text:
    Pablo JAPO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2138
    District Court of Appeal of Florida, Third District.
    Opinion filed February 8, 2017
    Pablo Japo, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   ON THIS COURT’S ORDER TO SHOW CAUSE

PER CURIAM.

On November 16, 2016, we affirmed per curiam Mr. Japo’s appeal of the trial court’s order denying his motion for post-conviction relief. At that same time, we issued an order directing Mr. Japo to show cause why this court should not prohibit him from submitting further pro se appeals, petitions, motions or other pleadings regarding case number F90-29389C unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Including the instant appeal, Mr. Japo has filed at least eleven postconviction appeals or original petitions related to his conviction and sentence in lower tribunal Case No. 90-29389C. Each of these appeals was either successive, time-barred, or otherwise wholly without merit. In his response to this court’s order, Mr. Japo has failed to show cause why we should not prohibit him from proceeding pro se and we find that the actions of Mr. Japo constitute an abuse of the postconviction process.

We therefore direct the clerk of this court not to accept any appeals, petitions, motions or other pleadings regarding case number F90-29389C, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

      . See 3D98-3245; 3D00-2099; 3D01-1819; 3D04—1252; 3D05-2497; 3D09-2310; 3D09-3192; 3D12-3225; 3D15-644; 3D15-1786. In a twelfth proceeding (3D05-2224), Mr. Japo filed a pro se petition for belated appeal; we granted the petition for belated appeal and subsequently affirmed the trial court’s order per curiam in 3D05-2497.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald SPRING, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4254
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

      ■ Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee,
   PER CURIAM.

Based on the State’s proper concession of error, we reverse the order denying Appellant’s rule 8.800(a) motion and remand for resentencing in accordance with Kelsey v. State, 206 So.3d 6 (Fla. 2016).

REVERSED and REMANDED for re-sentencing.

WOLF, LEWIS,'and WETHERELL, JJ., CONCUR.


author: BADALAMENTI, Judge.

text:
    Richard BOATRIGHT and Deborah Boatright, his wife, Appellants, v. PHILIP MORRIS USA INC., and Liggett Group, LLC, Appellees.
    Case No. 2D15-1781
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2017

      Philip J. Padoyano, Celene H. Hum-phries, and Maegen P. Luka of Brannock & Humphries, Tampa, and Jonathan R. Gdanski, Steven Hammer, and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for Appellants.
    M. Sean Laane and Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C.; and William P. Geraghty and Rachel A. Canfield of Shook, Hardy & Bacon, L.L.P., Miami, for Appellee Philip Morris USA Inc.
    Wayne L. Thomas of Akerman Senter-fitt, Tampa; and Kelly Anne Luther, Maria Ruiz, Giselle Gonzalez Manseur, and Ann M. St. Peter-Griffith of Kasowitz, Benson, Torres & Friedman, LLP, Miami; and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for Appellee Liggett Group, LLC.
   BADALAMENTI, Judge.

Appellants Richard and Deborah Boat-right are former Engle plaintiffs who obtained a $32.75 million jury verdict against Appellees Philip Morris USA Inc. and Lig-gett Group, LLC (the tobacco companies). The trial court partially denied the Boat-rights’ posttrial motion to tax attorneys’ fees and costs, holding that proposals for settlement served by the Boatrights upon the tobacco companies’ attorneys could not serve as a basis to award fees and costs because they were not served by e-mail. The trial court reasoned that the method of service by which the Boatrights served their proposals for settlement—U.S. Certified Mail—did not strictly comply with the service requirements for proposals for settlement. We disagree and reverse.

PROCEDURAL AND FACTUAL BACKGROUND

The facts here are both undisputed and straightforward. Prior to trial, the Boat-rights served four proposals for settlement on the tobacco companies—one from each plaintiff to each defendant for $200,000, totaling $800,000. Attached to each of the four proposals was a corresponding certificate of service signed by the Boatrights’ attorney. The certificates of service attached to the proposals were set forth in the following format: “I hereby certify that on the 31st of July, 2014, the foregoing document was served on [the tobacco companies’ respective attorneys] at [the corresponding law firm’s mailing address] ... for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP, LLC] via U.S. Certified Mail.” (Bolded text in originals). The tobacco companies received and did not accept the proposals.

Upon receiving the jury’s verdict, the Boatrights filed a motion to tax attorneys’ fees and costs based in part on the tobacco companies’ failure to accept the Boat-rights’ proposals for settlement. See § 768.79(6)0»), Fla. Stat. (2013); Fla. R. Civ. P. 1.442(h). After a hearing on the motion, the trial court held that the Boat-rights were not entitled to attorneys’ fees and costs because they did not serve their proposals for settlement on the tobacco companies’ attorneys by e-mail, and therefore did not strictly comply with section 768.79 and rule 1.442.

DISCUSSION

The question before us is whether section 768.79 and rule 1.442 mandate email as the exclusive method for service of pretrial proposals for settlement upon a party. Because section 768.79 and rule 1.442 depart from common law, they demand strict compliance and strict construction. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 377 (Fla. 2013); Campbell v. Goldman, 959 So.2d 223, 226 (Fla. 2007) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003)). Failure to strictly comply with section 768.79 and rule 1.442 will render a proposal for settlement invalid, and therefore incapable of supporting an award of attorneys’ fees and costs. Campbell, 959 So.2d at 226.

We must discern a drafter’s intent by analyzing the text’s plain and ordinary meaning. Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006) (quoting State v. Burris, 875 So.2d 408, 410 (Fla. 2004)). Where, as here, “there are several rules pertaining to the same subject they are to be construed together and in relation to each other.” In re Cleary’s Estate, 135 So.2d 428, 430 (Fla. 2d DCA 1961).

A. The Text and Interplay of Section 768.79, Rule 1.442, and Rule 1.080

Section 768.79 does not provide for any particular method of service of a proposal for settlement. It merely states that a proposal for settlement “shall be served” upon the party to whom the proposal is made, but it shall not be filed with the court unless it is accepted, or filing is necessary to enforce the provisions of the statute. § 768.79(3). Similarly, rule 1.442(d) states that “[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” Thus, although both section 768.79 and rule 1.442 do not set any specific method of service for proposals for settlement, they are both absolutely clear that proposals for settlement are not to be filed, unless: (1) they are part of a motion for incorporation into a final judgment; or (2) they are part of a motion to enforce the provisions of section 768.79 or rule 1.442, such as a motion for attorneys’ fees and costs.

There is no dispute that the Boatrights did not file their proposals with the trial court until they sought to enforce the attorneys’ fees and costs provisions of section 768.79(6)(b) and rule 1.442(h). There is also no dispute that the Boatrights attached their proposals to their motion to tax attorneys’ fees and costs. Therefore, the Boatrights strictly complied with section 768.79 and rule 1.442.

That said, the tobacco companies contend that rule 1.442 provides additional guidance as to the method of service of proposals for settlement upon an opposing party. In particular, they point to rule 1.442(c)(2)(G), which states that “[a] proposal [for settlement] shall ... include a certificate of service in the form required by [Florida Rule of Civil Procedure] 1.080.” There is no dispute that the Boat-rights’ proposals for settlement each contained a certificate of service. The conundrum is that rule 1.442(c)(2)(G) refers to rule 1.080, which does not specify “the form” of the certificate. In fact, rule 1.080 states nothing about a certificate of service. The only reference to service is within rule 1.080(a), which states that “[e]very pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.” (Emphasis added.) The plain language of rule 1.080(a) yields the conclusion that, unless a document is filed in the action, its service need not be in conformity with rule 2.516’s requirements.

The legislature and the drafters of the Florida Rules of Civil Procedure, as adopted by our supreme court, have expressly stated that proposals for settlement “shall not” be filed in an action until such time the proposal is accepted or a party seeks enforcement of a proposal. § 768.79(3); Fla. R. Civ. P. 1.442(d). Simply stated, proposals for settlement are not subject to the service requirements of rule 2.516 because the proposals do not meet rule 1.080(a)’s threshold requirement that they be “filed in the action.” Because the scope of rule 1.080(a) is confined to documents filed in an action, the Boatrights have strictly complied with the applicable statute and rules we have examined up to this point.

However, the tobacco companies insist that the heart of their argument is found within the language of rule 2.516. Accordingly, we now turn our attention to the text of that rule.

B. Rule 2.516(f)’s Certificate of Service Form

Rule 2.516(f) is the only rule we have identified setting forth the form of a certificate of service to which rule 1.442(c)(2)(G) refers. Pursuant to the form in rule 2.516(f), an attorney must certify in substance “that the foregoing document has been furnished to (here insert name or names, addresses used for service, and mailing addresses) by (e-mail) (delivery) (mail) (fax) on ... (date) ... ”. Thus, within section 2.516(f)’s certificate of service requirements, e-mail, hand delivery, mail, and fax are permissible methods of service. Attachment of the certificate in rule 2.516(f) is “taken as prima facie proof of ... service in compliance” with rule 2.516.

For purposes of comparison, the Boat-rights’ certificates of service state, “I hereby cei'tify that on the 31st of July, 2014, the foregoing document was served on ... counsel for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP, LLC], via U.S. Certified Mail.” Here, the certificates of service attached to the Boatrights’ proposals both track the form in rule 2.516(f) and specify mail as the method of service. The Boatrights’ certificates of service thus comply with the form of the certificate of service set forth in rule 2.516(f) and thus are evidence of prima facie service in compliance with rule 2.516. Therefore, to the extent that rule 1.442(c)(2)(G) incorporates the certificate of service form in rule 2.516(f), the Boatrights have again strictly complied with the applicable statute and rules.

However, the tobacco companies are not content with certificates of service which comply with rule 2.516(f). Instead, the tobacco companies argue that the mandatory e-mail service requirement located elsewhere in rule 2.516 applies to the service of pretrial proposals for settlement on an opposing party, We now turn our attention to the e-mail service requirement.

