text:
    A.V., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-175
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2017

      Howard L. “Rex” Dimmig, II, Public Defender, and Brooke Elvington, Assistant Public Defender, Bartow, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

A.V. appeals disposition orders in seven circuit court cases, four of which are violations of probation. He contends that the trial court erred by deviating from the commitment restrictiveness level recommended by the Department of Juvenile Justice (DJJ) in committing him to a high-risk program rather than to a nonsecure program. We affirm the disposition orders as to the adjudications of delinquency. We reverse the commitment to a high-risk program because the trial court did not make sufficient findings to depart from the D JJ’s recommendation, and we remand for a new disposition hearing.

A.V.’s dispositions are for six misdemeanors, two third-degree felonies, and three second-degree felonies. The probation cases all involved misdemeanors. The felonies in the new cases are robbery by sudden snatching, grand theft, burglary of an unoccupied dwelling, burglary of an occupied dwelling, and dealing in stolen property. The robbery by sudden snatching involved taking a cellphone from a schoolmate’s hand. One burglary involved stealing two watches, and the other burglary involved stealing and then selling an X-box game system.

The DJJ’s predisposition report (PDR) recommended that A.V. be committed to a nonsecure program to be followed by probation. The PDR indicates that in addition to A.V.’s background, the DJJ took into consideration the nature of the offenses pending before the court and that A.V. committed felony offenses while on probation. A.V. had never been previously committed, and the DJJ recognized that probation had been ineffective, despite available services. The DJJ also recognized that A.V. was at high risk to reof-fend and the resulting public safety concern. Thus, the DJJ recommended to commit A.V. for the first time and recommended a nonsecure residential program to be followed by probation with enhanced treatment services and programs.

At the disposition hearing, the State asserted that A.V. had other pending felonies and that a nonsecure program was “possibly inappropriate” and that “possibly a high-risk security program might be appropriate.” A detective testified for the State and requested that A.V. be committed for as long as possible to protect the public and their property.

The trial court asked the probation officer to explain the difference between a nonsecure program and a moderate-risk program. The probation officer informed the court that there was no longer a moderate-risk level and that the next level up was high risk. The officer explained that the high-risk program lasts for about one and a half years. The average nonsecure program lasts six to nine months but can extend to one year depending on the child’s behavior. In addition, the high-risk pi’ogram is more secure. The high-risk program offered more services only by virtue of the length of the program. The officer did not explain the nature of the services or how they could benefit A.V.

The trial court indicated that probation had been a total failure, and the State argued that the child had additional felony counts not before the court. The probation officer explained that it could not consider pending felony offenses at the staffing, and thus its recommendation was based solely upon the adjudications before the court. The officer emphasized that although additional adjudications might have altered the recommendation, the nonsecure program was the “best fit” for the current charges before the court.

The trial court stated that it was entitled to disagree with the DJJ’s recommendation and committed A.V. to a high-risk program. A.V.’s counsel objected to a deviation and asserted that the DJJ “did a staffing and they’ve determined that he can obtain services and that a [nonsecure] residential placement is the least restrictive means possible in order for him to get those services while maintaining the protection of the public at the same time.”

In deviating from the DJJ’s recommendation, the trial court expressly stated that it was not considering the pending charges and that A.V. was “innocent of those charges as we sit here today.” The trial court then stated that it would “write a very detailed order. So you can look at it and the Second District can look at it.” The trial court stated that the order would be ready that day or the next day. No such order appears in our record or is listed in the case docket.

The trial court failed to make sufficient findings to support its deviation from the DJJ’s recommendation of commitment to a nonsecure program as required by the Florida Supreme Court’s decision in E.A.R. v. State, 4 So.3d 614 (Fla. 2009). In order to support a departure disposition the trial court must:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile—in the least restrictive setting—and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 638. To support a deviation “from the DJJ’s recommendation, the trial court must identify ‘significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.’ ” J.H. v. State, 100 So.3d 1236, 1238 (Fla. 2d DCA 2012) (quoting E.A.R., 4 So.3d at 638).

Our record shows that the DJJ considered the same factors that the trial court considered, and the trial court did not point to any information that the DJJ overlooked or misconstrued. The trial court appeared to favor the high-risk program because it was longer and, only by virtue of its length, could provide more services. But there was no mention of what services were offered and whether they would be beneficial to A.V. The trial court failed to meet the standard of explaining “why its preferred restrictiveness level, rather than the DJJ’s, provides the juvenile with the most appropriate services in the least restrictive setting.” Id. (quoting S.G. v. State, 26 So.3d 725, 726 (Fla. 2d DCA 2010)).

In fact, the trial court seemed to recognize that its oral findings at the disposition hearing were insufficient to support a deviation because the trial court stated that it would enter a detailed order. Because we lack such an order, the record does not support the trial court’s deviation in committing A.V. to a high-risk program. Therefore, we affirm the disposition orders as to the adjudications of delinquency but reverse the commitment to a high-risk program. We remand for a new disposition hearing and direct that if the trial court again departs from the DJJ’s recommendation the trial court must make findings to satisfy the requirements of E.A.R. gee J.H., 100 So.3d at 1238. If the trial court cannot make such findings, the court must order commitment as the DJJ recommends. See id.

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee FOR FREMONT HOME LOAN TRUST 2005-B, MORTGAGE-BACKED CERTIFICATES, SERIES 2005-B, Appellant, v. Joseph T. BUSET a/k/a Joseph Thomas Buset and Margaret Buset a/k/a Margaret Jean Buset, et al., Appellees.
    No. 3D16-1383
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      Greenberg Traurig, and Kimberly S. Mello and Jonathan S. Tannen (Tampa), for appellant.
    Jacobs Keeley, PLLC, and Bruce Jacobs and Court E. Keeley, Miami, for appellee Joseph T. Buset.
    Before LAGOA, EMAS, and LOGUE, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellant, HSBC Bank USA, National Association, as Trustee for Freemont Home Loan Trust 2005-B, Mortgage-Backed Certificates Series 2005-B (the “Trustee”), seeks an appeal from an Order Granting Defendant’s Motion for Involuntary Dismissal for Unclean Hands and Lack of Substantial Competent Evidence and Order to Show Cause Why [Trustee] Should Not Be Sanctioned for Fraud Upon the Court Under the Court’s Inherent Contempt Powers (the “Order”). The Order was entered following a nonjury trial.

Appellee, Joseph Buset (the “Appellee”), moves to dismiss the appeal as premature because the trial court “reserve[d] jurisdiction to award prevailing party attorney’s fees and to impose sanctions against [Trustee] under the inherent contempt powers of the court.” In response to the motion to dismiss, the Trustee advised this Court that the Trustee only seeks appellate review of the trial court’s involuntary dismissal of the Trustee’s mortgage foreclosure action against Appellee following a non-jury trial. The Trustee does not seek appellate review of either the Order’s reservation of jurisdiction to award prevailing party attorney fees or the Order’s reservation of jurisdiction to impose sanctions.

With regard to the portion of the Order granting Appellee’s motion for involuntary dismissal, the Order contains language that enters judgment. Specifically, the trial court’s Order “grants Defendants’ Motion for Involuntary Dismissal and enters judgment in favor of the Defendants who shall go forth without day.” (emphasis added).

It is well established that “[f]or an order to be final, it must constitute an entry of a judgment [as] it is the final judgment that is appealable, not an order simply granting a motion.” Ball v. Genesis Outsourcing Solutions, LLC, 174 So.3d 498, 499 (Fla. 3d DCA 2015). See also Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146, 149 (Fla. 3d DCA 2002) (“An order granting only summary judgment merely establishes an entitlement to judgment, but is not itself a judgment.”). As this portion of the Order contains language that enters judgment and contains the traditional words of finality, we find that this portion of the Order granting Appellee’s motion for involuntary dismissal is appealable as a final order. See Ventures Tr. 2013-I-H-R v. Asset Acquisitions and Holdings Tr., 202 So.3d 939, 940 n.1 (Fla. 2d DCA 2016) (finding that order involuntarily dismissing an action following a jury trial is a final, appealable order); cf. PennyMac Corp. v. Frost, 2017 WL 1013192 at *1 (Fla. 4th DCA Mar. 15, 2017) (reversing final order granting an involuntary dismissal of foreclosure action); Nationstar Mortg., LLC v. U.N. Kee Wing, 210 So.3d 216, 217 (Fla. 5th DCA 2017) (same); Deutsche Bank Nat’l Tr. Co. v. Baker, 199 So.3d 967, 968 (Fla. 4th DCA 2016) (same).

Although not dispositive of this Court’s decision, we note that the trial court’s involuntary dismissal of the complaint after conclusion of the nonjury trial was “not in keeping with the ‘best practice’ in nonjury trials” where the trial court “could have just as easily rendered a final judgment on the merits.” Deutsche Bank Nat’l Tr. Co. v. Kummer, 195 So.3d 1173, 1175 n.2 (Fla. 2d DCA 2016) (citing Advercolor Press, Inc. v. Graphic Sales Innovators, Inc., 307 So.2d 899, 900 (Fla. 3d DCA 1975)). Indeed, “it would have been preferable for the [trial] court to have rendered a final judgment at the conclusion of this nonjury trial, rather than an order of involuntary dismissal.” Ventures Tr. 2013-I-H-R, 202 So.3d at 940 n.1.

As we have determined that this Court possesses jurisdiction to review the portion of the Order that constitutes a final, ap-pealable order—the involuntary dismissal—we turn to Appellee’s argument that the Order’s reservation of “jurisdiction to award prevailing party attorney’s fees and to impose sanctions against [Trustee] under the inherent contempt powers of the court” undermines the Order’s finality ■with respect to the merits determination involving the granting of an involuntary dismissal following a nonjury trial. We find Appellee’s argument without merit.

