author:
OSTERHAUS, J.
      B.L. THOMAS, J.,

text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL S-20, Florida State Fire Service Association, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0618
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Rehearing Denied July 18, 2017

      Tobe Lev and .Richard Siwica of Egan, Lev & Siwica, P.A., Orlando, for Appellant.
    Richard A. Sicking and Mark A. Touby of Touby, Chait- & Sicking, P.L., Coral Gables, for Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO, Amicus Curiae in support of Appellant.
    Thomas W. Brooks of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee, and G. “Hal” Johnson of Florida Police Benevolent Association, Inc., Tallahassee, for Florida Police Benevolent Association, Inc., Amicus Curiae in support of Appellant.
    Michael Mattimore, Jason Miller, and Avery McKnight of Allen, Norton & Blue, P.A., Tallahassee, for Appellee.
   OSTERHAUS, J.

The International Association of Firefighters Local S-20 appeals a decision of the Public Employees Relations Commission dismissing an unfair labor charge against the Governor for vetoing a proviso in the General Appropriations Act (GAA). Had the proviso been approved, it would have given a raise to’ firefighters who work for the State. We affirm because the Governor has constitutional authority to veto specific appropriations of the GAA, and because the Legislature ultimately resolved the impasse by maintaining the status quo.

I.

Article I, § 6 of the Florida Constitution, along with its enabling statute, chapter 447, Florida Statutes, recognizes state employees’ right to collectively bargain. State v. Fla. Police Benevolent Ass’n, 613 So.2d 415, 418 (Fla. 1992). In the case of state employees, the Governor is considered the public employer in collective bargaining negotiations. § 447.203(2), Fla. Stat. As'part of the statute, § 447.403 sets forth the process by which state employees and the Governor, must resolve impasses. The Legislature is responsible for resolving impasse issues. § 447.403(2)(b), Fla. Stat. When parties reach an impasse, the Legislature must convene a committee to review impasse issues and recommend- a resolution to the Legislature. §'447.403(6)(a), Fla. Stat. Once the.Legislature, takes action on the resolution, the parties, are bound. § 447.403(5)(b), Fla. Stat. ;

Appellant Local S-20 is the duly authorized bargaining agent for a unit of firefighters employed by the State of Florida. Local S-20 and the Governor bargained over wages, hours, and conditions of employment for fiscal year 2015-2016, and reached an impasse on several issues. Most notably, Appellant sought a $1500 per member raise. Upon reaching impasse, the parties submitted their positions to the Joint Select Committee on Collective Bargaining as required by the statute for resolving impasses. After the Committee completed its work, the Legislature passed the GAA, which included proviso language resolving the impasse by granting a $2000 per member pay raise, an even larger raise than Appellant had sought. The Legislature also passed a catch-all impasse provision in chapter 2015-223, Laws of Florida, providing for the resolution of unaddressed impasses “by maintaining the status quo under the applicable current bargaining agreement.” When the GAA, was presented to the .Governor, he vetoed the $2000 raise-specific proviso. After the Legislature took no subsequent action to override the veto, the impasse was resolved by maintaining the status quo.

When the State presented the bargaining agreement without including the raise, Appellant filed an unfair labor practice charge claiming that the Governor lacked veto authority. But the. Public Employees Relations Commission dismissed the charge. It rejected Appellant’s claim that the Governor was powerless to veto the raise and approved the State’s presentation of a bargaining agreement that maintained wages at the status quo. .

II.

This case involves the Governor’s authority to review and veto public employee, collective bargaining-related matters in the GAA, The Legislature tried to resolve a wage-related impasse in this case by including a $2000 raise in a specific appropriation within the GAA. Because the GAA is not self-executing, however, the act went to the Governor for approval.

The Florida Constitution is clear that the Governor may sign the GAA, veto it, or veto specific appropriations within the act. Article III, § 8, Fla. Const. (“The" governor may veto any specific appropriation in a general appropriation' bill .... ”). In this case, if the Governor approved the $2000 raise within the GÁA, then the impasse would be resolved. However, if the Governor vetoed either the entire GAA, or the raise-specific proviso within the .GÁÁ, then the impasse would remain within the Legislature’s purview to resolve by some other means.

The Governor vetoed the specific appropriation here and Appellant takes issue with it. Appellant does not dispute the Legislature’s attempt to resolve, impasses via the GAA, in the first instance, but argues that the Governor was required to approve the raise-specific appropriation in the GAA. See § 447.403(5)(b), Fla. Stat. (“Any actions taken by the Legislature shall bind the parties ... .■”). Based primarily on a statute, Appellant asks us to recognize a limitation on the Governor’s constitutional authority to review the GAA, even though the Constitution explicitly allows the Governor to veto the GAA or “any specific appropriation in a general appropriation bill.” Article III, § 8, Fla. Const, (emphasis added). We cannot accept Appellant’s invitation. The Florida Constitution clearly articulates the Governor’s authority to veto the GAA, or specific appropriations therein. Id It authorized him to veto the raise appropriation here. See Brown v. Firestone, 382 So.2d 654 (Fla. 1980) (setting forth parameters regarding the exercise of the Governor’s veto power). That Appellant’s members possess constitutional collective bargaining rights does not alter the Governor’s constitutional authority with respect to the GAA. See Fla. Police Benevolent Ass’n, 613 So.2d at 418-19 (refusing to elevate the collective bargaining rights of public employees and thus alter “years of strict adherence to the separation of powers doctrine”). The Governor’s action in this case comported with his constitutional authority.

Moreover, the Governor’s veto did not displace the Legislature’s power to resolve the impasse in this case. After the veto, the Legislature retained final authority under § 447.403(5)(b) to resolve the wage impasse, and it did so here. The Legislature knew two things before attempting to resolve the impasse through the GÁA: (Í) that the Governor could veto specific appropriations, and (2) that it could override any veto. After the Governor exercised his veto authority in this case, nothing stopped the Legislature from exercising its constitutional authority to override his veto. See Article III, § 8(c), Fla. Const. A legislative override would have granted state firefighters the $2000 per employee raise they sought. But instead, the Legislature accepted the status quo. In fact, the Legislature enacted a separate act providing a catch-all impasse resolution provision that became law. Chapter 2015-223, § 1, Laws of Florida, provided for unaddressed impasses to be resolved “by otherwise maintaining the status quo under the language of the applicable current bargaining agreement.” The Legislature effectively resolved the impasse by choosing not to override the Governor’s Veto and maintaining the status quo.

Appellant argues that we should follow Dade County Police Benevolent Association v. Miami-Dade County Board of County Commissioners, 160 So.3d 482, 483 (Fla. 1st DCA 2015), in which we held that a local executive branch official could not veto the legislative body’s resolution of an impasse. But that case presented a different scenario that didn’t involve restricting the Governor’s constitutional authority to veto appropriations. The mayor in that case did not have constitutional authority to veto the impasse resolution and that veto violated Florida’s collective' bargaining statute. Here, by contrast, the Governor possessed explicit constitutional authority to veto appropriations within the GAA. See Art. III, § 8(a), Fla. Const. And so, while it is true that public employees possess important, constitutionally protected collective bargaining rights, the Legislature cannot force the Governor’s hand to approve and sign the GAA, or specific appropriations therein. Fla. Police Benevolent Ass’n, 613 So.2d at 418—19 (warning of separation of powers encroachments). The Legislature here retained and exercised its ultimate authority to resolve the impasse after the Governor’s veto, but chose not to override the veto and to maintain the status quo.

III.

The decision of the Public Employees Relations Commission is AFFIRMED.

JAY, J., CONCURS; B.L. THOMAS, J., DISSENTS WITH OPINION.

B.L. THOMAS, J.,

DISSENTING.

I respectfully dissent. As both parties agree, this case presents this court with a conflict between two state constitutional provisions: The Governor’s veto authority under Article III, section 8 of the Florida Constitution, and the constitutional right of public employees to collectively bargain under Article I, section 6 of the Florida Constitution, as interpreted in Dade County Classroom Teachers Association v. The Legislature of the State of Florida, 269 So.2d 684 (Fla. 1972), and implemented in Chapter 447, Florida Statutes. The State asserts that the Governor’s veto power is legally superior to the constitutional right of public employees to collectively bargain, by arguing that the Governor may veto the pay increase granted by the Florida Legislature to resolve a collective bargaining impasse, and absent legislative override, such a veto is the final word. Conversely, the public employees argue that their constitutional right to collectively bargain must, in this limited instance, trump the Governor’s veto authority, absent the Governor demonstrating a compelling public interest to justify the veto of the Legislature’s resolution of the impasse in the employees’ favor. See Chiles v. United Faculty of Fla., 615 So.2d 671, 673 (Fla. 1993) (“[W]e agree with the trial court that the legislature has authority to reduce previously approved appropriations ... made pursuant to a collective bargaining agreement, but only where it can demonstrate a compelling state interest.”). Otherwise, the public employees argue, their right to collective bargaining is eviscerated. Here, the public employees’ argument should prevail, which would not otherwise significantly impair the Governor’s general veto authority and properly harmonizes conflicting provisions of organic law. State v. Div. of Bond Fin. of Dep’t of Gen. Servs., 278 So.2d 614, 617 (Fla. 1973) (“It is a fundamental rule of construction that, if possible, amendments to the Constitution should be construed so as to harmonize with other constitutional provisions, but if this cannot be done, the amendment'being the last expression of the will of the people will prevail.”).

The State assetts that public employees, who accomplished a herculean task by convincing a majority of both houses of the Legislature to grant a positive ruling on an impasse, must then return to the Legislature and convincé two-thirds of the membership to override the veto, in order to preserve the Legislature’s resolution of the impasse. To impose such a requirement on public employees in essence holds that public employees have no effective constitutional right to collective bargaining, as they must in fact accomplish not simply a herculean task, but instead achieve a near-impossible feat of persuading the Legislature to exercise its override authority, an extremely rare occurrence, precisely because of the grave political ramifications an override necessarily causes between the Executive and Legislative branches.

