author: Levine, J.

text:
    Julian BIVINS, as the ancillary personal representative of the Estate of Oliver Wilson Bivins, Appellant, v. GUARDIANSHIP OF Oliver BIVINS; Appellee.
    No. 4D16-234
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]
    R.G. (Mack) McCormick Jr. and J. Ronald Denman of The Bleakley Bavol Law Firm, Tampa, for appellant.
    Ashley Crispin Ackal, Brian M. O’Con-nell, and Joielle A. Foglietta of Ciklin Lu-bitz & O’Connell, West Palm Beach, for appellee.
   Levine, J.

The appellant raises two issues for our review. The first issue is whether a trial court must enforce a settlement agreement concerning the assets of an incompetent ward where the guardian retained some assets to pay guardianship expenses, contrary to the express language of the settlement agreement. The second issue is whether, upon the death of a ward, a guardian may retain part of a deceased ward’s assets to pay for present and future guardianship expenses. .As to the first issue, we conclude that Florida law favors the enforcement of settlement agreements, and the court erred in failing to enforce this agreement in accordance with its terms. As to the second issue, however, we hold that Florida law permits a guardian to retain some of a ward’s assets, even after the death of the ward, to pay for the guardian’s expenses.

Oliver Bivins, the ward, was declared incompetent and had a professional guardian appointed on his behalf. What followed was years-long litigation between the ward’s guardian and the ward’s child, Julian Bivins. The ward died in 2015, and the guardian and Julian entered into a Global Settlement Agreement.

The Global Settlement Agreement dealt with real property located in New York City. Pursuant to the Global Settlement Agreement, Julian could purchase the property for $5,000,000 under several stringent time constraints. Should Julian purchase the property, the Global Settlement Agreement specifically directed how the proceeds of the purchase should be divided. As part of the agreement, the law firm of Ciklin Lubitz & O’Connell, acting as escrow agent, would hold in trust $150,000 for monies due to the law firm of Levine & Susaneck and $125,000 for guardianship administration expenses. Furthermore, the Global Settlement Agreement stated that part of the proceeds were to pay the attorney’s fees and costs of the law firm of Beys Stein Mobar-gha & Berland, LLP pursuant to a court order entered the previous year. The Global Settlement Agreement did not, however, specifically permit Beys Stein to hold any of the proceeds in escrow. The Global Settlement Agreement directed that the remainder of the proceeds be transferred to a trust located in Texas. Julian complied with the Global Settlement Agreement and purchased the' New York property.

Upon the ward’s death, Julian became the temporary administrator of the ward’s estate. Julian requested that the guardian file a final report. The guardian’s final report indicated that, pursuant to the Global Settlement, Ciklin Lubitz & O’Con-nell held in trust $150,000 for fees due to Levine & Susaneck and $125,000 -for guardianship expenses. The law firm also held $400,994.35 for • the “[g]uardianship matter.” Additionally, the guardian held $155,383.51 of the ward’s assets in a Wells Fargo checking account. The $155,383.51 was not comprised of proceeds from the sale of the New York property. Subsequently, during a hearing on attorney’s fees, Julian learned that Keith Stein, with the firm of Beys Stein Mobargha & Ber-land, LLP, who had served as a closing agent for the sale of the New York property, had also held back $72,433.94 of the sale proceeds.

Julian moved for release of all the ward’s monies being “held back” and within control of the guardian and his attorneys. Julian argued that the Global Settle-merit Agreement mandated the transfer of both the $400,994.35 and the $72,433.94 as both sums were proceeds from the New York property sale. Julian also argued the other monies in possession of the guardian and his attorney should be transferred to the deceased ward’s estate. The guardian argued that because Julian had filed various lawsuits against him and his attorneys after the ward had died, the monies were necessary to pay for the guardian’s expenses and fees.

The trial court ordered the guardian to release $400,994.35, However, the court permitted the- guardian to retain the $72,433.94 held in escrow by Stein, the $185,000 held in escrow by Ciklin Lubitz & O’Connell, and the $155,383.51 held in the guardian’s Wells Fargo account. Julian appealed.

As. to the first issue, Julian argues the trial court erred because the Global Settlement Agreement did not permit Stein to retain $72,433.94 from the New York property sale proceeds. As this issue concerns the legal question of whether, the trial court could act contrary to the Global Settlement, we review this issue de novo. See Sumner Grp, Inc. v. M.C. Distributec, Inc., 949 So.2d 1205, 1206 (Fla. 4th DCA 2007).

“In Florida, settlement agreements are ‘highly favored’ ‘and will be enforced when it is possible to do so.’” U.S. Bank Nat’l Ass’n v. Benoit, 190 So.3d 235, 237 (Fla. 4th DCA 2016) (quoting Treasure Coast, Inc. v. Ludlum Constr. Co., 760 So.2d 232, 234 (Fla. 4th DCA 2000)). “Where the contractual language is clear, courts may not indulge in construction or modification and the express terms of, the settlement agreement control.” Sec. Ins. Co. of Hartford v. Puig, 728 So.2d 292, 294 (Fla. 1999).

In the present case, the Global Settlement Agreement is ■ clear. Although the Global Settlement Agreement states proceeds from the sale of the New York property were to pay the law firm of Beys Stein Mobargha feBerland, LLP’s prior legal fees, nothing in the Global Settlement Agreement provides that Stein could hold any of the-proceeds in escrow. We therefore reverse for the trial court to énforcé the Global Settlement. "

As .to the second issue, Julian contends that, because the ward has died, the ward’s estate should take control of the ward’s property pursuant to section 733.607(1), Florida Statutes (2016). Accordingly, Juh ian seeks the release of the $185,000 held in escrow by Ciklin Lubitz & O’Connell as well as the $155,383.51 held in the guardian’s Wells Fargo account.

. A guardian “is entitled to a reasonable fee- for services rendered and reimbursement for costs incurred on behalf of the ward.” § 744.108(1), Fla, . Stat. (2016). When a guardian seeks discharge, “[t]hé guardian applying for discharge may retain from, the funds in his or her possession a sufficient amount to. pay the final costs of administration, including guardian and attorney’s fees regardless of the death of , the ward, accruing between the filing of his. or her final returns and the order of discharge.”- § 744.527(2), Fla. Stat. (2016).

In Romano v. Olshen, 153 So.3d 912, 920-21 (Fla. 4th DCA 2014), this court held that the death of a ward does not terminate a guardian’s access to the ward’s property. We reasoned that “[t]he guardian of property is not discharged upon the ward’s death, but must continue the administration until a petition for discharge is granted and his or her final accounting is approved.” Id. at 920. Thus, “Chapter 744 contemplates that a guardian will perform services and be able to access the guardianship estate even after the death of the ward.” Id.

Julian argues that Chapter 744 and Romano permit only the retention of monies to pay for past and current guardianship expenses, not future expenses. However, section 744.527(2), Florida Statutes, provides that the guardianship may retain funds to pay for fees “accruing between the filing of his or her final returns and the order of discharge.” Thus, the statute “contemplates that a guardian mil perform services ... after the death of the ward.” Romano, 153 So.3d at 920 (emphasis added). Consequently, a guardian may retain funds to pay for future fees and costs that accrue during the process of winding up the guardianship estate. See id.

We also find Batzle v. Baraso, 776 So.2d 1107 (Fla. 5th DCA 2001), which Julian relies upon, to be distinguishable. Batzle held that a probate court may not indefinitely extend a temporary plenary guardianship after a ward has died. In the present case, however, the guardian does not seek to extend the guardianship, but to retain part of the deceased ward’s funds so as to pay the guardian’s fees and costs. Under Chapter 744, the guardian may retain such funds.

In summary, we first hold that, pursuant to the parties’ Global Settlement, $72,433.94 must be transferred to the trust account. However, we also affirm the remainder of the lower court’s order because the guardian may retain assets of the ward to pay the costs of administration that accrue between the filing of the final returns and the order of discharge.

Affirmed in part, reversed in part, and remanded.

Warner and Taylor, JJ., concur.

      . Of the $150,000 held in escrow for Levine & Susaneck, $90,000 was subsequently released, leaving $60,000 in the trust account.

      . The guardián argued in the court below that the money was held back in anticipation of possible, future litigation.

      . In the trial court, the guardian moved for relief from the Global Settlement Agreement under Florida Rule of Civil Procedure 1.540(b). The trial court expressly declined to consider the motion, and we do not decide the merits, if any, of such a motion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Richard FISCINA, Appellant, v. Darlene FISCINA, Appellee.
    No. 4D16-836
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]
    Robin Bresky and Jeremy Dicker of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., and J. Mark Maynor of Maynor & Associates, West Palm Beach, for appellee.
   Per Curiam.

Richard Fiscina (the Husband) appeals the trial court’s amended final judgment of dissolution of his marriage to Darlene Fis-cina (the Wife). We affirm without comment on all issues raised, save one. The trial court erred by failing to include the Husband’s loan on the boat and trailer in its equitable distribution scheme.

The Husband’s expert testified that Husband owed $21,167 on the boat and trailer. The Wife also conceded that there was a loan. Moreover, in their proposed equitable distribution schemes, both parties included the loan and valued the debt at $21,167. However, in the trial court’s equitable distribution scheme, the loan is not included.

Therefore, we reverse and remand for the trial court to include the Husband’s loan on the boat and trailer when equitably distributing the parties’ assets and liabilities. See Wolf v. Wolf, 979 So.2d 1128, 1125 (Fla. 2d DCA 2008) (“It is reversible error for the trial court to fail to identify and distribute each marital asset and liability.”).

