text:
    Daniel WESNER, d/b/a Fish Tales, Appellant, v. JMS MARINAS, LLC, d/b/a Maximo Harborage Marina, a Delaware limited liability company, Appellee.
    Case No. 2D16-4646
    District Court of Appeal of Florida, Second District.
    Opinion filed August 25, 2017
    Kathleen Sweeney Ford, of Ford & Ford, P.A., St. Petersburg, for Appellant.
    Samuel J. Heller, of Heller Goldberg, P.A., St. Petersburg, for Appellee.
   SILBERMAN, Judge.

Daniel Wesner, d/b/a Fish Tales (“Wes-ner”), seeks review of the partial summary judgment awarding JMS Marinas, LLC, d/b/a Maximo Harborage Marina (“JMS”), possession of the leased premises that are the subject of this action for eviction and related damages. We conclude that the trial court erred in granting summary judgment because there is a genuine issue of material fact regarding JMS’s standing to seek possession of the leased premises. We therefore reverse and remand for further proceedings.

The underlying action arose from a dispute over the payment of percentage rents under a commercial lease agreement. The lease was executed by Wesner as tenant and Maximo Harborage Marina, LLC (“Maximo Harborage”), as landlord. The lease requires the tenant to pay the landlord a base rent or percentage of its gross annual revenues, whichever is greater. Wesner was current on the base rents, but Maximo Harborage asserted that since January 2008, Wesner failed to provide financial information necessary to calculate percentage rents.

Maximo Harborage filed its complaint and a motion to determine rents in July 2014. At that time, however, Maximo Har-borage was not entitled to “maintain any action, suit, or proceeding in any court” in Florida because it had not complied with Florida’s registration requirements. See § 865.09(9)(a), Fla. Stat. (2014). Maximo Harborage eventually acknowledged this deficiency and was granted leave to file an amended complaint substituting JMS as the plaintiff.

The lease defines the landlord as “the current owner or owners of the fee title to the Demised Premises or the leasehold estate under a ground lease of the Demised Premises at the time in question.” It also provides that in the event the landlord transfers its title or interest in the property to a third party, the third party will be recognized as' the landlord. Both the original and amended complaint contain allegations that the plaintiff is the landlord and owner of the real property that is the subject of the eviction action.

Since the inception of the action, Wesner has been asserting that he is unsure of the identity of the proper plaintiff. In his answer to the amended complaint, Wesner denied the material- allegations. Wesner also challenged JMS’s claim that it was the owner of the demised premises and raised the issue of the identity of the landlord or its agent. Additionally, Wesner challenged JMS’s assertions that it had entered into a lease with Wesner and was entitled to maintain any action against Wesner. Wes-ner tried to assert that JMS was not his landlord at a March 25, 2015, pretrial hearing, but the court refused to allow the argument because it was not properly noticed. And Wesner again questioned JMS’s standing to sue in opposing JMS’s motion for partial summary judgment of possession.

Wesner also filed a supplemental response to JMS’s motion to determine rents in which he asserted, among other things, that JMS was not the owner of the property in question. Wesner asserted that original landlord Maximo Harborage changed its name to Harborage Marina, LLC (“Harborage Marina”), and that Wesner paid rent to Harborage Marina from January 2008 to June 2009. In June 2009, Har-borage Marina conveyed the real property including the demised premises to Harbor-age Land, LLC (“Harborage Land”). Since that time, Wesner has been paying rent to nonparty Harborage Land. Wesner also filed a certified copy of the warranty deed in the record.

At the June 16, 2015, hearing on JMS’s motion to determine rents, Wesner asserted, “I was hoping that the plaintiffs would clarify who exactly was suing.” The court responded, “That sounds to me like you’re leading up to ground[s] we’ve hashed over at previous hearings, [counsel]. I think it’s pretty clear who’s suing your client.” The court prohibited Wesner from making any further standing arguments.

In an apparent response to Wesner’s assertions, JMS elicited testimony from John Stanford Johnson, one of its owners, that JMS is the “successor landlord to the entity that originally signed the lease.”. During cross-examination, Wesner inquired into the basis for this assertion,Defense counsel showed Johnson a copy of the June 2009 warranty deed in which Harborage Marina (f/k/a Maximo Harbor-age) conveyed the real property to Har-borage Land. Johnson testified that the warranty deed was executed when, “we split the marina from the wet portion tó— and the dry portion into two portions that are in turn held by Harborage Marina, LLC. So you’ve got Harborage Land, LLC. It split that off into a separate LLC.” Counsel asked Johnson whéther the warranty deed conveyed all the land owned by Harborage Marina, but the court interrupted and told counsel to focus on the amount of rents due.

Wesner placed the standing issue squarely before the court by'filing three affidavits challenging JMS’s standing in response to the motion for partial summary judgment of- possession. In the first affidavit, Wesner himself asserted that JMS is not and has never been his landlord. Wesner said that several years after he signed the lease, the marina managers-told him that Maximo Harborage changed its name to Harborage Marina and directed him to pay the rent to Harborage Marina. Some years later, the managers told him that the property had been transferred to Harborage Land and directed him to pay the .rent to Harborage Land. Wesner asserted that Harbórage Land was his current landlord. Wesner also claimed that Harborage Land had contacted him to discuss his' use of the property while the eviction proceedings were pending-. In the second affidavit, attorney Kathleen Ford confirmed Wesner’s recent contact with Harborage Land.

In the third affidavit, attorney Martin Awerbach asserted that he had conducted a title search which confirmed that Har-borage Land was the current record title holder of the property and that JMS had no interest in the property. He" also asserted that the Pinellas County Official Records and.Sunbiz.org revealed that JMS’s only connection.with the property is that it executed the 2009 deed as manager for Harborage Marina, the grantor. These sources do not identify JMS as the manager of grantee Harborage Land or as having authorization to act on its behalf.

JMS filed a motion to strike Awerbach’s affidavit as improper opinion testimony and inadmissible hearsay. The court granted JMS’s motion to strike Awerbach’s affidavit as inadmissible hearsay and entered an order granting JMS partial summary judgment for possession, The court determined that Johnson’s testimony at the previous hearing on the motion to determine rents established that JMS “is the ‘successor’ to the record owner of the leased premises.” Thus, the court concluded that any facts suggesting that JMS was not the record owner were not material to the issue of JMS’s entitlement to a judgment for possession.

On appeal, Wesner first argues that the trial court erred in striking the Awerbach affidavit. We conclude that the court properly struck the Awerbach affidavit as hearsay based on the failure to attach certified copies of the public records on which he relied. See Fla. R. Civ. P. 1.510(e) (“Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith.”); see also Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992); Coleman v. Grandma’s Place, Inc., 63 So.3d 929, 933 (Fla. 4th DCA 2011).

Wesner’s second argument , is that the .trial court erred in determining there was no genuine issue of material fact regarding JMS’s entitlement to a judgment for possession. This court conducts a de novo review of a summary judgment. Buck-Leiter Palm Ave. Dev., LLC v. City of Sarasota, 212 So.3d 1078, 1081 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)). Summary judgment is proper if the moving party establishes entitlement to judgment as a matter of law and there is no genuine issue of material fact. IcL “In reviewing a summary judgment ruling, we must consider the evidence in the light most favorable to the nonmoving party, and if the record raises the slightest doubt that an issue might exist, we must reverse the summary judgment.” Id. .

We conclude that partial summary judgment was improper because, even without the Awerbach affidavit, there is a genuine issue of material fact regarding JMS’s standing to seek possession. When the amended complaint was filed, the plaintiff was changed from named landlord Maximo Harborage to JMS. There is nothing in the record establishing the relationship between Maximo Harborage and JMS except Johnson s testimony that JMS is the “successor landlord to” Maximo Harborage.

In opposition to JMS’s motion for partial summary judgment, Wesner presented evidence that Maximo Harborage changed its name to Harborage Marina after the lease was executed. And Harborage Marina conveyed the real property including the demised premises to Harborage Land in 2009. Under the plain language of the lease, it is arguable that Harborage Land is the current landlord because it owns the fee title to the demised premises. In addition, Wesner presented evidence that Harborage Land had been acting as his landlord since 2009 by sending him rent invoices and accepting his rent payments. Harborage Land ■ also, contacted him to discuss his use of the property while the eviction proceedings were pending.

We recognize that a landlord or its agent may file a complaint seeking removal of a tenant. See § 83.21, Fla. Stat. (2014). However, JMS did not assert it was acting as the agent of original landlord Maximo ' Harborage or any subsequent landlord. Instead, it asserted that it owned the property and was the successor landlord.

The evidence presented by Wesner thus raises a question of fact regarding whether JMS has standing to seek possession as the landlord. Accordingly, we reverse the partial summary judgment for possession and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and SLEET, JJ., Concur.

      . The trial court'seemed to'believe that the standing issue had been previously resolved, but it is evident from the record that the issue had not been fully addressed in earlier proceedings.

      . The court also found that Johnson’s testimony was unsuccessfully challenged on appeal of the order'granting JMS’s motion to determine rents’ However, as we stated previously, the issue- of JMS’s -standing to sue was not fully argued or. ruled upon until it was raised in opposition to JMS's motion for partial summary judgment of possession.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Raymond C. SANTA LUCIA, Ph.D., Appellant, v. Fernando R. DIAZ, M.D.; and Florida Gulf-to-Bay Anesthesiologists Associates, P.A., Appellees.
    Case No. 2D15-4901
    District Court of Appeal of Florida, Second District.
    Opinion filed August 25, 2017
    Melissa H. Powers of The Maher Law Firm, P.A., Winter Park; and William E. Hahn of William E. Hahn, P.A., Tampa, for Appellant.
    Michael R. D’Lugo and Linda S. O’Con-nor of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellees.
   KELLY, Judge.

