author: Ciklin, J.

text:
    Robert W. HIGGINS, Appellant, v. Kathy Musso HIGGINS n/k/a Kathy P. Musso, Appellee.
    No. 4D16-69
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Troy William Klein of the Law Office of Troy W. Klein, West Palm Beach, for appellant.
    Benjamin T. Hodas of the Law Office of Benjamin T. Hodas, LLC, West Palm Beach; and Tara S. Pellegrino of Broad and Cassel LLP, West Palm Beach, for appellee.
   Ciklin, J.

This appeal and cross-appeal arise from an amended final judgment of dissolution of marriage. We agree with the former husband that the trial court erred by (1) failing ,to assign a value to a business which was deemed marital property, (2) including a dissipated asset in equitable distribution, and (3) failing to provide reasons for its finding that a boat was a marital asset. We also agree with the former wife that the trial court erred in designating as a marital asset all of the proceeds from the sale of a nonmarital property. We otherwise affirm.

The only . issues raised at trial and on appeal relate to equitable distribution. We review a trial court’s determination of equitable distribution for an abuse of discretion. Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003). “Distribution of marital assets.and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence.” Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th DCA 2008) (citing § 61.075(3); Fla. Stat.). “A trial court’s legal conclusion that an asset is marital or nonmarital is subject to de novo review.” Mondello v. Torres, 47 So.3d 389, 392 (Fla. 4th DCA 2010).

For his first issue on appeal, the former husband argues that the trial court erred in awarding a marital asset, a business, to the former wife based on a finding that the business’s value is based on personal goodwill of the former wife and without assigning a value to the business (aside from the former wife’s goodwill). When there is evidence that a marital business has value aside from one spouse’s goodwill, the court must make a finding regarding that value for purposes of equitable distribution. See Niekamp v. Niekamp, 173 So.3d 1106, 1108-09 (Fla. 2d DCA 2015) (reversing and remanding to trial court to value marital property, excluding any goodwill attributable to.one party, where there was evidence that the business had other assets).

Although there was' evidence that the business had tangible assets, the trial court inexplicably found that no such evidence was offered. The former wife acknowledges that the business is a marital asset, and she appropriately concedes that the asset has a value aside from her goodwill. Accordingly, we reverse and remand to the trial court to value the business for purposes of equitable distribution.

The former husband next contends that the trial court erred in including, the parties’ 2010 tax refund in its equitable distribution scheme when the refund was dissipated before trial and the trial court did not make a finding of misconduct. We agree. See Tradler v. Tradler, 100 So.3d 735, 740 (Fla. 2d DCA 2012) (recognizing that it is generally error to include assets in equitable distribution which have been dissipated during the dissolution proceedings in the absence of a finding of misconduct). Therefore, we reverse and remand for the trial court to omit the tax refund from its equitable distribution analysis.

The former husband’s final point on appeal relates to a boat" that he. purchased during the marriage to replace one he owned prior to the marriage. He argues that the trial court erred in treating the new boat as a marital asset. During trial, the former husband testified that he purchased the replacement boat using insurance proceeds he received after the pre-maritally-purchased boat was irreparably damaged. The former wife did not dispute that, insurance proceeds related to the premarital boat were used to purchase the second boat. Instead, she testified that the former husband gifted her the new boat as a Christmas gift.

Nonmarital assets include “[ajssets acquired .... by. either party prior to the marriage, and assets acquired .... in exchange for such assets.” § 61.075(6)(b)1., Fla. Stat. (2011); see also Steiner v. Steiner, 746 So.2d 1149, 1151 (Fla. 2d DCA 1999) (recognizing that properties purchased during the marriage with proceeds from the sale of nonmarital property acquired before the marriage are nonmarital assets “to the extent that their purchase prices were paid with proceeds that are traceable” to the party’s sale of that premarital property).

In deeming the new boat to be a marital asset, the trial court stated that the former husband “claims he used” insurance proceeds “to purchase the [new] boat,” and it further found that the boat was titled in the former .husband’s name but currently in the former wife’s possession. It is unclear from these findings why the trial court designated the boat as a marital asset. The former wife argues that the trial court made a credibility determination and believed her, but the court did not make any findings relating, to the former wife’s testimony that the former husband gifted her the new boat. This lack of findings makes review impossible. For that reason, we must reverse and remand for the trial court to either make factual findings that support designation of the new boat as a marital asset or amend the equitable distribution scheme. See § 61.075(3)(d), Fla. Stat. (requiring trial court, with respect to equitable distribution, to make “[a]ny other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities”).

The former wife raises two issues in her cross-appeal. We affirm on one issue and decline to further address it, but we reverse with respect to her claim that the trial court erred in treating as a marital asset all of the proceeds from the sale of nonmarital real property.

The former wife was divorced before marrying the former husband. She and her ex-husband owned what she calls the Bittern Street property. Her parents loaned her $100,000 to buy out her éx-husband’s interest in the property. There was conflicting evidence regarding whether her parents held a mortgage on the property. Transcripts of depositions and a pre-trial hearing were entered into evidence. During one deposition, the former wife testified that on the date she married the former husband, her parents held a mortgage on the property. She could not recall whether- she made monthly mortgage payments to her parents. In another deposition, she again confirmed that her parents held a mortgage on the property during the parties’ marriage. She testified that she did not make monthly mortgage payments and that the éntire loan was paid off with proceeds from the .sale of the Bittern Street property. During a pre-trial hearing, the former wife testified that the property carried a mortgage on the date the parties married, and that she used her income • during the parties’ marriage to make mortgage and tax payments on the property.

At trial,- the former wife testified that she borrowed $119,000 from her parents and that her parents did not ever have a mortgage on the property. She introduced into evidence a claim , of lien filed by her mother, which reflects that the former wife borrowed $455,000 to “purchase, renovate, and repair, [the] dwelling,” and that the loan was “to be repaid upon sale and closing of [the Bittern Street property].” According to the .former wife, she . did not borrow that amount from her parents; rather,, that amount-represented the value of' the property when the former wife divorced her ex-husband. The former wife also introduced a release of claim purported to be signed by her mother in 2000.

The evidence also showed the following. The' former wife used marital funds to' repair the property from damage it suffered during- two hurricanes.* She replaced the roof, removed a screen enclosure and wallpaper, painted damaged ceilings, and installed new carpeting in a portion of the home. Some of the repairs were paid for using insurance proceeds.

The parties took out a home equity line of credit utilizing the equity in the Bittern Street property. They used funds from the line of credit to construct the marital home. Subsequently, they took out a “construction loan” utilizing the marital home as security and used those funds to satisfy the line of credit. The Bittern Street property sold during the marriage for $1,050,000. The amount remaining on the mortgage held by the former wife’s parents was satisfied with proceeds from the sale. The former wife then deposited proceeds from the sale into a bank account.

According to the former wife, the property depreciated in value during the marriage. It was worth $450,000 when the former wife and her ex-husband divorced, and any appreciation in the property’s value occurred before the former wife married the former husband. According to the former husband, the former wife told him at some point that the property was worth $1,000,000 when the parties were married.

The trial court found that all of the proceeds from the sale constituted a marital asset. The trial court provided the following reasons for designating the proceeds as a marital asset: (1) the former wife used marital funds to pay down the mortgage and make repairs to the property; (2) the former wife had the burden to establish whether any part of the enhanced value is exempt from distribution and failed to meet her burden; (3) the equity in the Bittern Street property was used to obtain a line of credit, the funds from which were used to construct the marital home; and (4) the parties took out a loan using the marital home as security and used loan funds to satisfy the line of credit. Based on these factors, the trial court found that the “parties absolutely, positively commingled these assets,” and “[a]s such, the value of the Bittern home is a marital asset.”

Marital assets include “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)1.b., Fla. Stat. Additionally, an increase in the equity value of property is a marital asset subject to equitable distribution. Somasca v. Somasca, 171 So.3d 780, 782 (Fla. 2d DCA 2015). “However, improvements or expenditures of marital funds to a nonmar-ital asset does not transform the entire asset into a marital asset; rather, it is only the ‘enhancement in value and appreciation’ which becomes a marital asset.” Martin v. Martin, 923 So.2d 1236, 1238-39 (Fla. 1st DCA 2006) (quoting Strickland v. Strickland, 670 So.2d 142, 143 (Fla. 1st DCA 1996)).

The party asserting entitlement to an increase in the value of non-marital property has the burden of proving the enhancement. Robertson v. Robertson, 78 So.3d 76, 77 (Fla. 5th DCA 2012). Once a party establishes that marital labor or funds were used to enhance the nonmarital property’s value, the burden shifts to the other party to show that some, if any, portion of the enhanced value is exempt from equitable distribution. Yitzhari v. Yitzhari, 906 So.2d 1250, 1254 (Fla. 3d DCA 2005).

