author: Conner, J. Ciklin, J., Gross, J.,

text:
    Kern R. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1370
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]

      Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palin Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm-Beach, for appellee.
   Conner, J.

For a second time, this case is before us on a claim that the sentence imposed is illegal. We reverse a second time because we agree with the appellant, Kern R. Davis, that the trial court, on remand, did not resentence him with the full panoply of due process.

Factual Background and Trial Court Proceedings

In 1994, Davis was convicted after trial of robbery with a deadly weapon and armed carjacking. At the initial sentencing, he was sentenced as a habitual violent felony offender to life in prison with a minimum mandatory of fifteen years on each count. In 2013, Davis filed a motion to correct illegal sentences, contending his prior robbery conviction in Dade County, which was the sole qualifying offense for his habitual violent felony offender status, was reversed on appeal. The trial court denied the motion. We reversed the trial, court, and remanded the case for resen-tencing with the following direction: “Although [Davisj does not qualify as an [habitual violent felony offender], he may qualify as a habitual felony offender and those sanctions may be sought on remand.” Davis v. State,. 164 So.3d 96 (Fla. 4th DCA 2016).

On remand, the State filed its notice of intent to seek an enhanced penalty for Davis as a habitual felony offender. Davis filed a sentencing memorandum, listing as mitigating factors his strong' family support, the fact that his previous robbery conviction in Dade County was vacated based on false testimony, the classes that he has taken while incarcerated, the fact that he was physically and sexually abused by family members, his advanced age with a decreased chance of recidivism, and evidence of rehabilitation through programs while incarcerated,

A resentencing hearing was held by a successor judge-because the judge who-tried the case and imposed the sentence twenty-two years earlier was no longer on the bench. At the beginning of the hearing, the trial court stated that it read everything that was submitted to it, including Davis’s sentencing memorandum and the attached letters from family and friends and certificates of completion from the programs Davis had completed while incarcerated. The trial court also reviewed a reconstructed scoresheet the parties agreed was accurate. Eventually, the parties stipulated that Davis qualified for sentencing as a habitual felony offender. The trial court permitted both parties to present whatever evidence and arguments either desired. However, as discussed more fully below, the statements of the trial court in pronouncing sentence indicated it was not inclined to i “revisit” the sentence imposed by the judge who tried the case or consider the new evidence regarding Davis’s behavior while in prison. The trial court determined Davis to be a habitual felony.offender and sentenced him again to life in prison with the' mandatory minimums. Davis gave notice of appeal. ■

Appellate Analysis

Because Davis claims a denial of due process, the standard of review for a constitutional claim is de novo. See A.B. v. Fla. Dep’t of Children & Family Servs., 901 So.2d 324, 326 (Fla. 3d DCA 2005) (citing G.C. v. Dep’t of Children & Families, 791 So.2d 17, 19 (Fla. 5th DCA 2001)) (“The standard of review for the mother’s constitutional claim is de novo as this issue involves a question of law.”).

Both parties agree that when a sentence has been reversed as illegal and the case is remanded for resentencing, a defendant is entitled to the full panoply of due process considerations on resentenc-ing. State v. Fleming, 61 So.3d 399, 406 (Fla. 2011) (quoting State v. Scott, 439 So.2d 219, 220 (Fla. 1983)). What the parties disagree about is whether Davis received the full panoply of due process considerations when resentenced upon remand. Davis contends the trial court interpreted bur remand instructions to simply direct the trial court to determine whether Davis was eligible for sentencing as a habitual offender, in which case, the previously imposed sentence would stand. The State contends the trial court fully understood it was 'to conduct a de novo sentencing, and did so, but exercised its discretion to impose the same sentence imposed by the judge who tried the case. The State further argues that on resen-tencing after an erroneous habitualization, the trial court may impose a sentence to achieve the original sentencing intent, but not exceed it, citing to Dixon v. State, 41 So.3d 990, 991 (Fla. 4th DCA 2010), and Suarez v. State, 974 So.2d 451, 453 (Fla. 3d DCA 2008).

In Galindez v. State, 955 So.2d 517 (Fla. 2007), in a specially concurring opinion, Justice Cantero explained the principles of a de novo resentencing:

We have consistently held that resen-tencing proceedings must be a> “clean slate,” Preston v. State, 607 So.2d 404, 408 (Fla. 1992), meaning that the defendant’s vacated sentence becomes a “nullity” and his “resentencing should proceed de novo on all issues bearing on the proper sentence,” Morton [v. State], 789 So.2d [324, 334 (Fla. 2001)] (quoting Teffeteller [v. State], 495 So.2d [744, 745 (Fla. 1986) ]). This means that the trial court must extend to the defendant the “full panoply” of existing procedural protections, State v. Scott, 439 So.2d 219, 220 (Fla.1983), including any new constitutional protections that have been recognized since the defendant’s original sentencing. In fact, because resentenc-ing-is de novo, the State was required to produce evidence on -sentencing issues even if the- State established the fact at the original sentencing. This was required whether or not the defendant disputed the issues in the prior sentencing proceeding. In addition to the, parties’ rights to present additional evidence and the State’s burden to produce evidence, we also have held that the trial court is not limited to its findings from the prior proceeding, but may make new findings and may .eyen increase the sentence..

Id. at 525-26 (Cantero, J,, specially concurring) (emphasis in original).

From our review of .the record, we -are satisfied that the trial éourt, upon resen-tencing, afforded Davis due process by reviewing in advance all materials submitted by the defense for the .resentencing hearing and allowing him to' present any evidence and arguments he wanted. We note that Davis makes no issue on appeal regarding whether the successor judge was sufficiently familiar with the facts of the case, the trial, or the prior sentencing proceeding.

However, the statements by the successor judge during the hearing lead us to conclude that the trial court did not proceed on a “clean slate” on resentencing and intentionally decided it was not going to evaluate the same evidence submitted at trial and the initial sentencing hearing, together with the new evidence, which included information about Davis’s performance in prison. The trial court acknowledged it was “permitted,” by our remand instructions, to go through an evaluation process and change the length of the initial sentence, but announced “I am not going to revisit that,” referring to the prior sentence, and “I am not prepared to do that,” referring to consideration of Davis’s performance while in prison. Thus, although the trial court afforded substantial due process to Davis on resentencing, it failed to afford the full panoply of due process, to which he was entitled.

We are mindful of our decision in Peters v. State, 128 So.3d 882 (Fla. 4th DCA 2013), where the defendant claimed that on resentencing, a successor judge merely “rubber stamped” the sentence imposed by the initial sentencing judge many years before. Id. at 841. We affirmed the trial court in that case, but we said:

In other words, “[w]hat is essential is for the successor judge to be sufficiently familiar with the case so that the imposition of a sentence is Ms or her act of independent judgment, not mere reliance on the decision of the original judge.”

Id. at 840 (alteration in original and emphasis added) (quoting Ross v. State, 958 So.2d 442, 443 (Fla. 4th DCA 2007)). We also noted in Peters that at resentencing, the successor judge emphasized that “his sentence was constructed ‘regardless of what [the prior judge] would have done.’ ” Id. at 841. Unfortunately, on the record in this case, we cannot conclude the successor judge engaged in the same type of independent assessment.

We reverse and remand, directing the trial court to vacate the sentence imposed, and conduct a new sentencing proceeding with the full panoply of due process. Because the trial judge who imposed the last sentence has retired from the bench, there is no issue regarding whether a successor judge should conduct the proceedings.

Reversed and remanded.

Ciklin, J., concurs specially with opinion.

Gross, J., dissents with opinion.

Ciklin, J.,

concurring specially.

Because I believe this is somewhat of a “sleeper issue,” I write a cautionary concurrence about what may admittedly be an obscure yet potential pitfall for an unwary judge or practitioner.

I agree with the dissent’s suggestion that the defendant’s original sentence may very well have been “entirely appropriate for the crime appellant committed, given his criminal history.” But, respectfully, that notion misses the point of the majority opinion: A unanimous three-judge panel of this court ordered that the original sentence be vacated and that Davis be resen-tenced with the commensurate panoply of due process rights.

By ordering that the original life sentence be vacated because it was based on a conviction that had been set aside, that life sentence—by operation of law—became an immediate nullity, entitling this criminal defendant to a de novo resentencing proceeding. That meant, as Justice Cantero forcefully characterized it, a “clean slate” including the “full panoply” of due process rights as to “all issues bearing on the proper sentence.” Galindez, 955 So.2d at 525 (citations omitted).

Yet, here, the lower court expressed its mistaken view that it was not appropriate to consider Davis’ substantial evidence of his rehabilitation or the over two dozen certificates of achievement that he had earned in prison or any of his accomplishments or personal history since the now vacated original sentence was imposed. The trial court’s decision in this regard was black letter judicial error because Davis was denied his clean slate.

With due respect to the dissent, there is no need for the majority to “pour over” the trial judge’s resentencing determination or his analysis as to why he would not start with a clean slate at a resentencing. We need not search for any nuanced wording or phrases uttered by the lower court. Even a cursory review of the record reveals it to be immediately apparent that a legally cognizable criminal resentencing proceeding did not take place below, as ordered by this appellate court and in the manner that the law required.

To his credit, the trial judge admitted that he was not prepared “to come in at the end here and to say let’s take a [another] look at the crime that was committed and [at Davis’s updated personal history since the original sentence] ... to resen-tence him.”

While the trial court was not prepared to conduct this review, that is precisely what solid constitutional precepts required. The failure to do so sends it back to the trial court—almost automatically.

Thus, the majority need not rely on “flimsy notion[s]” or negotiate “the drawing of lines” to decide that the trial court either did not understand the legal significance of the court’s unanimous remand in Davis I or did not understand the due process requirements attendant to resen-tencing a criminal defendant, or both.

Again, an obscure potential pitfall for an unwary judge or practitioner.

As the majority opinion indicates in providing direct quotes from the trial judge, this is not a matter of “scouring” the words of the trial judge to find a reason to once again reverse and remand for resen-tencing. The trial court’s decision to decline to clean the slate and thereafter conduct a de novo sentencing hearing was plain record error that denied Davis due process under the Fourteenth Amendment to the United States Constitution and article 1, section 9 of the Florida Constitution.

