author: COHEN, C.J.

text:
    James MCNAIR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3453
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 20, 2018
    James McNair, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

James McNair appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 2014, McNair was convicted of robbery with a firearm and burglary of a structure with a firearm following a jury trial. He was sentenced as a three-time violent felony offender ("VFO") and is serving a life sentence.

In 2016, McNair filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.800(a), alleging that his sentence was illegal. Specifically, McNair challenged the use of a 1992 conviction as a predicate offense for his VFO sentence enhancement. That motion was denied. In affirming, we noted:

Although it is not clear from the face of the record that McNair's sentence is illegal, the records attached to the trial court's order do not establish that the sentence is legal.
....
"[T]o the extent that there may be records in the instant proceedings that demonstrate on their face an entitlement to relief, it was and remains [McNair's] burden-not the trial court's-to specifically identify those records." McClain v. State, 157 So.3d 528, 529 (Fla. 1st DCA 2015) (citing Johnson v. State, 60 So.3d 1045, 1050 (Fla. 2011) ("Under rule 3.800(a), 'the burden [is on] the petitioner to demonstrate an entitlement to relief on the face of the record.' " (quoting Williams v. State, 957 So.2d 600, 602 (Fla. 2007) ) ).

McNair v. State, 212 So.3d 1143, 1143 n.1 (Fla. 5th DCA 2017). Because McNair's claim was not cognizable under rule 3.800(a), we concluded that it should have been raised on direct appeal or pursuant to rule 3.850. Id. at 1143.

McNair then filed a motion for postconviction relief under rule 3.850, alleging that counsel was ineffective for failing to object to the use of the 1992 conviction as a predicate offense for VFO treatment. The lower court denied the motion after an evidentiary hearing. This appeal followed.

The issue in this case comes down to what crime McNair pleaded to in 1992, specifically whether McNair pleaded to aggravated assault with a deadly weapon or aggravated assault with the intent to commit a felony. See § 784.021, Fla. Stat. (1992). The former may be used as a predicate offense for VFO treatment, while the latter may not. See § 775.084(1)(c)1.g., Fla. Stat. (2015) (enumerating aggravated assault with a deadly weapon as a conviction qualifying for three-time violent felony offender enhancement if accompanied by other qualifying offenses).

McNair was charged in the 1991 case with robbery with a firearm and aggravated battery with a deadly weapon. He entered into a plea agreement, the language of which is critical to McNair's argument. The plea agreement reflects that McNair agreed to plead no contest to aggravated assault, and the State would nolle pros the robbery charge. The agreement does not state what would occur with the aggravated battery charge. McNair would receive one year of community control, followed by two years of probation. A handwritten note signed by the trial judge appears in the margin of the plea form, with an arrow to the section reflecting charges in the "amended information." The notation states that the charge was aggravated assault with a firearm. However, the section of the plea form listing the charges to which McNair was pleading simply reads, "Aggravated assault," and does not reference whether the charge involved the use of a firearm or other deadly weapon:

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, OF THE STATE OF FLORIDA, IN AND FOR MARION COUNTY

STATE OF FLORIDA CASE NO: 91-279-Y VS. WAIVER OF RIGHTS AND JAMES MCNAIR AGREEMENT TO ENTER PLEA

I, James McNair, Defendant, have been advised an Amended Information (8/5/91) has been filed against me in the above styled Court charging:Burglary of dwelling w/armed; was agg. assault w/a firearm w/a firearm/aggravated battery w/a deadly weapon. with a maximum sentence of life years imprisonment and/or $25,000.00 fine.

Pursuant to plea bargaining entered into between the State Attorney's Office, myself and my defense counsel, I wish to enter a plea of GUILMV/NOLO to the following criminal offense(s) and upon the following terms:Plead to Aggravated assault; NP Robbery; Adjudication of quilty; 1 year community control followed by 2 years probation; credit for time serviced in the Marion County Jail; stipulate to restitution owed to victim. 200 + costs.

I am aware and fully understand the charge(s) against me and that a plea of quilty admits the truth of the charge, a plea of not quilty denies the charge and a plea of Nolo Contendere does not contest the charge.

My attorney has discussed with me the defense(s) that might be available to the charge(s) and has given me the benefit of his/her advice.

I am satisfied that my attorney has represented me to the best of his/her ability, and has done all that can be expected of him/her.

I Wish to enter my plea to the offense(s) as set forth above because Iam guity of/ do not contest the charge(s) and I have no other reason. I have not been promised, nor has it been suggested that I will be rewarded in any manner, or that I will be given probation or leniency other than the terms as set forth above in return for my plea. No person has used any threats, force, pressure or intimidation to induce me to enter such plea as outlined above.

I fully realize that by entering such a plea I am waiving and relinquishing my right to Trial by July, or the Court, right to confront and cross-examine my accusors, right to remain silent, or to testify in my own behalf, and the right to have the State prove the truth of such charge(s) including each element beyond and to the exclusion of every reasonable doubt before I could be found quilty.

I have been advised by my attorney by entering this plea I waive any right to appeal with the exception of an appeal based on an illegal sentence.

Defendant specifically waives his right to speedy trial.

Dated this 16 th day of March, 1992.

As with the plea form, the judgment and sentence merely reflect a conviction for aggravated assault, without reference to whether it was with a firearm or in the course of the commission of a felony. To complicate matters, the judgment and sentence list a non-existent statute for McNair's charge. No transcripts of the plea or sentencing hearings are available because of the length of time that has elapsed. The only documentation reflecting anything other than simply "aggravated assault" is the judge's handwritten note on the plea form.

At the evidentiary hearing on McNair's rule 3.850 motion, McNair claimed to have pleaded only to aggravated assault. The original prosecutor testified that it was her belief that McNair pleaded to aggravated assault with a firearm, but it was evident that she had little, if any, recollection of the case. McNair's trial counsel from the 2014 trial, Jacques Ward, also testified. Ward acknowledged that he had not examined either the underlying documents or the judgment and sentence, instead relying on information provided in the Comprehensive Case Information System offered by the clerk of the court. He also acknowledged that he had not discussed with McNair the offenses that the State intended to use to enhance McNair's sentence. As indicated, no transcript of the plea hearing from 1992 was produced at the evidentiary hearing, and the State did not present evidence that McNair had other qualifying offenses that could have supported VFO sentencing enhancement.

There are several issues raised by the facts of this case, many of which were created by a lack of attention to detail. The State bears the majority of the responsibility. The assistant state attorney signed off on the plea form despite its ambiguity. Before the trial judge's interlineation, the form reflected that McNair faced charges for armed burglary of a dwelling, robbery with a firearm, and aggravated battery with a deadly weapon. The burglary charge is merely crossed out in the first paragraph, and nothing in the second paragraph indicates what was to occur with the aggravated battery charge. The State agreed to nolle pros the robbery with a firearm charge. McNair would then plead to aggravated assault, which is not a lesser included of aggravated battery. See Moody v. State, 597 So.2d 839, 840 (Fla. 5th DCA 1992) (citing State v. Whitfield, 487 So.2d 1045 n.1 (Fla. 1986) ). However, aggravated assault is a category two lesser-included offense of the robbery with a firearm charge. See Fla. Std. Jury Inst. (Crim.) 15.1. By signing the plea form, the State raised no issue with listing the charge as aggravated assault, rather than aggravated assault with a firearm. The State likewise did not contest the final judgment, which reflected only aggravated assault without specifying if it was committed by use of a deadly weapon. The State also did not object when the judgment and sentence referenced a non-existent statute. The State had opportunity after opportunity to clarify or correct any mistake or misapprehension regarding the plea offer, yet it failed to do so.

As a result, we are left with McNair's testimony that he pleaded only to aggravated assault, the testimony of the assistant state attorney who signed the ambiguous plea form, and the testimony of McNair's lawyer who acknowledged that he failed to even glance at records that can significantly affect a client's sentence. Under these circumstances, we find that the trial court erred in denying McNair's motion for postconviction relief. Accordingly, we reverse the denial of McNair's motion and remand for resentencing. Although the State will not be precluded from seeking a sentencing enhancement, it must do so without using the 1992 aggravated assault conviction.

REVERSED and REMANDED.

WALLIS and EISNAUGLE, JJ., concur.

      McNair was also charged with possession of a firearm by a convicted felon, but the State ultimately entered a nolle prosequi on that charge. This was the second trial at which McNair was convicted of the robbery and burglary charges. After the first trial, his convictions were reversed in a federal habeas corpus proceeding because the original trial judge did not honor McNair's request to represent himself. On remand, McNair requested appointment of counsel. The instant appeal claims that his court-appointed attorney in those proceedings provided ineffective assistance.

      The amended information only reflected charges of robbery with a firearm and aggravated battery with a deadly weapon.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    TANK TECH, INC., a foreign corporation, Appellant, v. VALLEY TANK TESTING, L.L.C., a foreign limited liability company, Appellee.
    Case No. 2D16-2100
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    Thomas J. Guilday, Robert D. Fingar, George W. Hatch, III, and Catherine B. Chapman of Guilday, Simpson, West, Hatch, Lowe & Roane, P.A., Tallahassee, for Appellant.
    Christine A. Marlewski of Gray|Robinson, P.A., Tampa (withdrew after briefing); Andrew J. Mayts and Alissa M. Ellison of Gray|Robinson, P.A., Tampa (substituted as counsel of record), for Appellee.
   MORRIS, Judge.