C. Applicability of Rule 2.516(b)(l)’s Mandatory E-Mail Service Requirement

Rule 2.516 begins with two subsections entitled “(a) Service; When Required” and “(b) Service; How Made.” In pertinent part, rule 2.516(a) states that “every pleading subsequent to the initial pleading and every other document filed in any court proceeding .,. must be served in accordance with this rule on each party.” (Emphasis added.) Rule 2.516(b)(1) states that “[a]ll documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.” (Emphasis added.) The thrust of rule 2.516(b)(1) is to mandate that e-mail be the exclusive service method for a certain category of documents.

The tobacco companies construe the phrase “all documents” in rule 2.516(b)(1) to encompass any document which may be served upon an opposing party, including proposals for settlement. Based upon our reading of the plain and ordinary language set forth in section 768.79(3), rule 1.442(d), and rule 2.516, we disagree with the tobacco companies’ construction.

’ Legal text “should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.” Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla. 1996)). If a statutory provision appears to have a clear meaning in isolation, “but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the [c]ourt will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.” Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 575-76 (Fla. 1958). Whenever possible, we must avoid construing legal text as “mere surplusage.” Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003) (citing Hawkins v. Ford Motor Co., 748 So.2d 993 (Fla. 1999)).

The tobacco companies’ expansive reading of rule 2.516(b)(1) would render subsection (a) meaningless and only prevails if we were to impermissibly read rule 2.516(b)(1) in isolation. By its title, rule 2.516(a) sets forth when the service requirements of rule 2.516 apply. Rule 2.516(a) confínes the scope of rule 2.516 to “every pleading subsequent to. the initial pleading and every other document filed in any court proceeding.” (Emphasis added.) Rule 2.516(b)(1) then sets forth the method by which those documents must be served, which is principally by e-mail, albeit with some exceptions inapplicable to this case. Reading rule 2.516(a) and (b)(1) together, the word “documents” in subsection (b)(1) is confined in meaning to “documentas] filed in any court proceeding,” consistent with the text of subsection (a). See Hechtman, 840 So.2d at 996; Jones, 793 So.2d at 914-15. It makes no sense for rule 2.516(b)(l)’s email service requirements to apply to a broader scope of documents than specified by 2.516(a),, which is the portion of rule 2.616 defining its scope.

Even more, because rule 2.516(a) expressly confines its scope to the service of documents “filed in any court proceeding,” we are compelled to read the rule as excluding documents which are not “filed in any court proceeding.” See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla. 1996) (“Under' the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another.” (citing Bergh v. Stephens, 175 So.2d 787 (Fla. 1st DCA 1965))); see also United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993) (“The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established.”).

We will not accept the tobacco company’s invitation to read rule 2.516(b)(l)’s é-mail service in isolation so as to mandate e-mail service for all documents, even those that have been mandated by the legislature to not be filed, such ¿s proposals for settlement. The prescriptions of rule 2.516(b)(1) “should no more be allowed to trump [séction 768.79] than the tail should be allowed to wag the dog.” Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 395-96 (Fla. 2016).

Our review of the entire text of rule 2.516(b)(1) also supports our conclusion that mandatory e-mail service is, .only, required for documents that are filed in an action. Rule 2.516(b)(1) only requires email service “unless the parties otherwise stipulate or this rule otherwise provides.” (Emphasis added.) The emphasized phrase “unless ... this rule otherwise provides” encompasses the language in subsection (a), which confines the word “documents” to only those documents filed in the action. Accordingly, the text and context of rule 2.516(b)(1) also support our construction.

Finally, rule 2.516(d) states that “[a]ll documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.” (Emphasis added.) Again, because section 768.79(3) and rule 1.442(d) expressly state that proposals for settlement shall not be filed, we construe section 768.79(3) and rule 1.442(d) as exceptions “provided for by general law and other rules.” If proposals for settlement are excluded from the mandatory filing requirement in rule 2.516(d), they are also excluded from the e-mail service requirement which is mandatory only if the documents were required to be filed in the first instance. Thus, the context of rule 2.516(d) supports our conclusion as well.

In sum, we hold that the mandatory e-mail service requirement set forth in rule 2.516(b)(1) does not apply to service of pretrial proposals for settlement. In the context of proposals for settlement, the mandatory e-mail service requirement in rule 2.516(b)(1) is only triggered when the proposals are attached to motions for acceptance or enforcement under section 768.79(3) or rule 1.442(d) that are filed in court. The Boatrights attached their proposals for settlement to them .motion to tax attorneys’ fees and costs, filed with their motion with the trial court, and had previously served their proposals for settlement upon the tobacco companies’ counsel by U.S. Certified Mail.

D. Matte v. Captan, Wheaton v. Wheaton, and Douglas v. Zachry Industrial, Inc.

The tobacco companies cite to opinions they believe support a broad construction of rule 2.516(b)(1) and contradict our interpretation of the rule. None of these cases address the discrete issue before us— namely, whether the e-mail service requirement in rule 2.516(b)(1) applies to proposals for settlement. Instead, these cases either decide ancillary issues which do not address the interplay between rule 2.516(a) and 2.516(b)(1), or simply do not relate to proposals for settlement at all. See Matte v. Caplan, 140 So.3d 686, 689-90 (Fla. 4th DCA 2014) (holding that a motion for sanctions was invalid because it did not comply with the e-mail formatting requirements in rule 2.516(b)(1)(E)); see also Floyd v. Smith, 160 So.3d 567, 569 (Fla. 1st DCA 2015) (implying that rule 2.516 governs proposals for settlement, but ultimately holding that the absence of a certificate of service did not render a proposal for settlement invalid where it was served by e-mail); Courtney v. Catalina, Ltd., 130 So.3d 739, 740 (Fla. 3d DCA 2014) (holding that a trial court erred in dismissing a case for lack of prosecution where there was no evidence that plaintiff received a computer-generated notice of inactivity); Milton v. Reyes, 22 So.3d 624, 624 (Fla. 3d DCA 2009) (holding that a proposal for settlement could not support a fee award because it failed to include any certificate of service whatsoever, as required by the former version of rule 1.080).

The most analogous of these cases is Matte, where a defendant served a motion for sanctions on plaintiff pursuant to section 57.105, Florida Statutes (2013), shortly after being served with plaintiffs complaint. 140 So.3d at 687-88. The motion for sanctions was served on plaintiff by e-mail, but not filed due to the twenty-one-day grace period in section 57.105(4). The email failed to comply with a number of formatting requirements in rule 2.516(b)(1)(E). Specifically, the e-mail failed to: (1) include a PDF copy of the motion or a link to the motion on a website maintained by the clerk; (2) include the words “SERVICE OF DOCUMENT” in the e-mail’s subject line; and (3) include the case number, the name of each initial party, the title of each document served, and the sender’s name and telephone number in the body of the e-mail. Id. Eventually, defendant filed a timely motion for sanctions with the trial court. Id. at 688. Plaintiff argued that the motion was never properly served because defendant’s e-mail to plaintiff failed to comply with rule 2.516(b)(1)(E). Id The trial court denied the motion. Id On appeal, the Fourth District affirmed the judgment of the trial court. Id at 690. The Fourth District began its analysis of rule 2.516 by interpreting subsection (b)(1). Then, without analyzing rule 2.516(a), the Fourth District moved directly to the requirements in 2.516(b)(1)(E). Because the defendant did not comply with the requirements, the Fourth District upheld the ruling of the trial court.

We decline to apply Matte to the case before us. The Matte decision does not concern proposals for settlement. As such, it does not directly address the question we are called upon to decide here. Moreover, the Matte court did not analyze whether the scope of documents to be filed by e-mail in rule 2.516(b)(1) was limited by rule 2.516(a)’s confining that scope to documents filed in an action. In fact, the Matte opinion does not contain any analysis of rule 2.516(a)—it simply presumes that preliminary service of a motion for sanctions under section 57.105(4) must be accomplished by e-mail. As we have already explained, rule 2.516 contains no such requirement for documents which are not required to be filed with the court at the time at which that document is served. Similar to proposals for settlement, motions for sanctions under section 57.105 are not filed in court unless it is necessary to enforce them. Compare § 57.105(4), with § 768.79(3), mid Fla. R. Civ. P. 1.442(d). The Matte court’s failure to recognize the proper scope of documents subject to email service requirement constitutes a fatal flaw in that court’s reasoning. Accordingly, we will not extend that reasoning to the milieu of service of pretrial proposals for settlement.

We are instead persuaded by the analysis in Douglas v. Zachry Industrial, Inc., No. 6:13-cv-1943-Orl-40GJK, 2015 WL 6750803, at *2-3 (M.D. Fla. Nov. 05, 2015). The Douglas plaintiff served a proposal for settlement upon defendant by e-mail, and the text of the proposal specifically provided that the proposal would not be filed with the court unless filing was necessary to enforce the proposal. Id. at *1. Ultimately, the proposal was rejected and plaintiff moved for attorneys’ fees and costs on the basis of the proposal. Id. As in Matte, the defendant argued that the proposal was invalid because it failed to comply with the formatting requirements of rule 2.516(b)(1)(E)—it did not contain the words “SERVICE OF COURT DOCUMENT” in uppercase letters within the email’s subject line. Douglas, 2015 WL 6750803, at *1. Rather, the subject line contained all of these words in lowercase letters. Id.

The Douglas court held that the e-mail service requirement in rule 2.516 did not apply to proposals for settlement. Id. at *2-3. Specifically, the Douglas court held, as we do here, that rule 2.516(a) restricted the scope of the word “documents” in rule 2.516(b)(1) to only those documents filed in court. Id. at *2-3. Because rule 1.442(d) states that a proposal for settlement “shall not” be filed, the Douglas court determined that the e-mail service requirement did not apply to proposals for settlement. Id. at *2. And because the e-mail service requirement did not apply, the e-mail formatting requirements in rule 2.516(b)(1)(E) also did not apply. Id. at *2-3. In addition, the Douglas court expressed disagreement with the holding of Matte. Douglas-, 2015 WL 6750803, at *3. We find the Douglas court’s reading of rule 2.516(a) both persuasive and correct.