To avoid a result that renders hollow the constitutional right of collective bargaining, the Public Employees Relation Act should be interpreted to require that the Governor demonstrate a compelling public interest, such as a budgetary emergency, to sustain a gubernatorial veto of a legislative resolution of impasse. While public employees have no right to receive a favorable resolution from the Legislature on collective bargaining, once the Legislature has ruled in the public employees’ favor and against the Governor, it cannot be reconciled with Article I, section 6 of the Florida Constitution to allow the Governor to render the Legislature’s decision a nullity through the veto authority.

Here, collective bargaining reached an impasse between the Governor and Appellants regarding disputed wages for fiscal year 2015-2016. To resolve the impasse, under section 447.203 and 447.403, Florida Statutes, the Legislature appropriated a $2000 individual salary increase for the firefighters’ bargaining unit, or a specific appropriation of $1.57 million. Following this resolution, the Governor vetoed the salary increase, stating that “this issue should be addressed at a statewide level for all employees.” See Budget Transmittal Letter from Rick Scott, Governor of Fla., to Ken Detzner, Sec’y of State (June 23, 2015) (vetoing section 8(a) specifying pay issues, Ch. 2015-232, Laws of Fla. pg. 404).

In United Faculty of Florida, the supreme court held that once the Legislature resolved an impasse with state employees by enacting a 3% pay increase, even the Legislature, absent a compelling state interest, was powerless to retract the increase, notwithstanding a severe budget shortfall. 615 So.2d at 672-73. The court noted that once the Legislature resolves an impasse and funds an agreement with public employees, a valid contract exists with the public employees that cannot be abrogated. Id. at 673. In addition, however, the supreme court relied on the public employees’ constitutional right to collectively bargain under Article I, section 6 of the Florida Constitution. Id. at 672. Furthermore, the court distinguished its hold-tag in State v. Florida Police Benevolent Association, 613 So.2d 415 (Fla. 1992), because in that case, “no final agreement had been reached between the parties ... and funded ... by the legislature.” Id. at 672.

This case is and should be controlled by the logic and precedent of United Faculty of Florida, as in both cases the Legislature funded the impasse resolution. Acting as the third-party decision maker to resolve an impasse, the Legislature’s decision should be the final result, absent a compelling state interest that cannot be rectified by reasonable alternative means. In United Faculty of Florida, the court quoted its earlier decision in Florida Police Benevolent Association:

[wjhere the legislature provides enough money to implement the benefit as negotiated, but attempts to unilaterally change the benefit, the changes will not be upheld, and the negotiated benefit will be enforced.

Id. at 673 (emphasis added) (quoting Fla. Police Benevolent Ass’n). The court has thus declared that the Legislature will not be permitted to “unilaterally” abrogate the constitutionally-grounded collective bargaining rights of public employees.

The question at issue here is whether the Governor, by using his veto power, may unilaterally vacate the Legislature’s decision to resolve a collective-bargaining impasse. Based on logic, precedent, and the constitutional basis of public employees’ collective bargaining rights, the correct answer is no.

In Florida Police Benevolent Association, the supreme court held that the Leg-Mature could not be compelled to appropriate funds to implement a negotiated agreement between the Governor, the employer, and the public employees, stating, “The fact that public employee bargaining is protected under Florida’s Constitution does not require us to ignore universally recognized distinctions between public and private employees.” 613 So.2d at 418. The court held that the separation of powers doctrine in Article II, section 3 and the provision of Article VII, section 1(c) of the state constitution requires that “exclusive control over public funds rests solely with the legislature.” Id. But .this decision also recognized that if the Legislature appropriated an adequate amount to fund a negotiated resolution of an impasse, the Legislature could not change the agreement, absent a compelling public interest. Id. at 421. The Legislature should be recognized as the final decision maker in the resolution of an impasse between the Governor and public employees here.

I would hold that when the Legislature appropriates the necessary funds to resolve an impasse- of collective bargaining between the Governor and public employees, this appropriation cannot be vetoed, absent a compelling public interest, in order to preserve any meaningful constitutional right of .public employees to collectively bargain under Article I, section 6 of the Florida Constitution. Such a limited holding would properly preserve this constitutional right, without doing inordinate harm to the authority of the Governor to lawfully exercise the veto authority under Article III, section 8 of the Florida Constitution,

      . In 2010, the Legislature overrode eight vetoes of Governor Crist, but those vetoes were the "first overrides in 12 years.” Bill Kaczor, Florida lawmakers override 8 Crist vetoes, Des-eret News (Nov. 16, 2010, 12:00AM), http:// www.deseretnews.com/article/700082591/ Florida-lawmakers-override-8-Crist-vetoes. html?pg=all.

      . Important here in context, when public employees do not receive a salary increase, their salary is actually reduced proportionate to the inflation rate. When this increase was vetoed, a pay increase granted by the Legislature to resolve an impasse of collective bargaining became a pay reduction. A public employee earning $40,000 in 2011 must earn $42,460 in 2016 to keep pace with inflation. Inflation Calculator, http://www.in2013dollars.com/ 2011-dollars-in-016?amount=40 (last visited Mar. 24, 2017).


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    TRAVELERS CASUALTY AND INSURANCE COMPANY OF AMERICA, Appellant, v. COMMUNITY ASPHALT CORPORATION, Appellee.
    No. 3D16-4
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Knott Ebelini Hart, and. George H. Knott and Kristie A. Scott (Fort Myers), for appellant.
    ' Malka & Krayitz, P.A., and Ian T. Krav-itz (Fort Lauderdale), for appellee.

      Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   LOGUE, J.

A Subcontractor sued a Surety for amounts unpaid by the General Contractor. The Surety moved to dismiss for improper venue. The motion to dismiss maintained that the lawsuit was not filed in the county required by the venue selection clause of the subcontract between the General. Contractor and the Subcontractor. The trial court denied the motion. We have jurisdiction to review this non-final order. See Fla. R. App. P. 9.130(a)(3)(A). We affirm the order on all issues raised, and write only to explain why the subcontract’s venue selection clause does not control.

FACTS AND PROCEDURAL HISTORY

The General Contractor entered into a contract with the Collier County Board of County Commissioners to perform a construction project on an airport runway in the County. Among other things, the contract required the General Contractor to provide a public payment bond and public performance bond underwritten by a surety. In compliance with this mandate, the General Contractor retained the Surety. In conformance with the public bond statute, the bond underwritten by the Surety refrained from restricting the venue of lawsuits based upon it. See § 255.05(1)(e), Fla. Stat. (2015).

The General Contractor then entered into a subcontract with the Subcontractor to furnish asphalt paving for the project. The subcontract included a provision restricting venue to Lee County: “The parties hereby agree that the venue for any legal action brought against the contractor or the contractor’s surety in connection with this Subcontract shall be in a state court of competent jurisdiction in Lee County, Florida.”

The Subcontractor later brought suit against the Surety in Miami-Dade County, seeking to enforce a claim against the public paymént bond under the public bond statute for amounts unpaid by the General Contractor. The complaint also noted that the General Contractor breached the subcontract. But the Subcontractor did not name the General Contractor as a party to the lawsuit. ’

In response, the Surety moved to dismiss for improper venue. It argued that pursuant to the subcontract’s venue selection clause, the proper venue was Lee County. The Subcontractor disagreed. It argued that the public bond statute rendered the subcontract’s • vénue selection clause unenforceable. The Subcontractor further explained why Chapter 47, Florida Statutes, authorized venue in Miami-Dade County in this case. The trial court ultimately agreed with the Subcontractor and denied the Surety’s motion to dismiss for improper venue. The Surety appealed.

ANALYSIS

We must decide the proper venue for an action brought by a subcontractor against a surety on a public payment bond, where the public bond statute provides that such an action may be brought in any county authorized by Chapter 47, where the statute further prohibits any provision in a payment bond that restricts venue, where the subcontract restricts venue, and where the principal on the bond (the general contractor) is not named in the subcontractor’s action. Because this issue requires us to interpret the public bond statute, our standard of review is de novo. See Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006) (“This issue involves a question of statutory interpretation and thus is subject to de novo review.”).

The public bond statute provides that an action against a surety on a public payment bond may be brought in any county authorized by Chapter 47. § 255.05(5) (“In addition to the provisions of chapter 47, any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired,”). It further prohibits any provision in a payment bond that restricts the venue of any proceeding relating to such bond. § 255.05(l)(e) (“Any provision in a payment bond issued on or after October 1, 2012, furnished for public work contracts as provided by this subsection ... which restricts the venue of any proceeding relating to such bond ... is unenforceable.”).

In this case, the Subcontractor brought an action against the Surety based on the public payment bond and the public bond statute. Thus, contrary to the Surety’s argument, the Subcontractor’s cause of action against the Surety is based first and foremost upon the surety bond. See Am. Ins. Co. v. Joyner Elec., Inc., 618 So.2d 799, 800 (Fla. 1st DCA 1993) (“[T]he ‘contract’ is the surety bond issued by [the surety] which adopts the venue provisions of Chapter 47, Florida Statutes.”). To the extent that Insurance Company of North America v. Jetstar Development, Inc., 515 So.2d 272 (Fla. 4th DCA 1987) holds that the subcontract is the operative contract in these facts, we respectfully disagree with it.

Because the Subcontractor’s cause of action is based on the surety bond, the venue selection clause in the subcontract will control the cause of action only if it is read into the surety bond. Upon being read into the surety bond, however, the venue selection clause becomes void pursuant to section 255.05(l)(e), which expressly prohibits any provision in a surety bond that restricts venue. This reasoning follows the language of the statute. To hold otherwise would make the public bond statute’s prohibition on venue-restricting provisions in a bond a virtual nullity because it could be evaded so easily.