Tank Tech, Inc., appeals a final summary judgment entered in favor of Valley Tank Testing, L.L.C. (Valley Tank), on claims of equitable subrogation (count I), negligence (count III), and indemnification (count IV). The complaint was the product of a dispute between Tank Tech and Valley Tank regarding which of the two entities caused damage to underground petroleum storage tanks (USTs) at various Circle K stores. Tank Tech had been hired to modify the USTs by adding a second interior wall inside of them while Valley Tank had been hired to test the interstitial space between the original UST walls and the newly added walls. As a result of the damage, Tank Tech was required to repair the damaged USTs. Tank Tech then sued Valley Tank to recover the repair costs and other losses. Ultimately, the trial court entered summary judgment on the claims.

On appeal, Tank Tech argues that summary judgment was improper because (1) there were genuine issues of material fact regarding the equitable subrogation claim; (2) the trial court erred in finding that Valley Tank owed no duty to Tank Tech and that there was no factual basis to show that Valley Tank was negligent in its testing of the USTs; (3) Valley Tank's failure to meet the presumption set forth in Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987), precluded entry of summary judgment; and (4) there were genuine issues of material fact regarding which of the two entities caused the damage for purposes of the indemnification claim. We agree with Tank Tech on the issue of equitable subrogation and thus reverse the final summary judgment entered on that claim. However, for the reasons explained herein, we conclude that the trial court did not err in granting final summary judgment on the claims for negligence and indemnification. We do not address the remaining issues raised by Tank Tech as they either lack merit or do not materially contribute to our disposition.

BACKGROUND

USTs are heavily regulated by both the federal and state governments in an effort to minimize the impact on the environment and the health and welfare of the surrounding community. See, e.g., 42 U.S.C. § 6991 (1995) ; Fla. Admin. Code. Ch. 62-761, et seq. The Florida Department of Environmental Protection (FDEP) adopted regulations requiring UST owners to either upgrade existing USTs with a secondary containment system or to close the UST systems on or before December 31, 2009. See Fla. Admin. Code R. 62-761.510(3) & (5). Where secondary containment systems were employed, the regulations required UST owners to internally monitor the interstitial space between the original tank wall and the secondary tank wall. See Fla. Admin. Code R. 62-761.610, .640.

Tank Tech manufactures and installs the Phoenix System, which is a technology approved by the FDEP to retrofit existing USTs with a secondary containment system. Valley Tank is an entity that performs the required testing of the interstitial space and was retained by the affected UST owners to perform the testing. Valley Tank used a procedure known as the Estabrook Method, which was approved as a testing method by the FDEP only "where the groundwater depth is verified." The Estabrook Method includes specifications related to the amount of pressure that is applied during the testing as well as to how the groundwater level affects the testing. Specifically, the Estabrook Method provides in relevant part that:

Test Pressure ... Pressure differential across tank wall is equal to the absolute value of vacuum applied to tank, plus pressure of tank excavation backfill on tank, plus groundwater pressure on tank, minus pressure of liquid in tank.
....
Groundwater Groundwater level in tank excavation backfill must be determined by observation well or soil probe in tank excavation backfill.
If groundwater level in tank excavation backfill is above bottom of tank or the groundwater level in the tank excavation backfill has not been determined, water sensor must be used and test time extended to ensure water [i]ngress detection during test.
Comments ... An observation well or soil probe in tank excavation backfill may help determine backfill material, water level in tank excavation backfill, and free product.... More than 4 psi pressure differential across the tank wall at any location in the tank could damage the tank.

The groundwater level table is an important factor during testing because the Estabrook Method applies a vacuum to the tank, causing the tank walls to flex inward. Likewise, water located outside of the tank puts pressure on the exterior tank walls causing them to deflect inward.

After retrofitting the affected tanks with the Phoenix System, Tank Tech was notified by Circle K and other customers that USTs were failing. Tank Tech investigated and determined that there was a correlation between cracks appearing in the USTs and high water level tables. In an effort to learn about how the affected USTs were tested, Tank Tech had one of its employees attend a course on the Estabrook Method. Tank Tech alleges that it learned that Valley Tank was testing the affected USTs as if they were located in a dry hole and that Valley Tank had not been making an allowance for groundwater pressure. Tank Tech hired John Cignatta, P.E., Ph.D., who opined in an affidavit that if excessive vacuum force was used, it would cause the tank walls to repeatedly flex inward and that, over time, the structural integrity of the tanks would break down, resulting in cracks that could allow fuel to enter the interstitial space. Dr. Cignatta also opined that if the Estabrook Method had been properly employed in a manner not contrary to manufacturer recommendations or FDEP protocols, the damage to the affected tanks would not have occurred.

Valley Tank acknowledged that it did not verify groundwater depth prior to testing. However, Valley Tank maintains that it did not damage the tanks during its testing. Valley Tank contends that the creator of the Estabrook Method, Brad Estabrook, opined in an affidavit that groundwater levels do not need to be factored in when employing the Estabrook Method. Valley Tank also argues that Tank Tech presented no evidence that the groundwater levels at the sites of any of the affected tanks contributed to Valley Tank's pressurizing the tanks at a level that would result in damage. Indeed, Valley Tank asserts that Tank Tech failed to rule out other potential causes of the cracks or pinholes in the affected tanks.

Although Tank Tech and Valley Tank each had their own contracts with Circle K to provide different services, Tank Tech and Valley Tank did not have a contract with each other. Notably, Tank Tech's contract with Circle K required Tank Tech to repair any damage to the containment systems installed on Circle K's USTs regardless of whether the damage was caused by an action and/or omission of Tank Tech or by a third party. It is undisputed that Circle K, in turn, was responsible to ensure that any integrity tests conducted on USTs containing the Phoenix System were carried out pursuant to applicable regulations and recommendations.

Ultimately, Valley Tank moved for summary judgment, which the trial court granted. Tank Tech filed a motion for rehearing and/or reconsideration as to counts I, III, and IV. The trial court granted rehearing, but upheld its earlier ruling and added that Valley Tank did not owe a duty to Tank Tech. The trial court also made an oral finding that it did not believe that Tank Tech had established a factual basis that Valley Tank was negligent. Final judgment was entered in favor of Valley Tank, resulting in this appeal.

ANALYSIS

The party moving for summary judgment has the burden of demonstrating that there is no genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). "The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party." Id. (citing Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla. 1965) ). Once a party moving for summary judgment presents competent, substantial evidence to support the motion, "the opposing party must come forward with counterevidence sufficient to reveal a genuine issue." Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979) (emphasis added). "It is not enough for the opposing party merely to assert that an issue does exist." Id. (citing Harvey Bldg., Inc., 175 So.2d 780 ). Summary judgment should not be granted if there is any doubt about whether a genuine issue of material fact exists. See Pyjek v. ValleyCrest Landscape Dev., Inc., 116 So.3d 475, 477 (Fla. 2d DCA 2013). Rather, "[s]ummary judgment is [only] proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999) ). We therefore review an order granting summary judgment de novo. Id.

I. Valley Tank was not entitled to summary judgment on the claim of equitable subrogation.

"Subrogation provides an equitable remedy for restitution to one who in the performance of some duty has discharged a legal obligation which should have been met, either wholly or partially, by another." W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5th DCA 1986). "Legal subrogation ... is a creature of equity that does not depend on contract, but which follows as a legal consequence of the acts and relationship of the parties." Id. at 207. "The doctrine places 'one party into the shoes of another so that the substituting party retains the rights, remedies, or securities that would otherwise belong to the original party.' " Columbia Bank v. Turbeville, 143 So.3d 964, 968 (Fla. 1st DCA 2014) (quoting Aurora Loan Servs. LLC v. Senchuk, 36 So.3d 716, 722 (Fla. 1st DCA 2010) ).

Equitable subrogation is generally appropriate where: (1) the subrogee made the payment to protect [its] own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Here, in opposition to Valley Tank's motion for summary judgment, Tank Tech presented Dr. Cignatta's April 20, 2015, affidavit wherein he noted that the manual for the Estabrook Method requires that the groundwater level must be determined during testing and that the FDEP letter approving the use of the Estabrook Method specifies that the method is approved "where the groundwater depth is verified." Dr. Cignatta opined that if a technician fails to check the groundwater depth, "all of the pressure calculations for the test will be incorrect." Thus, according to Dr. Cignatta, because Valley Tank failed to verify the groundwater depths around a given tank, it "violated the manufacturer's recommendations and the state limitation on the use of [the Estabrook] testing protocol." Dr. Cignatta further opined that failing to account for the groundwater depth and thus applying the incorrect pressure to a UST can damage it. He opined that due to the deviations from the testing requirements, Valley Tank subjected the secondary liners to excessive forces which caused them to fail and, therefore, Valley Tank was responsible for the damages caused to the USTs. Dr. Cignatta rejected Valley Tank's assertions that pinholes that develop when the secondary liner is installed were "indicative of poor or unsatisfactory work" by Tank Tech; rather, he opined that Tank Tech's quality control program "finds and repairs such conditions before the completed tank is returned to the owner." He also noted that he personally witnessed Tank Tech's employees touching up several pinhole spots, and he explained that "[w]ith the thicker coating of epoxy at the earlier pin hole [sic] site, a recurrence of a problem at that location is simply not possible."