Affirmed in part, Reversed in part, and Remanded.

May, Klingensmith and Kuntz, JJ., concur.


author: Klingensmith, J.

text:
    Colette K. MEYER and Meyer Law Firm, Appellants, v. Victoria WATRAS, as Guardian of Star Elizabeth Watras-Donnally, Appellee.
    No. 4D16-779
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]

      Robin Bresky and Randall D. Burks of Law Offices of Robin Bresky, Boca Raton, for appellants.
    Charles H. Burns, Tequesta, for appel-lee.
   Klingensmith, J.

Appellants, Colette K. Meyer and Meyer Law Firm, served as counsel for the guardianship of a ward who is an incapacitated minor. They appeal the circuit court’s final order that awarded them less than what they requested in their three petitions for attorney’s fees and costs. For the reasons stated herein, we affirm in part and reverse in part with instructions.

Appellants received $154,468.24 in attorney’s fees and costs from the guardianship for legal services performed between May 2013 and December 2014. On August 21, 2015, appellants filed a motion to voluntarily withdraw as counsel. That motion was granted six days later on August 27, 2015.

Appellants then filed three petitions, requesting additional attorney’s fees and costs. The first petition was for $77,706.25 in fees and $2,794.48 in costs incurred from December 1, 2014, through August 20, 2015. The second petition was for $9,662.50 in fees and $1,056.60 in costs incurred from August 13, 2015, through October 31, 2015. The third petition was for $13,062.50 in fees and $437.50 in costs associated with filing the first two petitions and preparing for the fees hearing.

The circuit court held an evidentiary hearing on the petitions where Meyer testified that the three petitions accurately reflected the time spent on this case, which she said was made difficult and time-consuming because the ward was a plaintiff and asked her firm for assistance in two complicated medical malpractice cases. However, even the expert hired by appellants testified that asking for over $250,000 in attorney’s fees for representing a guardianship for just over two years in a guardianship worth approximately $400,000 appeared excessive.

The court later issued its order, explaining that it was “troubled by such a large percentage of the guardianship being usurped for attorney’s fees and costs by the guardian’s former counsel who only served in that capacity from May of 2013 until August of 2015.” In agreeing with the guardian’s expert that appellants charged an excessive fee, the court found as follows:

1) the Meyer Law Firm bills in no less ■ than quarter hour increments when tenths of an hour would be more appropriate in a guardianship matter;
2) time spent researching and drafting documents to convert this guardianship into, a trust should not be charged to the guardianship;
3) time spent on a foreclosure matter for the ward’s mother should not be charged against the guardianship;
4) work by paralegals, which appears essentially secretarial, should not be charged to the guardianship;
5) billings, for meetings between Ms. Meyer and her paralegals should not.be charged to the. guardianship;
6) billing entries which were not clearly defined should not be charged to the guardianship; [and]
7) only á limited amount of time related to the ongoing medical malpractice action should be charged to the guardianship. Ms. Meyer may seek fees from her limited appearance in the civil medical malpractice case as she sees fit.

As to appellants’ first petition, based on the above findings, the court awarded appellants only $35,000 in fees and reduced the award of costs to $2,314.48 due to the disallowance of a $480 electronic storage charge. As to the second petition, the court denied all the requested .fees and costs because they “were all incurred subsequent to the time [appellants] withdrew as counsel for the Guardian.”

Finally, as to appellants’, third petition, the court awarded appellants $2,550 in attorney’s fees, reimbursed appellants $4,500 for hiring an attorney for the fees hearing, and reimbursed appellants $5,225 for hiring an expert for the fees hearing. The $2,550 attorney’s fees award was based on appellants spending four hours preparing for the fees hearing and two hours at the actual hearing, totaling six- hours at an hourly rate of $425. The $4,500 in reimbursement costs was based on the attorney’s testimony that he spent twelve hours on appellants’ case at an hourly rate of $375. The $5,225 in reimbursement costs was based on the expert’s testimony that he spent eleven hours on appellants’ case at an hourly rate of $475.

Overall, even though appellants filed three petitions requesting $104,719.83 in fees and costs, the court ultimately awarded them a total of $49,589.48 in fees and costs. In this appeal, appellants assert that the court’s order on all three petitions is flawed. For. the reasons stated below, we reverse the court’s order on appellants’ first two petitions, but affirm its order on appellants’ third petition.

“We review orders on attorney’s fees for an abuse of discretion.” Glantz & Glantz, P.A. v. Chinchilla, 17 So.3d 711, 713 (Fla. 4th DCA 2009). “We defer to the circuit court’s findings of fact when they are based on competent, substantial evidence.” In re Guardianship of Ansley, 94 So.3d 711, 713 (Fla. 2d DCA 2012).

First Petition

Pursuant to section 744.108(1), Florida Statutes (2015), a guardianship attorney “is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.” Section 744.108(2) lists nine factors that courts must consider when determining an award of attorney’s fees. Section 744.108(4) explains that “[flees for legal services may include customary and reasonable charges for work performed by legal assistants employed by and working under the direction of the attorney.”

Further, it is well settled that when circuit courts award reasonable compensation to guardianship attorneys, the order must contain express findings regarding the number of hours reasonably expended and the reasonable hourly rate on which the award is based. Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011); Simboni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003); Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997). But of Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1994) (holding that since the trial court stated on record the .number of hours and hourly rate on which attorney’s fees award was based, failure to include number of hours and hourly rate in written order was harmless error).

On appeal, appellants argue that the circuit court erred by failing to consider the nine factors in section 744.108(2) when it. determined that the amount requested by appellants in the first petition was excessive. We disagree. Although the order did not expressly reference section 744.108(2), the order sufficiently explained why the court found the amount to be excessive. In so doing, the court, albeit indirectly, applied the relevant factors in section 744.108(2) to the first petition.

However, we do agree with appellants’ contention that the court’s order lacked sufficient factual findings concerning the reasonable hourly rate and the number of hours on which the award of attorney’s fees was based. Considering the court reduced appellants’ request for attorney’s fees by over $42,000, the court needed to, at the very least, specifically identify the number of hours and hourly rate on which the final award was based. See Haines v. Sophia, 711 So.2d 209, 211 (Fla. 4th DCA 1998) (stating that “[i]t is an exceedingly painstaking and time consum-' ing task to sort through, as here, numerous time sheet entries and assess their context and amounts. It is, however, a necessary evil that trial judges make the effort. Public acquiescence in judicial rulings on attorney’s fees makes it imperative that judges take the trouble to do so”). Moreover, unlike Blits, this error was not harmless because the guardian’s expert never specifically testified on the number of hours reasonably expended or the reasonable hourly, rate, and the court never stated on the record the number of hours and the hourly rate on which the attorney’s fees award was based. See 647 So.2d at 972.

Therefore, because the record on appeal is devoid of any specific evidence on how the circuit court ultimately arrived at awarding appellants $35,000 in attorney’s fees, we reverse and remand to the circuit court for entry of a written order specifying the number of hours and the hourly rate on which the award of attorney’s fees is based. See In re Guardianship of Ansley, 94 So.3d at 714. “The court need not hold a new evidentiary hearing if it is able to enter a written order from its notes or a transcript of the original fees hearing.” Simhoni, 843 So.2d at 1037.

Second Petition

The trial court denied appellants’ second petition because it found the fees and costs “were all incurred subsequent to the time [appellants] withdrew as counsel for the Guardian.” A review of the record, though, reveals that the circuit court was mistaken about the dates of when some of those fees were incurred. The court granted the motion to withdraw on August 27, 2015. Yet, appellants’ second petition included numerous billing entries from August 13, 2015, through that date.

In light of appellants’ withdrawal on August 27, 2015, we reverse and remand to the trial court for the entry of a sufficient written order containing the necessary findings about whether such billings were compensable, and if so, specifying the number of hours and the hourly rate on which the award of attorney’s fees is based. See In re Guardianship of Ansley, 94 So.3d at 714. The new order must also itemize the costs allowed on the second petition. Id. Again, a new evidentiary hearing is unnecessary if the court can use notes or a transcript of the original fees hearing to formulate the new order. Simhoni, 843 So.2d at 1037.

Third Petition

Section 744.108(8), 'which authorizes courts to order guardianships to compensate attorneys for the fees and costs associated with preparing and attending hearings on fees, provides:

When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including costs and attorney fees for the guardian’s attorney, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.

Unlike the orders entered on the other two petitions, the final order on this petition contained all the required elements, including the number of hours the court found to be compensable as well as the hourly rate for appellants, appellants’ attorney, and appellants’ expert. Considering appellants’ own expert testified that the amount requested in the third petition was “probably” excessive, the circuit court did not abuse its discretion in making its reductions. Therefore, we affirm the circuit court’s final order as to the third petition.

Affirmed in part, Reversed in part, and Remanded with instructions.

Taylor and Gerber, JJ., concur.

      , With respect to the first petition, appellants also argue that the final order awarding them only $2,314,48 in costs, instead of the $2,794.48 they requested, should be reversed as well. This argument is meritless because appellants’ expert -testified that appellants should not have charged the guardianship $480 for electronically storing files and the court’s order specifically provided that it reduced the costs amount due to the disallowance of that electronic storage charge. We therefore affirm the circuit court’s final order awarding appellants $2,314.48 in costs-on appellants’ first petition,


author: PER CURIAM.

text:
    Johnny KELLY, Appellant, v. FOREST RIVER, INC., Appellee.
    CASE NO. 1D16-4081
    District Court of Appeal of Florida, First District.
    Opinion filed January 19, 2017
    Michele F. Martin of Pastore & Dailey LLC, Gainesville, for Appellant.