In so ruling, we do not reach the issue of whether our holding would apply to an action brought by a subcontractor against both the general contractor and the general contractor’s surety. We note, without deciding, that such an issue may involve different considerations. See Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 837 So.2d 1182, 1184 (Fla. 4th DCA 2003) (“We recognize that a plaintiff should not be permitted to thwart a venue provision in a contract by joining a contract claim with a separate cause of action. ... Multiple suits would split the action and open the door to conflicting results.”).

Affirmed.


author: LUCK, J.

text:
    Roberto G. ORDONEZ-MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-296
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Rehearing Denied June 28, 2017

      Robert G. Ordonez-Medina, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   LUCK, J.

Roberto Ordonez-Medina appeals from the trial court’s order denying his motion for posteonviction DNA testing, pursuant to Florida Rule of Criminal Procedure 3.853. The trial court found Ordonez-Medi-na had not met his burden to show a reasonable probability that he would have been acquitted if the DNA evidence from the firearm had been admitted at trial. See Lambrix v. State, No. SC16-56, 217 So.3d 977, 987, 2017 WL 931105, at *6 (Fla. Mar. 9, 2017) (“[I]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence. [A] trial court does not err in denying a motion for DNA testing where the defendant cannot show that there is a reasonable probability that the absence or presence of DNA at a crime scene would exonerate him or lessen his sentence.” (quotations omitted, second alteration in original)). For three reasons, we agree with the trial court’s finding and affirm.

First, Ordonez-Medina confessed to shooting his ex-girlfriend. Ordonez-Medi-na gave a recorded confession that he grabbed the firearm, pointed it at the victims’ vehicle, and fired into the vehicle, striking his ex-girlfriend on the left side of her hip. Earlier, Ordonez-Medina confessed to a different law enforcement officer that he shot the victim. And even earlier, shortly after the attempted murder, Ordo-nez-Medina spontaneously stated to a third law enforcement officer that he shot the victim.

Second, a law enforcement officer eyewitness saw Ordonez-Medina with a firearm in his hand immediately after the shooting. This eyewitness officer heard the argument between Ordonez-Medina and his ex-girliriend, heard the shooting, saw Ordonez-Medina follow the victims in the ear, and followed Ordonez-Medina as he had the firearm in his hand. The officer, after he stopped Ordonez-Medina car, took possession of the firearm from the front passenger seat.

Third, Ordonez-Medina faulted his trial counsel for not pursuing an accident/diminished capacity defense. In Ordonez-Medi-na’s 2012 post-conviction motion, he alleged that his trial counsel was ineffective for failing to offer evidence that the shooting was an accident or the result of diminished capacity because of a mental illness..

The Florida' Supreme Court, in a series of DNA testing cases, has concluded that with confessions, eyewitness testimony, and an accident defense, the defendant cannot show a-reasonable probability of an acquittal. The identity of the defendant in these kinds of cases, the Court has explained,- is not in doubt. See Hitchcock v. State, 991 So.2d 337, 348 (Fla. 2008) (“We agree with -the circuit,- court’s finding that Hitchcock has not demonstrated how DNA testing would result in newly discovered evidence likely to produce an acquittal on retrial. DNA analysis of the pubic hairs found on the victim would not exonerate Hitchcock because he admitted having sexual intercourse with her.”); Sireci v. State, 908 So.2d 321, 325 (Fla. 2005) (“[W]e conclude that, in light'of the other evidence of guilt, there is no reasonable probability that Sireci would have been acquitted or received a lesser sentence if the State had not introduced into evidence the hair on Poteet’s sock. As we have noted, seven witnesses testified that Sireci admitted to them that he killed Poteet. We find no error in this regard.”); Robinson v. State, 865 So.2d 1259, 1265 (Fla. 2004) (“Robinson failed to state in the motion how DNA testing of all the items listed would exonerate him of or even mitigate his sentences for robbery, sexual battexy, and first-degree murder. Notably, Robinson stipulated that he shot the victim twice in the head, but claimed that the first shot was accidental and took place after the two engaged in consensual' sex. Thus, his identity and physical contact with the decedent are not at issue, (citation omitted)); see also Hartline v. State, 806 So.2d 595, 595-96 (Fla. 5th DCA 2002) (“[W]e agree with the court below that there is no reasonable probability of acquittal if the DNA-evidence was reexamined. Hartline’s identity was not in question and based on the sexual activity with the child victim which he admitted performing, the victim’s testimony, and acts an eyewitness described, even exculpatory DNA results would not have been given any weight by the jury.”).

Here, we have the same kind. of evidence. Ordonez-Medina confessed; an eyewitness saw him with a gun immediately after the shooting; and his preferred defense was that the shooting was an accident (not that he didn’t do it). With all this, Ordonez-Medina has not shown a reasonable probability that he would have been acquitted if DNA from the firearm had been admitted at trial. We, therefore, affirm.

Affirmed.


author: LAGOA, J.

text:
    Marion Tomislav TOPIC, Appellant, v. Tamar Verduga TOPIC, Appellee.
    No. 3D17-52
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      A.J. Barranco & Associates, P.A., and A.J. Barranco, Jr. and Melissa Acosta Rodriguez; Holland & Knight, LLP, and Rodolfo Sorondo, Jr. and Rebecca M. Pla-sencia, for appellant.
    Coffey Burlington, and Albert G. Carua-na; Greene Smith, P.A., and Cynthia L. Greene, for appellee.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   LAGOA, J.

Appellant Marion Tomislav Topic (the “Husband”) appeals from the trial court’s non-final order denying as untimely his motion to dismiss on the grounds of forum non conveniens. Because we find that the Husband’s motion to dismiss was not timely filed in accordance with Florida Rule of Civil Procedure 1.061(g), we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This interlocutory appeal arises from a dissolution of marriage action between the Husband and Appellee Tamar Verduga Topic (the “Wife”). Both Husband and Wife are citizens of Ecuador, and were married on December 16, 1991, during a business trip to Miami. The newlyweds returned to Ecuador and throughout their marriage, the couple lived and worked in Ecuador. In early 2013, the Husband abandoned the marital home in Ecuador.

On August 10, 2014, the Husband notified the Wife in writing that he was seeking “dissolution of the community property.” The Husband did not and could not file a divorce action in Ecuador because, at the time, there was a three year waiting period before a person who left the marital home could seek a divorce. Shortly thereafter, the Wife flew to Miami and, on August 12, 2014, she filed a Petition for Support Unconnected with Dissolution of Marriage, pursuant to section 61.09, Florida Statutes (2014).

On August 13, 2014, the Husband was personally served in Florida. On September 24, 2014, the Husband, by special appearance, filed a motion to dismiss the Wife’s petition for lack of subject matter jurisdiction, lack of personal jurisdiction, and for “failure to file a maintenable action under Florida law.” In support of his motion, the Husband filed a memorandum of law and sworn affidavit. On February 20, 2015, the Husband filed an Amended Motion to Dismiss.

On July 1, 2015, the Wife amended her petition for maintenance under section 61.09 in order to seek a dissolution of the marriage. On July 20, 2015, the Husband filed a motion to strike service of process and another motion to dismiss, raising for the first time the defense of forum non conveniens. On October 14, 2016, the Husband filed an amended motion to dismiss on the grounds of priority and comity and in the alternative to abate or .stay the proceedings. While various scheduling and procedural issues delayed the case, the Husband’s various motions to dismiss were eventually scheduled for an evidentiary hearing to commence on December 5, 2016.

On the first day of the evidentiary hearing, the Husband withdrew all his motions to dismiss noticed for the evidentiary hearing except for his motion to dismiss based on forum non conveniens, and he proceeded solely on that motion. In opposition to that motion to dismiss, the Wife argued that the Husband’s forum non conveniens motion was untimely. Specifically, the Wife argued that Florida Rule of Civil Procedure 1.061(g) requ|res that “[a] motion to dismiss based on forum non conveniens shall be served not later than 60 days after service of process on the moving party.” (emphasis added).

Initially,- the trial court denied the Wife’s timeliness challenge and proceeded forward with the evidentiary hearing. On the third and final day of the evidentiary hearing, the trial court reconsidered the Wife’s timeliness challenge. In its written order, the trial court denied the Husband’s motion to dismiss as untimely because it was not raised within 60 days of service of process of the Wife’s original section 61.09 petition. In addressing the untimeliness argument, the trial court found that “[i]t is undisputed that personal service of process of Wife’s August 12, 2014 Petition for Alimony Unconnected to Divorce was made on Husband on August 13, 2014, in Miami-Dade County, Florida, while he was voluntarily in Florida looking at colleges with the parties’ son. It is undisputed that the first time Husband raised forum non con-veniens as a defense was on July 20, 2015, in his ‘Motion to Strike Service of Process and to Dismiss Petitioner/Wife’s Petition for Dissolution of Marriage.’ ” This appeal follows.

II. STANDARD OF REVIEW

We review a trial court’s denial of a motion to dismiss based on forum non conveniens under an abuse of discretion standard. See Fla. R. Civ. P. 1.061(a) (“The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.”); see also Ryder System, Inc. v. Davis, 997 So.2d 1133, 1134 (Fla. 3d DCA 2008). “This „ standard of review would apply so long as the prevailing party complied with the requirements delineated in Florida Rule of Civil Procedure 1.061, which codifies the forum non conveniens doctrine. Where the question concerns a trial court’s interpretation of the Florida Rules of Civil Procedure, however, that question is one of pure law and is reviewed de novo.” S2 Global, Inc. v. Tactical Operational Support Services, LLC, 119 So.3d 1280, 1282 (Fla. 4th DCA 2013); see also Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla. 2006).

III. ANALYSIS

The law is well _ established that where a motion to dismiss based on forum non conveniens is untimely, the motion is time-barred and must be denied. See Caraffa v. Carnival Corp., 34 So.3d 127, 130-31 (Fla. 3d DCA 2010) (reversing trial court’s dismissal based on forum non con-veniens when the motion was untimely “[in] accordance with the sixty-day time limitation period set forth'in Florida Rule of Civil Procedure 1.061(g), and well established Florida law that is consistent with the Florida Supreme Court’s pronouncements in Kinney”); Fox v. Union Carbide Corp., 910 So.2d 422, 424 (Fla. 4th DCA 2005) (reversing trial court’s, order granting motion to dismiss.based on forum non conveniens because motion was untimely filed); Wedge Hotel Mgmt. (Bahamas), Ltd. v. Meier, 868 So.2d 552, 553 (Fla. 3d DCA 2004).

