Allan B. Kaiser and Juan P. Bauta, II, for appellant/cross-appellee.
    King & Spalding, LLP, Scott Michael Edson (Washington, DC) and William L. Durham (Atlanta, GA), for appellee/cross-appellant.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Joyce Hardin, etc., appeals the denial of her Motion for Leave to Amend Complaint to seek punitive damages on her non-intentional tort claims. Appellee R.J. Reynolds Tobacco Company, etc., cross-appeals the trial court’s ruling that allowed Hardin to exercise peremptory strikes on two male jurors without articulating a non-pretextual, gender-neutral reason. We reverse the trial court’s denial of Hardin’s motion for leave to amend complaint because Hardin properly preserved the issue in her motion, and we remand for a new trial limited to the issue of punitive damages for the non-intentional tort claims. The trial court’s ruling on the issue of peremptory strikes is affirmed without further discussion.

Joyce Hardin, the personal representative of the estate of her deceased husband Thomas B. Hardin, filed a wrongful death action for strict liability, negligence, fraud, and conspiracy to fraudulently conceal. She moved for leave to amend her complaint to add a claim for punitive damages for both the intentional and non-intentional tort claims. Shortly thereafter, the First District Court of Appeal held that Engle progeny plaintiffs may not seek punitive damages for non-intentional tort claims and certified the question on such damages to the Florida Supreme Court as one of great public importance. Soffer v. R.J. Reynolds Tobacco Co., 106 So.3d 456 (Fla. 1st DCA 2012). Hardin then supplemented her motion for leave to amend and asked the trial court to provisionally grant her motion to allow punitive damages for her non-intentional tort claims pending the Florida Supreme Court’s disposition of Soffer. The trial court denied her motion.

The Florida Supreme Court ultimately vacated the First District’s Soffer decision and held that Engle class members are not prevented from seeking punitive damages on all claims properly raised in their individual actions. Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1233 (Fla. 2016). The Florida Supreme Court additionally held that the proper remedy would be to reverse and remand for a new trial limited to the issue of punitive damages. Id. Hardin properly raised the claim in her motion for leave to amend, which the trial court denied. She is thus entitled to a new trial consistent with the Florida Supreme Court’s pronouncement in Soffer.

We therefore reverse the trial court’s denial of Hardin’s motion for leave to amend complaint because Hardin properly preserved the issue in her motion, and we remand for a new trial limited to the issue of punitive damages for Hardin’s non-intentional tort claims. We affirm the trial court’s ruling on the issue raised in the cross-appeal.

Reversed in part, affirmed in part, and remanded.


author: PER CURIAM.

text:
    Magdaline FARONE and Marianna Feckanin, Appellants, v. HELLMANN WORLDWIDE LOGISTICS, INC., Appellee.
    No. 3D16-1170
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    Hamilton, Miller & Birthisel, LLP, Michelle Delaney and Ashlee A. Pouncy, for appellants.
    Spector Rubin, PA. and Robert M. Bo-rak, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Magdaline Farone and Marianna Fecka-nin appeal from a Contempt Order. We affirm the order, but reverse the trial court’s imposition of a $15,000 coercive civil sanction for which the court failed to find that the parties had the ability to pay. See Creative Choice Homes, II, LTD. v. Keystone Guard Servs., Inc., 137 So.3d 1144, 1146-47 (Fla. 3d DCA 2014).


author: EMAS, J.

text:
    Carlos A. PACHECO-VELASQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1403
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.

      Andrés A. Quintero, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and LOGUE, JJ.
   EMAS, J.

Appellant Carlos A. Pacheco-Velasquez appeals the trial court’s order denying his motion, pursuant to Florida Rule of Criminal Procedure 3.850, to vacate his plea, sentence and judgment. The gravamen of appellant’s claim is that the negotiated plea between the State and himself, and the resulting judgment, were illegal and void. We find no merit in this argument and affirm.

Appellant and the State negotiated an agreed-upon plea; pursuant to the negotiated terms, appellant entered a guilty plea to the charged offense of robbery with a weapon, a first-degree felony punishable by up to life in prison. See § 812.13(2)(a), Fla. Stat. (2013). The parties agreed to a Youthful Offender disposition, which included a withhold of adjudication, two years of community control followed by four years of reporting probation, with special conditions of 364 days in the county jail and the local boot camp program. The trial court accepted the negotiated plea, withheld adjudication, and imposed a Youthful Offender sentence with the terms and conditions described above.

Appellant alleges that, while he was still on community control and in the process of completing the boot camp program, he was “taken into custody by the former Immigration and Naturalization Service for purposes of removal proceedings” based upon the proceedings and disposition in the instant case.

Thereafter, Appellant filed a motion to vacate the Youthful Offender judgment and sentence, contending that a withhold of adjudication was prohibited by section 775.08435(l)(a), Florida Statutes (2013), and thus the judgment was “illegal” and “void.” Appellant contends that, because the trial court was not authorized to withhold adjudication of guilt in this case, the judgment was void ab initio, and therefore the judgment, and the sentence imposed upon that judgment, must be vacated. Specifically, appellant asserts that section 775.08435(l)(a) required the trial court to adjudicate appellant guilty and that the trial court was without authority to withhold adjudication for the offense of robbery with a weapon. That subsection provides, in pertinent part, that “the court may not withhold adjudication of guilt upon the defendant for... [a]ny capital, life, or first degree felony offense.” Id.

Read in a vacuum, it would appear that the trial court did not have the authority to withhold adjudication for the offense of robbery with a weapon, a first-degree felony punishable by life. However, the mandatory adjudication statute, which was adopted by the Florida Legislature in 2004, cannot be read in a vacuum; it must be read together with the Florida Youthful Offender Act, adopted in 1’978. The Legislature created Chapter 958 to provide the trial court with adult sentencing alternatives for certain offenders under age twenty-one who meet the eligibility criteria for sentencing as a youthful offender.

Section 958.04(2)(a), Florida Statutes (2018), provides the authority to impose the very judgment and sentence imposed by the trial court in the instant case:

(2) In lieu of other criminal penalties authorized by law and notwithstanding any imposition of consecutive sentences, the court shall dispose of the criminal case as follows:
(a) The court may place a youthful offender under supervision on probation or in a community control program, with or without an adjudication of guilt, under such conditions as the court may lawfully impose for a period of not more than 6 years. Such period of supervision may not exceed the maximum sentence for the offense for which the youthful offender was found guilty.

(Emphasis added).

We hold that this provision expressly authorizes a trial court, “in lieu of other criminal penalties authorized by law,” to withhold adjudication of guilt, even if, as in this case, the offense constitutes a first-degree felony, which would under other circumstances render a withhold of adjudication impermissible under section 775.08435(l)(a). The mandatory adjudication provision of section 775.08435(l)(a) is inapplicable to, and does not supersede, a judgment and sentence imposed pursuant to the Youthful Offender Act. See Sloan v. State, 884 So.2d 378 (Fla. 2d DCA 2004) (holding that the mandatory adjudication provision for one found guilty of DUI (§ 316.656(1), Fla. Stat.) is inapplicable where a defendant is sentenced as a youthful offender); State v. Gibron, 478 So.2d 475 (Fla. 2d DCA 1985) (recognizing that the Youthful Offender Act permits the trial court to withhold adjudication for the offense of vehicular manslaughter, even though section 316.656(1) prohibits the trial court from withholding an adjudication of guilt for such offense). See also State v. Oglester, 830 So.2d 124 (Fla. 3d DCA 2002) (holding that mandatory minimum sentence required under 10-20-Life statute (section 775.087(2)) does not supersede Youthful Offender statute and trial court has discretion to impose youthful offender sentence without any mandatory minimum); State v. Richardson, 766 So.2d 1111 (Fla. 3d DCA 2000) (holding trial court had discretion to mitigate drug trafficking sentence from fifteen-year mandatory minimum sentence to a six-year youthful offender sentence with no mandatory minimum); Gallimore v. State, 100 So.3d 1264 (Fla. 4th DCA 2012) (holding minimum mandatory provisions of 10-20-Life statute do not supersede sentencing provisions of Youthful Offender Act); Darrow v. State, 789 So.2d 552 (Fla. 5th DCA 2001) (same); State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001) (same); Holmes v. State, 638 So.2d 986 (Fla. 1st DCA 1994) (same).

