author: SALTER, J. ROTHENBERG, C.J. (dissenting).

text:
    MIAMI-DADE EXPRESSWAY AUTHORITY and Javier Rodriguez, P.E., etc., Appellants, v. TROPICAL TRAILER LEASING, L.L.C., et al., Appellees.
    No. 3D16-2851
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Jonathan H. Railey, Michael R. Piper and Christopher J. Stearns (Fort Lauderdale), for appellants.
    Akerman LLP and A. Rodger Traynor, Jr., and Lawrence D. Silverman, Miami, for appellees.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   SALTER, J.

Defendants/appellants, Miami-Dade Expressway Authority and Javier Rodriguez, P.E., in his official capacity as Executive Director of Miami-Dade Expressway Authority (collectively, "MDX"), appeal an order granting a motion for class certification by Tropical Trailer Leasing, L.L.C. ("Tropical Trailer"), and eight co-plaintiffs (collectively, the nine plaintiffs are referred to as "Plaintiffs"). We affirm.

I. Facts; Proceedings in the Circuit Court

The Plaintiffs are in the business of leasing trailers. The trailers are not self-propelled, and the Plaintiffs do not own the tractor trucks needed to transport the trailers. The Plaintiffs lease the trailers to third parties, who in turn hire the owners of tractor trucks to tow the leased trailers. Many times the tractor truck owners hire independent drivers for a particular haul or group of hauls.

Implemented in 2010, MDX uses an electronic transponder system to charge the motor vehicles and drivers on its roads a toll based on the number of axles on the vehicle. If the tractor truck contains a working electronic transponder device (a "SunPass transponder"), the entire toll amount for a five-axle vehicle (three axles for the tractor and two for the trailer) is automatically deducted from the SunPass transponder account of the tractor truck's owner. If the vehicle has no SunPass transponder, then the MDX toll system relies on a video "Toll by Plate" system, capturing an image of the vehicle's rear tag. In such cases, MDX charges the entire per-axle toll to the rear tag's registered owner.

This practice led MDX to charge the Plaintiffs a full five-axle toll. The Plaintiffs alleged that, starting in 2013, some MDX systems had the capability to photograph the front tag belonging to the driver, but MDX made no consistent effort to identify the driver of the motorized vehicle. The Plaintiffs asserted that MDX had no authority to impose a toll on their tractor-towed, non-motorized trailers before a 2012 amendment to the statutory definition of "motor vehicle," and thereafter, no authority to impose a toll on the trailers for the separately-owned and operated tractor trucks pulling the trailers.

The Plaintiffs sued MDX for declaratory, injunctive and monetary relief based on allegations that MDX's toll collection practices, through its video tolling and "Toll by Plate" system, had unlawfully charged the Plaintiffs tolls on occasions where third parties were towing their trailers. The Plaintiffs argued that a trailer owner is not the owner of the "motor vehicle" incurring the toll. The Plaintiffs sought to certify a class of all trailer owners who were charged a toll by MDX because the driver of the motorized tractor truck did not pay the toll incurred by the truck.

The operative Second Amended Class Action Complaint asserted that many of the tractor truck drivers tow the trailers on MDX roads without paying tolls. These drivers allegedly smudge or obscure the tractor plate to avoid MDX detection. Plaintiffs argued that Florida statutes make a driver ultimately responsible for the entire unpaid toll, not the trailer owner. See § 316.1001(2)(c), Fla. Stat. (2017). MDX has been imposing the toll on the trailer tag owners because the trailer tag was the only captured tag. The Plaintiffs have no practical way of identifying the drivers towing their trailers. This makes it impossible for the Plaintiffs to track down the toll violator to compel immediate payment of the toll, or to avoid the toll by providing MDX a timely affidavit with the toll violator's information, as required in section 316.1001(2)(C) 1., and 2., Florida Statutes (2017). As a result, the Plaintiffs have been paying most of the violations even though the tolls are unlawful.

The complaint also sought clarification of the trailer owners' liability for tolls after a 2012 statutory amendment. Prior to July 1, 2012, Plaintiffs allege that MDX had no authority to assess tolls against Tropical Trailer's non-self-propelled vehicles. This is based on section 316.110(2)(c), which specifies that the "owner of the motor vehicle involved in the violation is responsible and liable for payment ...." The pre-2012 version of section 316.003 defined "motor vehicle" as "(21) Motor vehicle.-Any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped." As the trailers were not self-propelled, they could not be assessed any toll under the pre-2012 statute.

In 2012, however, the legislature amended section 316.003(21), defining "motor vehicle" as:

(21) Motor vehicle.-Except when used in s. 316.1001, any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped. For purposes of s. 316.1001, "motor vehicle" has the same meaning as in s. 320.01(1)(a).

§ 316.003(21), Fla. Stat. (2012) (emphasis added) (Ch. 2012-111, § 2, Laws of Fla., eff. July 1, 2012, to Dec 31, 2012) (currently renumbered as § 316.003(40) ). Section 320.01(1)(a), in turn, provides:

(1) "Motor vehicle" means:
(a) An automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state ....

The 2012 amendment to the section 316.003(21) definition arguably created an ambiguity between the requirements in section 316.1001, requiring payment from the registered owner of the motor vehicle committing the toll violation, and the now-undefined responsible party for the toll when there were several owners involved in a "truck tractor and semitrailer combination," as is the case in the Plaintiffs' operations.

The Plaintiffs moved for class certification. At the class certification hearing, Tropical Trailer's co-owner and general manager, Alberto Vara, testified as the representative of all nine Plaintiffs. The second and only other witness was Stephan Andriuk, the Deputy Executive Director and Director of Toll Operations for MDX.

Vara testified that the two MDX toll violation databases he examined included over 83,000 trailer owners who had paid tolls to MDX between October 14, 2010, and April 2016 as a result of the video-based billing of trailer license plates. Vara described the methodology he used to analyze the data in the databases, and to compile the numbers he used. Although Vara was not able to state a precise number of other trailer owners that also owned the tractor truck pulling the trailer at the time of a citation, the Plaintiffs themselves owned some 2,600 towed units that were always pulled by tractors owned and operated by other persons or entities. Vara also testified about the registration holds placed against his trailers for unpaid tolls accrued years after the trailers had been sold. He also testified to collection attempts by MDX, including attempts at arrest, due to outstanding tolls.

Finally, Vara described his attempts to lobby for a fairer system of toll collection even before the beginning of this action. He testified that MDX billed the trailer owner incorrectly (and exclusively) rather than apportioning between tractor and trailer based on the number of axles of the composite vehicle transiting a set of sensors and cameras. He also described the difficulties and limited success in trying to pass through an erroneous tractor charge to the customers of the Plaintiffs who leased trailers (who might have knowledge the Plaintiffs did not have regarding the owner or operator of the tractor).

Andriuk testified on behalf of MDX. He stated that MDX had installed many front-facing cameras starting in 2013, and would have them in all of its toll facilities by August of 2017. He described the process MDX uses to store front tag pictures when the vehicle involved has more than two axles. He clarified on cross-examination that prior to June 30, 2012, no Toll by Plate fines were issued for front license plates in truck-trailer combinations. Andriuk also opined that Florida law permits MDX to bill trailer companies for tolls. Before this lawsuit, according to Andriuk, MDX settled all the toll disputes with trailer owners.

After the hearing, the trial court granted the motion for class certification. The court found that the elements of numerosity, commonality, typicality, and adequacy, under Florida Rule of Civil Procedure 1.220(a), were established. The trial court also found that Rule 1.220(b)(2) was satisfied because "the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class." The order granting the motion for certification found that Rule 1.220(b)(3) was satisfied because the class members' common questions of law and fact predominate over individual class member claims, and the class action process is superior to other available methods for the adjudication of the controversy.