In Dawson Insurance, Inc. v. Quantum Capital Network, LLC., 923 So.2d 1194 (Fla. 3d DCA 2006), this Court affirmed the. trial court’s denial of a motion to dismiss for forum non conveniens as untimely. In affirming, this Court concluded that:

By the plain language of Rule 1.061(g), 'a motion to dismiss based on forum non conveniens shall be served no later than 60 days after service of process on the moving party.’ [e.s.] The Rule provides no exception. As in Wedge, the purpose of the motion is ‘to promote the public interests that the doctrine’ of fórum nón conveniens seeks to preserve, which includes avoiding a waste of resources’ and the filing of unnecessary successive motions.

Id. at 1195 (emphasis in original) (citing Wedge Hotel, 868 So.2d at 552-53).

Here, it is undisputed that the Wife served the Husband with her section 61.09 Petition for Support Unconnected with Dissolution on August 13, 2014, and that the Husband first raised the defense of forum non conveniens on July 20, -2015. Because the Husband served his motion to dismiss based on forum non conveniens more than 60 days after service of process on him, the Husband’s motion was untimely under the plain .language of Rule 1.061(g).

On appeal, the Husband argues that Rule 1.061(g)’s sixty day timeframe does not apply because a forum non conve-niens defense was not available to challenge the' Wife’s maintenance action brought- under section 61.09. In making this argument, the Husband blurs the distinction between venue and forum non con-veniens. Citing Friedman v. Friedman, 383 So.2d 1100 (Fla. 3d DCA 1980), the Husband correctly points out that, for the .purposes of a petition for separate maintenance brought under section 61.09, venue is proper in the county where the petitioner resides, which in this case is Miami-Dade. The Husband then argues that if a motion to transfer' venue would have been improper ás directed to the initial petition, a motion to dismiss based on forum-non conveniens would also have been improper. The Husband provides no authority to support this argument. Instead, the Husband merely contends that-he would have been subject to sanctions if had he challenged the Wife’s initial petition on forum non conveniens grounds.

We find the Husband’s argument without merit. The fact that a challenge to venue may be unavailable is not dispositive of whether a fourm non conveniens challenge is available. Indeed, the Husband’s various motions to dismiss the initial petition based on lack of personal and subject matter jurisdiction raised many of the same arguments relevant in a forum non conveniens challenge, including the parties’ minimal contacts with Miami, the adequacy of Ecuador as a forum (including the legal remedies available there), the considerable burden on the Husband to. litigate in Miami, and the allegation that the Wife has “subversively forum-shopped.” At no point was the Husband subject, as a matter of law, to sanctions for filing these earlier motions to dismiss.

Moreover, venue and foruni non conveniens are not the same. "Venue is “[t]he proper or a possible place for a lawsuit to proceed; [usually] because the place has some connection either with the events that gave rise to the lawsuit or with the plaintiff or defendant.” Venue, Black’s Law Dictionary (10th ed. 2014). In contrast, forum non conveniens is a broader concept that addresses “the problem that arises when a local court technically-has jurisdiction over a suit but- the cause of action may be fairly and more conveniently litigated elsewhere.” Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 87 (Fla. 1996), In other words, the doctrine- of forum non conveniens may be invoked where venue is- proper but inconvenient. Indeed, “[t]he- doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the parties’ and court’s own convenience, as well as the relevant public and private interests, indicate that the action should -be tried in a different forum.” Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009); see also Sibaja v. Dow Chemical Co., 757 F.2d 1215, 1218 (11th Cir. 1985) (“The doctrine of forum non conveniens authorizes a trial court to decline to exercise its jurisdiction, even- though the court has venue, where it appears that the convenience of the parties and the court, and the interests of justice indicíate that' the action should betried in another forum.”); Bruce J. Berman, Florida Civil Procedure § 1.061:13 (2017) (“[B]y definition, forum non conveniens cases present circumstances in which venue is proper, albeit inconvenient.”).

The Husband filed multiple motions to dismiss the initial petition, which asserted many of the the same points raised in his subsequent motion to dismiss based on forum non conveniens. Although the Husband correctly notes that he did not have a valid basis to challenge venue of the initial petition, the doctrine of forum non conve-niens permits a trial court to decline to exercise its jurisdiction, even though the court has venue, where it appears that the convenience of the parties and the court, and the interests of justice indicate that the action should be tried in another forum. As such, nothing precluded the Husband from timely asserting the defense of forum non conveniens pursuant to Florida Rule of Civil Procedure 1.061(g).

While the Husband would like this Court to create an exception to the clear and unambiguous language of Rule 1.061(g), we decline the invitation as “[t]he Rule provides no exception.” Dawson, 923 So.2d at 1195. If we were to adopt the Husband’s argument, then no litigant could raise a forum non conveniens challenge when venue was proper. This is contrary to Rule 1.061(g) and to established case law distinguishing between venue and forum non conveniens.

IV. CONCLUSION

“The doctrine of forum non conveniens permits a court with venue to decline to exercise its jurisdiction when the parties’ and court’s own convenience, as well as the relevant public and private interests, indicate that the action should be tried in a different forum.” Pierre-Louis, 584 F.3d at 1056. Florida Rule of Civil Procedure 1.061(g) mandates that a motion to dismiss based on forum non conveniens shall be served no later than sixty days after service of process on the moving party. The Husband failed to file a motion to dismiss based on forum non conveniens within the required time frame, and we therefore affirm the trial court’s order.

Affirmed.

      . While record evidence does not indicate the exact date, the Husband testified in his deposition that he left the marital home at the end of February 2013.

      . Section 61.09, Florida Statutes (2014), provides:
      If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.

      .The Husband’s Second Re-Notice of Hearing listed on an attached Exhibit “A” the following pending motions for the special set three day hearing commencing on December 5, 2016: (1) 9/24/14 Motion to Dismiss for Lack of Subject Matter Jurisdiction, for Lack of Personal Jurisdiction, and for Failure to File a Maintainable Action Under Florida Law; (2) 2/20/15 Amended Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to File a Maintainable Action Under Florida Law; (3) 07/20/15 Motion to Strike Service of Process and to Dismiss Wife’s Petition for Dissolution of Marriage and Other Relief; (4) 10/20/15 Motion to Strike Service of Process and to Dismiss Wife’s Petition for Dissolution of Marriage and Other Relief; and (5) 10/30/15 Amended Motion to Strike Service of Process and to Dismiss Wife’s Petition for Dissolution of Marriage and Other Relief.

      . As the trial court acknowledged in its written order, the Husband conceded the trial court’s jurisdiction over the subject matter and the Husband's person.

      . At the conclusion of the Husband’s evidence, the Wife moved for involuntary dismissal of the Husband’s motion based on untimeliness, which the trial court treated as a renewal of the Wife’s defense of untimeliness.

      . The Husband also argued below, that the Wife's amendment was a separate transaction or occurrence, which required service of process and therefore started a new sixty day period running. In dismissing this argument, the trial court relied on Gilbert v. Gilbert, 187 So.2d 49 (Fla. 3d DCA 1966). In Gilbert, this Court held that a separate maintenance action could properly’ be amended with a complaint for divorce because’ both causes of action were based on the same specific conduct. Id. at 52; see also §§ 65.04 (“Grounds for divorce”) and 65.09 (“Rights of wife unconnected with divorce”), Fla. Stat, (1965). We find Gilbert dispositive on this isgue. Moreover, as the Husband withdrew all his pending motions before the trial court at the start "of the evidentiary hearing with'the exception ' of the motion to dismiss based on forum non conveniens, the Husbánd has waived any arguments based on service of process.

      . The Husband’s expert, Dr. Sonia Merlyn Sacoto, testified to the availability of an action in Ecuador similar to the Wife’s separate maintenance action—an action for “voluntary consignment of alimony..”

      . Significantly, we note that the trial court found that the testimony of the Husband’s expert, Dr. Sonia Merlyn Sacoto, was “contrary” to the Husband’s argument that the defense of forum non conveniens was not available to him as a defense to the Wife's section 61.09 petition. In its written order, the trial court further cited Wachsmuth v. Wachsmuth, 528 So.2d 1201 (Fla. 4th DCA 1988). In Wachsmuth, the wife, a German national, brought a petition under section 61.09 for alimony and child support unconnected to dissolution. After being served, the husband, a German national, raised forum non conveniens as a defense, which the trial court denied.


author: PER CURIAM.

text:
    R. PLANTS, INC., et al., Appellants, v. DOME ENTERPRISES, INC., Appellee.
    No. 3D16-2333
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Rehearing Denied June 23, 2017

      Law Offices of Deborah Kaicher Pastran and Deborah Kaicher Pastran, for appellants.
    Law Office of Fred Viera, PLLC and Fred Viera, for appellee.
    Before SUAREZ, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

The trial court granted Dome Enterprises, Inc.’s motion for summary judgment against R Plants, Inc. and its president, Victor Rodriguez, on Dome’s claim for breach of contract. On appeal, R Plants and Rodriguez contend that the trial court erred because: (1) Dome did not meet its initial burden to present evidence that they breached the contract; and (2) Dome was awarded unliquidated damages without an evidentiary hearing. We affirm.