Affirmed.

      . The other issues raised by appellant are without merit and require no further discussion.

      . Because we hold that the judgment was validly imposed, we need not address the State's additional arguments: that the failure to comply with the requirements of section 775.08435(l)(b) does not constitute fundamental error when such error benefits the defendant; and that appellant is estopped or otherwise precluded, under principles of contract law, from challenging tire validity or legality of the judgment which was mutually agreed to by the parties and which was knowingly accepted by appellant.

      . See Ch. 2004-60, § 1, Laws of Fla. (effective July 1, 2004).

      . For example, a youthful offender disposition is not available for capital or life offenses. See § 958.04(l)(c) (providing “... a person who has been found guilty of a capital or life felony may not be sentenced as a youthful offender under this act”). For sentencing purposes, robbery with a weapon is classified as a first-degree felony, not a life felony, and therefore such an offense is eligible for youthful offender treatment. Simpkins v. State, 784 So.2d 1203 (Fla. 2d DCA 2001); Hill v. State, 434 So.2d 974 (Fla. 5th DCA 1983).


author: EMAS, J. SHEPHERD, J,,

text:
    Kristy NAIME, Appellant, v. Jacinto T. CORZO, III, Appellee.
    No. 3D14-1169
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.
    Abramowitz & Associates and Jordan B. Abramowitz, for appellant.
    Phillips Lanier, PLLC and Emily Joyce Phillips, for appellee.
    Before SHEPHERD, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Kristy Naime appeals a final order denying her verified petition to relocate to Port St. Lucie with her minor child. We affirm the court’s order insofar as it denies the petition, but reverse and remand for the trial court to enter an amended order deleting the language imposing an impermissible geographical restriction on any future relocation by Mother.

Kristy Naime (“Mother”) and Jacinto Corzo III (“Father”) were married in 2002, Their minor child was born in 2006, In 2009 the Mother and Father separated, a petition for dissolution was filed, and the parties entered into a mediated settlement agreement in November 2010. This agreement was ratified by a final judgment of dissolution of marriage, rendered in January 2011. The mediated settlement agreement and final judgment did not, by its terms, address relocation of the minor child.

In June 2013 Mother filed a verified petition seeking to relocate with the minor child from Miami-Dade County to Port St. Lucie, Florida. Father answered and objected to the proposed relocation. The trial court held a final hearing during which the parties testified and presented the testimony of six other witnesses. Thereafter, the trial court entered an order denying Mother’s petition. On appeal, Mother raises three issues; the first two contend that the trial court abused its discretion in denying the petition based on the evidence presented. Having reviewed the trial court’s order, and the record evidence upon which it was based, we find that the trial court properly considered and applied the requisite and applicable factors set forth in section 61.13001(7), Florida Statutes (2014), and articulated findings of fact that are supported by competent substantial evidence. We find no abuse of discretion in the trial court’s order denying the petition for relocation, and to hold otherwise would require us to substitute our judgment and findings for those of the trial court. See Young v. Hector, 740 So.2d 1153, 1159 (Fla. 3d DCA 1998) (quoting Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st DCA 1974), which observed: “It may well be that were we permitted to hear the case de novo we might enter a different final judgment. However, such is not our prerogative.”)

However, we agree with Mother that the trial court erred in including the following language in its order: “The minor child shall not be permitted to relocate outside of Miami-Dade County, Florida.” Such prospective relief was not pled or sought by Father, nor was it tried by consent. It should not have been included in the order denying relocation. See Scariti v. Sabillon, 16 So.3d 144 (Fla. 4th DCA 2009). Further, such a geographical restriction is contrary to the provisions of the relocation statute. See § 61.13001(l)(e), Fla. Stat. (2011) (defining the term “relocation” as a change of location that is at least 50 miles from the location of the principle residence of a parent at the time of the last order establishing or modifying time-sharing).

We reverse and remand in part for the trial court to enter an amended order deleting the prospective restriction which provides that the minor child shall not be permitted to relocate outside of Miami-Dade County, Florida. The order is in all other respects affirmed.

Affirmed in part, reversed in part and remanded with directions.

FERNANDEZ, J., concurs.

SHEPHERD, J,,

dissenting.

After a careful review of the tidal transcript and supporting evidence introduced at the trial of this case, I conclude the trial court abused its discretion in denying the Former Wife’s Petition to Relocate from Miami-Dade County to Port St. Lucie, Florida. Accordingly, I respectfully dissent from the contrary conclusion reached by the majority. A brief summary of the facts of the case is necessary to explain my decision.

Procedural and Factual Background

Naime and her former husband, Jacinto T. Corzo, III, were married on June 22, 2002 in Miami-Dade County Florida. The marriage produced one child, a son born on August 9, 2006. The final judgment dissolving their marriage, rendered on January 6, 2011, incorporated a mediated settlement agreement which provided for shared parental responsibility and the following time-sharing schedule: The child would be in the mother’s care during the week with the parties alternating weekends (from Fridays after school until Monday morning before school). Midweek, the father would have care of the child after school on Tuesday until Thursday morning on the mother’s weekends, and from Wednesday after school until Thursday morning on his weekends. The agreement also provided for equal time-sharing during holidays and school vacations. It was silent on the issue of relocation. Since the date of dissolution, both parties have remarried.

On June 4, 2013, Naime filed a verified petition for relocation, seeking permission to relocate with the child to Port St. Lucie, near where her new husband had just landed a job as a firefighter four months earlier, and contracted for a new home. Naime alleged the move would improve the family’s quality of life and would be in the child’s best interests. Corzo objected to the petition. His principle objection was that the distance between the mother’s present home and proposed future home, 135 miles, would significantly interfere with his time-sharing. The petition was tried December 18, 2013, and February 6, 2014, at which time the trial court heard testimony from Naime and her new husband, and from Corzo, his new wife, his mother, and his two sisters. On May 2, 2015, the trial court entered a final judgment denying the petition. While it dutifully treated each of the factors in the relocation statute, section 61.13001(7) of the Florida Statutes (2013), a close analysis reveals that the order of the trial court is not supported by competent, substantial evidence. In fact, the final judgment completely ignores the evidence offered by the mother.

Analysis

The focus of any contested relocation case is on the best interests of the child. The parent wishing to relocate has the initial burden to prove by a preponderance of the evidence that relocation is in the best interests of the child. § 61.13001(8). If the initial burden is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that relocation is not in the best interests of the child. Id. Further, under current law, “[a] presumption in favor or against a request to relocate with the child does not arise if a parent or other person seeks to relocate” even if “the move will materially affect the current schedule of contact, access, and time sharing with the non-relocating parent or other person.” § 61.13001(7).

An appellate court reviews a trial court order regarding relocation on an abuse of discretion standard. Muller v. Muller, 964 So.2d 732, 733 (Fla. 3d DCA 2007). In reviewing the order, we are charged with the obligation to determine whether there is substantial, competent evidence to support the trial court’s findings under section 61.13001(7). A relocation decision made upon findings that are not supported by competent, substantial evidence constitutes an abuse of discretion. Fredman v. Fredman, 960 So.2d 52, 60 (Fla. 2d DCA 2007); Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003); Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001). Of course, we do not engage in reweighing the evidence or make value judgments which are best left to the trial judge. Muller, 964 So.2d at 733.