The trial court defined two subclasses, rather than the four proposed by the Plaintiffs, dividing the class members into those affected before, and those affected after, the July 1, 2012, legislative amendment: "(1) the owners of all trailers towed on MDX roadways for which MDX used the toll by plate method of toll imposition from October 14, 2010, through June 30, 2012," and "(2) the owners of all trailers on MDX roadways for which MDX used the toll by plate method of toll imposition since July 1, 2012." MDX appealed the order granting class certification.

II. Analysis

We review an order granting class certification for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 98 (Fla. 2011). The burden of proving the factual elements necessary to certify a class under Florida Rule of Civil Procedure 1.220 is on the movant. Initially, the Plaintiffs sought to certify four classes of claimants:

CLASS A-DAMAGES AND INJUNCTIVE RELIEF: All trailer owners whose trailer license tag was used by MDX between 10/14/10 and 6/30/12 to charge a toll in any amount.
CLASS B-DAMAGES AND INJUNCTIVE RELIEF: All trailer owners whose trailer license tag was used by MDX between 10/14/10 and 6/30/12 to charge a toll which is greater than the toll chargeable to two axle vehicles.
CLASS C-DAMAGES AND INJUNCTIVE RELIEF: All trailer owners whose trailer license tag was used by MDX after 10/14/10 to charge a toll which is greater than the toll chargeable for three axle vehicles.
CLASS D-INJUNCTIVE RELIEF ONLY: All trailer owners whose license tag was used by MDX after 10/14/10 to charge a toll in any amount. Excluded from Class D would be all trailer owners who also own the motorized vehicle pulling the trailer at the time the toll is incurred.

The trial court concluded that these proposed class definitions "either overlap, are partly duplicative, or are overbroad." Based on the change in the statutory definition of "motor vehicle" effective July 1, 2012, the trial court certified the two subclasses described in part I of this opinion.

The certification order includes findings of fact regarding each of the elements specified in Rule 1.220 and the decisional law applying that Rule. The record includes competent, substantial evidence which, though disputed, supports the findings.

A. Rule 1.220(a) Findings

The four requisite elements in Rule 1.220(a), commonly referred to as "numerosity," "commonality," "typicality," and "adequacy," were addressed in the findings.

1. Rule 1.220(a)(1) : Numerosity

Addressing numerosity, more than 83,000 toll billings were shown to have been sent to trailer owners during the pertinent time interval. The nine proposed representative Plaintiffs themselves own over 2,600 towed, non-self-propelled units, and the record identifies numerous corporate parties that did not own the tractors that pulled their trailers during the class period (but which were nonetheless billed for tolls). MDX's evidence and argument that some such parties and tractor owners may have settled, or that the trailer billings were incontestable because the trailers were under common ownership with the tractors pulling them, are not per se obstacles to certification. Even a settling trailer owner may appreciate the benefit of the Plaintiffs' classwide prayer for injunctive relief to prevent future billing errors by MDX. "Individualized damage inquiries will also not preclude class certification." Sosa, 73 So.3d at 107.

Class certification does not hinge on proving a specific number of members. Toledo v. Hillsborough Cty. Hosp. Auth., 747 So.2d 958, 961 (Fla. 2d DCA 1999). The exact identity or location of each member need not be known for certification. The requirement is that class size not be based on mere speculation. Sosa, 73 So.3d at 114. Here, it is not.

MDX's reliance on Leibell v. Miami-Dade County, 84 So.3d 1078 (Fla. 3d DCA 2012), is unavailing. In that case, involving 1,400 participants in a toll program between the Venetian Islands and the mainland, "by the time of the hearing on the motion for certification, there existed evidence that only one of them, Ms. Leibell, had paid the program fee under protest. The evidence was that many more, represented by two homeowners' associations, do not wish to seek the remedies sought by Ms. Leibell in this lawsuit." Id. at 1083. MDX has presented no such evidence of prospective class members that might oppose the relief sought by the Plaintiffs in the present case.

2. Rule 1.220(a)(2) : Commonality

"The threshold of the commonality requirement is not high." Sosa, 73 So.3d at 107. Sosa holds that commonality is satisfied if the common interest of putative class members is in the object or result of the action (here, money damages but also injunctive relief), or in the general question implicated in the action. Id. The trial court correctly determined that "The claims of [the Plaintiffs] and the claims of the class depend upon a common contention."

3. Rule 1.220(a)(3) : Typicality

"The key inquiry for a trial court when it determines whether a proposed class satisfies the typicality requirement is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members." Id. at 114. Here the legal interests are the same and not antagonistic. Before the 2012 legislative amendment, even the owner/operator of both the tractor and the trailer billed based on the trailer's plate has an argument that the five-axle billing should have been reduced by the number of axles on the trailer (i.e., trailers should not have been included in a bill at all). Proof of the Plaintiffs' claims will, as the trial court found, automatically prove the claims of other members of the class.

4. Rule 1.220(a)(4) : Adequacy

Vara's testimony regarding his work on behalf of the Plaintiffs, all accomplished at Vara's own expense, and his investigation on behalf of all prospective class members, supports the trial court's conclusion that the Plaintiffs are adequate class representatives and have common, not conflicting, interests in the remedies sought on behalf of the class. At the certification hearing, MDX commendably stipulated that the Plaintiffs' counsel has the requisite qualifications, experience, and ability to prosecute the case as counsel for the class.

B. Rule 1.220(b) Findings

The trial court also conducted the required analysis under Rule 1.220(b). Rule 1.220(b)(2) is satisfied here because, as the trial court found, MDX has acted in a similar manner towards all class members with its challenged toll practice. MDX's arguments regarding the statutory authority for its practices are the same for all class members.

The trial court also considered Rule 1.220(b)(3). The court found that common questions of law and fact predominate, and that class treatment is superior to other forms of representation. Common questions of fact predominate if the class representative has established a "reasonable methodology for generalized proof of class-wide impact." Sosa, 73 So.3d at 112. The record establishes such a methodology. MDX has not identified any individual issues that predominate, except to argue that individual treatment of the scores of cases would be preferable.

The sheer size of this class demonstrates the superiority of class treatment. Fla. R. Civ. P. 1.220(b)(3). Here, as in Sosa, there are potentially thousands of prospective class members. Their individual claims are too small to expect them to be adjudicated separately. Certainly, separate joinder of the class members would be impractical. See Broin v. Philip Morris Co., Inc., 641 So.2d 888, 889 (Fla. 3d DCA 1994) (concluding that joinder of 60,000 people in the class would be impractical). Given the size of this class, class action is a more manageable and efficient way to proceed, and the most efficient use of judicial resources.

III. The Dissent

Our dissenting colleague contends that the certified classes are "speculative and overbroad," such that the trial court abused its discretion. We disagree.

Sosa directs a trial court to restrict its examination of the requirements for certification "to the substance of the motion and not the merits of the cause of action or questions of fact for a jury." Sosa, 73 So.3d at 105 (citing Morgan v. Coats, 33 So.3d 59, 63-64 (Fla. 2d DCA 2010) ). The substance of the Plaintiffs' motion for certification in this case is evident: the "Toll by Plate" method adopted by MDX did not, both before and after the 2012 redefinition of "motor vehicle," charge the proper party the proper amount as between tractor trucks and the trailers towed by those trucks. There was no testimony by either witness at the certification hearing disputing that (a) tractor-trailer combinations travel the MDX expressways regularly and in great numbers, and (b) when the driver of the tractor truck and owner of the trailer are different persons or entities, "Toll by Plate" lacks a mechanism to bill each party for its proper portion of the total toll.