It is well established that a trial court’s reservation of jurisdiction to award fees, costs, or sanctions does not affect the finality of a judgment. See Nathanson v. Rishyko, 140 So.3d 1054, 1055 (Fla. 4th DCA 2014) (affirming trial court’s final judgment denying counter-petition notwithstanding trial court’s reservation of jurisdiction to impose sanctions for civil contempt); Morand v. Stoneburner, 516 So.2d 270, 271 (Fla. 5th DCA 1987) (finding that reservation of jurisdiction to award attorney’s fees and costs does not affect finality of judgment and appeal filed more than 30 days following rendition of final judgment was untimely); Prudential-Bache Securities, Inc. v. Bandes, 510 So.2d 315, 316 (Fla. 2d DCA 1987) (holding that trial court’s order confirming arbitrator’s award was a final appealable order despite trial court reserving jurisdiction to determine taxable costs and prejudgment interest; “the reservation of jurisdiction to award costs does not detract from an order’s finality”); Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Kellin, 391 So.2d 305, 306 (Fla. 4th DCA 1980) (finding that judgment “labelled ‘partial’ because of a reservation of jurisdiction to award fees and costs at a later time .... does not affect the finality of the judgment for purposes of appeal”).

A trial court’s reservation of jurisdiction to award prevailing party attorney’s fees or impose sanctions are collateral matters to the main dispute, and do not affect the finality of a judgment. Indeed, if the trial court enters either a post-judgment order awarding attorney’s fees or imposing sanctions, that order is itself an appealable final order. See Morand, 516 So.2d at 271. As such, if the trial court were to impose sanctions or award attorney’s fees, the Trustee may separately appeal that subsequent order. See Mendoza v. Mendoza, 842 So.2d 1020, 1020 (Fla. 5th DCA 2003) (concluding that “a subsequent judgment awarding fees and costs is itself a final appealable order”); Nathanson, 140 So.3d at 1055 (finding that contempt order was not final and dismissing appeal without prejudice as to that issue; appellant had right to appeal contempt issue once trial court had determined sanctions). To avoid any confusion, any post-judgment order awarding fees would not be final or ripe for appellate review until both entitlement and amount have been determined. See Kling Corp. v. Hola Networks Corp., 127 So.3d 833 (Fla. 3d DCA 2013).

Accordingly, as the Trustee appeals only from the portion of the Order granting Appellee’s motion for involuntary dismissal, and that portion of the Order contains language that enters judgment, we deny Appellee’s motion to dismiss for lack of jurisdiction.

Motion denied.


author: EMAS, J.

text:
    TRUMP ENDEAVOR 12 LLC, Appellant, v. FERNICH, INC. d/b/a The Paint Spot, Appellee.
    Nos. 3D16-1065 & 3D16-1865
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      Bruce S. Rogow and Tara A. Campion (Fort Lauderdale), for appellant.
    Taylor Espino Vega & Touron, Daniel R. Vega and Vanessa A. Van Cleaf, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   EMAS, J.

In these consolidated appeals, appellant Trump Endeavor 12, LLC (“Trump”) seeks review of two trial court orders: (1) a final judgment of foreclosure of a construction lien by appellee, Fernich, Inc., d/b/a The Paint Spot (“Paint Spot”); and (2) a final judgment awarding attorney’s fees and costs to Paint Spot. We affirm, holding that competent substantial evidence supports the trial court’s determination that Paint Spot substantially complied with the statutory lien provisions in section 713.06(2), Florida Statutes (2013), and that Trump failed to establish it was adversely affected by any omission or error in the Notice to Owner (“NTO”).

BACKGROUND AND PROCEEDINGS BELOW

On October 21, 2014, Paint Spot recorded a Claim of Lien against the Trump National Doral Miami, owned by Trump. When Trump failed to pay $32,535.87 owed to Paint Spot for paint and related materials, Paint Spot filed a complaint to foreclose its Claim of Lien. Trump asserted that the Claim of Lien was invalid because it identified the wrong contractor on the project and because Paint Spot failed to comply with the provisions of section 713.06(2)(a).

The evidence and testimony at trial, taken in a light most favorable to upholding the judgment on appeal, reveals the following:

The project at the Trump National Doral Miami consisted of two parts: renovations to the property’s ten lodges (“the Lodge Project”) and renovations to the clubhouse (“the Clubhouse Project”). Both the Lodge Project and the Clubhouse Project share the same property address: 4400 NW 87 Avenue, Miami, Florida.

Trump hired a different general contractor for each of the two projects: Straticon, LLC for the Lodge Project, and T&G Constructors for the Clubhouse Project. Stra-ticon hired M&P Reynolds, Inc. (“M&P”) to furnish paint and labor for the Lodge Project, which in turn contracted with Paint Spot to supply paint and related materials. Paint - Spot negotiated pricing with M&P, which M&P submitted to Stra-ticon, Trump then approved M&P’s price quotations. Trump recorded multiple Notices of Commencement (“NOC”) for the Lodge Project, identifying Straticon as the general contractor for that project, and later recorded a NOC naming T&G as the general contractor for the Clubhouse Project. All the NOCs disclosed the same address for both projects: 4400 NW 87 Avenue, Miami, Florida.

Prior to supplying materials to the Lodge Project, Paint Spot’s president, Juan Carlos Enriquez, visited the project site for the purpose of obtaining a copy of the NOC, so that Paint Spot could use it to prepare its statutory NTO. Enriquez made it a habit to obtain the NOC from the owner of the project, rather than the general contractor or subcontractor, to ensure that his NTO contained the correct information. When Enriquez asked for the NOC from Trump’s Director of Construction, Frank Sanzo, Sanzo mistakenly handed Enriquez the T&G NOC instead of the Straticon NOC. At this point, Enriquez was unaware that there was a different general contractor for each of the two projects.

Using this T&G NOC, Paint Spot prepared and timely served its NTO on Trump and on T&G by certified mail in November 2013. Paint Spot began supplying materials to the Lodge Project on November 8, 2013.

On November 21, 2013, Straticon’s project manager, Jamie Gram, sent an email to Claudio Bravo, a Benjamin Moore representative and Paint Spot’s paint distributor. In this email, Straticon’s project manager advised Bravo that, after reviewing Paint Spot’s NTO, he determined that it had incorrectly been filed under the T&G NOC, and that the NTO needed to be corrected and addressed to Straticon as the general contractor. Attached to this email was a copy of Paint Spot’s NTO.

Bravo forwarded Straticon’s email to Enriquez and, two days later, Enriquez responded that it was being taken care of. However, due to oversight, Enriquez never prepared or served a corrected NTO on Straticon. Nevertheless, there can be no doubt that, as of November 21, 2013 (at the latest), Straticon was in possession, and had actual knowledge, of the NTO, as it was Straticon’s own project manager who reviewed the NTO, discovered the discrepancy, and sent the email alerting Benjamin Moore and Paint Spot of the error.

Notwithstanding the error on the face of the NTO, Straticon knew that Paint Spot was suppling materials to the Lodge Project and knew that Paint Spot was M&P’s only paint supplier for the project. Paint Spot attended meetings with Straticon regarding the Lodge Project, and Paint Spot submitted signed partial waivers of lien to M&P as a precondition to receiving payment for the paint materials. Straticon would not pay M&P without M&P submitting partial waivers from its suppliers.

Paint Spot continued supplying materials to the Lodge Project through September of 2014, at which time M&P stopped working on the project because it was not being paid by Straticon. At the time M&P left the Lodge Project, $32,535.87 worth of paint and supplies delivered by Paint Spot, which had not been paid for, remained at the Lodge Project. Trump used those materials to finish the painting work, but Paint Spot was never paid for those items, resulting in the instant action to foreclose the lien.

After a non-jury trial, the trial court determined, inter alia, that (1) Trump and Straticon had actual knowledge of Paint Spot’s NTO; (2) Trump and Straticon had actual knowledge that Paint Spot was supplying materials to Straticon (through M&P) for the Lodge Project; (3) Trump was estopped from invalidating Paint Spot’s NTO because Trump caused Paint Spot to rely to its detriment on the T&G NOC; and (4) Paint Spot substantially complied with the statutory requirements of section 713.06 and therefore its NTO was valid and its lien enforceable. The trial court thereafter entered final judgment in favor of Paint Spot, and subsequently entered final judgment awarding attorney’s fees to Paint Spot pursuant to section 713.29, Florida Statutes (2013). These consolidated appeals followed.

Trump asserts that strict compliance with 713.06(2)(a) was required of Paint Spot, and that the trial court erred in enforcing the lien because Paint Spot failed to strictly comply with that provision, despite having knowledge, prior to the statutory deadline, that the NTO was defective. Trump contends that neither detrimental reliance nor substantial compliance applies here to validate, or permit enforcement of, the lien.

To the extent that we are reviewing the trial court’s factual determinations, our standard of review is whether there is competent, substantial evidence to support the judgment. James P. Driscoll, Inc. v. Gould, 521 So.2d 301 (Fla. 3d DCA 1988). To the extent that we are reviewing the trial court’s application of the law to its factual determinations, our standard of review is de novo. Stock Bldg. Supply of Fla. Inc. v. Soares Da Costa Constr., 76 So.3d 313, 316 (Fla 3d DCA 2011).

