text:
    Rafael RODRIGUEZ, Appellant, v. Valerie M. RODRIGUEZ, Appellee.
    Case No. 5D16-979
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 7, 2017
   Non-Final Appeal from the Circuit Court for Orange County, Wayne C. Wooten, Judge.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Juan RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3353
    District Court of Appeal of Florida, Fifth District.
    Decision filed February 7, 2017
   Appeal from the Circuit Court for Orange County, Christi L. Underwood, Judge.

AFFIRMED.


text:
    Jeffrey HARTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-900
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 7, 2017
   Appeal from the Circuit Court for Her-nando County, Daniel B. Merritt, Jr., Judge.

AFFIRMED.


text:
    David C. GRAHAM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4050
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 28, 2017
   3.850 Appeal from the Circuit Court for Seminole County, Donna L. McIntosh, Judge.

AFFIRMED.


text:
    BONAFIDE PROPERTIES, LLC as Trustee only, Under the 5874 NE 61st CT Land Trust, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Mandoza Couture a/k/a Mandoza H. Couture a/k/a Mando Couture, Midland Funding, LLC, Silver Meadows Central Property Owners Association, Inc., et al., Appellees.
    Case No. 5D16-441
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 18, 2017
   Appeal from the Circuit Court for Marion County, Victor J. Musleh, Judge.

AFFIRMED.


text:
    Timothy T. JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-846
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 30, 2017
   3.850Appeal from the Circuit Court for Orange County, A. James Craner, Judge.

AFFIRMED.


text:
    Charles C. BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-765
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 20, 2017
   3.850Appeal from the Circuit Court for Osceola County, Elaine A. Barbour, Judge.

AFFIRMED.


text:
    Robert POWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-164
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 20, 2017
   3.850Appeal from the Circuit Court for Orange County, Keith A. Carsten, Judge.

AFFIRMED.


text:
    John STOBBE and Stephanie Stobbe, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    Case No. 5D16-684
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 20, 2017
   Appeal from the Circuit Court for Her-nando County, Richard Tombrink, Jr., Judge.

AFFIRMED.


author: Forst, J.

text:
    William Paul DABBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1890
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

Forst, J.

We deny the State’s motion-for rehearing, wherein the State relies upon an argument contrary to that raised previously. Our earlier opinion concluded that, based on the trial court’s finding that there were, discovery violations ■. at the beginning of Appellant Dabbs’ murder trial, the trial court reversibly erred in not granting a mistrial.

Because it is the “exception to the norm,” a motion for rehearing filed under Florida Rule of Appellate Procedure 9.330 “should be done under very limited circumstances.” Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100, 1101 (Fla. 4th DCA 1993). “The proper function of a [motion] for rehearing is to present to the court in clear and concise terms some point that it overlooked or failed to consider; only this and nothing more.” Dep’t of Revenue v. Leadership Hous., Inc., 322 So.2d 7, 9 (Fla. 1975) (quoting Tex. Co. v. Davidson, 76 Fla. 478, 80 So. 558, 659 (Fla. 1918)). A motion for' rehearing is “strictly limited to calling [the Court’s] attention— without argument—to something ,.. obvi- . ously overlooked or misapprehended” and “is not a vehicle for counsel or the party to continue its attempts at advocacy.” Goter v. Brown, 682 So.2d 155, 158 (Fla. 4th DCA 1996).

In its motion for rehearing, the State maintains that “[i]t is clear .., that ... no discovery violation occurred.” This is an interesting argument, inasmuch as the State’s answer brief stated that “Appellant failed to show an abuse of discretion in finding there was a discovery violation” and that “[t]he, only question ..... to be decided on appeal is. whether ‘there, is a reasonable probability that the defendant’s trial preparation or strategy would, have been materially different had the violation not occurred,’ ” An issue not raised previously cannot be raised for the first time in a motion for rehearing. Ayer v. Bush, 775 So.2d 368, 370 (Fla. 4th DCA 2000); Fiesta Fashions, Inc. v. Capin, 450 So.2d 1128, 1129 (Fla. 1st DCA 1984). Our earlier reversal opinion is rooted in the trial court’s determination that there had been a discovery violation and the answer briefs acquiescence to that holding. An “on second thought” argument made in a motion for rehearing will not be entertained.

In any case, we. cannot find an abuse of discretion in the trial court’s holding that there was a discovery violation. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (a trial court abuses its discretion “only where no reasonable man would take the view adopted”) (quoting Delno n Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)). Accordingly, the State’s argument that our opinion conflicts with Huffman v. State, 472 So.2d 469 (Fla. 1st DCA 1985), ’is rejected. In Huffman, the trial court found no discovery violation. Id. at 472. The State’s other principal argument in its motion for rehearing .is similar to its position at trial and in its answer brief:, the purported discovery violation was attributable to an: unanticipated defense introduced in Appellant’s opening argument and the totality of his defense was not proeedurally prejudiced by the .State’s discovery violation. This argument was already addressed in our opinion. A motion for rehearing should not be used “as a vehicle to reargue the merits of the court’s decision or to express displeasure with its judgment.” Whipple v. State, 431 So.2d 1011, 1013 (Fla. 2d DCA 1983).

There is some evidence in the record that the State was or should have been on notice that Appellant would rely on a self-defense argument premised on a claim that he believed the victim had access in the vehicle (where the victim whs found dead) to one' of his (the victim’s) guns. Further, we have already determined that “the trial court erred in determining that Appellant,was not proeedurally prejudiced by the State’s failure to disclose, certain evidence [and a witness, and. that the] appropriate action below would have been to declare a mistrial and conduct a new trial with a jury that had not been exposed to Appellant’s now-eviscerated theory of defense.”

We deny the State’s “request [of] the court to change its mind as to a matter which has already received the careful attention of the judges.” Reitzes, 631 So.2d at 1101 (quoting State ex rel. Jaytex Realty Co. v. Green, 105 So.2d 817, 818-19 (Fla. 1st DCA 1958)).

Denied.

Warner and Levine, JJ., concur.


author:
Ciklin, J.
      Klingensmith, J.,

text:
    CORRECTIONS CORPORATION OF AMERICA, INC., a Foreign Corporation, Appellant, v. CITY OF PEMBROKE PINES, a Florida Municipal Corporation; and CCA Properties of America, LLC, a Tennessee Limited Liability Company, Appellees.
    No. 4D14-4815
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Leonard K. Samuels, Paul S. Figg and Ashley Dillman Bruce of Berger Singer-man LLP, Fort Lauderdale, for appellant.
    Usher L. Brown and Victor Kline of Greenspoon Marder, P.A., Orlando, for ap-pellee City of Pembroke Pines.
    Alfredo Marquez-Sterling and Keith M. Poliakoff of Arnstein & Lehr LLP, Fort Lauderdale, for Amicus Curiae the Town of Southwest Ranches.
   ON MOTION FOR REHEARING

Ciklin, J.

We grant appellee’s motion for rehearing in part, withdraw our previously issued opinion, and substitute the following in its place to correct an erroneous factual reference.

Corrections Corporation of America (“CCA”) appeals a trial court order— sounding in declaratory relief—holding that the City of Pembroke Pines did not have a duty to provide water and sewer services to CCA’s property site, as well as a final order dismissing CCA’s counterclaims. Because we find that Pembroke Pines affirmatively expressed its intention to assume such a duty, we reverse the order determining that Pembroke Pines did not. Because it appears the trial court dismissed CCA’s counterclaims based on its determination that Pembroke Pines did not have a duty to CCA, we also reverse the order dismissing CCA’s counterclaims.

Background

CCA sought sewer and water services from Pembroke Pines for its property located in the Town of Southwest Ranches but adjacent to Pembroke Pines (“the CCA site”). Pembroke Pines operates potable water and sewer systems that service properties within its boundaries, as well as some properties outside of those boundaries. Those services provided outside of the boundaries extend to a limited number of residential and commercial properties. Southwest Ranches does not have potable water or sewer systems to service its residents, and Pembroke Pines is the only provider in the area. The CCA site is surrounded by four other properties, all of which are, or were at one time, serviced by Pembroke Pines’ water or sewer systems (or both). Only one of these properties is actually located within the boundaries of Pembroke Pines. At all times relevant to this dispute, Pembroke Pines admitted that it had the capacity and infrastructure in place to provide water and sewer services to the CCA site through its systems that abut the site.

In 2005, CCA and Southwest Ranches entered into an agreement concerning the development of a correctional facility on the CCA site. The agreement provided that “all required water, sewer and other utility services are available” at the CCA site. CCA was advised that while a water and sewer agreement with Pembroke Pines would be required, it was unclear whether the Pembroke Pines City Commission would grant those services. However, later in 2005, Southwest Ranches entered into an interlocal agreement with Pembroke Pines regarding local roadways and other matters (“Roadways ILA”), in which Pembroke Pines agreed not to interfere with the development or operation of CCA’s jail facility:

Jail Facility. [Pembroke Pines] shall not interfere with [CCA’s], or its successors or assigns, development and/or operation of the jail facility, or with [Southwest Ranches]’s Agreement with [CCA] concerning development of same.

In 2011, Immigration and Customs Enforcement (“ICE”) tentatively selected the CCA site to build a new detention facility. A few days later, Pembroke Pines and Southwest Ranches entered into another interlocal agreement concerning emergency medical and fire services (the “EMS ILA”) that provided, in pertinent part:

Jail Facility: [Pembroke Pines] acknowledges that it has sufficient capacity to deliver emergency medical protection and fire prevention services to [Southwest Ranchesj’s future 2,500 bed detention/corrections facility, located on property currently owned by [CCA]. [Pembroke Pines] agrees to timely provide Broward County, upon request, any documentation that Broward County may require to acknowledge that Pembroke Pines has the capacity, ability, and the willingness to service this facility under the terms and conditions contained herein.... Further, [Pembroke • Pines] agrees that it has sufficient capacity to provide water and sewer service to [Southwest Ranches]’s future 2,500 bed detention/corrections facility (approximately 500,000 gross square feet of floor area), and that it will expeditiously approve a water/waste water utility agreement to provide such service, at [Pembroke Pines Ys then pre-. vailing rate, in accordance with state law ([Pembroke Pinesj’s rate + surcharge).

