author: SALARIO, Judge.

text:
    Kevin Christopher TRICE, Appellant, v. Victoria Lynn TRICE, Appellee.
    Case No. 2D17-3673
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    Maria Pavlidis of McCarty Gonzalez Pavlidis & Whidden LLC, Tampa, for Appellant.
    Damien McKinney of McKinney Law Firm, P.A., Tampa, for Appellee.
   SALARIO, Judge.

Kevin Trice appeals from an order denying his motion to dissolve a permanent domestic violence injunction in favor of Victoria Trice. He argues that the trial court erred in denying his motion because the evidence proved that the circumstances underlying the injunction had changed such that it no longer served a valid purpose. We agree and reverse.

Mr. and Ms. Trice were married in 2007. In 2011, they were living together in Riverview, Florida. Both worked in the military. On June 11, 2011, Ms. Trice filed a petition to dissolve the parties' marriage. Seven days later, Ms. Trice filed a petition for an injunction for protection against domestic violence pursuant to section 741.30, Florida Statutes (2010). She alleged that on June 11, Mr. Trice pulled out a gun, trapped her in the garage, and threatened to shoot her in front of their nine-month-old daughter. Mr. Trice was arrested and charged with armed false imprisonment, aggravated assault, and domestic battery. The trial court entered a temporary injunction and set a hearing for June 27, 2011.

At the hearing on the injunction, Ms. Trice briefly testified about the incident in the garage. Mr. Trice declined to cross-examine her or offer testimony of his own, citing his pending criminal case. The trial court entered a final judgment granting a permanent injunction against domestic violence the same day. The final judgment stated that its injunctive provisions would not expire. On April 26, 2012, Mr. Trice was acquitted in the criminal case after a jury trial. On August 1, 2013, the trial court entered a final judgment dissolving the parties' marriage.

On June 27, 2016, Mr. Trice filed a motion to dissolve the injunction pursuant to section 741.30(6)(c), Florida Statutes (2015). At an evidentiary hearing before a successor judge on August 28, 2017, Mr. Trice testified that, after the injunction was entered, he left the military and moved to Kansas to pursue a career in law enforcement. He returned to school and obtained a criminal justice degree. Despite his education and ten years of experience as a military policeman, he was unable to find a job in law enforcement because the permanent domestic violence injunction prevented him from getting licensed and legally handling firearms. He also testified that he has had no contact with Ms. Trice or his daughter since the injunction was entered.

Ms. Trice testified that at least at that time, she lived in Okinawa, Japan and that she would return to the United States when her military assignment there was over, which the testimony indicates might have occurred as soon as November 2017. However, there was no way to know where her next assignment might be. (Our record does not say whether Ms. Trice has now returned to the United States, or, if she has, where she lives.) Ms. Trice also testified that, after the injunction was entered, she hid from Mr. Trice until her reassignment. She limited her social media use and cut off contact from acquaintances she feared could help Mr. Trice find her.

Ms. Trice also stated that Mr. Trice ran afoul of the injunction in September 2011. She testified that she encountered him in a parking lot on the military base standing near their then-jointly-owned vehicle. She said that they did not exchange words and she immediately fled. For his part, Mr. Trice said that he was merely looking in the vehicle for his military uniform, had no intention of contacting Ms. Trice, and that once he saw her, he immediately turned around and left without speaking to her. The parties agreed that there has been no contact since this incident.

After the hearing, the trial court summarized the testimony and concluded that "there hasn't been a change in circumstances that relate[s] to this issue, such that the ... dissolution of the injunction is warranted." It entered an order denying the motion, from which this appeal follows. Our review is for abuse of discretion. See Reed v. Giles, 974 So.2d 624, 625 (Fla. 4th DCA 2008) (reviewing order denying motion to dissolve domestic violence injunction for abuse of discretion); cf. Miley v. Dunn, No. 2D17-4775, 264 So.3d 219, 221-22, 2018 WL 6712214, at *3 (Fla. 2d DCA Dec. 21, 2018) (applying the same standard to an order on a motion to modify a sexual violence injunction).