ANALYSIS

The Construction Lien Law

Chapter 713 of the Florida Statutes, entitled “Construction Lien Law,” establishes a statutory framework for establishment and enforcement of construction liens by subcontractors, laborers and ma-terialmen. “[T]he fundamental purpose of the Construction Lien Law is to protect those who have provided labor and materials for the improvement of real property.” WMS Constr., Inc. v. Palm Springs Mile Assoc., Ltd., 762 So.2d 973, 974-75 (Fla. 3d DCA 2000). “It is to be construed favorably so as to give laborers and suppliers the greatest protection compatible with justice and equity.” Id. at 975. “The mechanics lien law was enacted to protect the interests of subcontractors and material-men who remain unpaid while the owner pays the contractor directly.” Hardrives Co. v. Tri-County Concrete Prods., Inc., 489 So.2d 1211, 1212 (Fla. 4th DCA 1986).

For our purposes, the relevant provisions are found in section 713.06, Florida Statutes (2018).

Section 713.06(1) provides:

A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, has a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract and for any unpaid finance charges due under the lienor’s contract.

Section 713.06(2)(a) provides:

All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, must serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. A sub-subcontractor or a materialman to a subcontractor must serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materi-alman to a sub-subcontractor must serve a copy of the notice to owner on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien. A materialman to a sub-subcontractor shall serve the notice to owner on the subcontractor if the materialman knows the name and address of the subcontractor. The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials, but, in any event, before the date of the owner’s disbursement of the final payment after the contractor has furnished the affidavit under sub-paragraph (3)(d)l. The notice must be served regardless of the method of payments by the owner, whether proper or improper, and does not give to the lienor serving the notice any priority over other lienors in the same category; and the failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person. The serving of the notice does not dispense with recording the claim of lien. The notice is not a lien, cloud, or encumbrance on the real property nor actual or constructive notice of any of them.

(Emphasis added.)

Section 713.06(2)(b) provides:

If the owner, in his or her notice of commencement, has designated a person in addition to himself or herself to receive a copy of such lienor’s notice, as provided in s. 713.13(l)(b), the lienor shall serve a copy of his or her notice on the person so designated. The failure by the lienor to serve such copy, however, does not invalidate an otherwise valid lien.

Finally, under section 713.06(2)(f):

If a lienor has substantially complied with the provisions of paragraphs (a), (b), and (c), errors and omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error. However, a lienor must strictly comply with the time requirements of paragraph (a).

There is no dispute that Paint Spot timely served the NTO on Trump (as well as T&G and M&P). There is also no dispute that the NTO was substantially in the form provided by section 713.06(2)(c), with one exception: the name of the contractor was listed as T&G instead of Straticon.

And while the notice was not directly served by Paint Spot upon Straticon, the evidence at trial established that: Strati-con actually received the NTO in a timely manner; Straticon was on actual notice that Paint Spot was supplying materials to the Lodge Project under an order given by M&P; and that Straticon and Trump knew from the NTO that Trump was required to obtain lien waivers from Paint Spot in order to avoid paying twice for materials provided by Paint Spot.

Detrimental Reliance

Further, although “mechanic’s lien statutes are to be strictly construed ... good faith reasonable substantial compliance has been recognized as effective in cases where material acts or omissions by the owner have caused circumstances of detrimental reliance.” Roof Structures, Inc. v. Picou, 544 So.2d 1138 (Fla. 4th DCA 1989). It is clear that until November 21, Paint Spot did in fact rely, to its detriment, upon the wrong NOC it received from Trump. But on that date, when Paint Spot received the email from Bravo regarding this error, Paint Spot was no longer relying to its detriment on the incorrect information supplied by Trump. Instead, Paint Spot failed to take steps to remedy this defect after being placed on notice of the defect. Therefore, Trump is correct in its contention that the detrimental reliance doctrine does not apply in this case. Compare Picou, 544 So.2d at 1139 (holding lien valid despite subcontractor naming wrong contractor in NTO because the owner failed to file a NOC identifying the correct contractor, and this material omission caused the subcontractor to detrimentally rely upon erroneous building department records.) See also, Suchman v. Nat’l Hauling, Inc., 549 So.2d 200 (Fla. 3d DCA 1989) (holding NTO was valid, despite failure to deliver a copy of the NTO to the general contractor, because owner failed to file a NOC identifying that general contractor).

Substantial Compliance

Nevertheless, the absence of detrimental reliance by Paint Spot does not end our analysis. A plain reading of the applicable statute evidences that if Paint Spot has “substantially complied” with section 713.06(2)(a), (b) and (c), “errors and omissions do not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error.” § 713.06(2)©, Fla. Stat. (2013).

Subsection (a) requires the lienor to, within 45 days after commencing to furnish labor, services, or materials, serve the NTO “on the owner setting forth the lien- or’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished.” It also requires the lienor, if a subcontractor or materialman, to serve the NTO on the contractor within that same 45-day time period. Paint Spot complied with these requirements, but served it on T&G instead of Straticon. As to subsection (c), Paint Spot’s NTO was in compliance with the form requirements, again with the exception of designating the incorrect name of the contractor. Thus, we must assess whether the trial court properly determined that Paint Spot’s NTO “substantially complied” with subsections (a) and (c) and, if so, whether Trump established it was adversely affected by the error.

In Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254 (Fla. 4th DCA 1984), Symons Corp., a subcontractor, mistakenly listed an incorrect name as the owner of the property. Instead of Tartan-Lavers Delray Beach, Inc., the NTO identified the owner as Lavers Delray Racquet Club. The Fourth District acknowledged that the names were different, but pointed out that “if the owner, or others, were not misled, prejudiced or injured by the claimed defect in the Notice, especially in the case of an honest mistake, the lien is not vitiated by such defect.” Id. at 1259. The Fourth District held that the lien was valid, and that the owner could not have been misled by this error because the owner responded to the claim of lien by bonding off the lien against the property.

In the instant case, Trump and Straticon had actual, express and timely notice that: Paint Spot mistakenly named the wrong contractor in its NTO; M&P (whose name was properly listed in the NTO) was Stra-ticon’s own subcontractor for the Lodge Project; Paint Spot was supplying materials to the Lodge Project under M&P; and Paint Spot intended to lien the property if payment was not timely made.

Further, the evidence established that Straticon treated Paint Spot as a potential lienor for the duration of the Lodge Pi’o-ject. For example, Paint Spot attended meetings with Straticon on the Lodge Project, and Straticon received partial lien waivers from M&P, which included partial lien waivers from Paint Spot for materials provided for the Lodge Project. Several partial payments were made to Paint Spot for materials supplied for the Lodge Project. Straticon even attempted to assist Paint Spot in obtaining payment from Trump for the remaining Paint Spot materials left at the Lodge Project, which materials were later used to complete M&P’s work.

We addressed a similar error in Centex-Winston Corp. v. Crown Paint, Inc., 294 So.2d 694 (Fla. 3d DCA 1974). In that case, instead of the actual contractor (Arcus Dry Wall) being identified in the notice to owner, Crown Paint listed the contractor as “Sen Tex-Winston Corp.” (i.e., the owner and developer of the project, though incorrectly spelled). Notwithstanding this error, we affirmed the final judgment and held that the lien was properly found valid, because Centex-Winston “failed to make a sufficient showing that it was adversely affected by the error on the notice to owner.” Id. at 695. Here too, Trump has failed to carry its burden of demonstrating that it was adversely affected by Paint Spot’s erroneous listing of T&G as the contractor. Notably, there is no evidence that, as a result of this error, Trump paid T&G for the paint supplies, and was thus at risk of paying twice for the same materials. Rather, the evidence at trial established that the painting subcontractor (who replaced M&P when it left the job) used Paint Spot’s materials to finish the Lodge Project, and that Paint Spot was not fully paid for those materials. At trial, Jamie Gram (Straticon’s project manager) admitted the reason for not paying Paint Spot the amounts due:

[T]he decision not to pay [Paint Spot] had nothing to do with a defective Notice to Owner .... They weren’t paid because Mr. Trump had already paid M&P a decent amount of money of the contract ... and there was still a lot of work that needed to be completed, so we used the money, M&P’s remaining balance, plus additional funds to pay to get the work done.

“The purpose of the [NTO] is to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid.” Stock Bldg. Supply, 76 So.3d at 319 (quoting Bishop v. James A. Knowles, Inc., 292 So.2d 415, 417 (Fla. 2d DCA1974)).

CONCLUSION

Accordingly, we hold that the trial court correctly determined that Paint Spot substantially complied with the provisions of section 713.06(2)(a), (b), and (c), and that Paint Spot strictly complied with the time requirements of subsection (2)(a). We further hold that that Trump failed to establish that it was adversely affected by the error contained in the NTO. We also affirm the final judgment awarding attorney’s fees.

Affirmed.

      . As to the final judgment for attorney's fees, Trump seeks reversal only in the event this court reverses the foreclosure final judgment, and does not otherwise challenge the merits of that judgment.

      . Underwater Eng'g Svcs., Inc. v. Utility Bd. of City of Key West, 194 So.3d 437 (Fla. 3d DCA 2016); Hall v. Hall, 190 So.3d 683, 684 (Fla. 3d DCA 2016).

      . According to the trial testimony of Paint Spot’s president (which testimony the trial court found credible), Paint Spot dealt directly with M&P only and did not know that Straticon and T&G were the project’s general contractors.

      . Trump directly negotiated pricing with subcontractors, rather than allowing its general contractors to do so.

      . Importantly, the evidence established that Straticon timely received a copy of the NTO that had been served on Trump and on T&G.

      . Section 713.06(2)(f) deems "substantial compliance” sufficient, with one exception: "a lienor must strictly comply with the time requirements” of subsection (2)(a), which mandates that the NTO be served within forty-five days after commencing to furnish labor, services or materials. Trump contends that Paint Spot failed to strictly comply with this time requirement because it did not serve Straticon within forty-five days of commencement. However, subsection (2)(f) speaks to strict compliance with the time requirements, not with the service requirement. This time requirement was met when Paint Spot served its NTO on Trump within 45 days of commencement. We further hold that there was substantial compliance with the service requirement; although Paint Spot did not serve Straticon, it is undisputed that Straticon actually received and reviewed the NTO within the requisite 45-day period. See Suchman, 549 So.2d at 202, note 5 (holding that actual notice is sufficient to satisfy the requirements of the statute).