Nor was there any contention or evidence that each individual toll billed erroneously could be efficiently addressed in a separate lawsuit and prosecuted to judgment. The dissent's concern that some tractor-trailer combinations (both owned by a single responsible operator) may have been correctly billed by the "Toll by Plate" method establishes that some class members may be unable to prove damages, but that is not a basis for reversing the certification order.

Again, the Florida Supreme Court's clear directive to the trial court in Sosa, quoting Morgan v. Coats, is to focus "on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits." Id. It is thus of no moment, at this phase of the proceeding, whether some trailer owners will opt out of the class, or whether they may also have operated the tractor trucks which pulled their trailers (precluding such owners from recovering damages).

The record before us presents competent, substantial evidence that numerosity exists, even if some trailer owners may be unable to prove compensable damages. MDX's (and the dissent's) reliance on Lucarelli Pizza & Deli v. Posen Constr., Inc., 173 So.3d 1092 (Fla. 2d DCA 2015), regarding numerosity and overbreadth is unpersuasive. In that case, two plaintiffs sought to certify a class of claimants who alleged lost business due to a contractor's rupture of a natural gas line serving approximately 1,200 customers of the gas company. The Second District affirmed the trial court's denial of certification, determining that the two movants "did not present any evidence that a single member of the class other than themselves had suffered any economic loss." Id. at 1093.

The dissent also contends that the majority opinion "implicitly relies upon the 'tipsy coachman' doctrine" (citing Porter v. Porter, 913 So.2d 691, 694 (Fla. 3d DCA 2005). We must again respectfully disagree. The trial court reached the right result, a finding of numerosity supporting certification, for the right reason and based on the record. We are not at liberty to conduct a "de novo" review of the record or to make our own "independent determination" as to whether the Plaintiffs satisfied that requirement of Rule 1.220. Sosa, 73 So.3d at 103.

IV. Conclusion

The class certification motion was thoroughly briefed and argued by experienced counsel on both sides. The evidentiary hearing, though shorter than many, included competent, substantial evidence establishing the elements required for certification. The very nature of the claim-allegedly-improper toll charges on heavily-traveled expressways with tens of thousands of pertinent billings-supports the adjudication of the claims as a class action. No single trailer owner could cost-effectively maintain such an action, seeking reimbursement for a series of charges of a few dollars per "Toll by Plate" billing.

The trial court was both diligent and vigilant (reforming the class definitions, for example) in assessing the required elements. We affirm the order and findings in all respects.

Certification order affirmed.

LUCK, J., concurs.

ROTHENBERG, C.J. (dissenting).

Miami-Dade Expressway Authority ("MDX") and Javier Rodriguez, P.E. appeal the trial court's entry of a non-final order granting a motion for class certification filed by Tropical Trailer Leasing, L.L.C. ("Tropical") and its eight affiliates, which are also co-plaintiffs in this case (collectively, "the plaintiffs"). I dissent because the majority affirms the entry of an order certifying a class that is both speculative and overbroad. Because Tropical failed to prove that the proposed class was so numerous that joinder was impracticable and because the trial court improperly included uninjured parties in its class definition, the trial court's entire class certification analysis was flawed. Accordingly, the trial court abused its discretion by certifying the class.

According to the operative complaint, Tropical seeks damages and injunctive relief in connection with MDX's allegedly unlawful tolling practices. At times, Tropical's claims seem to rest on alleged ambiguity in the applicable statutory framework governing tolls, but at other times, Tropical alleges that the injuries are caused by MDX's tolling methods. Throughout this litigation, however, the gravamen for Tropical's claims has been the following alleged injury: a vehicle towing a trailer uses an MDX roadway without a working toll transponder; sometimes, the towing vehicle is owned by one party, and the trailer is owned by another party; MDX captures a picture of and relies upon only the rear license plate attached to the trailer in order to impose a toll for the towing vehicle and the attached trailer (this is referred to as the "Toll by Plate" method); and thus, MDX improperly charges the toll against the registered owner of the trailer, which in some cases differs from the owner of the towing vehicle. Tropical and its affiliates are in the trailer leasing business, and they own fleets of leased trailers, but they do not own the vehicles that tow them. Therefore, it and other trailer leasing companies claim that they suffer acutely from MDX's allegedly unlawful tolling methods.

Although this alleged injury might be particularly damaging to those in the trailer leasing industry, the trial court entered an order certifying the following two subclasses that stretch far beyond the scope of the trailer leasing industry: "(1) the owners of all trailers towed on MDX roadways for which MDX used the toll by plate method of toll imposition from October 14, 2010 through June 30, 2012," and "(2) the owners of all trailers on MDX roadways for which MDX used the toll by plate method of toll imposition since July 1, 2012." (emphasis added). After the trial court entered its order granting class certification, MDX appealed pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi).

ANALYSIS

A trial court's entry of an order granting a motion for class certification is reviewed on appeal for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102 (Fla. 2011). However, "[t]he discretion of a trial court is to be applied within the structure of rule 1.220." Id. at 103.

In general, the burden of proving the class certification requirements found in Florida Rule of Civil Procedure 1.220 rests with the party seeking class certification. Id. at 106. According to rule 1.220(a), a class may not be certified unless the trial court makes the following conclusions:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

These requirements are frequently referred to in shorthand as the requirements of (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. Terry L. Braun, P.A.v. Campbell, 827 So.2d 261, 266 (Fla. 5th DCA 2002). The trial court must rigorously analyze whether these prerequisites have been satisfied on the basis of sufficient information and evidence. Freedom Life Ins. Co. of Am. v. Wallant, 891 So.2d 1109, 1114 (Fla. 4th DCA 2004) ("In determining whether these prerequisites have been established, a 'rigorous analysis' must be conducted."); Terry L. Braun, 827 So.2d at 265.

As to the numerosity requirement, the party seeking class certification is required to prove that the class is so numerous that separate joinder of each party would be impracticable. Leibell v. Miami-Dade Cty., 84 So.3d 1078, 1083 (Fla. 3d DCA 2012) ("Satisfaction of [the numerosity] prerequisite is not just a test of numbers.... [I]t is a practicability requirement of which class size is but one inherent part."). The party seeking class certification cannot rely on speculation when proving that the proposed class is sufficiently numerous. Sosa, 73 So.3d at 114 (stating that "class certification is proper if the class representative does not base the projected class size on mere speculation"); Toledo v. Hillsborough Cty. Hosp. Auth., 747 So.2d 958, 961 (Fla. 2d DCA 1999) ("It is well-settled that, while a plaintiff is not required to plead the exact number of persons included in a proposed class, a plaintiff is precluded from relying on speculation as to class size.").

A class will also fail to satisfy the numerosity requirement if it is overbroad. Lucarelli Pizza & Deli v. Posen Constr., Inc., 173 So.3d 1092, 1094 (Fla. 2d DCA 2015) (stating that "the proposed class was overbroad because it included many members who did not suffer and would not be able to prove any injury or actual damage"); Leibell, 84 So.3d at 1083 ("[A] proposed class, even a moderately large one ..., which appears to the naked eye to be 'adequately defined and clearly ascertainable,' still will fail if it is overbroad.") (citation omitted); Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 92 (Fla. 1st DCA 2004) (stating that the proposed class of "all current and former hourly Wal-Mart employees in Florida on or subsequent to July 13, 1997" was overbroad because it included many members "who never worked off the clock and therefore [had] no interest in the lawsuit").