Section 741.30 allows a court to issue an injunction against domestic violence "when it appears to the court that the petitioner is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." § 741.30(6)(a) ; see also Leaphart v. James, 185 So.3d 683, 685 (Fla. 2d DCA 2016). Once entered, a domestic violence injunction "shall remain in effect until modified or dissolved." § 741.30(6)(c). Either party to a domestic violence injunction proceeding can move to modify or dissolve the injunction "at any time." Id.; see also Fla. Fam. L. R. P. 12.610(c)(6).

Although section 741.30(6)(c) does not state what a party who seeks to dissolve a domestic violence injunction must prove in order to obtain that relief, our court and others have held that the movant must show "that there has been a change in circumstances since the injunction was entered" such "that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose." Spaulding v. Shane, 150 So.3d 852, 853 (Fla. 2d DCA 2014) (quoting Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) ); see also Bork v. Pare, 252 So.3d 394, 395 (Fla. 2d DCA 2018) ; Hamane v. Elofir, 226 So.3d 330, 330 (Fla. 5th DCA 2017). This approach lines up with the law's treatment of motions to dissolve ordinary injunctions issued pursuant to a court's equitable powers, which recognizes that because permanent injunctions are open-ended and everlasting, they must be subject to dissolution when the circumstances that justified such an injunction are no longer operative. See Alkhoury, 54 So.3d at 642 (evaluating motion to dissolve domestic violence injunction with reference to principles applicable to ordinary injunctions and noting that "permanent injunctions ... remain indefinitely in effect"); Hale v. Miracle Enters. Corp., 517 So.2d 102, 103 (Fla. 3d DCA 1987) (stating that "permanent injunctions are open ended and remain indefinitely in effect" and that their terms "must be confined to that required by their existing circumstances").

Here, when the domestic violence injunction was originally issued in 2011, it was justified by Ms. Trice's testimony that days after she filed for divorce and while both were employed in the military in Tampa, Mr. Trice confronted her and their infant daughter in their garage of their marital home and threatened to shoot her. Those events led to criminal charges against Mr. Trice. Ms. Trice's testimony was uncontroverted, with Mr. Trice declining to testify on the stated basis of concern for the criminal proceedings then pending against him. On that record, an injunction against domestic violence was undoubtedly proper-the record established without dispute that Ms. Trice had been a victim of domestic violence. See § 741.30(6)(a), Fla. Stat. (2010).

The evidence at the 2017 hearing on the motion to dissolve presented a significant change from the circumstances that existed six years earlier. At the time of the hearing on the motion to dissolve, it was undisputed that (1) Mr. Trice had been acquitted of the criminal charges arising out of the events that supported the entry of the permanent injunction; (2) the parties' marriage had been dissolved; (3) Mr. Trice was living in Kansas, not Florida; (4) Ms. Trice was living in Japan, not Florida; (5) Mr. Trice was no longer employed in the military, while Ms. Trice remained employed there; (6) the parties had not seen each other in six years; and (7) Mr. Trice had made no attempt to contact Ms. Trice for six years. Although Ms. Trice expects to return to the United States, nothing in the record suggests that she will return to anywhere close to where Mr. Trice lives. And it is undisputed that the injunction is preventing Mr. Trice from finding employment in law enforcement or security in his home state of Kansas. The record establishes that any future contact between the parties is exceedingly unlikely and that the continuing existence of the injunction is precluding Mr. Trice from obtaining employment.

Under these facts, the trial court's conclusion that these circumstances were not "such that dissolution of the injunction is warranted" could only have rested on a theoretical possibility that Mr. Trice-after six years with no attempt at contact with Ms. Trice, living far away from Ms. Trice, and no longer sharing marriage or employment with Ms. Trice-might someday seek Ms. Trice out and harm her. To the extent the trial court impliedly found that this possibility of Mr. Trice contacting and harming Ms. Trice was something more than theoretical, it abused its discretion because there is no competent substantial evidence in the record to support such a finding. Cf. State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 532-33 (Fla. 2d DCA 2017) ("The abuse of discretion standard ..., although deferential, requires that the decision to exercise discretion ... be supported by competent substantial evidence." (citing Sourcetrack, LLC v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) ) ).