      Gregory A. Anderson and Henry P. Ro-meu of AndersonGlenn LLP, Ponte Vedra Beach, for Appellee.
   PER CURIAM.

The Court has determined that the order on appeal is not “one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Fla. R. App. P. 9.110(k). Therefore, the order does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, appellee’s motion to dismiss is granted, and the appeal is dismissed as premature.

WETHERELL, JAY, and WINSOR, JJ., CONCUR.


author: BADÁLAMENTI, Judge. CÁSANUEVA,

text:
    Anthony P. DIECIDUE, Appellant, v. Peter James LEWIS, Timothy Michael Nowak, and Allstate Property and Casualty Insurance Company, Appellee.
    Case No. 2D15-1852
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.

      David M. Caldevilla, of de la Parte & Gilbert, P.A., and J. Daniel Qlark, of Clark & Martino, P.A., Tampa, for Appellant.
    Kansas R. Gooden, and Loreyn P. Raab, of Boyd <&• Jenerette, P.A., Jacksonville, and Bradley E. Powers, of Banker Lopez Gassier, P.A., Tampa, for Appellee Allstate Property and Casualty. Insurance Company.
    No appearances for Appellees Peter James Lewis and Michael Nowak.
   BADÁLAMENTI, Judge.

Anthony P. Diecidue appeals the trial court’s award of attorneys’ fees and costs to Allstate-Property and Casualty Insurance Company (Allstate) pursuant to a proposal for settlement (proposal) governed by section 768.79, Florida Statutes (2012), and Florida Rule of Civil Procedure 1.442. Diecidue asserts that a release form attached to Allstate’s proposal creates ambiguities within the offer itself. Specifically, Diecidue argues that the release form’s inclusion of a waiver of loss of consortium claims requires Diecidue to misrepresent that he has no children eligible to file a claim for loss of consortium. After careful review and the benefit of oral argument, we reverse the order granting Allstate attorneys’ fees and costs and remand for further proceedings.

On April 16, 2011, Peter Lewis lost control of- a vehicle, which was owned by Michael Nowak. The vehicle veered off the road and entered a little league ballpark while games were in progress. Diecidue, a coach for one of the competing teams, ran from the pitcher’s mound up to the fence surrounding the field and began yelling to warn onlookers in the bleachers, who were sitting with their backs turned to the vehicle. As the vehicle crashed through the fence surrounding the little league field, it slowed down enough for Diecidue to somehow reach through the vehicle’s front driver-side window, seize the controls, and cause the vehicle to stop on the pitcher’s mound. Diecidue injured his back in the process.

Diecidue initiated a lawsuit which included negligence claims against Lewis and Nowak and an uninsured motorist (UM) claim against Diecidue’s insurer, Allstate. On October 5, 2012, Allstate served Dieci-due with a proposal for settlement for $50,000, inclusive of attorneys’ fees and costs, which Diecidue rejected. -

The case proceeded to a jury trial, where Allstate was the primary defendant. The jury found that Lewis was twenty percent negligent and Diecidue was eighty percent negligent and awarded Diecidue total damages of $18,500. Dieci-due’s damage award was reduced by 80 percent for his proportion of contributory negligence and then by an additional $15,000 for his collateral recovery from a personal injury protection (PIP) policy and an auto medical payments (MedPay) policy. These reductions lowered Diecidue’s net verdict to $8700.

After the jury rendered its verdict, Diec-idue and Allstate filed competing motions for taxation of costs. Allstate’s motion also included a request ■ for attorneys’ fees based on Diecidue’s rejection of Allstate’s prior proposal for settlement. The trial court subsequently entered a final judgment awarding Diecidue,$64,401.34 in taxable coáts and $89.56 in insurance premiums, plus statutory interest. The order reserved jurisdiction to award additional attorneys’ fees and costs.

A hearing was conducted-on Allstate’s motion for taxation of costs and fees. Diec-idue argued that Allstate’s proposal for settlement was inconsistent with the release form attached to the proposal, which created ambiguities. Specifically, Diecidue pointed out that the release required Diec-idue to falsely represent that he had no unmarried dependents able- to bring a claim for loss of consortium. The trial court rejected Diecidue’s arguments and entered two duplicative orders on Allstate’s motion to tax costs and fees. The orders each awarded Allstate $103,744.31 in attorneys’ fees and costs, which were set off against Diecidue’s previous award of costs, for a net award of $35,553.41 to Allstate.

Whether a proposal for settlement complies with rule 1.442 and section 768.79 is subject to de novo review. Tran v. Anvil Iron Works, Inc., 110 So.3d 923, 925 (Fla. 2d DCA 2013) (citing Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002)). Rule 1.442(c)(2)(C)-(D) requires the offeror to “state with particularity any relevant conditions” of the proposal and to “state with particularity all nonmonetary terms of the proposal.” “The term ‘particularity' as used in rule 1.442(c) means that the offeror must provide ‘specific details’ of any condition or nonmonetary term.” 1 Nation Tech. Corp. v. Al Teletronics, Inc., 924 So.2d 3, 6 (Fla. 2d DCA 2005) (quoting Swartsel v. Publix Super Mkts., Inc., 882 So.2d 449, 453 (Fla. 4th DCA 2004)). “If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006).

Rule 1.442 aims to prevent ambiguity, not breadth. Id. That is, the supreme court has instructed that courts are only to invalidate a proposal for settlement for “reasonable ambiguities” and has discouraged courts from nitpicking a proposal for inconsequential ambiguities. Anderson v. Hilton Hotels Corp., 202 So.3d 846, 852-53 (Fla. 2016). That said, because section 768.79 and rule 1.442 are in derogation of common law, they demand strict construction and compliance. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 377 (Fla. 2013). Under section 768.79, an award of attorneys’ fees ultimately depends “on the difference between the amount of a rejected offer and the amount of a later judgment.” TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 612 (Fla. 1995). If a defendant’s proposal for settlement is twenty-five percent greater than the judgment ultimately obtained by the plaintiff, then the defendant is entitled to an award of attorneys’ fees and costs. § 768.79(1).

We hold the provision of the release form concerning waiver of loss of consortium claims to be ambiguous. The penultimate paragraph of the release reads, “To procure payment of the consideration referred to herein, I do hereby declare and represent that I have no qualifying disability and qualifying dependents) which would enable a claim to be made by or on behalf of any unmarried dependent, as defined by section 768.0415, Florida Statutes (2007).” (Emphasis added.)

Section 768.0415 allows unmarried dependent children to bring loss of consortium claims based in negligence. See Zonzos v. Rosen, 467 So.2d 305, 308 (Fla. 1985) (explaining that children in Florida have no common law right to bring a loss of consortium claim). In pertinent part, section 768.0415 reads, “A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.”

Allstate’s waiver for loss of consortium claims, when read together with section 768.0415, is ambiguous because it would amount to an outright falsehood. Pursuant to the statutory language, the term “qualifying dependent(s)” as used in the waiver means an unmarried dependent child, either natural or adopted. § 768.0415. Because the terms of the release form demand the signatory to declare that he does not have any “qualifying dependent(s),” signing the waiver would require Diecidue to represent that he has no unmarried dependent children. In Diecidue’s case, this is simply untrue—he has unmarried dependent children.

“When an offer contains as a condition a ‘general release,’ care should be taken to insure that the proposed release does not seek to extinguish claims that are extrinsic to the litigation.” Nichols v. State Farm Mut., 851 So.2d 742, 746 n.3 (Fla. 5th DCA 2003), approved, 932 So.2d 1067 (Fla. 2006). Although any claims for loss of consortium brought by Dieeidue’s children would be derivative of Diecidue’s own claims, the cause of action for loss of consortium still belongs to Diecidue’s unmarried children, not Diecidue. See United Servs. Auto. Ass’n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000) (citing Orange Cnty. v. Piper, 523 So.2d 196, 198 (Fla. 5th DCA 1988)) (explaining that a proposal for settlement which failed to specify the amounts offered to two plaintiffs would have deprived one of the plaintiffs, who had a derivative claim for loss of consortium, of control as to her own claim).

A proposal for settlement is considered ambiguous, and therefore unenforceable, if it is impossible for the offeree to meet its terms. See Gonzalez v. Claywell, 82 So.3d 1000, 1001 (Fla. 1st DCA 2011) (citing Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla. 2010)). The Gonzalez case concerned a proposal for settlement from a plaintiff to a defendant in a negligence case. Id. at 1000. By the terms of his proposal, the plaintiff offered to settle the case if the defendant’s auto insurer, a nonparty, tendered a settlement check to the plaintiff in excess of the insurer’s policy limits. Id. The defendant declined the proposal. Id. at 1000-01. The trial court awarded the plaintiff attorneys’ fees and costs on the basis of the rejected proposal for settlement. Id. at 1001. The First District reversed, holding that the plaintiffs proposal was ambiguous because it was impossible for the defendant to meet the conditions in the proposal.