In a subsequent affidavit that was filed on February 2, 2016, in conjunction with Tank Tech's motion for rehearing and/or reconsideration, Dr. Cignatta expounded on the materials that he relied on in reaching his conclusions. He specifically referred to: (1) Tank Tech's Amended Complaint; (2) Valley Tank's Answer to the Amended Complaint; (3) Tank Tech's installation files for sites retrofitted with the Phoenix System in Florida; (4) documents produced by Valley Tank in connection with this litigation; (5) Tank Tech's repair files on sites retrofitted with the Phoenix System; (6) information maintained by FDEP pertaining to matters such as the Phoenix System, the EZY Check System (the Estabrook Method), and the Braddock Method (another method of testing); and (7) depositions of both Tank Tech and Valley Tank corporate representatives. He explained that his opinions were based upon his knowledge and experience as a professional engineer specializing in fuel systems and environmental engineering, his familiarity with state and national regulations and guidelines as well as standards promulgated by industry work groups and third party certifications, and his review of the cited documents. He subsequently explained that in addition to being provided with Valley Tank's records, he had also been provided with "information concerning groundwater levels at locations where testing occurred." He then listed three separate testing locations where Valley Tank purportedly performed testing. He explained that Valley Tank did not check the groundwater levels at the specified locations. He detailed what the pressure levels were according to Valley Tank's records and then explained what the pressure levels would be if the groundwater level had been factored in. He further explained that the maximum amount of negative pressure that can be applied to the USTs using the Estabrook Method is -4 psi, and he explained that in each of the three specified locations, the pressure level-after accounting for the groundwater levels-exceeded that amount. With regard to one specific location, Dr. Cignatta also explained that Valley Tank's records reflected that the diameter of the UST had shrunk approximately four inches, and he opined that "[t]his is indicative of the tank being pushed inward during the test [with] the most likely explanation [being] that the excessive vacuum caused the crushing action on the tank." He concluded the affidavit by opining "within a reasonable degree of certainty that the application of excess negative pressure on the USTs by Valley Tank more likely than not caused the tank failures."

In arguing that we should affirm the final summary judgment, Valley Tank takes issue with Dr. Cignatta's April 20, 2015, affidavit as not being based on personal knowledge, as not setting forth admissible facts, and as not demonstrating that he was competent to testify on the issues. Valley Tank asserts that the affidavit fails to detail the evidence on which Dr. Cignatta relied. While Valley Tank acknowledges that Dr. Cignatta's February 2, 2016, affidavit lists the documents on which he relied in forming his opinions, Valley Tank asserts that it "does not specifically detail documents he reviewed to make the calculations that he claims show Valley Tank exceeded the pressure the Estabrook manual indicated could damage the tanks, nor does it indicate why the additional statements could not have been made in his first affidavit." Valley Tank also more specifically challenges Dr. Cignatta's failure to explain the scientific theories and/or formulas he used to reach his conclusions.

We reject the suggestion that Dr. Cignatta was required to detail all of the technical information on which he relied in his affidavit in order to preclude entry of summary judgment. Where the defendant is the party moving for summary judgment, as here, "neither the trial court nor this court determines whether the plaintiff can prove [its] case; our function solely is to determine whether the pleadings, depositions, and affidavits conclusively show that the plaintiff cannot prove [its] case." Crandall v. S.W. Fla. Blood Bank, Inc., 581 So.2d 593, 595 (Fla. 2d DCA 1991) (citing Williams v. Fla. Realty & Mgmt. Co., 272 So.2d 176 (Fla. 3d DCA 1973) ); see also Visingardi v. Tirone, 193 So.2d 601, 604 (Fla. 1966) (explaining that party opposing summary judgment is not required "to make out his whole case before his affidavit is admissible"). Here, Dr. Cignatta's affidavits prevent us from concluding that Tank Tech cannot prove its case.

Further, to the extent that Valley Tank asserts that the February 2, 2016, affidavit should not have been considered because it was not submitted prior to the original summary judgment hearing, we disagree. Florida Rule of Civil Procedure 1.510(e) specifically contemplates that affidavits supporting or opposing summary judgment may be supplemented by further affidavits. At the time that the February 2, 2016, affidavit was filed, the trial court had not yet entered final judgment. "It is well established that a trial court may reconsider and modify interlocutory orders at any time until final judgment is entered." LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 600 (Fla. 2d DCA 2014) (quoting Oliver v. Stone, 940 So.2d 526, 529 (Fla. 2d DCA 2006) ). Thus, even though the trial court had technically granted summary judgment on count I, it was still free to consider the supplemental affidavit, especially where, as in this case, the supplemental affidavit provided factual support for opinions already made in the original affidavit. See Stephens v. Dichtenmueller, 216 So.2d 448, 450 (Fla. 1968) (explaining that failure to demonstrate competency and vagueness were technical deficiencies in an affidavit that may have been amenable to correction in a supplemental affidavit).

Tank Tech's contract with Circle K obligated it to repair damages to the USTs. But Tank Tech's contractual obligation to Circle K did not convert Tank Tech into a "volunteer" to pay for damages caused by a third party and thus did not prevent the application of the equitable subrogation doctrine. Cf. W. Am. Ins. Co., 495 So.2d at 207 ("Subrogation in equity is not available to a mere volunteer or stranger who, without any duty or obligation to intervene and without being so requested, pays the debt of another."). Instead, Tank Tech was merely fulfilling its legal obligation to Circle K which was a necessary means of protecting itself from liability to Circle K. And Tank Tech, by virtue of Dr. Cignatta's affidavit, established a genuine issue of material fact regarding whether Tank Tech or Valley Tank was primarily liable for the damages. If Tank Tech is ultimately successful in proving that Valley Tank caused the damage to the USTs, then it would be entitled to seek any damages it incurred as a result of having to repair the damaged USTs. See id. ("The [equitable subrogation] doctrine is based on the policy that no person should be unjustly enriched by another's loss, and may be invoked wherever justice demands its application, irrespective of technical legal rules."). To hold that Tank Tech is precluded from pursuing a claim for subrogation would leave Tank Tech without a remedy, a "most unfair and inequitable result." Id. at 206. Because the evidence, when viewed in a light most favorable to Tank Tech, establishes at least the possibility of genuine issues of material fact, the trial court should have denied summary judgment on count I.

II. The trial court properly determined that Valley Tank did not have a duty to Tank Tech.

In count III of its complaint, Tank Tech argued that Valley Tank was negligent in its testing and that, as a result, Tank Tech suffered damages by having to repair the USTs under its contract with Circle K. Tank Tech argued that Valley Tank had a duty to perform the testing with due care and that the USTs were damaged as a direct and proximate result of Valley Tank's failure to properly perform the testing. Tank Tech also argued that Valley Tank's conduct created a foreseeable zone of risk encompassing Tank Tech since Valley Tank knew that Tank Tech had installed the secondary tanks and was responsible for repairing any defects.

In granting final summary judgment on this claim, the trial court determined that the negligence count failed as a matter of law for two reasons: because Valley Tank did not owe a duty to Tank Tech and because there was no factual support to establish that Valley Tank was negligent. We agree that the claim fails as a matter of law.

There are four elements of a negligence claim: duty, breach of that duty, proximate cause, and actual loss or damage. Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19, 27-28 (Fla. 2011). "Of the four elements of a negligence claim, breach, causation, and damages are generally questions to be decided by the trier of fact." Id. at 28 (citing Estate of Johnson v. Badger Acquisition Of Tampa LLC, 983 So.2d 1175, 1180 (Fla. 2d DCA 2008) ). "However, the determination of whether a duty is owed presents a question of law to be determined by the court." Id. (citing Estate of Johnson, 983 So.2d at 1180 ). "The duty element of negligence is a threshold legal question; if no legal duty exists, then no action for negligence may lie." Id. (quoting Jenkins v. W.L. Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st DCA 2003) ).

"Florida ... recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla. 1992). Thus, "[w]here a defendant's conduct creates a foreseeable zone of risk , the law generally will recognize a duty placed upon [the] defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." Id. (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) ). Indeed, "each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element." Id.

However, this case is not based solely in tort law. Rather, in this case, principles of both contract and tort law are involved, and it is because of that fact that Tank Tech's negligence claim fails. In Monroe v. Sarasota County School Board, 746 So.2d 530, 534 n.6 (Fla. 2d DCA 1999), we analyzed negligence claims based solely on economic loss (rather than bodily injury or property damage), which is the type of loss at issue here:

[W]e suspect that the relationship between the plaintiff and the defendant is the critical factor in determining whether a negligence cause of action exists. In negligence law, the concept of "duty" has two components: (1) the relationship that justifies placing a requirement of care upon the defendant, and (2) the general standard of care that defines the risks to be foreseen by the defendant and the level of care to be imposed upon the defendant. See Spadafora v. Carlo, 569 So.2d 1329 (Fla. 2d DCA 1990) ; Dennis v. City of Tampa, 581 So.2d 1345 (Fla. 2d DCA 1991) ; Bryant v. Lucky Stores, Inc., 577 So.2d 1347, 1351 n.2 (Fla. 2d DCA 1990) (Altenbernd, J., concurring in part and dissenting in part). Difficult economic loss cases all seem to examine the relationship between the parties to determine whether it warrants creating a duty to protect economic interests outside contract and statutory law.

(Emphasis added.) Thus, in order to proceed on a common law negligence claim based solely on economic loss, there must be some sort of link between the parties or some other extraordinary circumstance that justifies recognition of such a claim. See Monroe, 746 So.2d at 531 (holding that the general rule is "that bodily injury or property damage is an essential element of a cause of action in negligence," but recognizing that that essential element could be waived "under extraordinary circumstances which clearly justify judicial interference to protect a plaintiff's economic expectations"); Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 389 n.5 (Fla. 2015) ("Of course, as McCain [, 593 So.2d at 503-04 ] acknowledges, some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties."); DaimlerChrysler Ins. Co. v. Arrigo Enters., 63 So.3d 68, 74 (Fla. 4th DCA 2011) ("The existence of a legal duty means that a defendant stands in a 'relation to the plaintiff as to create [a] legally recognized obligation of conduct for the plaintiff's benefit.' " (alteration in original) (quoting Biglen v. Fla. Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005) ) ).