To the extent the trial court concluded that the theoretical possibility of future contact between the parties was by itself sufficient to conclude that the circumstances underlying the injunction remained the same, that conclusion fails the test of reasonableness the abuse of discretion standard embodies. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). In that respect, this case is very close to the Fourth District's decision in Bush v. Henney, 175 So.3d 930 (Fla. 4th DCA 2015). There, the trial court denied a motion to dissolve a permanent domestic violence injunction when the act of domestic violence occurred during an exchange of the parties' minor child. Id. at 930. The injunction had been in effect for fourteen years; there had been no violations of the injunction or contact between the parties; the enjoined party testified that he had no desire or intention of initiating such contact; and the minor child had reached the age of majority. Id. The Fourth District reversed and remanded for the entry of an order dissolving the injunction, holding that the scenario that justified the injunction no longer existed and that the continuation of the injunction served no valid purpose. Id. at 930-31 ; see also Spaulding, 150 So.3d at 854 (reversing the denial of a motion to dissolve where the movant was serving a lengthy prison sentence and had not contacted the victim for over ten years); Baker v. Baker, 112 So.3d 734, 735 (Fla. 2d DCA 2013). We reach the same conclusion in this case for similar reasons; the circumstances that existed in 2011 were very different from those that exist today, and there is no reason for a permanent injunction to remain in place.

The trial court's remarks at the closing of the hearing on Mr. Trice's motion to dissolve suggest that it was (understandably) concerned with Ms. Trice's testimony that she remains in fear of Mr. Trice. We do not consider that fear irrelevant. But a merely speculative fear of future violence cannot be enough to justify the never-ending existence of an injunction. For a domestic violence injunction to issue in the first place, there must be either an actual act of domestic violence or a reasonable fear that domestic violence is imminent. See § 741.30(1)(a), Fla. Stat. (2015) ; S.C. v. A.D., 67 So.3d 346, 347-49 (Fla. 2d DCA 2011). Similarly, when a party seeks to extend a nonpermanent injunction against domestic violence, he or she must demonstrate that an additional act of domestic violence has occurred or that there is a reasonable fear of imminent domestic violence. See Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) ("When moving for an extension of a preexisting injunction, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence."). But see Fla. Fam. L. R. P. 12.610(c)(4)(B) (indicating that requests for extensions of expiring injunctions require no specific allegations). Because a reasonable fear of imminent violence is a legally necessary predicate to the issuance and extension of a domestic violence injunction, it follows that a reasonable fear of imminent violence is also necessary to justify denying a motion to dissolve a domestic violence injunction that is otherwise supported by the requisite change in circumstances. See Sheehan v. Sheehan, 853 So.2d 523, 525 (Fla. 5th DCA 2003) ("[I]n order to obtain an extension of a domestic violence injunction, the moving party must present evidence from which a trial court can determine that a continuing fear exists and that such fear is reasonable, based on all the circumstances."); Mitchell v. Mitchell, 198 So.3d 1096, 1101 (Fla. 4th DCA 2016) (explaining that the question of a reasonable fear of imminent domestic violence "looks towards the immediate future rather than some distant possibility of trepidation"). For the same reasons that Mr. Trice has adequately shown a change of circumstances such that the scenario underlying the 2011 injunction no longer exists-including the geographic separation of the parties and the substantial passage of time without contact or incident-the evidence was not sufficient to permit the trial court to find a continuing reasonable fear of imminent domestic violence. See, e.g., S.C., 67 So.3d at 347-49 (reversing a duplicative domestic violence injunction because the petitioner's continued fear was not reasonable where the originally-issued injunction was based on a single, six-year-old incident and the enjoined party had affirmatively avoided any contact with the petitioner); Giallanza, 787 So.2d at 164-65 (reversing order extending domestic violence injunction for the petitioner's lifetime where the petitioner did not allege further threats or acts of violence and did not show that she reasonably feared future violence).