In this medical malpractice action, Raymond Santa Lucia appeals from the cost judgment rendered after a jury verdict in his favor. He first contends the trial court abused its discretion in excluding from the cost judgment fees for Lawrence Forman and Dr. Hartley Mellish, the experts who provided testimony on the specific economic losses he incurred as a result of his injuries. The appellees properly concede Santa Lucia is entitled to recover these fees to the extent he can establish the fees were reasonable and necessary. See Payne v. Spier, 562 So.2d 440, 441 (Fla. 4th DCA 1990) (holding that the plaintiff was entitled to recover reasonable expert fees for a rehabilitation expert and economist).

Santa Lucia also argues the trial court erred by excluding expert witness fees for three physicians who testified during the trial. The trial court determined the doctors could not be considered experts because they had treated Santa Lucia. A treating doctor can be considered an expert where he provides expert opinion testimony. See Field Club, Inc. v. Alario, 180 So.3d 1138, 1141 (Fla. 2d DCA 2015) (citing Clair v. Perry, 66 So.3d 1078, 1079 n.1 (Fla. 4th DCA 2011)). Here, as the appellees properly concede, the trial court erred when it found that one of the treating doctors, Dr. John Bach, could not be considered an expert for the purposes of awarding fees. Dr. Bach was listed as an expert and in fact provided expert testimony. Accordingly, the trial court should have allowed Santa Lucia to recover a reasonable expert witness fee for his testimony. We agree with the appellees, however, that the trial court properly determined that Santa Lucia’s remaining treating doctors could not be considered as experts for the purposes of awarding expert fees.

Accordingly, we reverse the final cost judgment and remand for an evidentiary hearing to determine the amount of reasonable fees to be awarded for Lawrence Forman, Dr. Mellish, and Dr. Bach.

Affirmed in part; reversed in part; and remanded with directions.

LUCAS and BADALAMENTI, JJ., Concur.


author: PER CURIAM.

text:
    Shawn Demontre COOLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3782
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, for Appellee.
   PER CURIAM.

Shawn Demontre Cooler appeals his conviction and sentence for grand theft. We affirm on all the issues he raises except for one, the trial court’s imposition of discretionary costs and fines of $180 and $10 under § 775.083 and § 938.04, Florida Statutes.

We have held that trial courts imposing discretionary costs against a criminal defendant must specifically pronounce them orally at sentencing and provide the defendant an opportunity to contest them. Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). Here, the trial court orally pronounced costs and fines levied against Mr. Cooler as a lump sum, without delineating which costs were discretionary. As we have held before, a trial court may not impose discretionary costs without notifying the defendant. Id. On remand, the trial court must provide notice of the discretionary costs it plans to impose upon Mr. Cooler and give him an opportunity to object to them, or it can strike them.

AFFIRMED in part and REVERSED in part.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    K.L.L., a Child, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5840
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    . Andy .Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The juvenile appellant, K.L.L., appeals a final disposition order adjudicating her delinquent, following a guilty plea, and committing her to the custody of the Department of Juvenile Justice for placement in a non-secure residential program. In so doing, the trial court deviated from the Department’s recommendation of probation.

We disagree with the appellant’s characterization of the trial court’s findings, which were well-reasoned and supported by competent, substantial evidence. However, we agree with the appellant that the trial court erred in committing her without first requesting a commitment level recommendation from the Department. See B.K.A. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013); A.L.M. v. State, 176 So.3d 1025 (Fla. 1st DCA 2015).

Accordingly, we AFFIRM the portion of the disposition order adjudicating the appellant delinquent, but we REVERSE the non-secure residential commitment and REMAND to the trial court for further proceedings consistent with the opinions in B.K.A. and A.L.M., as well as section 985.433(7), Florida Statutes.

ROBERTS, MAKAR and JAY, JJ., CONCUR.


author: ■ JAY, J.

text:
    Randy J. FISCHER, Husband, Appellant, v. Kathleen Therese FISCHER, Wife, Appellee.
    CASE NO. 1D16-4285
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
    Wendy J. Norman, Jacksonville, for Ap-pellee.
   ■ JAY, J.

' The former husband seeks review of a “Final Judgment'of Dissolution of Marriage.” The judgment appears to be final in all respects with the exception of the trial court’s reservation of jurisdiction “to determine the disposition” of the parties’ home should the former wife “be unable to refinance the mortgage.” The emphasized language unquestionably reserves jurisdiction to consider a forthcoming distribution of the parties’ principal asset— the marital home. It is expressly made contingent on an eventuality that may or may not come to pass—the wife’s obtaining refinancing of the marital home. And, most significantly, it fails to define what the “disposition” of the home' would entail. Accordingly, the reservation of jurisdiction signals to us that additional judicial labor will be required. See Caufield v. Caufield, 837 So.2d 371, 375 (Fla. 2002) (“A final judgment is one which ends the litigation between the parties and disposes of all issues iftvolved such that no further action by the court will be necessary.”); Demont v. Demont, 24 So.3d 699, 699 (Fla. 1st DCA 2009) (dismissing appeal where “final” judgment expressly reserved jurisdiction “to consider the division of the parties’ marital personal property,” citing Caufield, 837 So.2d at 375); Wilson v. Wilson, 906 So.2d 356, 357 (Fla. 1st DCA 2005) (holding that “an order which purports. to become final upon the happening of an event specified in the order is not a final order and the happening of the event does not operate to render the order final”); Thomas v. Thomas, 902 So.2d 881 (Fla. 1st DCA 2005) (Mem.) (determining that the order “captioned as a ‘Final Order of Dissolution of Marriage,’” but in which the lower tribunal reserved jurisdiction “to consider the issue of a possible reduction in the value of any IRA or pension plan” by the former husband, “indicate[d] that the lower tribunal’s judicial labor [was] incomplete and rendered] the order nonfinal”); Newman v. Newman, 858 So.2d 1273 (Fla. 1st DCA 2003) (Mem.) (dismissing appeal where “final” order of dissolution contained conditional reservation of jurisdiction to determine issues regarding bank and investment accounts).

The former husband argues that the reservation of jurisdiction did not in any way alter the finality of the judgment with respect to the dissolution of the marriage, the award of alimony, or the equitable distribution of the parties’ other property. We rejected a similar assertion in Demont, where we held that “although substantively the order on appeal may have the effect of terminating the marriage and finally adjudicating certain issues, procedurally it does not bring an end to the judicial labor required in the cause such that the order is appealable as a final order.” Demont, 24 So.3d at 700. Even though the jurisdiction in the instant judgment was not reserved specifically to determine the equitable distribution of all of the parties’ assets and liabilities, by its terms it reserved jurisdiction with the express intent to make an alternative disposition of the home. That decision would potentially bear on the current equitable distribution of the parties’ assets and liabilities and, in turn, the amount of alimony awarded.

Nor are we persuaded that this case can be compared favorably to the circumstances in Johnson v. Johnson, 902 So.2d 241 (Fla. 1st DCA 2005), because, here, the parties discussed the possibility of selling the home should the wife fail to gain refinancing. In Johnson, we held that the amended judgment of dissolution of marriage was not rendered nonfinal simply because it did not appear to determine the parties’ interest in several marital properties. We concluded the judgment was ap-pealable because the parties’ interests in the marital property were determined by section 689.15, Florida Statutes (2004), which provided that tenants by the entire-ties, upon the dissolution of their marriage, would automatically become tenants in common. Id. at 243. We further reasoned that because section 61.075(1), Florida Statutes (2004), directed the trial court to begin distributing marital property under the premise that it would be an equal distribution, “the statutory default of tenancy in common would apply” and “the order identifying, but not expressly dividing, five marital properties is appealable.” Id.

The distinction between Johnson and the case at bar is that in Johnson, the order’s lack of definition was supplied “by operation of the law.” Id. at 244. Here, however, we are only left to guess as to what the trial court might decide to do with the home should the plan to refinance fall through.

For these reasons, we hold that the appeal is one from a nonfinal order. Consequently we dismiss it “without prejudice to either party’s right to file a timely notice of appeal after a final order has been rendered by the trial court.” Demont, 24 So.3d at 700-01.

DISMISSED.

ROWE and MAKAR, JJ., CONCUR.

       The inclusion of a contingency—such as the one used in the present case—is permissible provided the consequences of the contingency are also included. Thus, if the judgment had directed that the marital home be sold and the proceeds divided between the parties if the former wife failed to obtain refinancing, the judgment would be considered final because no additional judicial labor would be required.


author: PER CURIAM. MAKAR, J.,

text:
    Lisa O. MACKOUL, Appellant, v. Carol MACKOUL, Personal Representative of the Estate of Victor P. Mackoul, Appellee.
    CASE NO. 1D16-3631
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Suzanne C. Quinonez of the Law Office of Suzanne C. Quinonez, P.A., Middleburg, for Appellant.
    Michael L. Edwards, Jacksonville, for Appellee.
   PER CURIAM.

Lisa O. Mackoul challenges the trial court’s order dissolving a lien imposed on real property belonging to her now-deceased ex-husband, Victor P. Mackoul, to secure an award of alimony. Because the lien was intended to serve as security for an ongoing stream of payments to Ms. Mackoul to minimize future economic harm to the surviving family, we reverse and remand for further proceedings.

I.