      . Paint Spot’s compliance with subsection (b) is not in dispute, and thus a discussion of that subsection’s application to this case is unnecessary.


author: Klingensmith, J.

text:
    NATIONSTAR MORTGAGE COMPANY d/b/a Champion Mortgage Company, Appellant, v. Mary E. LEVINE, et al., Appellees.
    No. 4D16-615
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Mark James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, ÁL, for appellant.
    W. Trent Steele of Steele Law, Hobe Sound, for appellee Mary E. Levine.
   Klingensmith, J.

Nationstar Mortgage Company d/b/a Champion Mortgage Company filed a reverse mortgage foreclosure action against Mary E. Levine following the death of her husband. Nationstar claimed that Mrs. Levine’s deceased husband was the only borrower under the, reverse mortgage agreement executed with Nationstar, and that upon his death, she was required to move out of the property that was the subject of the reverse mortgage unless she paid off the entire outstanding principal balance of the loan. The circuit court, though, granted Mrs. Levine’s summary judgment motion, ruling that she too was a borrower under the reverse mortgage along with her husband; Nationstar appealed. Based on the facts presented and the weight of the applicable case law, we reverse the trial court’s summary judgment decision.

In February 2009, Mr. Levine executed an adjustable-rate note home equity conversion in favor of Sterling Mortgage Services, Inc. In the note, Mr. Levine promised to repay the “Lender” (defined as Sterling “and its successors and assigns”) for any money borrowed up to $195,000, plus interest. Paragraph 7 of the note provided the conditions under which the Lender could declare the debt immediately payable in full. One of these conditions was if “[a] Borrower dies and the Property is not the principal residence of at least one surviving Borrower.” The note defined the “Borrower” as “each person signing at the end of this Note.” Here, only Mr. Levine executed the note.

At the same time, both Mr. and Mrs. Levine signed an adjustable-rate home equity conversion mortgage (also known as a reverse.mortgage) granting a security interest in their home. At the beginning of the reverse mortgage, the document stated that “[t]he mortgagor is Julian C. Levine, joined by his wife, Mary E. Levine whose address is: 2944 Eagles Nest Way Port St. Lucie, FL 34952 (“Borrower”).” (Emphases added). The bottom of the reverse mortgage contained two signature lines in the section for borrower signatures. Above these signature lines read, “BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it.” Directly above these two lines was the word “Borrowers” (in the plural), yet under the line for Mrs. Levine’s signature was the preprinted text “Mary E. Levine, Non-Borrowing Spouse.” (Emphases added).

After six years of receiving payments under the terms of the note and reverse mortgage, Mr. Levine passed away in April 2015. Consequently, Nationstar notified Mrs. Levine that it would exercise its option to accelerate the debt pursuant to paragraph 9(a)(i) of the reverse mortgage, which provided, in pertinent part:

9. Grounds for Acceleration of Debt.
(a) Due and Payable. Lender may require immediate payment-in-full of all sums secured by this Security Instrument if:
(i) A Borrower dies and the Property is not the principal residence of at least one surviving Borrower; ....

In its complaint, Nationstar alleged that it could foreclose pursuant to paragraph 9(a)(i) because the subject property was no' longer the residence of at least one surviving borrower, as Mrs. Levine was not a borrower according to the preprinted “non-borrowing spouse” text below her signature line. Mrs. Levine countered that paragraph 9(a)(i) did not allow Nationstar to foreclose since she was in fact a borrower under the reverse mortgage, as evidenced by: 1) the definition of “Borrower” in the first paragraph of the reverse mortgage, which explicitly included her by name; 2) the provision above the signature lines stating that “BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants” contained in the reverse mortgage; and 3) the term “Borrowers” placed directly above the signature lines.

Mrs. Levine moved for summary judgment. At the hearing on that motion, Na-tionstar asserted that summary judgment was inappropriate because the inconsistencies within the reverse mortgage rendered Mrs. Levine’s status as a “borrower” ambiguous, thereby necessitating the consideration of extrinsic evidence to glean the parties’ intent. The court disagreed with Nationstar and granted summary judgment for Mrs. Levine, finding that Na-tionstar was precluded from foreclosing because the reverse mortgage unambiguously defined Mrs. Levine as a borrower.

“A trial court’s interpretation of a contract is reviewed de novo. The same standard applies to the review of the entry of summary judgment.” 19650 NE 18th Ave. LLC v. Presidential Estates Homeowners Ass’n, 103 So.3d 191, 194 (Fla. 3d DCA 2012) (citation omitted).

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Sunshine State Ins. v. Jones, 77 So.3d 254, 257 (Fla. 4th DCA 2012) (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)). “If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.” McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) (quoting Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010)).

In cases where a contract is ambiguous, summary judgment is usually improper. Berkowitz v. Delaire Country Club, Inc., 126 So.3d 1215, 1219 (Fla. 4th DCA 2012). Although as a general rule, “[t]he construction of a written contract is a matter of law to be determined by the court,” City of Orlando v. H.L. Coble Constr. Co., 282 So.2d 25, 26 (Fla. 4th DCA 1973), if the wording is ambiguous and the parties present different reasonable interpretations then “the issue of proper interpretation can become one of fact, thus precluding summary judgment.” Bunnell Med. Clinic, P.A. v. Barrera, 419 So.2d 681, 683 (Fla. 5th DCA 1982).

An agreement is ambiguous if as a whole or by its terms and conditions it can reasonably be interpreted in more than one way. See Fla. Power & Light Co. v. Hayes, 122 So.3d 408, 411 (Fla. 4th DCA 2013) (quoting Miller v. Kase, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001)). Contractual ambiguities are either “patent” or “latent.” Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147, 1151 (Fla. 4th DCA 2012).

“Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways.” Id. at 1151-52. A patent ambiguity is intrinsically apparent on the face of the document due to “the use of defective, obscure, or insensible language.” Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995). A latent ambiguity, on the other hand, “arises when the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings.” Riera v. Riera, 86 So.3d 1163, 1166 (Fla. 3d DCA 2012) (quoting GE Fanuc Intelligent Platforms Embedded v. Brijot Imaging Sys., Inc., 51 So.3d 1243, 1245 (Fla. 5th DCA 2011)); see also Taylor v. Taylor, 183 So.3d 1121, 1122 (Fla. 5th DCA 2015) (“A latent ambiguity exists where the language of an agreement is facially clear but an extrinsic fact or extraneous circumstance creates a need for interpretation or reveals an insufficiency in the contract or a failure to specify the rights or duties of the parties in certain situations.”); Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (explaining that a latent ambiguity can only be “brought to light when extraneous circumstances reveal ‘an insufficiency in the contract not apparent from the face of the document’ ” (quoting Hunt v. First Nat’l Bank, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980))).

A significant difference between patent and latent ambiguities is that extrinsic evidence is normally not admissible to construe the former because its admittance “would allow a trial court to rewrite a contract with respect to a matter the parties clearly contemplated when they drew their agreement,” Emergency Assocs. of Tampa, 664 So.2d at 1002, whereas “ ‘[e]xtrinsie evidence ... is admissible to explain a latent ambiguity’ ... because doing so ‘is but to remove the ambiguity by the same kind of evidence as that by which it is created.’ ” Mac-Gray Servs., Inc., 915 So.2d at 659 n.2 (quoting Bradley v. Washington, Alexandria, & Georgetown Steam Packet Co., 38 U.S. 89, 13 Pet. 89, 97, 10 L.Ed. 72 (1839)).

Yet despite the general prohibition against using extrinsic evidence to clarify patent ambiguities, an exception to the rule applies where the patent ambiguity at issue concerns “identity, capacity, or the parties’ relationship with one another”:

Typieally, the parol evidence rule provides that evidence outside the contract language “may be considered only when the contract language contains a latent ambiguity.” Duval Motors Co. [v. Rogers, 73 So.3d 261, 265 (Fla 1st DCA 2011)] (citing Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So.2d 745, 749 (Fla. 1st DCA 2007)).... Usually, a court may not resolve a patent ambiguity—an ambiguity appearing on the face of the document—by consideration of parol evidence. Mac-Gray Servs., Inc., 915 So.2d at 659 (citing Crown Mgmt. Corp. v. Goodman, 452 So.2d 49, 52 (Fla. 2d DCA 1984); Landis v. Meats, 329 So.2d 323, 325-26 (Fla. 2d DCA 1976)).
However, courts allow parol evidence regarding identity, capacity, and the parties’ relationship with one another even when the ambiguity exists on the face of the document because the court would not be rewriting the terms of the contract. Landis, 329 So.2d at 326 (stating that when “the ambiguity is patent, to admit evidence would be improper since it would, in effect, allow the court to rewrite the contract for the parties by supplying information the parties themselves did not choose to include,” but “that distinction is not relevant here since the court was only interested in determining the capacity of the parties who entered the agreement rather than in varying or supplying any terms to the agreement”).

Fi-Evergreen Woods, LLC v. Robinson, 135 So.3d 331, 336 (Fla. 5th DCA 2013) (emphasis added).

In finding that the reverse mortgage agreement unambiguously defined Mrs. Levine as a “borrower” under its terms, the trial court concluded there were no genuine issues of material fact as to the document’s supposed lack of ambiguity. We disagree. Although there was nothing ambiguous about the entailments of being a “borrower” as used in the agreement, parts of the reverse mortgage seemed to define Mrs. Levine as a “borrower,” while the undefined term “non-borrowing spouse” printed below her signature line reasonably suggested otherwise. This internal contradiction constituted a patent ambiguity because it appeared on the face of the agreement; no extrinsic facts or evidence were needed to reveal the ambiguity.