After briefing and oral argument in this case, the Third District held that proposals for ‘ settlement must comply with' rule 2.516(b)(l)’s mandatory e-mail service requirement. Wheaton v. Wheaton, 217 So.3d 125, 2017 WL 608523 (Fla. 3d DCA Feb. 15, 2017).: There, the appellant served a proposal for settlement by e-mail. Id. 217 So.3d at 126. It was undisputed that this emailed proposal neglected to comply with “certain requirements for service by email” set forth in rule 2.516(b)(l)(E)(i)-(v). Id. As such, the trial court ruled that the proposal for settlement could not support an award of attorneys’ fees, and the Third District affirmed. Id. 217 So.3d at 126-27.

The Wheaton court focused on rule 2.516(b)(l)’s language specifying that the e-mail service requirement applies to documents. that are either “required or permitted to be served upon another.” Id. (citing Fla. R. Jud. Admin 2.516(b)(1)) (emphasis added). The Wheaton court acknowledged that proposals for settlement are not required to be contemporaneously filed upon service, and therefore are not covered by rule 2.516(a). Id. However, the Wheaton coufy reasoned that the e-mail service requirement extends to proposals for settlement anyway, because proposals for settlement qualify, as documents “permitted to be served” under rule 2.516(b)(1). Id. The Wheaton court then adopted the reasoning in Matte and Floyd and essentially created a bright line rule that e-mail is the exclusive method.for service upon a party for any document whatsoever. Id. We respectfully disagree with the Wheaton court.

As explained, rule 2.516(b)(l)’s mandatory service requirement is confined to every pleading subsequent to the initial pleading and documents that are filed in court—it does not extend to literally every document which is due to be served. Our decision to reject Wheaton’s holding is grounded in our reading of the plain language of section 768.79(3) and rule 1.442(d). In no uncertain terms, the legislature and' supreme court have emphatically directéd that parties “shall” serve proposals for settlement on opposing parties— such service is not merely “permitted.” § 768.79(3); Fla. R. Civ. P. 1.442(d). Moreover, the plain language of rule 2.516(a) does not imply that “every pleading subsequent to the initial pleading and every other document filed in a court proceeding” are the only types of documents which are “required” to be served—it merely states that they are the only types of documents which must be served “in accordance with [rule 2.516].” To hold that rule 2.516(b)(l)’s mandatory e-mail service requirement applies to proposals for settlement, or any document not explicitly contemplated by rule 2.516(a), we would have to rewrite rule 2.516(a) and turn a blind eye to section 768.79(3) and rule 1.442(d).

In our final analysis, we respectfully diverge from the Wheaton court’s construction of the applicable statute and rules of court. In our view, the plain and unambiguous language of rule 2,516(b)(l)’s mandatory e-mail service requirement is confined to “doeument[s] filed in any court proceeding,” in conjunction with the text of subsection (a). See Hechtman, 840 So.2d at 996; Jones, 793 So.2d at 914-15. The Wheaton court’s construction has great practicality in that it creates a bright-line e-mail service requirement for all documents due to be served upon a party, but this construction is not buttressed by the text of rule 2.516 and is contrary to the plain language of section 768.79(3) and rule 1.442(d).

CONCLUSION

The trial court erred in denying the Boatrights’ motion for attorneys’ fees and costs for failing to strictly comply with section 768.79 and rule 1.442. The mandatory e-mail service requirement in rule 2.516(b)(1) does not apply to pretrial proposals for settlement. The Boatrights strictly complied with the statute and corresponding procedural rules governing the service of proposals for settlement by: (1) serving their proposals via U.S. Certified Mail; and (2) attaching to each of their proposals a certificate of service. We reverse the order of the trial court and remand for an award of attorneys’ fees and costs in favor of the Boatrights. The amount of the award is to be determined by the trial court. The court’s award of costs to the Boatrights pursuant to section 57.041 is affirmed. We certify conflict with the Third District’s decision in Wheaton.

Affirmed in part, reversed in part; remanded for award of attorneys’ fees and costs; conflict certified.

SILBERMAN and LaROSE, JJ., Concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      . The Boatrights also moved to recover costs pursuant to section 57.041, Florida Statutes (2013), which was granted by the trial court. That basis for the award of costs is not being challenged in this appeal.

      . “The same principles of construction apply to court rules as apply to statutes.” Mitchell v. State, 911 So.2d 1211, 1214 (Fla. 2005) (quoting Gervais v. City of Melbourne, 890 So.2d 412, 414 (Fla. 5th DCA 2004)).

      . In 2012, the certificate of service in the now-defunct rule 1.080(f) was moved to rule 2.516(f). See In re Amendments to Fla. R. Jud. Admin., Fla. R. Civ. P., Fla. R. Crim. P., Fla. Prob. R., Fla. R. Traff. Ct., Fla. Sm. Cl. R., Fla. R. Juv. P., Fla. R. App. P., Fla. Fam. L. R. P.—E-Mail Serv. Rule, 102 So.3d 505, 509-10 (Fla. 2012), We invite the drafters of the Florida Rules of Civil Procedure to clarify rule 1.442(c)(2)(G), to the extent that the cer-tifícate of the service is now contained within rule 2.516(f).

      . It would be strange if the certificate of service form set forth in rule 2.516(f) listed an impermissible method of service. After all, a certificate of service in compliance with rule 2.516(f) evidences prima facie proof of service. Therefore, we suggest that litigants who wish to serve pretrial proposals for settlement look to the methods of service listed in 2.516(f) for guidance.

      . The manner in which the tobacco companies arrive at this conclusion is not immediately obvious, but they believe that the language referencing a certificate of service in rule 1.442(d) also incorporates the entirety of rule 2.516 into section 768.79 and rule 1.442. Even if rule 1.442(d) refers to something other than a certificate of service, we disagree with the tobacco companies, as explained below.


author: SALTER, J.

text:
    Arleen HANNA-MACK, Appellant, v. BANK OF AMERICA, N.A., et al., Appellees.
    No. 3D16-1897
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      Arleen Hanna-Mack, in proper person.
    Liebler Gonzalez & Portuondo and Adam M. Topel, for appellee Bank of America, N.A.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Arleen Hanna-Mack, pro se, appeals an amended final order of dismissal with prejudice of her complaint against the appel-lee, Bank of America, N.A. (“Bank”), for trespass, an “illegal. lock out,” conversion of her personal belongings, invasion of privacy, and other allegedly-wrongful acts regarding her personal residence. We reverse the order dismissing the complaint with prejudice, and we remand the case to permit Ms. Hack to amend the complaint if she elects to do so.

Our review of this record is de novo regarding the trial court’s dismissal of the initial complaint. In reviewing the legal sufficiency of any cause of action asserted in the complaint, we consider only the four corners of the complaint (there were no attachments). We assume that all factual allegations by Ms. Hanna-Mack are true, and we construe all reasonable inferences from those allegations in her favor. Gogoleva v. Soffer, 187 So.3d 268, 273 (Fla. 3d DCA 2016).

In considering Ms. Hanna-Mack’s failure to file an amended complaint in 36 days after an initial dismissal order (explicitly without prejudice), our review is for an abuse of discretion. However, we have repeatedly held that the failure to amend after a first dismissal, despite leave to do so, does not support a final dismissal with prejudice, absent an express provision within the order specifying the deadline and the consequence if timely amendment does not occur. Kruger v. Kruger, 124 So.3d 1033, 1035 (Fla. 3d DCA 2013). There is no showing in this case that the “failure to amend was willful, deliberate, or contumacious.” Id.

Regarding the trial court’s notation on the order of dismissal with prejudice that Ms. Hanna-Mack “failed to appear after proper notice,” the hearing was noticed by the Bank, not by the court. Ms. Hanna-Mack filed a motion for rehearing only seven days after the five-minute motion calendar hearing on the Bank’s motion for the entry of a final order of dismissal. In the motion, Ms. Hanna-Mack set forth exigent circumstances which allegedly precluded her from attending the hearing referred to by the trial court in the order of dismissal with prejudice. This motion, too, was denied, and the trial court declined to reconsider its dismissal with prejudice. Ms. Hanna-Mack’s appeal followed.

Ms. Hanna-Mack’s pro se brief argues that the trial court’s refusal to vacate the order of dismissal with prejudice and to allow her to amend was an impermissible sanction under Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993). We need not reach that question, however, as Ms. Hanna-Mack’s conduct was not violative of a court order. The questions before us are the legal sufficiency of her complaint and the denial of her promptly-filed motion for relief from the dismissal with prejudice.

The Bank’s response argues first that Ms. Hanna-Mack failed to provide transcripts of the two motion calendar hearings on the Bank’s motions to dismiss. While there is no transcript of those hearings, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), this is not fatal to appellate review because the errors in the present case are apparent on the face of the record. Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010).

The Bank also defends the original dismissal of all seven counts alleged in the complaint. Under the de novo standard of review applicable to her complaint, however, several of the counts should have survived the dismissal motion. The Bank maintained that a pending foreclosure action authorized entry to Ms. Hanna-Mack’s residence, but that is not discernible from the four corners of the complaint. The allegations of unauthorized entry and conversion of personal property, assumed to be true at this stage, are a legally sufficient basis for relief unless and until the Bank proves otherwise.

Ms. Hanna-Mack is entitled to have her pleadings construed liberally. Montesinos v. State, 143 So.3d 1055, 1056 (Fla. 3d DCA 2014). If a pro se motion is improperly titled, the court should focus on the substance of the motion, based on its content. Suarez v. Orta, 176 So.3d 327, 328 (Fla. 3d DCA 2015). Florida courts emphasize substance over form. Id. Pro se litigants are also afforded leniency on certain procedural technicalities in drafting motions and requesting relief. Kidwell v. Kidwell, 181 So.3d 1190, 1190 (Fla. 3d DCA 2015). This leniency promotes the courts’ fundamental principle of allowing pro se litigants “procedural latitude, a practice effected to ensure access to the courts for all citizens,” id. although pro se litigants are still subject to procedural rules. Id. Against this background, Ms. Hanna-Mack’s “Motion for Hearing,” filed and served promptly after the dismissal with prejudice, was sufficient to merit relief. It was timely, and it tracked the language of the rule under which she was requesting relief.