“[T]o make an award for the enhancement in value and appreciation of a nonmarital asset, the court must make specific findings as to the value of such enhancement and appreciation during the marriage, as well as which portion of that enhanced value is attributable to marital funds and labor.” Martin, 923 So.2d at 1239. “When improvements are made to real property, the court should make findings regarding the current value of the property and the value of the property prior to the marital enhancements. The court should then make findings regarding the amount of the appreciation that was attributable to the marital enhancements.” Hall v. Hall, 962 So.2d 404, 405 (Fla. 2d DCA 2007) (citations omitted).

Here, there was scant evidence regarding the enhanced value of the Bittern Street property. The former wife testified that the value depreciated between the parties’ marriage and the date the property was sold. The former husband testified that the former wife told him the property was worth $1 million when the parties married. The property sold for $1,050,000. Additionally, although any increase in equity due to mortgage payments made by the former wife using marital funds would be subject to equitable distribution, there was no evidence as to the amount by which the equity increased.

Instead of taking additional evidence and making the required findings as to enhanced value, the trial court designated as a marital asset all of the proceeds from the sale of the Bittern Street property. On remand, after taking additional evidence, the trial court must make findings as to the enhanced value of the property, including any increase in equity that is due to the former wife’s use of marital funds to pay down the mortgage held by her parents. See id. at 406 (observing that on remand, trial court “may take additional evidence if necessary to determine the value of the marital asset”). After taking additional evidence, if the trial court finds that the former husband has established the amount of increase in value and equity from the date of marriage to the sale date, the former wife will then have the burden of showing that any portion of those respective increases were not due to marital contribution.

The trial court’s finding of commingling was also based on the use of the Bittern Street property to obtain a line of credit from which funds were used to construct the marital home, and the use of marital funds to satisfy that line of credit. We agree with the former wife that the use of her nonmarital property to obtain the line of credit was not, standing alone, reason to deem the proceeds of the sale of the Bittern Street property a marital asset. See Fashingbauer v. Fashingbauer, 19 So.3d 401, 402 (Fla. 1st DCA 2009) (finding that husband’s use of nonmarital property to obtain a line of credit used to purchase marital property did not transform non-marital property into marital property). We also agree that the use of marital funds to satisfy a marital debt secured by the nonmarital property did not transform the entire value of the Bittern Street property into a marital asset. Nor do we find, under these circumstances, that all of the factors considered by the trial court, taken together, constituted a commingling of marital and nonmarital assets. It is not apparent to us that the Bittern Street property lost its nonmarital character. Instead, it simply appears that the former husband is entitled to a share of any enhanced value and equity in the property. The amount of the enhancement and the share to which the former husband is entitled remains to be determined.

The former wife also argues that the trial court erred in finding there was a mortgage on the property. We find that the trial court did not err in rejecting the former wife’s contention that there was no mortgage on the property where there was a conflict in the evidence on this point.

Based on the foregoing, we affirm in part, reverse in part, and remand. On remand, the trial court must make additional findings regarding the boat. After taking additional evidence, it must make the required findings regarding any enhanced overall and equity value in the Bittern Street property. The trial court shall further amend the final judgment consistent with this opinion and modify the equitable distribution scheme to the extent necessary.

Affirmed, in part, reversed in part, and remanded for farther proceedings.

Damoorgian, J., and Hanzman, Michaél A., Associate Judge, concur.

      . The parties dispute the specific value of the business’s assets,

      . The trial court did not find, and the former husband does not argue on appeal, that the funds were commingled with marital funds in the bank account.

      . The former husband does not dispute the former wife’s contention that the line of credit was a marital debt.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Lavoris JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D16-3571
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]
    See also 199 So. 3d 472.

      David Jay Bernstein of David Jay Bernstein, P.A., Deerfield Beach, petitioner.
    Pamela Jo Bondi, Attorney-General, Tallahassee, and Jessenia' J. Concepcion, Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Lavoris Johnson petitions the Court for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. Fla. R. App. P. 9.141(d). We find that appellate counsel’s failure to raise the trial court’s error in denying Johnson’s motion to suppress resulted in manifest injustice, where we reversed co-defendant Lorenzo Sanchez’s conviction on that basis. See Sanchez v. State, 199 So.3d 472 (Fla. 4th DCA), rev. denied, No. SC16-1833, 2016 WL 6603971 (Fla. Nov. 8, 2016). We therefore grant the petition, vacate Johnson’s conviction and sentence for second degree murder, and'remand for a new trial.

In Sanchez, we summarized the facts of this case as follows:

On the morning of July 30, 2008, there was a robbery at AMIGO Food Store in Pompano Beach, Florida. During the robbery, gunshots were fired and the store owner was killed. Several 911 calls prompted law; enforcement to broadcast BOLOs about the suspects....
Starting at 9:52 a.m., a 'few minutes after the robbery, several BOLOs were broadcast. Prior to the first officer’s arrival at the scene, the BOLOs described Haitian males fleeing westbound from the store on foot. From 9:52 a.m. until 10:02 a.m., the police stopped every black male near the convenience store— some were on foot, others on bicycles.
The arresting officer received a radio call at approximately 9:56 a.m. and arrived near the perimeter of the crime scene within 2-4 minutes.. The only BOLO he heard was for “two black males fleeing westbound from the store.” At the time of the stop, the officer had no further information about the suspects—he had received no information describing clothing or a vehicle.
While driving within'a few blocks of the crime scene, the arresting officer saw two black males; in a red Dodge Charger travelling northbound and then eastbound. The two cars passed one another going in opposite directions. The officer observed the driver’s dreadlocks and noted that the passenger was seated in the rear seat furthest away from the driver. The passenger wore a white t-shirt and a large hat the officer later described as an “old grandma church hat, or turban/1930’s flapper hat drawn down to his eyebrows.” Neither the driver nor the passenger made eye contact with the officer, which the officer found suspicious.
Although the arresting officer witnessed no traffic violation, the sum of the odd seating arrangement, the backseat passenger’s funny looking hat, and lack of eye contact, in conjunction with the outstanding BOLO, prompted the officer to make a U-turn and perform a traffic stop. After the officer activated his lights and the vehicle slowed down, the officer noticed a third black male in the front passenger seat. The arresting officer and an assisting officer approached the car with guns drawn.

199 So.3d at 473-74. Johnson was the passenger in the front seat, while co-defendant Sanchez was the passenger in the back seat.

Johnson and Sanchez were each charged with first-degree felony murder. Both defendants moved to suppress the traffic stop, arguing that the officer lacked reasonable suspicion. The trial court denied the motion after a joint hearing. Sanchez was convicted as charged. Johnson was convicted of second degree murder as a lesser included offense and sentenced to forty years in prison.

Johnson’s appellate counsel did not raise the denial of the motion to suppress on direct appeal. We affirmed his conviction and sentence per curiam. Johnson v. State, 149 So.3d 25 (Fla. 4th DCA 2014). Sanchez’s counsel did raise the issue, and we reversed his conviction, holding that the trial court erred in denying the motion to suppress the traffic stop because the officer lacked reasonable suspicion. Sanchez, 199 So.3d at 475-78.

In this timely petition, Johnson argues that his appellate counsel was ineffective for failing to argue that the trial court erred in denying the motion to suppress. The State argues that the petition should be dismissed as successive because Johnson filed a previous petition alleging ineffective assistance of appellate counsel on different grounds, which was denied. Johnson agrees that we have discretion to dismiss the petition as successive, but maintains that we must grant relief to prevent a manifest injustice. We agree.

This Court has “inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results.” Stephens v. State, 974 So.2d 455, 457 (Fla. 2d DCA 2008). Relief may be granted even on a successive petition or claim where failing to do so would result in manifest injustice. Figueroa v. State, 84 So.3d 1158, 1162 (Fla. 2d DCA 2012); Stephens, 974 So.2d at 457.

Disparate treatment of similarly situated co-defendants can result in manifest injustice, warranting habeas relief. See, e.g., McKay v. State, 988 So.2d 51 (Fla. 3d DCA 2008) (granting relief on an untimely petition alleging ineffective assistance of appellate counsel, where a co-defendant’s convictions were vacated on the same issue); see also Haager v. State, 36 So.3d 883 (Fla. 2d DCA 2010) (reversing a sentence on appeal from the denial of a postconviction motion, finding that failure to do so would result in manifest injustice where the same relief was granted to a co-defendant and others); Harris v. State, 12 So.3d 764, 766 (Fla. 3d DCA 2008) (recognizing that “disparate treatment of co-defendants can result in manifest injustice,” although “inconsistent decisions in separate, unrelated cases do not constitute disparate treatment”). To give relief to one co-defendant but deny another co-defendant the same relief under virtually identical circumstances “is a manifest injustice that does not promote-in fact, it corrodes-uniformity in the decisions of this court.” Stephens, 974 So.2d at 457.