(Emphasis added). In a special meeting on June 27, 2011, the Pembroke Pines City Commission voted on and approved the EMS ILA in Resolution No. 3312.

Some five months later, in December 2011, the City Commission passed yet another affirmative motion, that one being “to , approve direction that, should CCA come forward with a request for Pembroke Pines to provide them water and sewer service, that the water and sewer agreement stipulate that it would be for not more than 1,500 beds based on the Engineer’s report” (the “December 2011 Motion”). , CCA then submitted to Pembroke Pines a proposed Water and Sewer Installation and Service Agreement (the “W & S Agreement”) for a 1,500-bed facility, and requested that the matter be finalized at the first available City Commission meeting. Pursuant to the EMS ILA, the Pembroke Pines city attorney and the Pembroke Pines city manager agreed on the contractual terms with CCA and the W & S Agreement was then submitted to the City Commission. In an abrupt departure from the numerous manifestations of intent expressed by the Pembroke Pines City Commission over the previous six years, the City Commission did not vote on the W & S Agreement and quite to the contrary, formally adopted a resolution expressing its opposition to erecting the ICE detention center on the CCA site. In a later meeting, the City Commission voted to both terminate the EMS ILA and, because it was “in doubt as to its rights and obligations,” and to direct the city attorney to seek declaratory relief.

In its action for declaratory judgment, Pembroke Pines sought a ruling that it was not required to provide CCA with water and sewer services or, if it was required to provide utility services, a determination of “whether there1 [were] any limitations on the obligation to provide service.” Following trial, the court entered an order determining that Pembroke Pines did not, in.fact, have a duty to provide water and sewer services to CCA.

Analysis

On appeal, CCA argues that Pembroke Pines assumed a legally enforceable duty to provide the CCA site with those services by expressly manifesting a desire or intent to provide the services. CCA maintains the evidence at trial established that the ongoing conduct of Pembroke Pines created a duty to provide utilities. As such, the trial court’s rulings concerned a question of fact that “must be sustained if supported by competent substantial evidence.” Bellino v. W & W Lumber & Bldg. Supplies, Inc., 902 So.2d 829, 832 (Fla. 4th DCA 2005) (quoting State v. Glatzmayer, 789 So.2d 297, 301 n.7 (Fla. 2001)). We agree with CCA.

As a general rule, “a municipality has no duty to supply services to areas outside its boundaries.” Allen’s Creek Props., Inc. v. City of Clearwater, 679 So.2d 1172, 1174 (Fla. 1996). In Allen’s Creek, the Florida Supreme Court recognized exceptions to this general rule where (1) a municipality has agreed to extend its services by contract, and (2) where a municipality has assumed a duty to provide such services through its conduct. Id. at 1175-76.

With- regard to.the conduct exception, the court explained:

According to the jurisdictions that recognize this exception, a municipality that holds itself out as a public utility for a particular area outside its city limits has a duty to supply everyone in that area....
. We agree that through .-its conduct a municipality may-assume the legal duty ■ to provide reasonably adequate services for reasonable compensation to all of the ..public in an unincorporated area. See City of Winter Park v. Southern States Utilities, Inc., 540 So.2d 178, 180 (Fla. 5th DCA 1989) (city’s passage of ordinance requiring property owners outside the city but within-a zone designated by the ordinance to connect to the city’s sewer service when available was conduct sufficient to bring into effect law applicable to public utilities). We add however that the conduct must expressly manifest the municipality’s desire or intent to assume that duty. A municipality’s decision to provide service without restriction in an area outside its boundaries would meet this requirement.

Id. at 1176 (emphasis added).

Allen’s Creek presents a scenario somewhat similar to the one at hand. There, Allen’s.Creek owned a parcel of land located, in the unincorporated area of Pinellas County, but adjacent to Clearwater. Id. at 1174. When Allen’s Creek submitted a site development plan to Pinellas County, Pi-nellas officials, directed Allen’s Creek to Clearwater for sewer services because the parcel was -located within Clearwater’s sanitary sewer service district. Id. Clear-water informed Allen’s Creek that it would have to consent to annexation before receiving sewer services. Id. Allen’s Creek declined and filed suit for declaratory judgment. Id.

• On appeal to the Florida Supreme Court,-Allen’s -Creek argued that the conduct exception to the general rule applied, as Clearwater had assumed an obligation to provide - sewer service in its designated service area through the Central Pinellas County 201 Facilities Plan ■ (“201 Plan”) and its interlocal agreement with the City of Largo. Id. at 1175-76. The interlocal agreement between Clearwater and the City of Largo designated-service areas and stated, “The parties shall have the exclusive right to provide wholesale and retail sanitary sewer service within the area allocated to such part and further agree not to compete with each other as to the provision of such sewer service outside their designated area.” Id. at 1175.

The 201 Plan was created in connection with the Federal Water Pollution Control Act of 1972, the goal of which was “to eliminate the discharge of pollutants into navigable waters by 1985,” and a provision of which was federal “funding for the research and development of wastewater treatment management plans.” Id. at 1174. Within the 201 Plan, “service areas” were designated “to determine the scope of facilities needed in the future.” Id. Allen’s Creek’s property was within Clearwater’s service area as designated by the plan. Id. Clearwater approved the 201 Plan by local resolution in 1978, but the EPA rejected it, so the plan was never implemented and Clearwater proceeded with development of alternative methods for wastewater disposal. Id.

The supreme court declined to extend the conduct exception to Allen’s Creek, reasoning:

[.NJothing in either the Plan or agreement affirmatively states that Clear-water mil provide services to the unincorporated area. 'Nor do these agreements preclude those located outside Clearwater’s city limits but within its service area from seeking services from an alternative source,
... We find that the agreements- entered by Clearwater in this case did- not affirmatively express the City’s intent to supply sewer service to the unincorporated portion of its sewer service area. Nor did Clearwater engage in any other conduct that expressed the intent to serve this area.

Id. at 1176-77 (emphasis added). The court concluded that Clearwater’s annexation requirements were therefore permissible, so long as the requirements were reasonably justified and consistently applied. Id.

While similar to the facts of the instant case, Allen’s Creek is somewhat distinguishable. There, the 201 Plan and inter-local agreement on which Allen’s Creek relied were in place before it requested service from the city, As an apparent consequence, the court looked to the agreements at issue for “affirmative[ ] state[ments] that Clearwater will provide services to the unincorporated area.” Id. at 1176. In other words, the court reviewed the documents for expressions of Clearwater’s intent to provide utility services to anyone located within the specific, unincorporated service area. Id.

Here, on the other hand, CCA relies on documents specifically addressing the CCA site. Applying Allen’s Creek to the agreements at hand, we find direct expressions of intent to provide services to the area at issue in the EMSILA:

Jail Facility: ... [Pembroke Pines] agrees to timely provide Broward County, upon request, any documentation that'Broward County may require to acknowledge that Pembroke Pines has the capacity, ability, and the willingness to service this facility .'... Further, [Pembroke Pines]'agrees that it has sufficient capacity to provide water and sewer service to [Southwest Ranches]’s future 2,600 bed detention/corrections facility (approximately 500,000 gross square' feet of floor' area), and that it will expeditiously approve a water/waste water utility agreement to provide such service, at [Pembroke Pines ]⅛ then ‘prevailing rate, in accordance with state law ([Pembroke Pines]’s rate + surcharge).

(Emphasis added). By including a statement that it would “approve a water/waste water agreement to provide such service,” Pembroke Pines affirmatively and expressly manifested its desire and intent to assume that duty.

Further, although they may not constitute affirmative expressions of intent to provide water and sewer service, other actions of the City of Pembroke Pines indicated its willingness to provide services to the CCA site. Pembroke Pines provided these services to all surrounding sites. Also, knowing that it was the only water and sewer service provider in the area, Pembroke Pines agreed in the Roadways ILA that it “shall not interfere with [CCA’s] ... development and/or operation of the jail facility.” Finally, Pembroke Pines indicated its willingness to provide these services by the City Commission’s passage of the December 2011 motion to direct CCA to limit its request for water and sewer services to a 1,500-bed facility.

In fact, Pembroke Pines’s procedures as outlined in its Code of Ordinances support our finding of an express manifestation of intent. The Code specifies that “property located outside the city limits shall not be allowed to connect to a city utility system unless the connection is authorized by the City Commission,” and that “[n]o action of the Commission ... shall be valid or binding unless adopted by the affirmative vote of three (3) members of the Commission.” See Pembroke Pines, Fla., Code of Ordinances §§ 3.07(e), 50.10(B). While the Commission did not vote on CCA’s proposed W & S Agreement, which provided the negotiated terms and conditions of utility services, it did vote on and approve the EMS ILA in Resolution No. 3312, in which the City agreed that it would approve a water/wastewater utility agreement. As a consequence of the City Commission’s approval of the EMS ILA, CCA may have reasonably expected that Pembroke Pines’s agreement to provide utility services was valid and binding.

Respectfully, the dissent misses the point and instead focuses its analysis on the question of whether a basic enforceable contract was formed (or whether it was just “an agreement to agree”) to reach its conclusion that Pembroke Pines is not bound to provide water and sewer services to CCA. We are bound by the principles of law outlined in Allen’s Creek, which clearly elevate the issue in this particular case beyond simple contractual interpretation. The ILA is not a contract between the parties to this action, and therefore analysis of it as such is misplaced and is simply an irrelevant exercise. Allen’s Creek does not direct us to ascertain the enforceability of the ILA as a contract; instead, it compels us to look for conduct that “expressly manifests] the municipality’s desire or intent to assume that duty.” See 679 So.2d at 1176. We find such an express manifestation in the language of the EMS ILA and in the City Commission’s passage of a resolution approving the EMS ILA—plus the numerous other forms of assent discussed herein.

Consequently, we find that the conduct exception to the general rule that a municipality has no duty to supply services to areas outside its boundaries applies in the instant case. We reverse the trial court’s determination to the contrary.