For these reasons, we reverse the final order of dismissal with prejudice. We remand for the court to permit Ms. Hanna-Mack to amend her complaint. In the event the Bank seeks dismissal of any such amended complaint, any order of dismissal shall identify those counts determined to be legally insufficient so as to facilitate further review, if sought. We express no opinion regarding the ultimate merits of any such amended complaint or any further rulings by the trial court.

Reversed and remanded for further proceedings.

      . The pro se complaint also named a predecessor lender, BAC Home Loans Servicing, L.P., later voluntarily dismissed by Ms. Han-' na-Mack, and Safeguard Properties Mánagement, LLC, which apparently was never served. The seven counts also include breach of contract, negligence, and a demand for punitive damages.

      . The circuit court docket includes Ms. Hanna-Mack’s notice of hearing on her motion, which she attempted to place on the August 16, 2016, motion calendar. Her motion for rehearing was denied on August 4, 2016, and her attempt to schedule the hearing was rejected.

      . The complaint alleges that the Bank filed a mortgage foreclosure action against the residence in 2008, but also alleges that "the residence was not in foreclosure process and proceeding at the time” (referring to the 2011 alleged break-in and conversion by the Bank and its agents). That residence is still her service address, in both the circuit court and here.

      . We note the certificates of indigency filed by Ms, Hanna-Mack in this Court and in the circuit court. Because of the difficulties in proceeding pro se, we commend to her the volunteer, “pro bono” attorneys and self-help information available through various websites (accessible through any Miami-Dade Public Library branch public-access computer), such as www.dadecountyprobono.org, www.legalservicesmiami.org, or www,3dca, flcourts.org/SelfHelp/SelfHelp.shtml.


author: SILBERMAN, Judge.

text:
    LEE COUNTY DEPARTMENT OF TRANSPORTATION, Appellant, v. The ISLAND WATER ASSOCIATION, INC., and Annette Cantalupo, Appellees.
    Case No. 2D16-234
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017

      James L. Holloway, III, Assistant County Attorney, Lee County Attorney’s Office, Fort Myers, for Appellant.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee The Island Water Association, Inc.
    No appearance for Appellee Annette Cantalupo.
   SILBERMAN, Judge.

Annette Cantalupo tripped and fell over a water valve located on a county road. As a result, she filed a negligence action against Lee County Department of Transportation and The Island Water Association, Inc. Lee County appeals a final summary judgment in favor of Island Water in which the trial court determined that Island Water did not have a legal duty to repair the county road around its water valve or warn the public. Lee County is also challenging the trial court’s ruling to exclude evidence of subsequent remedial measures. Because the trial court erred as a matter of law in determining that Island Water did not have a legal duty, we reverse and remand for further proceedings. We also address the issue regarding evidence of subsequent remedial measures for purposes of remand. Based on this disposition, we need not address ;Lee County’s remaining issue raised on appeal.

In her amended complaint against Lee County and Island Water, Cantalupo alleged that on December 5, 2010, she was legally walking on a roadway when she tripped and fell over a water valve cover (the valve) that was protruding in the roadway, causing her to sustain injuries. The valve was on Captiva Drive in an area used by pedestrians. Defendant Lee County owns Captiva Drive and Defendant Island Water owns the valve and the pipes underneath it. Cantalupo alleged that Island Water owed her a duty to exercise reasonable care for her safety. She further alleged that Island Water breached that duty by negligently failing to maintain the valve in the roadway, failing to inspect the valve to determine whether the protruding valve constituted a hazard to pedestrians, failing to warn Cantalupo of the' danger of the protruding valve, and failing to correct the unreasonably dangerous condition of the valve. In addition, Cantalupo alleged that Island Water knew or should have known of this foreseeably dangerous condition but failed to take any precautions to alleviate the dangerous condition or warn of it.

At the time of Cantalupo’s accident, the asphalt surrounding the valve had separated from around the valve. It appeared that the asphalt had sunk such that the asphalt was no longer flush with the valve, causing the valve to protrude above the asphalt. Approximately three months after the accident, Island Water had repairs made to the asphalt around the valve to bring the asphalt flush with the valve.

Island Water filed motions in limine on a number of matters, and after a hearing, the trial court entered an order on motions in limine and on legal duties in which it excluded evidence of subsequent remedial measures. In one of its motions in limine, Island Water also sought to exclude evidence that it had a legal duty to maintain the asphalt surrounding the valve. In its order, the trial court determined that Island Water did not have a duty to Cantalu-po to maintain the road surrounding the valve based on its repair of the road around the valve after the accident or because it was contractually obligated to maintain the valve.

Cantalupo filed a motion for reconsideration of the in-limine order, and Island Water filed a motion for summary judgment as to the duty issue. Island Water asserted that there was a pure issue of law as to whether Island Water had any legal duty before the accident to maintain the asphalt surrounding the valve. The trial court conducted one hearing on both motions. Cantalupo argued at the hearing that Island Water had a legal duty in addition to its contractual duty. The trial court denied the motion for reconsideration and entered a final summary judgment in favor of Island Water. The trial court relied on an agreement between Island Water and Lee County to determine: (1) Island Water’s only duty to the public was as to its equipment, and (2) Island Water had no duty in a circumstance where there was a depression in the asphalt around the valve and Island Water did not install the asphalt or damage it.

Island Water’s Legal Duty

Lee County contends that the trial court erred in determining that Island Water had no duty to the public to warn of or correct a protruding water valve in a public roadway. Our review is de novo because the determination of the duty element of negligence is a question of law. Chirillo v. Granicz, 199 So.3d 246, 248 (Fla. 2016). In addition, the review of a summary judgment is de novo. Id. at 249. To uphold a summary judgment, there must be no genuine issue of material fact and the moving party must be entitled to a judgment as a matter of law. Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015). If there is a possibility of a genuine issue of material fact, summary judgment is inappropriate. See id.

In Chirillo, the Florida Supreme Court recognized that McCain v. Florida Power Corp,, 593 So.2d 500 (Fla. 1992), is the starting point in negligence cases for an analysis of the duty element. 199 So.3d at 249. The McCain court explained that foreseeability is related to both duty and proximate cause but in different ways. 593 So.2d at 502. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ’zone of risk’ that poses a general threat of harm to others.” Id. (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989)). Duty “is a minimal threshold legal requirement for opening the courthouse doors.” Id. (footnote omitted). The McCain court “described four sources of duty: statutes, judicial interpretation of statutes, other judicial precedent, and the general facts of the case.” Chirillo, 199 So.3d at 250 (citing McCain, 593 So.2d at 503 n.2). Here, the general facts of the case give rise to the duty based on the principle that “a legal duty will arise whenever a human endeav- or creates a generalized and foreseeable risk of harming others.” McCain, 593 So.2d at 503.

The issue of duty does not depend on ownership of the property. Cook, 164 So.3d at 122; Metsker v. Carefree/Scott Fetzer Co., 90 So.3d 973, 977 (Fla. 2d DCA 2012). A party who has control over premises has a duty of care to keep the premises in repair. Cook, 164 So.3d at 122; Metsker, 90 So.3d at 977. And when two parties share control of the premises, both parties may have a duty of care. Metsker, 90 So.3d at 977; Craig v. Gate Maritime Props., Inc., 631 So.2d 375, 378 (Fla. 1st DCA 1994).

“As a general rule, utilities have ‘a duty to exercise care, both in the location or construction and in the use and maintenance of its lines,’ poles, and equipment.” Webb v. Glades Elec. Coop., Inc., 521 So.2d 258, 259 (Fla. 2d DCA 1988) (quoting Padgett v. W. Fla. Elec. Coop., Inc., 417 So.2d 764, 766 (Fla. 1st DCA 1982)). Applying the McCain analysis, when Island Water decided to operate utilities in a public roadway, it assumed a common law duty to maintain its valves to allow the public to safely navigate on or around them. On the date of the accident, the valve was sticking up one and a half to two inches above the asphalt. It was reasonably foreseeable that someone would trip over a valve that was protruding above the roadway.

Even if the valve protruded due to the erosion of the asphalt around it, Island Water is not absolved of its responsibility to keep the public safe from a known tripping hazard. For instance, in City of Tampa v. Jorda, 445 So.2d 699, 700 (Fla. 2d DCA 1984), this court determined that the trial court properly submitted to the jury the issue of the negligence of both the city and the landowner plaintiff. There, the plaintiff fell when she stepped on the city’s water meter box in her front yard. The meter box had become tilted because some of the sand under the meter box had fallen away. The meter box gave way when the plaintiff stepped on it, thus causing her to fall. Jd. Similarly, Island Water’s valve became a hazard when it protruded above the pavement when the asphalt around it eroded or settled. See Utter v. Jacksonville Utils. Mgmt., Inc., 363 So.2d 829, 829 (Fla. 1st DCA 1978) (reversing dismissal of amended complaint when it alleged a water utility’s “negligent maintenance of its water meter and the creation or failure to repair a hazardous hole surrounding it”); City of Niceville v. Hardy, 160 So.2d 535, 537 (Fla. 1st DCA 1964) (stating in a negligence case that the plaintiffs theory of recovery for a dangerous and defective condition was sound when the plaintiffs foot slid into a water meter box owned by the city and the meter box, due to soil erosion, had become tilted so that the lid would not stay on the box).

Here, based , on the trial court’s reliance on Lee County’s agreement with Island Water, the trial court found that Island Water had a duty to the public only as to its equipment. Of course, the fact that the valve was protruding made that equipment a hazard. Further, an agreement between two parties does not necessarily absolve a party from a duty to the public.