We can only hope that a third trial judge will take the necessary steps to obviate the need for a Davis III.

Gross, J.,

dissenting.

The majority has scoured the trial judge’s words, like a medieval monk pouring over sacred text, looking for nuances that would support reversal.

Here, the legal basis for reversal is that the judge violated the constitution by failing to exercise “independent judgment.” A failure to exercise independent judgment is a flimsy notion upon which to erect a reversal. If law involves the drawing of lines, who can say when independent judgment begins and ends?

The majority is reversing a sentence that is entirely appropriate for the crime appellant committed, given his criminal history. I agree with the state that the trial judge here conducted a de novo sentencing hearing, for which he was clearly prepared. The judge exercised his discretion to impose the same sentence as the judge who presided over the 1994 trial.

The sad irony of the law is that a judge can shred the Constitution in sentencing so long as he does not utter words that give him away. Those , are cases that courts typically affirm. See, e.g., Charles v. State, 204 So.3d 63, 71-74 (Fla. 4th DCA 2016) (Gross, J., dissenting).

      . Davis’s offenses occurred in 1994, and thus Florida’s sentencing guidelines applied at the time. Davis’s guideline prison sentencing range was 7 years to 11.5 years. If Davis qualified as a habitual violent felony offender (HVFO) or habitual felony offender, then he could be sentenced up to life imprisonment regardless of the guideline recommendation. Davis was, in fact, sentenced to life imprisonment as an HVFO. As it turned out, however, that designation became an erroneous designation because, as we explained in Davis I, the threshold conviction needed to brand Davis as an HVFO (and as the trial court expressly used as its basis to impose a life sentence), was declared a legal nullity.


source: Caselaw Access Project

author: VTLLANTI, Chief Judge.

license: Public Domain

text:
    Luis COLON-GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3812
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2017
   VTLLANTI, Chief Judge.

Luis Colon-Gonzalez appeals an. order denying his petition seeking an extension of time to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because such an order is not a final, appealable order, we must dismiss this appeal. See Ham v. State, 36 So.3d 189, 190 (Fla. 2d DCA 2010); Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010). As we did in Ham and Manning, we give Colon-Gonzalez sixty days following the date that this opinion becomes final to file his rule 3.850 motion. Once he files the motion, the postconviction court can determine the issue of timeliness as outlined by case law and can then dispose of the motion on the merits, if appropriate.

Dismissed.

LaROSE and LUCAS, JJ., Concur.


author: Gross, J.

text:
    M.L., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D16-4087
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017

      Andrea J. White of Florida Rural Legal Services, Fort Pierce, and Stephen R. Senn of Peterson & Myers, P.A., Lake-land, for appellant.
    Kelley Schaeffer, Appellate Counsel, Department of Children & Families, Children’s Legal Services, Bradenton, for ap-pellee.
    Laura J. Lee and Thomasina F. Moore, Appellate Counsel, Sanford, for Guardian Ad Litem Program.
    Christopher. N. Bellows and Kevin Paule of Holland & Knight, LLP, Miami for Ami-cus Curiae, Florida’s Children First, Inc.
   Gross, J.

We affirm the denial of M.L.’s motion to intervene in the mother’s termination of parental rights proceeding. We write to explain that while a biological father who is a stranger to an existing marriage into which a child is born is not wholly without rights, he must demonstrate an enduring commitment to being a full-time parent, and do so expeditiously, in order to avail himself of those rights. Where he fails to act with such expediency, and displays only a casual interest in fatherhood, a trial court does not abuse its discretion by denying a potential biological father’s motion to intervene in the legal parents’, termination proceedings.

The child, J.L., was sheltered on January 30, 2015, when he was just 6-days-old, after he tested positive for cocaine and was undergoing withdrawal symptoms. At the shelter hearing, the trial Court was advised that, although the mother was married to the husband at- the time of the child’s birth, the mother identified M.L. as the biological father. .M.L. was also listed as the father on the-child’s, birth certificate. The Department of Children and Families (“DCF”) advised the court that the husband stated he had “no interest in this child." Because the mother and. husband were married at the time of- the child’s birth, the trial court .ruled that the husband was the father “in the eyes of the law.”

Court notes from a February 26, 2015 hearing indicate that the mother, husband, and prospective biological father were all in attendance. Disestablishment proceedings were in progress for the husband, who wanted a DNA test. The record also shows that, by July 9, 2015, the prospective biological father had been advised on how to establish paternity and the husband had been advised on how to disestablish paternity.

On June 23, 2016, DCF filed a petition to terminate the parental rights of the mother and husband. The foster parents, with whom the child had been placed for half of his life, informed DCF that they were willing to adopt the child.

On September 19, 2016, the prospective biological father filed an emergency motion to intervene and stay any TPR or adoption proceedings until he had an opportunity to be heard. The prospective biological father alleged that he was the child’s biological father and was present at the child’s birth. Attached to the motion was the prospective biological father’s “petition to determine paternity and related relief’ filed on July 28, 2016, which was pending before a different judge. He also attached a notice of acknowledgment from the Florida Department of Health of his registration with the Florida Putative Father Registry submitted on July 28, 2016.

At the hearing on the motion, counsel for the prospective biological father explained that, once she realized there was a pending dependency case, she sought a way to get her client involved, because the prospective biological father “had been left out of the case essentially because the parties were married.” She requested the court allow the prospective biological father to be “a part of this case.”

The court understood the prospective biological father’s “sympathetic” position, but explained that, “under the current state of the law, if a child is born into an intact marriage, that husband is the child’s father for all intents and purposes in the eyes of the law regardless of who the biological father may be.” The court noted the more “frustrating” aspect of the case was that the husband was present and ready “to have his rights terminated as to the child.” Nevertheless, the court explained that, before the prospective biological father could establish his paternity, the husband had to disestablish his paternity. The court advised counsel that her client was “basically at the mercy of [the husband’s] whim.”

The TPR trial was continued until November 7, 2016 due to the mother’s hospitalization. The court advised the parties that if there was any work they wanted to do on the case to get it done before November 7.

Significantly, the prospective biological father’s petition to establish paternity was stayed “to avoid potentially duplicative or inconsistent court orders.” The order entering the stay was not challenged in this court.

On November 3, 2016, the prospective biological father filed an “urgent amended motion to intervene.” He alleged that he “has had a relationship with his son since birth and he believes it is in the child’s best interests to be with him so that he can raise him.” The prospective biological father attached a photo of him with the child as well as a certificate of completion of a DCF-approved parenting class. He also filed the husband’s affidavit “to disestablish paternity,” wherein the husband swore that, even though he was still legally married to the mother at the time of conception, “they had been physically separated for approximately 6 years or more,” and it was thus “physically impossible” that the child was his.

The court heard the motion to intervene before the TPR trial. Finding that section 742.18, Florida Statutes (2016)—which outlines the procedure for disestablishing one’s paternity—had not been complied with because there still had been no DNA testing, the court denied the motion to intervene. The court went forward with the mother’s TPR trial, and subsequently entered a final judgment terminating the parental rights of both the mother and' husband.

We begin by holding that the trial court did not abuse its discretion in denying the prospective biological father’s motion to intervene because of the year and a half delay in attempting to establish his paternity. Because he had not established his paternity, “under Florida law, he had no legally recognized parental relationship” to the child and thus “could not intervene in the TPR proceeding.” Shuler v. Guardian Ad Litem Program, 17 So.3d 333, 336 (Fla. 5th DCA 2009); see also Fla. R. Juv. P, 8.226(5) (“If the court has identified both parents of a ehild as defined by law, the court shall not recognize an alleged biological parent as a parent in the proceeding until a court enters an order pursuant to law establishing the alleged biological parent as a parent in the proceeding.”) (emphasis added). The trial court correctly identified the husband as the child’s legal father because, even though the mother and husband had been physically separated for years, “[a] child born during marriage is presumed to be the child of both the husband and wife.” Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604, 607 (Fla. 2006).

We write to clarify that, while a biological father who is a stranger to an existing marriage into which a child is born has extremely limited rights, his ability to establish his paternity is not left entirely to the husband’s “whim.”

It is generally true “that a putative father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.” Lohman v. Carnahan, 963 So.2d 985, 987 (Fla. 4th DCA 2007) (quoting Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000)). However, a biological father may seek to establish his paternity, eveh when both the mother and husband object, if “common sense and reason are outraged” by applying the marital presumption to bar such an action. Lander v. Smith, 906 So.2d 1130, 1133 (Fla. 4th DCA 2005) (quoting Dep’t of Health & Rehab. Servs. v. Privette, 617 So.2d 305, 309 (Fla. 1993)). A biological father may also seek "to establish his paternity where “both the mother and the legal father have surrendered their rights to the child.” J.T.J. v. N.H., 84 So.3d 1176, 1180" (Fla. 4th DCA 2012) (emphasis in original).

In J.T.J., the child was immediately placed in DCF’s custody because he tested positive for marijuana and cocaine at birth. Id. at 1177. The mother was married at the time of birth, but the husband’s name was not put on .the birth certificate. Id. Both the mother and husband signed a surrender of their parental rights. Id. DCF’s case plan for the child identified a biological father and stated that.it was conducting a diligent search for him. Id. Several months later, the biological father filed a verified petition to determine paternity, alleging that he was the child’s biological father “and that a DNA test positively identified him as such.” Id. at 1178. This court reversed the trial court’s dismissal of the petition, noting that only the biological father desired to be a parent to the child and DCF did not contest the paternity proceedings. Id. at 1180.

Thus, the trial court’s belief that the prospective biological father had no rights unless and until the husband disestablished his paternity was not correct. However, the problem for the prospective biological father, and the • main distinction between this case and J.T.J., is that he did not act quickly enough. In J.T.J., at the time the biological father petitioned for paternity, DOF had not filed a TPR petition. Id. at 1178. Additionally, the biological father in J.T.J. alleged in his petition that “a DNA test positively identified him as such,” and that he had been working with DCF and GAL, had prepared a home for the child, participated in a DCF home visit, and was establishing a relationship with the child. Id.