Reversed and remanded for further proceedings.

Taylor, J., concurs.

Klingensmith, J., dissents with opinion.

Klingensmith, J.,

dissenting.

Although municipalities typically do not have a duty to supply services to areas outside their boundaries, I recognize that a municipality may be required to supply services outside its boundaries if its conduct expressly manifested the desire or intent to assume such a duty. See Allen’s Creek Props., Inc. v. City of Clearwater, 679 So.2d 1172, 1174-76 (Fla. 1996). However, this exception, which is rooted in the concepts of detrimental reliance and estop-pel, does not apply here. CCA could not reasonably claim detrimental reliance because Pembroke Pines never expressly manifested its desire to such an extent as to impose the duty of providing services to the CCA site. Accordingly, I dissent from the majority’s opinion.

In the EMS ILA, Pembroke Pines expressed only a nascent willingness to service some future facility. The stated desire to “expeditiously approve a water/waste water utility agreement” was insufficient to constitute an affirmative, express manifestation of Pembroke Pines’ unreserved intent. Rather, the language of the EMS ILA was only an implicit expression of possible future intent, devoid of an affirmative expression of present intent resembling a formal enactment of an ordinance or resolution. The EMS ILA is best described as nothing more than an “agreement to make an agreement,” which is unenforceable under Florida law. See Irby v. Mem’l Healthcare Grp., 901 So.2d 305, 306 (Fla. 1st DCA 2005).

After the EMS ILA was approved, CCA submitted to Pembroke Pines a proposed Water & Sewer Agreement for a 1,500-bed facility, requesting that the agreement be finalized at the next City Commission meeting because CCA knew that any water and sewer connection for the CCA site would ultimately require formal approval by a vote of the City Commission. However, the City Commission never approved the agreement for services with CCA. Instead, the City Commission voted to adopt a resolution expressing its opposition to erecting the ICE detention center on the CCA site.

Thus, CCA proceeded on the incorrect assumption that Pembroke Pines could not change its collective mind on its willingness to agree to provide utility services, failing to consider that it is not uncommon for a municipality to embark on a prospective plan of action only to later reverse course due to its citizens’ disapproval. Respect for the separation of powers precludes us from substituting our own collective judgment for that of Pembroke Pines’ elected leaders who are, and must remain, accountable to their citizens for any policy decisions they make.

Moreover, although Pembroke Pines previously provided some utility services to customers outside its boundaries, it did so only in limited situations. In light of CCA’s awareness that compliance with the applicable provisions of the Code of Ordinances was required, these circumstances on the whole did not amount to an affirmative expression of Pembroke Pines’ unreserved intent to assume the duty of providing utility services to the CCA site. See Allen’s Creek, 679 So.2d at 1176 (“Providing service outside its boundaries in only limited situations, as Clearwater has done here, does not amount to an affirmative expression of intent to serve all in the area.”)..

To conclude, this new majority opinion discusses nothing of significance that was overlooked the first time we considered the issue. That-the City Commission formally approved -the EMS ILA does not change its wording; all that happened was that the City Commission approved at-that point an unenforceable -“agreement to agree.” The majority’s opinion should give every local government in this state considerable pause, as it now holds that a city cán' now be bound by its mere favorable expressions of future intent despite no formal approval by the city’s governing body, no contract, and no estoppel created by detrimental reliance.- Which, it seems, is plenty for the-majority to find that an enforceable duty was created against Pembroke Pines. This “plenty,” however, “is plenty of nothing, and, apparently, nothing is plenty for' th[is] Court.” See Bank Markazi v. Peterson, — U.S. —, 136 S.Ct. 1310, 1335, 194 L.Ed.2d 463 (2016) (Roberts, C.J., dissenting).

      . One of the properties was a women’s prison, which is no longer operational. Another property is a future county jail site. Pembroke Pines also provides water and sewer services to Everglades National Park, which is located outside of the boundaries, and near the CCA site.

      . The court clarified that the use of the word '‘exclusive” to describe the service areas is misleading, because Allen’s Creek could have sought services from alternative sources. Id. at 1176 n.5.

      . In fact, section 50.10(B) of the Pembroke Pines Code of Ordinances (2012), states that "property located outside the city limits shall not be allowed to connect to a city utility system unless the connection is authorized by the City Commission.” This authorization can only occur as provided by section 3.07(e) of the Charter of the City of Pembroke Pines, which states, "[n]o action of the Commission ... shall be valid or binding unless adopted by the affirmative vote of three (3) members of the Commission.”


author: Gross, J.

text:
    Joseph VIERA, Alicia Viera, Paige Viera, Joey Viera, Lynn Demchak Viera and Joseph Viera and Lynn Demchak on behalf of Christopher Demchak, Appellants, v. CITY OF LAKE WORTH, FLORIDA, a municipal corporation, Appellee.
    No. 4D16-3172
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Ryan J. Wynne of Slinkman, Slinkman & Wynne, P.A., Jupiter, for appellants.
    Glen J. Torcivia and Matthew L. Rans-dell of Torcivia, Donlon, Goddeau & Ansay, P.A., West Palm Beach, for appellee.
   Gross, J.

Section 112.19, Florida Statutes (2015), provides benefits to certain officers connected with law enforcement. Appellant Joseph Viera, a former law enforcement officer with the City of Lake Worth, sought section 112.19(2)(h)l. benefits from the City. The circuit court dismissed his case on the ground that the statute of limitations barred his claim. Because section 112.19(2)(h)l. creates a statutory entitlement to benefits to be paid out periodically over time, we hold that the trial court erred in dismissing the portion of his claim that accrued after January 8, 2006,

Section 112.19 provides benefits to law enforcement officers who are killed or injured- in the. line of duty. Section 112.19(2)(h)l. entitles a catastrophically injured employee and his family to -receive health insurance benefits. That statute provides:

Any employer who employs a full-time law enforcement, correctional, or correctional probation officer who, .on or after January 1, 1995, suffers a catastrophic injury, as defined in s. 440,02, Florida Statutes 2002, in the line of duty shall pay the entire premium of the employer’s health insurance plan for' the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be dependent for support, or the child is a full-time or part-time student and is dependent for support, The term “health insurance plan” does not include supplemental benefits that are not part of the basic group health insurance plan. If the injured employee subsequently dies, the employer shall continue to pay the entire health insurance premium for the surviving spouse until remarried, and for the dependent children, under the conditions outlined in this paragraph. However:
a. Health insurance benefits payable from any other source shall reduce benefits payable under this section.
b. It is unlawful for a person to willfully and knowingly make, or cause to be made, or to assist, conspire with, or urge another to make, or cause to be made, any false, fraudulent, or misleading oral or written statement to obtain health insurance coverage as provided under this paragraph. A person who violates this sub-subpara-graph commits a misdemeanor of the first degree, punishable-as provided in s. 775.082 or s. 775.083.
c. In addition to any' applicable criminal penalty, upon conviction for a violation as described in sub-sub-'paragraph b., a law enforcement, correctional, or correctional probation officer or other beneficiary who receives or seeks to receive health insurance benefits under this paragraph shall forfeit the right to receive such health insurance benefits, and shall reimburse the employer for all benefits paid due to the fraud or other prohibited activity. For purposes of this sub-subparagraph, “conviction” means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld.

(Emphasis supplied).

Viera suffered catastrophic injuries which rendered him permanently and totally disabled. Due to his injuries, he separated from employment with the City as a “disability retiree,” effective June 22, 2001. After December 10, 2002, Viera had no personal or group health insurance coverage. Viera reached a workers’ compensation settlement with the City in 2008.

On January 8, 2010, Viera, along with his dependent children, filed a declaratory relief action seeking (1) a declaration that the City did not perform its statutory duty of paying for health insurance coverage under section 112.19(2)(h)l., Florida Statutes; (2) an order directing the City to pay for future health insurance coverage; and (3) an award of damages for the money appellant had to pay for health insurance coverage from December 2002 plus interest.

The City moved for summary judgment based on the statute of limitations and other-grounds. The City argued that Vi-era’s cause of action accrued, at the latest, in 2002, when the City ceased paying for his health insurance premiums; thus, applying the four-year statute of limitations, the City asserted that Viera had until 2006 to bring the action, so his 2010 complaint was untimely.

•The circuit court granted the City’s motion for summary judgment on statute of limitations grounds. The court expressly declined to reach the City’s sovereign immunity argument.

Nothing in the record suggests that the City would have satisfied its section 112.19(2)(h)l. obligation to “pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee” by making one lump sum payment. Such a one-time payment would have been practically impossible to compute because it would have been difficult to establish Vi-era’s life expectancy, and payments would have continued after his death to his wife and children. Government health insurance benefits are typically paid periodically over time; section 112.19(2)(h)l. contemplates such periodic payments when it states that, after the death of the employee, “the employer shall continue to pay the entire health insurance premium for the surviving spouse until remarried, and for the dependent children.”

Where a “statute impostes] a continuing obligation to pay benefits, separate causes of action arise from the failure to make payments that come due at different times.” Tucker v. John Galt Ins. Agency Corp., 743 So.2d 108, 112 (Fla. 4th DCA 1999). Thus, the Supreme Court has held that for statute of limitations purposes, “a cause of action for an insurer’s failure to pay personal injury protection [PIP] benefits accrued at the time the insurer breached its obligation to pay, which was 30 days after the insurer was furnished written notice of a covered loss under the applicable [PIP] statute. Id. (citing State Farm Mut. Auto. Ins Co. v. Lee, 678 So.2d 818, 820-21 (Fla. 1996)).

The periodic statutory payment obligation in this case is akin to contracts involving debts payable by installments. In Bishop v. State, Div. of Ret., 413 So.2d 776, 777-78 (Fla. 1st DCA 1982) the first district characterized the relationship between a retired state employee and the Division of Retirement as a contractual one. Id. at 778. The court held that for statute of limitations purposes, the underpayment of a retired employee’s monthly retirement payment would constitute “a continuing breach of contract,” so that a separate cause of action arose with each underpayment. Id.; see also Greene v. Bursey, 733 So.2d 1111, 1114 (Fla. 4th DCA 1999); Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1043-44 (11th Cir. 2014) (applying “continuing violation principle” to a restrictive covenant running with the land).