As to the first issue, a plaintiff moving for summary judgment must present evidence supporting all the material elements of its claim. See First Nat. Entm’t Corp. v. Brumlik, 531 So.2d 403, 405 (Fla. 5th DCA 1988) (“The plaintiff ... as movant for summaiy judgment, had the burden ... to affirm with evidence all material facts necessary to support his complaint .... ”). Once it does, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.” Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979)

Here, Dome attached affidavits to its summary judgment motion providing that it entered into a written contract with R Plants and Rodriguez and performed all of its obligations; R Plants and Rodriguez breached the contract by refusing to perform their part under the contract; and the breach caused $61,290 in damages (not including costs, interest, and attorneys’ fees). See Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000) (“The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages.”). R Plants and Rodriguez, in response, did not allege any affirmative defenses, and did not present evidence in opposition to the summary judgment motion. There being no counterevidence, there was no genuine issue of material fact on Dome’s breach of contract claim, and the trial court correctly granted summary judgment.

As to the second issue, whether the trial court erred in awarding unliqui-dated damages without an evidentiary hearing, “any claim for damages, liquidated or unliquidated, or for attorneys fees and costs can be' decided by summary judgment.” Sloan v. Freedom Sav. & Loan Ass’n, 525 So.2d 1000, 1001 (Fla. 5th DCA 1988). Dome’s summary judgment motion included affidavits providing the damages it suffered as a result of R Plants and Rodriguez’s breach of the contract, and the costs and attorneys’ fees that went into prosecuting its claim. If there had been counterevidence on the amount of damages, then a hearing or trial may have been required. Without a genuine issue of material fact on the amount of damages caused by the breach, summary judgment was appropriate.

Affirmed.

      . Dome contracted with R Plants and Rodriguez to construct a concrete pad on R Plants' property.


author: PER curiam.

text:
    Norman D. REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0857
    District Court of Appeal of Florida, First District.
    Opinion filed June 14, 2017
    Rehearing Denied July 18, 2017
    Norman D. Reynolds, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER curiam.

Appellant is serving a life sentence for one count of sexual battery of a child under 12, along with 30-year sentences for two counts of lewd and lascivious molestation. His convictions and sentences—Duval County Case No. 04-CF-2821—were per curiam affirmed on direct appeal and have been final for more than- 9 years. See Reynolds v. State, 977 So.2d 584 (Fla. 1st DCA 2008) (table) (mandate issued April 16, 2008).

‘Appellant has filed rhultiple 'motions seeking postconviction relief over the years, but he has not obtained any relief. See Reynolds v. Jones, 176 So.3d 1020 (Fla. 1st DCA 2015) (dismissing the untimely appeal of a rule 3.850 motion); Reynolds v. State, Case No. 1D14-4346 (Fla. 1st DCA Nov. 25, 2014) (unpublished order dismissing appeal from an order denying a rule 3.850 motion); Reynolds v. State, 65 So.3d 1059 (Fla. 1st DCA 2011) (table) (affirming the denial of a rule 3.850 motion). His current motion seeks “relief from judgment” pursuant to . Florida Rule of Civil Procedure 1.540(b) and several provisions of Federal Rule of Civil Procedure 60, but the trial court properly treated the motion as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court denied the motion as untimely.

We affirm the denial of the motion. The claim raised in the- motion—that Appellant’s convictions and sentences are void because the information was not supported by sworn testimony of a material witness—is not only untimely, but it is also successive. and frivolous. See Edwards v. State, 128 So.3d 134, 135 (Fla. 1st DCA 2013); Logan v. State, 1 So.3d 1253, 1254-55 (Fla. 4th DCA 2009). The brief filed by Appellant did not present a colorable argument for reversal of the trial court’s order.

Because we find this appeal to be frivolous, we direct the clerk to forward a certified copy of this opinion to the Department of Corrections for appropriate disciplinary action against Appellant. See § 944.279, Fla. Stat.; Ponton v. Willis, 172 So.3d 574 (Fla. 1st DCA 2015). Additionally, we caution Appellant that the filing of any additional frivolous or repetitious appeals or petitions in this court challenging his convictions and sentences in Duval County Case No. 04-CF-2821 may result in an order barring him from further pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999); Fla. R. App. P. 9.410.

AFFIRMED.

WETHERELL, RAY, and MAKAR, JJ„ CONCUR.

      . The trial court also directed Appellant to show cause why he should not be barred from further pro se filings challenging' his convictions and sentences, and the court subsequently entered an "Order Prohibiting Defendant From Further Pro Se Filings.” We affirmed that order in a separate appeal. See Reynolds v. State, Case 1D17-1314, 2011 WL 2906116 (Fla. 1st DCA June 7, 2017).


text:
    MONTOYA HOLDINGS, INC., etc., Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., et al., Respondents.
    Nos. 3D17-723 and 3D17-699
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Charlip Law Group, LC and David H. Charlip, for petitioner.
    Dwight O. Slater, Chief Appellate Counsel (Tallahassee); Lauren A. Leikam, Assistant General Counsel (Tallahassee), for respondents.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

We deny the petitions seeking review of non-final agency action. Bethencourt-Miranda v. State, Dept. of Health, 910 So.2d 927 (Fla. 1st DCA 2005); Field v. State, Dept. of Health, 902 So.2d 893 (Fla. 1st DCA 2005).


author: ROTHENBERG, J.

text:
    KIDDE FIRE TRAINERS, INC., a New Jersey Corporation, Petitioner, v. Kevin Eddie MCCREA, Chaunte T. McCrea, his wife, and Terry Maley, Respondents.
    No. 3D17-636
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Shapiro, Blasi, Wasserman & Hermann, P.A., and Stuart A. Weinstein (Boca Ra-ton), for petitioner and respondent Terry Maley.
    Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Dolan, Dob-rinsky & Rosenblum, LLP, and Daniel D. Dolan, II and Eric Bluestein, for respondents Kevin Eddie McCrea and Chaunte T. McCrea.
    Before ROTHENBERG, LOGUE, and LUCK, JJ.
   ROTHENBERG, J.

The primary issue we must address in reviewing this petition for writ of certiorari filed by the defendant below, Kidde Fire Trainers, Inc. (“Kidde Fire”), is whether the trial court departed from the essential requirements of law by imposing a particular sanction—the waiver of Kidde Fire’s work-product privilege as to numerous emails pertaining to Kidde Fire’s investigation and actions following an incident involving plaintiff Kevin Eddie McCrea— based on Kidde Fire’s, not counsel’s, serious and intentional discovery violations relating to the e-mails. As there is competent substantial evidence to support the trial court’s finding that the discovery violations were intentional and because the sanction imposed by the trial court was well within its discretion, we find no departure from the essential requirements of law. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004) (“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed ... absent an abuse of the sound exercise of that discretion.”); Toll v. Korge, 127 So.3d 883, 886-87 (Fla. 3d DCA 2013) (holding that a trial court’s determination of sanctions is committed to the trial court’s discretion). We, therefore, deny Kidde Fire’s petition for writ of certiorari.

Denied.

      . A party seeking certiorari relief must demonstrate that the trial court’s order "departfe] from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal.” Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So.3d 1086, 1089 (Fla. 3d DCA 2013). The last two elements are often referred to as irreparable harm, see Stockinger v. Zeilberger, 152 So.3d 71, 73 (Fla. 3d DCA 2014), and "[t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Id. Kidde Fire has established the jurisdictional prerequisites to certiorari relief.


author: EMAS, J.

text:
    Marcus BERTO and Werner Batista, Appellants, v. MERIDIAN TRUST COMPANY, etc., et al., Appellees.
    No. 3D17-284
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Bilzin Sumberg Baena Price & Axelrod and José M. Ferrer and Yasmin Fernandez-Acuña; Reed Smith LLP, Edward M. Mullins and Ana Maria Barton, for appellants.
    Aballi Milne Kalil, P.A., Hendrik G. Milne and Craig P. Kalil, for appellees.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

Appellants Marcus Berto and Werner Batista seek review of an ex parte temporary injunction which enjoins them from removing, disposing of, dealing with, transferring, mortgaging, hypothecating, or diminishing the value of any assets in Florida up to the value of nearly $63 million, with certain limited exceptions. Appellees have conceded, and we agree, that the trial court’s order must be reversed and remanded because it is facially deficient.

Moreover, and as to Marcus Berto and Werner Batista, we conclude that the allegations in the ex parte motion, together with its supporting documents, are insufficient to justify the trial court’s entry of a temporary injunction as to these two appellants. See § 726.108(1)(c), Fla. Stat. (2017) (providing in an action for relief under Florida’s Uniform Fraudulent Transfer Act, a creditor may obtain “an injunction against further disposition by the debtor or a transferee, or both,” but “subject to applicable principles of equity and in accordance with the applicable rules of civil procedure”) (emphasis added); Stand Up for Animals, Inc. v. Monroe Cty., 69 So.3d 1011 (Fla. 3d DCA 2011); Buchanan v. Sullivan, 620 So.2d 1301, 1302 (Fla. 4th DCA 1993) (noting, “[t]he fly in the ointment is that there was absolutely no evidence actually presented to the judge establishing” the asserted basis for injunctive relief.)

Accordingly, we reverse and remand with instructions that the trial court vacate the ex parte temporary injunction as to appellants Marcus Berto and Werner Batista.

      . See Fla. R. Civ. P. 1.610(a)(2) (providing, inter alia: "Every temporary injunction granted without notice shall . . state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given.”)


text:
    Michael FADDIS, Appellant, v. Katherine LUDDY, Appellee.
    No. 3D16-337
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Alvarez Gonzalez, LLP, and Ignacio M. Alvarez, and Carlos F. Gonzalez, for appellant.

      Katherine Luddy, in proper person.
    Before SALTER, EMAS and LUCK, JJ.
   LUCK, J.

Michael Faddis appeals a final judgment of injunction for protection against domestic violence entered against him and in favor of his ex-girlfriend, Katherine Lud-dy. We affirm.

Faddis met Luddy when Luddy worked as a fitness model for one of Faddis’ fitness videos. The couple dated for approximately three years, living together at Luddy’s Miami Beach apartment for approximately the last one and a half years. The couple experienced difficulties in their relationship, which Faddis attributed to Luddy’s anxiety and depression, and Lud-dy to Faddis’ controlling nature. In any event, on November 24, 2015, Luddy filed a petition for injunction for. protection against domestic violence against Faddis.