Here, the prospective biological father waited a year and a half to establish his paternity, until after DCF filed its termination petition, and he still did not havé DNA confirmation that he was the child’s biological father. It cannot be said that he was not on notice of the child’s existence or DCF’s involvement, as the record reflects he was present for an advisory hearing on February 26, 2015; by July 9, 2015, he had been advised on how to establish paternity. In essence, the prospective biological father was asking the trial court to delay the ongoing termination proceedings when it was entirely possible that he was not the child’s biological father.

Moreover, although the prospective biological father alleged that he had developed a relationship with the child, having a relationship is not the same as demonstrating a full commitment to the responsibility of being a parent. Only where "an unwed [biological] father demonstrates a full commitment to the responsibilities of parenthood by coming' forward to participate in raising his child,” does the constitutional protection of the individual’s right to be a parent apply to a biological father, D.M.T. v. T.M.H., 129 So.3d 320, 335 (Fla. 2013); see also Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (explaining that, “the mere existence of a biological link does not merit equivalent constitutional protection”). The foster parents in this case demonstrated the requisite commitment to being full-time parents, even in the absence of a biological connection to the child.

Here, the prospective biological father needed to act with more expediency. The Florida Legislature has stated “that.time is of the essence” in these cases, and at the time of the prospective biological father’s motion to intervene, the child had spent his entire life in the dependency system. § 39.0136(1), Florida Statutes (2016). He deserved permanency, and the trial-court did not abuse its discretion by not further delaying the proceedings to accommodate a potential biological father. See S.M. v. Fla. Dep’t of Children & Families, 202 So.3d 769, 778 (Fla. 2016) (“The parent’s rights are subject to the overriding princir pie that it is the ultimate welfare and the best interests of the children that must prevail.”).

-Affirmed,-

Ciklin, C.J., and Conner, J., concur.


author: BLACK, Judge.

text:
    Dennis FONTE and Hop-Hedz, Inc., Appellants, v. AMERICAN EXPRESS BANK, FSB, Appellee.
    Case No. 2D16-1411
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2017

      W. Bart Meacham, Tampa, for Appellants.
    No appearance for Appellee. ■
   BLACK, Judge.

Dennis Fonte and Hop-Hedz, Inc., appeal the final summary judgment entered in favor of American Express Bank, FSB, on American Express’s action to collect on a business credit card account. Because genuine issues of material fact remain in dispute,, we reverse the summary judgment. •

American Express filed a complaint against Mr. Fonte and Hop-Hedz seeking to' recover a debt in the amount ■ of $84,712.60. In the complaint, American Express alleged that Mr. Fonte and Hop-Hedz were responsible for paying all amounts charged to the credit card account at issue. An unsigned Business Platinum Card Agreement was attached to-the complaint. Also attached to and referenced in the complaint was a ••statement from American Express addressed to Mr. Fonte and Hop-Hedz identifying the account balance through September 21, 2009, as $84,712.60. In their answer, Mr. Fonte and Hop-Hedz denied that they were responsible for all charges on the account and denied that they owed the debt. , .

' American Express moved for summary judgment and, in support of its motion, filed an affidavit of indebtedness stating that based on records kept in the ordinary course of business, Mr. Fonte and Hop-Hedz owed American Express $84,712.60, plus applicable interest, attorney’s fees, and costs. In opposition to the motion for summary judgment, Mr. Fonte and Hop-Hedz filed the affidavits of Mr. Fonte and Thomas Ortiz, In his affidavit, Mr. Fonte averred that he had not been a shareholder of Hop-Hedz since 1999, that when he had been a shareholder the account was not in default, that he did not owe any money to American Express, that prior to January 2000 American Express had been notified that Mr. Fonte was no longer.a shareholder of Hop-Hedz and had agreed that Mr. Fonte would not be. liable for any future "charges on the account, and that American Express had not produced any agreement or contract signed by Mr. Fonte evidencing his agreement to be liable for the business account at issue. Mr. Ortiz averred in his affidavit that he has been the sole shareholder of Hop-Hedz since 1999, that prior to January 2000 the account at issue had not been in default, that American Express had agreed that Mr. Fonte would not be liable for any charges accruing after 1999, and that American Express had billed Hop-Hedz for various charges which Hop-Hedz disputed and is not obligated to pay.

Prior to moving for summary judgment, American Express had filed several account statements, in no particular order and all postdating 2000. The statements established that Mr. Ortiz was a cardholder for the account in question and that Mr. Ortiz had disputed more than $15,000 in charges on the account. At least one statement indicated that there were no charges on the card identified as Mr. Fonte’s.

Following a hearing and the submission of written arguments, the trial court entered final summary judgment in favor of American Express in the amount of $84,712.60, plus prejudgment interest and costs.

Our review of a final summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). “The party moving for summary judgment is required to conclusively demonstrate the nonexistence of a material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla. 5th DCA 2014) (quoting Laughlin v. Household Bank, Ltd., 969 So.2d 509, 513 (Fla. 1st DCA 2007)). The movant bears “the initial burden of demonstrating the nonexistence of any genuine issue of material fact.” Rooker v. Ford Motor Co., 100 So.3d 1229, 1231 (Fla. 2d DCA 2012) (quoting Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979)). It is only once the movant “tenders competent evidence to support his motion [that] the opposing party must come forward with counterevi-dence sufficient to reveal a genuine issue.” Id. (quoting Landers, 370 So.2d at 370).

American Express did not meets its burden; it failed to establish an agreement between Mr. Fonte and American Express. The only document attached to the complaint was a standard corporate credit card agreement, and nothing in that document indicated that Mr. Fonte or Hop-Hedz was bound by its terms. Cf. Miteva v. Am. Express Bank, FSB, 149 So.3d 755, 755 (Fla. 3d DCA 2014). Further, Mr. Fonte’s affidavit, as well as Mr. Ortiz’s, states that American Express affirmatively agreed that Mr. Fonte would not be liable for any debt of Hop-Hedz after 1999.

American Express also failed to prove the amount at issue conclusively. Mr. Ortiz’s affidavit stating that Hop-Hedz disputed some charges and that Hop-Hedz is therefore not liable for the alleged balance of $84,712.60 is sufficient to preclude summary judgment. The amount at issue is a material fact in dispute. See Furlong v. Surf Consultants, Inc., 171 So.3d 801, 802-03 (Fla. 2d DCA 2015) (reversing summary judgment where plaintiff failed to prove the amount in dispute); JVN Holdings, Inc. v. Am. Constr. & Repairs, LLC, 185 So.3d 599, 600 (Fla. 3d DCA 2016) (reversing summary judgment where conflicting evidence as to amount in dispute was presented); Burt, 138 So.3d at 1196 (reversing summary judgment where plaintiff failed to. establish amount in dispute in account stated claim).

The trial court erred in determining that there were no genuine issues of material fact in dispute. We therefore reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

SILBERMAN and MORRIS, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Jose Carlos MARTINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-741
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2017
    Howard L. Dimmig, II, Public Defender, and Joshua Schoen, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Darla Dooley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jose Carlos Martins appeals his judgment and sixty-year prison sentences entered pursuant to the 10-20-Life enhancement statute. Martins raises two issues on appeal. We do not address Martins’ unpre-served sufficiency of the evidence argument. However, because the trial court believed it was required to impose consecutive sentences pursuant to the enhancement statute, we reverse and remand for resentencing in light of the supreme court’s decision in Williams v. State, 186 So.3d 989, 993 (Fla. 2016) (holding that under section 775.087(2)(d), Florida Statutes, “a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently”).

During sentencing, the State argued that Martins’ three twenty-year minimum mandatory sentences should run consecutively under the 10-20-Life enhancement statute. See § 775.087(2)(d), Fla. Stat. (2013). The State relied on the Fourth District’s en banc opinion in Williams v. State, 125 So.3d 879, 883-84 (Fla. 4th DCA 2013) (holding that section 775.087(2)(d) requires a trial court to impose consecutive sentences for each qualifying offense). The State also disclosed that the supreme court had recently heard argument on review of Williams but had not yet issued an opinion. In an abundance of caution, the trial court continued Martins’ sentencing to wait for the supreme court’s disposition of Williams. When the parties reconvened, the supreme court still had not ruled, and the trial court, presuming that it had no discretion, ran Martins’ sentences consecutively.

On appeal, Martins argues—and the State properly concedes—that because the trial court ordered consecutive sentences believing it had no discretion to do otherwise, his sentences should be. reversed. We agree and accordingly reverse Martins’ sentences and remand for resentencing in light of the supreme court’s decision in Williams. We affirm Martins’ judgment and sentences in all other respects.

Affirmed in part, reversed in part, an.d remanded.

CASANUEVA and SLEET, JJ., Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    VOLKSWAGEN AKTIENGESELLSCHAFT d/b/a Volkswagen AG, Appellant, v. Carol JONES, individually and as personal representative of the Estate of Kenneth Jones, Deceased, Appellee.
    Case No. 2D15-5716
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2017

      Robert E. Biasotti and Christine R. O’Neil of Biasotti and Associates, St. Pe-tersburg, for Appellant.
    Paulo R. Lima, David A. Jagolinzer, and Janpaul Portal of The Ferraro Law Firm, P.A., Miami, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Volkswagen Aktiengesellschaft (VWAG) seeks review of an interlocutory order denying its motion to dismiss for lack of personal jurisdiction a complaint filed against it. We reverse the trial court’s order because Mrs, Jones did not establish that VWAG has the requisite minimum contacts with Florida for the exercise of personal jurisdiction to comport with due process, and we remand for the trial court to consider in the first instance Mrs. Jones’s February 19, 2015, motion to compel to the extent that the motion sought discovery relevant to personal jurisdiction.

I. PROCEDURAL HISTORY

In 2009, Kenneth and Carol Jones filed suit against sixteen defendants, including Volkswagen Group of America, Inc. (VWOA), alleging that Mr. Jones had developed mesothelioma as a result of his exposure to asbestos-containing products that the defendants had manufactured, distributed, and sold. The Joneses’ theory was that Mr. Jones had been exposed to these products in the course of both his career in the automotive industry in upstate New York and his work on his personal vehicle—a 1987 Volkswagen Quantum that had been given to him upon his retirement—in Florida. Mr. Jones died while the case was pending, and Mrs. Jones, individually and as personal representative of Mr. Jones’s estate, filed an amended complaint against the same defendants. VWAG was not named as a defendant in either complaint.