Applying Bishop, Tucker, and Lee to this case, a separate cause of action accrued each time the City failed to make a periodic payment required by section 112.19(2)(h)1.

Viera filed his case on January 8, 2010. While the four year statute of limitations had run on any loss prior to January 8, 2006, the statute did not bar any claims arising thereafter.

We reject Viera’s argument that the City had an obligation to notify him of the benefits available to him under section 112.19(2)(h)l. Nothing in section 112.19 imposes a duty on the employer to notify an employee of his or her .rights under the statute.

We do not reach the issue of the City’s sovereign immunity because the circuit judge did not rule on that basis. Similarly, we have not passed on any other issue concerning either entitlement to or computation of damages under the statute.

Reversed in part and remanded.

Warner and Taylor, JJ., concur.

      . Section 112.19(l)(a) defines employer as meaning
      a state board, commission, department, division, bureau, or agency, or a county, municipality, or other political subdivision of the state, which employs; appoints, or otherwise engages the services of law enforcement, correctional, or correctional probation officers.

      . For the purpose of the summary judgment, the City accepts the statement of these facts in the light most favorable to Viera.


author: PER CURIAM

text:
    Donald DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-671
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Donald Davis, Jr., Crawfordville, pro se,
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM

This is an appeal from the trial court’s order below granting in part and denying in. part'Appellant’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On. appeal, Appellant argues that the. trial court erred when it modified his sentence without holding a resentencing hearing, We agree, and remand for resentencing. See §' 775;082(3)(c), Fla. Stat. '(2016); § 921.l402(2)(d), Fla. Stat. (2016); see also Kelsey v. State, 206 So.3d 5, 10-11 (Fla. 2016) (“Because we determine that resen-tencing is the appropriate remedy, the trial courts may embrace all of the provisions of chapter 2014-220 [which was codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes] and are not required to limit themselves to only applying the judicial review provision.”). The trial court’s order is otherwise affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORPY, EVANDER, and EISNAUGLE JJ., concur.


author: ROTHSTEIN-YOUAKIM,-Judge.

text:
    The LEILA CORPORATION OF ST. PETE, a Florida corporation; Susan J. Agia, individually and as trustee of the Susan J. Agia Living Trust; and Dr. Raymond Agia, Appellants, v. Fareed OSSI; Ossi Consulting Engineers, Inc., a Florida corporation; and Ossi Construction, Inc., a Florida corporation, Appellees.
    Case No. 2D15-3279
    District Court of Appeal of Florida, Second District.
    Opinion filed July 21, 2017
    Rehearing Denied November 8, 2017

      Arnold D. Levine and Robert H. Mac-Kenzie of Levine & Sullivan, P.A., Tampa, for Appellants.
    Stuart Jay Levine and Heather A. De-Grave of Walters, Levine, Klingensmith & Thomison, P.A., Tampa, for Appellees.
   ROTHSTEIN-YOUAKIM,-Judge.

The Leila Corporation ófi St.'Pete (Leila Corp), Susan J. Agia, individually and in her capacity as trustee of the Susan J. Agia Living Trust (the Trust), and Dr. Raymond Agia (collectively, the Defendants) appeal from a final judgment in favor of Fareed Ossi, Ossi Consulting Engineers, Inc. (O.C.E.), and Ossi Construction, Inc. (collectively, the Plaintiffs). The Defendants failed to timely appeal with respect to matters included in the original final judgment, which they challenge in Issues I, II, III, VI, and VII of their brief on appeal. Therefore, with respect to those issues, we dismiss the appeal for lack of jurisdiction. The Defendants timely appealed, however, with respect to the award of prejudgment interest included in the amended final judgment, which they challenge in Issues IV and V. With respect to those issues, we affirm the determination of entitlement to prejudgment interest but reverse‘as to the amount.

FACTUAL HISTORY

The seeds of the dispute underlying this appeal were sown in 1993, when Dr. Agia transferred an undeveloped piece of property to the Trust and began planning with Ossi and Ossi’s company, O.C.E., to construct a condominium on it. Dr. Agia and Ossi did not enter into a written contract for Ossi’s services.

In 2005, Mrs. Agia and Ossi created Leila Corp. Mrs. Agia held a seventy-five percent interest in Leila Corp, and Ossi held the remaining twenty-five percent. The Trust sold the property to Leila Corp for $5,850,000. Leila Corp funded the purchase, in part, via a promissory note in favor of the Trust in the amount of $2,850,000; the remainder was financed by a bank loan that Ossi personally guaranteed. Leila Corp then entered into an oral contract with Ossi Construction (owned by Ossi’s son, Robert) for the construction of the condominium. During construction, additional capital contributions were deemed necessary. Ossi could not come up with his proportionate share, so Mrs. Agia paid both her share and Ossi’s share.

When construction was complete, Dr. and Mrs. Agia purchased one unit in the condominium for fair market value. Then the bottom fell out of the real estate market. Prospective buyers were unwilling to pay the asking price for the units, and the parties began to squabble.

In 2009, Ossi and O.C.E. filed a complaint in Hillsborough County against Leila Corp, Mrs. Agia, individually and in her capacity as trustee of the Trust, and Dr. Agia; the Defendants filed an answer and affirmative defenses and a counterclaim. Meanwhile, a separate foreclosure action with multiple attendant cross-claims had been filed in Pinellas County. By agreement of the parties, Ossi Construction’s cross-claim against Leila Corp and Leila Corp’s cross-claims against Ossi Construction were severed, transferred to Hillsbor-ough County, and subsumed within this suit. A nonjury trial was held on all claims in July 2012. The trial court denied everyone’s claims based on unclean hands, and everyone appealed. This court reversed. See Leila Corp. of St. Pete v. Ossi, 138 So.3d 470 (Fla. 2d DCA 2014).

On September 30, 2014, the trial court rendered a final judgment after remand that, in short, awarded lost profits to Ossi per Count I of the first amended complaint in the Hillsborough County action, awarded O.C.E. payment for its construction administration services per Count V of that complaint, and awarded Ossi Construction its unpaid construction charges per Count II of its cross-claim in the Pinellas County action. The court denied any relief on all other claims, counterclaims, and cross-claims before it in the two actions.

On October 9, 2014, the Plaintiffs moved to amend or correct the final judgment to include prejudgment interest and to correct an apparent scrivener’s error, specifically, that the judgment failed to identify Mrs. Agia individually as a judgment debt- or with respect to Ossi’s award of lost profits in the “conclusion” section of the judgment. The Plaintiffs identified in their motion the trial • exhibits that supported their position concerning the dates from which prejudgment interest should be calculated. The Defendants replied and objected to the motion and, on October 13, 2014, moved for rehearing of the final judgment. On November 7, 2014, the trial court entered orders denying the Defendants’ motion for rehearing and granting the Plaintiffs’ motion to include prejudgment interest and to correct the scrivener’s error. On the same date, the trial court entered an amended final judgment that included awards of prejudgment interest and inserted Mrs. Agia’s name in the appropriate paragraph in the “conclusion” section of the final judgment.

On November 20, 2014, the Defendants moved to vacate and for rehearing of the amended final judgment. In that motion, they argued that the trial court should not have awarded prejudgment interest without first holding a hearing at which they could have contested the dates governing the amount of interest awarded. The Plaintiffs responded that an evidentiary hearing was unnecessary because the computation of prejudgment interest is merely mathematical. They again identified the eviden-tiary bases for the dates on which they relied and also included tables setting forth the statutory interest rates in effect at the relevant times within those dates.On July 7, 2015, the trial court denied' the Defendants’ motion to vacate and for rehearing. ,

On July 17, 2015, the Defendants filed their notice of appeal from the November 7, 2014, amended final judgment and from the July 7, 2015, denial of their motion for rehearing.

JURISDICTION

On appeal, the Defendants raise seven arguments, five of which (raised in Issues I, II, III, VI, and VII) are directed to findings of fact and conclusions of law that were included in the September 30, 2014,’ final judgment after remand. We conclude, however, that we lack jurisdiction to consider the Defendants’ challenges to any issues addressed in that original final judgment because their notice of appeal was untimely as to those issues. Although the Defendants contend that their November 20, 2014, motion to vacate and for rehearing of the November 7, 2014, amended final judgment tolled the time for filing a notice of appeal as to matters adjudicated in the original final judgment, we disagree. The only substantive difference between the original final judgment and the amended final judgment was the addition of the awards of prejudgment interest, and, like an award of attorney’s fees, “the issue of prejudgment interest does not alter the substance of the underlying final judgment.” Westgate Miami Beach Ltd. v. Newport Operating Corp., 55 So.3d 567, 575 (Fla. 2010) (explaining that although prejudgment interest is not incidental to final judgment like attorneys’ fees and costs, they are all matters for judge, rather than finder of fact, to calcu-. late and award and are all calculated at completion of ease). Thus, where only prejudgment interest is added in an amended judgment, an appeal from that judgment does not “reach back to the original judgment” but perfects an appeal only from the award of prejudgment interest. See Janelli v. Pagano, 492 So.2d 796, 797 (Fla. 2d DCA 1986) (“[Wjhere only attorney’s fees are added in an' amended .judgment, an appeal from that judgment does not .reach back to the original judgment but only brings the propriety of the attorney’s fees up for review.”).

It follows, therefore, that a motion for rehearing of the amended final judgment does not reach back to matters adjudicated in the original final judgment. Thus, the matters adjudicated in the original final judgment were ripe for appeal upon the trial court’s November 7, 2014, denial of the Defendants’ motion for rehearing of the original final judgment, see Fla. R. Ápp. P. 9.020(i)(l), and, as to those matters, the Defendants’ July 17, 2015, notice of appeal was plainly untimely, see Janelli, 492 So.2d at 796-97. Accordingly, we dismiss the Defendants* appeal for lack of jurisdiction except as to Issues IV and V pertaining to the awards of prejudgment interest.