We are mindful that our authority to grant a writ of habeas corpus based on manifest injustice should only be exercised in “uncommon and extraordinary circumstances.” Id. at 457-58. However, we find that this case presents one of those rare circumstances. Failing to grant Johnson the same relief afforded to Sanchez, under virtually identical circumstances, would be an “incongruous and manifestly unfair” result. Id. at 457. Accordingly, we grant the petition.

We find it unnecessary to allow a new direct appeal, as such a proceeding would be redundant to Sanchez’s direct appeal. See, e.g., Grant v. State, 189 So.3d 878, 882 (Fla. 4th DCA 2016) (granting relief on a petition alleging ineffective assistance of appellate counsel and reversing petitioner’s conviction and sentence where a new direct appeal would be redundant and unnecessary). We therefore vacate Johnson’s conviction and sentence for second degree murder and remand for a new trial.

Petition granted. Conviction and sentence vacated; remanded for a new trial.

Warner, Levine and Conner, JJ., concur.

      . “The Court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure.” Fla. R. App. P. 9.141(d)(6)(C).


author: Gross, J.

text:
    Sharon P. ROSALER, Appellant, v. Brian L. ROSALER, Appellee.
    No. 4D15-1832
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellant.
    Cynthia L. Greene of Law Offices Greene Smith & Associates, 'P.A., Coral Gables, for appellee, f
   Gross, J.

Sharon Rosaler (“Former Wife”) raises four issues in this appeal of a dissolution of marriage final judgment, all of which we affirm. We write solely to address Former Wife’s second issue, and hold that a trial court does not abuse its discretion in considering the parties’ litigation conduct to limit an award of attorney’s fees under section 61.16, Florida Statutes, even where the party that benefits from the ruling occupies the superior financial position.

In January 2014, the parties had been married eight and a half years; Former Wife petitioned for dissolution of marriage and ex parte injunctive relief. She alleged that she was compelled to leave the marital residence with the parties’ three minor children for their safety, but would return if Former Husband was enjoined from residing at the residence.

Shortly thereafter, Former Wife sought an injunction for protection against domestic violence against Former Husband, alleging, among other things, that he was sexually abusing the parties’ children.

The Former Wife’s abuse' allegations were not limited to court documents. She told their son’s school principal that she believed Former Husband sexually abused the children. Former Wife also told the children’s pediatrician that Former Husband sexually abused the two minor daughters. She told the pediatrician that she did not think Former Husband was sexually abusing the son, but believed the son “sniffled as much as he did” because Former Husband was giving him drugs.

Former Wife’s allegations were false. She admitted at the final hearing that filing for an injunction for protection on behalf of the children was “a mistake.” Her false allegations about sexual misconduct raised the heat of the litigation beyond the boiling point.

In May 2014, Former Wife moved for appointment of a guardian ad litem. She argued that such appointment was in the best interests of the children to address timesharing issues and Former Husband was in a better position to pay for those services. This motion came after the parties had already agreed to shared parental responsibility and equal timesharing in a stipulated temporary relief order.

At the final hearing in January 2015, Former Wife sought attorney’s fees based on her need and Former Husband’s ability to pay. She sought $528,433 in attorney’s fees, $77,399 in costs, and $303,423.50 in forensic accountant fees, for a' total of $909,255.50. Former Wife also requested that Former Husband be ordered to pay the remaining guardian ad litem fees. Former Husband had paid $21,445 to the guardian ad litem, while Former Wife had paid nothing.

Former Wife’s attorney billed almost 1,000 hours from April 2014 through the final hearing in January 2015. According to Former Husband’s fee expert, the hours billed by Former Wife’s attorney were “astronomical” and represented an excessive amount of “handholding.” Based on his experience, the ease was not a particularly difficult one; he believed it would have been reasonable to spend between 200 and 250 hours on this case. .

Focusing on the financial circumstances of the parties, the trial court found -that Former Wife had the need for attorney’s fees and Former Husband had the ability to pay. However, the court noted that it could also consider “the history of the litigation,” and found that “just about the entirety of the Wife’s fees were the result of her misconduct.” As evidence of Former Wife’s misconduct, the trial court cited Former Wife’s false abuse allegations and her request for appointment of a guardian ad litem, after the parties had already largely agreed on parental responsibility and timesharing. The court detailed other “unreasonable legal: positions” taken by Former Wife which showed she had “zero desire to settle the case.”

As a result of Former Wife’s misconduct, the trial court only partially granted her fee request. It ordered Former Husband to pay $95,000 of her attorney’s fees and $35,000 of her accountant’s fees. Former Wife was ordered to pay the outstanding $8,375 owed to the guardian ad litem.

On appeal, Former Wife insists that the fees she incurred were reasonable based on the circumstances of the case. She points to the testimony of her trial attorney and fee expert that a significant amount of time was spent responding to and dealing with issues created or raised by Former Husband.

We review an award of attorney’s fees for an abuse of discretion. See Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010). Because the trial judge is at ground zero of dissolution litigation, the judge’s evaluation of the parties’ conduct is entitled to deference on appeal.'

A trial court “may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.” § 61.16(1), Fla. Stat. (2014) (emphasis added). “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997).

While “[t]he central inquiry under section 61.16 is whether one spouse has a need for fees and the other spouse has the ability to pay them,” Von Baillou v. Von Baillou, 959 So.2d 821, 823 (Fla. 4th DCA 2007), the Florida Supreme Court explained in Rosen that “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.” 696 So.2d at 700. Because the legislature “has given trial judges wide leeway to work equity in chapter 61 proceedings ... section 61.16 should be liberally—not restrictively—construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.” Id. (emphasis added). The court explained:

Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so.

Id.

Even before Rosen, this court recognized that “[a] party’s financial status should not insulate them from the consequences of their conduct within the judicial system.” Mettler v. Mettler, 569 So.2d 496, 498 (Fla. 4th DCA 1990). We explained that while “the purpose of considering the parties’ finances in awarding attorneys fees is to insure that both parties are not limited in their ability to receive adequate representation due to disparate financial status, this equitable principle must be flexible enough to permit the courts to consider cases with special circumstances.” Id.

It is thus well-established that “a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16.” Rosen, 696 So.2d at 701 (emphasis added). That is precisely what the trial court here did. Former Wife’s insistence that Former Husband is to blame for her excessive fees ignores her own misconduct, which set the tone for the entire litigation.

The purpose of section 61.16 is to ensure that both parties can obtain competent representation. It does not enable a party to engage in misconduct, rack up a massive amount of fees, and then force the other party to pay merely because they have the means to do so. The trial court did not abuse its discretion in awarding Former Wife only a portion of the fees she sought. There was ample evidence to support this determination of fees and costs.

Affirmed.

May and Forst, JJ., concur.

      . Prior to April 2014, Former Wife was represented by different counsel.


author: PER CURIAM.

text:
    Jonathan SAMUDIO-FACYSON, Appellant, v. Christine FACYSON, Appellees.
    Nos. 4D17-877 and 4D17-878
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]
    Jonathan Samudio-Facyson, Fort Laud-erdale, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.315(a).

Warner, Taylor and Levine, JJ., concur.


text:
    T.H., the Father, and S.D., the Mother, Appellants, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D17-1217 and 4D17-1218
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Lori D. Shelby, Fort Lauderdale, for appellant T.H., the father.
    Richard F. Joyce of the Law Office of Richard F. Joyce, P.A., Miami, for appellant S.D., the mother, as to T.D.H.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for appellee.
    Matthew Charles Wilson, Sanford, for Guardian Ad Litem Program.
   Ciklin, J.

In these consolidated appeals, T.H. (“the Father”) and S.D. (“the Mother”) appeal the final judgment terminating their parental rights. The Father appeals with respect to two children, S.H. and T.D.H.; the Mother appeals with respect to T.D.H. We affirm as to.the termination of the Father’s rights as to S.H., but we reverse the portions of the judgment terminating the parents’ rights as to T.D.H.

The Mother and the Father are the parents of S.H., born in July 2014, and T.D.H., born in November 2015. Days after her birth, S.H. was sheltered based on allegations of domestic violence and drug use. She was placed in the care of a family friend and the parents were granted supervised visits.

About one month later, the Department of Children and Families (“the Department”) petitioned for an adjudication of dependency. After the parents failed to appear for the adjudicatory hearing and consents were entered on their behalf, the Department was unable to locate the Mother and the Father for many months. Ultimately, in March 2015, the Department petitioned to terminate the Mother’s and Father’s parental rights as to S.H. With respect to the Father, the Department alleged only one ground, abandonment under section 39.806(l)(b), Florida Statutes (2015).

In May 2015, the parents were arrested for burglary after an alleged altercation at the home of S.H.’s caretaker. Meanwhile, a review hearing was set for December 2015 in the termination proceedings. A few weeks before the review hearing, the Mother gave birth to T.D.H. Days later, the Department filed a shelter petition with respect to T.D.H., and the child was ultimately placed with his paternal grandmother. In November 2015, the Department filed a supplemental petition for termination of parental rights with respect to T.D.H., alleging a failure to substantially comply with the case plan under section 39.806(1)(e)1., Florida Statutes.