In the instant case, the trial court's finding as to numerosity begins and ends the class certification analysis. The trial court found that the numerosity requirement was met "based on the enormous number of trailer tag tolls imposed since 2010." Specifically, the trial court noted that Alberto Vara, Tropical's co-owner and general manager, testified at the evidentiary hearing on class certification that the two MDX toll violation databases he examined included the names and addresses of more than 83,000 trailer owners who have paid tolls to MDX between October 2010 and April 2016, tolls which were assessed using MDX's allegedly unlawful tolling methods. Thus, based on the high number of trailers that MDX charged a toll, and nothing more, the trial court concluded that "there are at least 40 members in each proposed historical class."

The trial court erred by finding that the numerosity requirement was satisfied based on this evidence because the trial court could only speculate as to how many trailer owners in the MDX databases would actually be proper parties in this litigation. For example, as Tropical readily concedes, many of the parties on the MDX databases own both the trailer and the vehicle towing the trailer. These parties would not be proper class members because they were correctly charged for the entire trailer/towing vehicle combination, and any moneys they would receive relating to this litigation would constitute a windfall.

For much the same reason, the certified class is overbroad because it includes many uninjured parties who, therefore, have no interest in the litigation. To be sure, Tropical does not contend that each of the members in the certified class have incurred monetary damages relating to MDX's tolling methods, but instead suggests that these extra class members might be later excised from the class if they choose to opt out or if MDX proves up an affirmative defense against them. Neither suggestion has merit. First, it is unconvincing to suggest that any of the improperly included class members who stand to receive a toll refund will in good faith simply opt out of the class action. Second, and more importantly, it is not MDX's obligation to weed out class members who should not have been included in the first place. As stated above, Tropical bears the burden of proving that its class meets the requirements of numerosity; MDX does not need to disprove class membership.

By comparison, consider the class that was certified in Florida Department of Agriculture & Consumer Services v. Lopez-Brignoni, 114 So.3d 1138, 1140 (Fla. 3d DCA 2012) : "All owners of citrus trees situated within Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and were destroyed under the [Citrus Canker Eradication Program] on or after January 1, 2000[.]" Id. It would have been entirely improper for the trial court to certify a class of all citrus tree owners, including those whose citrus trees were not destroyed, based solely on an index of everyone in Miami-Dade County who owns citrus trees. It is similarly inappropriate, here, to certify a class of all trailer owners, regardless of whether they were improperly charged tolls, based on a database of every trailer owner who was charged a toll.

In short, it is apparent from the trial court's order certifying the class that the trial court's "conclusion derived from the evidence constituted a giant 'leap of logic.' " Canal Ins. Co. v. Gibraltar Budget Plan, Inc., 41 So.3d 375, 378 (Fla. 4th DCA 2010) ("When the layers are peeled away, what is left is insufficient proof of numerosity to support the certification of the class.").

I will now address the majority's numerosity analysis, and I have chosen to address it separately because it relies on grounds not raised in the motion for class certification, not contained in the trial court's own numerosity analysis in its order certifying the class, and not raised or argued by Tropical on appeal. Thus, the majority implicitly relies upon the "tipsy coachman" doctrine. Porter v. Porter, 913 So.2d 691, 694 (Fla. 3d DCA 2005) (stating that "the tipsy coachman doctrine allows an appellate court to affirm a trial court that reaches the right result, but for the wrong reasons so long as there is any basis which would support the judgment in the record") (internal quotation marks omitted) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ).

The majority's numerosity analysis refers to three groups that allegedly form the sufficiently numerous class: (1) thousands of owners charged a toll according to the MDX databases; (2) nine co-plaintiffs; and (3) what the majority refers to as "numerous corporate parties." I have already addressed how the MDX databases led to a speculative and overbroad class definition, and it can hardly be said that the presence of the nine plaintiffs, comprised of one management company and its eight closely associated affiliates, justify a finding that joinder is impracticable. The majority references the fact that these named plaintiffs own more than 2,600 towed trailers, but that is evidence of the extent of Tropical's damages , not the impracticability of the plaintiffs' joinder. Thus, ultimately, if Tropical cannot satisfy its burden to establish numerosity by relying on MDX databases, which admittedly includes an indeterminate number of injured and uninjured proposed class members, or the nine named plaintiffs, the majority's analysis must rest solely on what it calls "numerous corporate parties."

The only evidence of these potential corporate parties in the record comes from Mr. Vara's testimony at the certification hearing, wherein he mentioned ten companies who own trailers but who do not own the vehicles that tow them. There are significant problems with relying on these passing remarks. Tropical has not suggested that the joinder of nine plaintiffs and ten other companies in the trailer leasing industry would be impracticable, there is nothing in the record to suggest that their joinder would be impracticable, and it is unclear whether and to what extent these ten corporate parties might have an interest in this case. The majority's reliance on these ten corporate entities to satisfy the numerosity requirement is therefore flawed because: (1) Mr. Vara's mention of these companies does not demonstrate one way or the other whether their joinder would be impracticable; and (2) given that the record regarding whether these entities are proper class members is undeveloped, the tipsy coachman doctrine cannot be relied on to affirm the class certification order. Robertson v. State, 829 So.2d 901, 906-07 (Fla. 2002) (stating that the appellate court will correctly refuse to affirm on an alternative theory not argued to the trial court where "the record does not reflect an evidentiary basis sufficient to permit" the appellate court to make a determination as to the alternative theory) (quoting State, Dep't of Revenue ex rel. Rochell v. Morris, 736 So.2d 41, 42 (Fla. 1st DCA 1999) ) (emphasis omitted).

It is worth noting that with only speculative proof of numerosity, the remainder of the class certification analysis is severely impacted. To prove commonality, the party seeking class certification must demonstrate that "resolution of a class action [will] affect all or a substantial number of the class members, and that the subject of the class action presents a question of common or general interest. " Sosa, 73 So.3d at 107 (emphasis in original). However, if it is unknown how many members in a class actually suffered an injury, then there can be no determination about whether "all or a substantial number" of them would be affected by the resolution of the class action.

Similarly, the typicality requirement focuses on the similarities between the class representative and the class members. Id. at 114 ("The key inquiry for a trial court when it determines whether a proposed class satisfies the typicality requirement is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members."). This analysis is hindered by the fact that Tropical's legal interests and injuries might be similar to some class members who were allegedly improperly charged a toll, but Tropical's legal interests and injuries will definitely be dissimilar to those class members who suffered no injury at all when they were charged a toll.

Finally, in its response to this dissent, the majority relies heavily on a principle espoused in Sosa, stating that "a trial court [must] restrict its examination of the requirements for certification 'to the substance of the motion and not the merits of the cause of action or questions of fact for a jury.' " Majority Op. at 757 (quoting Sosa, 73 So.3d at 105 ). At first glance, this would seem to preclude any evaluation of evidence that touches on the merits of a case, but that would make no sense. A court cannot perform even a cursory class certification analysis without evaluating the evidence presented regarding the nature of the claims, whether the proposed class members' interests are the same as the class representative's interests, and indeed, whether a proposed class actually includes parties injured by the class representative's own rubric. It is therefore completely understandable that the Florida Supreme Court would clarify its statement almost immediately after the majority's cited quotation from Sosa: "However, if consequential to its consideration of whether to certify a class, a trial court may consider evidence on the merits of the case as it applies to the class certification requirements." Id. To that end, this dissent has shown why the trial court erred by including uninjured parties in its calculation of class members for the purpose of determining whether Tropical satisfied the numerosity requirement. There is no suggestion here about whether Tropical will ultimately prevail on the merits.

It is also difficult to square the majority's position with the analysis performed in Lucarelli and Ouellette, where the Second and First District Courts of Appeal, respectively, evaluated whether the proposed class included parties who were actually injured in the way suggested by the class representatives. Lucarelli, 173 So.3d at 1094 ("[T]he proposed class was overbroad because it included many members who did not suffer and would not be able to prove any injury or actual damage .") (emphasis added); Ouellette, 888 So.2d at 92. The majority's analysis fails to account for the reasoning in these precedents.