In 2006, recognizing that the issue of relocation and its effect on the custodial arrangements of divorced parents was one of increasing concern in our mobile society, the Florida Legislature revised and extended the then existing factors it had decreed in former section 61.13(2)(d) that “the court must consider” in reaching a relocation decision, and placed them in a new section, 61.13001 of the Florida Statutes, titled “Parental relocation with a child.” Ch. 2006-245, Laws of Fla. Closely paralleling the prior law, except for expressly adding financial betterment to the list of considerations, the new relocation statute, as amended since its adoption in 2006, articulates the factors that now “the court shall evaluate” in determining whether a move will be in the best interest of the child to be the following:

(a)The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

§ 61.13001(7). Although the relocation statute has long required that the court “consider” or “evaluate” each factor in reaching its decision, a relocation decision is not reducible to a mathematical calculation of points. Rather, the factors are guidelines to assure the court considers how the proposed move will affect the child’s overall quality of life, existing relationships, and physical, educational and emotional development. In the end, the question in a relocation case ultimately resolves to a balancing of the child’s quality of life against any damage to the relationship with the non-relocating parent. In the case before us, the trial court reversibly erred through a misapplication of the guidelines to reach an incorrect decision on the central issue presented. Let me explain through a discussion of the factors:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

In analyzing the first factor, the judgment is replete with references to the child’s “particularly close bond” with the father and his relationship with the father’s extended family. For example, the judgment states the father “consistently, if not always, exercised his timesharing with the minor child,” “has been consistently involved in the minor child’s life since birth,” “has always lived near the minor child,” and “the only reason he bought the house where he currently lives with his new wife, was so that he could be closer to his son and his son’s school, [despite the fact that it] is a commute of more than one ... hour to his employment.” The trial court also “found” as a fact that the “father is extremely responsible and has always maintained current with his child support payments.” The father’s witnesses — his mother, new wife and two sisters — echoed the father’s testimony, opining, unsurprisingly from their viewpoint, that the move would be “detrimental to the child.”

However, the judgment, as crafted, pays absolutely no heed to the testimony of the mother and her new husband on this factor, including the mother’s testimony that the father abandoned the family for another woman in early 2009, and that she did not know where he was for at least six months. During this time, the mother cared for the child on a $35,000 annual salary without support from the father, a point admitted by him in his testimony, but disregarded by the trial judge. In fact, Corzo did not start paying child support until he consulted with a lawyer to begin dissolution proceedings, months after he abandoned his family. There is obviously a significant difference between being an “extremely responsible” father who “has always maintained current with his child support payments,” as the final judgment would have it, and being made responsible by pre-litigation advice of counsel.

The truth of the matter is that the child has struggled since the parties separated in 2009. The mother first rented an apartment in Cutler Bay upon finding that Cor-zo had cheated on her. Six months later, she was able to move back into the marital home for a period, and then moved in with her grandparents and uncle in a one-bedroom apartment in order to make ends meet. Thereafter, she moved into a two-bedroom apartment in the Design District and then, of necessity, back into her grandparents one-bedroom home. At the time of trial, she and her son were living in that one-bedroom hrnne along with three other persons. For her trouble, the final judgment faults the mother for creating “instability” in the life of the child and rates it as a factor “weighting] against granting the petition,” while never mentioning anywhere in the final judgment that her former husband was, at the same time, earning $124,000 or more per year as a store manager at a Walgreeris in Miami Beach, and diverting his income throughout this period to the purchase of a four-bedroom home in Cutler Bay for his new wife and a new baby.

The trial court could not even afford Naime the courtesy of discounting her and her new husband’s testimony on the ground that it was not credible or on the basis of some other canard. Instead, the judgment signed by the trial judge paints a portrait of an idyllic family life between the child, the father and his family, while mother and son are ensconced in a hovel to enable the father’s pleasure. This state of affairs, only the happy half of which is recounted in the judgment of the court, “weighs” in the estimation of the trial court “against relocation.” The conclusion defies credulity.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

On this factor, the trial court found that Corzo presented substantial, competent evidence that relocation would negatively impact the child’s educational and emotional development, that changing schools would be disruptive to his educational advancement because of his relationship to his teacher and classmates, and that the relocation would prevent Corzo from participating in the child’s school. This is not supportable. At the time of the relocation hearing, the child attended Assurant Satellite Learning School, which is associated with Naime’s employer in Miami. Her department recently had been downsized from twenty-five to five employees, and her job was itself at risk. Upon Naime’s severance from employment, the child would no longer be able to attend his current school. The child’s change to a new school was almost inevitable at the time, either in Miami or Port St. Lucie.

More significantly, although Corzo claims he bought his present home only five miles from the child’s school to facilitate the father’s involvement in his son’s school activities, the testimony at trial established that he had little involvement in his son’s education. Corzo admitted he does not take his son to school when the child is in his care, and further that his new wife cannot do so because of the baby. Because he needs to be at work by 7:30 a.m., Corzo wakes the child up before 6:00 a.m. on school days and drives him forty-five minutes to the north to Allapattah, where the paternal grandmother lives, so the grandmother can then drive the child forty-five minutes to an hour back south, instead, incidentally, of paying for early morning child care that is available at the school. This means the child has about an hour and a half to a two-hour commute to school on the weekdays he is in his father’s care. In addition, the evidence shows Cor-zo visited the child’s school and spoke to the child’s teacher on only one occasion. On the other hand, the trial court ignored (in fact, inaccurately contradicts) Naime’s testimony regarding the highly rated elementary school three miles from the Port St. Lucie home her son would attend upon relocation, and the flexibility her new husband’s income and lower living costs in the area would afford for her to work part-time in Port St. Lucie and be home for her son in the afternoon in the stead of placing him in after school care as is presently the case.

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

Naime’s proposed substitute arrangement in the relocation was to maintain the father’s every other weekend time-sharing, but give the father the majority of the summer — all but two weeks — with his son. Holiday time-sharing would not be disturbed. The trial court found this proposal “unsatisfactory” because the Father feels his bond with the child will suffer since he will go almost twelve days at a time without seeing his son for alternating weekends, whereas with the current schedule, the Father never goes more than four days at a time without seeing the minor child. The trial judge found it would not be “possible for the Father to maintain the same relationship with the minor if the minor child relocates, especially during the school week.” (Emphasis added.) However, the issue on substitute arrangements is not whether the new arrangement offers the same degree of frequent and continuing contact, but rather whether the proposed new visitation is “adequate.” See Stockburger v. Stockburger, 633 So.2d 1140, 1143 (Fla. 2d DCA 1994) (emphasis added) (concluding that extended visits may serve the parental relationship better than the typical weekly visit or at least be sufficient to sustain a close parental relationship); see also Wilson v. Wilson, 827 So.2d 401 (Fla. 2d DCA 2002) (reversing the order denying relocation because the trial court used an incorrect legal standard). In this case, Naime offered Corzo the majority of the child’s summer, which would have improved and increased the child’s quality time with Corzo and his family members. The paternal aunts stated they primarily enjoy time with the minor child during the summer months, and Corzo stated he is able to take ample vacation time during the summer months. More significantly, under Naime’s proposed post-relocation time-sharing schedule, Corzo’s weekend overnight timesharing would remain intact. As Naime made the offer for the extended summer visitation, there is no question of her compliance with this schedule. Thus, the combination of continued alternative weekend visitation and extended summer visitation provides sufficient contact to maintain a continued close relationship between father and son.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

Because the trial court’s findings as to this factor are the most troubling, I set them forth in their entirety:

A. The Mother testified that she does not have a new job in Port St. Lucie and is willing to quit her current job with the Assurant Group, which she has held for many years. Accordingly, the relocation will not provide any financial benefit to the minor child because the Mother will lose her current income.
B. The minor child’s educational opportunities will change because he will be forced to start a new school, and he will not be attending school on the Mother’s campus of employment as he has done since starting school. The Mother did not produce any evidence during the trial that he would be attending a better school system in Port St. Lucie than the one he is currently attending in Miami.
C. The Mother did not meet her burden of proving by a preponderance of the evidence that the relocation will enhance the general quality of the minor child’s life. The Mother testified that because she is moving into a large home with her new husband, the minor child will have his own room, which is a better living arrangement than where they are currently living with her grandparents. The Mother seems fixated on the quality of the new home, and the dependency on her new husband’s employment. However, the Mother and her new husband failed to provide any evidence at trial that they looked for their own home, in Miami, that would give the minor child his own bedroom. In fact, the Father testified that he pays less for his four bedroom home in Miami than the Mother will be paying for her home in Port St. Lucie. The sole reason for the relocation is that the Mother’s new husband no longer wishes to commute back and forth between Miami and Port St. Lucie where he is employed.
D. The Mother failed to produce any substantial or credible evidence that she would receive better medical treatment for her diabetes in Port St. Lucie as opposed to in Miami. The Mother failed to testify as to the names of any physicians in Miami who had waiting lists for months at a time to treat her for diabetes. The Mother’s testimony was lacking in credibility as to this issue because theré are numerous physicians in Miami, all with different waiting time(s) to see new patients.
E. The Mother’s diabetes is also a concern for the relocation to Port St. Lucie because she will no longer have her own family as a support system. The Mother also grew up in Miami, like the Father, and all of her family, including her own grandparents, live in Miami and are able to assist her if she becomes ill. In fact, the Father’s mother ..., who the Court finds a credible witness, testified that she was very concerned about the Mother living in Port St. Lucie, so far away from her support system, because the Mother had fallen ill in the past and needed help from her as well as her own family members. This factor delineates a pattern not justifying mother’s petition.

As to the mother’s job, Naime testified she will be leaving her employment upon moving to Port St. Lucie, but further stated her new husband, who recently had obtained the firefighter’s job in a nearby town, is financially able to support her and the child on his new salary. At a minimum, the couple’s income will remain the same as it was when both worked in Miami-Dade County, the new husband then holding a lesser job. Concerning the child’s school, Naime’s separation from her employer will result in a change of the child’s school, and, contrary to the trial court order, the child would attend an “A” school in a family-oriented neighborhood in Port St. Lucie where her new home is located. In short, the child would be going from a one-bedroom apartment with four other adults to a four-bedroom house, where he has his own bedroom, a playroom, and an ample backyard in which to play.

Finally, the final judgment, as primarily drafted by counsel and signed by the trial judge, raised the mother’s diabetic condition as reason against allowing relocation, mainly based on a perceived “lack of family support.” However, pursuant to the record before us, the mother does not have a history of a detrimental illness or the like. The trial court relied on the testimony of the paternal grandmother to portray Naime’s diabetes as a major concern. However, the grandmother’s actual testimony was that on one occasion in the past Naime fell ill and was taken to the hospital, and the grandmother “believed” it was because of a diabetic problem. On rebuttal, Naime refuted the paternal grandmother’s testimony, testifying that since 2009 she became ill just twice, and neither time was her illness related to diabetes. Nor, on either of those occasions, was it necessary for the paternal grandmother or any other member of Corzo’s family to provide any assistance to Naime. However, even if Naime suffers a diabetes-related illness, common sense tells us she would be much safer living with her firefighter husband, who is also and EMT, than with her elderly grandparents.

(f) The reasons each parent or other person is seeking or opposing the relocation.

This is the most telling point of all. Although completely ignored by the trial judge and not even acknowledged to have occurred in the final judgment executed by the trial court, the record clearly shows a father who places his own interests ahead of his child. The testimony is so revealing and disturbing that I again will ask the reader’s indulgence to permit a verbatim recitation of an illustrative portion:

Q. Have you ever texted with him?
A. Yes.
Q. I’m going to show you a series of text messages between you and him.
THE WITNESS: Okay. Yeah, I remember these texts.
BY MS. SACHS:
Q. So what were the texts about?
A. This one was about, I just picked up Tyler from school. He had come from his dad’s house the day prior. And we were in the car and we were talking about the house because Tyler was really excited about the house. He has his own room and everything. And out of the blue, he said, Daddy said that I’m never going to see him again, and I questioned him. I said, what do you mean you’re never going to see Daddy again? He goes, he said, Once we move, he says that we’re never going to see him or his family again.
Q. Okay. And what is the first text message you wrote?
A. I said, Did you tell Tyler he wasn’t going to see you or your family anymore since he is moving?
Q. And what was his response?
A. He says, Question mark, question mark, question mark. Tyler is not moving.
Q. And what did you say?
A. I said, Why would you tell him that?
Q. And then he said?
A. He said, Tell him what? And then I said, That he won’t see you or your family if he moved?
Q And then what did he say?
A. He said, What aré you talking about? Tyler is not moving.
Q. And then on the small ones?
A. I go, So why did you tell him that? He said, I didn’t. If you have anything to say, contact my lawyer. And then I said, You obviously did because Tyler told me that you said since I’m moving away with him, he is not going to see you or your family anymore. And then he said, I have nothing to discuss. And then I said — he says, I have nothing to discuss with—

Ignoring this testimony, the final judgment opines that “The only reason for the mother’s relocating is that she has remarried,” “the new husband is sick and tired of doing the commute back and forth between Port St. Lucie and Miami,” and that “the mother and her new husband made no credible efforts to find substitute housing in Miami.” The latter two reasons are legally irrelevant. Whether the mother’s new husband likes or dislikes his commute is of no moment. Similarly, it is not a precondition to prevailing on a petition for relocation for the petitioner to prove that she and her new husband made a bona fide effort to find substitute housing in Miami. Imposition of these two requirements on the petitioner constituted judicial overreach. It is also an overstatement to say that the “only reason the mother’s relocating is that she has remarried.” (Emphasis added.)

It cannot be gainsaid that the mother’s desire to be with her new husband is an animating reason for the filing of the petition. It may even be the primary reason. Another may be that her new husband purchased a home thirty minutes from his job at a price ($186,000) not likely to be matched in Miami-Dade County before she filed her petition in this case. However, the mother’s motivation for desiring to relocate and any forces impelling her to do so are not our concern. She has a constitutional right to live wherever she pleases. The issue before us is whether it is in the best interests of the child to permit him to follow. On this issue, there are many reasons to support the son’s move to Port St. Lucie. Among them are the fact that the relocation would remove the child from a one-bedroom apartment occupied by five persons to a home where the child would have his own room and a backyard in which to play in a family-oriented neighborhood. He also would be enrolled in an “A” graded school. In addition, because the new husband’s increased salary, due to his obtaining a hard-to-get firefighter’s job, is the near equivalent of the combined income he and the mother earned in Miami-Dade County when he worked at a lesser job, the mother would not have to work full time and could be home for her son after school instead of placing him in after-school care, the present circumstance in Miami-Dade County. It seems unimpeachable that the child’s quality of life will be significantly better in Port St. Lu-cie.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation.