The reason why the negligence claim fails here is because there is neither a special relationship between Valley Tank and Tank Tech nor any extraordinary circumstance that would require imposition of a duty. Tank Tech's injury did not flow from Valley Tank's testing of the USTs. Instead, Tank Tech seeks to recover the money it spent in repairing the USTs, an expense that was the result of a negotiated contract between Tank Tech and Circle K. There was no contract between Valley Tank and Tank Tech obligating Valley Tank to repair any USTs it damaged during testing or otherwise obligating Valley Tank to repay Tank Tech for the expenses incurred pursuant to Tank Tech's contract with Circle K. And Valley Tank's testing did not cause any personal injury or property damage to Tank Tech, the types of injuries for which the common law of negligence has historically permitted recovery. See McCain, 593 So.2d at 504 (holding that electric utility company that failed to maintain underground power lines owed a legal duty to trencher operator who was electrocuted and injured by a live cable).

We are cognizant of the fact that the Florida Supreme Court has acknowledged at least one extraordinary circumstance where it found the existence of a duty between two parties who had no contractual privity. See Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1228 (Fla. 2010). There, the court determined that the fertilizer company owed commercial fisherman a special duty due to the nature of the company's business. Id. The court also concluded that the fishermen's interest was not one that was shared by the public as a whole because the fishermen had a protectable economic expectation in the marine life (i.e., a property right), which was damaged by the fertilizer company's negligent release of pollutants. Id.

In this case, no property right was involved. And unlike the commercial fishermen in Curd, Tank Tech has no special and unique interest that would constitute an extraordinary circumstance warranting the imposition of a duty on Valley Tank. This is simply a case of a party attempting to bring a tort claim to recover monies that it spent as a result of a contractual obligation to a third party. But negligence claims cannot proceed based on a party's desire to relieve itself from a bad bargain. Because Tank Tech seeks only economic damages here and because there is no special relationship between Valley Tank and Tank Tech, we hold that the trial court correctly determined that Valley Tank owed no duty to Tank Tech. Absent the existence of a duty, the negligence claim fails, see Kaman, 100 So.3d at 28, and we need not address the issue of whether the trial court erred in finding that there was no factual basis to establish that Valley Tank was negligent in its testing of the USTs.

III. The trial court properly granted final summary judgment on the indemnification claim.

For a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test. First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. See K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). Second, indemnification can only come from a party who was at fault. See Federal Ins. Co. v. Western Waterproofing Co., 500 So.2d 162, 165 (Fla. 1st DCA 1986) ; see also State Dep't of Transp. v. Southern Bell Tel. & Tel. Co., 635 So.2d 74, 77 (Fla. 1st DCA 1994). Additionally, Florida courts have required a special relationship between the parties in order for common law indemnification to exist. See Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 493 (Fla. 1979).

Dade Cty. Sch. Bd., 731 So.2d at 642 ; see also Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 65 (Fla. 2d DCA 2005). "In Florida, actions for indemnity have been restricted to situations involving either a duty, an express contract, or the existence of active and passive negligence." Hiller Grp., Inc. v. Redwing Carriers, Inc., 779 So.2d 602, 603 (Fla. 2d DCA 2001). But as we have already explained, there was no duty flowing from Valley Tank to Tank Tech and, as a result, there can be no negligence on the part of Valley Tank. There was also no express contract between the parties. Consequently, Tank Tech's indemnification claim fails as a matter of law.

Conclusion

Because Tank Tech established that there were genuine issues of material fact relating to the equitable subrogation claim, the trial court erred by granting final summary judgment on that claim. However, because the trial court correctly determined that, as a matter of law, Valley Tank owed no duty to Tank Tech, the trial court properly granted final summary judgment on the negligence claim. Similarly, the trial court properly granted final summary judgment on the claim for indemnification where there was no duty, express contract, or negligence on the part of Valley Tank that would constitute the basis for such a claim.

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

NORTHCUTT and LUCAS, JJ., Concur.

      Tank Tech does not challenge the portion of the final judgment granting summary judgment on a claim for tortious interference with a business relationship (count II).

      Rule 62-761.510 was repealed on January 11, 2017, though it was in effect at the time of this action.

      Rules 62-761.610 and 62-761.640 were also repealed on January 11, 2017.

      In support of its argument for affirming the final summary judgment, Valley Tank also argues that Dr. Cignatta's affidavit violated rule 1.510(e) because Tank Tech failed to attach "sworn or certified copies of all papers or parts thereof referred to" in the affidavit. However, in the proceedings below, while Valley Tank challenged Dr. Cignatta's affidavit as generally being inadmissible, containing hearsay, and lacking a factual basis, Valley Tank did not argue that the affidavit should not be considered because the documents Dr. Cignatta referred to were not attached to the affidavit. Thus because the trial court did not have the opportunity to make a factual finding regarding that issue, we will not employ the tipsy coachman doctrine or make the factual finding in the first instance. See In re Estate of Assimakopoulos, 228 So.3d 709, 715 n.3 (Fla. 2d DCA 2017) (refusing to apply tipsy coachman doctrine where issue raised on appeal depended on a factual finding that was not made by trial court below); Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) (same); Bryant v. Fla. Parole Comm'n, 965 So.2d 825, 825 (Fla. 1st DCA 2007) (same).

      Cf. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308-09, 48 S.Ct. 134, 72 L.Ed. 290 (1927) (explaining that respondent's loss was not due to the petitioner's conduct but instead "arose only through [respondent's] contract with the owners" and noting that "as a general rule ... a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong" (citation omitted) ); Indem. Ins. Co. of N. Am. v. Am. Aviation, 891 So.2d 532, 546 (Fla. 2004) (Cantero, J., concurring) (explaining that "[t]he 'duty' prong remains a strong filter" in cases involving only economic damages and that "the plaintiff still must demonstrate an independent duty to protect that plaintiff's purely economic interests"), receded from by Tiara Condo. Ass'n v. Marsh & McLennan Cos., 110 So.3d 399 (Fla. 2013).

      An indemnitee's liability can also be constructive, derivative, or technical in nature. See Joint Med. Prods. Corp. v. NME Hosps., Inc., 610 So.2d 675, 676 (Fla. 2d DCA 1992).

      Courts have interpreted "special relationship" to "merely describe[ ] a relationship which makes a faultless party 'only vicariously, constructively, derivatively, or technically liable for the wrongful acts' of the party at fault." Fla. Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So.3d 194, 196 (Fla. 5th DCA 2015) (quoting Diplomat Props. Ltd. P'ship v. Tecnoglass, LLC, 114 So.3d 357, 362 (Fla. 4th DCA 2013) ).


author: VILLANTI, Judge.

text:
    Robert BLINN, Appellant, v. WEST SHORE VILLAS OF NAPLES OWNERS ASSOCIATION, INC., Appellee.
    Case Nos. 2D17-2565 2D17-3601
    District Court of Appeal of Florida, Second District.
    Opinion filed April 25, 2018
    Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, for Appellant.
    Robert G. Menzies of FisherBroyles, LLP, Naples, for Appellee.
   VILLANTI, Judge.

In these consolidated appeals, Robert Blinn appeals the final judgment entered in favor of West Shore Villas of Naples Owners Association, Inc. (the Association), in Blinn's action against the Association for trespass, breach of the declaration of covenants, and private nuisance and a second final judgment awarding the Association its attorney's fees.

We reject without comment Blinn's arguments relating to the substantive final judgment concerning whether his claims were barred by the statute of limitations, waiver, or laches. However, as to the attorney's fees judgment, Blinn is correct that the trial court erred when it included in that judgment the Association's appellate attorney's fees incurred in an earlier appeal in which this court specifically denied the Association's motion for appellate fees. See, e.g., Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014) ("A trial court cannot award appellate attorney's fees unless the appellate court has authorized such an award." (quoting Rados v. Rados, 791 So.2d 1130, 1131 (Fla. 2d DCA 2001) ) ). The Association has properly conceded error. Hence, on this limited point, we reverse the final judgment awarding attorney's fees and remand for the trial court to recalculate the fee award after deducting the improper appellate attorney's fees. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

MORRIS and BADALAMENTI, JJ., Concur.


author: M.K. Thomas, J.

text:
    Loziane O. MOISE, Appellant, v. DISNEY POP CENTURY RESORT, and Walt Disney World Co. Workers' Compensation Department, Appellees.
    No. 1D17-1759
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, & Waranch, P.A., Winter Park, for Appellees.
   M.K. Thomas, J.

In this workers' compensation case, we address the interplay between section 440.25(4)(i), Florida Statutes (2011), permitting motions to dismiss for lack of prosecution, and section 440.19, Florida Statutes (2011), the statute of limitations ("SOL") provision. Appellant ("Moise") appeals a final order dismissing her Petitions for Benefits ("PFBs") as untimely and, therefore, barred by the SOL. Although we affirm the ultimate disposition reached by the Judge of Compensation Claims ("JCC"), we write to clarify application of this Court's previous decision in Akers v. State of Florida-Department of Corrections , 987 So.2d 240 (Fla. 1st DCA 2008).

Facts

Moise, a housekeeper employed by Appellee ("Disney"), suffered injuries as a result of two compensable accidents at work: the first occurring on June 9, 2011, and the second on January 6, 2013. Multiple PFBs were filed on her behalf in 2013 and 2014, asserting both dates of accident and claiming entitlement to various benefits. At mediations in 2013 and 2015, the claims raised by the PFBs were resolved with the exception of attorney's fees and costs. The parties specifically reserved jurisdiction on those claims, which remained pending. The last provision of benefits to Moise for the 2011 date of accident was on April 14, 2014, while the last provision of benefits for the 2013 injury was on November 22, 2013.

On August 19, 2016, Disney filed a motion to dismiss the 2013 and 2014 petitions in accordance with section 440.25(4)(i), asserting a lack of prosecution. On September 1, 2016, after the filing of the motion and before a hearing, Moise filed two additional PFBs (covering both dates of accident) seeking additional medical benefits and attorney's fees and costs. In response, Disney filed notices of denial raising SOL defenses pursuant to section 440.19 as to both dates of accident and denying entitlement to all further benefits. A hearing on Disney's motion to dismiss resulted in a dismissal of all pending claims raised by the 2013 and 2014 PFBs. In the order, the JCC specifically found inadequate record activity and no "good cause" shown for Moise's failure to prosecute the claims. Moise did not appeal the order granting Disney's motion to dismiss.