After a multi-day adjudicatory hearing, the trial court granted the petition and supplemental petition, and issued a lengthy judgment which included findings that the Department met its burden of proof “as to the allegations in the Petitions to Terminate Parental Rights,” and that termination was based on “the allegations set forth in the Petitions for Termination of Parental Rights.”

The Mother and Father argue that the termination with respect to T.D.H. constitutes error, as the Department did not plead a valid ground for termination. The Department and the Guardian Ad Li-tem (“GAL”) concede error but argue that unpled grounds were tried by implied consent and established. We accept the concession of error but reject the invitation to find that unpled grounds were tried by implied consent.

As to T.D.H., the Department based its request for termination of parental rights on section 39.806(l)(e)l., which permits the termination of parental rights under the following circumstances:

(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court’s approval of a case plan having the goal of reunification with the parent, whichever occurs first[J

The Department correctly concedes error. With respect to T.D.H., there was no adjudication of dependency and no case plan had been filed with the court. See A.H. v. Dep’t of Children & Family Servs., 915 So.2d 761, 762 (Fla. 2d DCA 2005) (holding that section 39.806(1)(e) “was not a valid legal ground for termination” where the child was never adjudicated dependent, “which is a prerequisite to termination under this provision”); J.T. v. Dep’t of Children & Family Servs., 819 So.2d 270, 271-72 (Fla. 2d DCA 2002) (finding section 39.806(1)(e) applies only “when a parent has been provided with a case plan with a goal of reunification” and the child is adjudicated dependent).

However, the Department, operating under the belief that the termination can stand based on the unpled grounds of abandonment under section 39.806(1)(b) and threatened harm to the child irrespective of services under 39.806(1)(c), requests that we remand for the trial court to be given the opportunity to make findings as to those unpled grounds. After undertaking a thorough review of the record, including a trial stipulation exhibit, the transcript of the adjudicatory hearing, and the written final judgment, we find that we are not in a position to say that the parents were on notice that the court could terminate their parental rights as to T.D.H. based on unpled grounds. Accordingly, and in light of the concession of error, we reverse the final judgment to the extent it terminates the parental rights of the Mother and Father as to T.D.H.

With respect to S.H., the Father argues that the Department did not prove abandonment, as the evidence showed that tension between the child’s caretaker and the parents interfered with their ability to maintain a relationship with the child. He also argues that he worked diligently on case plan tasks and that termination was not the least restrictive means of safeguarding the child or in her manifest best interests. We disagree on all points.

Section 39.806(1)(b), Florida Statutes, permits termination in cases of “Abandonment as defined in s. 39.01(1) or when the identity or location of the parent or parents is unknown and cannot be ascertained by diligent search within 60 days.” “Abandonment” is defined as follows:

[A] situation in which the parent ... of a child ... has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.... The incarceration, repeated incarceration, or extended incarceration of a parent ... may support a finding of abandonment.

§ 39.01(1), Fla. Stat. (2015).

Here, there was evidence that visits between the parents and S.H. were initially supervised by the caretaker. The Father visited S.H. during that period, but he was confrontational with the caretaker, resulting in the Department taking over supervision of any future visits. The Father did not visit S.H. after the Department took over supervision—the last time he saw S.H. was in September or October 2014, when she was about two or three months old. The Father then failed to appear for the dependency trial and a consent was entered. But instead of engaging in the case plan, the Father disappeared. After the Department searched for him for sixty days without success, a termination petition was filed. The Father did not appear in court on the termination proceedings until after he was arrested for the alleged altercation at the caretaker’s home.

During his incarceration, the Father sent S.H. letters via the child advocate. But the Father did not show enough interest in S.H. to learn the most mundane details of her life. He could not name her doctor, school, teacher, daycare, or favorite toy. The summer after the Father’s release from jail, S.H. celebrated her birthday; she received no gifts or correspondence from the Father. Further, the Father failed to provide any support for S.H., financial or otherwise. The Father works almost full-time. He testified about some expenses, but it was not apparent that he was not able to afford even a nominal gift for the child.

The Father claims that his attempts at bonding with S.H. were thwarted by her caretáker, but the evidence does not support this contention. The caretaker welcomed the parents into her home and eh-couraged them to visit S.H. It was only after the Father was verbally abusive toward the caretaker that the Department found it necessary to take over supervision of the visits. The Father also argues that a lack of reliable transportation was at the root of his failure to visit S.H. before his arrest, but the evidence reflects that he did not even attempt to coordinate visits. He also contends that his completion of case plan tasks establishes that he did not abandon S.H. But the evidence shows that he completed case plan tasks only after the termination trial began, and also that he was not in substantial compliance; after being successfully discharged from outpatient substance abuse treatment, he refused to submit to a random drug test. We have no trouble finding that the Department established abandonment under section 39.806(1)(b).

We turn now to the Father’s argument that termination of parental rights was neither the.least restrictive means nor in the manifest best interests of S.H. Aside from proving a statutory ground for termination, the party seeking to terminate parental rights must also prove that termination is in the manifest best interests of the child. B.K. v. Dep’t of Children & Families, 166 So.3d 866, 873 (Fla. 4th DCA 2016). 'Further, “to satisfy constitutional eoncérns, [the petitioner] also must prove that termination is the least restrictive means to protect the child from serious harm.” Id. “The state must present clear and convincing evidence to support each element.” Id.

Section 39.810, Florida Statutes (2015), sets forth a list of non-exhaustive factors for a court to consider in determining the manifest best interests of the child. “[A] manifest best interests decision is not made to protect the legal rights of the parents;, it is made to ensure the best interests of each, child.” K.D. v. Dep’t of Children & Family Servs., 132 So.3d 877, 879 (Fla. 2d DCA 2014).

The trial court here considered these factors and made express findings. Additionally, the evidence of the lack of a bond between the Father and S.H., the Father’s lack of interest' in details of the child’s life, and his failure to give her even nominal provisions, combined with the evidence of the child’s bond to her caretaker and the caretaker’s willingness to adopt her, supports the trial court’s manifest best interests finding.

Turning to the least restrictive means prong of the termination analysis, “[t]he least restrictive means test ... is not intended to preserve the parental bond at the cost of the child’s future.... Rather, it simply requires that those measures short of termination should be utilized if such measures will permit the safe reestablishment of the parent-child bond.” B.K., 166 So.3d at 876 (third alteration in original) (citation omitted).

Here, the evidence established that the Father was in denial regarding his need for services. He rebuffed case plan advocates who sought to connect him with services and reunite him with S.H. He sought a trial on the dependency petition yet failed to appear at trial. He then disappeared for at least sixty days, reappearing only after he was arrested. He provided no explanation for his disappearance. He waited until ten months after S.H." was sheltered before he began accepting referrals for his case plan tasks. This was only after the termination petition was filed and he was incarcerated. Although he completed’ his case plan tasks by 'the last day of trial in November 2016, he did not submit to requested random drug tests after he was successfully discharged from substance abuse treatment. Given this evidence, and the evidence of a complete lack of bond between the child and the Father, termination was the least restrictive means of protecting the child.

With respect to the Father, we affirm the termination as to S.H. With respect to the Mother and the Father, we reverse the termination as to T.D.H. The final judgment is otherwise affirmed in all respects.

Affirmed in part, reversed in part.

Gross and Damoorgian, JJ., concur.

      . The Mother does not raise any error with respect to termination of parental rights as to her other children, S.H, and E.D.

      . The Department sought termination of the Mother’s parental rights as to S.H. based on section 39.806(1)(b), (1)(c), and (1)(e)1.-2. The Department sought termination of the Mother’s parental rights as to E.D. based on section 39.806(1)(b), (1)(c), and (1)(e)1. With respect to the Father, the Department sought termination of parental rights as to S.H. based on section 39.806(1)(b).

      . We do not consider this argument with regard to T.D.H., in light of our reversal of the termination order as to T.D.H.


text:
    WELLS FARGO BANK, N.A., Appellant, v. Larry M. RICHARDS and Margaret Richards, Appellees.
    Nos. 4D16-1364 and 4D16-2033
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Kimberly S. Mello and Jonathan S. Tarn nen of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for appellant.
    Steven M. Singer of Steven M. Singer, P.A., Plantation, and Mark Feinstein of Feinstein & Sorota, P.A., Plantation, for appellees. '
   Gross, J.

The parties to this appeal of a foreclosure judgment attended mediation prior :to trial. The homeowners left mediation believing they reached a very, very favorable settlement agreement with the bank, that would permanently modify their loan. When the bank did not honor the terms of that perceived agreement, the homeowners moved to enforce the settlement, which the trial court granted. Because oral modification of a credit agreement is precluded by both the statute óf frauds and the Banking Statute of Frauds, we reverse.