Nevertheless, it was improper to use summary judgment to resolve this kind of patent ambiguity. As the Second District noted in Mac-Gray Services regarding latent ambiguities, “[w]here there is a latent ambiguity affecting a disputed contract provision, there necessarily will be a disputed issue of material fact. Accordingly, ‘[w]hen an agreement contains a latent ambiguity ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment.’ ” 915 So.2d at 659-60 (omission and second alteration in original) (quoting Griffin v. Fed. Deposit Ins., 532 So.2d 1358, 1360 (Fla. 2d DCA 1988)). This same reasoning applies to preclude summary judgment here because extrinsic evidence was needed to answer the factual question whether Mrs. Levine was a borrower under the reverse mortgage given her signing as a “non-borrowing spouse” in the face of conflicting provisions elsewhere. See Fi-Evergreen Woods, 135 So.3d at 336 (“[C]ourts allow parol evidence regarding ... the parties’ relationship with one another even when the ambiguity exists on the face of the document because the court would not be rewriting the terms of the contract.”). As the question of Mi’s. Levine’s relationship to Nationstar arising from the agreement’s internally incongruous language was a type of patent ambiguity resolvable by extrinsic evidence, the trial court should have denied summary judgment and held a full evidentiary hearing on the matter.

The construction of the present contract is at issue only because the agreement contained conflicting indications as to Mrs. Levine’s status as a borrower. It follows, then, that the contract may be properly construed only after a consideration of the circumstances under which it was made and the meaning ascribed by the parties to its ambiguous language. The parties must therefore be afforded the opportunity to offer proof, not merely by affidavit or argument, but on a trial of the action.

Reversed and Remanded.

Levine and Kuntz, JJ,, concur.

      . "The phrase parol, or extrinsic evidence stands contrasted with that intrinsic evidence which is found in the writing itself.” B.F. Goodrich Co. v. Brooks, 113 So.2d 593, 596 (Fla. 2d DCA 1959) (quoting Edmund M. Morgan, Basic Problems of Evidence, 2 A.L.I. 341, 341 (1954)).

      . This court has previously expressed skepticism about assigning too much significance to the difference between patent and latent ambiguities:
      Although there appears to be some divergence of opinion as to when parol evidence is properly admitted because of the latent ambiguity—patent ambiguity dichotomy, the distinction between the type of ambiguity involved is one of form over substance. The growing and better reasoned trend of authority indicates that the introduction of parol evidence to probe the true intent of the parties is proper, irrespective of any technical classification of the type of ambiguity present.

        Royal Cont’l Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782, 784 (Fla. 4th DCA 1981).


author: May, J.

text:
    Jaqueline CRISWELL, as Personal Representative of the Estate of Ruth Heidmann, Appellant, v. JM CUSTOM WOODWORKING, INC., a Florida corporation, G.B. Heidmann, Jr., Ruth Heidmann, and Atlantic Construction and Development, Inc., a Florida corporation, Atlantic Construction and Development, Inc., a Florida corporation, and The Estate of George B. Heidmann, Jr., The George B. Heidmann Jr. Trust, and Ruth Heidmann, Appellees.
    No. 4D15-4625
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017
    Jon Michael Kendrick of The Kendrick Law Firm, Plantation, for appellant.
    Oscar E. Soto and Dale A. Evans, Jr., of The Soto Law Group, P.A., Fort Lauder-dale, for appellees.
   May, J.

The personal representative of her mother’s estate (“owner”) appeals an adverse final judgment in litigation over the reconstruction of her parents’ home. The mother entered into an agreement with the general contractor for the reconstruction, but neither parent lived to see the completion of the project. Multiple issues have been raised. We find merit in only one involving the interior designer’s invoices. We therefore affirm in part and reverse in part.

A dispute arose after the owner missed payments to the general contractor. The owner indicated there were issues with change orders. The general contractor then provided written notification of a claim and recorded a claim of lien against the property.

After one of the sub-contractors filed suit against the general contractor and owner for nonpayment, the general contractor filed a cross-claim against the owner for breach of contract and foreclosure of its lien. The owner then filed a counter/cross-claim against the general contractor for breach of contract and fraudulent lien. Both the general contractor and owner later moved for involuntary dismissal, which the trial court denied. The case was tried non-jury, resulting in a judgment against the owner.

One change order involved services by the interior designer. The general contractor included the interior designer’s bill in its invoice and ultimately in its lien for unpaid services. However, any costs associated with labor, material, or services that are not required by the direct contract are not lienable. Morris and Esher, Inc. v. Olympia Enters., Inc., 200 So.2d 579, 582 (Fla. 3d DCA 1967). Here, the general contractor’s agreement did not include the interior designer’s services. The interior designer had a separate contract with the mother.

At oral argument, the general contractor’s counsel agreed that the inclusion of the interior designer’s services in the lien was improper because the general contractor’s agreement did not encompass interior design services, and the services were not specifically approved by the owner as required by the contract. We therefore reverse the judgment to the extent of $16,937 awarded for the interior designer’s outstanding invoices. We affirm in all other respects.

Affirmed in part; reversed in part; and remanded for correction of the final judgment.

Damoorgian and Conner, JJ., concur.


author: Gross, J.

text:
    Paul DAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4361
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

This case presents a novel issue under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

A common factual issue in Miranda eases is whether a suspect is in custody when police interrogation begins. If a suspect is in custody, the police “are required to advise the suspect of his or her Miranda rights” before commencing interrogation. Caldwell v. State, 41 So.3d 188, 197 (Fla. 2010). It is well-settled that “Miranda warnings are not required in any police encounter in which the suspect is not placed under arrest or otherwise in custody.” Id. 198.

The defendant in this case complains that he was given his Miranda warnings prior to all questioning but before he was placed “in custody.”

The defendant voluntarily came to the police station to speak with a detective about injuries to his infant son. Before questioning the defendant, the detective fully advised the defendant of his Miranda rights. The defendant repeatedly said that he understood his rights and agreed to speak with the detective without an attorney. The questioning went on for several hours; eventually the defendant said enough incriminating things to generate the reasonable belief that he had done something to harm the child.

As he argued in the motion to suppress filed below, the defendant contends that although he was not in custody at the outset of the questioning, once the interrogation became “confrontational and accusatory,” the defendant was then placed in custody, such that the detective was required to re-administer the Miranda warnings.

The point of Miranda warnings is to allow a defendant to make an intelligent and knowing waiver of his right to counsel before speaking with the police. A defendant who is not in custody at the beginning of an interrogation is better equipped to intelligently make such a waiver than a defendant who has experienced the stress of being arrested, handcuffed, transported to a police station, and locked in an interrogation room. In this case, if we assume that the defendant was not in custody pri- or to questioning, the record supports the trial judge’s conclusion that he freely and voluntarily waived his Miranda rights before questioning began and that waiver was effective even after the interrogation took on a more accusatory tone.

To agree with the defendant’s argument would be to place law enforcement in an impossible position. If given too early, before custody began, Miranda warnings would be ineffective; if given too late, a constitutional violation would arise. Where the police administer warnings at the beginning of a non-custodial interview, it is unrealistic for the law to require them to determine the magical moment when custody commences, such that the warnings must be given again,

Affirmed.

Ciklin, C.J. and Kuntz, J., concur,


text:
    Scott SIMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3336
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Jonathan R. Kaplan of Jonathan R. Kap-lan, LLC, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and life sentence for first degree murder as a principal. He argues the trial court erred in denying: (1) his motion to suppress; and (2) his request for an independent act instruction. We find no error and affirm.

The facts giving rise to this case stem from a verbal altercation at a Waffle House between the defendant and the victim. The defendant had contact with two acquaintances. Shortly thereafter, the victim was shot by those acquaintances,

In his first issue, the defendant argues the trial court erred in denying his motion to suppress statements he made after he invoked his right to counsel. The State responds that because the defendant voluntarily reinitiated communication with the detective after invoking his rights, the trial court correctly denied the motion to suppress. We agree with the State.

In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings and have de novo review of any legal issues. Woods v. State, 25 So.3d 669, 670 (Fla. 4th DCA 2010).

“An accused in custody, ‘having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,’ unless he validly waives his earlier request for the assistance of counsel.” Smith v. Illinois, 469 U.S. 91, 94-95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

Both sides agree that the defendant clearly invoked his right to counsel. This leads us to the secondary issue of whether the defendant “(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Id. at 95, 105 S.Ct. 490. A court looks to the “totality of the circumstances surrounding the interrogation” when determining whether a suspect made a knowing and uncoerced waiver. See Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Video footage of the encounter shows the detective reading the Miranda rights to the defendant, the defendant’s invocation of his rights, and the defendant’s subsequent initiation of further discussion in a knowing and voluntary waiver of his rights.

After the detective read the defendant his Miranda rights, the defendant requested a lawyer. In response, the detective asked: “So you don’t want to talk about this investigation at all?” The defendant answered “no” and the detective responded: “All right. We will be in in a second to take your property.” The detective closed his laptop, picked up his papers, and started toward the door when the defendant asked the detective what was going on with his girlfriend. The detective responded: “I’m talking to her [about what happened that day]” and “she was there with you.”

The defendant then began a lengthy narrative. The detective reminded the defendant: “You understand that you told me you didn’t want to talk now you’re asking me a question, you want me to answer that?” The defendant answered “yes,” and again volunteered more information, saying he wanted to talk about his “point of view.” The defendant denied being involved in the murder, knowing who committed the murder, or knowing the people in the black car from which the gunshots were fired.