The petition specifically alleged an incident occurring on November 22, but also generally referred to various prior instances of Faddis’ abusive behavior which occurred prior to the November 22 incident. A hearing was held at which Luddy appeared pro se, and Faddis was represented by counsel. Each party testified to-their version of events.

According to Luddy, the couple had spent the night of November 21 at her apartment, but began to argue the morning of November 22. Luddy claimed the argument started when Faddis insisted she call her psychiatrist to increase the dosage of her medication, and Luddy refused. When Luddy requested that Faddis leave her alone, Faddis became enraged, grabbed Luddy, and slammed her against the refrigerator. Luddy asked Faddis to leave or she would- call the police. Faddis took Luddy’s cellular telephone away from her, and continued to scream at. Luddy while pinning her against a wall. Faddis then threw Luddy on the bed, turned her on her stomach, and spanked her. Luddy managed to lock herself in the bathroom, and after a time Faddis left the apartment. Luddy reported the incident to the police, who advised her to change her locks and get a restraining order. Faddis continued calling and texting Luddy after the incident. The following day, Faddis banged at her apartment door, but Luddy did not let him in.

In response to the trial court’s questioning, Luddy admitted Faddis had restrained her on prior occasions. She testified to an incident which occurred on June 22 where Faddis kept hitting her with her own arm against the side of the head and Luddy locked herself in her car to get away from Faddis. During cross-examination, Luddy also referred to an incident were Faddis shut a door and severed her finger. Faddis did not object to this testimony.

Faddis portrayed the couple’s relationship quite differently. He claimed most arguments arose from financial issues because Luddy was not making much money and owed Faddis money for negotiating her modeling contracts and managing Lud-dy’s social media accounts. Faddis claimed that when he restrained Luddy, he was trying to protect her because she was depressed, anxious, and suicidal.

The trial court found: Luddy’s testimony credible; she had been the victim of domestic violence; and she had cause to believe that she would be a victim of domestic violence. Based on these findings, the trial court granted the petition, and entered the injunction, which Faddis now appeals. Faddis contends the trial court: (1) denied him due process by considering the testimony regarding prior incidents other than the one from November 22 alleged in the petition; and (2) erred in entering the injunction because Luddy failed to produce sufficient and objective evidence that she had cause to believe she was in imminent danger of domestic violence.

We reject Faddis’ due process argument for two reasons. First, Faddis did not object to Luddy’s testimony, and therefore, did not preserve the issue for appellate review. See Achurra v. Achurra, 80 So.3d 1080, 1082 (Fla. 1st DCA 2012) (holding that husband’s argument that trial court relied on testimony and evidence from a prior proceeding without proper judicial notice was not preserved for appellate review because the husband did not object at the hearing). Second, Luddy’s petition did put Faddis on notice, in advance of the heai’ing, that there were prior instances of violence. The petition alleged, for example, that Faddis “[previously ... physically abused” Luddy, and had threatened her with a weapon (which was different than the allegations for the November 22 incident). Luddy, specifically, alleged in the petition that Faddis had “physically assaulted [her] countless times throughout their relationship, slapping [her], punching her, pushing and shoving her and/or pinning her on the floor or against the walls.” Faddis, Luddy wrote, “also threatened [her] with a knife, on one occasion.” This was sufficient to put Faddis on notice that there were prior instances of violence, they were numerous, and involved slapping, punching, pushing, and pinning. The trial court recounted these allegations at the beginning of the hearing, and Faddis’ counsel cross-examined Luddy about the prior instances of violence. This satisfied the due process requirements of apprising Faddis of the nature of the allegations and affording him an opportunity to present his objections. See De Leon v. Collazo, 178 So.3d 906, 908 (Fla. 3d DCA 2015) (“To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (quotation omitted)).

As to whether there was sufficient evidence to support the injunction, Fad-dis misunderstands the trial court’s findings. The trial court may grant a domestic violence injunction for either one of two reasons: the petitioner is the victim of domestic violence; or he or she has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. § 741.30(6)(a), Fla. Stat. (2016). “Domestic violence,” in turn, is “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Id. § 741.28(2).

Here, after the evidentiary hearing, the trial court made two findings: that Luddy had “been the victim of domestic violence”; and “she’s [had] cause to believe that she would be a victim of domestic violence in the future.” Faddis contends that there was insufficient evidence supporting the trial court’s cause-to-believe finding, but he never addresses the trial court’s other finding that Luddy was the victim of domestic violence. Either finding allows the trial court to grant an injunction, and in this case, there was sufficient evidence that Luddy was the victim of domestic violence. The trial court credited Luddy’s testimony that Faddis pinned her against the refrigerator, and later spanked her. This was battery by one household member on another, which is domestic violence.

For these reasons, we affirm the trial court’s final judgment of injunction.

Affirmed.


text:
    Jonathan BAUER and Vittoria Formentin Bauer, Appellants/Cross-Appellees, v. READY WINDOWS SALES & SERVICE CORPORATION, Appellee/Cross-Appellant.
    No. 3D16-1171
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017
    Jonathan Bauer and Vittoria Formentin Bauer, in proper persons.
    Steven M, Rosen, for appellee/cross-ap-pellant.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   LAGOA, J.

MOTIONS FOR APPELLATE ATTORNEY’S FEES

Both Appellants, Jonathan Bauer and Vittoria Formentin Bauer (“the Bauers”), and Appellee, Ready Windows Sales & Service Corp. (“Ready Windows”), move for appellate attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400 and section 713.29, Florida Statutes (2016). We deny both motions. .

A brief factual history of the case is required before determining whether either party is the “prevailing party” entitled to an award of appellate attorney’s fees. On August 7, 2013, the Bauers and Ready Windows entered into a-contract for replacement of doors and windows at the Bauers’ residence. The contract contained separate amounts for the purchase of the windows and doors, permit filing fees, and installation services, for a total amount due of $24,804.05. The second page of the contract stated that “engineering and permit included.”

Ready Windows hired Eduardo Pacheco, who is not a licensed engineer, to prepare a plan for submission to the Miami-Dade County Building Department. The drawing, which was ultimately filed with the application for the building permit, is a two dimensional floor plan indicating the location of each window and door.

In early October 2013, the existing doors and windows in the residence were replaced with doors and windows provided by Ready Windows. On October 21, 2013, the Bauers gave a written notice of claim pursuant to section 558.004, Florida Statutes (2013), to Ready Windows, identifying numerous defects in the project. The Bauers followed up with amendments to their initial Chapter 558 notice as they became aware of additional defects. Ready Windows returned to the premises on several occasions, but the Bauers claimed that the defects were not corrected and withheld final payment. Ready Windows claimed that it completed its scope of work, with some remaining punch list and post final inspection completion items remaining, but that the Bauers refused to permit them to return to the project.

On November 20, 2013, Ready Windows filed a Claim of Lien pursuant to Chapter 713, Florida Statutes (2013). On January 9, 2014, Ready Windows filed a Complaint to Foreclose Mechanic’s Lien and for Other Relief.

After a bench trial, the trial court entered a final judgment, which found that the contract was divisible into particular amounts for the products to be delivered, the permit filing fees, and the installation services. The trial court rejected the Bauers’ claim the “engineering” was required to be performed by a licensed engineer who could seal and sign plans—a requirement not imposed by Miami-Dade County for this job. The trial court agreed with Ready Windows that the term “engineer” was used in the contract colloquially and the failure to have a licensed engineer draw plans did not constitute breach of contract. Concerning the windows and doors, the trial court found that the products delivered were in their represented condition, were adequate and fit the spaces for the doors and windows, and that the Bauers received the benefit of their bargain. The trial court, however, found that Ready Windows breached the provision in the contract requiring installation services because it did not adequately, thoroughly, and properly install the doors and windows in the residence. As a result, Ready Windows was not entitled to the $3,600.00 that the contract allocated for installation. The trial court entered final judgment in favor of Ready Windows in the amount of $9,039.05. Both parties filed motions for rehearing, which' were denied. The Bauers filed a notice of appeal from the final judgment, and Ready Windows filed a notice of cross-appeal. This Court affirmed the trial court with regard to both the appeal and cross-appeal.

Both the Bauers and Ready Windows filed motions for appellate fees pursuant to Rule 9.400 and section 713.29. Section 713.29 provides:

In any action brought to enforce a lien or to enforce a -claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for- arbitration, in an amount to be determined by the court, which fee must be taxed as part of the .prevailing party’s costs, as allowed in equitable actions. .

The Bauers and Ready Windows each argue that they are the prevailing party under section 713.29. We find, however, that pursuant to Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009), neither party is a prevailing party. In Trytek, one party prevailed, by stipulation, on a construction lien claim before trial but lost on the sole remaining issue argued at trial. Id. at 1196-97. Both parties moved for fees pursuant to section 713.29. The trial court applied the. “significant issues” test set forth in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993), and found that the party that won the-issue litigated at trial was the prevailing party. Id. at 1197. The Fifth District Court of Appeal reversed and certified a question of great public importance. On appeal, the Florida Supreme Court held that the appropriate test to determine the issue of “prevailing party” under section 713.29 is the Moritz and Prosperi “significant issues” test. Id. at 1204. The Florida Supreme Court, however, explicitly rejected “the notion that in every construction lien case the trial court is compelled to find a prevailing party.” Id. at 1204 n.13. Instead,-the Florida Supreme Court concluded “the possibility that neither party is a ‘prevailing party’ is consistent with an application of the ‘significant issues’ test of Moritz and Prosperi” and a

court has the discretion to make a determination that neither 'party has prevailed on the significant issues in litigation after a thorough examination of all the factors, including thé issues litigated, the amount of the claim versus' the amount recovered on the lien, the existence of setoffs and counterclaims by the homeowner, and the amounts offered by either party to resolve the issues prior to the litigation, assuming that those negotiations were not otherwise confidential either by agreement or by statute. ,

Id. at 1203.