At the hearing on. the motion to enforce, the homeowners conceded no written settlement agreement was signed at the mediation or afterwards. They also acknowledged the bank provided a written final loan modification agreement, which they refused to sign because it included terms different from what they claimed to be the mediation agreement. To describe the homeowners’ testimony on the key terms of the loan modification as imprecise is an understatement. The homeowners insisted the loan modification was for an amount significantly lower than what was owed on the original loan.

Because the bank had no witness to testify to what happened at mediation, the trial court found the homeowners’ vague testimony “fully credible” and' granted their motion to enforce the oral settlement agreement. There are a variety of reasons this was error, such as the requirement found in Florida Rule of Civil Procedure 1.730(b) that mediation agreements must be reduced to writing. However, the only arguments preserved for appeal are those based on the general statute of frauds and the Banking Statute of Frauds.

The original statute of frauds was first enacted in England in 1677. 29 Chas. II, c. 3 (1677); see § 726.01, Fla. Stat. (2016). The statute’s centuries-long history includes the evolution of a variety of equitable defenses such as the doctrine of full or complete performance. Many states, including Florida, have recognized these common-law exceptions to their codification of the statute of frauds. See Hiatt v. Vaughn, 430 So.2d 597 (Fla. 4th DCA 1983); see also Terzis v. Pompano Paint & Body Repair, Inc., 127 So.3d 592, 595 (Fla. 4th DCA 2012) (“full performance by one party to the contract works to remove an oral agreement from the purview of the statute of frauds”) (quoting 101 Monument Rd., Inc. v. Delta Prop. Mgmt., Inc., 993 So.2d 181, 182 (Fla. 4th DCA 2008)).

By contrast, credit-agreement statutes, referred to in Florida as the Banking Statute of Frauds, are a relatively new creation. They were enacted by many states in the mid-1980’s to address a surge in lawsuits brought by borrowers against lending institutions for breach of oral commitments regarding new or existing loans. See John C. Murray, Credit-Agreement Statutes Revisited: Are Equitable Defenses Permitted?, 51 Real Prop. Tr. & Est. L.J. 373, 374 (2017). In an attempt to thwart these types of cases, states either enacted statutes that brought credit agreements within the scope of the statute of frauds or created a separate Banking Statute of Frauds, as Florida did in 1989 with the enactment of section 687.0304, Florida Statutes.

The purpose of these statutes was to discourage lender liability actions based on purported oral credit agreements. Jeffrey A. Tochner, Limiting Lender Liability in Florida: The Application of a Statute of Frauds to Credit Agreements, 44 Fla. L. Rev. 807, 828 (1992) (citing H.R. of Florida, Comm. On Commerce, Final Staff Analysis and Economic Impact Statement on H.B. 878, at 2). This purpose was achieved by “severely restricting borrowers’ ability to sue creditors.” Id.

Section 687.0304(2) provides that “[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debt- or.” A credit agreement is defined as “an agreement to lend or forbear repayment of money ... to otherwise extend credit, or to make any other financial accommodation.” § 687.0304(1)(a). A “loan modification agreement ... is both an agreement which extends credit and which makes a financial accommodation,” thus implicating the Banking Statute of Frauds. Vargas v. Deutsche Bank Nat’l Trust Co., 104 So.3d 1156, 1168 (Fla. 3d DCA 2012).

The Banking Statute of Frauds applied to the purported oral loan modification in this case. We reject the homeowners’ claim that the doctrine of full performance removed the modification from the statute’s purview. First, allowing borrowers to use equitable doctrines offensively to establish enforceable oral credit agreements would eviscerate the purpose of the Banking Statute of Frauds. Second, even if the doctrine could be used offensively, by their own testimony, the homeowners had not fully performed the alleged loan modification.

Equitable doctrines, like full performance, are typically used defensively to prevent a plaintiff from unjustly claiming rights under an agreement. See, e.g., United of Omaha Life Ins. Co. v. Nob Hill Assocs., 450 So.2d 536 (Fla. 3d DCA 1984) (allowing estoppel as a defense to the statute of frauds where a party detrimentally relied on the promise of another).

Despite the existence of these equitable doctrines, the American Bar Association created a model credit-agreement statute that expressly precluded borrowers from maintaining actions or defenses based on traditional equitable theories. John C. Murray, Credit-Agreement Statutes Revisited: Are Equitable Defenses Permitted?, 51 Real Prop. Tr. & Est. L.J. 373, 397 (2017). As commentary explained, the model statute sought to “foreclose ‘end runs’ ” under equitable theories because “[without such a provision, experience tells us that borrowers will seek such relief, and that courts may sometimes afford such relief.” Id.

Florida chose not to follow the ABA’s model statute and some courts have permitted borrowers to use equitable theories defensively where the lender made oral promises upon which a borrower relied. See Metro Bldg. Materials Gorp. v. Republic Nat’l Bank of Miami, 919 So.2d 595, 598 (Fla. 3d DCA 2006); J Square Enters. v. Regner, 734 So.2d 565, 566 (Fla. 5th DCA 1999). Notably, these opinions provide no real analysis explaining why equitable doctrines should be permitted as defenses to the Banking Statute of Frauds.

This failure is troubling in light of decisions precluding equitable defenses in other, similar contexts, like the statute of frauds applicable to wills and devises of real property. § 732.701, Fla. Stat. (2016). As we have explained, section 732.701 pertaining to agreements concerning succession, is “not a typical statute of frauds,” so the legislature must have “had more in mind than simply extending the statute of frauds to contracts for bequests of personality” and “permitting] part performance ... to obviate the statute would be to thwart its obvious purpose.” Renfro v. Dodge, 520 So.2d 690, 691 (Fla. 4th DCA 1988) (quoting First Gulf Beach Bank & Tr. Co. v. Grubaugh, 330 So.2d 205, 210 (Fla. 2d DCA 1976)).

Similarly, the point of .the Banking Statute of Frauds is to preclude precisely the type of oral modification that the homeowners assert. There is no indication in the statute that the legislature intended to import three centuries of case law into the new statute to permit the creation of oral modification to credit agreements. Unlike the face-to-face interaction with a neighborhood bank, typical for so many years, modern banks have thousands of employees, who, with the aid of computers, communicate with customers by phone and email. The statute creates order by imposing the requirement of a writing under section 687.0304(2) to memorialize agreements and to separate negotiations from an enforceable contract.

The homeowners’ motion to enforce the oral settlement agreement was tantamount to “maintain[ing] an action on a credit agreement” not “in writing,” which is prohibited by section 687.0304(2). Used offensively, the motion improperly sought to establish the validity of the oral agreement and sidestep the statute. See Brenowitz v. Central Nat'l Bank, 597 So.2d 340 (Fla. 2d DCA 1992).

Even if the doctrine of full performance could be utilized to avoid the Banking Statute of Frauds, the homeowners clearly did not perform the alleged oral loan modification. They presented no evidence that the loan was paid in full and based on the terms to which the homeowners testified, the alleged modification was for a period of 40 years “or something,” Borrowers who merely agree to a loan modification with a lender to pay less than they owe over a longer term than the original loan have not given “full performance” under the contract as that doctrine has developed over the centuries.

Similarly, there was no complete performance of the loan modification that would avoid the traditional statute of frauds. The statute provides, in pertinent part;

No action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat. (2016). This court has reversed enforcement of a purported oral modification óf a mortgage because “it [was] apparent from the terms of the mortgage and the note that neither party intended for appellee to repay the loan within one year of the signing of the agreements.” Ocwen Loan Servicing, LLC v. Delvar, 180 So.3d 1190, 1193-94 (Fla. 4th DCA 2015). As such, the modification was within the statute of frauds and was required to be in writing. Id. at 1194. Here, the term of the new loan agreement was 40 years “or something,” so the oral modification fell within the statute of frauds. As we discussed above with section 687.0304, there was no full performance here that would remove the oral modification from the statute of frauds. See Metro Bldg. Materials, 919 So.2d 595.

The trial court’s order granting enforcement of the oral settlement agreement and the attorney’s fee award are reversed and the case is remanded to the trial court for further proceedings.

May and Forst, JJ., concur.

      . We note that the bank’s lawyer failed to object to this testimony even though all mediation communications are privileged and a mediation party can "prevent any other person from testifying in a subsequent proceeding regarding mediation communications." § 44.405(2), Fla. Stat. (2016). The attorneys bringing this appeal did not represent the bank in the circuit court.


author: May, J.

text:
    Elena COLLADO, Appellant, v. Brigitte BAROUKH, Richard Rosen, Mildred Zerbarini, Ronald Buchholz, Jesus Rodriguez, Tara Dalu, Nick Damasceno, Ramblewood East Realty Holding FNC, LLC, Ramblewood East Realty Holdings, LLC, and Ramblewood East Condominium Association, Inc., Appellees.
    No. 4D16-2075
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Joseph D. Garrity of Garrity Traína, PLLC, Coconut Creek, for appellant.
    Karen M. Nissen and Andrea Sconzo of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, and E.J. Generotti of Frank, Weinberg & Black, P.L., Plantation, for appellees.
   May, J.