The entire exchange not only reveals the defendant initiated communication with the detective, but that he knowingly and intelligently waived his rights. The detective repeatedly reminded the defendant of his ability to invoke his rights, yet the defendant continued to volunteer information. The totality of circumstances shows the defendant knowingly and intelligently waived his rights.

This case is unlike Black v. State, 59 So.3d 340, 345 (Fla. 4th DCA 2011), upon which the defendant relies. There, after the defendant had invoked his rights, the detective asked if the defendant wanted to talk to one of the detectives about the double murder. Id. at 343. The detectives then reinitiated their interrogation. Id. We held the detective’s follow-up question was “an effort (intended or not) to wear down [the defendant’s] resistance and make him change his mind.” Id. at 346. The detective’s question which followed the invocation of the defendant’s rights crossed the bright line requiring cessation of all questioning.

Here, however, the detective did not ask a question to wear down the defendant’s resistance or urge him to change his mind. When the defendant invoked his rights, the detective clarified the defendant’s intent, and then packed up to leave. The detective did not continue to interrogate the defendant. Rather, the defendant reengaged the detective and volunteered information even though the detective continued to remind him of his ability to invoke his rights.

There is also no error in the trial court’s denial of the request for an instruction on the independent act doctrine. “The ‘independent act’ doctrine arises when one co-felon, who previously participated in a common plan, does not participate in acts committed by his co-felon, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Ray v. State, 755 So.2d 604, 609 (Fla. 4th DCA 2000) (citation omitted). While a defendant is entitled to have the jury instructed on the law applicable to his theory of defense, he is not entitled to an instruction where there is no evidence to support it. Id. at 608; Beasley v. State, 774 So.2d 649, 662-63 n.10 (Fla. 2000).

Here, there was no evidence to support the defendant’s theory that he and the co-defendants were initially part of a plan to scai’e the victim, or that his co-defendants deviated from that plan by shooting the victim. Defense counsel conceded during opening statement that “the evidence is not going to show you that there was a plan. The evidence is going to show you that there was no plan.” (Emphasis added).

The trial court did not err by denying either the motion to suppress or the requested instruction on the independent act doctrine. We therefore affirm.

Affirmed.

Damoorgian and Conner, JJ., concur.


text:
    Juan SANCHEZ, Appellant, v. AN LUXURY IMPORTS OF PEMBROKE PINES, INC. d/b/a Mercedes-Benz of Pembroke Pines, and Safeco Insurance Company of America, Appellees.
    No. 4D15-2377
    District Court of Appeal of Florida, Fourth District.
    April 12, 2017

      Annabel C. Majewski of Wasson & Associates, Chartered, Miami, and Rebecca J. Covey of Rebecca J. Covey, LLC, Fort Lauderdale, for appellant/cross-appellee.
    Nancy W. Gregoire of Birnbaum, Lipp-man & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Office of Richard A. Ivers, Coral Springs, for appel-lees/cross-appellants.
   Klingensmith, J.

Appellant Juan Sanchez was awarded attorney’s fees against appellees AN Luxury Imports of Pembroke Pines, Inc. (“ANL”) and Safeco Insurance Company of America (“Safeco”) (collectively, “defendants”). He appeals that order, claiming the fee awards were unreasonably low. Defendants cross-appeal, arguing that the fee award against Safeco was too high since it should have been capped at the amount of the surety bond it issued on ANL’s behalf. We affirm the fee award against ANL, and find the fee award against Safeco should have been issued under a different statute and capped at the amount of the surety bond.

I. Background

In 2008, ANL bought a vehicle that had been returned at the end of a year-long lease after inspection by ANL’s finance and used car managers. In the two weeks following this purchase, the vehicle was inspected again to see if it qualified as a certified preowned vehicle (a “CPO”). If it qualified, the manufacturer, Mercedes-Benz USA, would cover it with an additional limited warranty after the dealership completed certain reconditioning. The vehicle qualified as a CPO and, consistent with the inspections, the Carfax report at the time was “clean”—indicating that it had not been in an accident.

Appellant purchased the vehicle from ANL and over the next year drove it almost 10,000 miles without any problems. In November 2009, appellant took the vehicle to the dealership for its annual service and inquired about trading it in. The sales representative then printed a Carfax report. This report showed that the vehicle had been in an accident, but did not indicate that there was any frame or structural damage.

Aware of the inconsistency between the two Carfax reports, appellant communicated with both Carfax and the Florida Department of Motor Vehicles and learned that the vehicle had in fact been in an accident seven months prior to his purchase. This new report was the first time either appellant or ANL had learned of this accident.

Thereafter, appellant contacted an attorney. Despite the absence of any reported problems prior to November 2009, over the next few months appellant brought the vehicle to the dealership with complaints of transmission, wheel, and braking issues. ANL covered all repairs covered by the CPO warranty, with little or no charge in most cases.

In June 2010, appellant filed suit against both ANL and its surety, Safeco, for fraud or negligent misrepresentation, as well as several violations of the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-.213, 501.975-.976, Florida Statutes (2010) (“FDUTPA”). Appellant sought compensatory and punitive damages, damages for mental anguish, rescission, and declaratory and injunctive relief.

II. The Arbitration Proceedings

Pursuant to the arbitration clause in the vehicle purchasing documents, the parties arbitrated the claims. During arbitration, appellant maintained that the vehicle could not have qualified as a CPO because it allegedly sustained frame and structural damage. However, a representative of Mercedes-Benz USA testified that once the vehicle qualified as a CPO, Mercedes would honor that status even if “something thereafter shows up on a Carfax report,” explaining that “[i]f the certification had been put on the vehicle, we wouldn’t pull it back off. We wouldn’t penalize the customer for that.” Other evidence was presented that mere repainting or paint damage upon inspection would not have automatically disqualified the vehicle from CPO status because paint issues do not necessarily stem from accidents. Appellant also filed a copy of the form approved by the State of Florida Department of Highway Safety and Motor Vehicles for motor vehicle dealer surety bonds, which stated, “the aggregate liability of the surety hereunder shall in no event, in any one (1) year, exceed the sum of the bond.”

The arbitrator issued a ruling in favor of ANL on all of the claims except for one of the FDUTPA claims, finding that ANL violated FDUTPA by “not appropriately representing” the general condition of the vehicle when it presented appellant with the clean Carfax report which did not reference the accident. The ruling noted that although there was no evidence that ANL knew the vehicle had been in an accident, when ANL gave the initial Carfax report to appellant it was aware that such reports are often not up to date or incomplete. On this basis, the arbitrator awarded appellant $3,500 for the reduction in value of the vehicle caused by the unreported accident. The trial court confirmed the award and entered final judgment for $3,500 plus interest, while reserving jurisdiction to consider post-trial motions for attorney’s fees and costs.

As to the award of attorney’s fees, the arbitrator did not explicitly determine who the prevailing party was since appellant’s award was significantly less than the amount he had originally claimed. Consequently, the attorney’s fee issue was returned to the trial court where both parties moved for prevailing party attorney’s fees pursuant to FDUTPA sections 501.2105 and 501.211. Additionally, appellant separately moved for attorney’s fees and a multiplier against Safeco pursuant to section 627.428, Florida Statutes (2012).

III. The Attorney’s Fees Hearings

The court conducted evidentiary hearings on entitlement to and amount of attorney’s fees. Appellant’s counsel conceded the court had to consider the “number of reasonable hours” expended on the case and not just the total number of hours. Nevertheless, she claimed that she spent 549 hours on the case for a fee of $223,700 and 67.9 additional hours in preparation for the fee hearing all at a $450 hourly rate, but did not produce any documents establishing that she had ever received or been awarded that rate in the past. Appellant’s expert testified that counsel was entitled to an attorney’s fee award of $203,492.50 for 457.2 hours at $400 and $450 per hour, and that counsel’s paralegal’s time should total $9,524 based on a $110 to $200 hourly rate. The expert admitted, though, that he did not eliminate from his calculation the time spent on issues related to appellant’s various unsuccessful claims. The expert further testified that he charged just $300 per hour—not $450 per hour—despite his twenty-five years of experience with this type of litigation.

Defendants’ counsel pointed out that section 501.976, which is the FDUTPA attorney’s fees statute specifically governing vehicles, mandates the trial court to consider “the amount of actual damages in relation to the time spent” in determining the reasonableness of an attorney’s fee award. Concerning this issue, defendants’ fee expert testified, among other things, that: appellant lost on all of his claims except “representing the quality of care of servicing or condition unless known to be true based on Carfax”; appellant’s agreement with his counsel was not “entirely” contingent; a multiplier was unavailable under FDUTPA; and appellant’s only prevailing claim could have been litigated in a short period of time with the two Carfax reports and no expert testimony. The expert opined that based on three different types of analyses, the appropriate fee award for appellant’s attorney given the time spent on the successful Carfax claim ranged from $17,546 to $21,350, with the $21,350 figure being the best reflection of “the reasonable amount of effort required to litigate the issues that were actually won.”

The trial court issued an omnibus order (“Omnibus Order”) finding that appellant was entitled to an attorney’s fee award despite failing to prevail on the CPO issue, the most significant and time-consuming issue in the case, because he obtained the $3,500 damage award on one of his FDUT-PA claims. The court found that “the fee [was] almost entirely contingent other than the initial $2,000.00 retainer” and that under sections 501.2105 and 501.976, the “amount of time actually spent was grossly disproportional” to the $3,500 damage award. The court then awarded appellant $29,885 in attorney’s fees and $8,800.13 in costs, totaling $38,685.13.