The trial court found that Island Water had no duty regarding the asphalt around the valve because Island Water had not installed that asphalt and had not damaged the asphalt during maintenance checks. But despite a contract, a party who exercises control over property may have a duty to maintain a premises in a reasonably safe condition. See Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 736 (Fla. 4th DCA 2012) (reversing summary judgment and stating that “a commercial tenant may have a duty, independent of the landlord’s duty, to maintain premises in a reasonably safe condition regardless of whether the landlord has contractually assumed responsibility to maintain the premises”) (citing Levy v. Home Depot, Inc., 518 So.2d 941, 942 (Fla. 3d DCA 1987); Bovis v. 7-Eleven, Inc., 505 So.2d 661, 664 (Fla. 5th DCA 1987)). The trial court erred as a matter of law in determining that Island Water had no legal duty to correct or warn of a protruding water valve that was a tripping hazard. Therefore, we reverse the final summary judgment and remand for further proceedings.

Evidence of Subsequent Remedial pleasures

Lee County contends that the-trial court erred in granting Island Water’s motion in limine to exclude evidence of subsequent remedial repairs. Island Water claims that its equipment did not cause'the damage to the asphalt surrounding the valve. But about three months after Cantalupo’s trip and fall, Island Water repaired the asphalt around the valve. Island Water successfully argued to the trial court that evidence of the subsequent remedial measures was inadmissible under section 90.407, Florida Statutes (2015), because the purpose of the evidence was to show negligence or culpable conduct.

Section 90.407 provides as follows;
Evidence of measures taken after an injury or harm caused by ,an event, which measures if taken before the event would have made, injury or harm less likely to occur,- is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

Lee County argues that the exception in section 90.407 applies because the evidence would be offered to show Island Water’s control over the asphalt around the valve.

“It is well settled that a public or private entity which owns, operates, or controls a property, including a roadway, owes a duty to maintain that property, and a corresponding duty to warn of and correct dangerous conditions thereon.” Pollock v. Fla. Dept. of Highway Patrol, 882 So.2d 928, 933 (Fla. 2004). In Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015), this court also recognized that a party who exercises control over a premises has a corresponding duty and reversed a summary judgment in favor of the defendant. There, the fact that an employee of the defendant removed the pipe that caused the injury after the accident was a factor in determining whether the defendant exercised control of the premises. Id. at 123. In considering all the evidence, this court determined that issues of material fact existed regarding whether the defendant exercised control of the area where the plaintiff was injured. Id.

Here, the parties seem to dispute on appeal whether the issue of Island Water’s control of the roadway was controverted. Island Water acknowledged the ability to control the roadway under circumstances when its equipment caused damage or needed repairs. And the trial court found, “It is uncontroverted that [Island Water] has the ability to access and affect the road around the valve if such is required in order to repair or maintain the valve.” But the issue that Lee County raises is whether Island Water had the ability to control the roadway around the valve absent the need for repairs to Island Water’s equipment.

This issue will need to be addressed on remand because we are reversing on the issue of legal duty. Thus, on remand, the evidence of subsequent remedial repairs would be admissible at trial to show control if Island Water denies that it had the ability to control the roadway to make repairs in circumstances when its equipment did not cause the damage or need repair.

In addition, Lee County argues that the subsequent remedial measures are admissible as impeachment. On remand, if a witness testifies that Island Water did not have control over the roadway to make the repairs to the asphalt, then evidence of subsequent remedial measures would be admissible for impeachment. See § 90.407.

Conclusion

We reverse the final summary judgment in favor of Island Water and the order of December 16, 2015, that sets forth findings on the motion for reconsideration regarding subsequent remedial measures. We also reverse the order in limine of December 1, 2015, as to the ruling on subsequent remedial measures and the legal duty of Island Water. We remand for further proceedings in the trial court.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.

      . In a related appeal, Cantalupo raises the same issues Lee County raises here, and for the reasons expressed in this opinion, we reverse and remand in Cantalupo’s appeal. See Cantalupo v. Island Water Ass’n, No. 2D 16-363, 2017 WL 1400588 (Fla. 2d DCA April 19, 2017).


author: WALLIS, J.

text:
    Jacob HORNSTRA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-388
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017

      Jacob Hornstra, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee
   WALLIS, J.

Jacob Hornstra appeals the postconviction court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of claims 1 through 3 without further discussion. However, we reverse and remand the postconviction court’s dismissal of claim 4 with instructions to either attach records conclusively refuting the claim or hold an evidentiary hearing.

In December 2010, Hornstra pleaded no contest to lewd or lascivious molestation of a child less than twelve years of age and lewd or lascivious solicitation. The trial court sentenced Hornstra to concurrent terms of five years’ incarceration, suspended upon completion of ten years of sex offender probation. In May 2015, after Hornstra admitted to violating his probation, the trial court imposed concurrent sentences of five years’ incarceration.

In October 2016, Hornstra filed the instant rule 3.850 motion. In claim 4, Horns-tra alleged that his trial counsel provided ineffective assistance by failing to object to the imposition of the costs of incarceration. The postconviction court dismissed this claim as facially insufficient, reasoning that Hornstra “fail[ed] to identify the costs for which the trial counsel should have objected.” The court explained that its dismissal was without prejudice to Hornstra’s right to address the issue through a Florida Rule of Criminal Procedure 3.800(b) motion.

We find that the postconviction court incorrectly dismissed claim 4 on the basis that Hornstra failed to identify the costs he wished to challenge. Counsel’s failure to challenge the imposition of costs can serve as a basis for postconviction relief. See, e.g., Boyington v. State, 125 So.3d 327, 328 (Fla. 1st DCA 2013) (finding appellate counsel ineffective for not filing rule 3.800 motion challenging lump sum fines and costs). In his motion, Hornstra explicitly referenced the costs of incarceration. Hornstra alleged, inter alia, that trial counsel provided ineffective assistance by not challenging the trial court’s failure to cite any statutory authority for the imposition of costs in its written order. See Kirby v. State, 695 So.2d 889, 890 (Fla. 2d DCA 1997) (“The statutory authority for all costs imposed, whether they are mandatory or discretionary, must be cited in the written order.” (citations omitted)). It is unclear how Hornstra could have more specifically identified the cost he sought to challenge. Moreover, we cannot determine whether the trial court improperly assessed costs of incarceration because the postconviction court did not attach the order imposing fees and costs to its order denying Hornstra’s motion for postconviction relief.

We also find that the postconviction court incorrectly dismissed claim 4 for Hornstra to raise the issue through a rule 3.800(b) motion. Because the court deemed claim 4 facially insufficient, it should have permitted Hornstra to amend the claim rather than dismissing it. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Nonetheless, having determined that claim 4 contained a sufficient basis for relief, we reverse the dismissal of claim 4 and remand for the postconviction court to either attach records conclusively refuting the claim or hold an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED with Instructions.

PALMER and EVANDER, JJ., concur.


author: LAMBERT, J. TORPY, J.,

text:
    Lia WARD, Appellant, v. Keith M. MORLOCK, Appellee.
    Case No. 5D16-1641
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 5, 2017

      Lindsey M. Tenberg, Lighthouse Point, for Appellant.
    Michael M. Brownlee, of Fisher Rush-mer, P.A., Orlando, for Appellee.
   LAMBERT, J.

The issue that we address in this conflict of laws case is whether Florida’s dangerous instrumentality law should apply to a case arising out of a motor vehicle accident that occurred in South Carolina where the only two parties to the litigation are Florida residents. The material facts of the case are not in dispute. Appellee, Keith Mor-lock, and his family were vacationing in South Carolina with his brother-in-law, Paul Behrens, and his family. Behrens’ son needed a ride to a local airport, and Beh-rens asked Appellee if he could borrow his vehicle. Appellee consented, and while on the way to the airport, Behrens rear-ended the car that Appellant, Lia Ward, was driving at an intersection located in Mt. Pleasant, South Carolina.

Appellant filed a negligence suit solely against Appellee, seeking damages under Florida’s dangerous instrumentality doctrine, which provides that an owner of a motor vehicle is generally liable for injuries that are caused by the vehicle’s negligent operation. Michalek v. Shumate, 524 So.2d 426, 427 (Fla. 1988). Appellee answered the complaint, and after the parties conducted some preliminary discovery, Ap-pellee moved for final summary judgment. Appellee argued that South Carolina law, rather than Florida law, governed and that under South Carolina law, the mere ownership of a vehicle is, without more, insufficient to establish the owner’s liability for the negligence of the driver. See Thompson v. Michael, 315 S.C. 268, 438 S.E.2d 853, 855-56 (1993). Appellee argued that because there was no evidence that he negligently entrusted his vehicle to his brother-in-law or that he would otherwise be liable to Appellant under South Carolina’s “Family Purpose Doctrine,” final summary judgment was proper. The trial court determined that South Carolina law, rather than Florida law, applied and thereafter entered final summary judgment in favor of Appellee.

“The standard of review for choice-of-law questions is de novo.” Hig gins v. W. Bend Mutual Ins. Co., 85 So.3d 1156, 1157-58 (Fla. 5th DCA 2012) (citing Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102 (Fla. 2011); Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1516 (11th Cir. 1985)). In determining which state’s law applies in conflict of laws cases, Florida courts historically utilized the lex loci delicti rule that made the substantive law of .the state where the injury occurred applicable to personal injury actions. See Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743, 745-46 (Fla. 1967). However, in 1980, the Florida Supreme Court receded from this doctrine and adopted the “significant relationships test” as set forth in sections 145-146 of the Restatement (Second) of Conflict of Laws (Am. Law. Inst. 1971), which it described as the “more flexible, modern approach” in determining this issue. Bishop v. Fla. Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980).

The cited sections of the Restatement provide:

§ 145 The General Principle,
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d)the.place where the relationship, if any, between • the parties, is centered. ..
These contacts are to be evaluated according to their relative importance to the particular issue. ' : .
§ 146 Personal Injuries
In an action for -a personal injury; the local law of the state where the injury occurred determines' the rights and liabilities of the parties, unless, with respect to the particular issue;' some other state has a more significánt relationship under the principles stated in § 6 to the occurrence and the parties, .in which event the local law of the other state will be applied.
Section 6(2) of the Restatement (Second) of Conflict of Laws sets forth the following choice of law principles in assessing which state law is to be applied:
(a) the needs of the interstate and international systems,"
(b) the relevant policies of the forum,
(c) the relevant policies of the other interested states and the relative ’ interests' of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the ■ particular field of the law,
(f) certainty, predictability and uniformity of result, and
(g)' ease in the determination and application of the law to be applied.