The Mackouls divorced in 2009. At that time, Mr. Mackoul was seventy-five years old and Ms. Mackoul was forty-six. The amended final judgment of dissolution awarded permanent periodic alimony of $1,000 to Ms. Mackoul, to be paid on the first day of each month “until the death of either party or remarriage of the Wife, whichever shall first occur, at which time alimony” would cease. To secure the award of child support and alimony, the judgment imposed liens on certain pre-marital real property of Mr. Mackoul.

Mr. Mackoul appealed the amended final judgment of dissolution, challenging the impositions of the liens. See Mackoul v. Mackoul, 32 So.3d 741, 742 (Fla. 1st DCA 2010). This Court determined that the record supported the requirement for such security to the extent necessary to protect the payment of alimony or- child support,' We explained as follows:

The Former Husband is 77 years old and in poor health. The Former Husband is uhinsurable but has significant 'unencumbered assets that he uses to support himself. The Former Wife would potentially be left in dire financial straits after the Former Husband’s death because she is not capable of full-time employment. The Former Wife has significant medical history resulting in some medical disability, and both parties agreed that the Former Wife needs to be home on afternoons and weekends to care for their youngest child, who has been diagnosed with a form of autism and cannot be left alone. The child also may remain [dependent] even after he reaches majority.

Mackoul, 32 So.3d at 743. However, we were unable to determine whether the amount of the security was appropriately tailored to the obligation being' secured because the trial court failed to specify “whether, in the context of alimony, the lien only secures arrearages at the time of the Former Husband’s death or if it was also intended to secure future payments in order to minimize future economic harm to the family.” Id. Accordingly, we reversed that portion of the judgment and remanded for additional findings.

On remand, the trial court held a hearing on the issue and entered an order clarifying the requirement of the security for alimony and child support (the “Clarifying Judgment”). The court found that it was “appropriate that the Final Judgment create[d] a lien on said real property, in favor of the Former Wife and the parties’ minor children, to secure- the award of child support and alimony.” The court noted Mr. Mackoul’s' poor health and Ms. Mackoul’s thirty-four-year life expectancy. The 'Clarifying Judgment states that it was the court’s intention to “secure not only arrearages at the time of the Former Husband’s death, but also to secure future payments to the Former Wife and minor children in order to minimize future economic harm to the family” based on its findings “that the Former Wife and the parties’ minor children [would] be left in dire strai[ts] if adequate security [were] not required.” The court found, in pertinent part, that “the Former Wife requires the security in the amount of $250,000 ... to secure the Former Wife’s .alimony award without incurring any additional expense and ,,,. that $150,000 is the appropriate ' amount to secure the future payments of child support and provide for the minor children’s needs.” The Clarifying Judgment was not appealed.

Approximately six years later, Mr. Mackoul passed away and his .estate moved to dissolve the lien to secure alimony. Ms. Mackoul countered with a motion to dismiss. Following a hearing, the court issued an order granting the motion to dissolve the lien regarding alimony and denying Ms. Mackoul’s motion to. dismiss. In pertinent part, the court found that (1) the Amended Final Judgment' of Dissolution provides that alimony shall terminate on the death of either party or re-marriage of Ms. Mackoul, and (2) although the Clarifying Judgment clearly states that $150,000 is the appropriate amount to secure the future payments of child support, it does not state whether the $250,000 security for alimony is for future alimony or to ensure the financial well-being of the family. The court concluded that as a result of the .terminology in the Clarifying Judgment, it appeared that only the lien for child support was to secure future payments, and the security for alimony was not for future alimony or to ensure the well-being of the family.

II.

The instant appeal centers on the interpretation of the Clarifying Judgment. Ms, Mackoul argues that the trial court erred by dissolving the lien securing alimony because the court created the security so Ms. Mackoul and the family would not find themselves destitute after Mr. -Mackoul died. Mr, Mackoul’s estate argues that the court correctly interpreted the Clarifying Judgment because the judgment does not specify that the purpose of the lien is for future alimony or to ensure the well-being of the family. We review a trial court’s interpretation of a final judgment de novo. McFatter v. McFatter, 193 So.3d 1100, 1103 (Fla. 1st DCA 2016).

Although the Clarifying Judgment is not a model of clarity, when read in context and in conjunction with this Court’s directions in Mackoul, we conclude that the Clarifying Judgment established a lien to secure both alimony arrearages and a stream of future payments to ensure the well-being of the surviving family. Specifically, the Clarifying Judgment’s discussion of Mr. Mackoul’s poor health, Ms. Mack-oul’s life expectancy, and the trial court’s expressed intention “to secure not only arrearages at the time of the Former Husband’s - death, but also to secure future payments to the Former Wife and minor children in order to minimize future economic harm to the family” support this conclusion. Additionally, it is hard to imagine that the Clarifying Judgment would have imposed a lien in the amount of $250,000 in light of Mr. Mackoul’s advanced age and declining health if the security were merely to safeguard against potential arrearages. Also, in the context of determining the amount of the lien, the Clarifying Judgment found that Ms. Mack-oul’s -life expectancy was thirty-four more years. If the lien were not intended to provide future protection to the family, Ms. Mackoul’s life expectancy would be irrelevant. In Mackoul, we remanded for the trial court to make specific findings “concerning whether, in the context of alimony,” the lien was meant to “secure future payments in order to minimize future economic harm to the family.” 32 So.3d at 743. The Clarifying Judgment tracked this language in making its findings regarding the lien for alimony and for child support.

For the foregoing reasons, we reverse the order dissolving the lien to secure alimony and remand for further proceedings consistent with this opinion.

RAY and WINSOR, JJ., CONCUR; MAKAR, J„ CONCURS WITH OPINION.

MAKAR, J.,

concurring.

I concur, but point out that the time to contest whether the lien on the property of the former husband (who is now deceased) had been sufficiently clarified was on remand from Mackoul v. Mackoul, 32 So.3d 741, 742 (Fla. 1st DCA 2010) (Mackoul I), after Circuit Judge Jean M. Johnson (also now deceased) on November 8, 2010, issued a “Final Judgment Clarifying Requirement of Security for Alimony and Child Support.” At that point, the former husband had the opportunity to seek rehearing before Judge Johnson if he deemed her clarifying judgment as non-compliant with the mandate in Mackoul I or, if she denied relief, to seek compliance with the mandate by seeking relief in this Court. Perhaps reasons existed for letting the muddled clarification order lie until after the former husband died in February 2016, and to then seek relief from the lien, but they are not apparent in the record on appeal. The successor judge’s interpretation of the situation is understandable given the ambiguous state of the court file: the final judgment says alimony ceases upon either party’s death; the original trial judge put a lien on the former husband’s property “to secure the award of child support and alimony” but didn’t specify whether it was to secure future payments or to minimize “future economic harm to the family”; and her order on remand didn’t conclusively clear up the matter. Divining what the deceased predecessor judge intended requires a degree of oracular powers the judiciary lacks, but on balance the overall purpose of the lien—as reflected in Mackoul I and the original judge’s rulings favoring the former wife and the minor child’s needs—suggests the conclusion we reach today, which is that it secures alimony arrearages as well as future payments for the family’s well-being;

      . The only issue we decide is whether the court correctly interpreted the earlier Clarifying Judgment. No party has challenged the trial court's authority to require security for alimony, and we are not asked to decide whether the trial court was correct to do so— only whether it did. Cf. § 61,08, Fla. Stat. ("To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.”); cf. also Sobelman v. Sobelman, 541 So.2d 1153, 1154 (Fla. 1989) (rejecting argument that phrase “to protect an award of alimony” is limited to protecting arrearages).

      . We note that the judge who was tasked with interpreting the Clarifying Judgment is not the judge who issued the Clarifying Judgment,


text:
    Shawn Demontre COOLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3664
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, for Appellee.
   PER CURIAM.

Shawn Demontre Cooler appeals his convictions and sentences for armed robbery, criminal mischief, and multiple grand thefts. We affirm on all the issues he raises except for one, the trial court’s imposition of discretionary costs and fines of $180 and $10 under § 775.083 and § 938.04, Florida Statutes.

We have held that trial courts imposing discretionary costs against a criminal defendant must specifically pronounce them orally at sentencing and provide the defendant an opportunity to contest them. Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). Here, the trial court orally pronounced costs and fines levied against Mr. Cooler as a lump sum, without delineating which costs were discretionary. As we have held before, a trial court may not impose discretionary costs without notifying the defendant. Id On remand, the trial court must provide notice of the discretionary costs it plans to impose upon Mr. Cooler and give him an opportunity to object to them, or it can strike them.

AFFIRMED in part and REVERSED in part.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Rossi Dejour ARMSTEAD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-4728
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed appellant’s sentences based on our en banc decision in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (Walton I), where this court held that “any mandatory minimum term required by section 775.087(2)—whether the defendant fires a gun, or only carries or displays it—shall be imposed, consecutively to any other term imposed for any other felony.” However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016).

In Williams, the supreme court said that “consecutive sentencing of mandatory minimum imprisonment terms, for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.” 186 So.Jd at 993; accord Walton II, 208 So.3d at 64. However, Williams distinguished between consecutive sentences imposed for two “qualifying felonies” pursuant to thé 10-20-Life statute as codified in section 775.087, Florida Statutes (2012), and consecutive sentences imposed for “qualifying felonies” and “non-qualifying felonies.” Williams, 186 So.3d at 992. The supreme court noted that the 10-20-Life statute “expressly mandates ... that a qualifying felony sentence run ‘consecutively to’ any sentence imposed for a non-qualifying felony.” Id.