The father is a manager of a Walgreen’s store located in Miami Beach. With bonuses, he routinely earns a six-figure income. His most recent annual income was $124,000. The mother’s new husband obtained his firefighter job just four months before the mother filed her petition. He received a substantial salary increase to $60,000 in his new employment, and was able to contract for a new house for his new family in Port St. Lucie at a price not imaginable in Miami-Dade County. The mother professes that she will obtain part-time employment in Port St. Lucie after the move. Her living expenses will be lower there. The relocation is necessary to improve her economic circumstances.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

As set forth above, the father failed to meet his child support obligations for several months after the parties separated and did not even let the mother know of his whereabouts during the first six months after the separation. In contrast, the mother did her best to support herself and the minor child with substantially diminished resources. Unlike the father’s reason for opposition, ignored by the drafters of the final judgment, the mother’s reasons for seeking relocation of the minor child are pure. She has remarried an individual who has a stable job and strong annual income a few counties north of Miami-Dade County. The son’s quality will be better in all respects if he moves with the mother outside of Miami-Dade County. The story of this mother and the journey she has travelled in the last five years since her divorce is the story of many women (and men) in the mobile society in which we live. She, no less than her remarried former husband, should be able to continue on that journey, and not forfeit custody of her son to do so — a condition precedent it is quite apparent from a close reading of the record the former husband would be delighted to exact.

Conclusion

When all is said and done in this case, the best the father has to offer his child is more frequent visitation with his son than will likely be the case if the child moves away to Port St. Lucie with his mother. That is not a thing to be sneezed at. However, if modification or a decrease in the quantity of time-sharing was the sole or ultimate factor in making a relocation determination, relocations would be rare. In fact, our relocation statute specifically prohibits a judge from considering the change in the non-relocating parent’s time-sharing schedule or the decrease in the non-relocating parent’s quantity of time-sharing as the ultimate factor in denying a relocation request. § 61.13001(7) (“A presumption in favor of or against a request to relocate with the child does not arise if a parent or other persons seeks to relocate and the move will materially affect the current schedule of contact, access, and timeshar-ing with the nonrelocating parent or other person.”). Balancing the salutary effects relocation will have on the child’s quality of life in this case, ranging from removal from a one-bedroom apartment with four others to a home in a family oriented neighborhood, matriculation in an “A” graded school, and a mother able to greet him at home after school, against the potential damage to the non-relocating parent and his family from the relatively modest adjustment in time-sharing and visitation schedule necessary to achieve those benefits, this case cries out for a grant of the petition. The trial court’s denial of the mother’s petition in this case was arbitrary, capricious and contrary to law.

I would reverse the order on appeal.

      . Father did not address this issue in his answer brief, and properly conceded in oral argument that this provision should not have been included in the order denying relocation.

      . I agree with that portion of the opinion directing the trial court to delete the language of the order relating to prospective relief.

      . The trial judge received draft judgments from the parties. The 19-page judgment appears to have been drafted by Corzo’s counsel and signed, after the addition by the trial judge of conclusory statements at the end of randomly selected paragraphs conveniently following selectively drafted factual recitations by Corzo’s counsel. See Perlow v. BergPerlow, 875 So.2d 383 (Fla. 2004) (cautioning against verbatim adoption of party’s proposed judgment which creates the appearance the trial court did not independently make factual findings and legal conclusions).

      .The factors, as they existed just prior to the 2006 amendments to the law read as follows:
      1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
      2. The extent to which visitation rights have been allowed and exercised.
      3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
      4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
      5. Whether the cost of transportation is financially affordable by one or both parties.
      6. Whether the move is in the best interests of the child.
      § 61.13(2)(d), Fla. Stat. (2005).

      . Factors (d), (i) and (j) will not be discussed. At the time of the hearing, the child was too young to be able to express a preference of residential desirability (Factor (d)), “career and other opportunities for the objecting parent or other person” (Factor (i)) were irrelevant to the analysis, and there was no "history of substance abuse or domestic violence” in the family (Factor (j)).

      . In comparison, father’s counsel conceded during trial that "[Miami’s] not the friendliest place in the universe,’’


author: Klingensmith, J.

text:
    Gary Bernard TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1497
    District Court of Appeal of Florida, Fourth District.
    December 21, 2016
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Gary Tillman appeals a court order granting the State’s motion for involuntary admission, alleging that the trial court violated his due process rights by involuntarily committing him without requiring a formal examination by a committee, and by failing to conduct an evidentiary hearing. We agree, and reverse.

Tillman was initially charged with grand theft, possession of drug paraphernalia, and driving without a valid driver’s license. After he was adjudged incompetent to proceed due to an intellectual disability, his case was transferred to felony mental health court where he was placed on conditional release and ordered to reside in a group home.

The trial court later found that Tillman was not restorable to competency, prompting Tillman to request dismissal of his charges pursuant to section 916.303, Florida Statutes (2014), for incompetency due to intellectual disability. He asserted that section 916.303 required the dismissal of the charges because there was no reasonable belief that he could be restored to competency within a specific time frame.

The State petitioned to have Tillman involuntarily committed to the Agency for Persons with Disabilities (“APD”), and placed in a group home with 24-hour supervision pursuant to section 916.303(2) and section 916.3025, Florida Statutes (2014). The State also requested the appointment of an examining committee to determine whether Tillman met the criteria for involuntary admission to residential services pursuant to section 393.11, Florida Statutes (2014), and section 916.303(2).

The court entered an order appointing an examining committee, and directed that committee to examine Tillman and prepare a written report explicitly documenting, among a number of factors, the extent to which he met the criteria for involuntary admission to residential services.

After Tillman’s refusal to cooperate delayed the completion of the evaluation, the attorney representing APD advised the court that it could commit Tillman without an examination by an examining committee, arguing that section 916.303 did not require an examining committee be appointed, and noting a physician appointed by APD, Dr. Zeigler, had already recommended continued commitment. Counsel for Tillman countered that such a commitment would amount to a denial of his due process rights since no evaluation was ever conducted by an examining committee, and no evidentiary hearing was conducted on the issue of his continued commitment. While the State conceded that the examining committee had not yet evaluated Tillman, it agreed to continue the matter to allow Tillman’s counsel to cross-examine Dr. Zeigler at an evidentiary hearing. Instead, the court issued a capias for Tillman’s arrest and a written order of commitment. That order relied upon Dr. Zeigler’s report, finding that Tillman met the criteria for involuntary admission to residential services, that there was a substantial likelihood that he will injure another person, and that all available less restrictive alternatives were inappropriate. The order went on to state that based upon Dr. Zeigler’s report and recommendation, the least restrictive and most appropriate residential placement for Tillman was a secure residential setting with 24-hour supervision. This appeal followed.

Section 393,11(1) provides, in pertinent part:

If a person has an intellectual disability and requires involuntary admission to residential services provided by the agency, the circuit court of the county in which the person resides has jurisdiction to conduct a hearing and enter an order involuntarily admitting the person in order for the person to receive the care, treatment, habilitation, and rehabilitation that the person needs.

§ 393.11(1), Fla. Stat. (2014). Involuntary admission to residential services can be initiated by either a petition filed by a petitioning commission under section 393.11(2), or by a motion ñled by APD, the state attorney, or by counsel for the person needing services. § 916.303(2), Fla. Stat. Section 916.303(2) states:

(2) If the charges are dismissed and if the defendant is considered to lack sufficient capacity to give express and informed consent to a voluntary application for services and lacks the basic survival and self-care skills to provide for his or her well-being or is likely to physically injure himself or herself or others if allowed to remain at liberty, the agency, the state attorney, or the defendant’s attorney shall apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11.

§ 916.303(2), Fla. Stat. (2014). Section 916.303(3) provides, in pertinent part:

(3) If the defendant is considered to need involuntary residential services for reasons described in subsection (2) and, further, there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape, and all available less restrictive alternatives ... have been judged to be inappropriate, the agency, the state attorney, or the defendant’s counsel may request the committing court to continue the defendant’s placement in a secure facility pursuant to this part.