CONCLUSION

Our standard of review is not de novo, but the abuse of discretion standard of review is not a rubber stamp. Because Tropical failed to produce evidence proving that joinder of proper class members is impracticable, but instead offered a massive list that Tropical admits includes an indeterminate number of parties who did not suffer damages as a result of MDX's allegedly improper tolling methods, Tropical has clearly failed to satisfy the numerosity requirement provided in rule 1.220(a). This shortcoming is fatal to the remainder of the class certification analysis. Therefore, the trial court abused its discretion by granting Tropical's motion for class certification. I accordingly dissent from the majority opinion and would reverse the order granting Tropical's motion for class certification.

      Vara identified other trailer-owning companies that were billed by MDX that owned only the trailer and not the tractor pulling the combined vehicle: Angle Leasing, Omega, Electra Intermodal, TAW, Bowman Leasing, XTRA Lease, Strick Lease, Tote Marine, and Seaboard Marine. The MDX witness testified that "pretty much the names that he listed," had settled with MDX, but provided no definitive testimony regarding the number of putative class members that have not settled.

      Andriuk's testimony did not attempt to address all of the 83,000 trailer owner billings discussed by Vara in his testimony.

      The Court observed that the single plaintiff, Ms. Leibell, had so far "proven a class of one." Leibell, 84 So.3d at 1084.

      The fact that MDX may have settled some claims regarding those toll practices (as alluded to by Andriuk) does not alter the uniformity of MDX's "Toll by Plate" procedures affecting the class.

      The operative complaint reveals that the nine plaintiffs in this case are closely related entities. In fact, the complaint alleges that "[Tropical] is in the business of providing complete management services to each of its eight affiliates[.]"

      As discussed more fully in the majority opinion, the dates in the class definition pertain to a change in the relevant statutory framework due to a legislative amendment in 2012.

      Thus, it is surprising that the majority suggests that there was no "contention or evidence that each individual toll billed erroneously could be efficiently addressed in a separate lawsuit and prosecuted to judgment." Majority Op. at 758. MDX has no burden to introduce such evidence-the burden is on Tropical to demonstrate that it would be impracticable to address each toll in a separate lawsuit.

      The majority states that it is not relying on the tipsy coachman doctrine. However, the trial court did not rely on evidence of "numerous corporate parties" when it found the class sufficiently numerous, and yet the majority does. If the majority contends that the trial court reached the right result for the right reason, then it also concedes that its references to the "numerous corporate parties" are mere obiter dicta.

      I would also note that if we reverse the instant order certifying the class, our reversal would in no way preclude Tropical from filing another motion to certify in the future if it is able to establish the requirements in rule 1.220(a). See Toledo, 747 So.2d at 961 (stating that "with the presentation of new evidence, the Plaintiffs again may move for class certification at any time before entry of a judgment on the merits").


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Daryl Lamar BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-905
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Daryl Lamar Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Daryl Brown appeals the denial of his post-conviction motion alleging in part that his trial counsel was ineffective for allowing him to proceed to trial despite a court-ordered competency evaluation having not been completed. Two court-ordered evaluations determined Brown was competent, but the trial court ordered a third competency evaluation. Thereafter, new counsel for Mr. Brown took over before trial, but was unaware of the previous order and was under the impression that, because of the results of the previous evaluations, and because his interactions with Mr. Brown led him to believe that Mr. Brown was competent to stand trial, no reason existed for another competency evaluation.

In denying Mr. Brown's post-conviction motion, the trial court concluded that the "two prior evaluations found that the Defendant was competent and the counsel's credible testimony that his personal interaction with the Defendant did not cause him any concern that the Defendant was incompetent to stand trial." It was error, however, to deny relief on the basis of the prior reports and counsel's personal interactions, which are not substitutes for the court-ordered competency report about which new counsel was unaware (he testified he reviewed Brown's file but that he "had a large caseload at that time so it is very possible that [he] missed something in there"). A third competency report would not have been ordered absent a basis for doing so; and a hearing should have been held thereafter. Under these circumstances, where a report was necessitated but never conducted and new counsel was unaware of the matter, a conditional reversal is required to determine whether a nunc pro tunc order of competency is possible. Brooks v. State , 180 So.3d 1094, 1095 (Fla. 1st DCA 2015) ("But there is nothing in the record to indicate an evaluation ever occurred, and after a new judge and new defense counsel were assigned to the case, no further requests for an evaluation appear to have been made.").

Accordingly, Mr. Brown's judgments and sentences are reversed pending further proceedings. On remand, the court may make a nunc pro tunc determination of competency finding that Mr. Brown was in fact competent at the time of his trial; if that finding cannot be made, the court shall make a present competency determination to stand trial, and if Mr. Brown is competent, conduct a new trial. See Pamphile v. State , 216 So.3d 765 (Fla. 1st DCA 2017) (reversing the defendant's judgments and sentences pending determination of competency on remand for failure to complete court-ordered competency evaluation). The trial court's post-conviction order is affirmed in all other respects.

REVERSED and REMANDED for further proceedings.

Lewis, Makar, and Osterhaus, JJ., concur.


author: M.K. Thomas, J.

text:
    Piotr CHRZUSZCZ, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 1D16-3239
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Mark P. Stopa of the Stopa Law Firm, Tampa, for Appellant.
    Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale; Kimberly S. Mello, and Danielle M. Diaz of Greenberg Traurig, P.A., Tampa, for Appellee.
   M.K. Thomas, J.

Piotr Chrzuszcz, "the Borrower," appeals the final judgment of foreclosure in favor of Wells Fargo, "the Bank." He argues the trial court erred by denying his Motion for Involuntary Dismissal because the Bank failed to comply with a condition precedent to foreclosure. We agree and reverse and remand for entry of an involuntary dismissal.

I. Facts

In 1998, the Borrower executed an FHA fixed-rate promissory note, paragraph 6(B) of which indicated acceleration would only be permitted if the Lender followed Housing and Urban Development, "HUD," regulations:

If the Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults , require immediate payment in full of the principal balance remaining due and all accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any subsequent default. In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, "Secretary" means Secretary of Housing and Urban Development or his or her designee.

(Emphasis added).

The HUD regulation at issue in this case requires the Bank, prior to initiating a foreclosure action, to either have a face-to-face interview with the Borrower, or reasonably attempt to do so:

b) The mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid. If default occurs in a repayment plan arranged other than during a personal interview, the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced ....

24 C.F.R. § 203.604(b) (2012).

In 2012, the Bank filed a verified complaint seeking to foreclose the mortgage and recover the indebtedness under the note as a result of the Borrower's default. The complaint included a general claim that the Bank had satisfied all conditions precedent to initiating suit: "[A]ll conditions precedent, to acceleration of the subject loan and foreclosure of the subject Mortgage, have been performed, have occurred, or were waived." In response, the Borrower filed an answer, asserting, "[s]pecifically, and without limitation, [the Bank] failed to comply with the requirements of the National Housing Act, 12 U.S.C. § 1701x(c)(5) and 24 C.F.R. 203.604, under which [the Bank] is required to complete pre-foreclosure counseling with the Defendant." The Borrower did not, however, plead the failure to complete conditions precedent as a separate affirmative defense.

At the first bench trial, the Borrower argued that the Bank's failure to comply with the face-to-face counseling requirement was a condition precedent to filing suit. Without explanation, the trial judge declined to entertain the argument. The Bank then called a single witness, Dustin Green, who was employed by the Bank as a loan verification analyst. He testified based on his review of various business records. With the exception of a default letter dated December 4, 2011, and a letter log, Green offered no testimony regarding whether the Bank complied with the face-to-face counseling requirement.