Here, it would have been impossible for Diecidue to comply with the loss-of-consortium waiver because Diecidue could not honestly represent that he had no qualifying dependents under section 768.0415. As the supreme court stated in Nichols, rule 1.442’s particularity requirement “does not demand the impossible” when it comes to eliminating linguistic ambiguity in proposals for settlement. 932 So.2d at 1079. This principle works both ways. It is just as irrational for an offeree to demand impossible standards of clarity from the offeror’s proposal for settlement, as it is for an offeror to try to impose legally impossible conditions on the offer-ee.

We also note that the trial court entered two duplicate final judgments against Diecidue—one on April 21, 2015, and another on April 22, 2015, There is no support in the record for two separate judgments against Diecidue. Allstate concedes that the trial court inadvertently entered a duplicate judgment. Accordingly, we direct the trial court to strike the later judgment, dated April 22, 2015. See Sound Builders of St. Petersburg, Inc. v. Hanlon, 439 So.2d 276, 276 (Fla. 2d DCA 1983).

As we have in the past, we again stress that the purpose of section 768.79 and rule 1.442 is to reduce litigation costs, not create more. See, e.g., Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134 (Fla. 2d DCA 2012) (en banc). We are mindful that prevailing parties seeking recovery under section 768.79 have expressed concerns that some litigants who initially rejected' proposals for settlement and neglected to receive a favorable verdict at trial make post hoc attempts to conjure up ambiguities in proposals for settlement to get a second bite at the apple. Although we do not suggest that occurred in this case, we use this case as a vehicle to emphasize that it is better practice for an offeree to raise any ambiguities in proposals for settlement with the offeror before trial. This will increase the probability that any subsequent offers may better reflect the intent of the parties and better ensure that courts are not unnecessarily injected into disputes that can otherwise be amicably resolved.

In sum, Allstate’s proposal for settlement did not comply with the particularity requirement in rule 1.442(c)(2)(D). Because a valid proposal for settlement must comply with both rule 1.442 and section 768.79, the trial court erred in awarding Allstate attorneys’ fees on the basis of Allstate’s proposal for settlement. See Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002) (stating that compliance with the particularity requirements of rule 1.442 is mandatory). We reverse the trial court’s award of attorneys’ fees and costs to Allstate and remand for further proceedings.

Reversed; remanded with instructions to strike the judgment of April 22, 2015, and for 'further proceedings consistent with this opinion.

LUCAS, J., Concurs.

CASANUEVA, J., Concurs with opinion.

CÁSANUEVA,

Concurring.

I fully concur in the majority opinion. I write to discuss a concern caused by the proposal for settlement utilized in this matter and how such a proposal for settlement can be utilized in other matters for the purpose of attaining a tactical advantage rather than for the recognized purpose of ending litigation so that scarce judicial resources may be conserved. I continue to adhere to the belief that the purpose of rule 1.442 and section 768.79 is to end litigation and not to create more. Lucas, 813 So.2d at 973.

I will first identify the proposal for settlement at issue in this case, then review the applicable rule and statute, and conclude by suggesting a means of analysis.

The proposal for' settlement issued in this matter by defendant Allstate sought to resolve the litigation by offering to pay “the total amount of Fifty Thousand and 00/100 Dollars.” In exchange for this amount, Allstate was to receive .“a complete release and dismissal with , prejudice of all claims against Defendant.”

Yet, the release attached to the proposal for settlement, when read' carefully, was more than a mere release. It also contained indemnification and hold harmless provisions. The latter provision operates to expose the plaintiff to future liability. Despite its breadth, the attached release’s language was clear and not ambiguous. See Nichols, 932 So.2d at 1079 (“The rule aims to prevent ambiguity, not breadth.”); Saterbo v. Markuson, 210 So.3d 135, (Fla. 2d DCA Sept. 21, 2016). Therefore, it was a facially valid proposal.

Section 768,79(2) identifies four items that are to be included in an offer of judgment. Importantly, the statute requires that the offer be in writing and that it set forth “its total amount.” § 768.79(2)(d). The legislative focus appears to be on monetary conditions rather than nonmonetary conditions. The language of the statute, enacted by the -Mori-da Legislature, expressly identifies a monetary calculation to determine whether fees will be awarded as a penalty for the rejection of a good faith offer. Braaksma v. Pratt, 103 So.3d 913, 914 (Fla. 2d DCA 2012). The statute makes no express mention of nonmonetary-.conditions. As the statute is in derogation of our state’s common law, it must be strictly construed. Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So.3d 391, 394 (Fla. 2016).

Rule 1.442(c) requires that all offers of judgment, referred to in the rule as proposals for settlement, be in writing, and it identifies seven items that “shall” be contained in a proposal for settlement. It is in the language of the rule—not the statute— that nonmonetary conditions are referenced. This language expands the field of permissible contents that may be included in a proposal for settlement as compared to the terms required for an offer of judgment authorized by statute. Whether such an expansion is permissible—or not—is beyond the scope of this concurrence and is not preserved by a trial court ruling.

While subsection (c)(2)(D) of the rule has language- similar to its statutory counterpart, requiring that a proposal “state the total amount of the proposal,” the rule goes beyond the express scope of the statute. In addition to monetary conditions, the rule requires a proposal to “state with particularity any relevant conditions” and to- “state with particularity all nonmone-tary terms of the proposal.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). It .is these latter provisions referencing nonmonetary conditions without limitation that authorized the inclusion, in this case and others, of additional terms such as hold harmless and indemnification provisions. These additional terms and others like them may cause a party to reject a proposal and thereby be exposed to an assessment of attorneys’ fees.

- Interestingly, when parsing the language of the rule and the statute, a reader will observe the only matters permissible for the trial court’s consideration in determining whether to impose a sanction award are the amounts recovered at trial as compared to the amounts offered pretrial and whether the offer was made in good faith. Neither' consideration well lends itself to whether the additional non-monetary conditions were burdensome or were outweighed by the obligations to be possibly incurred as compared to the economic benefits of the monetary amounts offered.

By permitting the inclusion of nonmone-tary conditions, rule 1.442 has also had the effect of expanding the evidentiary demands on a trial court. Case law is replete with appellate decisions discussing whether a release was standard in the private sector and whether the terms of the proposed release were standard. See, e.g., Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., 176 So.3d 305, 309-310 (Fla. 3d DCA 2015) (discussing what is “standard in release language”); Jessla Constr. Corp. v. Miami-Dade Cty. Sch. Bd., 48 So.3d 127, 130-31 (Fla. 3d DCA 2010) (stating language was “typical” of that contained in many general releases); Ledesma v. Iglesias, 975 So.2d 1240, 1243 (Fla. 4th DCA 2008) (same); Bd. of Trs. of Fla. Atl. Univ. v. Bowman, 853 So.2d 507, 510 (Fla. 4th DCA 2003) (“The inclusion of agents, employees, etc. is simply standard language in a general release that should be considered unambiguous and should not invalidate the proposal.”).

Respectfully, I ■ suggest the decision-making model should be altered to further the avowed purpose of the statute: to end .litigation. To that end, the starting point of the analysis should be framed by the parties’ operative pleadings. If the nonmone-tary. conditions are not otherwise available in any party’s prayer for relief, they cannot be imposed as nonmonetary conditions of an offer of judgment. The exception to this rule is that a voluntary dismissal would be available to bring the litigation to a conclusion. In this manner, neither the trial court nor the appellate court would be required to go outside the instant case to identify and apply “settlement norms.” It must be recalled that the rule and statute are not mere settlement devices; they operate as a penalty and sanction provision. See Braaksma, 103 So.3d at 914; Attorneys’ Title Ins. Fund, Inc. v. Gorka, 989 So.2d 1210, 1213 (Fla. 2d DCA 2008).

When compared to monetary conditions set forth in an offer of judgment or proposal for settlement, nonmonetary conditions are more likely to be subjected to an ambiguity analysis or an assertion of “nitpicking.” By requiring that nonmonetary terms have a nexus to the pending instant litigation as described above, the likelihood of ambiguity or nitpicking is lessened if not eliminated. Furthermore, the courts that must review the offer of judgment will be operating within the parameters of the case as defined by the respective parties’ pleadings, as well as within known jurisprudence. For example, to tenninate the instant litigation, a party would require a pleading that operates to dismiss all claims with prejudice. Nothing more is required to conclude the litigation.

Certainly, should the parties desire a more expansive and extensive settlement, the option of private settlement negotiation remains. Therein the parties’ settlement considerations may resolve disposition issues by measuring present financial considerations against the potential of future financial exposure. There is no question that the exercise of private settlement negotiations offers more flexibility regarding settlement terms than does the existing statute-rule combination. There, the consideration of the benefits offered by the economic terms of the settlement are more likely to result in a settlement than would the sanction operation of the existing statute-rule combination.

And it should be recognized that difficulties are created when the judiciary looks to import the norms of settlement discussion into a jurisprudence flowing from the operation of a sanction-diiven statute-rule combination.

The importation of standards existent in private settlement discussions plays, in my view, no part in the analysis of the operation of Florida’s offer of judgment statute-rule combination. Importantly, the use of nonmonetary conditions, such as a release that is more than a release, creates an ability to stack conditions so that the likelihood of rejection is correspondingly increased. But the rejection resulting from the proposal still permits the offering party to maintain the leverage of later sanctions. Where the legislature sought a straightforward proposal based upon the acceptance or rejection of a monetary amount, the allowance of nonmonetary conditions otherwise unavailable through the pleadings alters the dynamics envisioned by the legislature. Using the facts here, Mr. Diecidue’s rejection could be based on a reluctance to acquiesce to the potential liability exposure created by the terms of the “general release.” Others in a similar situation might well reach an identical conclusion. The additional terms likely operate to discourage rather than encourage settlement.