Here, appellant was convicted of (1) principal to home invasion robbery with a firearm; (2) principal to kidnapping; and (3) principal to grand theft of a motor vehicle. Though both robbery and kidnapping may be qualifying offenses pursuant to the 10-20-Life statute, in the current case, the State charged appellant pursuant to the 10-20-Life statute only on the home invasion robbery count. § 775.087(2)(a)lg, Fla. Stat. The kidnapping in ■ appellant’s case; then, was considered a “non-qualifying offense.” Martin v. State, 190 So.3d 252, 255 (Fla. 1st DCA 2016). Thus, pursuant to Williams, because appellant was convicted of one “qualifying felony” and two “non-qualifying felonies,” the trial court would have been required to run the •sentences consecutively. ■

Here, the trial court properly ordered the sentences • to run consecutively.- We, therefore, affirm. See Martin, 190 So.3d at 255.

WOLF, MAKAR, and WINSOR, JJ., ' CONCUR.


text:
    J.F.S. III, Father of S.C., G.C., V.S., Minor Children, Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    CASE NO. 1D17-2349
    District Court of Appeal of Florida, First District.
    Opinion filed August 29, 2017
    J.F.S.III, Father of S.C., G.C., V.S., Minor Children, pro se, Appellant.

      Rebecca Kapusta, General Counsel, Florida- Department- of Children and Families, Tallahassee; Sarah J. Rumph, Appellate Counsel, Children’s Legal Services, Tallahassee, and. Kelly A. Swartz and Sara Elizabeth Goldfarb, Appellate Counsels, Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s . response to the Court’s order of June 23, 2017, the Court has determined -that its jurisdiction to. review the Final Judgment of Involuntary Termination of Parental Rights, rendered on May 12, 2016, was not invoked in a timely fashion. Accordingly, this appeal is dismissed for lack of jurisdiction. The dismissal is without prejudice to the appellant’s right to seek relief in the trial court. In the Interest of E.H., 609 So.2d 1289 (Fla. 1992).

LEWIS, RAY, and'JAY, JJ., CONCUR.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Tyrone MORGAN a/k/a Tyren Marcel Morgan, DOC #113894, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4558
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017
    ■ Tyrone Morgan a/k/a Tyren Marcel Morgan, pro se.
   ROTHSTEIN-YOUAKIM, Judge.

Tyrone Morgan appeals from the denial of his untimely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm because Morgan filed his motion more than two years after November 7, 2013, the date on which his judgment and sentence became final, and because Morgan failed to assert any cognizable exception to the two-year limitation. See Fla. R. Crim. P. 3.850(b).

However, in light of Morgan’s allegation in ground three that his trial counsel never complied with his request* to appeal—a ground upon which the postconviction court could not have ruled on the merits, see Fla. R. App. P. 9.141(c)—our affir-mance is without prejudice d) Morgan' petitioning this court for belated direct appeal pursuant to rule 9.141(c), provided that he both can allege a good-faith basis and observes the time limits prescribed 'in rule 9.141(c)(5), which would require that the petition be filed no later than November 7, 2017. See Fla. R. App.’P. 9.141(c)(5)(A) (“A petition -for belated- appeal shall not be filed more than 2 years after the expiration of time for filing the notice of appeal from a final order, unless it alleges under oath with a specific factual basis that the petitioner was unaware a notice of appeal had not been timely filed or was not advised of the right to an appeal or was otherwise prevented from timely filing the notice of appeal due to circumstances beyond the petitioner’s control, and could not have ascertained such facts by the exercise of reasonable diligence.' In no case shall a petition fpr belated appeal be filed more than 4 years after the expiration of time for filing the notice of appeal”). Any such petition for belated appeal should specifically reference this case number and the September 9, 2016, filing date of his rule 3.850 motion.

Affirmed without prejudice.

WALLACE and SLEET, JJ., Concur.

      . Although the postconviction court's order indicated that Morgan had filed his motion on September 14, 2016, the motion, pursuant to the mailbox rule, is deemed filed as of the date that Morgan relinquished it to prison officials for delivery, see Haag v. State, 591 So.2d 614, 617 (Fla. 1992), which was September 9, 2016.


author: CASANUEVA, Judge.

text:
    Yanelkis Leyva MOREJON, Appellant, v. DEPARTMENT OF REVENUE and Luis Enrique Herrera, Appellees.
    Case No. 2D16-4465
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017
    Neil Morales of Law Offices of Neil Morales, P.A., Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
    No appearance for Appellee Luis Enrique Herrera.
   CASANUEVA, Judge.

Yanelkis Morejon, the mother, appeals a final administrative support order obligating Luis Herrera, the father, to pay $400 per month in child support for their two minor children. Ms. Morejon argues that she never received notice of the hearing and that the administrative law judge erred by determining the amount of child support based on an agreement rather than the statutory child support guidelines. Accordingly, she contends that the support order must be reversed.

The Department of Revenue concedes that the record does not establish that Ms. Morejon received notice of the hearing. The Department further concedes that the support order is not supported by competent, substantial evidence and lacks the statutory findings required by section 61.30, Florida Statutes (2016). See § 61.30(l)(a) (“The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support ....”); Ervin v. Fla. Dep’t of Revenue, 152 So.3d 1261, 1264-65 (Fla. 1st DCA 2014); Finney v. Finney, 995 So.2d 579, 581-82 (Fla. 1st DCA 2008).

Consistent with the Department’s proper concession of error, we conclude that reversal is required. See Todd v. Guillaume-Todd, 972 So.2d 1003, 1007 (Fla. 4th DCA 2008) (concluding reversal was required where the final judgment failed to include “any findings as to the net income of each party as a starting point for calculating child support or explaining how the calculation was performed”). We reverse the support order and remand this matter for further administrative proceedings after proper notice, with the assistance of an interpreter if necessary.

Reversed and remanded for further proceedings.

KHOUZAM and BADALAMENTI, JJ., Concur.

      . There is no appearance by the father.


text:
    Joel Edward CHANDLER, Appellant, v. KCCS, INC., Appellee.
    Case No. 2D16-3091
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017.
    Nathan A. Carney of Carney Law Firm, P.A., Tampa, for Appellant.
    Brant Hargrove, Tallahassee, for Appel-lee.
   PER CURIAM.

Joel Chandler appeals from a final order awarding KCCS, Inc., fees pursuant to section 57.105(1), Florida Statutes (2016). We affirm the decision to award sanctions but reverse as to the amount awarded. Although there was evidence presented at the evidentiary hearing as to the hourly rate and the reasonableness of the fees, the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing. The evidence was thus insufficient to support the award. See Saussy v. Saussy, 560 So.2d 1385, 1386 (Fla. 2d DCA 1990) (“To support a fee award, there must be the following: (1) evidence detailing the services performed and (2) expert testimony as to the reasonableness of the fee.” (citing Nivens v. Nivens, 312 So.2d 201 (Fla. 2d DCA 1975))); Diwakar v. Montecito Palm Beach Condo. Ass’n, 143 So.3d 958, 960 (Fla. 4th DCA 2014) (“Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee.” (quoting Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006))). Because there was some competent evidence presented to support the award, we remand for further proceedings as to the proper amount of fees. See Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040 (Fla. 2d DCA 2015) (“[W]here the record includes some evidence supporting the fee ... award, this court may remand for further proceedings.”); Morton v. Heathcock, 913 So.2d 662, 670 (Fla. 3d DCA 2005) (reversing fee award because record did “not include the essential evidentiary support” required but remanding for additional hearing because record contained “some competent substantial evidence to support a fee award”); see also Xhelaj v. McCormick 105, LLC, 219 So.3d 989 (Fla. 2d DCA 2017).

Reversed and remanded.

VILLANTI, SLEET, and SALARIO, JJ., Concur.


text:
    Guerline Jean JAQUES a/k/a Guerline Jean-Jaques, DOC #Y51791, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2404
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017

      Howard L. Dimmig, II, Public Defender, and' Pamela H. Izakowitz, Assistant Public Defender,- Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Guerline Jean Jaques appeals the revocation of her probation and the resulting sentences in five separate circuit court cases. We reject without comment Ja-ques’s argument that the circuit court abused its discretion in revoking her probation. However, we agree—and the State properly concedes—that the circuit court erred at resentencing in failing to continue the youthful-offender status originally assigned to her in those five cases. See Ware v. State, 197 So.3d 1147, 1150 (Fla. 2d DCA 2016) (“[Fjollowing a revocation, ‘the sentencing court must maintain the defendant’s youthful offender status upon resen-tencing for a violation of probation even when the violation was substantive.’ ” (quoting Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012))). Jaques preserved this argument by moving to correct the error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2); the motion was deemed denied when the circuit court failed to timely rule on it. See Fla. R. Crim. P. '3.800(b)(2)(B). Accordingly, we affirm the circuit court’s revocation of Ja-ques’s probation and the resulting sentences but remand for the court to correct Jaques’s written. sentences to reflect her continuing youthful-offender status.

Affirmed; remanded with directions.

WALLACE and SLEET, JJ., Concur.


text:
    John G. SCHANCK, Petitioner, v. William M. GAYHART and Debra L. Buchanan, as co-personal representatives of the Estate of Myong-He Gayhart, Respondents.
    CASE NO. 1D17-2873
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Stephanie A. Sussman of Bledsoe, Jacobson, Schmidt, Wright <& Sussman, Jacksonville, for Petitioner.
    . No appearance for Respondents,
   PER CURIAM.