Ms. Trice points to the 2011 incident in the work parking lot in arguing that she has a continuing reasonable fear of imminent violence. We respectfully disagree. That encounter was six years old by the time of the hearing on the motion to dissolve and, even if one ignores Mr. Trice's uncontroverted testimony explaining his presence at the car, no one has testified or argued that the incident involved any violence or suggestion of violence by Mr. Trice. See Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) ("[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations."); Jones v. State, 32 So.3d 772, 774 (Fla. 2d DCA 2010) (holding that an incident where a former husband arrived at his ex-wife's place of work was not sufficient to show a reasonable fear of domestic violence because the "circumstances did not involve any violence or any threat of violence").

For the foregoing reasons, we hold that the trial court abused its discretion in finding that Mr. Trice failed to demonstrate the change in circumstances our cases on the dissolution of domestic violence injunctions require. We reverse the order denying Mr. Trice's motion to dissolve. On remand, the trial court shall enter an order granting Mr. Trice's motion and dissolving the injunction.

Reversed and remanded with instructions.

KHOUZAM and LUCAS, JJ., Concur.

      To the extent that Mr. Trice separately argues that the original domestic violence injunction order was erroneously entered, we are without jurisdiction to consider it. See Fla. R. App. P. 9.110(b).

      There appears to be some tension in the cases as to whether it is the movant or the opponent who bears the burden of proof on the issue of a continuing reasonable fear of imminent domestic violence. Compare Noe v. Noe, 217 So.3d 196, 198-99 (Fla. 1st DCA 2017) ("The party opposing dissolution must demonstrate that he or she 'reasonably maintain[s] a fear of becoming a victim of domestic violence.' " (alteration in original) (quoting Alkhoury, 54 So.3d at 642 ) ), with Costanzo v. Costanzo, 941 So.2d 1211, 1213 (Fla. 3d DCA 2006) (rejecting argument that opponent of a motion to dissolve had to prove a reasonable fear of violence and suggesting that this was a requirement only in motions to extend a nonpermanent domestic violence injunction). We need not consider that issue here, however, because, as we show in the text, the evidence did not permit the inference of a continuing fear of imminent domestic violence that is reasonable, regardless of who bore the burden on the question.


source: Caselaw Access Project

license: Public Domain

text:
    George GOMILLION, DOC #R44747, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-1640
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    Ron Smith, Largo, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Respondent.
   SALARIO, Judge.

George Gomillion has filed a petition for a writ of certiorari asking us to quash an order denying his objection to the State's subpoena of his toxicology records for purposes of his criminal prosecution. He asserts that the records are protected as private by article I, section 23 of the Florida Constitution. We agree that the State failed to prove that the toxicology records are relevant to an ongoing criminal investigation-in this case, the only way in which it could overcome Mr. Gomillion's constitutional privacy right-which warrants relief. We grant the petition and quash the order as it relates to that portion of the subpoena seeking the toxicology records.

The underlying facts are as follows. On February 23, 2017, a vehicle rear-ended a taxi on U.S. 19 in Pinellas County. The taxi driver and her passenger were seriously injured. The driver of the rear vehicle fled. Nobody saw the wreck happen. Someone did, however, see a man fitting Mr. Gomillion's description running from the scene. With a dog's help, Pinellas County Sheriff's deputies found Mr. Gomillion hiding under a trailer not too far away. DNA was recovered from the rear vehicle's airbag, which had deployed during the accident, and it was a match to Mr. Gomillion.

On March 13, 2017, the State filed an information charging Mr. Gomillion with one count of leaving the scene of an accident, see § 316.027(2)(a), Fla. Stat. (2016), and one count of carelessly or negligently causing serious bodily injury while driving on a canceled, suspended, or revoked license, see § 322.34(6)(b), Fla. Stat. (2016). As the case headed toward trial, the State notified Mr. Gomillion that it planned to subpoena medical records regarding treatment he received at Bayfront Medical Center after the crash. The proposed subpoena requested:

ABSTRACT VERSION OF MEDICAL RECORDS OF DIAGNOSIS AND TREATMENT OF PATIENT GEORGE GOMILLLION ... TO INCLUDE BUT NOT LIMITED TO: BLOOD ANALYSIS, TOXICOLOGY ANALYSIS INCLUDING THE NAMES OF ALL TREATING PHYSICIANS AND NURSES AS WELL AS
THE INDIVIDUALS THAT TOOK THE BLOOD/URINE AND TESTED THE BLOOD/URINE SAMPLES .... [and] THE OBSERVATIONS AND NOTES OF ALL TREATING PHYSICIANS AND NURSES.