In October 2011, Mrs. Jones moved to add VWAG as a defendant. The trial court granted the motion, and Mrs. Jones filed a second amended complaint adding VWAG. VWAG moved to quash service of process, asserting that Mrs. Jones had failed to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15,1965, 20 U.S.T. 361 (hereinafter Hague Convention). See also § 48.194(1), Fla. Stat. (2011) (providing that service of process on persons outside United States, may be required to conform to provisions of Hague Convention).

After Mrs. Jones effected service, VWAG filed an answer, asserting, as an affirmative defense, that the Florida courts lacked personal jurisdiction over it. On February 19, 2015, Mrs. Jones moved pursuant to Florida Rule of Civil Procedure 1.310(b)(6) to compel VWAG to produce its designated corporate representatives for deposition duces tecum on matters “relevant to the issues of jurisdiction and/or liability and causation.” A week later, VWAG moved to dismiss the complaint based on a lack of personal jurisdiction, and it submitted a supporting affidavit-from Ian Ceresney, who has been VWAG’s corporate counsel in the United States for more than thirty-five years (the Ceresney affidavit). Mrs. Jones opposed the motion and moved for sanctions pursuant to section 57.105, Florida Statutes (2014); she submitted a supporting affidavit from Gabriel Saade, who is a law clerk employed by her counsel (the Saade affidavit), and multiple other documents.

In light of the volume of Mrs. Jones’s filings and the complexity of the issues involved, VWAG requested that the court hold an evidentiary hearing on its motion to dismiss. Mrs. Jones “reluctantly” agreed to an evidentiary hearing and submitted additional materials in advance of the hearing. Mrs. Jones’s motion to- compel was noticed for hearing at the same time.

At the “evidentiary hearing,” VWAG relied solely on the Ceresney affidavit, and Mrs. Jones’s counsel presented a Power Point presentation and. relied on Mrs. Jones’s previous filings. Mrs. Jones asked the trial court for “leave ... to take discovery based on personal jurisdictional facts, including the corporate representative of [VWAG],” if the court “were not inclined to just deny the Motion to Dismiss outright.” There was no testimony at the hearing, and the trial court did not receive anything into evidence. At the conclusion of the hearing, the court said only: “Defendant Volkswagen AG’s Motion to Dismiss for Lack of Personal Jurisdiction is denied. I make a specific finding that there was no waiver [of the defense of lack of personal jurisdiction] on their part, but I find there is sufficient evidence of specific jurisdiction.” The court made no statements from which we might obtain some insight into the'rationale for its ruling; nor ■ did it do so in its written order, in which it simply reiterated its conclusion and also denied Mrs. Jones’s motion for sanctions. The trial court granted Mrs. Jones’s motion to compel with respect to merits discovery (as the need for jurisdictional discovery was now moot) but agreed to stay the order pending appeal.

VWAG timely appealed.

II. THE PARTIES’ ARGUMENTS ON APPEAL

On appeal, VWAG argues that (1) the complaint failed to establish personal jurisdiction under Florida’s Long-Arm Statute, (2) Mrs. Jones failed to refute any of the factual allegations included in the affidavit attached to its motion to dismiss, and (3) the exercise of jurisdiction in this case would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Mrs. Jones argues that (1) notwithstanding the trial court’s finding to the contrary, VWAG waived its right to challenge personal jurisdiction, (2) the affidavit attached to VWAG’s motion to dismiss was not legally sufficient, (3) her second amended complaint sufficiently pleaded jurisdiction under section 48,193(l)(a)(6), Florida Statutes, and (4) the exercise of jurisdiction in this case comports with due process because ■ VWAG, aeting both directly and through its agent, VWOA, has the requisite minimum contacts with Florida. Mrs. Jones asks that, if we nonetheless conclude that she has failed to establish personal jurisdiction, we remand “with instructions that the trial court conduct a hearing after [Mrs. Jones] has had the opportunity to take limited jurisdictional discovery, including the deposition of VWAG’s corporate representative.”

III. DISCUSSION

A. Personal Jurisdiction and Venetian Salami

To invoke the trial court’s jurisdiction over a nonresident defendant, a plaintiff must allege in the. complaint a basis for personal jurisdiction under the long-arm statute. See § 48.193; Teva Pharm. Indus. v. Ruiz, 181 So.3d 513, 516-17 (Fla. 2d DCA 2015). If pleading a basis for specific jurisdiction under subsection 48.193(1), due process considerations also require the plaintiff to establish that the nonresident defendant “has sufficient minimum contacts with the state so that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice.” Teva Pharm., 181 So.3d at 516. To establish sufficient minimum contacts, a plaintiff must establish that the defendant’s contacts, with the forum state (1) are related to the plaintiffs cause of action or have given rise to it, (2) involve some act by which the defendant has purposefully availed itself of the privilege of conducting activities within the forum, and (3) must be such that the defendant should reasonably anticipate being haled into court there. Moro Aircraft Leasing, Inc., v. Int’l Aviation Mktg., Inc., 206 So.3d 814, 817 (Fla. 2d DCA 2016). Personal jurisdiction over a nonresident parent corporation based on the actions of the resident subsidiary can be obtained by establishing that the nonresident parent corporation independently satisfies the test for jurisdiction, that the facts justify piercing the corporate veil, or that the parent exercises a high and very significant amount of control over the subsidiary to render the subsidiary an agent or alter ego of the parent. See Schwartzberg v. Knobloch, 98 So.3d 173, 182 (Fla. 2d DCA 2012).

The defendant may challenge the jurisdictional allegations in the plaintiffs complaint or raise a contention of minimum contacts by moving to dismiss the complaint and filing legally sufficient affidavits or other sworn proof in support. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989); Rautenberg v. Falz, 193 So.3d 924, 928-29 (Fla. 2d DCA 2016). If the defendant’s affidavit or sworn proof fully disputes the jurisdictional allegations, then the burden shifts- to the plaintiff to prove by affidavit or other sworn proof that there is a basis for personal jurisdiction. Venetian Salami, 554 So.2d at 502; Rautenberg, 193 So.3d at 929. If the parties’ affidavits and sworn proof can be harmonized, the trial court can determine the jurisdictional issue based on the undisputed facts. Venetian Salami, 554 So.2d at 502-03; Rautenberg, 193 So.3d at 929.

If the parties’ submissions cannot be harmonized, however, the trial court must hold a limited evidentiary hearing to resolve the jurisdictional issue. Venetian Salami, 554 So.2d at 503; Rautenberg, 193 So.3d at 929. At that 'limited evidentiary hearing, the trial court should receive testimony and evidence, based on which it resolves the factual disputes and determines whether the plaintiff has proven both jurisdiction-under section 48.193 and satisfaction of due process considerations. See Teva Pharm., 181 So.3d at 521; Madonna v. Gaynor, 95 So.3d 990, 992 (Fla. 2d DCA 2012); Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 300 (Fla. 4th DCA 2011) (reversing denial of motion to dismiss following “limited evi-dentiary hearing” under Venetian Salami because “the [plaintiff] has not shown that jurisdiction can be constitutionally asserted over [the defendant]” (emphasis added)). -

We review de novo the trial court’s conclusion that it has personal jurisdiction oyer VWAG. See Rautenberg, 193 So.3d at 928.

B. VWAG did not waive the defense of lack of personal jurisdiction

A defendant waives the defense of personal jurisdiction by failing to timely object or by first seeking affirmative relief from the trial court. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla. 1998). “Affirmative relief is ‘relief for which defendant might maintain an action independently of plaintiffs claim and on which he might proceed to recovery, .although plaintiff abandoned his cause of action or failed to establish it.’ ” Faller v. Faller, 51 So.3d 1235, 1236 (Fla. 2d DCA 2011) (quoting Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996)).

In this case, before filing a responsive pleading, VWAG moved under rule 1.140 to quash service of process for failure, to comply, with the , Hague Convention, and it also moved under rule 1.070(j) to dismiss for failure to timely serve process. In both motions, VWAG explicitly indicated that it was not “waiving] any defenses, including but not limited to personal jurisdiction,” but, more importantly, neither motion went to the merits of the case or requested affirmative relief inconsistent with the defense of lack of personal jurisdiction. See McDaniel v. FirstBank Puerto Rico, 96 So.3d 926, 928 (Fla. 2d DCA 2012) (holding that motion to quash insufficient service of process did not result in waiver of defense of lack of personal jurisdiction). Consequently, VWAG’s filing of these motions did not constitute a waiver of its challenge to personal jurisdiction. Moreover, after service was successfully effected, VWAG alleged lack of personal jurisdiction as an affirmative defense in its timely answer to the complaint. See Fla. R. Civ. P. 1.140(b) (2014) (providing that the defense of lack of personal jurisdiction “may be made by motion at the option of the pleader” but “shall be asserted in the responsive pleading, if one is required” (emphases added)). The trial court, therefore, correctly concluded that VWAG- had not waived its challenge to personal jurisdiction.

C. Specific Jurisdiction and Minimum Contacts

Mrs. Jones concedes that general jurisdiction does not lie and that she is proceeding only on a theory of specific jurisdiction under section 48.193(l)(a)(6), which provides for specific jurisdiction when a defendant

[c]aus[es] injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
a. The defendant was engaged in solicitation or service activities within this state; or
b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.

Mrs. Jones adequately alleged both specific jurisdiction under the long-arm statute and the requisite minimum contacts with Florida. The second amended complaint alleged that VWAG is a German company with its principal place of business in Wolfsburg, Germany, and that “[a]t all times material to this cause of action, [VWAG] manufactured, sold and/or distributed asbestos-containing products throughout the United States, including Florida, which [Mr. Jones] purchased, used[,] and was exposed to in his life, causing [Mr. Jones’s] mesothelioma and eventual death” in Florida. It alleged further that VWAG “is a foreign corporation with offices, agents and/or agencies in Florida that now conducts and has conducted significant revenue-producing business in Florida,” that it “has derived substantial revenue from intrastate and interstate commerce and could reasonably expect [its] sale and distribution of products to have consequences in Florida or any other state,” that its “commercial activities in Florida were not isolated,” and that it “has maintained sufficient contacts with Florida and/or transacted substantial revenue-producing business in Florida.”