Here both parties- moved for an award of appellate attorney fees pursuant to section 713.29 following their respective appeal and cross-appeal. After thoroughly examining the record, under the “significant issues” test of Moritz and Prosperi,. we conclude that each party, lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. This Court affirmed the trial court’s finding that Ready Windows was entitled to receive monies for the products (doors and windows)' delivered to the Bauers for their benefit, which was the subject of the Bauers’ appeal. This Court further affirmed the trial court’s finding that Ready Windows breached the contract with respect to the installation of the doors and windows and affirmed the trial court’s award to the Bauers of a set off amount for the installation, which was the subject of Ready Windows’ cross-appeal. Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party.

Motions for appellate fees denied.

      . In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810 (Fla. 1992), the Florida Supreme Court held that "the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees." In Prosperi, the Florida Supreme Court, however, recognized that "the trial judge must have the discretion to consider the equities and determine which party has in fact prevailed on the significant issues.” 626 So.2d at 1363. "[I]t was obviously not the intent of the legislature to award attorneys' fees to a defendant in a mechanics’ lien foreclosure merely because he successfully defends against the impression of a lien yet is nevertheless found liable in damages, in the same case, for labor and/or materials furnished for his benefit.” Id. at 1362 (quoting Emery v. Int'l Glass and Mfg., Inc., 249 So.2d 496, 500 (Fla. 2d DCA 1971)).


text:
    Damarys Diaz PESTANA, Appellant, v. PALM SPRINGS GENERAL HOSPITAL, INC., Appellee.
    No. 3D16-685
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017.
    Damarys Diaz Pestaña, in proper person.
    Nosich & Ganz, P.A., and Marc P. Ganz and Adam D. Santana, for appellee.
    Before LAGOA, SALTER, and LOGUE, JJ.
   LOGUE, J.

The appellant seeks review of the trial court’s order granting final summary judgment in favor of the appellee. “[Sjummary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law.” Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). Given the record before us, there was no genuine issue of material fact and the ap-pellee was entitled to relief as a matter of law. Id.; See Sokoloff v. Oceania I Condo. Ass’n, Inc., 201 So.3d 664, 664-65 (Fla. 3d DCA 2016).

Affirmed.


author: May, J.

text:
    Gwen E. RICHBELL and Alan Richbell, as Personal Representatives of the Estate of Devon Leigh Richbell, deceased, on behalf of Estate and on behalf of themselves as surviving parents, Appellants, v. Ernst TOUSSAINT, Wholfney K. Jean Francois, Grady Gray, Grady Gray Trucking, Inc., Shady Grady Trucking, Inc., Triple “H” Trucking, Inc., Jeffrey L. Lennard, and B.E. Lennard & Sons, LLC., Appellees.
    Nos. 4D14-4549 and 4D14-4550
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      Bard D. Rockenbach and Adam Richardson of Burlington & Rockenbach; P.A., West Palm Beach, and Gregg Schlesinger and Zane Berg of Schlesinger Law Offices, P.A., Fort Laudérdale, for appellant.
    Shannon Kain of Hicks, Porter, Eben-feld & Stein, P.A., Miami, and Peter A. Miller of Peter A. Miller & Associates, P.A., Coral Gables, for appellee Ernst Toussaint and Wholfney K. Jean Francois.
    Peter D. Webster of Carlton Fields Jor-den Burt, P.A., Tallahassee, and David M. Goldstein of Marcos Rothman Scharf Valdez Nguyen & Goldstein, P.L., Hollywood, for appellees Jeffrey Lennard and B.E. Lennard & Sons, LLC.
    Scott A. Cole and Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Fort Lauder-dale and Melinda S. Thornton of Cole, Scott & Kissane, P.A., Miami, for appellee Triple “H” Trucking Inc.
    Warren Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for ap-pellee Grady Gray and Grady Gray Trucking, Inc.
   May, J.

The plaintiffs appeal a final judgment in a wrongful death action. They argue the trial court erred in certain evidentiary rulings and in giving a special jury instruction. Two of the defendants cross-appeal an order denying their motion to.limit the judgment against the owner of one of the vehicles, , . pursuant to section 324.021(9)(b)(3), Florida Statutes (2014). We affirm all issues on direct appeal without further comment. We reverse on the cross-appeal.

A bizarre sequeneé of events on a two-lane road resulted in the tragic death of the plaintiffs’ daughter. Their daughter, and a second vehicle following her, attempted to pass two tractor-trailers. They began their attempt in a passing zone, but ended their attempt in a no-passing zone. When they cut back in front of the two tractor-trailers, they encountered a vehicle stopped to make a left turn.

The plaintiffs’ daughter was able to stop, but the vehicle following .her rear-ended her car, forcing her into oncoming traffic where another truck traveling in the opposite direction collided with her vehicle. She died as a result of the accident. The plaintiffs filed suit against the driver and owner of the vehicle that rear-ended their daughter’s vehicle, the driver and owner of the truck that ultimately collided with her, and the owner of the trailer attached to his truck.

The plaintiffs’ theory against the truck driver in the second collision was that he negligently failed to avoid the accident, due in part to his age and physical condition, which caused him to have a slower reaction time than reasonable. The plaintiffs’ accident-reconstruction expert rendered his opinion on the truck driver’s negligence without having reviewed his medical records.

Prior to trial, the plaintiffs obtained the truck driver’s medical records, and deposed his treating physicians, over his objection and request for a protective order. The plaintiffs ultimately sought a compulsory medical examination just prior to trial. The trial court granted the motion, but we granted a petition for writ of certiorari. Gray v. Richbell, 144 So.3d 573 (Fla. 4th DCA 2014).

Based on our decision, the trial court quashed its order permitting the compulsory medical examination and ruled that “until the Fourth issues a final ruling, there will be no mention of the medical condition.” The plaintiffs proffered their expert’s medical testimony outside the presence of the jury. He would have testified that' the truck driver suffered from a form of dementia that causes poor reaction time and perception. The trial court also granted the truck driver’s motion to exclude evidence regarding his medical condition without prejudice pending our opin-ión.

During trial, and in response to a question posed by plaintiffs’ counsel, the truck driver stated that he had not taken any continuing courses on truck driving, but he had “safe driving” on his license. During a sidebar, plaintiffs’ counsel told the court that the truck driver’s commercial license did not have “safe driver” on it, and asked to impeach him on that fact. The court prohibited counsel from doing so because a pretrial order prohibited the plaintiffs from introducing any evidence of the truck driver’s driving record.

Plaintiffs’ counsel then asked the truck driver whether the words “safe driver” appeared on his license.' The truck driver’s attorney objected and moved for a mistrial, arguing that the plaintiffs violated the pretrial order by questioning the truck driver about his license. The trial court denied the motion for mistrial.

The trial judge then asked the truck driver how he knew he had “safe driver” on his license, and he responded someone at the Department of Motor Vehicles told him. When the court reviewed the commercial license, however, it did not include a designation for “safe driver.” But,' the court noted that the truck driver’s Florida motor vehicle driver’s license did designate “safe driver.” The trial court denied the plaintiffs’ request to impeach the truck driver about the “safe driver” designation.

The truck driver’s attorney asked the trial court to instruct the jury that there were no issues with the truck driver’s commercial driver’s license. The trial court agreed to do so. The plaintiffs argued against the jury instruction because they believed it gave judicial imprimatur to the truck driver’s statement that his license indicated he was a “safe driver.” The trial court adhered to its previous ruling, and read the following: “The Court has determined and now instructs you that at the time of the subject accident [the truck driver] had a valid commercial driver’s license.”

The jury found the driver of the car that rear-ended the daughter’s vehicle .negligent and 60% at fault, with the decedent comparatively negligent and 40% at fault. The jury found no negligence on the part of the truck driver. The court denied the plaintiffs’ motion for a new trial and entered final judgment for the truck driver, his companies, and the trailer’s owner.

Post-verdict, the owner of the vehicle that rear-ended the plaintiffs’ daughter moved to limit the judgment to $100,000, based on section 324.021(9)(b)(3), Florida Statutes, which limits the liability of .the motor vehicle owner who “loans” a vehicle to a permissive user. The court denied the motion, finding there was no “loan” of. the vehicle,, but rather a joint undertaking by the owner and driver. The court entered judgment against the owner and driver for $750,000, their percentage of the total damages based on the comparative negligence finding.

The plaintiffs now appeal the judgment. The owner and driver of the vehicle that rear-ended the decedént have cross-appealed.

We have de novo, review. Fla. Dep’t of Envtl. Prot. v. ContractPoint Florida Parks, LLC, 986 So.2d 1260, 1264 (Fla. 2008).

The owner and driver argue the car was loaned to the driver as a permissive user, entitling the owner to the financial limitation set forth in section 324.021(9)(b)(3). The plaintiffs respond the trial court correctly found no loan occurred because there was a joint undertaking by the owner and driver as both were in the car at the time of the accident. ,

The statute does not define the word “loan,” but the term is not so extraordinary that it cannot be applied by use of its own plain meaning without reference to some outside source. That being said, to loan is to give temporary control of property to another- without relinquishing ownership with the intent that you regain control over the property. Loan, The Random House Dictionary of the English Language (1967).

No one disputes that the passenger, not the owner, of the vehicle was driving at the time of the accident. They had traveled together to South Florida and were returning home at the time of the accident. The owner had asked the passenger to drive while he slept in the passenger seat. The sole claim against the owner was based on his vicarious liability under Florida’s dangerous instrumentality doctrine.

Under that doctrine, a car owner is liable for damages caused by the operation of his vehicle by a permissive user. See Hertz Corp. v. Jackson, 617 So.2d 1051, 1053 (Fla. 1993). The vicarious liability of a permissive user under the dangerous instrumentality doctrine is then limited by Florida’s financial responsibility statute, section 324.021(9)(b)(3).