Mr. Gomillion filed an objection to the subpoena in which he argued that it impinged on his right to privacy under article I, section 23 because his toxicology records were not relevant to an ongoing criminal investigation.

The trial court conducted a hearing on Mr. Gomillion's objection, at which the State submitted two pieces of evidence without objection: (1) the arrest affidavit executed by one of the arresting deputies and (2) a recording of a telephone call Mr. Gomillion placed from jail to a man named Demetrius Gray. The State contended that portions of the recorded call would provide a reasonable basis to expect that the toxicology records would reveal evidence that Mr. Gomillion was under the influence of drugs or alcohol at the time of the crash:

Mr. Gomillion: I'm trying to figure that out cause I got -- all I got is traffic violations, leaving the scene --
Mr. Gray: I know. Okay.
Mr. Gomillion: -- of a crash, and uh, --and, uh, driving while my license was suspended. That's it, but then they got this VOP on me, too.
Mr. Gray: Yeah.
Mr. Gomillion: So, um, but the other thing --
Mr. Gray: You know. So, they ain't hit you with no DUI? No shit like that?
Mr. Gomillion: Nu-uh. Nah. Nah. Nah. But what I'm trying to --
Mr. Gray: Alright, bitch, you straight now.
....
Mr. Gray: Don't even be talking like that, bro. Don't even get on that. We ain't even get on that conversation right now. That's not even how we fixing to talk. It's looking good. It ain't even as bad as I thought. I thought it would be, you know -- you know, DUI, all of that shit--
Mr. Gomillion: The whole shebang.
Mr. Gray: --which I know you ain't drinking. Yeah. So, this is already looking better, you see? (Unintelligible). Know what I'm saying?
Mr. Gomillion: Yeah. Yeah. It's just the driving and -- and -- and, uh, leaving the scene.

(Emphasis added.) The State claimed that evidence of Mr. Gomillion having been intoxicated at the time of the crash would be relevant for impeachment purposes were he to take the stand at trial and testify that he was not the driver.

The trial court overruled the objection and allowed the subpoena. It stated that it did not believe the toxicology records were relevant to the possibility of charging Mr. Gomillion with another offense-presumably driving under the influence-but that they were relevant for purposes of impeaching Mr. Gomillion at trial. The trial court acknowledged the very real possibility that Mr. Gomillion would decline to testify at all, but it reasoned that in the event he did testify, the toxicology records, if they showed that Mr. Gomillion was impaired, would go to his ability to recall and relate the events leading up to the wreck and his alleged fleeing the scene. Mr. Gomillion now seeks relief by way of certiorari from the order denying his objection.

We may grant a writ of certiorari when presented with a trial court order that "departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). The requirements of material injury and the absence of an adequate appellate remedy are jurisdictional, so we must deal with them before delving into whether the trial court's order departed from the essential requirements of law. See Montanez v. State, 24 So.3d 799, 801 (Fla. 2d DCA 2010).

It has long been recognized that a trial court order permitting discovery of information that is privileged or otherwise legally protected as private causes an immediate injury that success in a postjudgment appeal is unable to fix. See Langston, 655 So.2d at 94. The idea is that this is "cat out of the bag" information; once it is disclosed, there is no adequate way to repair the damage to the legally-recognized privilege or privacy interest of the party injured by the disclosure. See Allen v. State Farm Fla. Ins. Co., 198 So.3d 871, 873 (Fla. 2d DCA 2016) (holding that the disclosure of personal financial information constitutes irreparable harm); Cordis Corp. v. O'Shea, 988 So.2d 1163, 1166 (Fla. 4th DCA 2008) ("Once the confidential information is released ... the harm, or invasion of the privilege, privacy[,] or trade secret interest, has occurred. It cannot be remedied by final appeal."). Here, Mr. Gomillion asserts a privacy interest under article I, section 23 of the Florida Constitution in the toxicology records the State seeks to subpoena. If the trial court's order allowing the disclosure of those records in fact departs from the essential requirements of law, Mr. Gomillion will have sustained an immediate injury (the impairment of his legally-recognized privacy interest) that a postjudgment appeal cannot remedy (an appeal cannot fix the violation of his privacy rights occasioned by the disclosure). Our certiorari jurisdiction is thus properly invoked in this case. See, e.g., Faber v. State, 157 So.3d 429, 431 (Fla. 2d DCA 2015) (granting a certiorari petition where the trial court allowed disclosure of medical records in response to the State's request); Tyson v. State, 114 So.3d 443, 444-45 (Fla. 5th DCA 2013) ("Certiorari is the appropriate vehicle to review an interlocutory order requiring the production of confidential medical records.").