- The second amended petition for writ of prohibition is denied on the merits..

RAY, BILBREY, and JAY, JJ., CONCUR.


text:
    Joshua Alexander TYER, Appellant, v. STATE of Florida DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT and Maryanne Rose Walker, Appellees.
    CASE NO. 1D16-1145
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.

      Thomas L. Duggar and Daniel I. Phillips of Duggar & Duggar, PA, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C.-Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of appellee’s confession of error, we vacate the final order and remand for further proceedings.

B.L. THOMAS, C.J., and LEWIS and . , ROBERTS, JJ., CONCUR.


text:
    Susan S. KENNEDY, Appellant, v. RES-GA LAKE SHADOW, LLC, Lake Shadow Limited, LLC, and William G. Kennedy, Appellees.
    CASE NO. 1D16-4708
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017

      Robert E. McGill, III, of Robert E. McGill, III, P.A., Destín, for Appellant.
    Kyle S. Bauman and Jeffrey L. Burns of Anchors Smith Grimsley, Fort Walton Beach, for Appellee RES-GA Lake Shadow, LLC.
    No appearance for Appellees Lake Shadow Limited, LLC, and William. G. Kennedy.
   ON APPELLEE’S MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

We grant in part Appellee RES-GA Lake Shadow, LLC’s Motion for Rehearing and Clarification, withdraw our previous opinion issued on June 23, 2017, and substitute the following opinion in its place.

Susan S. Kennedy appeals an order denying her motion to vacate a writ of execution and sheriffs deed issued on her Panhandle condominium. RES-GA Lake Shadow, LLC (RES-GA), brought proceedings supplementary to execution related to a money judgment against Ms. Kennedy’s former husband. Without im-pleading Ms. Kennedy into the case, RES-GA received a writ of execution and sheriffs deed giving it a one-half interest in a condominium that Ms. Kennedy had previously been awarded in the divorce. We reverse for due process-related reasons.

I.

In February 2014, RES-GA received a $5 million judgment in Georgia against William G. Kennedy. At the time, Mr. Kennedy was married to the Appellant Ms. Kennedy, but they divorced in Alabama seven months later in September 2014. RES-GA moved to domesticate its Georgia judgment against Mr. Kennedy in Florida. And it also instituted supplementary execution proceedings directed at Mr. Kennedy’s interests in Florida, including a Sandestin condominium that he had previously owned with his wife Ms. Kennedy as tenants by the entirety. In the divorce, however, the final decree awarded Ms. Kennedy the condo as part of its wider distribution of ten real property interests that the Kennedys had owned.

In January 2015, after a hearing in the supplementary execution proceedings, the trial court approved RES-GA’s request to consider Mr. Kennedy as part owner of the Sandestin condo. RES-GA’s argument pointed to the Kennedys’ final divorce decree as the basis for claiming that Mr. Kennedy still possessed a one-half interest in the property as tenants in common with Ms. Kennedy. The court agreed with RES-GA, converted the property to a tenancy in common, and permitted RES-GA to levy on Mr. Kennedy’s apparent one-half interest in the condo. In April 2015, the court issued a writ of execution and authorized a sheriffs deed sale that ultimately conveyed RES-GA a right, title, and interest in the condo. Through all of this, Ms. Kennedy wasn’t made a party to the supplementary execution proceedings or provided notice of it, even though the divorce awarded her the condo and she possessed a substantial interest in the property.

One month after the sheriffs deed sale, Ms. Kennedy intervened to set aside the writ of execution and vacate the deed. She appealed after the court denied her request for relief.

II.

Ms. Kennedy argues on appeal that she should have been notified and impleaded into the supplementary execution proceeding before the trial court issued the writ of execution and sheriffs deed affecting the title to her condo. She is correct. Supplementary execution proceedings are designed to be “equitable in nature.” Biel Reo, LLC v. Barefoot Cottages Dev. Co., LLC, 156 So.3d 506, 508 (Fla. 1st DCA 2014) (citing Ferguson v. State Exch. Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972)). After a party initiates proceedings supplementary, a creditor may pursue assets held by the debtor, assets of the debt- or held by another, or assets that have been fraudulently transferred to another. See § 56.29, Fla. Stat. But the rights of any third party interest-holders must be accounted for by impleading them into the proceeding and allowing them to defend their interests. Biel Reo, 156 So.3d at 509. “It is well-settled that a party holding a claim adverse to both plaintiff and defendant must be brought into supplementary execution proceedings as a third-party defendant and given a full and fair opportunity to be heard before any adverse order may be entered.” Sanchez v. Century Everglades, LLC, 946 So.2d 563, 565 (Fla. 3d DCA 2006) (citing Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935)).

No rights of such third parties should be adjudged to be affected, impaired, or finally cut off by any order of court made in such proceedings supplementary to execution, unless such third parties have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims as parties entitled to a full and fair hearing after the making up of definite] issues to be tried, and not as mere spectators or bystanders in the cause.

State v. Viney, 120 Fla. 657, 163 So. 57, 60 (1935) (emphasis in original).

In this case, RES-GA submitted the Kennedys’ Alabama divorce judgment for the trial court’s review in the supplementary execution proceeding in support of its argument that the Kennedys owned the condo as tenants in common. See § 689.15, Fla. Stat. Foreign judgments like these are typically entitled to full faith and credit. See Farley v. Farley, 790 So.2d 574, 575 (Fla. 4th DCA 2001). In RES-GA’s view, the statute rendered the Kennedys tenants in common with respect to the condo after their divorce, with Mr. Kennedy’s half-interest subject to its levy. But what RES-GA’s argument missed were explicit terms within that same divorce decree awarding Mr. Kennedy’s interest in the condo fully to Ms. Kennedy: “The Wife shall be awarded the following real properties, subject to any outstanding mortgages: [the Sandestin Condo], Destín, FL.... The parties shall execute all documents necessary to carry out the terms of the Agreement. ... This Agreement shall become effective upon the date of execution hereof as evidenced by the parties’ signatures heron.” Because Ms. Kennedy was awarded the condo in the September 2014 divorce decree, the trial court’s 2015 orders in the supplementary execution proceeding should not have impaired her ownership interest without first bringing her into the case as a third-party defendant with a full and fair opportunity to be heard.

III.

For these reasons, we REVERSE and REMAND with directions to vacate the writ of execution and the sheriff’s deed as to the Sandestin condo, and for additional proceedings consistent with this opinion.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.


text:
    Bernard WHITE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-4298
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee,' for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Kelsey v. State, 206 So.3d 5 (Fla. 2016).

ROBERTS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


author: CLARK, Justice WEIMER, J., Hughes, J.,

text:
    Danielle Deon Dickerson ACURIO v. Dr. Michael Thomas ACURIO
    NO. 2016-C-1395
    Supreme Court of Louisiana.
    05/03/2017
    Rehearing Denied June 29, 2017

      WIENER, WEISS & MADISON, APC, Charles Edward Tabor; for Appellant.
    Tommy Jan Johnson; for Respondent.
   CLARK, Justice

pWe granted this writ application to resolve a split among the appellate courts of our state regarding the proper interpretation of La. Civ. Code art. 2331. Specifically, we are tasked with determining whether parties must duly acknowledge their signatures prior to the marriage in order for the matrimonial agreement to have legal effect. We find the acknowledgment of the signatures to be a form requirement, and the failure to meet all form requirements prior to the marriage renders the matrimonial agreement invalid. Accordingly, we reverse the judgment of the court of appeal and reinstate the district court judgment. We remand for proceedings consistent with this holding.

FACTS AND PROCEDURAL HISTORY

Danielle Deon Dickerson Acurio Cage, (hereinafter “the plaintiff’)) and Dr. Michael Thomas Acurio, (hereinafter “the defendant”), married on June 27,1998 for the first time. That marriage ended in divorce in 2000. On January 29, 2002, the parties married for a second time. Prior to this marriage, on January 25, 2002, the plaintiff and the defendant executed a document captioned “Prenuptial Agreement.” The document was signed by the parties before one witness and a notary. It is undisputed that the agreement was not executed by authentic act. Also, the agreement did not contain an acknowledgment of the signature of either party.

|2In 2009, divorce proceedings began. A judgment of divorce was signed and filed on October 6, 2010. Property issues were to be decided at a November 2015 trial. However, in July of 2015, the plaintiff filed a Motion in Limine to Exclude Evidence of Invalid Matrimonial Agreement, seeking to exclude the 2002 document for failure to comply with the form requirements of La. Civ. Code art. 2331.

The district court granted the motion in limine, finding the matrimonial agreement was not executed by authentic act or act under private signature duly acknowledged prior to the marriage. Specifically, the district court noted “the first acknowledgment of [the signatures] was in the deposition of [the plaintiff] on July 8, 2010.” Accordingly, it found the agreement was null and void “based upon the lack of form prior to the entering of the marriage.” The defendant appealed.

The Second Circuit Court of Appeal reversed the district court’s judgment on the motion in limine, holding the Prenuptial Agreement was valid and enforceable because spouses do not have to acknowledge their signatures prior to marriage. Acurio v. Acurio, 50,709 (La.App. 2 Cir. 6/22/16), 197 So.3d 253. The plaintiff filed the instant writ application. We granted the writ to determine whether the acknowledgment of the parties’ signatures must occur prior to the marriage in order for the matrimonial agreement to be valid. Acurio v. Acurio, 16-1395 (La. 12/16/16), 211 So.3d 1164.