It is my view that if the offer of judgment seeks to impose a nonmonetary condition that has no nexus to the litigation’s prayer or prayers for relief, such an offer of judgment does not comply with the statute and cannot support a sanction award.

      . Lewis and Nowak were not present for trial.

      . The majority of this cost award was not considered when calculating the necessary twenty-five percent margin in section 768.79(1) because the costs were not incurred on October 5, 2012. See White v. Steak & Ale of Fla., Inc., 816 So.2d 546, 551 (Fla. 2002) ("[W]e conclude that the ‘judgment obtained' pursuant to section 768,79 includes ... any attorneys’ fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer.”). Diecidue's incurred costs on that date were only $26,853.90, After rehearing, the trial court amended Diecidue’s award of costs with a slightly different interest schedule, but the sums awarded to Diecidue remained the same.


text:
    Tyrone WOODSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5630
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017.
    Jeffrey E. Lewis, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee. Tyrone Woodson, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence in all respects but one. We reverse the imposition of a $1,050 fine and a $52.50 surcharge, neither of which was pronounced at the sentencing hearing. See Nix v. State, 84 So.3d 424 (Fla. 1st DCA 2012); Williams v. State, 82 So.3d 186 (Fla. 1st DCA 2012). As in Nix, “[o]n remand, the trial court may reimpose the fíne and surcharge after providing notice to Appellant and following the proper procedure.” 84 So.3d at 426.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

ROBERTS, C.J., and JAY and WINSOR, JJ., CONCUR.


author: JAY, J.

text:
    Stephen Lamont EARLY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-316
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017.

      Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Matthew Pavese and Robert Lee, Assistant Attorneys General, Tallahassee, for Appellee.
   JAY, J.

Appellant raises four issues in this direct appeal from his conviction and sentence for the second-degree murder of Quinton Epps with a weapon, a knife. After careful consideration, we affirm the conviction and sentence, and write only to address Appellant’s two arguments asserting (1) Stand Your Ground immunity and (2) common-law self-defense. With respect to both of these arguments, Appellant asserts that the evidence must be considered undisputed in his favor because the victim died, and because there were no eyewitnesses to the crime, leaving only his own testimony. We reject this reasoning.

(1) Stand Your Ground Immunity.

Appellant argues that the trial court committed reversible error by denying his motion to dismiss pursuant to section 776.032(1), Florida Statutes (2012),. because he established by a preponderance of the evidence that he reasonably believed it was necessary to use deadly force to prevent imminent death or great bodily harm to himself . under section 776.012, Section 776.032(1) provides that a person using force as permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2012), “is immune from criminal prosecution and civil action for the use of such force” subject to certain exceptions. The defendant bears the burden of proving entitlement to this immunity by a preponderance of the evidence. Bretherick v. State, 170 So.3d 766, 775 (Fla. 2015); Spires v. State, 180 So.3d 1175, 1176 (Fla. 3d DCA 2015); Hair v. State, 17 So.3d 804, 805 (Fla. 1st DCA 2009).

When reviewing the trial court’s ruling on a motion to dismiss based on immunity under section 776.032(1), the appellate court must apply the same standard of review applicable to a ruling on a motion to suppress. Spires, 180 So.3d at 1176; Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012); Ham, 17 So.3d at 805. Therefore, the trial court’s legal findings are reviewed de novo while the trial court’s factual findings are reviewed for competent substantial evidence. Viera v. State, 163 So.3d 602, 604 (Fla. 3d DCA 2015); Mederos, 102 So.3d at 11; Hair, 17 So.3d at 805. Moreover, the trial court’s decision is “ ‘clothed with a presumption of correctness, and the [appellate] court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.’ ” Viera, 163 So.3d at 604 (citations omitted).

(2) Self-Defense.

Appellant also argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to rebut his reasonable hypothesis of self-defense. The question of whether a defendant acted in justifiable self-defense is generally a question for the jury. Morgan v. State, 127 So.3d 708, 717 (Fla. 5th DCA 2013); Stinson v. State, 69 So.3d 291, 292 (Fla. 1st DCA 2009); Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004). “Once the defense presents a prima facie case of self-defense, the state must disprove the defense beyond a reasonable doubt.” Morgan, 127 So.3d at 717; Stinson, 69 So.3d at 291-92; Rasley, 878 So.2d at 476. “If the state fails to sustain its burden, the trial court must grant a motion for judgment of acquittal in favor of the defendant.” Morgan, 127 So.3d at 717. “However, a motion for judgment of acquittal based on self-defense should not be granted unless ‘the evidence is such that no . view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’” Id. (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)); Stinson, 69 So.3d at 292; Rasley, 878 So.2d at 476-77.

“[E]ven when there are no other witnesses to the events besides the defendant, a jury is not required to accept the defendant’s testimony in support of [his] self-defense theory as true. Instead, it must consider the probability or improbability of the defendant’s credibility in light of the circumstances established by other evidence.” Leasure v. State, 105 So.3d 5, 14 (Fla. 2d DCA 2012) (citations omitted). “Thus, a motion for judgment of acquittal should be denied where a jury could reasonably infer guilt and reject the defendant’s explanation of self-defense, either because the defendant gave false, inconsistent, or incriminating statements, or because a common sense view of the circumstantial evidence would allow the jury to reject the defendant’s story as unbelievable.” Cruz v. State, 189 So.3d 822, 826 (Fla. 4th DCA 2015).

Appellant’s Trial Testimony

After initially giving law enforcement four different versions of events, at trial, Appellant admitted that he had lied to police earlier because he was confused, scared, and nervous. He testified to the following fifth version of events. He and the victim were romantically involved, and had a history of disputes that sometimes turned physical but had previously involved only use of bare hands, no weapons. He considered his partner possessive and was tiring of the relationship. On the-night in question, the couple were living at a hotel, but Appellant had been out of town visiting family and friends, and the victim—apparently—did not like being left behind.

When he returned to the hotel, Appellant called the victim to let him know that he was outside. Appellant went inside to use the bathroom, and the victim walked outside and got into the driver’s seat of the car. When Appellant came out, he got in the back seat of the vehicle. Appellant said he wanted to go back to his mother’s house, and the victim said he would take him. When Appellant called his mother and told her that he was coming home, the victim turned around in the driver’s seat and began punching Appellant repeatedly in the head. Appellant leaned down to try to grab the door latch so he could get out of the vehicle, and as he felt around, he found a knife on the floor. According to Appellant, the victim’s re-peáted blows prevented him from opening the door. Appellant was afraid he was going to be seriously injured. While the victim was still striking him, Appellant “jabbed” the victim with the knife to stop the attacks. Because the victim continued hitting him, he “jabbed” the victim again with the knife; and after that, the attacks ended. When he saw that the victim was injured, Appellant called 911.

Other Evidence at Trial

During its case-in-chief, the state presented evidence reflecting the following sequence of events. Just prior to 4:00 a.m. on April 21, 2013, the sheriffs office received two simultaneous 911 calls from what appeared to be the same caller on two different phones. The caller stated that his cousin had stabbed himself in the side and urged the operator to “come on now please.” Two police officers were dispatched to the hotel immediately. They heard someone shouting for help from the rear of the hotel, where they found Appellant standing by the driver’s door of a car. Appellant had small black objects in each hand, and threw the object from his left hand into the car. An officer ordered Appellant onto the ground and found a folding-blade pocket knife in Appellant’s front pocket. Appellant also had a cell phone in his right hand. A very bloody fixed-blade knife was found on the ground nearby, and a second cell phone, also bloody, was found inside the car. Appellant had fresh blood droplets under his eye and on his right forearm, and blood that appeared to be older and dried inside his lip. He did not have any obvious injuries, however.

The victim was in the driver’s seat of the car, with blood coming from his mouth, and his left side and front were soaked in blood. Despite efforts at resuscitation,’ the victim was declared dead at the scene. During the autopsy, the medical examiner identified two sharp force injuries to the victim’s left lateral chest wall, one of which was the cause of death. The medical examiner admitted that it was plausible that the victim was sitting in the front seat while he was stabbed by a person in the back seat. Swabs taken from the knife, cell phone, Appellant’s right forearm, Appellant’s right cheek, and Appellant’s lip and chin all gave chemical indications for the presence of blood. DNA from these swabs matched the victim’s DNA profile. A partial DNA profile obtained from the victim’s fingernail clippings matched Appellant’s DNA profile.

Appellant’s Multiple Versions of Events

Appellant’s first version, given to the 911 dispatcher, was that his “cousin” stabbed himself in the side.

Appellant’s second version, given at the scene of the crime after Appellant was read his rights and agreed to talk, was that when he came out the rear door of the hotel into the rear parking lot area, he saw a black male dressed in black running from the vehicle and out of the parking area. When the officer pressed Appellant on the need to find the person who attacked the victim, Appellant replied that he did not hurt the victim, that he loved the victim very much, and that he “wouldn’t do this.”

Appellant’s third version, given under questioning at the police station, was consistent with his trial testimony on the background and status of his relationship with the victim, Appellant’s visit with friends out of town, and his return to the hotel after the victim called him. Appellant claimed that he was walking to the hotel bathroom when he saw the victim coming out of their room and walking toward the back door. Appellant then claimed that as soon as he came out of the bathroom, he saw a black male running out of the parking area, whereupon he went out to the car, saw the victim inside and bleeding under his armpit, and called 911. After further questioning, Appellant stated that the blood in his mouth was the result of play fighting or “slap boxing” with his cousin earlier in the evening.