A condominium unit owner appeals the dismissal with prejudice of her shareholder derivative suit against a condominium association (of which the owner is a shareholder), members of the association’s board of directors, and two holding companies (collectively referred to as “defendants”). She argues the trial court erred in dismissing her complaint with prejudice. We agree with her in part and reverse in part.

Prior to filing suit, the owner emailed the association demanding to inspect the association’s records, pursuant to section 607.07401(2), Florida Statutes (2016). The association’s counsel responded that “the [association is not incorporated under, and consequentially is not subject to, Chapter 607, Florida Statutes,” and a demand under section 607.07401 was “legally invalid.” By demand letter sent on October 7, 2016, the owner corrected the error by citing section 617.07401, Florida Statutes (2016), and demanded to inspect the association’s records. The association responded that it would consider appointing an independent committee to investigate the owner’s allegations at its next Board of Directors meeting.

On December 14, 2016, the owner filed a verified complaint, pursuant to section 617.07401, alleging: (1) breach of fiduciary duty; (2) negligence in failing to properly manage the association’s funds and allowing its buildings to deteriorate; and (3) improper management of the association by the board of directors. The wherefore clause asked for relief from the “defendants” although the counts primarily made allegations only against the board members and the association.

Following the filing of the verified complaint, the owner moved to enforce the condominium association bylaws, which provide term limits for board members of two, two-year terms. The motion claimed the bylaws prohibited the then-current members of the board from running again as each member had already served more than two terms.

The association and the three board members who had been served filed multiple motions to dismiss the complaint with prejudice, arguing: (1) the owner failed to properly comply with the statutorily required ninety-day waiting period prior to filing the derivative action; (2) the counts alleging breach of fiduciary duty and negligence against the association and its board of directors did not seek relief against the two holding companies; (3) the count seeking declaratory relief against all defendants did not make specific allegations-against the holding companies; (4) the owner failed to properly form her pleadings; and (5) the association does not have a fiduciary duty to its unit owners.

The trial court held a hearing on the owner’s motion to enforce bylaws and the defendants’ motions to dismiss. It denied the owner’s motion to enforce and granted the defendants’ motions to dismiss with prejudice. The owner moved for rehearing, which the trial court denied. From the dismissal order and the order denying the motion for rehearing, the owner now appeals.

The owner argues the trial court erred in dismissing the case with prejudice without leave to amend because the complaint clearly stated a cause of action and alleged all elements of the causes of action. The defendants respond the court correctly dismissed the verified complaint without leave to amend because the suit was prematurely filed, improperly pled, and failed to state a cause of action.

We have de novo review. Haslett v. Broward Health Imperial Point Med. Ctr., 197 So.3d 124, 127 (Fla. 4th DCA 2016).

Because the association is a not-for-profit Florida corporation, it is governed by Chapter 617. Section 617.07401(2), Florida' Statutes, provides that a suit cannot be filed before the expiration of ninety days after “the date of the first demand.” Here, the owner first made a demand for action by the association pursuant to Chapter 607. The association advised her that she had referenced the wrong chapter. The owner then corrected the demand to reflect the correct chapter in a letter to the association on October 7, 2015. The owner then filed suit on December 14,2015.

As the trial court found, the owner’s October 7, 2015 letter served as a new demand for action and marked the beginning of a new ninety-day waiting period. The ninety days expired on January 5, 2016, but the owner filed the verified complaint twenty-two days before the ninety days expired. The trial court properly dismissed the complaint. § 617.07401, Fla. Stat.

The trial court also correctly found the verified complaint failed to comply with section 617.07401 by failing to plead an exception to the ninety-day waiting period. The verified complaint failed to allege that the demand was “refused or ignored” by the association, that,the demand was rejected in writing by the association prior to the ninety-day period, or that the waiting period would cause irreparable harm to the association. Noncompliance with the pre-suit requirements of section 617.07401 mandates dismissal of the suit. See, e.g., Sharma v. Ramlal, 76 So.3d 955, 957 (Fla. 2d DCA 2011) (LaRose, J., concurring).

Florida Rule of Civil Procedure 1.420(b) also provided a basis for dismissal of the complaint. It provides that an action may be dismissed for failure to comply with the Florida Rules of Civil Procedure. The rules provide that a complaint “shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b).

Commingling various claims against all defendants together may also warrant dismissal of a complaint. Fla. R. Civ. P. 1.110(f); see also Aspsoft, Inc. v. WebClay, 983 So.2d 761, 768 (Fla. 5th DCA 2008) (commingling separate and distinct claims against multiple defendants warrants a dismissal of the complaint).

Here, the owner made blanket references to “defendants” throughout the complaint, specifically under counts two and three for negligence and improper management, respectively. By commingling separate and distinct claims' against multiple defendants, the owner violated Rule 1.110(f) for failing to state in a separate count “[e]ach claim founded upon a separate transaction or occurrence.” Fla. R. Civ. P. 1.110(f). Because the owner failed to comply with the Florida Rules of Civil Procedure, the action was properly dismissed under Rule 1.420(b).

The verified complaint also failed to clearly allege how each defendant caused the injury and damages alleged. Count two broadly mentions the board of directors and their alleged duty and breach, but does not allege a duty, breach, or wrongdoing on the part of the association as an entity. Count three likewise broadly mentions the association without specifying the wrong committed by each defendant.

Count one improperly alleged the association breached a fiduciary duty to its unit owners even though as a corporate entity, it does not have a duty to its unit owners. See § 718.111(1), Fla. Stat. (2016) (only officers and directors of a corporate entity have a fiduciary duty, not the corporate entity). In short, the trial court properly dismissed the breach of fiduciary claim against the association. And, while the holding companies are alleged to have title to apartments purchased by the association, there is no allegation that these entities either breached a fiduciary duty or were negligent.

Notwithstanding the failure to comply with the pre-suit notice requirement and the pleading requirements of the Florida Rules of Civil Procedure, Rule “1.190(a) provides that leave to amend ‘shall be given freely when justice so requires.’” Cousins Restaurant Assocs. ex rel. Cousins Mgmt. Corp. v. TGI Friday’s, Inc., 843 So.2d 980, 982 (Fla. 4th DCA 2003) (quoting Fla. R. Civ. P. 1.190(a)). “[Ljeave to amend should "not be denied unless the privilege has beéri abused, there is prejudice to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996).

'Here, the owner acknowledged some of the pleading deficiencies and requested leave to amend. Because this is not a case where the owner filed repetitive motions to amend and abused the privilege, and because there was no finding that an amendment would be futile, the trial court erred in dismissing the case with prejudice.

For this reason alone, we reverse and remand the case to the trial court for the owner to be given an opportunity to amend the verified complaint.

The owner also argued the trial court erred in denying her request to enforce the association bylaws. The owner maintained that the board members’ inclusion on the ballot violated the association’s bylaws, as amended in 1986 to impose board member term limits. The defendants responded that the 1986 amendments were invalid and had never been enforced. They further argued the issue was moot as the election took place before the hearing on the motion. The owner replied that the defendants’ challenge to the 1986 amendment was barred by the statute of limitations.

We have de novo review of this issue. Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006).

The owner’s motion to enforce the bylaws sought to prevent the re-election of the board of directors then scheduled for February 22, 2016, The hearing on the motion took place in April, 2016. In denying the owner’s motion, the trial court found the election of the same board of directors rendered the motion moot. This was a proper basis for dismissal given that the specific controversy that was the subject of the owner’s motion, the inclusion of the board directors on the ballot, no longer existed. See Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (defining mootness and articulating three exceptions to an otherwise moot case, but holding the issue in the case was not moot). Upon remand, the owner may address the eligibility of these board members in her amended complaint.

Because we are rémanding to give the owner an opportunity to amend the verified complaint, we note' the following pleading deficiencies raised by the various defendants. Count one alleged a breach of fiduciary duty against the association, a duty which does not exist. Towerhouse Condo., Inc. v. Milkman, 475 So.2d 674, 676 (Fla. 1985).

The dismissal of the holding companies as to counts one and two appears to have been correct as they are not alleged to have breached any duty. The dismissal in favor of the three board members individually is correct as they may be allegedly liable only in their representative capacity for breach of their fiduciary duty as officers and directors. See § 617.0834, Fla. Stat. (2016).

Upon remand, the owner shall be given an opportunity to correct these pleading deficiencies.

Affirmed in part; reversed in part;, and remanded.

Gross and Forst, JJ., concur.

      . The trial court found that only three of the seven board members were served.


author: Cynamon, Abby, Associate Judge. Kuntz, J.,

text:
    Georges M. DELBROUCK, Appellant, v. Maria EBERLING as Personal Representative of the Estate of Leon G. Delbrouck, Aime Guy Debrouck and Claude Delbrouck, Appellees.
    No. 4D16-2341
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Brian C. Valentine of the Law Office of Mosier Valentine, P.A., Fort Lauderdale, for appellant.
    Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for Appellee Maria Eberling.
    John G. Jordan of John G. Jordan, P.A., Fort Lauderdale, for Appellee Claude Del-brouck.
   Cynamon, Abby, Associate Judge.