§ 916.303(3), Fla. Stat. (2014).

Upon receiving such a petition or motion, the circuit court is required by statute to appoint an examining committee comprised of “at least three disinterested experts who have demonstrated to the court an expertise in the diagnosis, evaluation, and treatment of persons who have intellectual disabilities.” § 393.11(5)(b), Fla. Stat. After examining the person being considered for involuntary admission, the committee must file a written report with the court “explicitly document[ing] the extent that the person meets the criteria for involuntary admission.” § 393.11(5)(e), Fla. Stat. Once the committee’s written report is filed, a hearing for involuntary admission must be conducted pursuant to section 393.11(7), which specifies:

(a) The hearing for involuntary admission shall be conducted, and the order shall be entered, in the county in which the petition is filed. The hearing shall be conducted in a physical setting not likely to be injurious to the person’s condition.
(b) A hearing on the petition must be held as soon as practicable after the petition is filed, but reasonable delay for the purpose of investigation, discovery, or procuring counsel or witnesses shall be granted.
(c) The court may appoint a general or special magistrate to preside. Except as otherwise specified, the magistrate’s proceeding shall be governed by the Florida Rules of Civil Procedure.
(d) The person who has the intellectual disability must be physically present throughout the entire proceeding. If the person’s attorney believes that the person’s presence at the hearing is not in his or her best interest, the person’s presence may be waived once the court has seen the person and the hearing has commenced.
(e) The person has the right to present evidence and to cross-examine all witnesses and other evidence alleging the appropriateness of the person’s admission to residential care. Other relevant and material evidence regarding the appropriateness of the person’s admission to residential services; the most appropriate, least restrictive residential placement; and the appropriate care, treatment, and habilitation of the person, including written or oral reports, may be introduced at the hearing by any interested person.
(f) The petitioning commission may be represented by counsel at the hearing. The petitioning commission shall have the right to call witnesses, present evidence, cross-examine witnesses, and present argument on behalf of the petitioning commission.
(g) All evidence shall be presented according to chapter 90. The burden of proof shall be on the party alleging the appropriateness of the person’s admission to residential services. The burden of proof shall be by clear and convincing evidence.
(h) All stages of each proceeding shall be stenographically reported.

§ 393.11(7), Fla. Stat. (2014).

An order of involuntary admission to residential services may be entered provided the circuit court finds, based upon the evidence presented at the hearing, that:

1. The person is intellectually disabled or autistic;
2. Placement in a residential setting is the least restrictive and most appropriate alternative to meet the person’s needs; and
3. Because of the person’s degree of intellectual disability or autism, the person:
a. Lacks sufficient capacity to give express and informed consent to a voluntary application for services pursuant to s. 393.065 and lacks basic survival and self-care skills to such a degree that •close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being; or
b. Is likely to physically injure others if allowed to remain at liberty.

§ 393.11(8)(b), Fla. Stat. (2014).

Based on our review of the record, the examining committee did not evaluate Tillman or submit a report as required by Florida statutes. Further, the trial court did not conduct an evidentiary hearing pursuant to section 393.11(7) before issuing its order of commitment. For these reasons, we reverse the trial court’s order of commitment and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Taylor and Forst, JJ., concur.


text:
    Andrea ABRIL, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D15-2160
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016
    Legal Services of Greater Miami, Inc., and Kevin E. Probst, for appellant.
    Katie E. Sabo (Tallahassee), for appellee Reemployment Assistance Appeals Commission.

      Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Ms. Abril appeals the denial of reemployment assistance benefits. Because the transcript comports with the referee’s findings of fact and legal conclusions, Abril cannot show reversible error. All of her arguments on appeal ask this court to reweight the evidence and the referee’s credibility determinations. An appellate court, however, is not entitled to reweigh such evidence. See, e.g., Contreras v. Reemployment Assistance Appeals Com’n, 178 So.3d 953 (Fla. 4th DCA 2015) (noting that the appeals commission cannot reweigh the evidence and substitute its findings for those of the referee where the findings are supported by competent substantial evidence); Cesar v. Reemployment Assistance Appeals Com’n, 121 So.3d 1181 (Fla. 1st DCA 2013) (reversing because the Commission improperly rejected the appeals referee’s findings where they were supported by competent substantial evidence).

Affirmed.


text:
    TRUMP ENDEAVOR 12, LLC, Appellant, v. FLORIDA PRITIKIN CENTER, LLC, Appellee.
    No. 3D15-752
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016
    Russomanno & Borrello and Herman J. Russomanno, Robert J. Borrello and Herman J. Russomanno III; Bruce S. Rogow, P.A. and Bruce S. Rogow and Tara A. Campion (Ft. Lauderdale), for appellant.
    Kluger, Kaplan, Silverman, Katzen & Levine, P.L. and Alan J. Kluger, Philippe Lieberman and Richard I. Segal, for appel-lee.
    Before SHEPHERD, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Trump Endeavor 12, LLC appeals a Final Judgment for declaratory relief in favor of Florida Pritikin Center, LLC. Trump contends that the Final Judgment and the incorporated Amended Joint Verdict Form were void of any findings of facts and/or conclusions of law. We agree and thus reverse.

In March 2009, Florida Pritikin Center, LLC and the former owners of the Doral Resort and Spa entered into a Lease Agreement granting Pritikin the exclusive right to use and occupy a portion of the Doral Resort in order to operate Pritikin Longevity Center & Spa, and for shared, non-exclusive use of other areas of the Doral Resort. Pritikin and Doral Resort and Spa also entered into a Group Room Agreement granting Pritikin exclusive rights to use up to 100 standard guest rooms and up to 10 suites at a contractually fixed rate.

Trump then purchased the Doral Resort out of bankruptcy, renamed it the Trump National Doral Miami and expressly assumed the Pritikin Lease and Group Room Agreement. In May 2014, Pritikin filed a lawsuit against Trump seeking declaratory relief to establish whether its lease extension was properly exercised per the terms of the Lease and Group Room Agreement (Count I); and to resolve a dispute regarding room rates (Count II). The Complaint was later amended to seek declaratory relief regarding Trump Endeavor’s June 18, 2014 Notice of Termination of the lease (Count III).

The trial court eventually entered an order granting Pritikin’s Motion for Partial Summary Judgment on Counts I and II. The court found that Pritikin had “validly exercised it’s first of three extension options in accordance with Section 3.3a(i)(iii) of the Lease,” and determined the daily room rates were adjusted correctly pursuant to paragraph 3d of the Group Room Agreement.

After a four-day bench trial in February 2015, the trial court entered a declaratory Final Judgment for Pritikin, incorporating the March 25, 2015 Amended Joint Verdict Form and Summary Judgment Order. The Final Judgment stated no findings of fact or conclusions of law.

Reversal is warranted because the trial court failed to provide sufficient findings of fact and conclusions of law, thus precluding meaningful review by this Court. Findings of fact and conclusions of law are required to review declaratory judgments. Featured Properties, LLC v. BLKY, LLC, 65 So.3d 135 (Fla. 1st DCA 2011) (“ ‘[w]here .,. orders do not contain sufficient findings of fact, ... appellate courts typically deem them incapable of meaningful review and they remand with directions to the issuing courts to make the necessary findings.’ ”) (quoting In re Doe, 932 So.2d 278, 283 (Fla. 2d DCA 2005)); Weatherford v. City of Hialeah, 537 So.2d 680, 682 (Fla. 3d DCA 1989); Breuil v. Hobbs, 166 So.2d 825 (Fla. 3d DCA 1964).

Accordingly, we reverse and remand the Final Judgment to the trial court with instructions to enter the necessary orders making sufficient findings of fact and conclusions of law.