After the Bank rested its case, the Borrower moved for an involuntary dismissal based on the Bank's lack of standing. The trial court granted the motion, entering an involuntary dismissal over the Bank's objection; however, the trial court later vacated the involuntary dismissal upon the Bank's Motion for Rehearing.

At the second bench trial, before a different trial judge, Mr. Green was again the sole witness called by the Bank. He offered no testimony regarding whether the Bank complied with the face-to-face counseling requirement. At the conclusion of the Bank's case, the Borrower moved for an involuntary dismissal based on the Bank's failure to comply with the face-to-face counseling requirement as a condition precedent to filing the foreclosure action.

The Bank responded that compliance with HUD regulations was an affirmative defense, as opposed to a condition precedent, and the Borrower had failed to plead noncompliance as an affirmative defense. The Borrower then recalled Mr. Green and elicited testimony that: 1) no documents reflected any face-to-face counseling occurred with the Borrower; and 2) none of the five exceptions to the face-to-face requirement applied. The Bank, as rebuttal evidence, introduced several certified letters it sent to the Borrower. The Borrower objected to the evidence as irrelevant because, with one exception, the letters predated the default.

After the presentation of all the evidence, the Borrower renewed his Motion for Involuntary Dismissal, which the trial court took under advisement. Ultimately, the trial court denied the Borrower's Motion and entered a Final Judgment of Foreclosure. The Borrower filed a timely Motion for Rehearing, which was also denied by the trial court. This appeal followed.

II. Standard of Review

"A trial court's ruling on a motion for involuntary dismissal is reviewed de novo ." Citigroup Mortg. Loan Trust Inc. v. Scialabba , 238 So.3d 317, 319 (Fla. 4th DCA 2018) (citing Deutsche Bank Nat'l Tr. Co. v. Clarke , 87 So.3d 58, 60 (Fla. 4th DCA 2012) ). We likewise review de novo questions of law, such as which party bears the burden of proof. See, e.g., Brown v. Cowell , 19 So.3d 1171 (Fla. 1st DCA 2009).

III. Analysis

The Borrower argues that the HUD requirement that the Bank either have a face-to-face interview with the Borrower, or make a reasonable effort to arrange a face-to-face meeting constituted a condition precedent to foreclosure. Accordingly, as a condition precedent, the Bank bore the burden of proving its satisfaction at trial. The Bank, on the other hand, asserts the Borrower's allegation that it failed to comply with the face-to-face interview requirement was an affirmative defense; thus, the Borrower had the responsibility to specifically plead and prove the defense. We agree with the Borrower's contention that, in the current case, the HUD-mandated face-to-face interview (or attempt to interview) was a condition precedent to the foreclosure action, and the Bank shouldered the burden of proving its satisfaction.

" 'Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty.' " University Housing by Dayco Corp. v. Foch , 221 So.3d 701, 704 (Fla. 3d DCA 2017) (quoting Land Co. of. Osceola Cty., LLC v. Genesis Concepts, Inc. , 169 So.3d 243, 247 (Fla. 4th DCA 2015) (emphasis omitted) ). Where there are conditions precedent to filing the suit, the plaintiff bears the burden of proving substantial compliance. Scialabba , 238 So.3d at 319 (citing Liberty Home Equity Sols., Inc. v. Raulston , 206 So.3d 58, 60 (Fla. 4th DCA 2016) ).

On the other hand, "[a]n affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action." Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So.3d 1086, 1096 (Fla. 2010). The defendant, as the one who raises the affirmative defense, bears the burden of proving that affirmative defense. Id.

Thus, if the Bank is correct that its alleged failure to conduct the HUD-required face-to-face interview was an affirmative defense, the Borrower bore the burden of proving it below; if, on the other hand, the face-to-face interview was a condition precedent to filing the mortgage foreclosure action, the Bank bore the burden of proving it had complied.

Florida appellate courts have addressed whether face-to-face interviews as required by section 203.604 constitute a condition precedent or an affirmative defense in a foreclosure suit. In Diaz v. Wells Fargo Bank, N.A. , 189 So.3d 279, 285 (Fla. 5th DCA 2016), it was unclear whether the HUD regulations were incorporated into the terms of the mortgage; the Fifth District held that in such cases where it was unclear whether alleged conditions precedent even applied, "the burden is on the party asserting the existence of the conditions precedent to establish their applicability."

In Harris v. United States Bank National Association , 223 So.3d 1030, 1032 (Fla. 1st DCA 2017), this Court recognized "[t]his case turns on whether a HUD regulation, the face-to-face counseling rule, is a condition precedent to foreclosure, and if so, whether compliance with those regulations was properly and timely pled." We determined the HUD regulation of face-to-face counseling was a condition precedent to foreclosure pursuant to the terms of that particular mortgage; however, we also held the issue was waived where the Bank never claimed compliance and Harris did not allege noncompliance until closing arguments. Id. at 1032-33.

The case at hand is most analogous to Palma v. JPMorgan Chase Bank , 208 So.3d 771 (Fla. 5th DCA 2016). There, as here: 1) the note and mortgage clearly required compliance with HUD regulations, including the face-to-face interview requirements in section 203.604, as a condition precedent to foreclosure; 2) the bank's complaint alleged compliance with all conditions precedent to foreclosure; and 3) the borrower denied the allegation that conditions precedent had been completed and specifically asserted the bank had failed to comply with the HUD requirement of a face-to-face interview. Id. at 773. The Fifth District determined that Palma's specific denial of the bank's allegation it had satisfied all conditions precedent to the mortgage foreclosure action "shifted the burden back to Bank to prove at trial that it complied with [ section 203.604 ]." Id. at 775. The court reasoned there was "no meaningful reason to treat compliance with section 203.604 in an FHA mortgage differently than compliance with paragraph twenty-two in a standard mortgage, which our court has determined is a condition precedent to foreclosure." Id.

Here, as in Palma , where the Bank asserted in the complaint that all conditions precedent had been satisfied, but the Borrower denied that assertion with the specific claim that the Bank failed to meet the face-to-face counseling requirement of section 203.604, the burden of proving the condition precedent was shifted back to the Bank.

The Bank's reliance on the Florida Supreme Court case of Custer Med. Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010), is misplaced. There, the supreme court noted "a defending party's assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense , for which the defensive pleader has the burden of pleading and persuasion." Id. at 1096. However, Custer , as noted in Palma , is distinguishable from the case at hand for two main reasons. First, Custer dealt not with conditions precedent to a foreclosure action pursuant to HUD, but rather, with the issue of whether an insured's attendance at a medical examination was a condition precedent to the existence of an automobile insurance policy that provided personal injury protection (PIP) benefits. Id. ; see also Palma , 208 So.3d at 774 n.3. Further, in Custer , the defendant raised as an affirmative defense the insured's unreasonable failure to appear at a medical examination. 62 So.3d at 1096. In Palma and the current case, on the other hand, the Bank initially alleged all conditions precedent had been met, and the Borrowers, in response, specifically denied those allegations. Palma , 208 So.3d at 774 n.3. The specific denial did not amount to an affirmative defense. Thus, both here and in Palma , the burden of proving compliance with the condition precedent shifted back to the Bank.

As such, the Bank bore the burden of proving it had met the condition precedent, pursuant to section 203.604, of holding or attempting to hold face-to-face interviews with the Borrower. It failed to do so.

REVERSED and REMANDED for entry of a voluntary dismissal of this case.