Appellant’s fourth version, given later in the interview at the police station, was that he and the victim had an argument after he returned to the hotel; that he passed the victim coming out of their room as he walked to the bathroom; that the victim appeared angry; that he went to the car where the victim was sitting in the front seat; that he got into the back seat because he was concerned that the victim was going to hit him; that he argued with the victim, who was apparently jealous that Appellant had left hirp at the hotel; and that when he told the victim he was getting out of the car, the victim shoved him, hit him in the head, and tried to attack him with a knife, which resulted in the victim being stabbed.

Appellant’s fifth version, given when police challenged Appellant about how the victim was stabbed, was that the victim had repeatedly hit Appellant in the head and this caused Appellant to pick up a knife on the floor and stab the victim in self-defense. This fifth version was consistent with Appellant’s trial testimony.

Appellant’s Arguments

On appeal, Appellant argues that he was entitled to a dismissal of the charges under the Stand Your Ground Law, and was entitled to a judgment of acquittal for self-defense as a matter of law. Contrary to Appellant’s assertion on appeal, the evidence in this case was far from undisputed. As the only surviving'witness to the stabbing, Appellant’s credibility was a critical issue with respect to both of his arguments, That credibility was undermined by the fact that he gave numerous inconsistent statements regarding the stabbing and fully admitted that’he lied to law enforcement. These inconsistent statements, coupled with the physical evidence, were legally sufficient to- establish that Appellant (1) was not entitled to Stand Your Ground immunity and (2) was not entitled to a judgment of acquittal for self-defense.

Stand Your Ground Immunity. Even Appellant’s final version of what happened—particularly his claim that the victim was the aggressor and inflicted injuries on Appellant—cast substantial and material doubt on his credibility and on the reasonableness of his claim to have been in fear of great bodily harm or death. Specifically, the close confines of the interior of a car, especially with the victim in the driver’s seat and having to reach over or between the seats to contact Appellant in the back seat—and Appellant claiming to be cowering behind the protections of the seat structure—cast doubt on the reasonableness of any argument that the victim was, or could have been, inflicting blows that might lead to death or great bodily harm. Appellant had no visible injuries despite his claim that the victim hit him multiple times in the head. Fresh blood on Appellant’s right forearm, right cheek, lip, and chin was identified as belonging to .the victim. Collectively, this evidence justified the trial court’s refusal to confer Stand Your Ground immunity on Appellant.

Moreover, the trial court could have found it improbable that Appellant propitiously discovered a kitchen knife on the car floor while he was being viciously attacked from the front seat by the victim. A more plausible scenario would be that Appellant brought the knife to the vehicle, got into an argument with the victim, and stabbed the victim as he was preparing to drive away. Because Appellant gave a multiplicity of contradictory statements about the events surrounding the stabbing and because Appellant’s trial testimony was inconsistent with the physical evidence, the trial court properly concluded that Appellant failed to prove his entitlement to Stand Your Ground immunity by a preponderance of the .evidence. See Leasure, 105 So.3d at 12—13 (agreeing with the trial court that "because of the myriad of inconsistencies in her statements and the inconsistent medical evidence, Leasure failed to prove entitlement to immunity by a preponderance of the evidence”).

Self-Defense. The same reasoning and the same result apply to Appellant’s claim of self-defense; The jury was not required to accept Appellant’s testimony as true, but was required to evaluate his credibility in light of all of the evidence. Leasure, 105 So.3d at 14. Because Appellant was the only surviving witness to the stabbing, his credibility was. a critical issue. As previously stated, that credibility was seriously undermined when he gave numerous false and inconsistent statements regarding the stabbing to the 911 operator and both police officers. Appellant’s final version of what happened was called into question by testimony that Appellant had no visible injuries, that fresh blood on Appellant was identified as belonging to the victim, and that Appellant told the police investigator that the suspected dried blood in his mouth was the result of his play fighting with his cousin earlier ip the evening. Finally, a jury could find it implausible that Appellant miraculously discovered a kitchen knife on the car’s back floorboard while defending himself from a front seat onslaught by the victim.

Because a jury could reasonably reject Appellant’s self-defense claim based on a belief that Appellant gave false and contradictory statements and because a common sense view of the circumstantial evidence could allow a jury to reject Appellant’s ultimate explanation of what occurred as not being credible, the trial court properly denied Appellant’s motion for judgment of acquittal. See Leasure, 105 So.3d at 14-15 (affirming the denial of murder defendant’s motion for judgment of acquittal based on self-defense where defendant’s numerous inconsistent statements cast significant doubt on her assertions that she had a reasonable fear of death or great bodily harm and her version of events was not consistent with the evidence); Stinson, 69 So.3d at 292 (holding that the state’s evidence was sufficient to rebut defendant’s theory of self-defense where the state presented evidence that defendant lied to both the 911 operator and the police about her involvement in the shooting and one of the police officers testified that the defendant did not appear disheveled and did not have any bruises that would indicate that she was recently the victim of domestic violence).

Conclusion.

Having concluded that the trial court’s rulings were proper, we affirm Appellant’s conviction and sentence for second-degree murder with a weapon.

AFFIRMED.

LEWIS and WETHERELL, JJ„ CONCUR.


text:
    Darrell THORNTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4615
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017
    Darrell Thornton, pro s'e, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted.' Petitioner shall be allowed a belated appeal from the March 29, 2016 order denying defendant’s motion for postconviction relief in Clay County Circuit Court case number 10-2009-CF-00543-AXXX-MA, Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

RAY, MAKAR, and WINSOR, JJ., CONCUR.


text:
    Sarah J. HARRIS and Bradley C. Harris, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Certificate Holders of the LXS 2007-16N Trust Fund, Appellee.
    CASE NO. 1D15-2022
    District Court of Appeal of Florida, First District.
    Opinion filed March 10, 2017
    Rehearing Denied June 2, 2017
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.
    Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for Appellee. ■
   PER CURIAM.

In granting final judgment on U.S. Bank National’s foreclosure complaint against Sarah and Bradley Harris (whom we’ll call “the Borrowers”), the trial court held that a HUD regulation was a condition precedent to foreclosure, but that the Borrowers failed to raise the issue and timely challenge the Bank’s noncompliance with the regulation. We affirm.

I.

The Bank sought to foreclose a mortgage secured by a promissory note issued to the Borrowers. As an FHA loan, the note contained the following provision:

If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. ... In many circumstances regulations issued by the Secretary will limit Lender’s rights to require immediate payment in full in the case of payment defaults. This note does not authorize acceleration when not permitted by HUD regulations.

(Emphasis added). The mortgage established the Bank’s remedies upon default by the Borrowers, including limitations subject to HUD regulations:

Grounds for Acceleration of Debt.
(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if:
(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender’s rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.

(Emphasis added). The regulation at issue in this case provides for a face-to-face interview with a mortgagor under certain scenarios:

(b) The mortgagee must have a faee-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid. ...
(c) A face-to-face meeting is not required if:
(1) The mortgagor does not reside in the mortgaged property,
(2) The mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either,
(3) The mortgagor has clearly indicated that he will not cooperate in the interview,
(4) A repayment plan consistent with the mortgagor’s circumstances is entered into to bring the mortgagor’s account current thus making a meeting unnecessary, and payments thereunder are current, or
(5) A reasonable effort to arrange a meeting is unsuccessful.
(d) A reasonable effort to arrange a face-to-face meeting-with the mortgagor shall consist at a minimum of one letter sent to the mortgagor certified by the Postal Service as having been dispatched. Such a reasonable effort to arrange a face-to-face meeting shall also include at least one trip to see the mortgagor at the mortgaged property, unless the mortgaged property is more than 200 miles from the mortgagee, its servi-cer, or a branch office of either, or it is known that the mortgagor is not residing in the mortgaged property.

24 C.F.R. § 203.604 (emphasis added).

The Bank’s complaint did not allege compliance with this HUD regulation or any others, but the Borrowers neither moved to dismiss for the Bank’s non-compliance nor asserted non-compliance as an affirmative defense. For its part, the Bank took the position that—even if the Borrowers’ other affirmative defenses could be construed to include non-compliance with HUD regulations—such regulations are not conditions precedent to a foreclosure action.

The trial lasted less than two hours, the only witness being the Bank’s litigation analyst, Mr. Huff. On cross-examination, he testified he was without knowledge as to whether a Bank representative went to the property to speak to the Borrowers regarding the default. On re-direct, however, he said no attempt was made to have a face-to-face meeting with the Borrowers because that HUD requirement applied only when a Bank servicing branch is within 200 miles of the property, which is not the case here. He expressed his confidence “that we have followed all servicing guidelines and procedures pursuant to this foreclosure action.” This was the extent of testimony about compliance with HUD regulations.

During closing arguments, the Borrowers raised for the first time the Bank’s argument that HUD regulations did not apply, arguing that non-compliance with HUD regulations is a defense. The Bank countered that the “face-to-face meeting” did not apply because no branch existed within 200 miles of thé property. The trial court ruled in favor of the Bank and entered a final judgment of foreclosure, prompting this appeal.

II.