Instead of awarding that amount solely against ANL, the court imposed joint and several liability against both ANL and Safeco for the fee award, thereby essentially making Safeco’s liability joint and several with ANL based on the FDUTPA attorney’s fees statutes as opposed to section 627.428. Also, the Omnibus Order did not analyze the applicability of a fee multiplier, further suggesting that the award against both Safeco and ANL was entered pursuant to the FDUTPA attorney’s fees statutes and not section 627.428.

This appeal and cross-appeal followed.

IV. Analysis

On appeal, appellant argues: the trial court should have granted a separate fee award against Safeco under section 627.428 (in addition to the fee awarded against Safeco by the Omnibus Order), and should have applied a fee multiplier to that award; the fee awards should have been higher because FDUTPA allows for fees for all of the litigation, not just the litigation related to the single successful FDUTPA claim; and the Omnibus Order improperly failed to include prejudgment interest. In them cross-appeal, defendants contend that the fee award against Safeco should have been capped at the face amount of the surety bond it issued to ANL.

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

Upon careful consideration, we believe that both parties have meritorious arguments in certain respects. Appellant is correct in maintaining that he should have been awarded attorney’s fees under section 627.428, while defendants also correctly assert that Safeco, as a surety, could not be assessed attorney’s fees beyond the face value of the bond. At the same time, though not argued by either party, our review of the award also reflects that the trial court erred by assessing attorney’s fees against Safeco under the FDUTPA statutes since FDUTPA explicitly provides that sureties are not subject'to such assessments.

Section 501.2105 provides, in pertinent part:

(1) In any civil litigation resulting from an act or practice involving a violation of this part ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.
(2) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
(3) The trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.

§ 501.2105, Fla. Stat, (2010). Moreover, section 501.976, in pertinent part, specifies a proportionality element to evaluating the reasonableness of attorney’s fees awards in successful FDUTPA actions against motor vehicle dealers:

In any civil litigation resulting from a violation of this section, when evaluating the reasonableness of an award of attorney’s fees to a private person, the trial court shall consider the amount of actual damages in relation to the time spent.

§ 501.976, Fla. Stat. (2010).

In the recent case of Gustafsson v. Aid Auto Brokers, Inc., No. 4D15-1951, 212 So.3d 405, 407-09, 2017 WL 362579, at *2-3 (Fla. 4th DCA Jan. 25, 2017), this court unequivocally ruled that sureties are not subject to attorney’s fees under FDUTPA:

Here, under the plain language of the MSA [mediated settlement agreement], GAI [the entity that had issued a $25,000 motor vehicle dealer surety bond] was not obligated to pay the plaintiffs’ attorney’s fees. The attorney’s fees provision of the MSA states in relevant part: “On the question of GUSTAFS-SON/STILES’ legal fees, we agree that: Plaintiff is entitled to reasonable attorneys’ fees pursuant to § 501, Fla. Stat. only.” (italics added). The MSA thus limited the plaintiffs entitlement to attorney’s fees to Chapter 501, which does not apply to entities—such as sureties— that are regulated by the Department of Financial Services. See § 501.212(4)(d), Fla. Stat. (2015) (stating that FDUT-PA does not apply to the following: “Any person or activity regulated under the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services.”)-, see also Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 94-98 (Fla. 2000) (in an action alleging a motor vehicle dealer’s violation of FDUTPA, attorney’s fees could not be recovered from a surety bond under the statute requiring motor vehicle dealers to obtain surety bonds for customers who suffered “any loss” resulting from a dealer’s failure to comply with a contract).
Because the MSA stated that the plaintiffs’ entitlement to attorney’s fees was limited to Chapter 501, the MSA necessarily excluded GAI from any obligation to pay the plaintiffs’ attorney’s fees.

Id. (emphasis added).

Based on the statute and interpretive case law, we find that the trial court erred in holding Safeco jointly and severally liable for any section 501.2105 attorney’s fees awarded against ANL because section 501.212(4)(d) specifically precludes application of any section within the FDUTPA statutes to sureties.

Section 627.428(1) provides:

Upon the rendition of a judgment Or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had-.

§ 627.428(1), Fla. Stat. (2012) (emphasis added).

In general, section 627.428 applies to sureties that issue motor vehicle dealer bonds under section 320.27(10), Florida Statutes (2008). In Snow v. Jim Rathman Chevrolet, Inc., 39 So.3d 368, 369 (Fla. 5th DCA 2010), which involved the sale of a defective ear by a dealer that had “obtained ... a dealer surety bond as required under section 320.27(10),” the Fifth District held that “section 627.428(1) does authorize an award of attorney’s fees against a surety that has issued a bond pursuant to section 320.27(1).”

The basic facts in Snow were similar to those of the instant case. Id. There, the Fifth District explained the significance of the relevant statutes and case law:

A surety is considered by the courts to fit within the definition of insurer and to be subject to the same regulations as insurers in the Florida Insurance Code, Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins., 945 So.2d 1216, 1224 (Fla. 2006) (quoting section 624.03, Florida Statutes, which defines an insurer as “every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance or of annuity”) (emphasis omitted); Nichols v. Preferred Nat’l Ins. Co., 704 So.2d 1371, 1372 (Fla. 1997). In Nichols, for example, the court held that section 627.428 allows awards of attorney’s fees against sureties that issue guardianship bonds. The question presented here is whether section 627.428 allows attorney’s fees against a surety that issues motor, vehicle dealer bonds.
We believe the analysis in Nichols is instructive. The court in Nichols first concluded that under the plain language of section 627.428, “reasonable attorney’s fees and costs are to be awarded against an insurer upon rendition of a judgment against the insurer in favor of the insured or beneficiary.” Nichols, 704 So.2d at 1373. Second, the court concluded that sureties fit the definition of “insurers” in the Florida Insurance Code, which includes section 627.428. Id. Third, the court examined whether a specific provision existed governing attorney’s fees under the statute requiring the bond, specifically looking to the chapter governing guardianship bonds, chapter 744, Florida Statutes (1995). Id. When the court found no specific statute in'chapter 744 governing attorney’s fees, it held that attorney’s fees are allowed under the general provision of section 627.428. Id.
Although Nichols involved guardianship bonds, for purposes of our analysis, we do not see any notable difference between sureties that issue guardianship bonds and those, like Fidelity, that issue motor vehicle dealer bonds. Applying the Nichols analysis, we conclude that Fidelity is a surety that fits the definition of insurer for purposes of applying the provisions of section 627.428. We do not find any specific statute that governs attorney’s fees in instances involving dealer bonds issued under section 320.27(10). Accordingly, we hold that Fidelity, as an insurer, is subject to the attorney’s fees provisions of section 627.428.

Id. at 370-72.

Since section 627.428 applies to appellant’s claim for fees against Safeco, and appellant obtained a judgment in the underlying case in his favor, any award of section 627.428 fees against Safeco is a mandatory, non-discretionary requirement of law. See Rodriguez v. Gov’t Emps. Ins. Co., 80 So.3d 1042, 1044 (Fla. 4th DCA 2011) (holding that plaintiff “merely needed to obtain a judgment in his favor in order to be entitled to an award of attorneys’ fees” based on section 627.428); Ramirez v. United Auto. Ins. Co., 67 So.3d 1174, 1175 (Fla. 3d DCA 2011) (reversing order of circuit court’s appellate division that denied appellate attorney’s fees for a successful plaintiff in a PIP policy action who prevailed on appeal because the order was “directly contrary to the mandatory, non-discretionary requirements of law as provided by section 627.428”); see also Citizens Prop. Ins. Corp. v. Bascuas, 178 So.3d 902, 904 (Fla. 3d DCA 2015) (“The final order entered ... was a judgment against an insurer and in favor of an insured, triggering [insureds’] entitlement to a reasonable attorney’s fee [under section 627.428] in defending against [insurer’s] counterclaim. ... [TJhat [insureds] did not obtain a money judgment ... does not preclude their entitlement to fees.”); Cont’l Cas. Co. v. A.W. Baylor Versapanel-Plastering, Inc., 97 So.3d 937, 940 (Fla. 5th DCA 2012) (“Under [section 627.428 and section 627.756, Florida Statutes], the claimant is not required to be the prevailing party on the significant issues in order to recover attorney’s fees, but need only obtain a judgment—no matter how minimal the amount of damages awarded.”).

Still, “in determining reasonable attorney’s fees under [section 627.428], the trial court should consider whether the insured prevailed on some but not all the issues that can be separately determined and whether the insured’s actions extended the litigation or increased its cost.” Axis Surplus Ins. Co. v. Contravest Constr. Co., 877 F.Supp.2d 1268, 1270 (M.D. Fla. 2012) (citing Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla. 1994)); see also § 627.428(1) (“[T]he trial court ... shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.” (Emphasis added)); Citizens Prop. Ins. Corp., 178 So.3d at 904 (noting that section 627.428 allows for reasonable attorney’s fees).

That the trial court awarded fees in this case against Safeco under section 501.2105 as opposed to section 627.428 is also significant because the former statute does not allow for a fee multiplier, while the latter statute does. See Stewart Select Cars, Inc. v. Moore, 619 So.2d 1037, 1038 (Fla. 4th DCA 1993) (holding that a contingency risk multiplier is unavailable under section 501.2105 because the statute “provides a reasonable attorney fee for the prevailing party ‘for the hours actually spent on the case’ ”); accord Corvette Shop & Supplies, Inc. v. Coggins, 779 So.2d 529, 531 (Fla. 2d DCA 2000) (same). The trial court was therefore correct to not consider a multiplier for the fee award entered against either Safeco or ANL -under section 501.2105.