Rowe and Makar, JJ., concur.


author: Osterhaus, J. Bilbrey, J., concurring.

text:
    Andrew R. MOODY, Appellant, v. Natalia Yevgenyevna MOODY n/k/a Natalia Yevgenyevna Arrington, Appellee.
    No. 1D17-2477
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andrew R. Moody, pro se, Appellant.
    Edward W. Horan, Edward W. Horan, P.A., Tallahassee, for Appellee.
   Osterhaus, J.

Andrew R. Moody appeals an order requiring him to pay the full amount of a child support arrearage to his former wife Natalia Y. Moody. Mr. Moody asserts that the final order should be reversed because one of the three children for whom the court ordered the payment of support actually lived with him, which should have reduced the amount he was ordered to pay. We agree and reverse.

I.

This case arises from a 2010 dissolution of marriage action. The parties entered into a marital settlement agreement and parenting plan approved by the court in which their three children would spend most of their time with Ms. Moody. An agreement between the parties called for Mr. Moody to pay $820 per month in child support to Ms. Moody, and included a step-down amount as each child became emancipated; with two minor children, for example, the amount would be reduced to $673 per month.

In 2016, Ms. Moody filed a motion for enforcement/contempt of the child support order. She alleged that beginning in June 2015, Mr. Moody unilaterally reduced his payments of child support. Mr. Moody quickly responded by filing his own "motion" asserting that he was entitled to pay a lesser amount because the oldest child began to live with him in June 2015. He also asserted that the parties agreed to the reduction of the child support amount.

A magistrate held a hearing on the motion. The undisputed testimony at the hearing was that the parties had three children, the oldest of whom moved in with Mr. Moody in June 2015 until reaching the age of majority in August 2016. Corresponding to the child's moving in with him, Mr. Moody reduced the amount of his child support payments from the court-ordered $820 per month to lesser amounts.

The magistrate ultimately filed a report recommending that Ms. Moody's motion be granted. She found that Mr. Moody had unilaterally stopped paying the full amount of child support without authorization or agreement. Mr. Moody was ordered to pay the full $820 monthly child support amount from June 2015 forward, without regard for the fact that the oldest daughter lived with him full-time (and then turned eighteen) during this period. The magistrate's report stated that Mr. Moody would have to file a petition for modification if he sought to pay less child support.

Mr. Moody filed exceptions to the magistrate's report, asserting among other things that it was error to order him to pay the full child support amount when the eldest child lived with him "100% of the time" from June 2015 forward. After the circuit court held a hearing on the exceptions, it summarily rejected them. And Mr. Moody appealed.

Simultaneous with his appeal, Mr. Moody filed a "Supplemental Petition" for retroactive modification of child support as advised by the magistrate's report. This petition also sought a retroactive adjustment of his child support obligation corresponding to the oldest child living with him, along the lines of his defense to the earlier motion. The trial court denied the petition, however, finding that § 61.30(11)(c), Florida Statutes (2016), only permitted Mr. Moody to recover overpayments post-dating his petition. Mr. Moody appealed this order by motion, which is also part of this review. See Fla. R. App. P. 9.600(c)(3).

II.

We review the trial court's adoption of a magistrate's report for abuse of discretion. Fahey v. Fahey , 213 So.3d 999, 1001 (Fla. 1st DCA 2016) (citing Brown v. Brown , 149 So.3d 108, 110 (Fla. 1st DCA 2014) ).

Mr. Moody's appeal continues his defense against having to pay the full amount of court-ordered child support because one of his three children, who used to live with the former wife, began living with him full-time in June 2015. The right to past-due child support payments is ordinarily considered a vested property right for the benefit of the child. Alexander v. Alexander , 683 So.2d 172, 173 (Fla. 1st DCA 1996). One must continue paying the court-ordered amount of support until and unless a motion for modification has been filed and granted. Id. A trial court can decline to enforce a past-due child support obligation, however, where the obligor proves an equitable defense, including where "the former custodial parent no longer supports the child." State ex rel. Pittman v. Stanjeski , 562 So.2d 673, 678 (Fla. 1990) ; see also Alexander , 683 So.2d at 173 (recognizing that a trial court "may decline to enforce a past-due obligation if a party obligated to pay child support establishes the existence of extraordinary or compelling circumstances such as waiver, laches, [or] estoppel"); cf. State, Dep't of Revenue ex rel. Dees v. Petro , 765 So.2d 792 (Fla. 1st DCA 2000) (recognizing that a party may be equitably estopped from recovering child-support arrearages if a party misrepresents a material fact upon which the party asserting estoppel relied).

In this case, the problem we see with the decision below is that the magistrate failed to substantively evaluate the legitimate defense raised by Mr. Moody's response to Ms. Moody's child support enforcement/contempt motion. Mr. Moody's response to his former wife's motion, which he mislabeled as a "motion," asserted that he assumed custody of his eldest daughter in June 2015, pursuant to an agreement between the parties. In other words, for the entire period for which Ms. Moody was seeking recovery of the full child support amount, she wasn't actually providing support for one of the three children. Mr. Moody's defense was a valid one, recognized by Pittman , that he assumed day-to-day custody of the eldest daughter and needn't pay child support on her behalf. But the trial court rejected his defense on formalistic grounds as an "improper pleading," which required the filing of a petition.

We conclude that because Mr. Moody's pro se "motion" stated a valid defense to the child support enforcement motion, it should have been evaluated on its merits, instead of disregarded on the basis of its title. See, e.g. , Fire & Cas. Ins. Co. of Conn. v. Sealey , 810 So.2d 988, 992 (Fla. 1st DCA 2002) ("We agree that the true nature of a motion must be determined by its content and not by the label the moving party has used to describe it."); Suarez v. Orta , 176 So.3d 327, 328 (Fla. 3d DCA 2015) (recognizing that mislabeled pro se pleadings should be defined by their function and considered for their substance). Under these circumstances, Mr. Moody needn't have filed a petition for modification in order to have his equitable defenses considered on the merits.

III.

For these reasons, the Order Affirming Magistrate's Report on Motions for Contempt and Pending Pleadings is REVERSED and REMANDED for substantive consideration of Mr. Moody's defenses consistent with this opinion.

Additionally, the December 5, 2017, order denying Mr. Moody's supplemental petition-in which he requested modification of the child support amount retroactively in accordance with paragraph 12 of the Magistrate's December 20, 2016 report-is VACATED .

Lewis and Bilbrey, JJ., concur.

Bilbrey, J., concurring.

I join in Judge Osterhaus's opinion. I write separately only to emphasize that the opinion concerns the ability of a party to raise "extraordinary or compelling circumstances" as a defense to a motion for enforcement/contempt. Alexander v. Alexander , 683 So.2d 172, 173 (Fla. 1st DCA 1996). The requirement in rule 12.110(h), Florida Family Law Rules, that a supplemental petition is the proper method to seek modification of a final judgment is not altered by our holding here. See also Clark v. Clark , 204 So.3d 589 (Fla. 1st DCA 2016) (holding that a supplemental petition as opposed to a motion was the proper method to attempt a modification of a final judgment).


text:
    Travis THURSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2548
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Melissa Joy Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Travis Thurston appeals his convictions for aggravated assault with a firearm, discharging a firearm in public, battery on a law enforcement officer, and resisting arrest. We affirm.

Thurston was arrested in 2015 after he shot a car and bit two police officers in a McDonald's parking lot. Thurston's bizarre behavior led the trial court to appoint an expert to determine whether he was competent to proceed. But before the court could make a competency determination, Thurston was taken into federal custody on unrelated charges. Nearly two years later, he returned to face his state charges. By then, a new judge and prosecutor were assigned, and Thurston had a new public defender.