VWAG then satisfied its burden to file a legally sufficient affidavit contesting the jurisdictional allegations in the complaint, see Venetian Salami, 554 So.2d at 502, by submitting the Ceresney affidavit, which averred:

1. VWAG does not and never has conducted business in the State of Florida, and does not have and never has had any offices, manufacturing plants, distribution or service centers or other facilities in Florida;
2. VWAG does not have, nor had it ever had a general manager in Florida, nor has it ever had any person or subsidiary in Florida who can exercise discretion or control over VWAG; .
3. VWAG does not have nor has it ever had any employees, sales representatives, corporate officers, or directors in Florida;
4. VWAG does not have nor has it ever had any bank accounts or a mailing address or telephone number in Florida;
5. VWAG has never been obligated to pay taxes in Florida;
6. VWAG has never been qualified, licensed, authorized, or registered to do business in Florida;
7. VWAG does not have nor has it ever had a registered agent or other person authorized to accept service of process in Florida;
8. VWAG does not have any control over the distribution of its products in the United States; and
9. VWAG ceased production of the “Quantum” model automobile in 1987, and that the last model year in which the Quantum was equipped with asbestos-containing brakes as original equipment was the 1985 model year.

Mrs. Jones argues that the Ceres-ney affidavit was mot based on personal knowledge and, therefore, was not legally sufficient. In this context, however, “legally sufficient” means that “the defendant’s affidavit must' contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.” Hilltopper Holding Corp. v. Cutchin, 955 So.2d 598, 601 (Fla. 2d DCA 2007). Consequently, we decline Mrs. Jones’s invitation to look behind the allegations in the affidavit, and we conclude that the assertions in the Ceresney affidavit sufficiently refuted the jurisdictional allegations in the complaint.

The burden then shifted back to .Mrs. Jones to prove by affidavit or other sworn proof that a basis for jurisdiction exists, see Venetian Salami, 554 So.2d at 502, and, as mentioned above, she submitted multiple documents and the Saade affidavit, in which Mr. Saade attested to his 2014 online search for and purchase of Volkswagen Original Equipment Manufacturer replacement brake pads from a Miami-based auto parts supplier. But before the trial court could compare the parties’ submissions and determine whether it could resolve the jurisdictional issue based on undisputed facts, see id. at 502-03, counsel for VWAG requested an evidentiary hearing on, the jurisdictional issue. Counsel for Mrs. Jones agreed and, as also mentioned above, submitted the plethora of additional materials in advance of the hearing. Therefore, VWAG invited, and Mrs. Jones failed to preserve, any error in the trial court’s failure to make the initial determination contemplated by Venetian Salami before the evidentiary hearing. See Mann v. Yeatts, 111 So.3d 934, 937 (Fla. 5th DCA 2013) (explaining limitations on review of unpreserved and invited errors).-

At the hearing, Mrs. Jones presented these materials to the court in the form of a Power Point presentation, and counsel for both parties merely presented argument ■ based on their prior filings. Although, at oral argument, both.-parties characterized this- presentation as a “limited evidentiary hearing,” the trial court failed to receive testimony or other evidence on jurisdiction, and it also failed to announce any findings of fact or . explanation for its conclusion that its exercise of personal jurisdiction would be proper. In short, the. hearing was wholly inconsistent with the “limited evidentiary hearing” contemplated by Venetian Salami. See Teva, 181 So.3d at 521 (holding that limited evi-dentiary hearing under Venetian Salami was required because parties’ affidavits and sworn proof could not be reconciled in determining jurisdiction; “[although the trial court conducted a hearing on the motion to dismiss, it did'not receive any testimony or evidence at the hearing”; and “[t]he order denying the motion to dismiss contains no reasoning and does not explain how the trial court resolved the disputed issues of fact”); Madonna, 95 So.3d at 992 (explaining that, although evidentiary hearing under Venetian Salami “is, by definition, to be ‘limited,’ ” hearing below was insufficient' even under that standard because “the trial court never received testimony or evidence” and “[t]he order denying the motion contains no reasoning and does not explain how the trial court resolved the disputed issues of fact”).

We do not reverse for a proper hearing because neither party challenges on appeal the procedure employed below and also because, when viewing any disputed facts in the light most favorable to Mrs. Jones, we are able to conclude that she would, have been unable to establish the requisite minimum contacts even if the trial court had conducted such a hearing. See WH Smith, PLC v. Benages & Assocs., Inc., 51 So.3d 577, 581 (Fla. 3d DCA 2010) (reversing denial of motion to dismiss, which trial court did not base on live testimony but bn voluminous discovery, “because, as a matter of law, based on the disputed facts, which we view in the light most favorable to [plaintiff], and the un-controverted facts, [plaintiff] cannot establish that [defendant parent corporation] was the alter ego of the [defendant subsidiary corporations]”). Nothing that Mrs. Jones presented to the cdürt established that VWAG has' sufficient minimum contacts with Florida. First, the only Volkswagen on which Mr. Jones did any work in Florida was his-own 1987 Quantum. He personally and unilaterally' had brought that car to Florida from upstate New York, and the “unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Rather, the “defendant’s suit-related actions must create a substantial connection with the state before that state can exercise jurisdiction consistent with due process.” Teva Pharm., 181 So.3d at 521-22 (emphasis added), (citing Walden v. Fiore, — U.S.—, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014)); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this ‘fair warning1 requirement is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” (footnote and internal citation omitted)). Moreover, nothing in the record indicates that the replacement brakes that Mr. Jones installed in Florida eontainéd asbestos or were even manufactured by VWAG. Indeed, Mr. Jones testified at his deposition that he could not recall what type, of replacement brakes he had installed.

Furthermore, although Mrs. Jones relies on an agency or parent-subsidiary theory to attribute to VWAG VWOA’s conduct in Florida—specifically, VWOA’s maintenance of a “parts distribution center” in Jacksonville since 1967—Mrs, Jones has not established that VWAG exercised the “ ‘high and very significant’ degree of control over [VWOA’s] internal day-to-day operations”. necessary to support her theory. See Extendicare, Inc. v. McGillen, 957 So.2d 58, 64 (Fla. 5th DCA 2007). Nor has she established how this “parts distribution center” is related to the conduct giving rise to this action. See Moro Aircraft Leasing, 206 So.3d at 817 (explaining that defendant’s contacts with forum state “must be related to the plaintiffs cause of action or have given rise to it” (quoting Fernandez, 69 So.3d at 299)).

Finally, the Saade affidavit establishes, at most, that a Florida resident can order VWAG-manufactured replacement brakes via the internet; 'it does not establish how those brakes get to Florida. But, even if they were sent directly from VWAG, evidence that a foreign company will fill an online order for a particular product falls far short of establishing that that company has “purposely availed” itself of the privilege of conducting activities within a particular state. To conclude otherwise would explode “the territorial limitations on the power of the respective States,” which the United States Supreme Court warned against in Hanson v. Denckla, 357 U.S. 235, 250-51, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958):

As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a -foreign tribunal less. burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714[, 24 L.Ed. 565] [ (1877) ], to the flexible standard of International Shoe Co. v. [Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ]. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. Those restrictions are more than a guarantee of immunity from inconvenient, or distant litigation. They are a consequence of territorial limitations on the power of the respective States.

(Internal citation omitted.)

D. Remedy

Although we conclude that the trial court erred in denying VWAG’s motion to dismiss, we do not simply remand for entry of an order dismissing VWAG from suit. Both in the trial court and on appeal, Mrs. Jones asserted that VWAG thwarted her attempts to conduct limited jurisdictional discovery. She filed her February 19, 2015, motion to compel before VWAG filed its motion to dismiss, but the trial court, having denied VWAG’s motion to dismiss, never addressed the motion to compel to the extent that it sought jurisdictional discovery. On appeal, Mrs. Jones requests that we remand for a new hearing after she “has had the opportunity to take limited jurisdictional discovery, including the deposition of VWAG’s corporate representative,” but doing so would effectively grant her motion to compel, which we may not do in the first instance. See Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So.2d 1201, 1207 (Fla. 2d DCA 2009) (explaining that we may not rule on questions that trial court never addressed). Accordingly, we remand for the trial court to consider Mrs. Jones’s motion to compel, to the extent that it sought jurisdictional discovery, in light of this opinion.

IV. CONCLUSION

Based on the foregoing, we reverse the trial court’s order denying VWAG’s motion to dismiss the second amended complaint for lack of personal jurisdiction and remand with directions to consider Mrs. Jones’s February 19, 2015, motion to compel to the extent that the motion sought discovery relevant to the issue of personal jurisdiction. If the trial court denies Mrs. Jones’s motion to compel jurisdictional discovery, it shall enter an order dismissing VWAG from the suit. If the trial court grants the motion to compel jurisdictional discovery, the court and the parties shall follow the procedure prescribed in Venetian Salami to resolve VWAG’s motion to dismiss.

Reversed; remanded with directions.

VILLANTI, C.J., and NORTHCUTT, J., Concur.

      . We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(B), 9.130(a)(3)(C)(i).

      . These other documents included her counsel's letters to VWAG pursuant to section 57.105; what purportedly were excerpts from Mr. Jones’s 2009 deposition; copies of correspondence between the parties; a copy of her unverified second amended complaint; the prior order from this case quashing service of-process but denying dismissal as premature; excerpts of depositions of a VWOA corporate representative, Robert Cameron, in unrelated cases in which VWAG was not a party; an affidavit of Scott -McConnell that pertains to codefendants Honeywell Deutschland GmbH, Honeywell Bremsbelag GmbH f/k/a AlliedSig-nal Bremsbelag GmbH f/k/a Jurid Werke GmbH, and Honeywell Aftermarket Europe GmbH’s (collectively, Honeywell Germany); a deposition of codefendants Honeywell Germany’s corporate representative; and the deposition of the former President and CEO of VWOA taken in an unrelated case.