The PFBs filed by Moise in 2016 were consolidated and the issues bifurcated to litigate, initially, the viability of Disney's SOL defenses. Following the merits hearing, the JCC ultimately dismissed the 2016 PFBs as untimely, relying solely on Akers .

Legal Analysis

As to the JCC's determination that the filing of the 2016 PFB's did not toll the SOL, we review this legal conclusion de novo . McBride v. Pratt & Whitney , 909 So.2d 386, 387 (Fla. 1st DCA 2005). In support of his ruling, the JCC cited to Akers which involves similar facts to the instant case. In Akers , the claimant filed a PFB shortly after the E/C moved to dismiss two prior PFBs for failure of claimant to prosecute. 987 So.2d at 241. The JCC ultimately entered an order granting the motion to dismiss regarding the previously-filed PFBs. Id. The JCC then dismissed the PFB (filed after the E/C's motion to dismiss) as untimely and barred by the SOL. Id. It was noted in Akers that claimant stipulated the latter PFB was filed "solely in an effort to avoid an application of the statute of limitations." Id. However, this Court's affirmance of the dismissal was based on the recognition that the latter PFB "was filed too late to toll the statute of limitations," citing to Chrysler Leasing Corp. v. Passacantilli , 259 So.2d 1 (Fla. 1972). Id.

In applying Akers to this case, the JCC found the "same sequence of events" and that Moise's 2016 PFBs were filed "in a similar attempt to toll the statute of limitations before Disney's motion to dismiss for lack of prosecution could be determined." Accordingly, the JCC seemingly focused upon Moise's intent in the filing of the 2016 PFBs.

For clarification, Akers should not be misconstrued to require a JCC to determine the intentions for or the merits of a PFB filed subsequent to a motion to dismiss under section 440.25(4)(i). The motivating factor(s) to file a PFB is not pertinent to the analysis of timeliness under section 440.19. The date of filing of a PFB, which meets the specificity requirements of section 440.192, Florida Statutes, is the determining factor. Neither the claimant's basis for filing nor the merits of the claims raised in the PFB are relevant to whether its filing was timely pursuant to section 440.19.

Disney argues that, instead of Akers , this case is controlled by Limith v. Lenox on Lake , 163 So.3d 616 (Fla. 1st DCA 2015). In Limith , the JCC denied a motion to dismiss a pending attorney's fee claim for lack of prosecution, which tolled the statute of limitations. Id. at 617. After issuance of the order denying the E/C's motion to dismiss, Limith filed a new PFB for a follow-up medical visit, which the E/C claimed was barred by the SOL. Id. The JCC both rejected the E/C's defense and denied the new PFB on its merits. Id. Limith appealed the denial of the medical claim, and the E/C cross-appealed both the ruling on their SOL defense and the interlocutory order denying the motion to dismiss the prior fee claim for lack of prosecution. Id. In Limith , this Court reasoned:

Although section 440.25(4)(i) states that a JCC "may" dismiss a petition for lack of prosecution, that decision is not necessarily discretionary. See Allied Fid. Ins. Co. v. State, 415 So.2d 109, 111 (Fla. 3d DCA 1982) ("[T]he permissive word "may" will be deemed to be obligatory '[w]here a statute directs the doing of a thing for the sake of justice....' "). The word "may" must also be considered in context with the rest of section 440.25(4)(i) referencing "good cause shown"; specifically, section 440.25(4)(i) provides a JCC may dismiss a PFB "unless good cause is shown." Because the Legislature provided a standard of "good cause shown," it was incumbent upon the JCC here, in the exercise of sound judicial discretion, to apply the standard. But the JCC failed to provide any rationale whatsoever for denying the motion to dismiss. This court has previously held that a failure to exercise discretion constitutes reversible error. See VFD v. State, 19 So.3d 1172 (Fla. 1st DCA 2009). Because the failure to exercise discretion here results in the potential indefinite tolling of the statute of limitations, the order denying the E/C's motion to dismiss was erroneous.

163 So.3d at 617-18.

The 2016 PFBs in this case were filed before the motion to dismiss the prior claims had been acted upon by the JCC. The parties agree the limitations period would have expired before the 2016 PFBs were filed (the record suggests that all limitations periods would have expired by approximately November 2015), if not for the pending fee claims against which the motion to dismiss had been filed. Regardless, we agree with Disney that the reasoning of Limith also applies here. Once the JCC granted the motion to dismiss (which extinguished the pending claims) and that ruling became final, the 2016 PFBs were retroactively barred by operation of the SOL. See Limith , 163 So.3d at 618.

Here, Moise argues that because the 2016 PFBs were filed before the prior PFBs were dismissed, there existed pending PFBs at all times, thus tolling the SOL. We cannot agree. When a pending claim which serves to toll the SOL is dismissed by any means, " 'the statute of limitations is not tolled during the period that the dismissed action was pending; rather, the statute will run as if the dismissed action had never been filed.' " Sanchez v. Am. Airlines , 169 So.3d 1197, 1197 (Fla. 1st DCA 2015) (quoting McBride , 909 So.2d at 388 ). Otherwise, "a party could avoid dismissal in every case by acting after the motion was made, whether or not he had prosecuted the action during the previous year, or could show good cause for his failure to do so," which would eviscerate the statute "by eliminating its penalty aspect." Passacantilli , 259 So.2d at 4.

As illustrated by the facts of this case, the interaction of sections 440.19 and 440.25(4)(i) can prompt a "race to the courthouse" when a pending claim originally brought by PFB (whether for attorney's fees and costs or otherwise) acts to toll the statute of limitations and no record activity has occurred for over a year. However, any burden resulting from the one-year window imposed by section 440.25(4)(i) is generally avoidable, given that dismissal for lack of prosecution is possible only where there has been no record activity and there exists no good cause for the lack of activity-a contingency within the claimant's control. See Bocelli v. Sw Fla. Inv. , 37 So.3d 964 (Fla. 1st DCA 2010) (Wetherell, J., specially concurring); Airey v. Wal-Mart/Sedgwick , 24 So.3d 1264, 1265 (Fla. 1st DCA 2009).

For the foregoing reasons, we affirm the dismissal of the 2016 PFBs as untimely and, therefore, barred by section 440.19.

AFFIRMED .

B.L. Thomas, C.J., and Ray, J., concur.

      Contrary to the facts in Limith , Moise did not appeal the JCC's Order granting Disney's motion to dismiss for lack of prosecution.

      We recognize Passacantilli was a civil matter and the motion to dismiss for lack of prosecution was brought pursuant to Rule 1.420(e), Florida Rules of Civil Procedure (1971). Chrysler Leasing Corp. v. Passacantilli , 259 So.2d 1 (Fla. 1972). However, this Court has historically recognized the similarity of purpose between Rule 11(b), Florida Workers' Compensation Rules of Procedure (allowing motions to dismiss for lack of prosecution and later codified in section 440.25(4)(i), Florida Statutes ) and Rule 1.420(e). See Kinsey v. Skyline Corp. , 395 So.2d 626 (Fla. 1st DCA 1981). In 2012, Rule 60Q-6.124, Rules of Procedure for Workers' Compensation Adjudications, was amended to establish an additional vehicle to dispose of unresolved claims for attorney's fee and cost entitlement which remain pending. Rule 60Q-6.124(4), allows a motion "by any party" to initiate resolution of disputed attorney's fees and costs. The common thread of these statutory provisions and rules of procedure is to promote efficient and timely resolution of pending litigation. Of note, in 2006, Rule 1.420(e) was amended to allow a 60-day grace period to cure record inactivity after service of the required notice of intent to file a motion to dismiss for lack of prosecution. However, the Legislature did not include a similar notice requirement or grace period in section 440.25(4)(i), its workers' compensation counterpart.

      Pursuant to section 440.25(4)(i), the filing of a "petition, response, motion, order, request for hearing, or notice of deposition" constitutes record activity.


author: BLACK, Judge.

text:
    U.S. BANK, N.A., Successor Trustee to LaSalle Bank National Association, on behalf of the holders of Bear Stearns Asset Backed Securities I Trust 2005-HE7, Asset-Backed Certificates Series 2005-HE7, Appellant, v. Ana GONZALES; Angel Casiano; and Summerfield Master Community Association, Inc., Appellees.
    Case No. 2D17-3262
    District Court of Appeal of Florida, Second District.
    Opinion filed May 2, 2018
    Adam J. Knight and Jacqueline Simms-Petredis of Burr & Forman LLP, Tampa, for Appellant.
    No appearance for Appellees.
   BLACK, Judge.

U.S. Bank, N.A., Successor Trustee to LaSalle Bank National Association, on behalf of the holders of Bear Stearns Asset Backed Securities I Trust 2005-HE7, Asset-Backed Certificate Series 2005-HE7 (U.S. Bank), appeals from the order dismissing with prejudice its mortgage foreclosure action against Ana Gonzales and Angel Casiano (the homeowners), arguing that the trial court erred in determining that the complaint was barred by the statute of limitations. We agree and reverse.