DISCUSSION

Arguments of the Parties

La. Civ. Code art. 2331 provides:

A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

The plaintiff argues the spouses’ signatures must be duly acknowledged pri- or to the marriage. In. support of this argument, she contends La. Civ. Code art. 2331 must be read in conjunction with La. Civ. Code art. 2329, which provides, in pertinent part:

Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon a joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.

If spouses fail to enter into a valid matrimonial agreement before the marriage, La. Civ. Code art. 2329 requires them to jointly petition the court and obtain court approval to enter into a matrimonial agreement during marriage. According to the plaintiffs view, if the acknowledgment does not occur prior to the marriage, the agreement is not fully perfected and is, therefore, invalid. Thus, court approval would be required to enter into a matrimonial agreement post-nuptially. Reading these two articles jointly, as argued by the plaintiff, creates a temporal requirement for the acknowledgment to occur prior to the marriage.

The majority of the appellate courts in this state have agreed with the plaintiffs position. See Ritz v. Ritz, 95-683 (La.App. 5 Cir. 12/13/95), 666 So.2d 1181 (wherein the Fifth Circuit Court of Appeal invalidated a matrimonial agreement when the parties failed to duly acknowledge their signatures prior to the marriage); Deshotels v. Deshotels, 13-1406, p. 5 (La.App. 3 Cir. 11/5/14), 150 So.3d 541, 545 (wherein the Third Circuit Court of Appeal found a matrimonial agreement invalid “because the elements of form must have been perfected before the marriage” and a later “admission in court that [a spouse] signed the marriage agreement cannot act to retroactively resurrect the defective marriage agreement); Rush v. Rush, 12-1502 (La. App. 1 Cir. 3/25/13), 115 So.3d 508 (wherein the First Circuit Court of Appeal held that the spouses had to get court approval for a matrimonial agreement if the spouses had not acknowledged their signatures prior to the marriage); Lauga v. Lauga, 537 So.2d 758 (La. App. 4 Cir. 1989)(wherein Uthe Fourth Circuit Court of Appeal invalidated a matrimonial agreement for the spouses’ failure to acknowledge their signatures prior to the marriage).

Conversely, the defendant-contends the Second Circuit Court' of Appeal in the instant case correctly ruled that acknowledgment has no temporal requirement and can occur at any time. Because La. Civ. Code art. 2331 does not expressly place a time element on acknowledgment, the defendant relies on the general law of obligations. Specifically, he cites to La. Civ. Code art. 1836, which states:

An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.
An act under prívate signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.
Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.

The defendant avers the validity of the-private signature is a question of proof of the signatures by way of acknowledgment, which can be offered at any time. To support the notion that the acknowledgment is merely a matter of evidentiary proof and not an element of form, he sets forth La. Civ. Code art. 1838:

A party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his. In case of denial, any means of proof may be used to establish that the signature belongs to that party.

Analysis

Against this backdrop of oppos-' ing viewpoints, we begin our analysis with some basic tenets of civilian law. “Laws on the samp subject matter, must be inter-, preted in reference to each other.” La. Civ. Code art. 13. “All laws pertaining to the same subject matter must be. interpreted in pari materia Pierce Foundations, Inc. v. Jaroy Construction, Inc., 15-785, p. 7 (La. 5/3/16), 190 So.3d 298, 303. The legal regime of .community property is presumed. La. Civ. Code art. 2340. In light of this presumption and the strong legislative policy favoring community rights, we interpret statutory provisions which waive those rights stricti juris. (See e.g. Rush, 115 So.3d at 512; Poirier v. Poirier, 626 So.2d 868, 870 (La. App. 3 Cir, 1993), writ denied, 94-161 (La. 3/11/94), 634 So.2d 389.

We note the defendant’s argument is primarily grounded in the apparent absence of a temporal requirement for acknowledgment in La. Civ. Code art. 2331. The defendant then navigates to the general rules of obligations to reach the conclusion that acknowledgment óf a party’s signature is simply an evidentiary matter that can be proven at any time. However, we find such a departure from the applicable rules on matrimonial agreements to be erroneous. La. Civ. Code art. 1916 specifically instructs, “[nominate contracts are. subject to the special rules of the respective titles when those rules modify, complement, or depart from the rules of this title [conventional obligations or contracts].” For the reasons that follow, we find the collective rules assigned to matrimonial agreements, as nominate contracts, dictate that acknowledgment of spouses’ signatures must .occur prior to the marriage, elevating proof to a matter of form.

As noted by the plaintiff, La. Civ. Code arts. 2331 and 2329 must be read in pari materia, 'or in reference to each other. La. Civ. Code art. 2329 requires spouses wishing to enter into a matrimonial agreement during the marriage to-seek court approval. Specifically, the court must be satisfied that such an agreement “serves [the parties’] best interests and that they understand the governing principles and rules.” This requirement of .court approval highlights the legislative decision to make opting out of the presumed community property-regime a task that requires effort. Therefore, in reading these two statutes jointly, it is clear the legislature intended to make it onerous to waive one’s community property rights,! «at least to the extent that certain procedural hurdles were put in place to ensure the parties consider the consequences of entering into, a matrimonial agreement that is not favored by public policy. Thus, if procedural burdens are. placed on the spouses by way of authentic act. before marriage and court approval during marriage, it logically follows that the relaxed act of signing one’s private signature, without the accompanying, requirement of it being duly acknowledged, is disallowed.

As further evidence of this conclusion, we look 'at the context within which the “private signature duly acknowledged” language is placed: as an alternative to the authentic act. Thus, we delve into' a deeper analysis of the authentic act itself. La. Civ. Code art. 1835 provides “[a]n authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title.” An authentic act has been said to be clothed with “a presumption of genuineness.” DiVincenti v. McIntyre, 611 So.2d 140, 141 (La. App. 1 Cir. 1992). Authentic acts are afforded “a high degree of sanctity[.]” Id. For centuries now, we have recognized the convincing proof of an authentic act:

The effect given by law to authentic acts, rests upon the presumption, that a public officer, exercising a high and important trust, under the solemnity of an oath, has done his duty when acting within the scope of his authority. Selected for their character, capacity and probity, as notaries are presumed to be, the law attaches full credit to their official acts. This prerogative is established in the interest of public order, to maintain peace among men, and to prevent contestations concerning the proof or evidence of their conventions.

Succession of Tete, 7 La.Ann. 95, 96 (La. 1852). (emphasis added).

The interpretation adopted by the-defendant and the Second Circuit in the instant case is contrary to the very goal envisioned by authentic acts, which is “to prevent contestations concerning the proof or evidence” that the signatures are indeed those of the parties. Id. Instead, the result advocated by the defendant would allow parties to contest their signatures during divorce proceedings, when |7parties are most contentious, sometimes decades after the document was executed. This possibility is wholly contradictory to a “presumption of genuineness” or “full proof’ of what the thing purports to be. DiVincenti, supra and La. Civ. Code art. 1835, respectively, The presumption of validity created by an authentic act gives the document immediate legal significance. There is no suspensive condition attached which must be fulfilled before the agreement can be perfected. Likewise, it stands to reason that the requirement of acknowledgment is one with similar temporal constraints and consequences such that the proof of one’s signature is as much an element of proof as it is of required form.

The defendant would have us interpret La. Civ. Code art. 2331 as the parties’ option of executing an authentic act or executing a contract under private signature, with the acknowledgment simply amounting to a means of proving the signatures at any time. However, both the authentic act and the acknowledgment language would be rendered superfluous if all that were required were the two individuals’ signatures. As noted above, the joint reading of La. Civ. Code arts. 2331 and. 2329 evidences a legislative decision to put into place certain procedural obstacles to ensure due consideration is given to the matrimonial agreement before waiving the favored community property regime. Bearing in mind this legislative purpose, we find it would be illogical to give spouses the choice between the following unbalanced options: (1) executing a contract under such sanctified legal conditions as the requirement of a notary’and two witnesses or (2) merely placing one’s signature on a document without any external authentication. Rather, the placement of the option of “private signature duly acknowledged” within in the same bank of choices as an “authentic act” offers a window into the burden envisioned by the statute—a somewhat laborious one. In other words, it makes little sense to present as an option a heightened burden for execution of an agreement when a much less stringent one would suffice, As instructed by La. Civ.Code art. 12, the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. Thus, we find the very fact that “an act under private signature duly acknowledged” is presented as the sole alternative to an “authentic act” is a telling recognition that both methods of execution are meant to be sufficiently arduous so as to provoke thought and consideration before entering into the agreement.

Further, while we acknowledge that secondary sources are not controlling, we find the following treatise excerpt helpful and relevant: “The act under private signature duly acknowledged (also called an authenticated private act), the third type of act, is a hybrid of the authentic act and the act under private signature.” 24 La. Civ. L. Treatise, Sales § 6:14. This scholarly commentary adds support to our holding that the language “act under private signature duly acknowledged” is a term of art that is more than just the sum of its parts. Rather, it, as a whole, is a hybrid of an authentic act and an act under private signature and cannot be dissected to mean an “act under private signature” that can be separately-acknowledged later. This same treatise discussion specifically contrasts a matrimonial agreement with a general contract of sale, stating: “Although there are some agreements which are valid if confected by authenticated private act but not by private act [footnote reference to La. Civ. Code art. 2331 (matrimonial agreement) ], the sale of an immovable is permissible by private act.” This observation recognizes that a matrimonial agreement requires more than just a private act in order to be perfected, it requires “an authenticated private act”, ie., acknowledgment of the signatures. Thus, this secondary source, while not governing, lends support to our holding that the placement of the requirement of proof (“duly acknowledged”) in the same code article as the manner of execution of the act itself (“an act under private signature”) elevates an evidentiary requirement to a form one, thereby creating a temporal element. Accordingly, we lofind in order to have legal validity, a matrimonial agreement executed prior to marriage must be made by authentic act or signed and duly acknowledged prior to marriage.