      . These materials included duplicates of some of the items described in the previous footnote, in addition to the following; copies of VWAG’s answers to interrogatories in an unrelated New York case; VWOA’s answers to interrogatories in an unrelated California case; correspondence from VWOA to the United States Environmental Protection Agency; a copy of a Volkswagen Magazine advertisement; a copy of what appears tó be a screen print of an internet search for anything related to VWAG and Florida; a document that appears to be ,a comprehensive listing of VWAG’s interests in various global subsidiaries; a copy of a Power Point presentation presented at an automobile industry conference in 2012; an article, allegedly from VWAG’s website, lauding Audi’s inroads into "piloted” (driverless) vehicles and highlighting Audi’s accomplishment as the first automaker to conduct a "piloted vehicle” test on a public road (on the Lee Roy Selmon expressway in Tampa); and a copy of a 1967 brochure listing Volkswagen distributers and dealers in North America.

      .The record reflects much squabbling between the parties regarding both the nature of the hearing and Mrs. Jones's need for and access to jurisdictional discovery. Absent any findings by the circuit court, we decline to wade into those areas.

      . Formerly section 48.193(1)(f). See ch. 2013-164, § 1, at 2012-13, Laws of Fla.

      . "Specific jurisdiction” is jurisdiction that is "confined to adjudication of 'issues deriving from, or connected with, the very controversy that establishes jurisdiction,’ ” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (quoting Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev, 1121, 1136 (1966)), and "requires proof of a causal connection between the plaintiff's claim and the defendant’s activity in the state,” Erie Ins. Exch. v. Larose, 202 So.3d 148, 152 (Fla. 2d DCA 2016),

      . Rule 1.140(b) was subsequently amended to provide that the defense of lack of personal jurisdiction "must be asserted in the responsive pleading, if one is required.” In re Amendments to Fla. Rules of Civil Procedure, 199 So.3d 867, 871 (Fla. 2016) (emphasis added) (effective Jan. 1, 2017).

      . To the extent that Mrs. Jones argues that VWAG’s postanswer motion to dismiss the complaint based on lack of personal jurisdiction constituted an impermissible successive motion under rule 1.140(g), Mrs. Jones did not make this argument to the trial court; therefore, this court will not consider it on appeal. See Mann v. Yeatts, 111 So.3d 934, 937 (Fla. 5th DCA 2013) ("Absent fundamental error, arguments not presented to the trial court may not be considered for the first time on appeal.”).

      . Because we conclude that Mrs. Jones failed to establish the requisite minimum contacts, we do not address whether she established facts supporting long-arm jurisdiction under section 48.193(l)(a)(6).

      . In her brief, Mrs/Jones describes her allegation that Mr. Jones was exposed to asbestos in Florida while performing a brake job on the Quantum as "[a] key disputed jurisdictional allegation.” At oral argument, however, her counsel'asserted that the Quantum was "irrelevant” to the personal-jurisdiction calculus.


author: PER CURIAM.

text:
    R.M., Appellant, v. R.C., Appellee.
    Case No. 2D16-3398
    District Court of Appeal of Florida, Second District.
    Opinion filed May 19, 2017
    Victor R. Smith and Amilee M.S. Kalapp of Victor Smith Law Group, Winter Haven, for Appellant.
    Antonio G. Martin and Orlando Sheppard of Martin Law Group, P.L., Celebration, for Appellee.
   PER CURIAM.

R.M. appeals the order granting R.C.’s motion for temporary relief and injunction in this action to establish paternity, custody, and support of the parties’ minor child. The order grants equal time sharing between the parties, awards child support to R.M. based on the child support guidelines and R.C.’s financial affidavit, and enjoins the parties from taking the child out of state without written permission. We affirm the portions of the order related to time sharing and the injunction. See Smith v. Smith, 39 So.3d 458, 459 (Fla. 2d DCA 2010) (“When there is no trial transcript in our appellate record, we ‘can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.’ ” (alteration in original) (quoting Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979))). However, we reverse the trial court’s determination of child support because it fails to include specific findings as to the parties’ incomes and to attach a child support guidelines worksheet. See Wilcox v. Munoz, 35 So.3d 136, 138 (Fla. 2d DCA 2010) (reversing child support award when the “order made no findings regarding the parties’ incomes or their ability to pay and did not attach a child support guidelines worksheet”).

Affirmed in part; reversed in part.

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


author: SLEET, Judge.

text:
    POLK COUNTY, Appellant, v. HIGHLANDS-IN-THE-WOODS, L.L.C., Appellee.
    Case No. 2D15-5642
    District Court of Appeal of Florida, Second District.
    Opinion filed May 19, 2017

      Hank B. Campbell of Valenti Campbell Trohn Tamayo <& Aranda, P.A., Lakeland, for Appellant.
    Eric S. Adams and Lauren A. Taylor of Shutts & Bowen LLP, Tampa, for Appel-lee.
   SLEET, Judge.

Polk County appeals the order denying its motion for attorney fees pursuant to section 768.79, Florida Statutes (2016), following the entry of summary judgment in its favor against Highlands-'in-the-Woods, LLC (Highlands). Because Polk County’s proposal for settlement satisfied the requirements of Florida Rule of Civil Procedure 1.442 and Highlands’ - complaint, did not allege any claim seeking equitable relief, we reverse and remand for the trial court to grant Polk County’s fee motion and determine the amount of reasonable attorney fees.

Highlands sued Polk County alleging federal and state takings and inverse condemnation claims arising from the installation of a reclaimed water system on a development owned by Highlands. Section 702.G of the Polk County Land Development Code required Highlands to install a reclaimed water system in order to obtain its* development permit from Polk County. Highlands alleged that although it installed the system in 2006, Polk County was unable to supply reclaimed water until 2008. In its complaint Highlands sought damages for the alleged taking and the expenses it incurred as a result of its lack of access to the promised reclaimed water.

On December 2, 2011, Polk County served a proposal of settlement for $6000 on Highlands. On July 14, 2016, the trial court granted summary judgment in Polk County’s favor. That order was recently affirmed by this court on appeal. Highlands-in-the-Woods, LLC v. Polk County, No. 2D15-2801, 217 So.3d 1176, 2017 WL 1547939 (Fla. 2d DCA April 28, 2017). The trial court awarded Polk County costs under section 67,041, Florida Statutes (2016), but denied its motion seeking attorney fees under section 768.79. On appeal, Polk County argues that the denial of attorney fees was error because its proposal for settlement complied with rule 1.442 and Highlands did not' raise any equitable claims of relief in its complaint. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 374 (Fla. 2013) (“[Section 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief[ ] and in which the defendant has served a general, offer of judgment that seeks release of all claims.”). We agree.

Highlands contends that Polk County’s offer of settlement was invalid because it failed to state the nonmonetary conditions of settlement, the amount proposed to settle a claim of punitive damages, and that it would resolve all damages that would otherwise be awarded in a final judgment. See Fla. R. Civ. P. 1.442(c). “Entitlement to attorney’s fees and costs under an offer of judgment is reviewed de novo.” Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134 (Fla. 2d DCA 2012).

Polk County’s proposal for settlement offered $5000 “in exchange for a dismissal with prejudice of all claims against ... POLK COUNTY” and stated that it was “intended as a full settlement of all claims asserted by [Highlands] in this lawsuit.” The nonmonetary relief sought by Polk County was the dismissal with prejudice of all of Highlands’ claims. The proposal was sufficiently particular to put Highlands on notice that Polk County was seeking the dismissal with prejudice of all of its claims asserted in this lawsuit. Had Highlands accepted the proposal, there , would have been no need for judicial interpretation of its terms. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006) (explaining that “the proposal should be capable of execution without the need for judicial interpretation” (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002))). This general statement of the claims to be resolved was sufficient to include all damages that would otherwise be awarded in a final judgment. See Miley v. Nash, 171 So.3d 145, 148 (Fla. 2d DCA) (“[Wjhen the proposal indicates that it seeks to resolve all claims identified in the complaint, or in a specific count, it is unnecessary to identify the various elements of damages in the settlement proposal.” (quoting Lucas, 813 So.2d at 972 n.1)), review denied, 192 So.3d 40 (Fla. 2015). Furthermore, because Highlands was not seeking punitive damages, Polk County was not required to include those amounts in its proposal for settlement. See Lucas, 813 So.2d at 973 (“We conclude that the ‘if any’ language of [rule 1.442(c)(2)(E)] requires a proposal for settlement to include terms for settlement of a punitive damage claim only when the pleadings contain a pending claim for punitive damages.”). Accordingly, Polk County’s proposal for settlement fulfilled the requirements of rule 1.442.'

Highlands also argues that because it included a count for declaratory relief, section 768.79 does not apply. See Diamond Aircraft, 107 So.3d at 374. When determining whether a complaint alleges an action for damages or one for equitable relief, Florida courts “look[] to whether the ‘real' issue’ is one for damages” or equitable relief. Nat’l Indem. Co. of the S. v. Consol. Ins. Servs., 778 So.2d 404, 408 (Fla. 4th DCA 2001); see also DiPompeo Constr. Corp. v. Kimmel & Assocs., 916 So.2d 17 (Fla. 4th DCA 2005). In this case, Highlands’ complaint included three counts for relief: (1) declaratory relief, (2) inverse condemnation under the Florida Constitution, and (3) inverse condemnation under the U.S. Constitution. In each count Highlands sought recovery of the additional development expenses it incurred as a result of the county’s requirement that it install a reclaimed water system and the county’s failure to supply it with reclaimed water for irrigation of the development. Although Highlands styled count one as seeking declaratory relief, it requested that the trial court “enter a declaratory judgment finding that ,.. [Highlands] is permitted to obtain compensation, including attorneys’ fees, for the costs associated with and impacts from the actions of POLK COUNTY.” Highlands did not seek the return of the property dedicated to the county for the reclaimed system or .any other- equitable remedy; instead, it sought compensation for the losses it incurred related to the water reclamation system. Therefore, the “real issue” in this case was entitlement to damages, not a declaratory judgment. See DiPompeo, 916 So.2d at 18 (holding that section 768.79 applied to a declaratory judgment action when “the central issue ... was the entitlement to money damages”); Nelson v. Marine Grp. of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996) (rejecting the argument that section 768.79 did not apply to an action seeking a declaratory judgment when “the only matter at issue was money”).