This case turns on whether a HUD regulation, the face-to-face counseling rule, is a condition precedent to foreclosure, and if so, whether compliance with those regulations was properly and timely pled. We hold that it is a condition precedent, but that the Borrowers failed to timely raise it as an affirmative defense; moreover, even if it had been raised timely, the evidence supports that the Bank wasn’t required to comply because the property was more than 200 miles from the Bank and its servicing branches.

We begin with the principle that “[provisions of a . contract will only be considered conditions precedent or subsequent where the express wording of the disputed provision conditions formation of a contract and or performance of the contract on the completion of the conditions.” Gunderson v. Sch. Dist. of Hillsborough Cnty., 937 So.2d 777, 779 (Fla. 1st DCA 2006). Here, the note says it “does not authorize acceleration when hot permitted by HUD regulations,” And the mortgage expressly states twice that the Bank’s rights to declare a default, accelerate payments, and foreclose are limited by the HUD regulations; this is express wording that conditions performance of the contract on the Bank’s satisfaction of the HUD regulations. In other words, the Bank’s right to foreclose on the mortgage does not arise unless and until these conditions have been satisfied, making the HUD regulation at issue a condition precedent.

■ The Bank claims that HUD regulations are mere guidelines, citing older cases such as Cross v. Federal National Mortgage Association, 359 So.2d 464, 465 (Fla. 4th DCA 1978) (“It seems clear now that the HUD guidelines are not mandatory procedures constituting conditions precedent to foreclosure.”). Cases such as Cross have less force where HUD guidelines have been codified, making them mandatory versus merely persuasive guidelines.

A special pleading requirement exists for conditions precedent, which requires that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been'performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity,” Fla. R. Civ. P. 1.120. The Bank failed to plead compliance with conditions precedent, even generally, but the Borrowers neither objected to nor timely raised non-compliance as an affirmative defense (bringing it up in closing argument). A “defending party’s assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1096 (Fla. 2010); see also Deutsche Bank Nat’l Trust Co. v. Quinion, 198 So.3d 701, 703 (Fla. 2d DCA 2016) (explaining that when the bank alleges compliance with conditions precedent, “the burden fell to the [borrowers] to first frame that issue [of noncompliance], specifically and with particularity, in their answer”); see Laws v. Wells Fargo Bank, N.A., 159 So.3d 918, 919 (Fla. 1st DCA 2015) (“Because the note contains language specifically and expressly incorporating HUD regulations that require a written notice of acceleration, Laws was entitled to raise failure to comply with these regulations as a valid defense to foreclosure.”). The Borrowers did not raise the Bank’s noncompliance in their answer, affirmative defenses, or at any time prior to closing argument, which amounts to a waiver and failure to preserve the issue. See Bank of Am., N.A. v. Asbury, 165 So.3d 808, 809 (Fla. 2d DCA 2015) (failure to raise non-compliance with condition precedent until trial barred it as a defense). Even if the issue was timely raised in the trial court, the Bank presented un-rebutted testimony that it was not required to comply with the face-to-face meeting requirement of 24 C.F.R. § 203.604.

AFFIRMED.

ROBERTS, C.J., ROWE, and MAKAR, JJ„ CONCUR.


text:
    Jose Ignacio LOPEZ, Sr., etc., Petitioner, v. Maria Mercedes FLORES, etc., Respondent.
    No. 3D16-2299
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017.

      Gordon & Rees Scully Mansukhani, and David M. Gersten, Joseph A. Sacher and Christopher A. Noel, for petitioner..
    Kluger, Kaplan, Silverman, Katzen & Levine, R.L., and Alan J. Kluger and Jamie L. Zuckerman; Samson Appellate Law, and Daniel M. Samson, for respondent.
    Before SUAREZ, C.J., and WELLS and SCALES, JJ.
   PER CURIAM.

Petitioners, the children of the now deceased Jose Ignacio Lopez, Sr. (the “Children”), seek certiorari review of a trial court order denying the Children’s motion to disqualify the law firm of Kluger, Kap-lan, Silverman, Katzen & Levine, P.L. (the “Kluger Firm”) from representing respondent Maria Mercedes Flores. Because the unrebutted record establishes that, prior to Flores hiring the Kluger Firm, the Children’s attorney shared confidential information with the Kluger Firm, we quash the trial court’s order and disqualify the Kluger Firm from representing Flores in these proceedings.

I. Facts

In February of 2016, Lopez’s Children, as plenary co-guardians of Lopez, filed a verified petition to annul the marriage of 83-year-old Lopez and 54-year-old Flores. The Children’s annulment petition asserts that Flores secretly, retained counsel to draft a prenuptial agreement and then, on February 28, 2014, Flores married'Lopez without the Children’s knowledge. The Children also allege that Lopez’s health rapidly declined under Flores’s care. Flores denies the Children’s claims and asserts that the Children have engaged in a fraudulent scheme to take over Lopez’s affairs for their own financial gain.

On August 31, 2016, the Kluger Firm appeared as Flores’s attorney in the annulment action. Two days later, the Children’s attorney sent a letter via email to the Kluger Firm informing the. Kluger Firm of “numerous communications” that had occurred. between the Children’s attorney and a Kluger Firm attorney in which “confidential information and strategy protected by the attorney/client and work product privileges”- were disclosed. The letter goes on to state that the Kluger Firm “is clearly prohibited from representing Mercy Flores in this matter.” The letter asks that the Kluger Firm confirm with its attorney that confidential information had been shared, precluding the Kluger Firm’s representation of Flores. The Kluger Firm responded immediately by denying that any confidential information had been disclosed. The Kluger Firm’s email contained the following invitation: “File your motion. We will seek fees.”

Accepting the Kluger Firm’s invitation, the Children filed a motion in the trial court to disqualify the Kluger Firm. The Children asserted that during conversations between the Children’s attorney and the Kluger Firm attorney, the Kluger Firm was provided with confidential, privileged information that could cause a disadvantage to the Children.

In September of 2016, the trial court held an evidentiary hearing on the Children’s disqualification motion. The only witness to present testimony was the Children’s attorney. He testified that he was retained by the Children to represent them in November of 2015. He testified that, in December of 2015, he began speaking with his longtime friend, the Kluger Firm attorney, about serving as the Children’s co-counsel in the proceeding. He testified that he revealed to the Kluger Firm attorney “facts, strategy that I was intending to employ, and giving him a road map of where I thought he would fit into the case to help me out as co-counsel.” The Children’s attorney further testified that he disclosed facts to the Kluger Firm attorney that are currently not available to the public. This testimony was unrebutted.

The trial court denied the disqualification motion. In the denial order the trial court expressly notes that, according to the unrebutted testimony of the hearing’s only witness, “confidential matters and case strategy had been discussed.” Nonetheless, the trial court held that such unre-butted evidence was “insufficient” to establish a prima facie ease for disqualification. The trial court held that, because the testimony “offered no proof that any specific confidential information was divulged,” the trial court was unable to make the determination that confidential information had been divulged or that the Kluger Firm obtained any tactical advantage as a result of the discussions between the two lawyers.

Not only did the trial court deny the Children’s disqualification motion, it also denied the Children’s motion to stay the trial court’s order to allow for certiorari rqview in this Court. In denying the Children’s stay request, however, the trial court ordered the Kluger Firm attorney— with whom the allegedly confidential information had been shared—not to participate in the case in any way and not to discuss the case with anyone at the Kluger Firm.

The Children sought certiorari review of the trial'court’s disqualification order. We entered an order staying the trial court’s order and temporarily prohibited the Klu-ger Firm from participating in the proceedings below until we could hear the Children’s certiorari petition on the merits.

II. Standard of Review

Initially, we note the general principle that disqualification of a party’s chosen lawyer is a drastic remedy, only to be employed in very limited circumstances. Gutierrez v. Rubio, 126 So.3d 320, 321 (Fla. 3d DCA 2013). In order to grant the Children relief, we must find that the trial court departed from the essential requirements of law resulting in irreparable injury to the Children. State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, Inc., 74 So.3d 105, 108 (Fla. 3d DCA 2011). Specifically, in order to prevail, the Children must demonstrate that the trial court erred in its determination that there was no proof that confidential information was actually disclosed. Gutierrez, 126 So.3d at 321-22.

III. Analysis

Rule 4-1.18 of Florida’s Rules of Professional Responsibility .governs conflicts of interest regarding an attorney’s prospective clients. In relevant part, rule 4-1.18(c) reads as follows:

A lawyer ... may not represent a client with interests materially adverse to those of a prospective client in the same ... matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter .... If a lawyer is disqualified from representation under this rule, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter ....

Fla. Bar R. 4-1.18(c).

Because it is undisputed both that the Children’s interests are “materially adverse” to those of Flores, and that information was shared by the Children’s attorney with the Kluger' Firm attorney, the relevant inquiry is whether the Kluger Firm attorney received information from the Children’s attorney that could be used to the disadvantage of the Children; The only evidence before the trial court on this critical issue was that the Children’s attorney had indeed communicated confidential information and ease strategy with the Kluger Firm attorney. Presumably recognizing this, the trial court purported to enjoin the Kluger Firm attorney from any participation in the case and from having any discussions about the case with his Kluger Firm law partners. The trial court’s sequestration of the Kluger Firm attorney from other Kluger Firm members is simply irreconcilable with- the trial court’s conclusion that no confidential information had been shared with the Klu-ger Firm attorney. Sequestration would not be necessary had no confidential information been disclosed.