On February 25, 2016, U.S. Bank filed an action against the homeowners to enforce a promissory note and foreclose a mortgage, alleging that the homeowners defaulted on the note and mortgage by failing to make "the payment due for August 1, 2010, and all subsequent payments." The homeowners filed a motion to dismiss the foreclosure complaint, alleging, in relevant part, that the complaint failed to state a cause of action because it had not been filed within five years of the initial default date alleged. See § 95.11(2)(c), Fla. Stat. (2010). The trial court entered an order granting the motion to dismiss based solely on the finding that the action was barred by the statute of limitations and directed the clerk to close the file. In dismissing the complaint, the trial court relied upon Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2015). Despite the fact that the complaint in Hicks alleged a continuing state of default-just like the complaint in this case-the Fifth District held that the complaint should have been dismissed because the initial default date alleged in the complaint occurred outside of the five-year statute of limitations. Id. at 959. However, as clarified in Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168 (Fla. 5th DCA 2017), the parties in Hicks"proceeded to trial on stipulated facts that referenced only the initial default." Hicks is therefore distinguishable from this case.

As this court has repeatedly held, alleging "a continuing state of default at the time of the filing of the complaint [is] sufficient to satisfy the ... statute of limitations." Huntington Nat'l Bank v. Watters, 228 So.3d 595, 596 (Fla. 2d DCA 2017) (alteration in original) (quoting Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005-62, Mortg. Pass-Through Certificates Series 2005-62, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) ); accord Bollettieri Resort Villas Condo. Ass'n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142 (Fla. 2d DCA 2016), review dismissed, 228 So.3d 72 (Fla. 2017). Although the initial alleged default date of August 1, 2010, occurred more than five years prior to the filing of the foreclosure complaint on February 25, 2016, because the statute of limitations runs from the date of each new default and the complaint alleged a continuing state of default since August 1, 2010, U.S. Bank's complaint was sufficient to establish that foreclosure could be based on any default that was within the statutory period. See Bollettieri Resort Villas Condo. Ass'n, 198 So.3d at 1142. Because U.S. Bank's foreclosure action was not time-barred, we reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.

      The homeowners did not participate in this appeal.

      U.S. Bank contends that a motion to dismiss was not the proper vehicle to raise the statute of limitations defense in this case. It is true that "[o]rdinarily, the statute of limitations is an affirmative defense; however, an affirmative defense appearing on the face of a prior pleading may be asserted as a ground for a motion to dismiss under Florida Rule of Civil Procedure 1.140(b)." Hofer v. Ross, 481 So.2d 939, 940 (Fla. 2d DCA 1985) (citing Fla. R. Civ. P. 1.110(d) ); accord Williams v. City of Jacksonville, 191 So.3d 925, 927-28 (Fla. 1st DCA 2016). Because the applicability of the five-year statute of limitations could be "conclusively established by the facts pleaded in the [foreclosure] complaint," it was properly "alleged as [a] ground[ ] for [the] motion to dismiss" in this case. See Levine, Zweibach, Davis, P.A. v. Levine, 734 So.2d 1191, 1195 (Fla. 2d DCA 1999) ; compare Gen. Motors Acceptance Corp. v. Thornberry, 629 So.2d 292, 293 (Fla. 3d DCA 1993) ("Where, as here, the statute of limitations defense appears on the face of the complaint, it is permissible to assert the statute of limitations defense by motion to dismiss."), with Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282, 285 (Fla. 2d DCA 2004) ("Considering the complaint on its face, we cannot say as a matter of law that the limitations period commenced to run in 1988 when the Homeowner first experienced 'problems with the roof.' Further facts may or may not establish that other problems around the windows or in the walls constituted unrelated defects of which the Homeowner did not have notice until well after 1988.").

      Because the court's dismissal was based solely on the homeowners' statute of limitations argument, it is not appropriate for this court to address U.S. Bank's contention that the homeowners failed to raise any other viable basis to support dismissal.


author: PER CURIAM.

text:
    Juan Isaias REY a/k/a Juan I. Rey and Maira Maria Igarza a/k/a Maira M. Igarza, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee on Behalf of the Holders of the CSMC Mortgage-Backed Pass Through Certificates, Series 2007-7, Appellee.
    Case No. 5D17-1492
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 8, 2018 Rehearing Denied June 12, 2018
    Kelley A. Bosecker, St. Petersburg, for Appellants.
    William L. Grimsley and Joseph A. Apatov, of McGlinchey Stafford, Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Bennett v. Deutsche Bank Nat'l Tr. Co., 124 So.3d 320 (Fla. 4th DCA 2013) (holding bank could rely on statutory presumption of validity of signatures on allonge, based on section 673.3081(1), Florida Statutes, in absence of any evidence from mortgagors that signature was unauthorized).

PALMER, ORFINGER and LAMBERT, JJ., concur.


author: Per Curiam.

text:
    HARBOR FREIGHT TOOLS, INC. and Safety National Casualty Corp./Corvel, Appellants, v. Patricia WHITEHEAD, Appellee.
    No. 1D17-3194
    District Court of Appeal of Florida, First District.
    May 18, 2018 Rehearing Denied June 14, 2018
    Daniel M. Schwarz and Gina M. Jacobs of Cole, Scott & Kissane, P.A., Plantation, for Appellants.
    Daniel J. Glary, Jacksonville, for Appellee.
   Per Curiam.

A judge of compensation claims awarded workers' compensation benefits based on the so-called "120-day rule," which generally precludes carriers from denying compensability if they begin paying benefits and do not challenge compensability within 120 days. See § 440.20(4), Fla. Stat. (2015) ; see also Sierra v. Metropolitan Protective Servs., 188 So.3d 863, 866-67 (Fla. 1st DCA 2015). But "[a] claimant's 'defense' of waiver to an [employer's] ability to deny compensability of an accident or specific injury/condition pursuant to the '120-Day Rule' is an affirmative pleading which must be timely raised and specifically plead[ed]." Teco Energy, Inc. v. Williams , 234 So.3d 816, 823 (Fla. 1st DCA 2017). Here the claimant did not specifically plead application of the 120-day rule. The judge of compensation claims therefore erred in awarding benefits based on the rule.

REVERSED .

Lewis, Kelsey, and Winsor, JJ., concur.


text:
    Gina K. PERSAUD, Appellant/Cross-Appellee, v. Dhaniram Danny PERSAUD, Appellee/Cross-Appellant.
    Case No. 2D16-568
    District Court of Appeal of Florida, Second District.
    Opinion filed May 18, 2018
    Mark A. Neumaier, Tampa, for Appellant/Cross-Appellee.
    James R. Schaffer of James R. Schaffer, P.A., Tampa, for Appellee/Cross-Appellant.
   VILLANTI, Judge.

Gina Persaud (the Wife) appeals the amended final judgment of dissolution of marriage from Dhaniram Persaud (the Husband). On appeal, the Wife argues that the trial court erred by: (1) failing to award her adequate retroactive alimony; (2) not considering the tax consequences of her durational alimony award; and (3) erroneously calculating her retroactive child support obligation. On cross-appeal, the Husband contends that the trial court erred by awarding the Wife any alimony at all. We find merit in all three arguments raised by the Wife, and we therefore reverse those aspects of the amended final judgment and remand for further proceedings. In all other respects, we affirm.

Retroactive Durational Alimony

The Wife first argues that the trial court erred by failing to award her retroactive alimony in accordance with her demonstrated need as found by the trial court. This argument has merit and requires us to remand for further proceedings.

After a fourteen-year marriage, the Husband filed for dissolution on October 14, 2010. At that time, the Husband owned and ran a successful armored car business while the Wife was essentially a stay-at-home mother.

In July 2011, the parties stipulated to the entry of an order granting temporary relief to the Wife, under which the Husband agreed to pay the Wife $1200 per month in temporary support in addition to paying the "normal and customary marital expenses of the parties, including without limitation, household mortgage payments, electric, telephone, cable, and auto insurance." There is no dispute that the "normal and customary expenses of the parties" totaled approximately $11,781 per month. Hence, the Husband agreed to pay $12,981 per month in temporary support, with $1200 being paid directly to the Wife and the remainder being paid to others on her behalf. When the marital home was sold in July 2013, a subsequent order was entered that relieved the Husband of his obligation to pay the "normal and customary marital expenses" but increased the direct support payment to the Wife to $3500 per month.

As the case progressed, the parties reached agreement on equitable distribution, leaving only the issues of alimony, child support, and attorney's fees for the trial court's determination. In paragraph 4.8 of the findings of fact in the amended final judgment, the court found that the "Wife required $2,357.00 net after taxes after Husband paid the mortgage, utilities and other customary expenses required by the July 8, 2011, Order Granting Temporary Relief." (Emphasis added.) Given the parties' earlier agreement that the mortgage, utilities, and other customary expenses totaled $11,781 per month, this finding means that the trial court determined the Wife's need before the sale of the marital home to be $14,138 per month.

However, in paragraph 7 of the actual award, the court awarded the Wife $3800 per month in retroactive alimony "less any amounts paid by the Husband to the Wife or paid by the Husband to others for the benefit of the Wife." (Emphasis added.) The effect of this language is to give the Husband credit against the $3800 retroactive alimony award not only for the $1200 per month he paid directly to the Wife, but also for the $11,781 he paid each month on the Wife's behalf for the mortgage, utilities, and other customary expenses of the parties. And, given this language, the result appears to be an overpayment of alimony by the Husband of $9181 per month-a result at odds with the factual finding in paragraph 4.8 that the Wife had a need during that period of $2357 net in addition to the usual and customary expenses of the parties.

As with any award of alimony, the "award of retroactive alimony must be based on the receiving spouse's need for alimony and the paying spouse's ability to pay." Alpert v. Alpert, 886 So.2d 999, 1002 (Fla. 2d DCA 2004) ; see also § 61.08(2), Fla. Stat. (2011). Here, where the Husband's ability to pay was not in dispute, the discrepancy between the trial court's factual findings concerning the Wife's need and the amount actually awarded requires us to reverse this award and remand for further proceedings.