Because Polk County’s proposal for settlement satisfied the requirements of rule 1.442 and Highlands’ complaint alleged an action for damages, not equitable relief, we reverse and remand for the trial court to grant Polk County’s attorney fee motion and to determine the amount of reasonable attorney fees.

Reversed and remanded with instructions.

NORTHCUTT and LUCAS, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Joseph S. SCIANDRA and Lisa Sciandra, Appellants, v. PENNYMAC CORP., Appellee.
    Case No. 2D15-5189
    District Court of Appeal of Florida, Second District.
    Opinion filed May 19, 2017
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.
    Nancy M. Wallace, of Akerman LLP, Tallahassee; William P. Heller, and Andrew R. Ingalls, of Akerman LLP, Fort Lauderdale; and Adam G. Schwartz, of Akerman LLP, West Palm Beach, for Ap-pellee.
   BADALAMENTI, Judge.

Joseph and Lisa Sciandra appeal a final judgment of foreclosure in favor of Penny-Mac Corp. The Sciandras argue that the trial court improperly awarded attorney’s fees of $11,309 to PennyMac because Pen-nyMac failed to present expert testimony as to the reasonableness of their attorney’s hourly rate and hours expended. We agree. See Sourcetrack, LLC v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) (first citing Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006); then citing Yakubik v. Bd. of Cty. Comm’rs, 656 So.2d 591, 592 (Fla. 2d DCA 1995)).

We thus reverse the award of attorney’s fees, and remand with instructions to reduce the amount of the final judgment of $657,262.35 by $11,309 to $645,953.35. We affirm the final judgment of foreclosure in all other respects.

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

CASANUEVA and SALARIO, JJ., Concur.

      . Generally, if a prevailing party fails to present independent expert testimony to support an award of fees at the trial level, but the record is not completely devoid of evidence as to the rate and hours of the prevailing party's trial counsel, we would remand for a further determination as to the amount of the prevail-mg party’s fees. Snow, 932 So.2d at 413 (citing Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998)). However, Penny-Mac has stipulated that this court should simply subtract the award of fees and costs from the amount of the final judgment without the need for remand.


author: LUCAS, Judge.

text:
    IN RE GUARDIANSHIP OF Leon BLOOM, an incapacitated person. Marshall Bloom, individually, Appellant, v. Dorothy B. Bloom, individually, and Robert M. Elliot, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009. Appellees.
    Case No. 2D16-2985
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2017

      James L. Essenson, Barbara J. Welch, and Matthew J. Kelly of Law Firm of James L. Essenson, Sarasota, for Appellant.
    Allan F. Baily of Law Offices of Baily & Baily, P.A., Sarasota, for Appellee Dorothy B. Bloom.
    No-appearance for Appellee Robert M, Elliott, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009. '
   LUCAS, Judge.

Marshall Bloom, a beneficiary and former personal representative of the late Leon Bloom’s estate, challenges the circuit court’s order denying his motion to recover his attorney’s fees. The circuit court correctly construed the limits of our mandate from an earlier appeal and rejected Marshall’s “common fund rule” argument for recovery of his fees but then erroneously concluded that his fee motion asserted no statutory basis for the court to consider. In fact, it did. Thus, while we can affirm most of the determinations the circuit court has thus far made, we must reverse the circuit court’s order so that the court may rule on the remaining argument presented in the fee motion.

I.

In 1988, Leon executed a trust naming his wife, Dorothy Bloom, as a secondary beneficiary and Robert Johnson as the trust’s trustee. When he began to sense that Leon’s health and acuity may have been in decline, Mr. Johnson filed a guardianship proceeding in 2014, in which he sought to have Leon’s nephew, Marshall, appointed as emergency temporary guardian of Leon’s person and property. Both Leon and Mr. Johnson passed away in 2015 while Leon’s guardianship proceeding was still pending. At the time of Leon’s death, Dorothy had pending in the guardianship proceeding an unresolved claim for reimbursement from Leon’s trust for funds she alleged she had used to care for her husband. From this claim, a flurry of litigation ensued between Leon’s family members and their attorneys, mostly revolving around who could represent what and whom.

After Mr. Johnson’s- death, Marshall, as the personal representative of Leon’s estate, moved to be substituted in the guardianship proceeding as the petitioner in order to challenge Dorothy’s claim. The circuit court granted Marshall’s motion for substitution on October 23, 2015. Mare J. Soss, Esq.,, the successor trustee of Leon’s trust, then filed a petition for writ of cer-tiorari with this court on November 11, 2015, seeking to quash the order granting the substitution of Marshall as the petitioner. On March 23, 2016, in case number 2D15-4864, this court issued a per curiam order dismissing Mr. Soss’s certiorari petition. In re Guardianship of Bloom, 189 So.3d 769 (Fla. 2d DCA 2016) (table decision). In addition to dismissing the petition, our court also granted Marshall’s motion for appellate attorney’s fees in case number 2D15-4864. While granting entitlement, our order remanded the matters of the amount and appropriate source of those fees for the circuit court’s ultimate determination.

Shortly before Mr. Soss began pursuing this unsuccessful certiorari petition, Marshall, through his attorney, James L. Es-senson, Esq., filed a motion in the circuit court to disqualify Mr. Soss as trustee and appoint an independent trustee over Leon’s trust. The circuit court agreed with Marshall and granted the motion to disqualify Mr. Soss as trustee on April 7, 2016. Attorney Robert Elliott was then appointed in Mr. Soss’s stead as the trustee of Leon’s trust.

Thus, in these early rounds of litigation, Marshall had two preliminary successes: the first, this court’s order dismissing the certiorari petition challenging his substitution in Leon’s guardianship proceeding; the second, the circuit court’s order disqualifying the trustee of Leon’s trust. Marshall then sought an award of his attorney’s fees for the latter victory by filing a motion and a memorandum of law in the circuit court in which he posited three bases for recovery. First, Marshall argued that this court’s prior fee award in the dismissed certiorari petition somehow constituted a finding that Mr. Essenson’s services had benefitted Leon’s estate, which, somehow, encompassed his efforts to disqualify Mr. Soss as trustee. As Marshall put it in his memorandum before the circuit court, since this court granted his entitlement to fees in the certiorari proceeding, a proceeding which enabled Mr. Essenson to maintain an objection to Mr. Soss’s service as trustee, then “a fortiori, the Essenson firm is entitled to fees and costs for prosecuting” the disqualification motion, “which [was] clearly a benefit to the trust.” According to Mr. Essenson, our prior determination of entitlement to appellate fees in the certiorari proceeding became “the law of the case,” so that all of Mr. Essenson’s work going forward must be deemed a benefit to Leon’s trust. Second, Mr. Essenson posited that he should be.awarded his fees under the “common fund” theory of recovery, a common law claim for attorney’s fees found in equitable jurisprudence. As his third basis, Mr, Es-senson argued that he was entitled to attorney’s fees under section 736.1005(1), Florida Statutes (2015), which provides that “[a]ny attorney who has rendered services to a trust may be awarded reasonable compensation from the trust.”

On June 8, 2016, the circuit court denied Marshall’s motion for fees associated with disqualifying Mr. Soss. In its order denying the motion, the circuit court dispensed with Mr. Essenson’s first argument out of hand: “the Essenson Firm’s argument [is] unavailing, as the Essenson Firm reads the Second District’s mandate much broader than the narrow issue on appeal.” In apparent reference to Marshall’s common fund argument, the circuit court “declined] to award attorney’s fees as a matter of equity.” Finally, the court determined that there was no statutory basis for Mr. Essenson to recover his fees.

Marshall now appeals this order.

II.

Our jurisdiction to review the probate order before us is a preliminary point we must address. On January 1, 2012, Florida Rule of Appellate Procedure 9.170 took effect. Subsection (b) of the rule begins:

Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.

The subsection continues by listing those orders that finally determine a right or obligation, which “include, but are not limited to,” twenty-four separately described categories. Amongst the twenty-four categories of final, appealable orders listed in the rule, we find (b)(23), orders that “award attorneys’ fees or costs.” Here, however, the circuit court’s order denied Marshall’s motion for attorney’s fees and so is, quite obviously, not one that could be fairly read to “award” anyone’s fees or costs. See, e.g., Award, Black’s Law Dictionary (10th ed. 2014) (defining the verb “award” as “[t]o grant by formal process or by judicial decree”). Other provisions within subsection (b) provide for review of orders that, for example, “determine a motion,” or “grant or deny” a petition, making the selection of the word “award” in (b)(23) all the more conspicuous by its contrast.

Nevertheless, we are satisfied that an order denying attorney’s fees or costs for an interested person remains an ap-pealable order following the passage of rule 9.170. Rule 9.170 generally describes appealable probate and guardianship orders as those “that finally determine a right or obligation of an interested person” under the probate code. This language mirrors the defining language that was in the rule’s predecessor, rule 9.110(a)(2), which itself was merely a restatement of former Florida Rule of Probate Procedure 5.100—a deliberate repetition, according to the Florida Appellate Court Rules Committee’s 1996 amendment note, because rule 9.110(a)(2) was “not intended to change the definition of final order for appellate purposes.” Fla. R. App. P. 9.110 committee notes (1996 amend.). Thus, the traditional rule that a probate order is sufficiently final for Appellate review when “judicial labor” has ended as to the issue the order addresses appears to remain intact following rule 9.170’s passage, just as it had when rule 9.110 was enacted. See Dempsey v. Dempsey, 899 So.2d 1272, 1273 (Fla. 2d DCA 2005) (“Rule 9.110(a)(2) ‘does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ ” (quoting In re Estate of Walters, 700 So.2d 434, 435 n.1 (Fla. 4th DCA 1997))); see also Armstrong v. Exceptional Child Ctr., Inc., — U.S. —, 135 S.Ct. 1378, 1386, 191 L.Ed.2d 471 (2015) (“[Wjhen ‘judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute’ is presumed to incorporate that interpretation.” (quoting Bragdon v. Abbott, 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998))); State v. Losada, 175 So.3d 911, 914 (Fla. 4th DCA 2015) (applying the prior-construction canon of interpretation). While the inclusion of a list of appealable probate and guardianship orders was a novel development when rule 9.170 was enacted, it must be remembered that the list’s prefatory text, “include, but are not limited to,” signals a nonexclusive listing. See Pro-Art Dental Lab, Inc. v. Y-Strategic Grp., LLC, 986 So.2d 1244, 1257 (Fla. 2008) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.” (alteration in original) (quoting Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941))); Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So.3d 1240, 1241 (Fla. 1st DCA 2012) (observing that rule 9.170 “provides a nonexclusive list of 24 categories of probate and guardianship orders that are appealable”). In itself, then, this list of categories merely illustrates the kinds of probate and guardianship orders that are considered appeal-able; the rule’s text leaves in place what had been the traditional formulation of finality for appealable orders in probate and guardianship proceedings.