PREJÚDGMENT INTEREST

The original final judgment awarded the following damages: (1) $662,500 in lost profits to Ossi (per Count I of the first amended complaint in the Hillsborough County action); (2) $322,050 in unpaid construction-administration-services costs to O.C.E. (per Count V of the first amended complaint in the Hillsborough County action); and (3) $204,687.15 in unpaid construction costs to Ossi Construction (per Count II of the cross-claim in'the Pinellas County action). The amended final judgment added to those damages awards the following awards of prejudgment interest: (1) $310,040.92 to Ossi’s award of lost profits; (2) $106,648.04 to O.C.E.’s award of unpaid construction-administration-services costs; and (3) $73,073,45 to Ossi Construction’s award of unpaid construction costs.

The Defendants challenge the awards of prejudgment interest on. due process and equitable grounds. "We review the awards de novo. See Wood v. Unknown Pers. Representative of Estate of Burnette, 56 So.3d 74, 76 (Fla. 2d DCA 2011).

A. Due Process

As an initial matter, the Defendants assert that the Plaintiffs failed to plead entitlement to prejudgment interest. The record, however, squarely rebuts this assertion—Ossi and O.C.E. demanded interest in the first amended complaint, and Ossi Construction demanded prejudgment interest in connection with its cross-claim from the Pinellas County action. See Napp v. Carman, 576 So.2d 361, 362 (Fla. 4th DCA 1991) (explaining that plea for “interest” can only refer to prejudgment interest “as the' matter of postjudgment interest is governed by statute and need not be pled”). And regardless: “prejudgment interest is merely an element of damage. It does not need to be specially pleaded.” See RDR Comput. Consulting Corp. v. Eurodirect, Inc., 884 So.2d 1053, 1055 (Fla. 2d DCA 2004), implicitly overruled on other grounds by Lamb v. Matetzschk, 906 So.2d 1037 (Fla. 2005), as recognized in Easters v. Russell, 942 So.2d 1008, 1009 n.1 (Fla. 2d DCA 2006). “[W]hen a verdict liquidates damages on a plaintiffs out-of-pocket, pecuniary losses, plaintiff is entitled, as' a matter of law, to prejudgment interest at the statutory rate from the' date of that loss.” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla. 1985).

The Plaintiffs’ timely motion to amend or correct the final judgment to include prejudgment interest preserved the trial court’s jurisdiction to award it. See Jaye v. Royal Saxon, Inc., 900 So.2d 634, 635 (Fla. 4th DCA 2005) (noting that specific reservation of jurisdiction to address attorney’s fees in final order is not required so long as timely motion for fees is filed); Emerald Coast Commc’ns, Inc. v. Carter, 780 So.2d 968, 970 (Fla. 1st DCA 2001) (“[T]he failure to award prejudgment interest is an error which can be corrected by a motion for rehearing.”), abrogated on other grounds by Westgate Miami Beach, 55 So.3d 567. Although the amended final judgment did not include any findings as to the dates of loss, we assume that the trial court accepted the dates set forth in the Plaintiffs’ motion to amend or correct the final judgment to include prejudgment interest. In that motion, the Plaintiffs asserted that (1) .the date of loss applicable, to Ossi’s award of lost profits was September 21, 2007, which was the date on which the parties’ increased, extended loan would have matured and after which the parties would have realized their profit upon paying off the loan; (2) the date of loss applicable to O.C.E.’s award of unpaid construction-administration-services costs was December 19, 2008, which was the -date on which O.C.E. had submitted a claim for payment to Dr. Agia; and (3) the date of loss applicable to Ossi Construction’s award of unpaid construction costs was September 24, 2008, which was the date on which Ossi Construction had filed a valid claim of lien for unpaid “labor, services, or materials and related work for construction” of the condominium project.

The Defendants argue that the trial court denied them due procéss by awarding the Plaintiffs their requested prejudgment interest without conducting a hearing at which the. Defendants could challenge the asserted dates of loss. The Plaintiffs’ motion to amend, however, identified the. specific trial exhibits that established those dates, and, notwithstanding their repeated protestation that they were denied an opportunity to be “heard,” the Defendants never actually challenged those dates despite opportunities to do so in. their reply and objection to the Plaintiffs’ motion to amend or correct the final judgment and in their motion to vacate and for rehearing of the amended final judgment. Indeed, they do not even do so on. appeal. Accordingly, they have failed to establish a denial of due process on that basis.

B. Equitable Reduction of Prejudgment Interest

As noted above, on October 11, 2012, the trial court rendered judgment denying relief to all parties, and-.this court subsequently reversed and remanded for further proceedings, resulting in the September 30, 2014, judgment for the Plaintiffs. In their amendment to their motion to vacate and for rehearing of the amended final judgment, the-Defendants argued, as they argue on appeal, that the trial court should have excluded from the prejudg-mentrinterest calculus.the period between rendition of the original judgment and rendition of the final, judgment after remand. The Defendants argued that such equitable relief was warranted because until that judgment on September 30, 2014, there had been no judgment in favor of the Plaintiffs and because, during that approximately two-year period, the Defendants (and everyone else) had been powerless to conclude the litigatiou by obtaining a trial court judgment. -

The Plaintiffs suggested that such equitable relief was unavailable, and the trial court denied the amendment without elaboration. Consequently, it is not clear to us that the trial court understood that it did, in fact, have the discretion to reduce the awards of prejudgment interest based on equitable considerations. Although the Plaintiffs argue that such considerations are inconsistent with the “loss theory” of damages employed in Florida courts, the supreme court has explained:

[T]he general rule concerning the payment of prejudgment interest [is]: “[0]nce damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss.” This general rule is not absolute.... “[interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.” We did not recede from this principle in Argonaut Insurance or Kissimmee Utility Authority [v. Better Plastics, Inc., 526 So.2d 46 (Fla. 1988) ]. Further, in Ball v. Public Health Trust, 491 So.2d 608 (Fla. 3d DCA 1986), the Third District Court of Appeal allowed prejudgment interest but restricted the date it commenced to the date of demand or the commencement of the lawsuit, whichever occurred first. The district court did so on equitable grounds, relying on our decision in First State Bank v. Singletary, 124 Fla. 770, 169 So. 407 (1936). As noted by these decisions, the law is not absolute and may depend on equitable considerations.

Broward County v. Finlayson, 555 So.2d 1211, 1213 (Fla. 1990) (third alteration in original) (emphases added) (citation omitted) (first quoting, in part, Kissimmee Util. Auth., 526 So.2d at 47; and then quoting, in part, Flack v. Graham, 461 So.2d 82, 84 (Fla. 1984)). The First District Court of Appeal most recently recognized this exception in Arizona Chemical Co. v. Mohawk Industries, Inc., 197 So.3d 99 (Fla. 1st DCA 2016):

As an exception to the general rule set forth in Argonaut, courts sometimes calculate prejudgment interest from a date later than the date of the plaintiffs actual loss, where unique facts and considerations of fairness militate against calculating prejudgment interest from the date of actual loss. The trial court in this case did not address the question of whether equitable considerations might justify moving the prejudgment interest date forward. Therefore, we cannot tell whether the court determined that the equities were not in Arizona’s favor or whether the court declined to recognize an equitable exception to the general prejudgment interest rule.

Id. at 105 (citations omitted); see also Volkswagen of Am., Inc. v. Smith, 690 So.2d 1328, 1331 (Fla. 1st DCA 1997) (“The Argonaut decision did not establish an inflexible rule that requires trial judges to' assess prejudgment interest in every case regardless of the circumstances. Depending on the equities of a given case, an award of prejudgment interest may be a windfall to the plaintiff and an unfair burden on the defendant.”).

CONCLUSION

Accordingly, we vacate the awards of prejudgment interest and remand for the trial court to consider whether the Defendants have set forth an equitable basis for reducing the awards. Having so considered, the trial court may reinstate the vacated awards or may reduce them in the manner that the Defendants request or in any manner it deems just , and equitable.

Dismissed in part; affirmed in part; vacated in part; remanded.

CASANUEVA and CRENSHAW, JJ., Concur.

      . Having transferred the property to the Trust, Dr. Agia no longer had any legal interest in it; nor does he have any position with or legal interest in Leila Corp. Nonetheless, Dr. Agia is named as a defendant and counter-plaintiff in the pleadings, participated in all of the proceedings in this case, and is named in the final judgment. Neither party addresses this apparent incongruity in this appeal.

      . The initial pleadings in the Hillsborough County action, including the amended complaint and the amended counterclaim, repeatedly referred to actions undertaken by Ossi Construction, although Ossi Construction was not a party to those proceedings. The pleadings also contain several instances of a repeated scrivener’s error in which "Ossi Construction” appears where “Ossi Consulting Engineers” was clearly intended. In any case, Ossi Construction was eventually added as a party when the cross-claims from the Pinellas County action were severed and transferred to the Hillsborough County case.

      . In the body of the final judgment, the trial court explicitly determined that Ossi was entitled to relief on his claim against Mrs. Agia. Thus, we readily conclude that the omission of Mrs. Agia’s name from the conclusion section of the original final judgment was, in fact, merely a scrivener’s error.

      . That is especially true where, as here, the party seeking rehearing of the amended final judgment has already unsuccessfully sought rehearing of the original final judgment. See Matamoros v. Infinity Auto Ins. Co., 177 So.3d 682, 684 (Fla. 3d DCA 2015) (observing . that prohibition against successive motions for rehearing is "well-established and unassailable”).


author: LaROSE, Chief Judge.,

text:
    Moses MCCRAY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D17-332
    District Court of Appeal of Florida, Second District.
    Opinion filed August 4, 2017
    Rehearing Denied December 1, 2017

      Howard L. Dimmig, II, Public Defender, Robert A. Young, General Counsel, and David' Horton, Assistant Public Defender, Bartow, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Senior Assistant Attorney General, Tampa, for Respondent.
   LaROSE, Chief Judge.,

, Moses McCray suffers from mental illness. Accordingly, the trial court adjudicated him incompetent to proceed to,trial. He now petitions for a writ of certiorari quashing the trial court’s order entered following our decision in McCray v. State, 200 So.3d 1296 (Fla. 2d DCA 2016). In particular, Mr. McCray seeks relief from that portion of the order imposing “appropriate release conditions” pursuant to Florida Rule of Criminal Procedure 3.212(d). We have jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(2), and we deny the petition.