Moreover, we have no doubt that the trial court did not intend to fashion a retroactive alimony award that would result in a $9181 per month "overpayment" of temporary alimony by the Husband. This is clear from the remainder of paragraph 7 of the award, which requires the parties to calculate "the retroactive alimony arrearage owed by the Husband" and which requires him to pay that arrearage "at the rate of $500.00 per month." (Emphasis added.) The court's directions relating to the payment of the Husband's retroactive alimony arrearage belie any contention that the trial court intended to make the Wife responsible for the carrying costs of the marital home, contrary to the parties' prior stipulation.

The inconsistency between the trial court's factual findings concerning the Wife's need for retroactive alimony and the amount actually awarded makes the retroactive alimony award erroneous. See, e.g., Threadgill v. Nishimura, 222 So.3d 633, 635 (Fla. 2d DCA 2017) (reversing alimony award that was inconsistent with the trial court's factual findings concerning proper credit for the husband's prior alimony payments); Boone v. Boone, 3 So.3d 403, 405 (Fla. 2d DCA 2009) (reversing alimony award that was inconsistent with the court's factual findings). We therefore reverse the award of retroactive durational alimony and remand for further proceedings on this issue.

Prospective Durational Alimony

Next, the Wife contends that the trial court erred in determining the amount of her prospective durational alimony award because it failed to consider the tax consequences of that award. On cross-appeal, the Husband argues that the trial court erred by awarding the Wife any durational alimony at all. We reject the Husband's argument without further comment. However, because we agree with the Wife that the amended final judgment does not show that the court considered the tax consequences of its alimony award, we reverse the award and remand for reconsideration.

In considering the prospective durational alimony award, the trial court found that the Wife had a need of $5630 per month, and it imputed income to her of $2083 per month based on her history of holding sporadic, low-paying jobs. Using those figures, the court found that the Wife had a need for alimony of $3800 per month. The amended final judgment indicates that the alimony awarded would be taxable to the Wife and deductible by the Husband. However, neither party disputes that the tax consequences of the alimony award to the Wife are as follows: $926.36 on $5057 monthly gross income for 2011 and $1195.07 on $5880 monthly gross income for 2012 and 2013. As is clear from these figures, the Wife will actually receive net income significantly less than her demonstrated need of $5630 per month. And these figures form the basis for her claim that the prospective durational alimony awarded is inadequate.

Section 61.08(2)(h) specifically requires that "[i]n determining whether to award alimony ... the court shall consider ... [t]he tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment." Further, "[a]n award of alimony must be based on the income that is available to the party, i.e., the party's net monthly income." Hanson v. Hanson, 217 So.3d 1165, 1166 (Fla. 2d DCA 2017) (quoting Moore v. Moore, 157 So.3d 435, 436 (Fla. 2d DCA 2015) ); see also Rosaler v. Rosaler, 219 So.3d 840, 842 (Fla. 4th DCA 2017) (reversing and remanding for the trial court to make findings regarding the tax consequences of an alimony award). When "[an] award does not provide for the Wife's needs as they were established during the marriage despite the Husband's apparent ability to meet those needs, it constitute[s] an abuse of discretion." Martinez v. Martinez, 228 So.3d 164, 167 (Fla. 2d DCA 2017).

Here, it is clear from the amended final judgment that the trial court did not consider the tax consequences of its durational alimony award. Moreover, as a result of this oversight, the award does not meet the Wife's determined need despite the Husband's ability to pay. Therefore, we reverse this portion of the amended final judgment and remand for the trial court to make findings regarding the tax consequences of the alimony award and adjust the award accordingly.

Retroactive Child Support

Finally, the Wife contends that the trial court erred by using an unpaid award of retroactive alimony when calculating her income for purposes of determining her retroactive child support obligation. Again, we must reverse and remand for further proceedings.

The amended final judgment required the Wife to pay retroactive child support to the Husband for the period of April 1, 2011, through July 31, 2013. In determining the amount of that obligation, the court attributed $3800 in alimony income to the Wife for that period. However, it is clear from the record that the Wife did not actually receive $3800 per month in alimony during that time. Instead, the record shows that she received $1200 per month in alimony from August 2011 through December 2012 and $3500 per month beginning in January 2013. Hence, the trial court awarded retroactive child support based on alimony awards that the Wife never actually received.

In determining an award of retroactive child support, the court shall "apply the guidelines schedule in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income ... during the retroactive period." § 61.30(17)(a) (emphasis added); see also Swor v. Swor, 56 So.3d 825, 826 (Fla. 2d DCA 2011) (reversing retroactive child support award that was based in part on alimony payments not actually received by the wife). Accordingly, it was error to include unpaid sums of retroactive alimony when calculating the Wife's monthly income for purposes of retroactive temporary child support. We therefore reverse the award of retroactive child support and remand for recalculation using the income actually available to the Wife during the period in question.

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

SILBERMAN and SALARIO, JJ., Concur.

      We note that there are at least two ways the trial court could accomplish what it apparently intended. One would be to adjust the amount of retroactive alimony awarded to the Wife for the period of October 12, 2010, through July 31, 2013, to include the amounts necessary to pay the "normal and customary expenses of the parties." The other would be to strike the language that gives the Husband credit for the amounts he paid "to others for the benefit of the Wife." There may be other ways for the trial court to accomplish this, and we express no opinion on how the trial court should proceed. We note this only to clarify that the correction to the judgment should not be complicated or disputed.


text:
    Deidrea Renaye GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-45
    District Court of Appeal of Florida, Fourth District.
    May 23, 2018
    Deidrea Renaye Graham, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant challenges the circuit court's summary denial of her postconviction motion filed pursuant to Florida Rule of Criminal Procedural 3.850. We reverse and remand.

She was charged with twelve counts of attempt to obtain a controlled substance by fraud, twelve counts of conspiracy to traffic in oxycodone, and twelve counts of practice of medicine without a license. She entered into a negotiated plea to one count of practicing medicine without a license, one count of the conspiracy, and to the twelve counts of attempt to obtain the controlled substance by fraud.

Appellant's motion raised double jeopardy claims and argued that trial counsel was ineffective for failing to move to dismiss several of the charged offenses on that basis before she entered the plea. The trial court neither obtained a response from the state nor attached documents to refute the claims. Rather, relying on Novaton v. State , 634 So.2d 607, 609 (Fla. 1994), it determined that the claims failed as a matter of law because appellant had entered into a negotiated plea.

We disagree. Novaton does not preclude a claim of ineffective assistance of counsel for failure to advise there were potential double jeopardy issues. Wilkerson v. State, 128 So.3d 189 (Fla. 5th DCA 2013) ; Rogers v. State , 113 So.3d 960, 961 (Fla. 2d DCA 2013) ; Tapp v. State , 44 So.3d 666, 667 (Fla. 2d DCA 2010).

This court cannot review the merits of the ineffectiveness claim without record attachments. See Pascoe v. State, 225 So.3d 344 (Fla. 4th DCA 2017) ; Phillips v. State , 229 So.3d 426, 428 (Fla. 2d DCA 2017) (citing Peede v. State , 748 So.2d 253, 257 (Fla. 1999) ("To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.").

We also recognize a pleading defect within appellant's motion in that she failed to allege clearly that she would not have pleaded if advised accordingly. We therefore reverse and remand to allow appellant the opportunity to amend her allegations before the trial court addresses the claims. See Rosado v. State , 22 So.3d 772 (Fla. 4th DCA 2009) (holding that defendant was entitled to an opportunity to amend the motion to expressly allege that, but for the alleged errors, he would not have entered plea).

Reversed and remanded.

Warner, Taylor and Ciklin, JJ., concur.


text:
    Junior JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-511
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Junior Joseph, pro se, Milton.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

It appears from the record that a question was raised regarding Petitioner's competency to proceed to trial. Although the record indicates that the trial court appointed experts to evaluate Petitioner and held a competency hearing, it did not enter an order adjudicating Petitioner competent. On the face of the record, appellate counsel was ineffective for not addressing this issue in Petitioner's direct appeal. Accordingly, we grant the petition for writ of habeas corpus and remand this cause to the trial court to attempt to make a retroactive competency determination, if possible, or, failing which, to grant Petitioner a new trial once he is competent to proceed. See Camacho v. State , 225 So.3d 272 (Fla. 4th DCA 2017).

We deny the petition as to all other grounds.

PETITION GRANTED and CASE REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


author: PALMER, J.

text:
    Devin Michael GUILLAUME, Petitioner, v. STATE of Florida and Cornita A. Riley, as Chief of Orange County Corrections, Respondents.
    Case No. 5D18-1486
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 23, 2018
    Robert Wesley, Public Defender, and Robert Adams, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondents.
   PALMER, J.

Devin Guillaume petitions this court for a writ of habeas corpus, seeking either his immediate release or a hearing on his motion to reduce bail. For the reasons set forth in our opinion in Moore v. State, No. 5D18-1474,--- So.3d ---- (Fla. 5th DCA May 23, 2018), we grant the petition and direct the trial court to conduct a proper hearing on Guillaume's rule 3.131 motion. See Fla. R. Crim. P. 3.131.

PETITION GRANTED; CAUSE REMANDED.

ORFINGER and EDWARDS, JJ., concur.

      The petition for writ of habeas corpus was previously granted by order on May 14, 2018, with an opinion to follow.


text:
    Patrick Lamon BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-398
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 25, 2018
    Patrick Lamon Brown, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Patrick Lamon Brown appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and his rule 3.800(a) motion to correct illegal sentence. We affirm the denial of his rule 3.800(a) motion without further discussion. As for Brown's motion for postconviction relief, we affirm as to Grounds One, Two, Three, Four, Seven, Nine, Ten, and Eleven. However, because the record does not conclusively refute Brown's claim that counsel was ineffective for failing to object to a defective jury instruction and failing to inform the trial court about his mental illness, we reverse the summary denial of Grounds Six and Eight and remand for attachment of portions of the record conclusively refuting those claims or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ). We conclude that Ground Five of Brown's motion, alleging counsel was ineffective for failing to subpoena witnesses, was insufficiently pled. Accordingly, we reverse the summary denial of this ground and remand for the purpose of providing Brown an opportunity to amend this claim. See Spera v. State, 971 So.2d 754, 762 (Fla. 2007).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, PALMER and BERGER, JJ., concur.