Because the parties in the instant case did not acknowledge their signatures prior to their marriage on January 29, 2002, the district court correctly granted the plaintiffs motion in limine, finding the matrimonial agreement invalid for failure to comply with the form requirements of La. Civ. Code art. 2331. Any acknowledgment that occurred post-nuptially cannot be relied upon to cure a defect in form.

CONCLUSION

For the reasons expressed above and in light of the strong public policy that favors the community property regime, we hold that for purposes of La. Civ. Code art. 2331, an act under private signature must be duly acknowledged prior to the marriage to be fully perfected and given legal effect. Thus, we reverse the court of appeal judgment and reinstate the district court judgment. We remand the matter to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WEIMER, J.,

dissenting.

|, The venerable Louisiana Civil Code was written and enacted as an interrelated, complete body of private, substantive law to be read in pari materia. Authority more learned than myself remarked that our Civil Code “is supposed to be a self-sufficient and logically interdependent enactment, to be construed as a whole,” through a systematic and logical analysis of all the legislative enactments available for decision of the particular question presented. Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana, 22 La. L. Rev. 727, 728 (1961-62). By that measure, this | ^should be a case resolved through a logical and straightforward application of the relevant provisions of the Civil Code.

This case concerns the validity of a matrimonial agreement, signed by both spouses before a notary and one witness four days prior to their January 29, 2002 marriage, and acknowledged by the spouses subsequent to their marriage. La. C.C. art. 2331 addresses the matrimonial agreement and establishes the form that agreement must take:

A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

There is no dispute that the matrimonial agreement in this case was not in authentic form; therefore, the question becomes whether it was an “act under private signature duly acknowledged by the spouses” within the meaning of La. C.C. art. 2331 when it was executed prior to the marriage, but acknowledged thereafter.

The “act under private signature duly acknowledged” is not defined in Article 2331, nor in any other provision in the title on Matrimonial Regimes, but it is addressed in the title on Obligations in General, to which one is directed by the provisions of the Code itself. See, La. C.C. arts. 1915,1916, and C.C. art. 2328, Rev. comments (b). In the chapter entitled Proof of Obligations, La. C.C. art. 1836 provides:

Is An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.
An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.
Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.

Significantly, there is no provision in this article requiring that the acknowledgment occur at the same time or within a certain time of the original execution. This is consistent with the concept of the acknowledgment as a form of proof: the acknowledgment verifies that the signatures on the act are what they purport to be and, thus, adds to the reliability of the act as the document that was actually executed by the parties. Such proof is only necessary when, as La. C.C. 1831 explains, a party demands performance of the obligation or seeks to establish that the “obligation is null, or that it has been modified or extinguished.” Thus, a requirement that the acknowledgment occur contemporaneous with, or within a certain time of the execution of the act, is not only not required by the Civil Code, it is counterintui-tive to the very purpose of the acknowledgment.

The Code article to which one is directed in the absence of a specific provision in the Matrimonial Regimes title-La. C.C.art. 1836, the article defining the act under private signature duly acknowledged-imposes no temporal requirement, but rather establishes that the act of acknowledgment is a matter of proof, and not form. There is no provision in the Matrimonial Regimes title requiring that the acknowledgment of a matrimonial agreement be executed pri- or to the marriage. Thus, the logical 1 conclusion to be drawn from an analysis of the relevant Code articles is that the matrimonial agreement at issue in this case-an agreement executed prior to the marriage and acknowledged thereafter-is valid and enforceable.

This fundamental civilian approach to resolution of the issue presented is the one that was adopted by the court of appeal; and, it is the approach endorsed by the legal commentators. In fact, in the Louisiana Civil Law Treatise on matrimonial regimes, after reciting the two forms required for matrimonial agreements under La. C.C. art. 2331-an authentic act or an act under private signature duly acknowledged-the authors explain:

The alternative form is the “act under private signature that is acknowledged by the spouses.” The general rules of authentication of private acts do not provide any express time period. Consistent with the policy that the interest at stake is evidentiary rather than cautionary, it should be permissible to authenticate a matrimonial agreement at any time. No statute seems to require that the authentication occur before the marriage.
Indeed, in Acurio v. Acurio, [50,709 (La.App. 2 Cir. 6/22/16), 197 So.3d 253], the Second Circuit Court of Appeal held that a prenuptial agreement dated four days prior to the parties’ marriage was valid even though it was not acknowledged until nearly two years later. The court emphasized not only the failure of any statutes to require acknowledgment within a specific period, but also the purpose of the requirement to have the parties “recognize the signatures as their own.”

16 A. Carroll & R. Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes, § 8:7 (4th ed., Supp. 2016-17) (footnote omitted).

I ¡Nevertheless, and despite the absence of any codal provision directing that acknowledgment of a prenuptial matrimonial agreement antedate the marriage, the majority imposes such a requirement under the aegis of protecting “the strong legislative policy favoring, community rights.” Acurio v. Acurio, 16-1395, slip o.p. at 5 (La. 5/—/17). The- majority mines this policy from the provisions of La. C.C. art. 2329, which it contends must be read 'in pari materia with La. C.C. art. 2331. Id.

While it is true that laws on the same subject matter must be interpreted in reference to each other (see La. C,C. art. 13) the majority applies that precept here to the exclusion of other equally relevant provisions of the title. For example, La. C.C, art. 2328 receives no mention in the majority’s analysis. Yet, this article defines the matrimonial agreement. and further declares: “Spouses are free to establish by matrimonial agreement a regime of separation,of property or modify the -legal regime as provided by law.” La. C.C. art. 2328. Rather than evidence a “strong legislative policy. favoring community rights,” this article provides the parties with almost complete freedom of contract, relegating the provisions of the legal regime to a suppletive role. See La. C.C. art. 2328 (“The provisions of the legal regime that have not been excluded or modified by agreement retain their forcé and effect”).

Moreover, the majority’s characterization of La. C.C. arts. 2329 and 2331 as laws on the “same subject matter,” is questionable. While Article 2329 appears in the same title as Article 2331, the procedure described in Article 2329 addresses the [ (¡attempt to modify or terminate a matrimonial regime during marriage, a situation that is not implicated in this case. Simply because the legislature has made a conscious decision to make it more onerous to change the regime during marriage (once rights and obligations have attached) does not mean that the legislature intended the same with respect to agreements confected prior to marriage. Indeed, the opposite appears to be true. As noted by Professors Spaht and Samuel, members of the Advisory.Committee to the Joint Legislative Subcommittee Revising Louisiana’s Community Property Laws, the judicial approval required under Article 2329 when spouses seek to enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage was interposed as a procedural safeguard to protect the spouse whose contributions to the marriage were non-economic, from overreaching by the spouse who contributes economically. Katherine S. Spaht & Cynthia Samuel, Equal Management Revisited: 1979 Legislative Modifications of the 1978 Matrimonial Regimes Law, 40 La. L. Rev. 83, 90-91 (1979-1980). The fact that the legislature did not express the same concerns with respect to matrimonial agreements executed prior to marriage and, thus, did not extend similar solemnities and safeguards to such agreements did not go unnoticed by these same commentators:

Furthermore, Act 709[] permits matrimonial agreements to be made by an act under private signature duly acknqwl-edged by the spouses, as well as by an authentic act, whereas Act 627 [the predecessor Act] required the solemn formalities of an authentic act. An acknowledgment of the execution of a contract, unlike an authentic act, does not entail the customary reading or paraphrasing by the notaiy of the act’s contents to the parties in the presence of witnesses. The acknowledgment is thus not as likely as is an authentic act to alert a spouse to the seriousness of what he is doing. It is, therefore, surprising that the lesser formalities are |7permitted in legislation which, in its other provisions, is concerned with spousal overreaching.

Id. at p. 92.

Through its in pari materia reading of La. C.C. arts. 2329 and 2331, it appears the majority effectively interposes a requirement into the law concerning prenuptial marital agreements that is not present in the language of the article, based on a concern not expressed by the legislature. In short, there is simply no basis in the language or legislative history of La. C.C. art. 2329 for the conclusion that by requiring judicial approval of modifications or terminations of matrimonial agreements during marriage, the legislature intended to “elevatfe] proof to a matter of form,” in La. C.C. art. 2331. See, Acurio, slip op. at 5.

Ultimately, the question that is presented to this court for resolution is whether the matrimonial agreement executed by the Acurios prior to their marriage is effective as “an'act under private signature duly acknowledged by the spouses.” La. C.C. art. 2331. Despite the direct relevance of La. C.C. art. 1836 to this question, the majority attempts to limit consideration to the Code articles in the title on matrimonial regimes. It does so under the guise of La. C.C. art. 1916 and the characterization of the matrimonial agreement as a nominate contract. However, La. C.C. art. 1916 applies by its terms only if the respective title-here, the title on Matrimonial Regimes -acts to “modify, complement, or depart from” the rules of conventional obligations. La. C.C. art. 1916. As indicated above, the majority in this case simply presumes such a modification or departure (where none is expressed) based on a perceived legislative intent “to make it onerous to waive one’s community property rights” and “[enter] into a matrimonial agreement that is not favored by public policy.” Acurio, slip op. at 5-6. However, the majority’s foundational premise-that the matrimonial agreement is not|Rfavored by public policy and therefore “procedural hurdles were put in place to ensure the parties consider the consequences of entering into a matrimonial agreement”-fails to account for the fact that the legislature has moved away from imposing the legal regime on all married persons and has provided, through La. C.C. art. 2328, that spouses are now free to establish the matrimonial regime of their choice.