Georges Delbrouck appeals from an order granting summary judgment in a probate case. Appellant, a beneficiary under the subject will, argues that he is an interested person with standing to contest the will and thus, it was error for the trial court to grant summary judgment where he pleaded undue influence and lack of testamentary capacity. We agree and reverse. We find it unnecessary to address the remaining arguments on appeal.

Leon G. Delbrouck died January 1, 2014, and was survived by his three sons—appellant, Aime Guy Delbrouck, and Claude Delbrouck. About three weeks after the decedent’s death, the probate court entered an order admitting his June 26, 2013 will to probate. The order noted that the decedent’s will appointed Maria Eber-ling—Aime’s ex-girlfriend—as the personal representative. Aime was appointed as the substitute personal representative. The will divided the decedent’s assets equally among his three sons, who would have been the decedent’s heirs at law had there been no will.

In May 2014, appellant petitioned for revocation of probate. Appellant eventually filed a second amended petition, alleging that the will was procured by undue influence and overreaching on the part of Aime and the personal representative, the decedent lacked capacity, and the personal representative failed to notify appellant of the administration of the estate because the notice was mailed to the wrong address. The petition further alleged that the personal representative gave preference to Aime in the administration of the Estate. Appellant sought, inter alia, revocation of probate and a vacation of the appointment of the personal representative.

Without responding to appellant’s petition, the personal representative served a motion for summary judgment in February 2016, alleging that even if there had been undue influence or if the will had been executed when the decedent lacked testamentary capacity, appellant would not receive any benefits by successfully revoking probate. The personal representative filed affidavits from Aime and Claude, who each attested that they would nominate the same personal representative and reject appellant’s attempt to seek an alternate representative.

Appellant filed two memoranda of law in opposition to the motion for summary judgment, arguing, inter alia, that there was undue influence, the decedent lacked testamentary capacity, and the motion erroneously relied on Newman v. Newman, 766 So.2d 1091 (Fla. 5th DCA 2000). Appellant further alleged that the personal representative allowed Aime access to the estate’s real property and assets to the exclusion of the other beneficiaries. Specifically, appellant claimed the personal representative demanded that he vacate real property owned by the estate but did not make the same demand of Aime, who occupied a warehouse property owned by the estate, or of Claude, who occupied a condominium owned by the estate. Moreover, appellant added that the personal representative and Aime removed personal property from the decedent’s former residence, and destroyed or disposed of it, without providing an accounting. Appellant submitted various exhibits in opposition to the summary judgment motion, including deposition testimony by Aime, by the personal representative, and by the attorney who drafted the will.

In June 2016, the probate court conducted a hearing on the motion for summary judgment. The personal representative argued that appellant was in a no-win situation because: (1) appellant did not allege that there was a prior will that would give him more than what he received under the disputed will; (2) even if the will was not probated, appellant would have been entitled to the same one-third share of the estate through intestate succession; and (3) the personal representative would remain unchanged based on the affidavits from appellant’s two brothers. Appellant acquiesced that both the will and intestate succession would give him the same one-third distribution of the decedent’s estate but argued still for revocation of the will based on its alleged improper creation.

The probate judge initially suggested deferring ruling on the motion for summary judgment until an evidentiary hearing was held on an outstanding motion to remove the personal representative and on another motion to dismiss that motion to remove the personal representative. However, the parties disputed that course of action, and after more argument and a recess, the probate judge made the following statement on the record:

Okay. I’ve been going through this six different ways and I brought it up and it appears that there is no question in my mind as to the issue of whether we go forward on the will or we go intestate. The consequences of that decision are meaningless. There is nothing. And given the reliance on Newman, I just want to quote one sentence and I think I read this two or three times, but let me just read it again. I think this is at page three. “An interested person is defined as any person that may reasonably be expected to be affected by the outcome of the particular proceeding involved.” I don’t believe that Georges Delbrouck is affected in any way on the outcome of this issue. I don’t think, he has standing to make- an argument on this and I’m going to agree with the Petitioner on this matter.
Having said that, I want—there is an outstanding Motion to Dismiss regarding the motion to remove the personal representative. I want that set quickly. I want, and depending on my ruling I want if there is going to be an evidentia-ry hearing on that, I want that set quickly. But as to today’s hearing, I will agree with-Mr.'—the Petitioners—well, whoever I said I agree with, the Respondent.

The probate court ultimately granted the motion for. summary judgment. The written order stated that the court had heard the arguments of counsel and had reviewed the record summary judgment evidence, but the order did not provide the court’s reasoning for granting summary judgment in favor of the personal representative. This appeal ensued.

Appellant now argues on appeal that he is a substantial beneficiary under the will and a putative heir under intestacy law, making him an “interested person” in every sense of the term, and thus the probate court erred in granting summary judgment. Appellant also argues that summary judgment was further- precluded since there were disputed issues of material-fact regarding appellant’s claims for undue influence- and lack of testamentary capacity.

The personal representative contends that summary'judgment was appropriate as a matter of law. She maintains that while appellant is an interested person by being a named beneficiary, in order to establish his standing to seek revocation of probate, appellant would have had- to establish also that he would benefit from a successful revocation proceeding. The personal representative further argues that the motion for summary judgment did not address undue influence or lack of testamentary capacity, and even if the allegations were true, which she disputes, appellant still would not be able to establish that he had a benefit to gain by revoking the will.

We review an order granting summary judgment de novo. Dennis v. Kline, 120 So.3d 11, 20 (Fla. 4th DCA 2013). Summary judgment is proper only where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). We also review de novo the interpretation of statutes. Duncombe v. Adderly, 991 So.2d 1013, 1015 (Fla. 4th DCA 2008).

Here, the trial court committed two errors in granting the motion for summary judgment. First, it was error to grant the motion for summaiy judgment on the basis that appellant did not have standing. Second, because appellant had standing, it was error to grant summary judgment where the personal representative failed to refute the factual allegations of undue influence and lack of testamentary capacity that were raised in the second amended petition to revoke probate. We now address each error in turn.

“[Standing to bring or participate in a particular legal proceeding often depends on the nature of the interest asserted.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla. 2006). An interested person may seek revocation of probate. See § 733.109(1), Fla. Stat. (2014). An interested person is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” § 731.201(23), Fla. Stat. (2014). Even the personal representative of an estate is deemed an, “interested person” in proceedings affecting the estate or the rights of a beneficiary of the estate. Id.

Here; appellant falls within the definition of an interested person within the meaning of section 733.109(1), since he was both a beneficiary under the will and an heir at law, and he would have been affected by the outcome of the revocation petition insofar as a successful revocation would have subjected the personal representative—whom appellant alleged was improperly administering the estate and giving preferential treatment to the other beneficiaries—to removal under section 733.504(10), Florida Statutes (2014). There is no requirement in the plain language of the statute that appellant prove his share of the estate would have been different if his revocation attempt succeeded. Consequently, the trial court’s and. the personal representative’s reliance on Newman was misplaced insofar as they interpreted the holding in Newman to find that appellant lacked standing to challenge the will. Newman is easily distinguishable from the instant case.

The petitioner in Neuman was found not to be an interested person and therefore lacked standing because he had been disinherited in the challenged 1962 will as well as in a previous 1954 will. 766 So.2d at 1093-94. Moreover, the Newman court noted that seeking justice by punishing alleged will forgers was an insufficient basis to confer standing to challenge a will. Id. at 1094. Thus, the only logical reason for the petitioner’s challenge, the court found, was to delay the distribution of the decedent’s estate such that his stepmother’s interest-in the estate, which was the entire estate, would lapse. Id. As such, the court held that the petitioner should not benefit by his intentional efforts to delay distribution of the estate. Id. The Fifth District later interpreted its Newman decision to mean that “a petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include petitioner as a beneficiary of the estate.” Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005) (citations omitted). Here, appellant was a beneficiary under the challenged will, was not disinherited in a prior will, and did not seek to delay distribution until the sole beneficiary’s interest lapsed in order to obtain an interest, rendering Newman wholly inapplicable.

While the affidavits of appellant’s brothers suggest that the current personal representative would receive preference to be reappointed' pursuant to section 733.301(1)(b), Florida Statutes (2014), even if appellant were to successfully revoke the will, this preference would not result in mandatory or automatic appointment. See In re Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DOA 1976) (noting that an individual may be considered unsuitable to administer an estate if‘there is an adverse interest, hostility to those immediately interested in the estate, or an interest adverse to the estate). The Snyder court further held:

Where the record supports the conclusion that a person occupying the position of statutory preference does not have the qualities and characteristics necessary to properly perform the duties of an administrator, it would be an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint him simply because he did not fall within the enumerated list of statutory disqualifications.