Background

The State charged Mr, McCray with burglary and related theft offenses. The trial court adjudicated, him, incompetent to proceed. .Mr. McCray has not been restored to competency.

Following his adjudication, of incompetency, Mr. McCray filed an unsuccessful motion to dismiss the information. The trial court, however, continued a program of conditional release pursuant to section 916.17, Florida Statutes (2014). Mr, McCray filed a certiorari petition.(Petition I), arguing that the trial court’s order departed from- the essential requirements of law. See Gonzalez v. State, 15 So.3d 37, 39 (Fla. 2d DCA 2009) (“To obtain common law certiorari relief, ‘a petitioner must show that there has been a departure from the essential requirements of law that causes material and. irreparable harm.” (citing Reynolds v. State, 963 So.2d 908, 909 (Fla. 2d DCA 2007))).

We granted in part and denied in part Petition I. McCray, 200 So.3d at 1296-97. Specifically, we quashed the portion of the order continuing Mr. McCray’s conditional release. We reasoned that because he “did not qualify for involuntary commitment under section 916.13,” he was ineligible “for placement on conditional release under section 916.17 as a matter of statutory text.” Id. We also denied Mr. McCray’s request to dismiss the information “because fewer than five years have elapsed since .the original determination that Mr. McCray was incompetent to proceed due to mental illness,” Id. at 1297 (citing § 916.146).

Following our opinion in McCray, the trial court conducted a hearing and entered the order that prompted the instant certiorari proceeding (Petition II). The order before us: (1) struck the prior order placing Mr, McCray on conditional release pursuant to section 916.17; (2) imposed many" of those same conditions relying on rule 3.212(d); and (3) denied Mr, McCray’s renewed motion to dismiss pursuant to section' 916,146,

Certiorari Petition

In Petition II, Mr. McCray claims that the trial court’s order ignores our McCray opinion' because it simply 'reimposes many of the same conditions of release. More specifically, Mr. McCray contends that because rule 3.212 is procedural, it does not control over the explicit language of section 916.13, which allows for his involuntary commitment only if he meets certain criteria. This includes if “[tjhere is a substantial probability .that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.” § 916.13(l)(c). He also, maintains that the order disregards the doctrines of res judi-cata and the law of the case. We cannot accept any of his premises for relief..

Analysis

Mr. McCray asserts that the trial court improperly imposed liberty-limiting conditions pursuant to rule 3.212(d) to achieve the purposes of statutory conditional release, for which Mr. McCray did not qualify.

As an initial matter, we observe that “[cjertiorari review is proper when it is alleged that the circuit court’s interpretation of a statute violates clearly established law or when it fails to follow the dictates of a statute, and the error is sufficiently egregious as to result in a miscarriage of justice.” In re Asbestos Litig., 933 So.2d 613, 616 (Fla. 3d DCA 2006); cf. Fassy v. Crowley, 884 So.2d 359, 363-64 (Fla. 2d DCA 2004) (“A departure from the essential requirements of the law necessary for the issuance of a writ of certio-rari is something more than a simple legal error. There must be a violation of a clearly-established principle of law resulting in a miscarriage of justice.” (citing Combs v. State, 436 So.2d 93, 95-96 (Fla. 1983))). But, upon a thorough review of the record, we must conclude that Petition II cannot stand.

In Mr. McCray’s situation, “[t]he proper course when an incompetent defendant does not meet the criteria for commitment, and cannot be restored to competency, is for the State to initiate civil commitment proceedings under the Baker Act or for the court to release the defendant ’on appropriate conditions’ as provided in Rule 3.212(d).” Dep’t of Children & Family Servs. v. Amaya, 10 So.3d 152, 157 (Fla. 4th DCA 2009) (emphasis added) (citing Abreu-Gutierrez v. James, 1 So.3d 262, 267 (Fla. 4th DCA 2009)); see also Dep’t of Children & Families v. State, 201 So.3d 78, 79 (Fla. 3d DCA 2015) (stating that because the respondent was ineligible for involuntary civil commitment under the Baker Act, “[b]y default, the only option the trial court had available to provide placement ... was through ... Florida Rule [] of Criminal Procedure[] 3.212(d)”). Accordingly, consistent with McCray, the trial court exercised its informed judgment to craft a solution balancing'Mr. McCray’s liberty interests with the need to provide for his own protection, as well as that of the public. See Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014) ("Florida Rules of Criminal Procedure 3.210-3.212 were enacted to set forth the required competency hearing procedures for determining whether a defendant is competent to proceed or has been restored to competency.” (citing Mora v. State, 814 So.2d 322, 333 (Fla. 2002))); see also Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So.3d 73, 78 (Fla. 2012) (“Article V, section 2(a), of the Florida Constitution grants this Court the exclusive authority to adopt rules of judicial practice and procedure for actions filed in this State ,...” (citing Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000))).

The trial court’s order avoids imposition of conditional release under section 916.17. McCray, 200 So.3d at 1296-97. Instead, the trial court imposed “appropriate conditions,” several of which are specifically enumerated in rule 3.212(d):

If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions. The court may order that the defendant receive outpatient treatment at an appropriate local facility and that the defendant report for further evaluation at specified times during the release period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed by the court to make such evaluations, with copies to all parties. The procedure for determinations of the confidential status of reports is governed by Rule of Judicial Administration 2.420.

Fla. R. Crim. P. 3.212(d); see also State v. Miranda, 137 So.3d 1133, 1142 (Fla. 3d DCA 2014) (“Rule 3.212(d) allows a court to order appropriate release conditions for up to a year, including outpatient treatment at an appropriate local facility and reporting for further evaluation, if a defendant is not mentally competent but does not meet the criteria for commitment.” (quoting Graham v. Jenne, 837 So.2d 554, 559 (Fla. 4th DCA 2003))).

Seemingly, Mr. McCray does not challenge the propriety of the conditions imposed. Rather, he contends that the trial court lacked authority to impose them after our opinion from Petition I. Our earlier opinion made no specific mention of rule 3.212, and, thus, we cannot conclude that the trial court ignored our mandate.

To the contrary, the trial court studiously endeavored to comply with our mandate. Significantly, the order before us provides that “the Department of Children and Families has no further obligation to monitor future compliance with this Order.” Therefore, the trial court was at once dutiful to our McCray opinion, while also eliminating any concern that the Department would be tasked with any responsibilities beyond those required by the law. See Amaya, 10 So.3d at 154 (“Certiorari jurisdiction lies to review [the Department’s] claim that the trial court has acted in excess of its jurisdiction by ordering [the Department] to undertake responsibilities beyond what is required by statute.”); Dep’t of Children & Family Servs. v. State, 124 So.3d 430, 432-33 (Fla. 2d DCA 2013) (“A court that commits a defendant in violation of [section 916.13] improperly encroaches on the legislature’s authority to prescribe the limits of an agency’s obligations and on an agency’s obligation to expend its appropriated funds in accordance with the laws governing that agency.”).

The State did not seek conditions of release under rule 3.212(d) prior to our issuance of McCray. Contrary to Mr. McCray’s position, however, the law of the case did not preclude the State from raising the argument for the first time following issuance of McCray. The law of the case doctrine requires “that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) (citing Greene v. Massey, 384 So.2d 24, 28 (Fla. 1980)). “The law of the case doctrine applies only to issues actually considered and decided in a prior appeal involving the same case.” Bloco, Inc. v. Porterfield Oil Co., 990 So.2d 578, 581 (Fla. 2d DCA 2008) (citing Analyte Diagnostics, Inc. v. D’Angelo, 792 So.2d 1271, 1272 (Fla. 4th DCA 2001)). Stated differently, the scope of the law of the case is “limited to rulings on questions of law actually presented and considered on a former appeal.” U.S. Concrete Pipe Co. v. Bould, 487 So.2d 1061, 1068 (Fla. 1983); see also Gabor v. Gabor & Co., 599 So.2d 737, 738-39 (Fla. 3d DCA 1992); Gibson v. Maloney, 263 So.2d 632, 635 (Fla. 1st DCA 1972).

The applicability of rule 3.212(d)’s conditions was neither raised nor addressed in Petition I. Thus, our disposition in McCray did not foreclose the State from raising the argument anew upon release of the opinion. See, e.g., Arch Se. Commc’ns, Inc. v. Abraham Commc’ns, Inc., 702 So.2d 556, 558 (Fla. 2d DCA 1997) (holding that prior per curiam affirmance of the trial court’s decision denying motion to compel arbitration, was not “law of the case” concerning whether buyer and seller entered into valid oral agreement settling disposition of escrowed money); Harbour Club Condo. No. Three, Inc. v. Sauder, 380 So.2d 449, 450 (Fla. 2d DCA 1979) (holding that mandate did not preclude the trial court from considering unconscionability argument on remand because that issue had not been decided by the trial court nor considered by this court in the first appeal).

Nor did the res judicata doctrine stop the State from raising the rule 3.212 argument on remand. As the Florida Supreme Court has explained:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which - might with propriety have been litigated and determined in that action.

Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984) (emphasis added) (quoting Wade v. Clower, 114 So. 548, 552 (1927)). As the prevailing party in the proceedings precipitating our McCray opinion, the State could not, and logically would not, have sought affirmance based upon an argument that was neither raised below nor preserved for appeal. See Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (“[A] reviewing court will not consider points raised for the first time on appeal.”); Archer v. State, 613 So.2d 446, 448 (Fla. 1993) (“For an issue to be preserved for appeal, however, it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved,’ ” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985))).

For the foregoing reasons, Mr. McCray’s concern that the trial court was prevented from imposing appropriate release conditions pursuant to rule 3.212(d) following remand from our McCray opinion, is without merit.

Petition denied.

CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.