Pertinent to our resolution of this appeal is the recognition that the “significant relationships test does not require the court to evaluate the recited contacts with a view to determine which state’s local law should be applied to all issues in the case as a whole; rather, the contacts must be evaluated with respect to the particular issue under consideration.” Stallworth v. Hosp. Rentals, Inc., 515 So.2d 413, 415 (Fla. 1st DCA 1987) (citing Hertz v. Piccolo, 453 So.2d 12 (Fla. 1984); Harris v. Berkowitz, 433 So.2d 613 (Fla. 3d DCA 1983)). Thus, although two of the four contacts under section 145(2), the place where both the injury and the conduct causing the injury occurred, favor South Carolina, these contacts are evaluated qualitatively, not quantitatively, according to their relative impact to the particular issue. See Spence v. Glock, Ges.m.b.H., 227 F.3d 308, 312 (5th Cir. 2000).

As previously stated, the critical legal issue in dispute is whether Appellee, as owner of the automobile, may be held vicariously liable for Appellant’s injuries and damages under Florida’s dangerous instrumentality doctrine. Comment a. to section 145 of the Restatement (Second) of Conflict of Laws recognizes that sections 156-174 of the Restatement focus on specific issues in tort, providing that the best way to bring more precision into the conflict of laws arena is by attempting to provide special rules for particular issues in tort. On the precise issue of vicarious liability, comment a. to section 174 of the Restatement (Second) of Conflict of Laws directs the forum court to apply “the local law of the state which has the most significant relationship to the occurrence and the parties with respect to the issue of vicarious liability” in deciding “whether one person is hable for the tort of another.” See also Cates v. Creamer, 431 F.3d 456, 463 (5th Cir. 2005). Comment a. to section 174 further provides that the state whose vicarious liability law is to be applied should be selected in accordance with the choice-of-law principles stated in section 6 and that these principles require the forum court to consider: “(1) whether the relationship between the defendant and the other person makes the imposition of vicarious liability reasonable and (2) whether there is a reasonable relationship between the defendant and the state whose local law is to be applied.”

Pursuant to sections 6 and 174, we conclude that Florida has the most significant relationship to the occurrence and the parties on the issue of vicarious liability. First, Appellee is a Florida resident and the vehicle that his brother-in-law allegedly operated in a negligent manner was both registered and insured in Florida. As such, there is a “reasonable relationship” between Appellee and Florida. Second, Appellant is also a Florida resident. Applying Florida law on the issue of vicarious liability is consistent with the policy behind its dangerous instrumentality doctrine; that is, to “protect[] plaintiffs from impecunious drivers by imposing liability on the owners of the vehicles.” Cates, 431 F.3d at 465. Third, Behrens, who has not been sued or otherwise named as a party in the underlying litigation, is a resident of Pennsylvania. Florida’s manifest interest in both protecting its residents and holding its residents responsible under its dangerous instrumentality doctrine far outweighs any interest that South Carolina may have in the application of its laws here, where neither driver nor owner resides in South Carolina. Moreover, while both states have a public policy of protecting an injured plaintiff against monetary costs at the hands of a negligent defendant, South Carolina does not impose vicarious liability upon owners of automobiles. Thus, the application of Florida’s law in this case more readily serves this purpose without offending South Carolina. Additionally, South Carolina would appear to have little, if any, interest in protecting Appellee, a Florida resident, from liability under Florida’s vicarious liability law. Fourth, pursuant to section 6(2)(a), given that the only two parties to his action are Florida residents, the needs of the interstate system appear to be minimally impacted. Fifth, under section 6(2)(d), neither Appellee nor his brother-in-law had any “justified expectations” that the law of South Carolina as opposed to the law of Florida would apply when Behrens borrowed Appellee’s car, and we find it entirely reasonable for Appellee to be vicariously hable for the actions of his brother-in-law’s allegedly negligent driving. Finally, pursuant to section 6(2)© and (g), we find no difficulty or any lack of predictability or certainty in applying Florida’s dangerous instrumentality law to a motor vehicle accident where both vehicles are licensed, registered, and insured in Florida and both parties to the litigation are Florida residents, irrespective of where the motor vehicle accident occurred.

In sum, under the facts of this case, Florida is the state with the most significant relationship for the issue of vicarious liability, and the trial court should have applied Florida’s dangerous instrumentality law. Accordingly, we reverse the final summary judgment and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WALLIS, J., concurs.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurring and concurring specially.

I fully concur with the majority opinion. I write separately to address arguments not raised by the parties, including the effect of section 324.021(9)(b)3., Florida Statutes (2017). Although the Dangerous Instrumentality Doctrine was originally created by decisional law, since 1999, it has been codified in a statute that supersedes other statutes or “existing case law.” It provides that the owner of a vehicle who loans it to “any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith” up to certain limits, depending on what insurance limits are obtained. § 324.021(9)(b)3„ Fla. Stat. (2017) (emphasis added). This statute imposes and limits the liability of an “owner,” a defined term that includes the holder of “legal title.” § 324.021(9)(a), Fla. Stat. (2017).

When an owner invokes the laws of Florida to obtain title and registration of a vehicle, the owner accepts the concomitant financial responsibility imposed by Florida law. This responsibility includes that which is imposed by section 324.021(9)(b)3. Nothing in this statute purports to limit the scope of this liability to permissive use that originates in this state or to injuries caused within the geographic confines of this state. The statute recognizes that the vehicle owner is in the best position to secure resources to pay for injuries and ensure that the vehicle, a dangerous instrument, is entrusted to careful drivers. See Burch v. Sun State Ford, Inc., 864 So.2d 466, 470 (Fla. 5th DCA 2004) (identifying policy for Dangerous Instrumentality Doctrine). New York is one of the few states with a similar statute. I agree with much of the analysis of our sister court in New Jersey, which concluded that the New York statute imposing vicarious liability controlled where the vehicle was registered in New York even though the collision there occurred in New Jersey. Dolan v. Sea Transfer Corp., 398 N.J.Super. 313, 942 A.2d 29, 36-37 (N.J. Super. Ct. App. Div. 2008). Here, Florida has similarly manifested a paramount interest in ensuring that owners of vehicles titled and registered in Florida assume responsibility for injuries arising from the use of those vehicles.

I also agree with the approach taken by New York’s highest court in Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972). The first so-called “Neumeier rule” addresses issues of “loss allocation,” such as vicarious liability, where the plaintiff and defendant have a common domicile. See id., 335 N.Y.S.2d 64, 286 N.E.2d at 457; see also Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 620 N.Y.S.2d 310, 644 N.E.2d 1001, 1003 (1994). In this circumstance, the law of the common domicile controls the loss allocation issue, irrespective of where the tort occurred. See, e.g., Dorsey v. Yantambwe, 276 A.D.2d 108, 111, 715 N.Y.S.2d 566 (N.Y. App. Div. 2000) (Virginia law controlled issue of vicarious liability in suit arising from collision occurring in New York, where plaintiff and defendant shared common Virginia domicile).

      . The South Carolina Supreme Court has explained that the Family Purpose Doctrine arises from the law of agency and is derived from the notion that one "who has made it his business to furnish a car for the use of his family is liable as principal or master when such business is being carried out by a family member using the vehicle for its intended purpose, the family member thereby filling the role of agent or servant.” Gause v. Smithers, 403 S.C. 140, 742 S.E.2d 644, 648 (2013) (quoting Campbell v. Paschal, 290 S.C. 1, 347 S.E.2d 892, 897 (Ct. App. 1986), To impose liability under this doctrine, the plaintiff must prove that the defendant is the head of the family and that the defendant owned, maintained, or furnished the automobile. Id. In the present case, Appellee's brother-in-law, Behrens, is an adult who resides with his own family in Pennsylvania, Thus, under South Carolina’s Family Purpose Doctrine, the trial court concluded that Appellee would not be liable to Appellant for Behrens’ allegedly negligent operation of Appellee’s car. The undisputed evidence before the trial court demonstrates that Behrens is not a member of Appellee's family or, stated differently, Appellee is not the head of Behrens’ family.

      . As to the fourth contact under section 145(2), there is no pre-accident relationship between Appellant and Appellee.


author: MORRIS, Judge.

text:
    Theresa Z. SUDMAN, Appellant, v. Michael J. O’BRIEN, as Trustee of the Michael S. Sudman Trust, Appellee.
    Case No. 2D16-286
    District Court of Appeal of Florida, Second District.
    Opinion filed May 5, 2017
    Philip S. Karle of Abeles & Karle, PLLC, DeBary, for Appellant.
    T. Robert Bullock and Keely F. Morton of Quarles <& Brady LLP, Naples; and Peter Nealis of Taft Stettinius & Hollister, LLP, Cleveland, Ohio, for Appellee.
   MORRIS, Judge.

Theresa Z. Sudman appeals an order granting an objection to her election to take the elective share of her deceased husband’s estate, effectively denying her claim to the elective share. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.170(b). We affirm the order because Sudman technically admitted that she had waived her right to the elective share in a prenuptial agreement and she did not demonstrate that she sought to be relieved from her admissions.

Sudman was married to the decedent when he died in 2013. The trustee of the decedent’s trust, Michael O’Brien, filed a petition for administration of the decedent’s estate. Sudman also filed a petition for administration of the decedent’s estate. In May 2014, the trial court appointed Sudman as personal representative and issued orders of administration.

In October 2014, Sudman filed an election to take the elective share of her deceased husband’s estate under section 732.201, Florida Statutes (2013). The trustee filed an objection to Sudman’s election, alleging that Sudman had waived her right to take the elective share by signing a prenuptial agreement. See § 732.702(1). The trustee then served on Sudman two requests for admissions, asking her to admit that she executed a prenuptial agreement with the decedent prior to her marriage. Sudman failed to respond to those requests. The trial court conducted a non-evidentiary hearing in December 2015, after which the trial court entered an order finding that the requests for admissions “are deemed ADMITTED” and granting the trustee’s objection to Sudman’s election to take the elective share.