Applying that construction of rule 9.170, we conclude that the order denying attorney’s fees here ended the judicial labor needed to adjudicate that issue. See Fabing v. Eaton, 941 So.2d 415, 417 (Fla. 2d DCA 2006) (“Generally, an order denying a motion for attorney’s fees is a final, ap-pealable order when that order ends the judicial labor as to that portion of the case.”). And it is beyond dispute that Marshall was an interested party as defined under the probate code, both as a former personal representative at the time the fees were incurred and as a current beneficiary of Leon’s estate. See § 731.201(23), Fla. Stat. (2014); Wheeler v. Powers, 972 So.2d 285, 287-88 (Fla. 5th DCA 2008); Carvel v. Godley, 939 So.2d 204, 208 (Fla. 4th DCA 2006). Accordingly, we have jurisdiction to consider the appeal of this order, an order we review de novo. See Country Place Cmty. Ass’n, Inc. v. J. P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“[Wjhere ... the circuit court’s determination of entitlement to attorney’s fees is based on a conclusion of law concerning the interpretation of a statute or contractual provision, we employ a de novo standard of review.”).

III.

A.

Marshall asserted three potential bases for recovery of his attorney’s fees in connection with the disqualification of Mr. Soss as the trustee of Leon’s trust. We can dispense with two of them in short order. First, with regard to this court’s prior order awarding attorney’s fees in connection with Mr. Soss’s unsuccessful certiorari petition, the circuit court put it well when it rejected Marshall’s assertion that his victory in that prior matter entitled to him to an award of fees in a subsequent matter: Marshall simply read this court’s mandate in the prior proceeding “much broader than the narrow issue on appeal” actually was. The scope of this court’s mandate—and its award of attorney’s fees—in case number 2D15-4864 extended no further than the fees that were incurred in litigating the issues that were presented in that proceeding (which, again, revolved around the propriety of Marshall’s substitution in Leon’s guardianship proceeding). Cf. FL-Carrollwood Care, LLC v. Gordon, 72 So.3d 162, 165 (Fla. 2d DCA 2011) (“[A] trial court lacks authority to deviate from the terms of the appellate court’s instructions on remand.”). The circuit court was prohibited from extending the reach of our order and mandate beyond those issues, and so we can readily affirm that aspect of the circuit court’s order without further - discussion. Cf. Marine Midland Bank Cent. v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980) (holding that the trial court erred by entering order awarding attorney’s- fees beyond scope of mandate and stating that “[w]hen a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it”).

As' to the second argued basis, Marshall’s contention that he is entitled to compensation of his attorney’s fees under a “common fund” theory of recovery, here as well, we find no cause to disturb the circuit court’s ruling. Whether or to what extent Marshall’s efforts removing Mr, Soss as the trustee actually conferred a benefit of any appreciable value' to the trust was, as the circuit court observed in its order, “within the court’s discretion to find.” It found He was not entitled to recover his attorney’s fees on that basis. Marshall has not explained, and we fail to see, how that discretion was in any way abused here, and so we affirm that ruling in the order as well.

There is, however, one remaining basis Marshall asserted as a potential avenue for recovering his attorney’s fees in seeking Mr¡ Boss's disqualification as the trasteé of Leon’s trust, section 736.1005 of the Florida Statutes. On this point,' the circuit court’s order stated,only that there was “no statutory or contractual basis for attorney’s fees.” That is incorrect. Section 736.1005 states: “Any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust.” Since the probate court assumed jurisdiction over the trust and this underlying dispute concerning the trust’s trustee, the statute was applicable here and could have provided a basis for Marshall to recover his attorney’s fees. We express no opinion about whether such an award would be proper under section 736.1005. That, of course, will be a matter within the circuit court’s discretion to first decide. Cf. Saints in Christ, Temple of Holy Ghost v. Fowler, 448 So.2d 1158, 1159 (Fla. 1st DCA 1984) (“[W]e do not imply that an award of attorney’s fees is proper in this case .... On remand, the trial judge shall determine entitlement as well as the amount of any attorney’s fees, subject, of course, to appropriate review by this court if sought.”). We hold only that the circuit cqurt should have considered and ruled upon this argument before it denied Marshall’s motion. See Boykin v. Garrison, 658, So.2d 1090, 1090.(Fla. 4th DCA 1995) (“The law is well settled that, a trial court must exercise its discretion where discretion has been provided .... ” (citing Glosson v. Solomon, 490 So.2d 94 (Fla. 3d DCA 1986))). On that basis, we are constrained to reverse the circuit court’s order so that the-court can now make a ruling on Marshall’s statutory argument for fees.'

B.

Having concluded that Marshall’s statutory argument to recover his fees requires further consideration by the circuit court, we pause to address a notification issue concerning his motion, as there was disagreement below about this issue and some clarification may be beneficial to the circuit court and the parties on remand. Section 736.1005(1) includes the following somewhat -awkwardly crafted sentence regarding notice:

The attorney [who has rendered services to a trust] may apply to the court for an order awarding attorney fees and, after notice and service on the trustee and all beneficiaries entitled to an accounting under s. 736.0813, the court shall enter an order on the fee application.

While ultimately denying Marshall’s motion for attorney’s fees, the circuit court observed during the hearing that the trustee and approximately forty named beneficiaries of. Leon’s trust should have been provided prior notice of the hearing under this provision of the statute. Marshall disagreed with the circuit court’s reading. Instead, he posits that he need not have provided notice at the time he filed his motion, only sometime before the court entered its order on his motion—a view ostensibly supported by the compound-complex- structure of this statute’s sentence and the presence of a dependent, adverbial clause (“after. notice and service”) that, grammatically, would seem to relate only to the independent clause it precedes (“the court shall enter an order on the fee application”). Cf. Fla. Hurricane Protection & Awning, Inc. v. Pastina, 43 So.3d 893, 900-01 (Fla. 4th DCA 2010) (Farmer, J., dissenting) (“The subordinate clause functions adverbially, laying down the condition under which the independent clause will have effect.”). Thus, as Marshall would have it, the court’s entry of an order on his fee application would be the operative deadline that implicates the statute’s requirement, to furnish notice of that application.

That is a rather peculiar way to read a notice provision. It also elides the real query—the precise ambiguity, if you will—that this section holds. Neither, the statute’s sentence’s text, its- structure, nor the rules of grammar provide a definitive answer to the temporal question: When, exactly, does notice under this statute have to be provided to these parties? We must look to rules of statutory construction for guidance. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla. 2000) (“[I]f the language of the statute is unclear, then rules of statutory construction control.” (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984))). Here, the principle of reading the notice provision in pari materia directs us to other parts of this compound-complex sentence that a grammatical convention, strictly applied, would otherwise avoid. See O’Hara v. State, 964 So.2d 839, 843 (Fla. 2d DCA 2007) (observing that statutory language ought not to be read in isolation, but “taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part” (citing Thompson v. State, 695 So.2d 691, 692 (Fla. 1997))); see also Wagner v. Botts, 88 So.2d 611, 613 (Fla. 1956) (“We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”). Within this very sentence, in the first independent clause, a precise point in time to utilize as a reference point is apparent— the attorney’s application for fees—a point that coincides precisely with when notices of hearings are ordinarily required. See Stevens v. Nationstar Mortg., LLC, 133 So.3d 628, 629 (Fla. 5th DCA 2014) (observing that the requirement that all filed pleadings and papers in court proceedings be served on each party or their counsel “is to satisfy the constitutional requirement of due process”); see also Fla. R. Jud. Admin. 2.516(a). That is how we construe this provision. Reading this statute’s sentence as a whole, in pari materia, we hold that an applicant for attorney’s fees under section 736.1005 must serve an application for attorney’s fees to the parties identified in the statute contemporaneously with the filing of the application with the court.

Accordingly, we reverse the circuit court’s order to the extent that the court did not rule upon Marshall’s statutory argument to recover his fees. In all other respects, we affirm the decision below.

Affirmed in part; reversed in part; and remanded.

KHOUZAM and SALARIO, JJ., Concur.

      . Solely for ease of reference, we will refer to the various Bloom family members in this opinion by their first names, rafher than their common, surname.

      . It does not appear from the record before us that Dorothy’s claim has ever been resolved.

      . There was no argument advanced below or on appeal that the guardianship proceeding was an improper, forum- to resolve this -trust dispute.

      . Our jurisdictional conclusion would also appear to align with recent decisions that have addressed the substantive merits in appeals of orders denying motions or petitions to recover guardians’ fees. See, e.g., In re Guardianship of Beck, 204 So.3d 143, 153 (Fla. 2d DCA 2016) (reviewing the denial of petitions to recover attorney’s fees and costs); Karr v. Vitry, 135 So.3d 372, 373 n.1 (Fla. 5th DCA 2014) (concluding that an order denying a ward her guardian’s fees was appealable under rule 9.170).

      . See, e.g., Shriner v. Dyer, 462 So.2d 1122, 1124 (Fla. 4th DCA 1984) (holding that beneficiaries of a trust were entitled to recover their attorney’s fees and costs for successfully removing a trustee who had mismanaged the trust’s assets under the “common fund rule,” and explaining that ”[t]he common fund rule serves to award attorney's fees 'from a fund or estate which has been benefitted by the rendering of legal services’ ” (quoting Estate of Hampton v. Fairchild-Fla. Constr. Co., 341 So.2d 759, 761 (Fla. 1976))).