Two witnesses into Thurston's trial, the new judge realized the previous judge never made a competency finding. So during a continuance, the court appointed another expert to evaluate Thurston. That expert promptly evaluated Thurston, opined that he was competent, and prepared a report. The court then held a hearing and entered an order finding Thurston competent based on the expert's report.

Thurston's first argument on appeal is that it was fundamental error to begin the trial without determining his competency. See Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ("[O]nce the court has reasonable grounds to question the defendant's competency, the court has no choice but to conduct a hearing to resolve the question."); Cotton v. State , 177 So.3d 666, 667-68 (Fla. 1st DCA 2015) ("It is a due process violation to proceed against an incompetent criminal defendant."). We have held, though, that a conviction can stand if the trial court can retroactively determine competency. Chester v. State , 213 So.3d 1080, 1083 (Fla. 1st DCA 2017) ; see also Dougherty v. State , 149 So.3d 672, 679 (Fla. 2014). Here, although the trial was already underway, the court promptly determined Thurston's competency once the issue reappeared. There was no fundamental error.

Thurston's second argument is that his trial counsel was constitutionally ineffective. However, to succeed with this argument on direct appeal, Thurston needed to show "ineffectiveness obvious on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct." Morales v. State , 170 So.3d 63, 67 (Fla. 1st DCA 2015) (on rehearing). He has failed to meet this heavy burden, so he can raise his ineffective-assistance claims only through a rule 3.850 motion.

AFFIRMED .

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


text:
    S.G., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-3602 1D17-3603 1D17-3604 1D17-3605 1D17-3596 1D17-3597 1D17-3598 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and John W. Hedrick, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

S.G., who attacked and injured her father with a 6-8? shard of broken mirror glass and smashed a picture frame over his head all while threatening to kill him, challenges her conviction for aggravated battery with a deadly weapon, claiming the shard did not constitute a deadly weapon because it is not ordinarily considered such a weapon, was not converted into one by its use in this case, and caused only a "scratch" that healed by the time of trial.

Though the aggravated battery statute does not define what constitutes a "deadly weapon," it has been judicially defined as "1) any instrument which, when used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime." Smith v. State , 969 So.2d 452, 454-55 (Fla. 1st DCA 2007) (quoting V.M.N. v. State, 909 So.2d 953, 954 (Fla. 4th DCA 2005) ). While a piece of broken glass, whether a mirror, a window, or a beer bottle, may not ordinarily be a deadly weapon by itself, the context in which the item is used can transform it into one. Cloninger v. State , 846 So.2d 1192 (Fla. 4th DCA 2003) (affirming determination that unbroken beer bottle could be deadly weapon); Brown v. State , 787 So.2d 58 (Fla. 2d DCA 2001) (stating that evidence supported the finding that a glass bottle could be used as a deadly weapon); see also State v. Shilling , 77 Wash.App. 166, 889 P.2d 948, 950 (1995) (Beer "glass is not a per se deadly weapon; thus, the inherent capacity and 'the circumstances in which it is used' determine whether the weapon is deadly."); Harris v. State , 705 So.2d 542, 548 (Ala. Crim. App. 1997) ("Although a glass bottle is not specifically included in the list of weapons defined as 'deadly weapons,' a bottle may be 'adapted for the purposes of inflicting death or serious physical injury,' and may therefore be a 'deadly weapon.' "); Pauls v. State , 476 A.2d 157, 160 (Del. 1984) ("The end of a shattered glass bottle, with its ragged, jagged, sharp cutting edges, is clearly capable of causing death. It is well known to be as deadly as those objects listed in the statute as deadly weapons.").

There was evidence from which the factfinder could determine that S.G. intended to use the shard to cause severe harm or death to her father, who was fearful and distraught; S.G. had already cut herself in multiple locations and was "angry, cussing, using all kind of crazy language" as she slashed the shard toward him. That his injuries healed and left no permanent damage doesn't undermine the fact that the shard could have caused far worse harm, such as loss of an eye. State v. Pomeroy , 18 Wash.App. 837, 573 P.2d 805, 808 (1977) ("One of the victim's eyes had to be removed as a result of the blow [from the broken beer bottle].").

Because the shard from the broken mirror was likely to cause great bodily harm as used by S.G. against her father, the trial court correctly determined it was a "deadly weapon" and denied S.G.'s motion for judgment of acquittal.

AFFIRMED .

Makar, Winokur, and Winsor, JJ., concur.


author: Wolf, J.

text:
    Donald ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3758
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Candice Brower, Criminal Conflict and Civil Regional Counsel, Region One, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges his criminal judgment and sentence, arguing the trial court failed to memorialize in writing its initial determination that he was competent to proceed and failed to conduct a hearing or make an independent determination when his competency was later questioned. The State concedes error on both points. We reverse and remand.

FACTS

In 2015, the trial court found appellant was incompetent and committed him to the Department of Children and Families to be placed in a mental health treatment facility. On March 15, 2016, the trial court found appellant was competent to proceed. However, the court failed to enter a written order memorializing this finding.

On April 15, 2016, defense counsel expressed concern about appellant's competency and asked the court to order a new evaluation. The court ordered an evaluation.

On May 24, 2016, the court accepted a nolo contendere plea from appellant. As to the competency issue, defense counsel stated, "Your Honor ordered an evaluation. It came back competent to proceed." The court responded, "Okay."

On July 26, 2016, appellant moved to withdraw his plea, alleging without elaboration that his counsel was ineffective. The court denied the motion, finding ineffective assistance of counsel was not one of the enumerated grounds for withdrawing a plea pursuant to Florida Rule of Criminal Procedure 3.170(l ).

ANALYSIS

The trial court erred with regards to both determinations of competency.

First, the trial court erred by failing to enter a written order memorializing its oral finding that appellant was competent to proceed on March 15, 2016. A written order is required. Flowers v. State , 143 So.3d 459 (Fla. 1st DCA 2014) (citing Fla. R. Crim.P. 3.212(b) ). We remand for the trial court to enter a nunc pro tunc order finding appellant was competent to proceed on that date. Id.

Second, the trial court erred by failing to conduct a hearing or make an independent determination on appellant's competency prior to accepting his plea on May 24, 2016, despite having ordered a competency evaluation on April 15, 2016. "Once a court has reasonable grounds to question a defendant's mental health, it must hold a hearing" and make an "independent assessment of competency." Sheheane v. State , 228 So.3d 1178, 1180 (Fla. 1st DCA 2017) (citing Zern v. State , 191 So.3d 962, 964 (Fla. 1st DCA 2016) ). Although appellant failed to preserve this issue, "there can be no waiver of the right to independent judicial evaluation and adjudication of competency." Id. at 1181. "If the parties and the court agree, the court may decide the issue based on the experts' reports without receiving any testimony. However, the court must regard the reports as advisory only. Further, the court is not permitted to merely accept a stipulation of competence ... even when all the experts have opined that the defendant is competent ...." Zern , 191 So.3d at 964 (internal citations omitted).

"Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand." Dougherty v. State , 149 So.3d 672, 678-79 (Fla. 2014). However, "precedent provides that a retroactive determination of competency is possible when there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.' " Francis v. State , 1D16-5244, 248 So.3d 263, 265, 2018 WL 2437112, at *1 (Fla. 1st DCA May 31, 2018) (quoting Zern 191 So.3d at 965 ).

Accordingly, we reverse and remand for a retroactive determination of competency, if possible. If the court is unable to make a retroactive competency determination or determines that appellant was not competent at the time he entered his plea, a new trial will be required, so long as appellant is competent on remand. Id.

REVERSED and REMANDED with instructions.

Roberts and Wetherell, JJ., concur.