Reversed and remanded.


text:
    Lee SLOPPY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1701
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2016.
    Lee Sloppy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Lee Sloppy appeals the summary denial of his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). He raises two claims, arguing in both that his written sentences do not reflect the trial court’s oral pronouncements at sentencing. The posteonviction court summarily denied his motion, but in doing so it only addressed the second of the two claims, apparently overlooking the first. Although we affirm the denial of the second claim without discussion, we reverse the denial of the motion and remand for the court to consider Mr. Sloppy’s first claim, which the record indicates is facially sufficient and for which the State has conceded error.

On June 27, 2014, Mr. Sloppy pleaded guilty to one count of burglary and one count of failure to appear. The written sentences reflect that the trial court sentenced Mr. Sloppy to fifteen years’ imprisonment as a prison releasee reoffender (PRR) for both charges, -with the sentences to run concurrently. However, the trial court’s oral pronouncement was that “[fit’s day-to-day on the burglary, [and] a concurrent five on the FTA.” Later in the hearing, the trial court again addressed the sentence for the failure to appear and stated, “[adjudicate, five years Department of Corrections, concurrent” to the fifteen years for the burglary. The trial court also noted that Mr. Sloppy was not sentenced as a PRR on the failure to appear, saying, “I don’t need to habitualize him on [the failure to appear] because he’s getting the fifteen PRR [on the burglary].”

Additionally, a fifteen-year sentence for failure to appear exceeds the statutory maximum. Failure to appear is a third-degree felony, § 843.15(l)(a), Fla. Stat. (2014), punishable by up to five years’ imprisonment. § 775.082(3)(e), Fla. Stat. (2014). Failure to appear is also not a felony for which the State may seek a PRR sentence. § 775.082(9)(a)(l). Therefore, Mr. Sloppy has presented a facially sufficient claim that his sentence is illegal. See Plott v. State, 148 So.3d 90, 94 (Fla. 2014) (“[A] sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’ ” (quoting State v. Mancino, 714 So.2d 429, 433 (Fla. 1998))); King v. State, 86 So.3d 1247, 1248 (Fla. 2d DCA 2012) (“The discrepancy between the oral pronouncement and written sentence is a valid basis for an illegal sentence claim under rule 3.800(a).”); Blocker v. State, 968 So.2d 686, 691 (Fla. 2d DCA 2007) (“It has long been the law that the oral pronouncement of sentence controls over a written sentence.”).

Because the postconviction court did not consider this claim when it denied Mr. Sloppy’s motion, we are compelled to reverse and remand for the postconviction court to address it. See Ferguson v. State, 778 So.2d 387, 388 (Fla. 2d DCA 2001) (reversing and remanding for reconsideration when the postconviction court failed to address a facially sufficient claim that the written sentence did not comport with the oral pronouncement).

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA, LaROSE, and SALARIO, JJ., Concur.

      . Mr. Sloppy addressed the first issue in his motion’s "Standard of this Review” section, which in essence reads more like a summary of the argument. However, Mr. Sloppy clearly raised the issue, labeling it as "Claim 1," and adequately expressed what he was arguing. See Tillman v. State, 287 So.2d 693, 694 (Fla. 2d DCA 1973) (noting that pro se pleadings should be liberally construed).


author: Taylor, J.

text:
    Scott NEWMAN, Appellant, v. Leonardo GUERRA, individually, Yolanda Giha, individually, and Sony Construction, Inc., Appellees.
    Nos. 4D15-1515 & 4D15-2588
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017

      Ronald M. Gaché and Kimberly N. Hopkins of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellant.
    Kamlesh B. Oza of Oza Law, P.A., Del-ray Beach, and Lynne S. K. Ventry of Lynne S. K. Ventry, P.A., Delray Beach, for appellees.
   Taylor, J.

The homeowner, Scott Newman, appeals an amended final judgment in favor of a general contractor. He argues that the trial court reversibly erred in denying his motion for attorney’s fees and costs incurred in obtaining the discharge of a fraudulent lien placed on his property by the contractor. The trial court denied the homeowner’s motion for fees and costs after determining that the contractor was the prevailing party on the significant issues in the litigation.

The contractor, Sony Construction, cross-appeals the trial court’s order discharging its lien as fraudulent and order denying its request for attorney’s fees. We have consolidated the homeowner’s appeal of the final judgment on costs with this appeal. We affirm on all issues in the main and cross-appeal.

This case arises out of a dispute between the homeowner and general contractor. The contractor was hired to construct an addition and outdoor kitchen to a home that the homeowner purchased from the contractor’s principal, Leonardo Guerra, and Mr. Guerra’s girlfriend. The parties entered into the contract for construction of the addition and outdoor kitchen in March 2008.

The contractor worked on the addition for several months, but stopped work on December 18, 2008, due to the homeowner’s failure to pay. On December 29, 2008, the contractor recorded a Claim of Lien against the'property in the amount of $133,645,60. After retaining counsel, the contractor recorded a Partial Release of Lien, reducing the amount of its Claim of Lien to $99,444.18.

The contractor filed suit against the homeowner, asserting claims for foreclosure of the construction lien, breach of contract, and quantum meruit. The contractor sought to recover a judgment for the unpaid amount of $99,444.18.

The homeowner answered the complaint and raised counterclaims against the contractor for fraudulent lien and breach of contract. The parties agreed to a bifurcated proceeding whereby the trial court would first determine whether the contractor’s lien was fraudulent before holding a trial on the remaining issues.

Following an evidentiary hearing, the trial court entered an order striking the lien as fraudulent. The court found that many of the charges used to support the lien were not lienable. Overall, the court concluded that the contractor’s claim of lien “was compiled with such willful and gross negligence that it amounted to a willful exaggeration and should be deemed a fraudulent lien under Fla. Stat. § 713.31.” The court discharged the lien, but reserved jurisdiction on the issue of the award of attorney’s fees and costs, noting that other issues remained to be determined by the court.

Several months after the court discharged the contractor’s lien as fraudulent, the court held a bench trial on the contractor’s claims for breach of contract and quantum meruit. After trial, the court entered a net final judgment for the contractor in the amount of $58,985.58. The court later issued an amended final judgment in the amount of $81,641.08, which included pre-judgment interest.

Both sides sought an award of attorney’s fees and costs. The homeowner sought an award of attorney’s fees and costs pursuant to section 713.31, Florida Statutes (2008), arguing that he was the prevailing party in the fraudulent lien action. However, the trial court denied the homeowner’s motion, finding that the contractor prevailed on the significant issues in the case.

The contractor also moved for attorney’s fees and costs. The contractor’s request for attorney’s fees was based upon a proposal for settlement. The trial court denied the contractor’s request for attorney’s fees, ruling that the proposal for settlement was untimely and ambiguous. However, the trial court awarded the contractor $9,985.98 in costs.

The Homeovmer’s Appeal

On appeal, the homeowner argues that the trial court reversibly erred in denying his motion for attorney’s fees and costs incurred from obtaining the discharge of the contractor’s fraudulent lien. He contends that where a party seeks attorney’s fees and costs as damages pursuant to section 713.31 (2)(c), the “significant issues” test does not apply. He argues that, because the trial court discharged the contractor’s lien as fraudulent, he was entitled to an award of his attorney’s fees and costs as damages under section 713.31(2)(c), regardless of the fact that the contractor prevailed on the remaining counts for breach of contract and quantum meruit.

The contractor counters that the trial court properly denied the homeowner’s request for attorney’s fees under section 713.31(2)(c), because the trial court ruled that the contractor was the prevailing party under the “significant issues” test. The contractor argues that section 713.31 (2)(c) allows an owner to recover attorney’s fees only if the lienor who filed the fraudulent lien is not the prevailing party. Noting that the Florida Supreme Court has applied the “significant issues” test to statutory construction lien matters under section 713.29, the contractor contends that the “significant issues” test also applies to section 713.31.