      , Specifically, the trial court ordered that Mr. McCray continue to reside with his mother, continue to take his prescribed psychotropic medication, avoid the use or possession of alcohol or nonprescribed controlled substances, not own or possess a firearm or weapon, and report for further mental health evaluations.


author: WALLACE, Judge.

text:
    Charles CLARK, DOC #474089, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5292
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017
    Rehearing Denied December 6, 2017

      Charles Clark, pro se.
   WALLACE, Judge.

Charles Clark appeals the summary denial of his postconviction motion filed under Florida Rule of Criminal Procedure 3.800(a). Although we affirm the postcon-viction court’s order in all respects, we write to explain our reasoning.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

In December 1996, a jury convicted Mr. Clark of three crimes: (1) count one, attempted second-degree murder with a weapon;; (2) count two, robbery with a deadly weapon; and (3) count three, obstructing an officer without violence. The information alleged that each of the' three crimes was committed on September 6, 1996.

The crime of attempted second-degree murder charged in count one is a second-degree felony. See § 782.04(2), Fla. Stat. (Supp. 1996); § 777.04(4), Fla. Stat. (1996). However, the crime of attempted second-degree murder was reclassified as a first-degree- felony based on the jury’s finding that Mr. Clark committed the offense with a weapon. See § 776.087(1), Fla. Stat. (Supp. 1996). The trial court sentenced Mr, Clark as a habitual felony offender (HFO) to life in prison on counts one and two and to time served on count three. Mr. Clark took a direct appeal of his judgment and sentences, and this court affirmed, Clark v. State, 719 So.2d 293 (Fla. 2d DCA 1998) (table decision). After the affirmance of bis judgment and sentences, Mr. Clark has filed several prior postconvietion motions;

In his most recent rule 3.800(a) motion, Mr. Clark raises two claims. First, he argues that his sentence on count one is illegal because the jury did not make the requisite finding that he carried, displayed, used, or threatened to use a weapon to support the reclassification of the conviction for attempted second-degree murder from a second-degree felony to a first-degree felony. See § 775,087(l)(b). As part of his first claim, Mr. Clark also alleges that “section 775.087(1) does not permit vicarious enhancement.” Second; Mr. Clark alleges that although he qualified for sentencing on count one as an HFO, his sentence could not exceed the thirty-year HFO maximum for a second-degree felony because the jury’s finding was insufficient.

The postconviction court summarily denied both of Mr. Clark’s claims. On the first claim, the postconviction court ruled that the crime of attempted second-degree murder was properly reclassified as a first-degree felony because the verdict form sufficiently reflected “a clear finding that Defendant committed the charged crimes with a weapon.” The postconviction court denied Mr. Clark’s second claim as successive.

II. DISCUSSION

A. The First Claim

The postconviction court properly denied Mr. Clark’s first claim because the attempted second-degree murder charged in count one was properly reclassified from a second-degree felony to a first-degree felony. The Florida Supreme Court has held that in a case in which there is only one defendant, reclassification is proper as long as there is “a clear jury finding” that the defendant used a weapon or firearm. Tucker v. State, 726 So.2d 768, 772 (Fla. 1999) (quoting State v. Hargrove, 694 So.2d 729, 731 (Fla. 1997)) (holding that the jury’s verdict that the defendant was “guilty of attempted first degree murder with a firearm” was sufficient to support reclassification under section 775.087(1) where there was only one defendant and assailant). Here, there is no indication that Mr. Clark has á codefendant or that another assailant was involved in the underlying events.' The information attached to the postconvictidn court’s" order alleged ‘that Mr. Clark, not someone else, struck the victim with “a brick and/or shovel.” Furthermore, as was the case in Tucker, the verdict' form attached to the order under review clearly referenced the' use of a weapon in the commission 'of the' offense. See Tucker, 726 So.2d at 772. Under these circumstances, the jury’s finding that Mr. Clark used a weapon was sufficient to support the reclassification of the offense from a second-degree felony to a first-degree felony. To the extent that Mr. Clark argues' that- the crime charged in count one was subject to improper “vicarious enhancement,” the claim is without merit because Mr. Clark did not have a codefendant. See State v. Rodriguez, 602 So.2d 1270, 1271 (Fla. 1992) (“[S]ection 775.087(1) does not, by its terms, allow for vicarious enhancement, because of the action of a codefendant.”). Thus, the postcon-viction court properly denied Mr. Clark’s first claim.

B. The Second Claim

In his second claim, Mr. Clark asserted that—despite his sentencing as an HFO— he could not properly be sentenced to more than thirty years in prison. The post-conviction court denied Mr. Clark’s second claim as successive. However, the .order of June 2015 that the postconviction court attached to the order under review as support for its ruling reflects that Mr. Clark previously alleged a different error, claiming that.the trial court’s oral pronouncement of sentence did not comport with the written sentence. This is not the claim that he asserts in his current claim.

Nevertheless, the second claim lacks merit. As noted above, the offense of attempted second-degree murder with a weapon alleged in count one of the information was properly reclassified as a first-degree felony. Section 775.084(4)(a)(l) provides that a trial court “may sentence the habitual felony offender ... [i]n the case of a life felony or a felony of the first degree, for life,” Mr. Clark does not argue that he did not qualify for an HFO sentence. Thus, because he was convicted of a first-degree felony and qualified as an HFO, he was properly sentenced to life in prison on count one of the information.

III. CONCLUSION

For the foregoing reasons, we affirm the postconviction court’s order that summarily denied Mr. Clark’s rule 3.800(a) motion.

Affirmed.

CRENSHAW and BADALAMENTI, JJ., Concur.


author: EMAS, J.

text:
    The BANK OF NEW YORK MELLON CORPORATION as Trustee, etc., Appellant, v. Alejandro O. ANTON, Appellee.
    No. 3D15-2213
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Rehearing Denied October 18, 2017
    Akerman LLP, Nancy M. Wallace (Tallahassee), William P. Heller (Fort Lauder-dale) and Eric M. Levine (West Palm Beach), for appellant.
    Matthew Estevez, for appellee.

      Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

Appellant, The Bank of New York Mellon Corporation (BONYM), appeals the trial court’s order granting summary final judgment in favor of appellee, Alejandro 0. Anton. For the reasons that follow, we reverse.

On October 29, 2009, BONYM filed a complaint to foreclose on residential property owned by Anton, alleging that BO-NYM “has not been paid the payment due August 1, 2008, and all subsequent payments, which has resulted in a default of the note and mortgage.” In its complaint, BONYM “declares the full amount due under the note and mortgage to be accelerated.” On December 5, 2011, the trial court dismissed this action for lack of prosecution.

On December 19, 2014, BONYM filed a second action to foreclose on Anton’s property. The complaint in the second foreclosure action alleged that Anton “has defaulted on the promissory note and mortgage by failing to pay the payment due on August 1, 2008, and all subsequént payments.” BONYM again declared the' full amount due under the mortgage and note to be accelerated.

Thereafter, Anton filed a motion for summary judgment, contending that the second foreclosure action was barred by the five-year statute of limitations. See § 95.11(2)(c), Fla. Stat. (2009). The trial court entered final judgment in favor of Anton. In doing so, the • trial court took judicial notice of the pleadings filed in the first foreclosure action and concluded; ■

There is no genuine issue of material fact. Plaintiff clearly and unequivocally accelerated all sums due under the subject promissory note on October 29, 2009—the date it filed its prior Complaint for Foreclosure. Plaintiffs prior foreclosure suit was subsequently dismissed without prejudice, for lack of prosecution. As such, the applicable statute of limitations expired on October 28, 2014—5 years after the cause of action accrued. See Section § 95.11(2)(c), Fla. Stat. The instant suit to foreclose the mortgage was filed December 14, 2014— after the Statute of Limitations expired.

This appeal follows.

Upon our de novo review, Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000), we hold that the trial court’s entry of summary judgment was erroneous. The trial court found that, because the payments due under the note and mortgage were accelerated by the filing of the first action in October 2009, the second action (commenced more than five years later, in December 2014) was barred by the statute of limitations.

However,- this reasoning was rejected by the Florida Supreme Court in Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016), and by this court in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc).

In Bartram, 211 So.3d at 1019, the Florida Supreme Court addressed the appliea-bility of the statute of limitations after a foreclosure complaint (in which the sums due under the note and mortgage were accelerated) had been involuntarily dismissed: .

[W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation,, to accelerate all sums then due under the note and mortgage.
Consistent with the reasoning of Singleton [v. Greymar Associates, 882 So.2d 1004 (Fla. 2004) ], the statute of limitations on the balance under the note and mortgage would not -continue to run after an • involuntary dismissal, and- thus the mortgagee, would not -be barred by the statute of limitations from filing a successive foreclosure action premised on a “separate and distinct” default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked.

The Court further held:

[T]he Bank’s first foreclosure action was involuntarily dismissed, and therefore there was no judicial determination that a default actually, occurred. Thus, even if .the note had been accelerated through the Bank’s foreclosure complaint, the dismissal of the foreclosure action had the effect of revoking the acceleration. By^the express terms of the reinstatement provision, if, in the month after the dismissal of the foreclosure action, Bar-tram began to make monthly .payments on the note, the Bank could not have subsequently accelerated the entire npte until' there were future defaults: Once there were future defaults, however, the Bank had the right to file a subsequent foreclosure action—and to seek acceleration of all sums due under the note-—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.

Id. at 1021 (emphasis added).

Therefore, BONYM’s allegation in the second complaint—that Anton defaulted by failing to make payment on August 1, 2008 “amd all subsequent payments”—satisfies Bartr'am’s pleading requirement that the second “foreclosure action was based on a subsequent default, and the statute of limitations had not run on' that particular default.” Id.