That section provides in part: “The owner who is a natural person and loans a motor vehicle to any permissive user shall be' liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person ....”§ 324.021(9)(b)(3).

The legislature added this provision to address the real and perceived inequities created by the application of the dangerous instrumentality doctrine. See Fischer v. Alessandrini, 907 So.2d 569, 571-72 (Fla. 2d DCA 2005). By its plain language, the statute caps a motor vehicle owner’s vicarious liability at $100,000 per person and $300,000 per incident for bodily injury, with additional limits for economic damages depending on the permissive user’s insurance coverage. The “per person” limit applies per person injured, not per claimant. See Lewis v. Enter. Leasing Co., 912 So.2d 349, 351 (Fla. 3d DCA 2005).

We have previously applied the term “loan” consistent with the statute’s purpose. Fireman’s Fund Ins. Co. v. Dollar Sys., Inc., 699 So.2d 1028, 1030 (Fla. 4th DCA 1997). We interpreted an insurance policy provision that excluded bodily injury “arising out of the ownership, maintenance, use, or entrustment to others of any ... auto ... loaned to any insured.” Id. at 1029. There, the insured company was sued for negligent entrustment of a vehicle that was provided to the wife of a vice president of the insured company for her personal use. Id. The car was actually owned by Southeast Toyota and provided to the insured company as a courtesy car. Id. at 1030. The insured company was not permitted to sell or lease the car to a third party, but could entrust the vehicle to whomever it chose. Id.

The evidence showed that Southeast Toyota provided the vehicle as an inducement for the insured company to purchase its products. Southeast Toyota expected to receive the car back from the insured company, although there was no set time for its return. Id. The insured company argued the exclusion did not apply because the term “loaned” contemplated a gratuitous “bailment without reward” rather than a bailment for the mutual benefit of the parties. Id. at 1031. We disagreed.

We looked to the dictionary meaning of “loan,” and noted “the most frequently encountered definition of ‘loan’ is ‘a grant of the temporary use of something.’” Id. (quoting Loan, The Random House Dictionary of the English Language (1967)). Applying the plain and ordinary definition, we concluded that the courtesy car arrangement fell within the exclusion of the policy because the arrangement was temporary and contemplated the return of the car. Id.

Here, the driver was a permissive user under the statute. The owner relinquished temporary control of the vehicle while maintaining his ownership interest. Our application of the statute under the facts in this case comports with the statute’s goal of limiting the financial responsibility of an owner vicariously liable only because of the dangerous instrumentality doctrine.

Yet, the plaintiffs argue the Second District reached a contrary conclusion in Ortiz v. Regalado, 113 So.3d 57 (Fla. 2d DCA 2013). We disagree.

There, a father and son shared legal title to a vehicle. The son was involved in a fatal collision while driving. Id. at 59. The Second District looked to Black’s Law Dictio nary, which defined loan as a “grant of something for temporary use.” Id. at 60 (quoting Loan, Black’s Law Dictionary (8th ed. 2004)). It also looked to the definition of “loans,” “loaned,” or “on loan” in section 265.565(2)(b), Florida Statutes (2012), for guidance. Id. at 64 n.4. The Second District held that section 324.021(9)(b)(3) did not limit the father’s financial responsibility because he had not “loaned” the vehicle to his son in the ordinary sense of the word since he co-owned the vehicle with his son. Id. at 59-61.

Similarly, in Youngblood v. Villanueva, 141 So.3d 600, 603 (Fla. 2d DCA 2014), the Second District held the financial limitation did not apply to a vehicle owner, who had consigned his uninsured vehicle to another with instructions to sell the vehicle, with no intent to ever retake possession of the vehicle. Id. at 603.

This case does not involve either a co-owner or someone who has consigned the vehicle to another. Rather, it involves a permissive grant of temporary use of the vehicle without transfer of title. Neither Ortiz nor Youngblood, dictate the result here.

The temporary control of the car by the passenger in this case falls within the parameters of a loan. This is especially true given the legislative intent of this statute. Section 324.021(9)(b) was enacted to limit strict vicarious liability against innocent owners and lessors of motor vehicles who entrust their vehicles to another who is at fault. Lewis, 912 So.2d at 351.

The statute makes no distinction as to whether the use of the vehicle occurs with or without the presence of the owner. At the time of this accident, the owner had loaned control. of the vehicle to the passenger despite the fact that they were engaged in a joint undertaking. To hold otherwise would do an injustice to the purpose for which the legislature created this statute.

The trial court erred in denying the motion to limit the owner’s total liability under the judgment. See Lynn v. Feldmeth, 849 So.2d 481, 483 (Fla. 2d DCA 2003) (reversing trial court’s refusal to limit judgment against vehicle owner where statute limiting liability for damages caused by permissive user was applicable).

Affirmed on direct appeal; reversed on the cross-appeal.

Klingensmith and Kuntz, JJ., concur.

      . We granted the petition with an opinion to follow, but the issue arose at the eve of trial; our opinion issued after trial.

      . If the permissive user is uninsured or has any insurance with limits less than $500,000 combined for property damage and bodily injury liability, the owner is liable for up to an additional $500,000 in economic damages. § 324.021(9)(b)(3). Here, the Richbells were awarded $1,200,000 in noneconomic damages and $50,000 in economic damages. Thus, because the driver was found 60% at fault for the accident and is uninsured or has insurance with limits less than $500,000 combined property damage and bodily injury, the judgment against the owner should be limited to $100,000 in noneconomic damages and $30,000 in economic damages (60% of $50,000), for a total of $130,000.


author: SLEET, Judge.

text:
    Jason Mikel SPAULDING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2681
    District Court of Appeal of Florida, Second District.
    Opinion filed June 23, 2017
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine-Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SLEET, Judge.

Jason Mikel Spaulding challenges his judgment and sentence for grand theft of between $300 and' $5000 entered after the reVocation of the probation he was serving on the charge. While this appeal was pending, Spaulding filed a Florida Rulé' of Criminal Procedure 3.800(b)(2) motion alleging several scoresheet errors. We agree with the trial court that any scoresheet errors1 were harmless due to the fact that the record conclusively shows that the.trial court would have imposed' the samé sentence upon revocation of probation had the court had the benefit of a correct score-sheet. See Brooks v. State, 969 So.2d 238, 241 (Fla. 2007). Accordingly we affirm Spaulding’s judgment and sentence.

However, because the trial court definitely found error—albeit harmless error-—in the inclusion of -nineteen points for a prior Illinois offense and six community - sanction points, we remand for entry of a' corrected scoresheet omitting those twenty-five points. See State v. Anderson, 905 So.2d 111, 114 (Fla. 2005) (“Courts have developed a harmless error analysis to determine whether a scoresheet error must be merely corrected (harmless) or whether the error warrants both correction and resentencing (harmful).” (emphasis added)).

Affirmed; remanded.

KHOUZAM and BADALAMENTI, JJ„ Concur.- .


author: BILBREY, J.

text:
    Roy James EDWARDS, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D16-5151
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017

      Roy James Edwards, pro se, Appellant.
    Michael L. Glass and Paul M. Eza of Stone, Glass & Connolly, LLP, Jacksonville, for Appellee.
   BILBREY, J.

Appellant challenges the order dismissing with prejudice his complaint for monetary damages against the Florida Department of Corrections (DOC) as compensation for the loss of his personal property while housed at Columbia Correctional Institution. The dismissal - was based on Appellant’s failure to exhaust administrative remedies.

Appellant brought his suit in the circuit court, but alleged in the first paragraph of his complaint that, “This is an action for damages for a sum within the jurisdictional limits of this court, to wit: $15,000.00, pursuant to Article V § 6, § 20(c)(4), Florida Constitution ánd § 34.01, Florida Statutes (2014).” Later in his complaint, Appellant sought damages in the amount of $22:48 to replace his property allegedly taken by DOC employees and $17.50 for “Paper, Copies, and U.S. Postage.”

Without question, the specific amount of damages alleged is far below the jurisdictional threshold for the circuit court, pursuant to sections 26.012(2)(a) and 34.01(1)(c), Florida Statutes. The complaint quotes Article V, sections 6 and 20(c)(4) of the Florida Constitution, as well as section 34.01, Florida Statutes, all of which refer to county courts or their jurisdiction. Even if the first paragraph of the complaint is read to mean - Appellant was seeking $15,000 in damages (as opposed to seeking a sum within the purported $15,000 jurisdictional limit • of the circuit court), the amount sought is within the jurisdiction of the county court since circuit courts have jurisdiction only for those- civil matters which exceed $15,000 in damages. The circuit court lacked subject matter jurisdiction to hear this case. This jurisdictional deficiency requires reversal of the circuit court’s order and remand for the entry of an order transferring the case to the county court. Spradley v. Doe, 612 So.2d 722 (Fla. 1st DCA 1993); see also Hartley v. Tifft, 87 So.3d 54 (Fla. 1st DCA 2012).

Appellee requests that we find that the end result would be the same under a harmless error analysis citing Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014). However, “a lack of subject matter jurisdiction renders a judgment void, ‘and a void judgment can be attacked at any time, even collaterally.’ ” Hardman v. Koslowski, 135 So.3d 434, 436 (Fla. 1st DCA 2014) (quoting Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006)). The circuit court’s dismissal of the complaint for failure to exhaust administrative remedies was void for lack of subject matter jurisdiction. Whether Appellant exhausted his administrative remedies and any other matters which must be determined are properly within the jurisdiction of the county court.

REVERSED and REMANDED with directions.

WOLF and RAY, JJ., CONCUR.

      . Even if the dismissal had been based on lack of subject matter jurisdiction we would be compelled to reverse. "[A] better alternative to dismissal in the event that alleged damages are below the jurisdictional amount for the circuit court is a transfer of that action to the county court.'' Bowers v. Parrish, 845 So.2d 251, 251 (Fla. 1st DCA 2003) (quoting Aysisayh v. Ellis, 497 So.2d 1316, 1317 (Fla. 1st DCA 1986)).