“A party’s entitlement to an award of attorneys’ fees under a statute or a procedural rule is a legal question subject to de novo review.” Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992). Although Moritz was a common law breach of contract action, the Florida Supreme Court later held that the “significant issues” test of Moritz applies in determining which party, if any, is the prevailing party entitled to an award of fees in construction lien actions brought under section 713.29, Florida Statutes. Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1196 (Fla. 2009); Prosperi v. Code, Inc., 626 So.2d 1360, 1363 (Fla. 1993).

The Florida Supreme Court recognized the equitable nature of attorney’s fees awards under section 713.29 and explained that “under most circumstances it would be unfair to require a contractor who recovers the bulk of its claim to pay attorney’s fees for failure to meet the technical requirements of the mechanic’s lien law.” Prosperi, 626 So.2d at 1363. In light of Moritz’s requirement of a “more flexible” approach, the Florida Supreme Court explained that “the trial judge must have the discretion to consider the equities and determine which party has in fact prevailed on the significant issues.” Id. “[I]t was obviously not the intent of the legislature to award attorneys’ fees to a defendant in a mechanics’ lien foreclosure merely because he successfully defends against the impression of a lien yet is nevertheless found liable in damages, in the same case, for labor and/or materials furnished for his benefit.” Id. at 1362 (quoting Emery v. Int’l Glass & Mfg., Inc., 249 So.2d 496, 500 (Fla. 2d DCA 1971)).

Under the “significant issues” test, the determination of the prevailing party should be made at the conclusion of the case, when all pending counts are resolved. GMPF Framing, LLC v. Villages at Lake Lily Assocs., LLC, 100 So.3d 243, 245 (Fla. 5th DCA 2012). However, a trial court has the discretion to make a determination that neither party prevailed on the significant issues in the litigation so as to be entitled to an award of attorney’s fees under the construction lien law. Trytek, 3 So.3d at 1203.

The case before us presents the question of whether the “significant issues” test of Moritz and Prospeñ applies to section 713.31.

Section 713.31(2)(c), Florida Statutes (2008), states:

An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien. The prevailing party in an action under this paragraph may recover reasonable attorney's fees and costs. If the lienor who files a fraudulent lien is not the prevailing party, the lienor shall be liable to the owner or the defrauded party who prevails in an action under this subsection in damages, which shall include court costs, clerk’s fees, a reasonable attorney’s fee and costs for services in securing the discharge of the lien, ... and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.

§ 713.31(2)(c), Fla. Stat. (2008) (emphasis added).

Notably, section 713.31(2)(c) was amended in 2007 to include a “prevailing party” standard in the fraudulent lien context. Under the previous version of section 713.31(2)(c), there was no reference to a “prevailing party,” and a lienor who filed a fraudulent lien was automatically hable for damages, including attorney’s fees. The pre-2007 version of section 713.31(2)(c) states in relevant part: “The henor who files a fraudulent hen shall be hable to the owner or the defrauded party in damages, which shall include court costs, clerk’s fees, a reasonable attorney’s fee .... ” § 713.31(2)(c), Fla. Stat. (2006).

Here, the trial court properly applied the “significant issues” test of Moñtz and Prospeñ in denying the homeowner’s claim for attorney’s fees under the current version of section 713.31. First, under the plain language of section 713.31(2)(c), an “owner against whose interest in real property a fraudulent hen is filed” may recover attorney’s fees only “[i]f the henor who files a fraudulent hen is not the prevailing party.” Thus, the plain language of the statute contemplates that a henor who files a fraudulent hen could still be the prevailing party.

Second, the 2007 amendment to section 713.31(2)(c) indicates that the legislature intended to eliminate a lienor’s automatic hability for attorney’s fees where the henor files a fraudulent hen. “It is a well-established presumption that the legislature intends to change the law when it amends a statute.” Hill v. State, 143 So.3d 981, 986 (Fla. 4th DCA 2014). Moreover, the legislature is presumed to know the existing law, including judicial decisions, when it enacts or amends a statute. Cres cent Miami Ctr., LLC v. Fla. Dep’t of Revenue, 903 So.2d 913, 918 (Fla. 2005).

The homeowner’s argument relies on case law applying the pre-2007 version of section 713.31(2)(c). See Sharrard v. Ligon, 892 So.2d 1092, 1099-1100 (Fla. 2d DCA 2004) (under the pre-2007 version of section 713.31, the contractor’s damages for breach of contract were subject to a setoff for any amounts that may be determined to be due to the owners on their claim for damages for the filing of a fraudulent lien); Delta Painting v. Baumann, 710 So.2d 663, 664 (Fla. 3d DCA 1998) (under the pre-2007 version of section 713.31, homeowners who prevailed on a fraudulent lien counterclaim against the contractor were entitled to attorney’s fees, even though the contractor prevailed on its breach of contract claim).

The 2007 amendment, however, must have been intended to change the law. Here, the purpose of the 2007 amendment was to replace a rigid rule of automatic liability for attorney’s fees with Prosperi’s flexible standard of awarding attorney’s fees to the prevailing party on the significant issues.

Third, the equitable nature of section 713.31 counsels in favor of applying the flexible “significant issues” test of Prosperi in deciding entitlement to “prevailing party” attorney’s fees under section 713.31.

In sum, the trial court properly applied the “significant issues” test of Moritz and Prosperi in denying the homeowner’s claim for attorney’s fees under section 713.31. Even if a party prevails on a fraudulent lien claim, the party must be the prevailing party in the case as a whole to be entitled to attorney’s fees under section 713.31. See Wells v. Halmac Dev., Inc., 189 So.3d 1015, 1016-22 (Fla. 3d DCA 2016). Because the trial court did not abuse its discretion in determining that the homeowner was not the prevailing party on the significant issues in this case, we affirm the trial court’s order denying the homeowner’s motion for attorney’s fees and costs. We also affirm the award of costs to the contractor in the consolidated case (4D15-2588), because the contractor was adjudicated to be the prevailing party in the litigation.

The Contractor’s Cross-Appeal

On cross-appeal, the contractor challenges the trial court’s determination that its lien was fraudulent. We affirm, because competent substantial evidence supports the trial court’s finding of a fraudulent lien. See Delta Painting, 710 So.2d at 664 (holding that a trial court’s finding of a fraudulent lien must be supported by competent evidence). “It is within the trial court’s discretion to determine the intent and good or bad faith of the lienor, and thus, it would be inappropriate for this court to substitute its judgment for that of the lower court.” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1135 (Fla. 4th DCA 2009).

A fraudulent lien is one in which

the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration ....

§ 713.31(2)(a), Fla. Stat. (2008).

Here, we find no abuse of discretion in the trial court’s determination that the contractor’s lien was fraudulent, where the court found that the lien was willfully exaggerated and included items not properly lienable “by any stretch of the imagination.” See Levin v. Palm Coast Builders & Constr., 840 So.2d 316, 317 (Fla. 4th DCA 2003) (upholding trial court’s finding that lien was fraudulent because it included items that were not lienable “by any stretch of the imagination,” including pool upkeep charges, lawn maintenance charges, homeowner’s association fees, and utility charges).

We further find that the trial court properly denied the contractor’s motion for attorney’s fees based on its invalid proposal for settlement. We need not decide whether the proposal was timely, as we find that it was ambiguous. See Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479, 480-81 (Fla. 4th DCA 2006).

Affirmed on appeal and cross-appeal.

Ciklin, C.J., and Lee, Robert W., Associate Judge, concur.