On appeal, Sudman argues that the trial court erred in treating her failure to respond to requests for admissions as technical admissions that she waived her right to the elective share by signing a prenuptial agreement and in failing to hear her oral motion to be excused from the admissions.

The trial court treated Sudman’s failure to respond to the trustee’s requests for admissions as admissions that she had entered into a prenuptial agreement with the decedent and had waived her right to the elective share. Florida Rule of Civil Procedure 1.370(a) provides in relevant part that a matter is admitted unless the party answers or objects within thirty days after service of the request, and rule 1.370(b) provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

Our record does not demonstrate that Sudman asked to be relieved from her admissions. See Morgan v. Thomson, 427 So.2d 1134, 1134-35 (Fla. 5th DCA 1983) (recognizing that rule 1.370 “provides a liberal standard for the trial court to grant relief by permitting withdrawal or amendment” but holding that “a motion must be made for relief from the admissions automatically resulting from a failure to timely answer a request for admissions” even where the party later files a pleading or affidavit conflicting with the admissions); cf. Walker v. City of Bartow Police Dep’t (In re Forfeiture of 1982 Ford Mustang), 725 So.2d 382, 384 (Fla. 2d DCA 1998) (reversing and remanding for trial court to consider defendant’s request to be relieved from his admissions, which request was made orally at a hearing on the plaintiffs motion for summary judgment, because “an ore tenus motion brought to the attention of the trial court at a hearing during which the admissions will be considered appears sufficient to satisfy” rule 1.370(b)). Had Sudman asked to be relieved from her admissions, she may have been entitled to that relief. See Walker, 725 So.2d at 385 (“While it is normally within the trial court’s discretion to use a technically deemed admission to support a summary judgment, it is error if the record contains evidence to the contrary of the admission.”); see also Moreland v. City of Fort Myers (In re Forfeiture of $2470.00 in U.S. Currency), 164 So.3d 111, 113 (Fla. 2d DCA 2015) (reversing summary judgment where defendant’s technical failure to respond to request for admissions constituted an admission to a dispositive fact but defendant had “continually contradicted” that fact in various filings leading up to summary judgment). Sudman maintains that she attempted to ask for such relief at the hearing on the trustee’s objection but that the trial court refused to hear her oral motion. However, that fact is not apparent from our record because Sudman did not provide a transcript of the hearing or a statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”).

Our record contains a document filed by Sudman in response to the trustee’s objection. Titled “Response to and Motion to Quash Objection to take Elective Share,” Sudman’s counsel denied the allegation that Sudman had entered into a prenuptial agreement with the decedent. Sudman’s counsel also asserted that “the undersigned has a good faith belief that a prenuptial agreement does not and never did exist between the [djecedent and his wife.” But the response contains no sworn allegations by Sudman and does not specifically ask to be relieved from her admissions; therefore, it was not sufficient to refute the facts earlier admitted by her. Cf. Moreland, 164 So.3d at 112 (even though defendant failed to respond to request for admissions, defendant contradicted fact in a response, two verified motions, and a verified motion to dismiss); Walker, 725 So.2d at 384-85 (after defendant failed to respond and was deemed to have made admissions, defendant denied the facts in a response to motion for summary judgment, in an untimely response to plaintiffs interrogatories, in an ore tenus motion to file responses to request for admissions, and in a renewed motion to file response to request for admissions).

The record also indicates that after the trial court entered its order granting the trustee’s objection, Sudman filed an affidavit in which she stated that she “never entered into or signed a prenuptial agreement with” the decedent and that she “never entered into or signed any agreement to waive [her] elective share rights under Florida law.” But this affidavit was not presented to the trial court prior to the hearing or the trial court’s entry of the order on appeal. Therefore, we do not consider it.

Affirmed.

CASANUEVA and BADALAMENTI, JJ., Concur.

      . Rule 9.170 was added in 2011 and became effective in 2012. In re Amendments to the Florida Rules of Appellate Procedure, 84 So.3d 192, 197-98 (Fla. 2011). Both parties agree that because the order denies Sudman’s claim to the elective share, the order on appeal "finally determine[s] a right or obligation of an interested person as defined in the Florida Probate Code.” Fla. R. App. P. 9.170(b); cf. Dempsey v. Dempsey, 899 So.2d 1272, 1273 (Fla. 2d DCA 2005) (holding that order determining that spouse was entitled to elective share was not final because "the issues of amount, identification of assets, and contribution, if necessary, remain to be resolved”).

      . Sudman did not respond to this court’s order giving her an opportunity to supplement the record with a transcript or a statement of the proceedings.


author: FERNANDEZ, J.

text:
    COMPANION PROPERTY AND CASUALTY GROUP, Appellant, v. BUILT TOPS BUILDING SERVICES, INC., Appellee.
    No. 3D16-2044
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Wadsworth Law, LLLP, Orlando J. Romero and Christopher W. Wadsworth, for appellant.
    Ludovici & Ludovici, P.A. and Susan M. Ludovici, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Companion Property & Casualty Group appeals the trial court’s final order dismissing with prejudice Companion’s Amended Complaint due to the expiration of the statute of limitations in section 95.11(3)(c), Fla. Stat. (2012). We reverse because the trial court erred in finding that Companion’s action was time-barred and thus erred in dismissing it.

On February 8, 2016, Companion filed its subrogation action with the trial court. In its initial complaint, Companion, as the insurer for the property allegedly damaged by the appellee/Built Tops Building Services, Inc., asserted its subrogation claim against Built Tops. Companion pled in Paragraph 5 of its complaint that Built Tops performed the negligent repairs on the insured/subrogor’s roof on or about November 21, 2006. In paragraph 6 of its complaint, Companion pled that as the result of Built Tops’ faulty repairs, the insured condominium building was damaged by water that permeated through the insured’s roof on February 9, 2012. Companion paid its insured $31,937.87 in proceeds under its insurance policy. On February 8, 2016, Companion filed its complaint against Built Tops.

On June 24, 2016, Companion filed an amended complaint with the trial court, as Built Tops did not file a responsive pleading to the initial complaint. In its amended complaint asserting its subrogation rights, Companion again contended that Built Tops performed the negligent repairs on the insured roof on or about November 21, 2006 and further pled, as a result of the faulty repairs, that the insured condominium building suffered a water loss on February 9, 2012 .

On July 8, 2016, Built Tops moved to dismiss the amended complaint. Built Tops asserted that the applicable four-year statute of limitations had run on the filing of Companion’s complaint four years after the date of the negligent repairs performed by Built Tops and not four years after the date of the injury, which was the water loss, that triggered Companion’s obligation to issue payment to its insured. Built Tops argued that Companion’s claim was time-barred and should be dismissed with prejudice.

On August 1, 2016, the parties appeared before the trial court on Built Tops’ motion to dismiss. At the hearing, Companion contended that the matter was a subrogation action for which the statute of limitations began to run on the date that the “injury” occurred. Companion asserted that the subject injury was sustained by the insured (and by way of subrogation, Companion) on the date of the water loss, which was February 9, 2012. Therefore, the initial complaint filed by Companion on February 8, 2016, was timely filed. Built Tops argued, in response, that the statute of limitations instead began to run on the exact date of the negligent repairs as pled by Companion—November 21, 2006—al-though the pleadings were devoid of any allegations that Companion or its insured had any knowledge of the defect in the subject roof at that time. The trial court granted Built Tops’ motion to dismiss on the basis that the applicable statute of limitations had run for the filing of Companion’s complaint.

Companion moved for rehearing/reconsideration. The trial court denied Companion’s motion and dismissed Companion’s complaint.

On appeal, Companion contends that the trial court erred in deciding that its negligence action was time-barred because the statute of limitations had run. Companion asserts that according to section 95.11(3)(c), Fla. Stat. (2012), the statute of limitations began to run on February 9, 2012, the date the water damage occurred, rather than on November 21, 2006, the date when Built Tops performed the negligent repairs.

We review the trial court’s order granting the motion to dismiss de novo. Grove Isle Ass’n, Inc. v. Grove Isle Assoc., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014). We agree with Companion that the trial court improperly dismissed Companion’s subrogation action stemming from a roof leak caused by negligent repairs performed by Built Tops on the insured premises.

According to section 95,ll(3)(a), Fla. Stat. (2012), an action for negligence must be commenced within four years after the cause of action accrues. Furthermore, an action for negligence does not accrue until the plaintiff suffers an actual loss or damages, Med. Data Sys., Inc. v. Coastal Ins. Group, Inc., 139 So.3d 394, 395 (Fla. 4th DCA 2014). With regard to roof leaks on real property, the statute of limitations begins to run from the time the defect is discovered or should have been discovered. Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla. 1983)(in the context of roof leaks on real property, the statute of limitations begins' to run from the time the defect is discovered or should have been discovered); see also Traveler Indemnity Company of Connecticut a/a/o Camilo Office Furniture v. CentiMark Corp. d/b/a CentiMark Roofing Systems, 746 F.Supp.2d 1284 (S.D. Fla. 2010) (involving a subrogation action emanating from a roof leak in which the Southern District of Florida determined that the applicable statute of limitations began to run when the subrogee’s insured first discovered the roof leak on the subject premises rather than at the exact time of the negligent roof repairs).

The critical date of loss here was February 9, 2012, the date on which the insured property was alleged to -have been damaged. The initial complaint for negligence was filed on February 8) 2016, within four years of the date of the subject injury, thus on this record and at this stage of the litigation, the statute of limitations had not expired. Consequently, the trial court erred in determining that the statute of limitations had run and that Companion’s claim was time-barred. Riverwalk at Sunrise Homeowners Ass’n, Inc. v. Biscayne Painting Corp., 199 So.3d 348 (Fla. 4th DCA 2016).