Id. at 521. Here, if the will were revoked as a result of the undue influence of Aime and Maria, appellant would have a reasonable argument that the probate court should refuse to reappoint Maria as personal representative. Thus, because appellant would potentially gain the appointment of a different personal representative if the will were revoked, appellant has a legally cognizable interest that would be affected by the outcome of the revocation petition.

Next, the effect of the personal representative’s failure to file an answer to the second amended petition to revoke probate, or to otherwise refute the claims raised in the petition, was to- leave unre-butted the facts alleged by appellant in the complaint. See Fla. R. Civ. P. 1.110(e). Specifically, these claims were: (1) that the decedent lacked capacity at the time he executed the will because the medication he was taking affected his cognitive abilities; and (2) that the decedent was unduly influenced by Aime and Maria, who “removed the decedent from his home” and “spirited him away” to a lawyer’s office to execute a new will.

Moreover, appellant’s exhibits in opposition to the motion for summary judgment supported the allegations of undue influence and lack of testamentary capacity raised in the petition. The exhibits included deposition testimony from Aime stating that he had driven the decedent and the personal representative to the attorney’s office, that he suggested the appointment of Maria as the personal representative, and that he had a power of attorney allowing him to control the decedent’s checkbook. The affidavits also included medical notes stating that the decedent had some memory deficits that were filled in by his son, who was knowledgeable about the decedent’s health condition, as well as additional deposition testimony from Aime claiming not to be sure or not to remember whether the decedent had been diagnosed with dementia or Alzheimer’s.

While it was permissible for the personal representative to file a motion for summary judgment without filing an answer to the second amended petition for revocation, it was error for the court to grant summary judgment where appellant had standing to seek revocation and the unchallenged petition stated causes of action for undue influence and lack of capacity. The petition, and subsequent deposition evidence, raised factual issues which were not refuted by the personal representative at the summary judgment hearing.

The Second District considered this issue in Hemker v. Abdul, 716 So.2d 817 (Fla. 2d DCA 1998). Hemker, like the case at bar, involved a petition to revoke probate. Id. at 818. Also just like in the case at bar, the petition in Hemker to revoke probate asserted lack of testamentary capacity and undue influence. Id. The trial court entered summary judgment against the proponent of the petition to revoke probate. Id. On appeal, the Second District reversed, finding that both the pleadings and the deposition of the proponent of the will raised unresolved factual issues as to the presence of undue influence on the decedent and the decedent’s testamentary capacity. Id. The Second District also noted that reversal of the summary judgment was necessary because the proponent of the will failed to present any evidence to counter the allegations of undue influence and lack of testamentary capacity. Id. In the case at bar, just as in Hemker, the personal representative failed to present any evidence at the summary judgment hearing to refute the allegations of undue influence and lack of testamentary capacity raised by the second amended petition.

In conclusion, we hold that it was error for the probate court to grant summary judgment. As an interested person, appellant had standing to contest the will. Moreover, the personal representative’s failure to respond to the allegations in the second amended petition left unrebutted appellant’s claims of undue influence and lack of testamentary capacity. Therefore, the court erred in granting the personal representative’s motion at this point in the proceedings. Thus, we reverse the summary judgment and remand to the probate court for further proceedings consistent with this opinion.

Reversed and Remanded.

Damoorgian, J., concurs.

Kuntz, J., concurs in result only with opinion.

Kuntz, J.,

concurring in result.

I agree that reversal is required because section 733.109(1), Florida Statutes (2015), provides that any interested person may commence a proceeding to revoke the probate of a will. While the appellant will receive the same one-third share of the estate regardless of whether the estate is probated or distributed intestate, the legislature has not required an interested person to demonstrate that their share will increase before the person may seek revocation of probate. However, while I join in the reversal, I would limit our decision to the grounds the court actually decided. We do not need to address other arguments regarding the court’s summary judgment.

I also recognize the court was seeking to proceed in a manner that would not prejudice any party and would expedite the distribution of the estate. In the briefs and at oral argument, counsel struggled to explain how the actual beneficiaries would benefit by revoking the probate. In fact, it was agreed that each beneficiary will receive a one-third share of the estate regardless of the manner in which it is distributed. The appellant’s actual complaints are with the personal representative, as evidenced by a separate civil action he filed seeking to remove her. I agree with the probate judge that the issues the appellant raises in his section 733.109 petition would be better and more efficiently addressed by resolving that separate action. Unfortunately, the appellant has not sought to expedite that litigation.

The court granted summary judgment based upon its conclusion that the appellant lacked standing. I agree that pursuant to section 733.109, the appellant had standing to seek to revoke the probate. Therefore, I would reverse the entry of summary judgment on that basis, but would go no further.

      . For example, in Hayes, our supreme court held that "a person, including an heir of a ward, has standing to participate in a guardianship proceeding if the applicable provisions of either the Florida Guardianship Law or the Florida Probate Rules entitle the person to notice of the proceeding or authorize the person to file an objection in the proceeding.” Id. at 500.


text:
    Albert RABIL and Tamara Rabil, Appellants, v. SEASIDE BUILDERS, LLC, Appellee.
    No. 4D17-166
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Alan B. Rose and Daniel A. Thomas of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach, for appellants.
    John H. Pelzer and Glenn N. Smith of Greenspoon Marder, P.A., Fort Lauder-dale, for appellee.
   May, J.

Homeowners appeal an order denying their motion for release of a lien transfer bond. They argue the trial court erred in denying their motion and imposing notice on the contractor’s counsel, which is not required by section 713.22(2), Florida Statutes (2016). We agree and reverse.

The homeowners entered into ah agreement with the contractor for construction of a single-family home. In May 2016, after disputes arose between the partiés, the contractor recorded’ a mechanic’s lien against the property under Chapter 713 and filed suit against the homeowners to foreclose the lien. The contractor also recorded a lis pendens against the property.

The homeowners subsequently posted a lien transfer bond and recorded a notice of contest of lien. On July 27, 2016, the clerk recorded a certificate of transfer and mailed a copy to the contractor with the notice of contest.

On October, 10, 2016, the homeowners moved to release the bond, dismiss the foreclosure complaint, and discharge the lis pendens. They argued that under sections 713.22 and 713.24, Florida Statutes, the property was released from the lien because the contractor failed to file suit against the surety within sixty days of the recording of their notice of contest. Yet, the clerk refused to release the bond without a court order after the contractor objected..

The contractor responded by arguing the homeowners’ motion should be denied based on “principles of equity and excusable neglect.” The contractor and its counsel claimed they were unaware of the lien transfer bond and the notice of contest until the homeowners requested the clerk to release the bond.

At the hearing on the homeowners’ motion, the court took issue with the homeowners’ failure to send copies of the lien transfer bond and notice of contest to the contractor’s counsel. And, the court found that the notice of contest failed to advise the contractor that it needed to file suit against the bond surety within sixty days. Homeowners’ counsel argued that appropriate notice was given under the statute. Nevertheless, the court denied the motion and allowed the contractor to file án amended complaint naming the bond surety as a party. From this order, the,homeowners appeal.

We have, de novo review. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001).

The homeowners maintain that, when they posted the lien transfer bond, the lien was transferred to the bond surety and the property was released from the lien. See § 713.24(1), Fla. Stat. (2016). Once they recorded a notice of contest of lien, the contractor had sixty days to file suit against the bond surety to enforce the lien. See § 713.22(2). The clerk was required to serve a copy of the notice of contest on the contractor at the address shown on the claim of lien, which it did. See id.

The contractor admits receiving the notice, but claims it was received by the contractor’s secretary rather than being delivered to a corporate officer or its counsel. It claims that it did not receive notice until after the sixty days expired.

No one disputes the homeowners followed: the statutory procedure. But, the contractor argues that the statutory notice provision of section 713.22(2) violates due process because it does not require service on opposing counsel or that the lienor be informed that an additional suit must be filed. We reject those arguments;

The legislature has provided a statutory scheme, which we must strictly construe. See Krasne-Gold Coast Joint Venture v. Allied Dry wall, Inc., 573 So.2d 194, 195 (Fla. 4th DCA 1991). The homeowners complied with that statutory scheme. They posted a lien transfer bond and recorded a notice of contest of the lien. The clerk properly noticed the contractor. Because the contractor did not file suit against the surety within sixty days, the lien was automatically extinguished by operation of law, and the clerk was obligated to release the bond. See §§ 713,22(2), 713.24(4); see also Hiller v. Phoenix Assocs. of So. Fla., 189 So.3d 272 (Fla. 2d DCA 2016); Cool Guys, LLC v. Jomar Props., LLC, 84 So.3d 1076 (Fla. 4th DCA 2012).

We> therefore reverse and remand for the trial court to release the bond and discharge the lis pendens.

Reversed and Remanded.

Taylor and Conner, JJ., concur.