      The trial court disposed of both motions in one order.


author: CASANUEVA, Judge.

text:
    Angel Luis TORRES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2095
    District Court of Appeal of Florida, Second District.
    Opinion filed May 25, 2018.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Angel Luis Torres appeals the order revoking his probation after a hearing. We affirm without comment the trial court's finding that Mr. Torres willfully violated his probation by failing to successfully complete a residential drug treatment program and by failing to submit to a random urine test. However, we reverse the revocation order to the extent that it incorrectly states that Mr. Torres admitted the violations, and we remand for the trial court to correct this scrivener's error. See Balmir v. State, 174 So.3d 1101, 1102 (Fla. 2d DCA 2015).

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

KELLY and CRENSHAW. JJ., Concur.


text:
    Tyrone WELLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0318
    District Court of Appeal of Florida, First District.
    May 31, 2018
    Tyrone Wells, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

We dismissed the appeal in Wells v. State , case number 1D17-4309, when Wells failed to respond to an order on untimeliness. We now grant Wells's petition for belated appeal, which we treat as a motion to reinstate, and we reinstate case number 1D17-4309. The initial brief in case number 1D17-4309 shall be filed within thirty days of the date of this opinion.

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    L.G., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1718
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2018
    James S. Purdy, Public Defender, and Wilber Lee Cooke, II, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

L.G. petitions for a writ of habeas corpus for his release from his involuntary confinement at the Halifax Health Medical Center (Medical Center) in Daytona Beach, Florida. In May 2018, pursuant to the Baker Act, L.G. was admitted to the Medical Center for involuntary examination. On May 24, 2018, the trial court held a Baker Act hearing. After hearing the treating physician's testimony that L.G. would benefit from ongoing care, the trial court ordered L.G. to remain in the Medical Center for four weeks under a continuance, over L.G.'s objection.

L.G. asserts that he is entitled to immediate release because the record does not contain clear and convincing evidence that he is a danger to himself or others. The State properly concedes error and agrees that this court should grant the writ of habeas corpus. Accordingly, we grant L.G.'s petition for writ of habeas corpus and order his immediate release. See C.W. v. State, 214 So.3d 796, 797 (Fla. 5th DCA 2017) (granting habeas corpus petition where trial court involuntarily committed petitioner without clear and convincing evidence that he was a danger to himself or others) (citing § 394.467(1)(a), Fla. Stat. (2016) ; In re Lehrke, 12 So.3d 307, 308-09 (Fla. 2d DCA 2009) ). No motion for rehearing will be entertained.

PETITION GRANTED.

EVANDER, WALLIS and EDWARDS, JJ., concur.

      § 394.463(2)(a)3., Fla. Stat. (2017).


text:
    Xavier Arsenio JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1587
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Robert Wesley, Public Defender, Orlando and Robert Thompson Adams, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 29, 2018 order denying motion for postconviction relief rendered in Case No. 12-CF-005009-A-O, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Patrick W. WHAREN, Sr., Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1304
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Patrick W. Wharen, Sr., Monticello, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 23, 2017 order denying Petitioner's pro se motion for post-conviction relief, filed in Case No. 2008-CF-23974-A, in the Eighteenth Judicial Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, ORFINGER and EISNAUGLE, JJ., concur.


text:
    Marco DEJESUS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1113
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Marco Dejesus, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 1, 2017 judgment and sentence rendered in Case No. 2016-CF-000537, in the Circuit Court in and for Flagler County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and WALLIS, JJ., concur.


text:
    Michael SPEAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1714
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    James S. Purdy, Public Defender, and Brittany N. O'Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant's failure to appear for a scheduled sentencing hearing resulted in the imposition of a substantial prison sentence pursuant to Quarterman v. State , 527 So.2d 1380 (Fla. 1988). The trial court also adjudicated Appellant guilty of indirect criminal contempt for his failure to appear. We reverse the sentences imposed in case numbers 2016-CF-039801 and 2016-CF-047845, and remand for an evidentiary hearing and factual determination as to whether Appellant's failure to comply with the Quarterman agreement was willful. We also reverse the conviction and sentence for indirect criminal contempt because the trial court did not afford procedural due process. See Garrett v. State , 876 So.2d 24, 25 (Fla. 1st DCA 2004) (merely asking defendant if he wished to explain behavior was insufficient; rather, court must inform defendant that he can present mitigating circumstances and give "a separate and distinct opportunity" for him to do so).

On remand, Appellant shall be afforded a new sentencing hearing and a new hearing on the contempt charge.

REVERSED AND REMANDED.

TORPY, WALLIS and LAMBERT, JJ., concur.


text:
    Shawn RUPE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3519
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    J. Rafael Rodriguez, of Law Offices of J. Rafael Rodriguez, Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges his convictions for first-degree premeditated and felony murder and robbery with a deadly weapon. We agree that the robbery conviction cannot be sustained under our standard of review and accordingly reverse the judgment and concurrent life sentence on that charge. We affirm the judgment and sentence on the first-degree premeditated murder conviction.

AFFIRMED IN PART; REVERSED IN PART.

TORPY, EVANDER and WALLIS, JJ., concur.


text:
    Jeremy John MARUSKA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3317
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Marie-Louise Samuels Parmer, of Samuels Parmer Law Firm PA, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jeremy John Maruska appeals his judgment and sentence for first-degree premeditated and felony murder and robbery with a deadly weapon. We agree that the robbery conviction cannot be sustained under our standard of review and accordingly reverse the judgment and concurrent life sentence on that charge. We affirm the judgment and sentence on the first-degree premeditated murder conviction.

AFFIRMED in part; REVERSED in part.

COHEN, C.J., SAWAYA and LAMBERT, JJ., concur.


text:
    Kenneth Lydell JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3990
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    James S. Purdy, Public Defender, and Brittany N. O'Neil, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Kenneth Lydell Jackson appeals the partial denial of his motion to correct sentence filed under Florida Rule of Criminal Procedure 3.800(a). Jackson, who was sixteen years old at the time of his offenses, entered open pleas to burglary of a conveyance while armed (count I), attempted robbery with a firearm (count II), and possession of a firearm by a delinquent (count III). He was sentenced to concurrent twenty-five year terms of prison on counts I and II. On count III, he received a concurrent fifteen-year prison sentence. In his rule 3.800(a) motion, Jackson argued that he was entitled to a full resentencing hearing and a judicial review of his sentence. The trial court granted Jackson's motion, in part, amending the sentencing documents to allow for a juvenile sentence review hearing, but denying a new resentencing hearing.

This Court has previously held that it is error to modify a juvenile defendant's sentence to allow for a review hearing without also holding a resentencing hearing under sections 775.082, 921.1401 and 921.1402, Florida Statutes. Ruiz v. State, 242 So.3d 1204 ; Katwaroo v. State, 237 So.3d 446 (Fla. 5th DCA 2018) ; Davis v. State, 230 So.3d 487 (Fla. 5th DCA 2017). Jackson's situation is identical. Accordingly, we affirm the trial court's order amending the sentencing documents to provide for a review hearing, but reverse and remand to allow the court to conduct a full resentencing hearing.

AFFIRMED in part; REVERSED in part; and REMANDED

ORFINGER and TORPY, JJ., concur.

BERGER, J., concurring specially.

BERGER, J., concurring specially.

I concur based on this Court's decisions in Ruiz v. State, 242 So.3d 1204, Katwaroo v. State, 237 So.3d 446 (Fla. 5th DCA 2018), and Davis v. State, 230 So.3d 487, 488 (Fla. 5th DCA 2017). However, were I writing on a clean slate, I would affirm. In my view, Jackson is not entitled to resentencing under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), or Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because his sentences are not de facto life sentences. See, e.g., Davis v. State, 214 So.3d 799, 799-800 (Fla. 1st DCA 2017).


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Roy Livingston ROLLE, III, Appellee/Cross-Appellant.
    Case No. 5D17-1599
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant.
   PER CURIAM.

We conclude that there was no competent, substantial evidence to support a downward departure sentence in this battery case. Accordingly, we reverse the sentence and remand this cause with instructions that the lower court sentence Appellee in accordance with the Criminal Punishment Code.

REVERSED AND REMANDED.

TORPY, WALLIS and LAMBERT, JJ., concur.


text:
    David Leo PERKINS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1600
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    James S. Purdy, Public Defender, Daytona Beach, and Ryan M. Belanger, Assistant Public Defender, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 5, 2018 violation of probation judgment and sentence rendered in Case No. 2014-303367-CFDB, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., and EVANDER and BERGER, JJ., concur.


text:
    Clifton McNeil BROOKS Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1286
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Clifton McNeil Brooks Sr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of March 28, 2018, the Court has determined that the notice of appeal failed to invoke the Court's jurisdiction to review the June 6, 2017, Order Denying Defendant's Amended Petition for Writ of Habeas Corpus Pursuant to a Belated Appeal in a timely manner. Accordingly, the appeal is dismissed.

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    Vincent CHARO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0574
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Vincent Charo, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Any arguments related to the competency order that Petitioner seeks to belatedly appeal in this proceeding are properly raised in the timely appeal in case number 1D18-0601. Accordingly, the petition for belated appeal is hereby dismissed.

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    Robert L. HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0302
    District Court of Appeal of Florida, First District.
    June 5, 2018
    Robert L. Henderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Wolf, Jay, and Winsor, JJ., concur.