On the issue of fee multipliers under section 627.428, the Fifth District in Holiday v. Nationwide Mutual Fire Insurance, 864 So.2d 1215, 1218 (Fla. 5th DCA 2004), held:

The legislative intention underpinning section 627.428 is to “discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.” See Insurance Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla. 1992). Thus, if a dispute is within the scope of this statute and an insured must enforce his or her rights under a policy, and if a judgment is rendered against the insurer, then the insurer is required to pay attorney’s fees for the insured or beneficiary. See Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla. 1999); Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001). To learn whether a contingent risk multiplier may be applicable to fees awarded under section 627.428, we must examine Quanstrom.
The Supreme Court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), identified three different categories of cases in which attorney’s fees may be awarded by a court. The Court concluded that the second of those categories, which applies principally to tort and contract cases, including cases such as the present controversy involving an insured and his or her insurance company, is one in which a contingency risk multiplier may be appropriate. In Quanstrom the Court reaffirmed the principles set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), with respect to these cases, and added three additional factors to be considered in determining whether a multiplier should be applied:
1. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel;
2. Whether the attorney was able to mitigate the risk of nonpayment in any way; and
3. Whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his or her client.

Id.; see also Allstate Ins. Co. v. Regar, 942 So.2d 969, 975 (Fla. 2d DCA 2006) (reaffirming the Quanstrom holding that a “multiplier could be appropriate under section 627.428 when there is a risk of nonpayment”). As part of its consideration, “[t]he trial court is not required to apply a contingency multiplier, but is required only to consider whether a multiplier is warranted.” Nalasco v. Buckman, Buckman & Reid, Inc., 171 So.3d 759, 762 (Fla. 4th DCA 2015).

By not awarding fees against Safe-co under section 627.428, the court’s Omnibus Order failed to consider the applicable Quanstrom factors to determine whether a multiplier should have applied. Normally, where a trial court fails to make such a consideration, the issue must be remanded to the trial court for it do so. Yet here, as we agree with defendants that any attorney’s fees assessed against Safeco must be capped at the amount of the bond, and the trial court already found that appellant was entitled to reasonable fees in excess of the bond amount, it would be a waste of judicial resources to have the trial court consider on remand the appropriateness of a multiplier.

Concerning defendants’ argument that any award against Safeco should have been limited to the face amount of the bond, section 320.27(10) provides, in relevant part:

(10) Surety bond or irrevocable letter of credit required.—
(a) Annually, before any license shall be issued to a motor vehicle dealer, the applicant-dealer of new or used motor vehicles shall deliver to the department a good and sufficient surety bond or irrevocable letter of credit, executed by the applicant-dealer as principal, in the sum of $25,000.
(b) Surety bonds and irrevocable letters of credit shall be in a form to be approved by the department and shall be conditioned that the motor vehicle dealer shall comply with the conditions of any written contract made by such dealer in connection with the sale or exchange of any motor vehicle and shall not violate any of the provisions of chapter 319 and this chapter in the conduct of the business for which the dealer is licensed. Such bonds and letters of credit shall be to the department and in favor of any person in a retail or wholesale transaction who shall suffer any loss as a result of any violation of the conditions hereinabove contained. When the department determines that a person has incurred a loss as a result of a violation of chapter 319 or this chapter, it shall notify the person in writing of the existence of the bond or letter of credit. Such bonds and letters of credit shall be for the license period, and a new bond or letter of credit or a proper continuation certificate shall be delivered to the department at the beginning of each license period. However, the aggregate liability of the surety in any one year shall in no event exceed the sum of the bond ....

§ 320.27(10), Fla. Stat. (2008) (emphases added).

In David Boland, Inc. v. Trans Coastal Roofing Co., 851 So.2d 724, 726-27 (Fla. 2003), the Florida Supreme Court explained how it previously determined in Nichols that a statute similar to section 320.27 limited a surety’s liability for section 627.428 attorney’s fees to the face amount of a guardianship bond (except where the surety engaged in independent misconduct):

[S]ection 627.428 is primarily directed toward claimants’ entitlement to attorneys’ fees and does not address the appropriate amount to be awarded, except to say that it should be “a reasonable sum.” The plain language of that statute fails to address the effect, if any, of penal sums under bonds and is silent regarding whether proof of independent misconduct is necessary for an award to exceed such penal sums. Thus, if a limit exists to the amount that may be awarded under this statute, it must be found within another statute.
We find no other statute that limits the attorneys’ fees liability of sureties under a performance bond. Thus, we conclude that this case is distinguishable from the Nichols decision, In Nichols, this Court found that although attorneys’ fees could be awarded against a surety on a guardianship bond under section 627.428, the provision of section 744.357, Florida Statutes (1995), that “[n]o surety for a guardian shall be charged beyond the property of the ward,” limits total recovery from a guardianship surety to the face amount of the guardianship bond. Nichols, 704 So.2d at 1374. However, relying on the principle that the penal amount of the bond covers the misconduct of the principal, this Court also concluded that while an award of attorneys’ fees and costs based solely on the negligence of a principal was limited by the amount of the guardianship bond, an award of attorneys’ fees and costs incurred because the surety unreasonably delayed the payment of a claim was “not protected by section 744.357.” Id. We, therefore, held that awards of attorneys’ fees in such cases were limited by the mandate of section 744.357 unless the fees claimant establishes that the surety failed to act diligently and unreasonably delayed the payment of a claim. Id.

David Boland, Inc., 851 So.2d at 726-27 (emphasis added).

The language of section 744.357 providing that “[n]o surety for a guardian shall be charged beyond the property of the ward” is substantively similar to the language of section 320.27(10)(b) providing that “the aggregate liability of the surety in any one year shall in no event exceed the sum of the bond.”

In Gene B. Glick Co. v. Fischer-McGann, Inc., 667 So.2d 865, 867 (Fla. 4th DCA 1996), although it did not involve a surety bond issued pursuant to section 320.27(10), this court reversed a “primary judgment plus interest and attorney’s fees” to the extent that the total of the award “exeeed[ed] the amount payable under the surety’s bond,” and remanded to the trial court with instructions to “restrict the sums ordered payable by the surety to the amount of its bonded obligation.” See also Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 283 (Fla. 1992) (holding that a surety’s lien-transfer bond under section 713.24, Florida Statutes, did not “allow[ ] a surety’s liability to be increased beyond the face amount of the bond in order to cover costs”); Bayview Constr. Corp. v. Jomar Props., LLC, 97 So.3d 909, 912 (Fla. 4th DCA 2012) (“In the event Jomar is unable to pay the difference, or to increase the [section 713.24] bond on Bay-view’s later request, Bayview may have no recourse, because a surety is liable only up to the face amount of the transfer bond.”); Fid. & Deposit Co. of Md. v. La Ctr. Trucking, Inc., 559 So.2d 1242, 1243 (Fla. 4th DCA 1990) (noting that “the parties agree that the judgment amount for which the surety is responsible cannot exceed the amount posted by the surety,” with regard to a bond posted for a development project); cf. Vital Pharms., Inc. v. Prof'l Supplements, LLC, 210 So.3d 766, 767-68 (Fla. 4th DCA 2017) (finding that appellees were not entitled to any award where the absence of a bond rendered an injunction unenforceable, as any award was limited by law to an amount not exceeding that of the injunction bond).

Therefore, Safeco’s liability for section 627.428 attorney’s fees should have been limited to the face amount of the $25,000 surety bond, unless appellant could have established that Safeco “failed to act diligently and unreasonably delayed the payment” of appellant’s successful underlying claim. See David Boland, Inc., 851 So.2d at 727.

V. Conclusion

Accordingly, we reverse the fee award against Safeco for $29,885 in attorney’s fees and $8,800.13 in costs (totaling $38,685.13) because it was wrongly issued under section 501.2105, in addition to the fact that it exceeded the bond amount. We remand this matter to the trial court to vacate the prior fee award against Safeco and enter a new fee award against Safeco under section 627.428 that is capped at $25,000 (less the damages owed to appellant for the successful underlying FDUT-PA claim). See § 320.27(10), Fla. Stat. As appellant did not allege—and the record before us does not demonstrate—that Safeco unreasonably delayed payment to appellant of the underlying claim, further proceedings on that matter are unnecessary. See Nichols, 704 So.2d at 1374 (explaining that statutorily capped bond precluded section 627.428 fee award against a surety from exceeding the cap, absent proof that surety unreasonably delayed payment of underlying claim). We affirm without comment on all other issues raised in both the appeal and cross-appeal.

Affirmed in part, Reversed in part and Remanded.

Levine and Kuntz, JJ., concur.

      . The newer Carfax report indicated the accident occurred in October 2009, but that was simply a reflection of when the vehicle’s report was updated.

      . Defendants’ fee expert reached the $21,350 estimation based on his conclusions that 61 hours were spent on the successful claim and that appellant's attorney was entitled to a $350 hourly rate.

      . While the court's Omnibus Order acknowledged in a footnote that a prior order was issued that ruled appellant was entitled to attorney’s fees against Safeco pursuant to section 627.428, that Omnibus Order did not specify the authority under which it (the Omnibus Order) was awarding the fees. The amount assessed against Safeco was only delineated by the Omnibus Order, which the trial court clarified (in its denial of appellant's motion for rehearing) was effective against Safeco under joint and several liability with ANL. Thus, although appellant was previously granted entitlement to fees against Safeco under section 627.428, he was only awarded attorney’s fees against Safeco under section 501.2105 by way of Safeco’s joint and several liability with ANL.

      . In David Boland, Inc., our supreme court ultimately decided that proof of a surety’s independent misconduct was not required to award attorney’s fees against a surety in excess of the amount of a performance bond on a construction contract, as there was no corresponding statute that capped the surety’s liability to the face value of such a bond. 851 So.2d at 727. This is distinguishable from Nichols and the instant case; in Nichols, section 744.357 provided such a limit for guardianship bonds, and here, section 320,27(10) provides such a limit for motor vehicle'bonds. See Nichols, 704 So.2d at 1374,