Furthermore, Companion cites to section 95.11(3)(c) in its brief, which deals with an “action founded on the , design, planning, or construction of an improvement to real property,...” However, Companion sued Built Tops for negligence due to a simple repair of the subrogor’s roof. The correct portion of section 95.11 that is applicable here is (3)(a), not (3)(c), because Companion alleged an action founded on negligence. As we stated in Dominguez v. Hayward Industries, Inc., 201 So.3d 100 (Fla. 3d DCA 2015):

The Florida Supreme Court in Hillsboro defined “improvement,” as contained in Black’s Law Dictionary, 890 (4th ed. rev. 1969), as follows:
A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.
Hillsboro [Island House Condominium Apartments, Inc. v. Town of Hillsboro Beach], 263 So.2d [209] at 213 [(Fla. 1972) ]. See also Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1177 (11th Cir. 1997)(relying on Hillsboro and Black’s Law Dictionary’s definition of “improvement” to conclude that the replacement of a shopping center’s entire roof was an “improvement to real property.”). In Pinnacle Port Community Association, Inc. v. Orenstein, 952 F.2d 375 (11th Cir. 1992), for example, the issue was whether to apply the five-year statute of limitations for actions on breach of contract, or the four-year statute of limitations for actions “founded on the design, planning or construction of improvement. ...”. The court held that the “repairs were intended not to enhance the assumed value of the property but to restore the walls to their original watertight state.” Id. at 378. These constituted repairs rather than improvements. Id,

Dominguez, 201 So.3d at 102.

Accordingly, we reverse the trial court’s order dismissing Companion’s action and remand to the trial court so that the action can proceed on its merits.

Reversed and remanded for further proceedings.

      . We base our decision in this case on the date of loss alleged in the operative complaint, as the trial court is limited to the four corners of the complaint in deciding whether to grant or deny the motion to dismiss. By our decision, we do not foreclose the application of any other evidence that may later develop relating to the date of loss.

      . We recognize that Kelley involves section 95.11(3)(c). However, even in that case, the Florida Supreme Court found that the statute of limitations begins to run "when there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action.” Kelley, 435 So.2d at 806.


author: EMAS, J.

text:
    Jose A. RIVERO, Appellant, v. David A. HOWARD, Esq., etc., et al., Appellees.
    No. 3D16-1579
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      Jose A. Rivero, in proper person.
    David S. Molansky, for appellees.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Appellant Jose A. Rivero appeals from a final summary judgment in favor of appel-lees David A. Howard, Esq. and David A. Howard P.A. For the reasons that follow, we affirm in part and reverse in part.

Rivero filed a complaint against appel-lees for legal malpractice. In his legal malpractice complaint, Rivero alleged that he retained appellees for the purpose of filing a false arrest claim against Rivero’s former girlfriend, Mayile Salgado, and against Miami-Dade Detective Jesus Fuentes (individually), as well as a malicious prosecution claim against the Miami-Dade State Attorney’s Office and the Miami-Dade Police Department. Rivero alleged that appellees negligently failed to file suit and instead permitted the statute of limitations to expire, barring Rivero’s false arrest claims against Salgado and Fuentes and his malicious prosecution claims against the Miami-Dade State Attorney’s Office and the Miami-Dade Police Department.

Appellees answered the complaint and alleged several affirmative defenses, including, inter alia, that there was probable cause to arrest Rivero, and thus that Rive-ro could not have prevailed on a claim for false arrest against Salgado and Fuentes.

Thereafter, appellees filed a motion for summary judgment, contending that there were no disputed issues of material fact and that, because Rivero could not have prevailed in the underlying false arrest or malicious prosecution claims, Rivero as a matter of law cannot establish a cause of action for legal malpractice against appel-lees. Specifically, appellees contended that, as to the false arrest claim, there was probable cause to arrest Rivero, thus barring any viable claim for false arrest; absent a viable underlying claim, Rivero cannot establish a cause of action for legal malpractice premised on appellees’ failure to timely file a false arrest claim. The trial court agreed, and entered final summary judgment in favor of appellees.

This appeal followed, and we review de novo the trial court’s entry of summary judgment. Collections, USA, Inc. v. City of Homestead, 816 So.2d 1225, 1227 (Fla. 3d DCA 2002). Summary judgment is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Id.

False arrest is “the unlawful restraint of a person against that person’s will.” Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006). The existence of probable cause to arrest is an affirmative defense to a , false arrest claim. Miami-Dade Cty. v. Asad, 78 So.3d 660, 669 (Fla. 3d DCA 2012); Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004). An arresting officer, however, is required to conduct a reasonable investigation in order to determine whether probable cause exists to arrest a person. Harder v. Edwards, 174 So.3d 524, 534 (Fla. 4th DCA 2015); City of Clearwater v. Williamson, 938 So.2d 985, 990 (Fla. 2d DCA 2006). Moreover, “[wjhere it would appear to a ‘cautious man’ that further investigation is justified before instituting a proceeding, liability may attach for failure to do so, especially where the information is readily obtainable, or where the accused points out the sources of the information.” Harris v. Lewis State Bank, 482 So.2d 1378, 1382 (Fla. 1st DCA 1986). See also City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2d DCA 2005).

OuT review of the record, taken in a light most favorable to Rivero as the non-moving party, demonstrates that there remain disputed issues of material fact regarding whether, prior to arresting Rivero, Detective Fuentes condúeted a reasonable investigation (and whether a reasonable investigation would have established probable cause to arrest Rivero). Because these issues of material fact remained in dispute, .the trial court erred in its determination that Rivero could not have prevailed on a claim of false arrest against Salgado or against Fuentes. We therefore reverse that portion of the summary judgment. We affirm the trial court’s summary judgment insofar as it determined that Rivero could not have prevailed on a claim of malicious prosecution against the Miami-Dade State Attorney’s Office or against the Miami-Dade Police Department.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

      . Legal malpractice actions of this nature are sometimes referred to as "a case within a case” because, in order to establish causation for purposes of the malpractice action, the plaintiff must prove that, but for the attorney’s negligence, the plaintiff would have prevailed on the underlying claim (here, .false arrest or malicious prosecution). See, e.g., Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1065, 185 L.Ed.2d 72 (2013); Silvestrone v. Edell, 701 So.2d 90, 92 (Fla. 5th DCA 1997), rev’d on other.grounds, 721 So.2d 1173 (Fla. 1998).

      . In addition to finding that Rivero could not establish a viable claim of false arrest against Salgado and Fuentes, the trial court also found that Rivero could not establish a viable . claim for malicious prosecution against the Miami-Dade State Attorney’s Office or the Miami-Dade Police Department. Appellant does not challenge (and- has therefore abandoned) that portion of the final summary judgment regarding his claim that appellees failed to timely file an action for malicious prosecution against the Miami-Dade State Attorney’s Office and the Miami-Dade Police Department. We therefore affirm the final summary judgment insofar as it determined that Rivero's legal malpractice claim could-not be premised upon appellees’ alleged failure to file a malicious prosecution claim against the Miami-Dade State Attorney’s Office or against the Miami-Dade Police Department. Our decision reversing the final summary judgment is limited to Rivero’s legal malpractice action premised upon appellees’ alleged failure to timely file a claim for false arrest against Salgado and Fuentes.


text:
    Lazaro QUINTERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2861
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Lazaro Quintero, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ,
   EMAS, J.

Lazaro Quintero appeals from the trial court’s order barring Quintero from filing any further pro se pleadings or documents in four separate circuit court criminal cases.

We affirm the trial court’s order insofar as it bars appellant from filing any further pro se pleadings or documents in circuit court case numbers 07-37983, 08-662, and 08-2880. However, we reverse insofar as the order prohibits appellant from filing any further pro se pleadings or documents in circuit court case number 08-32265. It is true that Quintero filed a number of pro se posteonviction motions in case numbers 07-37983, 08-662 and 08-2880, and on appeal Quintero does not challenge the trial court’s order as regards those cases. As to case number 08-32265, however, the record and the relatively short postconviction history of the case establish that:

- On July 14, 2015, following a jury trial, Quintero was convicted of aggravated battery (Count I) and simple battery (Count II);
- On July 20, 2015 (prior to sentencing) Quintero filed a pro se motion for postconviction relief, which was later dismissed as premature;
- On July 31, 2015, the trial court sentenced Quintero to fifteen years prison on Count I and a consecutive 364 days in county jail on Count II;
- Following our affirmance of Quinte-ro’s direct appeal of 08-32265 (3D15-1836, mandate issued August 18, 2016), Quintero filed a timely and legally sufficient pro se motion to mitigate sentence pursuant to rule 3.800(c);
- The trial court exercised its discretion and denied the motion to mitigate on October 14, 2016.

Within the body of the order denying Quintero’s legally sufficient and timely filed motion to mitigate, the trial court concluded that “Mr. Quintero abused the judicial system by filing the instant motion.” The trial court directed Quintero to show .cause why he should not be barred from proceeding pro se in case number OS-32265. However, the record establishes that, as to this one case, Quintero filed only a premature motion for postconviction relief (the merits of which were not addressed) and a proper motion to mitigate sentence. The record does not support the trial court’s determination that Quintero abused the postconviction process in case number 08-32265. See, e.g., Garcia v. State, 212 So.3d 479 (Fla. 3d DCA 2017); Gaston v. State, 141 So.3d 627 (Fla. 4th DCA 2014). We therefore reverse that portion of the order that prohibits Quintero from proceeding pro se in circuit court case number 08-32265. We affirm the trial court’s order in all other respects.

Affirmed in part and reversed in part.

      . While Quintero has filed numerous posteon-viction motions under those three cases, it appears that the trial court may have grouped all four of Quintero’s cases together in concluding that Quintero had abused the'post-conviction process in case number 08-32265. However, none of the motions filed under circuit court case numbers 07-37983, 08-662, and 08-2880 included case number OS-32265, nor did any of those motions seek relief related to case number 08-32265. In fact, those motions were filed while Quintero was still awaiting trial in case number 08-32265 or while that case was pending on direct appeal.