Turning to whether the trial court's order departs from the essential requirements of law, we begin, as Mr. Gomillion does, with the recognition that in Florida, medical records are protected as private by our state constitution. Article I, section 23's guarantee that "[e]very natural person has the right to be let alone and free from governmental intrusion into the person's private life" has been held to protect an individual privacy interest in medical records. See State v. Rivers, 787 So.2d 952, 953 (Fla. 2d DCA 2001) (citing Hunter v. State, 639 So.2d 72, 74 (Fla. 5th DCA 1994) ). To overcome a person's right to keep his or her medical records private, the State is obligated to prove that it has a compelling interest in having the records disclosed. Id. at 953 ; see also Guardado v. State, 61 So.3d 1210, 1213 (Fla. 4th DCA 2011). One way in which the State can carry that burden-and the only way it attempted to do so in this case-is to prove that the medical records are relevant to an ongoing criminal investigation. See Faber, 157 So.3d at 431 ; Rivers, 787 So.2d at 953. Our court and others have recognized that a trial court departs from the essential requirements of law when it allows disclosure of medical records absent such proof (or proof of some other compelling interest). See Faber, 157 So.3d at 431 (holding that the trial court departed from the essential requirements of law where it authorized a subpoena for medical records where "the State presented an insufficient nexus to establish the relevance" of the records); Tyson, 114 So.3d at 445 (granting certiorari relief where "the State did not present evidence to establish relevancy").

As our court framed it in Rivers, the dispositive question is whether the State has presented a "reasonable founded suspicion" that the records it seeks are relevant to an ongoing investigation. 787 So.2d at 953 ; see also State v. Rutherford, 707 So.2d 1129, 1131 (Fla. 4th DCA 1997) ("A compelling state interest in this type of case is established by showing that the police have a reasonable founded suspicion that protected materials contain information relevant to an ongoing criminal investigation."), disapproved on other grounds, State v. Johnson, 814 So.2d 390, 394 (Fla. 2002). Although the cases speak of an "ongoing criminal investigation"-which might imply that we are talking about preprosecution investigative work-the State's burden is satisfied if it shows a reasonable, founded suspicion that the materials are relevant to ongoing criminal litigation as well. See, e.g., Rivers, 787 So.2d at 953-54 (holding that the State's burden was satisfied when the materials were "directly related" to the offense with which the defendant was charged). Applying that test, the cases have required that the State show a "nexus" between the medical records the State seeks and some material issue in the case by (1) identifying some theory that reasonably makes the records relevant and (2) producing some evidence that makes it reasonable to expect that the records will produce evidence that supports the theory. See Faber, 157 So.3d at 431 (requiring that the State demonstrate a "nexus" between the records and some relevant issue); McAlevy v. State, 947 So.2d 525, 529 (Fla. 4th DCA 2006) ("[T]he [S]tate must present evidence and argument to show the nexus between the medical records sought and a pending criminal investigation."); Cerroni v. State, 823 So.2d 150, 152 (Fla. 5th DCA 2002) ("[T]he [S]tate has the obligation and burden to demonstrate relevancy, via evidence, before the subpoena may issue." (citing Hunter, 639 So.2d at 74 ) ).

In the trial court, the State did not argue or prove that there was some issue in an ongoing investigation into the crash that led to the offenses with which Mr. Gomillion was charged to which the toxicology records were material. Nor did it argue or prove that Mr. Gomillion's toxicology records were relevant to any element of any offense with which Mr. Gomillion was charged or to any defense Mr. Gomillion might present to those charges.