In any event, after eschewing resort to the code articles on general obligations, the majority turns its attention to those very articles, in particular to La. C.C. art. 1835, to argue that given the “sancti[tyj” accorded authentic acts, “it makes little sense to present as an option a heightened burden for execution of an agreement when a much less stringent one would suffice.” Acurio, slip op. at 7. However, this is precisely what the language of La. C.C. art. 2331 contemplates when it uses the disjunctive “or.” Louisiana C.C. art. 2331 provides that the matrimonial agreement “shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” (Emphasis added.) As the commentators have noted, the fact that the agreement can be executed as either an authentic act or an act under private signature duly acknowledged underscores the purpose of the requirement as one of proof rather than form:

The authentic act requirement for matrimonial agreements does not serve the typical cautionary function of the authentic act because the act may be a simple written agreement that is acknowledged at a later time. Thus, the policy behind this requirement, then, is simply an evidentiary one adding to the reliability of the writing as what was actually executed by the parties. Although normal authentication is adequate if done by one party to the agreement, Louisiana Civil Code Article 2331 requires that the act be acknowledged “by the spouses,” presumably meaning both of them.

16 Carroll & Moreno, Louisiana Civil Law Treatise:'Matrimonial Regimes, § 8:7 at p. 861-862 (footnotes omitted).

I ci“[L]egislation is the superior source of law in Louisiana.” La. C.C. art. 1, Rev. cmt. (a). When a law is clear and unambiguous and its application does not lead to absurd consequences, it must be applied as written and no further interpretation may be made in search of the legislative intent. La. C.C. art. 9. In this case, the relevant law is that contained in La. C.C. art. 2331 and in La. C.C. art. 1836 (which is made applicable by La. C.C. arts. 1915 and 2328, Rev. cmt. (b)). Contrary to the majority’s suggestion, there is nothing ambiguous about the phrase “by authentic act or by an act under private signature duly acknowledged by the spouses,” as it appears in La. C.C. art. 2331 and, thus, there is no need to go in search of a legislative intent that is otherwise clearly conveyed by the words of the relevant Code articles.

In the final analysis, under the guise of protecting the legal regime, the majority overlooks changes to our matrimonial regimes law which provide for freedom to contract for a regime of the spouses’ choice, and the clear and unambiguous language of La. C.C. arts. 2331 and 1836. Furthermore, it does so in a case in which there is no indication that the spouses did not enter into the matrimonial agreement with their eyes wide open, having married previously and divorced. Indeed, it was Mrs. Acurio who drafted the prenuptial agreement, which was signed by both parties four days prior to their marriage. Both parties have acknowledged their signatures on the matrimonial agreement and, during their marriage, they conducted .their financial lives consistent therewith (with the exception of a single business enterprise). In fact, when Dr. Acurio bought the home in which they lived with his separate funds, Mrs. Acurio appeared and signed the deed and affirmed that the house was Dr. Acurio’s separate property. She stated under oath in her deposition that she signed the agreement. Under these circumstances, it is clear that Mrs. Acurio judicially acknowledged her signature and the agreement. Because there is no requirement that the | t (Acknowledgment of the spouses’ signatures be executed prior to the marriage, it follows that the prenuptial agreement is an act under private signature duly acknowledged and is, therefore, valid and enforceable.

I respectfully dissent from the majority’s .conclusion to the contrary.

Hughes, J.,

dissenting;

hi respectfully dissent. The contract in. this case was entered into before the mar-, riage. There is no question of forgery or fraud. The plaintiff acknowledges her-signature under oath. The contract was honored for many years. To now hold that the contract under private signature, which has never been questioned over the years, is somehow invalid due to a timing requirement not found in the law will cause problems in the public record for any transactions involving the separate property of the parties that may have occurred in the interim.

The contract was complete between the parties when signed. The acknowledgment is a form of proof and does not affect the substance of the contract. The law does not supply a time requirement for when an act under private signature, duly acknowl-. edged, may be acknowledged. The important issue is whether it is acknowledged, not when. In this case the act was. acknowledged, in accord with the actual practice of the parties over the years.

      . See the Civil Code of Louisiana and Ancillaries, Revision of 1870, at v (Ralph Slovenko ed., Claitor’s Publishing Division (2nd ed. 1981)), in which Louisiana Chief Justice John Baptiste Fournet stated in the introduction:
      The uniqueness of the Louisiana civil law in the United States, and, for that matter, in world law, has long been the subject of verbal comment and learned treatises. The code in which this law is embodied has been called "the most perfect child of the civil law,” praised as “the clearest, fullest, the most philosophical, and best adapted to the exigencies of modern society,” and characterized as "perhaps the best of all modern codes throughout the world.”
      See also John T. Hood, Jr., The History and Development of the Louisiana Civil Code, 19 La. L. Rev. 18 (1958):
      Based on Roman law, modeled after the great Code Napoleon, enriched with the experiences of at least twenty-seven centuries, and mellowed by American principles and traditions, it is a living and durable monument to those who created it. After 150 years of trial, the Civil Code of Louisiana remains venerable, a body of substantive law adequate for the present and capable of expanding to meet future needs.

      .La. C.C. art. 1915 directs:
      All contracts, nominate and innominate, are subject to the rules of this title.

      . La. C.C. art 1916 provides:
      Nominate contracts are subject to the special rules of the respective titles when those rules modify, complement, or depart from the rules of this title.

      . La. C.C. art. 2328, Rev. cmt. (b) provides, in pertinent part:
      A matrimonial agreement is governed by the general rules of conventional obligations unless otherwise provided in this Title.

      . These commentators go on to distinguish and dismantle the reasoning of the appellate courts that have reached a contrary conclusion. For example, the conclusion of the Fifth Circuit in Ritz v. Ritz, 95-683, p. 12 (La.App. 5 Cir. 12/13/95), 666 So.2d 1181, that "just as all requirements of a pre-marital authentic act must be met prior to the marriage, so too, must all elements of an act under private signature duly acknowledged be done prior, or antecedent to the marriage” is dismissed by the commentators as "dictum” and lacking authority. 16 Carroll & Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes, § 8:7 at p. 861 n.14. Likewise, the result in Lauga v. Lauga, 537 So.2d 758 (La.App.,4 Cir. 1989), is called into question:
      Lauga may appear to be a. straightforward analysis of these form ánd authentication requirements, but the result may be questioned. Under the requirements for private acts "duly acknowledged,” there is no requirement that the acknowledgment be at the same time or within a certain stated time of the original execution. Thus, it s.eems that in 1986, the parties could have simply acknowledged their first agreement by appearance between a notary and two witnesses. Indeed, since their 1986 appearance before the notary was to execute what appeared to be the same agreement they executed before, it arguably constituted an acknowledgment.
      16 Carroll & Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes, § 8:7 atp. 862-63.

      . This contractual freedom is limited only by the requirement that the agreement not address matters that, are prohibited by public policy. See, La. C.C. art. 2329.

      . Through 1978 La. Acts 627, the legislature revised the laws on matrimonial regimes, repealing "head and master” and replacing it with an equal management scheme. The effective date of Act 627 was postponed, however, to allow the legislature and its Advisory Corn-mittee to make any adjustments deemed necessary once the public was introduced to the revisions. This resulted in the enactment of 1979 La. Acts 709, § 1, which contains the provisions at issue in this case. See, Spaht & Samuel, supra, at 83-84.


author: PER CURIAM WEIMER, J.,

text:
    Floyd SAFFORD v. HAMMERMAN & GAINER INTERNATIONAL, INC. and New Orleans Fire Department
    No. 2016-C-1591
    Supreme Court of Louisiana.
    05/03/2017
    PUGH, ACCARDO, HAAS,' RADECKER & CAREY, LLC, Christopher Marc Landry, Erzsebet Pifko; for Appellant.
    ROBEIN, URANN, SPENCER, PI-CARD & GANGEMI, APLC, Christina L. Carroll; for Respondent.
   PER CURIAM

liWe granted defendant’s application for a writ, of certiorari in this case on December 16, 2016. After receiving briefing from the parties and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of December 16, 2016 as improvidently granted, and we, deny the writ application.,

WEIMER, J.,

dissenting.

ItAs a matter of prudent court practice, I disagree with the majority’s decision to recall the writ. I havepreviously. explained:

In the past, I have voted to recall writs, but I have come to the conclusion this is a poor ’practice. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122 (Weimer, J., dissenting: “[A]f-ter having granted the writ, the unique facts and circumstances of this case dictate that we should resolve this matter on the merits.”). As a more recent example of my view, see Davis v. Prescott, 13-0669 (La. 11/5/13), 130 So.3d 849, 851 (Weimer, J., dissenting: “I respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits based on the issues and the record before this court.”).

George v. Dugas, 16-0710, p. 2 n.1 (La. 11/7/16), 203 So.3d 1043, 1043 n.1 (Weimer, J., dissenting).

After this court granted the writ in this matter, the parties have researched the issues, prepared briefs, and attended oral argument-all no doubt done at considerable expense in time, effort, and financial resources. Considering all this was done at this court’s direction after granting the writ, I believe -the parties deserve and are entitled to an answer on the merits from this court. Thus, I respectfully dissent from the decision .to recall the writ.