Given the allegation that 'Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (he., August 1, 2008), is of no moment: by alleging that Anton failed to make.the payment due on August 1, 2008 “and all subsequent payments,” the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014. See Dhanasar v. JPMorgan Chase Bank, N.A. 201 So.3d 825 (Fla. 3d DCA 2016) (holding that “[bjecause the Bank’s complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments, and the action was filed within five years of a default payment,” the action-was not barred by the statute of limitations); Desylvester v. Bank of New York Mellon, 219 So.3d 1016, 1018 (Fla. 2d DCA 2017), (holding that where second foreclosure action alleged the same initial default date as the first (dismissed) foreclosure action and complaint alleged, additionally, that the borrowers defaulted by failing to make the payment due on October 1, 2008, “and all subsequent payments due thereafter ... borrowers were in a continuing state of default at the time of the filing of the complaint” and the action was not barred by the statute of limitations). See also Forero v. Green Tree Servicing, LLC, No. 1D16-2151, 223 So.3d 440, 2017 WL 2989493 (Fla. 1st DCA July 14, 2017); Klebanoff v. Bank of New York Mellon, 228 So.3d 167, 2017 WL 2818078 (Fla. 5th DCA June 30, 2017); Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), review granted, No. SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016).

We therefore hold that BONYM’s second foreclosure action was not barred by the five-year statute of limitations.

Reversed and remanded.

      . The trial court’s final order was rendered on August 26, 2015, and at that time the trial court was bound by, and faithfully followed, the then-existing precedent of this court as set forth in the initial panel decision in Deutsche Bank Trust Co. Americas v. Beauvais, 40 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 17, 2014), superseded on rehearing en banc Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016). On appeal, of course, we are governed by the 2016 en banc decision in Beauvais, as well as the Florida Supreme Court’s 2016 decision in Bartram. See Lowe v. Price, 437 So.2d 142 (Fla. 1983) (appellate cdurt is bound to apply decisional law as it exists at the time of appeal, even if there has been a change in the law subsequent to the trial); Nash v. General Motors Corp., 734 So.2d 437 (Fla. 3d DCA 1999).

      . Anton’s reliánce on our decision in Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016) and the Fifth District’s decision in Ventures Trust 2013-I-NH v. Johnson, 230 So.3d 903, 42 Fla. L. Weekly D1482, 2017 WL 2821933 (Fla. 5th DCA June 30, 2017) is misplaced, as the foreclosure action in each of those cases was based not upon an allegation of a continuing default, but rather upon an allegation of a single default date that fell outside the statute of limitations period.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Debra WESTAWAY, Appellant, v. WELLS FARGO BANK, N.A., as Trustee FOR CARRINGTON MORTGAGE LOAN TRUST, SERIES 2007-RFC1, ASSET-BACKED PASS THROUGH CERTIFICATES, Appellee.
    Case Na 2D16-3683
    District Court of Appeal of Florida, Second District.
    Opinion filed September 1, 2017

      Robert E. Biasotti, of Biasotti Law, St. Petersburg, for Appellant.
    Nancy M. Wallace, of Akerman LLP, Tallahassee; William P. Heller, of Aker-man LLP, Fort Lauderdale, and Eric M. Levine, of Akerman LLP, West Palm Beach, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Debra Westaway appeals the trial court’s Final Judgment of Attorneys’ Fees and Costs in a foreclosure action brought against her by Wells Fargo Bank, N.A. Westaway argues that the trial court abused its discretion in (1) sua sponte reducing her attorneys’ reasonable hourly rate, (2) reducing the paralegal time billed by her attorneys, and (3) refusing to award a contingency multiplier. After the benefit of oral argument, we agree that the court abused its discretion in reducing her attorneys’ reasonable hourly rate, and we reverse and remand for the trial court to recalculate its award of attorneys’ fees based on the rate that Westaway’s attorneys originally requested. In all other respects, we affirm.

Prior Proceedings

In 2009, Wells Fargo, acting as trustee of a real estate investment trust, filed a foreclosure complaint against Westaway. After five years of litigation, Westaway obtained an order of involuntary dismissal against Wells Fargo’s claim. This court affirmed the involuntary dismissal on direct appeal. Wells Fargo Bank, N.A. v. Westaway, 182 So.3d 653 (Fla. 2d DCA 2015) (table decision).

After prevailing in the underlying foreclosure case, Westaway moved for attorneys’ fees, costs, and a contingency risk multiplier. The trial court concluded that Westaway was entitled to fees, but, before the court could determine a reasonable amount, Wells Fargo’s counsel moved to withdraw. Accordingly, the trial court gave Wells Fargo thirty days to retain new counsel.

When the time came for the hearing on the amount of fees, however, Wells Fargo was neither present nor represented. Thus, there was no opposing party to dispute any of the evidence that Westaway’s counsel presented. In addition, the judge presiding, over the hearing was not the judge who had determined Westaway’s entitlement to fees. Westaway’s attorneys requested a lodestar award based on an hourly rate of $325. In support of that request, an experienced foreclosure defense attorney, appearing as an expert witness, testified that such a rate was reasonable.

The trial court asked the expert witness how Westaway’s attorneys could charge a rate of $325 an horn’ given that they had only had two years of experience when they had taken the case. The expert witness answered, “I think that is what attorneys are charging, your Honor.” Incredulous, the court mused, “$325 for a two-year lawyer[?]” The expert witness responded that he knew the “success rate” of Westa-way’s counsel and that they were “certainly worth $325 an hour.”

At the conclusion of Westaway’s evidence, the trial court made a lengthy oral ruling, chastising Westaway’s attorneys for what the court perceived as (1) overbilling secretarial work by labeling it as paralegal work and (2) requesting a contingency multiplier in a case where a multiplier was unwarranted. With respect to the hourly rate, the court again expressed personal disbelief that attorneys with two years of experience could reasonably command $325 an hour and noted that, as the fact finder, it was not required to accept the expert’s testimony “as gospel.” On June 9, 2016, the trial court rendered its Final Judgment of Attorneys’ Fees and Costs. Paragraph two of the judgment provides, in pertinent part:

2. Pursuant to the factors to be considered in determining the reasonableness of the attorneys’ fees outlined in Rule 4-1.5, Florida Bar Rules of Professional Conduct, and under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), the rate of $200 per hour from August 4, 2010, through December 21, 2012, and the rate of $250.00 an hour from January 2013 through the conclusion of this matter is a reasonable hourly rate ... given the number of years of practice, $200.00 per hour for 2-5 years of practice and $250.00 per hour for 5-9 years of practice.

Analysis

We review a trial court’s calculation of reasonable attorneys’ fees for an abuse of discretion. Raza v. Deutsche Bank Nat’l Tr. Co., 100 So.3d 121, 126 (Fla. 2d DCA 2012) (citing DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992)). In determining whether an abuse of discretion has taken place, we ask whether reasonable people could differ as to the propriety of the trial court’s action. Id. (quoting Grapski v. City of Alachua, 134 So.3d 987, 989 (Fla. 1st DCA 2012)). “Thus, a court must look to the record to determine if ‘there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances.’ ” Id.

In evaluating the reasonableness of an hourly fee, trial courts must consider eight factors found in the Florida Rules of Professional Conduct, which for these purposes are referred to as the “Rowe factors” after the Florida Supreme' Court opinion that dictates their consideration. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985), modified by Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990); see also R. Regulating Fla. Bar 4-1.5(b)(1). “After considering these factors, the trial court must make spécific findings concerning the reasonable hourly rate, the number of hours reasonably expended, and the appropriateness of any reduction or enhancement factors.” Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 928 So.2d 495, 498 (Fla. 2d DCA 2006). “The failure to make these required findings constitutes reversible error.” Id.

.Paragraph two of the final judgment—the-only portion dealing with the court’s redaction of Westaway’s attorneys’ hourly rate—cites Rowe and rule 4r-1.5 but does not include any specific findings as to any of the eight Rowe factors. Nor does the court’s lengthy oralruling indicate that it properly considered the Rowe factors. Instead, the only factor that the. court appeared to consider in reducing the attorneys’ hourly rate was their experience level at various points in the litigation. Although the seventh Rowe factor'does call upon courts to consider “[t]he experience, reputation,, and ability of the lawyer or lawyers performing the services,”, that factor itself makes clear that the lawyers’ relative experience cannot be considered in isolation but,' at a minimum, must be weighed in conjunction’ with their reputation and ability. 472 So.2d at 1150.

Moreover, the final judgment includes no justification for the hourly rates that the trial court determined were reasonable. Nothing in the record—or anywhere else for that matter—explains why $200 an hour would be a reasonable fee for an attorney with “2-5 years of practice” or why-$250 would be a reasonable fee for an attorney .with “5-9 years of practice.” The sole expert witness in this- case did not testify that such hourly rates would be reasonable; Wells Fargo was not represented at the fee hearing, so it could not have suggested them; and we cannot find anything in either the Florida Rules of Professional Conduct or in published case law that ties an attorney’s reasonable hourly rate to the time frames articulated by the trial court. • .

We recognize that when evaluating the reasonableness of a requested fee award, judges should not “abandon what [they], learned as lawyers or [their] common sense.” See D’Alusio v. Gould & Lamb, LLC, 36 So.3d 842, 846 (Fla. 2d DGA 2010) (alteration in original). But even though the trial court was not bound by the expert’s opinion, we cannot affirm the trial court’s-award when “the record is totally devoid of any evidence to support a conclusion that the award was reasonable.” Id. at 847. Here, the judge did not indicate that her determination of reasonable hourly rates was rooted in her experience as a lawyer, nor did she explain why the varying rates that she applied were more reasonable than the single rate that Westa-way’s attorneys proposed (and all of the evidence adduced at the fee hearing supported). Her only apparent justification for reducing the hourly rate was her personal opinion of what attorneys should charge based on their number of years in practice. This alone does not constitute competent, substantial evidence.

Thus, we hold that the trial court abused its discretion in reducing Westa-way’s attorneys’ reasonable hourly rate. Accordingly, we reverse and remand with instructions for the trial court to award Westaway’s attorneys their requested rate of $325 per hour and to recalculate the lodestar using that rate. In all other respects, we affirm.

Affirmed in part; reversed in part; remanded with instructions.

CASANUEVA and SLEET, JJ., Concur.

      . These factors are:
      (1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
      (2) The .likelihood, if apparent to the client, that the acceptance of the. particular employment will preclude other employment by-the lawyer.
      (3) The fee customarily charged in the.lo.-cality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances,
      (6) The nature and length of the profes- . sional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      . (8) Whether the fee is fixed or contingent.
      Rowe, 472 So.2d at 1150.