While we understand the trial court’s concern that the Children’s attorney’s testimony, albeit unrebutted, was bereft of detail and somewhat conclusory, we note that a disqualification standard requiring the movant’s attorney to testify, in open court, as to the specifics of any shared confidential communications would only exacerbate disclosure issues. Thus, we decline Flores’s invitation . to recede from those cases holding that there is an “irrefutable presumption that confidences were disclosed” once it is shown that an attorney-client relationship existed. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla. 1991); Metcalf v. Metcalf, 785 So.2d 747, 749 (Fla. 5th DCA 2001); Garner v. Somberg, 672 So.2d 852, 854 (Fla. 3d DCA 1996). We further decline to recede from those cases employing that irrefutable presumption even though the attorney with whom presumed confidences were disclosed is not subsequently employed. Metcalf, 785 So.2d at 749-50; Garner, 672 So.2d at 854; Dean v. Dean, 607 So.2d 494, 497 (Fla. 4th DCA 1992).

In this case, the record plainly and irrefutably demonstrates that confidential information was shared .with an attorney of the Kluger Firm. Because that attorney of the Kluger Firm was disqualified from representing Flores, no • attorney of the Kluger Firm can represent Flores in this case. Fla. Bar R. 4-1.18(c).

IV. Conclusion

-i

Therefore, we grant the petition, quash the trial court’s disqualification order, and remand for entry of an order disqualifying the Kluger Firm from representing Flores in this matter or. any substantially related matter.

Petition granted; order quashed,

      . We reject Flores’s suggestion, without citation to authority, that the Florida Supreme Court’s 2006 amendments to rule 4-1.18 entirely abrogated the relevant holdings in K.A.W., Metcalf, and Garner. In our view, rule 4-1.18 merely recognizes that, except in those circumstances outlined in rule 4-1.18(d)—which are not applicable to this case—a lawyer's confidentiality obligations apply to prospective clients.


author: SUAREZ, C.J.

text:
    VILLAGE OF PALMETTO BAY, Florida, Appellant, v. ALEXANDER SCHOOL, INC., Appellee.
    No. 3D16-1201
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017

      Lehtinen Schultz Riedi Catalano de la Fuente, PLLC and Dexter W. Lehtinen and Claudio Riedi, for appellant.
    Bilzin Sumberg Baena Price & Axelrod LLP and José M. Ferrer and Yasmin Fernandez-Acuna, for appellee.
    Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
   SUAREZ, C.J.

The Village of Palmetto Bay (the “Village”) appeals a final summary judgment entered in favor of Alexander Schools, Inc. (“Alexander School”) finding Section 10.1 of the Village’s Charter to be unconstitutional. We reverse the trial court’s ruling. We find Section 10.1 is not arbitrary or ambiguous and the record shows that Alexander School failed to meet the high burden required to show that the ordinance is unconstitutional.

Alexander School owns property within the Village on which it operates a private Montessori school. In 2013 Alexander School wanted to increase the enrollment at the school and sought permission from the Village to do so. Consistent with Section 10.1 of its Charter, the Village advised the School that in a public election of the registered voters within the Village, 75% of the voters within a radius of 2000 feet from the school would have to approve the increase in enrollment before the Village would act on the application and hold a public hearing before the Village Council. Ip an election that occurred in May 2013, Alexander School failed to obtain approval of 75% of such voters. Therefore, the issue never made its way to a hearing before the Village Council. Alexander School made another attempt to obtain voter approval in April 2015, but again fell short of the approval of 75% of voters within the 2000 foot radius of its property.

Alexander School then filed this action challenging the constitutionality of Section 10.1 of the Charter. Alexander School claimed the ordinance was unconstitutional because Section 10.1 of the Village Charter, a) deprives it of due process because the Village is required to exercise its quasi-judicial function of zoning regulation through public hearing at which fact-based evidence can be adduced, b) reduces the land regulation function to a popularity contest and constitutes an improper delegation of the Village’s land-use function to a small subset of voters, e) violates the Village’s Citizens’ Bill of Rights which purports to permit any citizen the right to present issues to the Village Council, d) deprives private schools of due process because the requirements of Section 10.1 are imposed solely upon a limited group of citizens (private schools) who seek only to make lawful use of their property, e) is arbitrary and capricious because it has no rational relationship to the public safety of the surrounding community, and, f) imposes impossibly high limits to obtain voter approval.

After engaging in some discovery, Alexander School moved for summary judgment and the trial court granted its motion finding Section 10.1 unconstitutional “because it is arbitrary and unreasonable, and has no relation to the public safety, health, morals, comfort or general welfare of the surrounding community.” The trial court also found Section 10.1 unconstitutional in that it “deprives [Alexander School] of its constitutional right to be heard.” The trial court accepted the argument that because the section does not allow Alexander School to present its application directly to the commission for a public hearing without first having a public vote, the school was deprived due process. We find the trial court erred on both grounds.

Constitutional challenges to an ordinance are legal questions reviewed de novo by the appellate courts. Caribbean Conservation Corp. v. Fla. Fish and Wildlife Conservation Comm’n, 838 So.2d 492 (Fla. 2003). As stated by this court in Kuvin v. City of Coral Gables, 62 So.3d 625, 632 (Fla. 3d DCA 2010) “Municipal zoning ordinances, which are legislative enactments, are presumed to be valid and constitutional. ... [Z]oning restrictions must be upheld unless they bear no substantial relation to legitimate societal policies or it can be shown that the regulations are a mere arbitrary exercise of the municipality’s police power.” (internal quotations and citations omitted). Moreover, “the burden is upon him who attacks such regulation to carry the extraordinary burden of both alleging and proving that it is unreasonable and bears no substantial relation to public health, safety, morals or general welfare.” Id. emphasis added, internal citations omitted. See also, Fox v. Town of Bay Harbor Islands, 450 So.2d 559, 560 (Fla. 3d DCA 1984).

The record in this case shows that Alexander School failed to carry its “extraordinary burden” of proving that Section 10.1 is unreasonable and bears no substantial relation to public health, safety, morals or general welfare. In support of its Motion for Summary Judgment Alexander School relied upon one answer to one Interrogatory provided by the Village. Alexander School also argued that because Section 10.1 applies only to private schools, but not to allegedly similar places of “public assembly” such as public or charter schools, theaters and houses of worship it imposes impermissibly disparate treatment on private schools. The problem here is that Alexander School made no evidentiary showing that such locations or entities bear any similarity to its private Montessori school in-terms of usage or that-they have or potentially have similar impacts upon public safety. Rather, Alexander School appears to simply have presumed such semblance to be true. In addition, Alexander School made no attempt to provide any evidentiary showing as to what effect its proposed enrollment increase might have on the public health or safety in the form of increased traffic or other such potential impacts. Nor did Alexander School attempt to make any showing of the absence of a rational relationship between the requirements of Section 10,1 of. the Village Charter and public health or safety. Alexander School argues that once it made a showing of allegedly disparate treatment, the burden shifted to the Village to demonstrate a material issue of fact as to that issue. We do not agree with that argument given the inadequate evidence Alexander School provided regarding any comparability between itself and the other types of entities it attempted to compare itself to.

We conclude that Alexander School fell far short of meeting its “extraordinary burden” of showing that Section 10.1 is “unreasonable and bears no substantial relation to public health, safety, morals -or general welfare.” Kuvin, supra, 62 So.3d at 632. Consequently, we reverse the trial court’s finding of unconstitutionality on that ground.

We also reverse the trial court’s finding that Section 10.1 of the Charter deprived Alexander School of its constitutional right to be heard (due process). Charter provisions such as Section 10.1 that allow some decisions to be made by voter referendum do not violate due process. rights. Florida Land Co. v. City of Winter Springs, 427 So.2d 170, 172-74 (Fla. 1983). Likewise pre-conditions to an application for zoning relief do not deprive a party of due process. Id., Bd. of Cnty. Comm’rs of Brevard County, Florida v. Snyder, 627 So.2d 469 (Fla. 1993).

Reversed and remanded.

      . Section 10,1 states: "The number of enrolled students of any private school within the Village of Palmetto Bay shall not be increased without prior approval by a fourth-fifths (4/5) vote of the Village Council. No such approval shall be adopted by the Village Council until the request to increase enrolled students is submitted to a vote of Village of Palmetto Bay electors living within a 2,000 foot radius of the applicant school property by referendum, and 75 percent of the electors voting approve of such' increase in enrolled students. A list of Village of Palmetto Bay registered voters within the 2,000-foot radius of the school property shall be prepared by the Village Clerk. Any elector who resides on property or a portion of property ihat is within the 2,000-foot radius of the school seeking to increase the number of its enrolled students shall be eligible to vote in the election required under this provision. The costs of the election (including reimbursement to the city for all costs relating to the preparation of the list of eligible electors) required under this provision shall be borne by. the school seeking to increase the number of its enrolled students.”

      . [INTERROGATORY] Please explain specifically and with particularity whether an increase in enrollment by 59 students would affect the public health, safety, moral or general welfare of the Village's citizenry any differently if it was requested by a public school.
      [ANSWER] Assuming hypothetically, that the public school in [the] interrogatory [] would be located at the same location and have the same physical layout and the same number of existing students as the hypothetical private school; No. It would not. However, a municipality cannot regulate public schools the same way it can regulate private schools.

      . Moreover, Alexander School does not appear to dispute that the Village has no jurisdiction over public schools, so its attempt to analogize the Village's reaction to an increase in enrollment of a hypothetical public school is inapt.