The absence of any such assertion distinguishes this case from our decision in Rivers and the Fourth District's decision in McAlevy, upon which the State primarily relies. In each of those cases, the State sought to subpoena toxicology records in the course of a prosecution for driving under the influence. Rivers, 787 So.2d at 953 ; McAlevy, 947 So.2d at 528. To the extent the toxicology records in those cases revealed drugs or alcohol in the defendant's blood, the records would have been directly relevant to a substantive issue in the case. In contrast here, the State advanced no theory that made the medical records relevant to any substantive issue in the case. See, e.g., Barahona v. State, 172 So.3d 470, 473 (Fla. 3d DCA 2015) (holding that defendant in a murder trial was not entitled to subpoena her codefendant's medical records where she "has not alleged, much less demonstrated, how any of Mr. Barahona's hospital records would relate to the separate case against her"); Tyson, 114 So.3d at 445 (quashing medical record subpoena where the State failed to offer evidence that the defendant's medical records "relate[d] to any element of the charged offense").

That leaves us with the reason the trial court gave for overruling Mr. Gomillion's objection and allowing the subpoena-namely, that the toxicology records might help impeach Mr. Gomillion at trial. The parties do not dispute that relevance for an impeachment purpose may be a sufficient basis to access medical records protected by article I, section 23. But see Graham v. Dacheikh, 991 So.2d 932, 935 (Fla. 2d DCA 2008) (quashing order authorizing discovery of nonparty medical records in a personal injury case based on lack of notice and absence of privacy protections and considering that the records were sought for impeachment purposes rather than substantive evidence). Accordingly, we assume without deciding that a reasonable, founded suspicion that medical records will yield evidence with which the State may impeach a criminal defendant-in the uncertain event he or she testifies-is sufficient to override the defendant's constitutional right of privacy in those medical records. The rules applicable in cases where medical records are alleged to be relevant to a substantive issue, as discussed above, dictate that the State must at a minimum establish a nexus between the records and the ongoing criminal litigation by identifying a reasonable theory of impeachment and presenting evidence that makes it reasonable to expect that the records will produce evidence that supports the theory.

Here, the State has identified a reasonable theory of impeachment-that the records, if they establish that Mr. Gomillion was under the influence of drugs or alcohol, might yield evidence that goes to his ability to observe, remember, or recount the events of the evening in question. See § 90.608(4), Fla. Stat. (2016) ; Edwards v. State, 548 So.2d 656, 658 (Fla. 1989) (holding that evidence of drug use is admissible if "it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness's testimony"). But the State presented no evidence making it reasonable to believe that the toxicology records will turn up evidence that Mr. Gomillion was under the influence of drugs or alcohol. The fact that he is alleged to have left the scene of an accident, standing alone, is insufficient to make that showing, as there are myriad reasons unrelated to drug or alcohol use someone might do so (e.g., driving with a canceled, suspended, or revoked license; concern about liability; or involvement in other questionable activity). Cf. Guardado, 61 So.3d at 1214 (rejecting the argument that a crash involving death always makes toxicology records relevant). The arrest affidavit adds nothing because, unlike the arrest affidavits in cases like Hunter and McAlevy, the arrest affidavit here contains no indication that the arresting deputies made observations of Mr. Gomillion's smell, appearance, or demeanor (or found anything else) consistent with or that led them to suspect drug or alcohol use. And finally, the recorded call between Mr. Gomillion and Mr. Gray provides no reasonable basis to expect the medical records to turn up information about drug or alcohol use: It was Mr. Gray, not Mr. Gomillion, who brought up the subject of drugs or alcohol, and only to ask if Mr. Gomillion was facing a DUI charge. Mr. Gomillion never said anything from which one might reasonably infer that he was under the influence of drugs or alcohol at the time of the accident, and the State presented nothing to suggest that Mr. Gray was in a position to know that Mr. Gomillion was under the influence of drugs or alcohol at the time of the accident. Ultimately, no part of the State's evidence suggests a reasonable basis to expect that Mr. Gomillion was under the influence of drugs or alcohol when the crash occurred. With no such evidence, the State could not establish a nexus between the toxicology records and its case against Mr. Gomillion.

Because the State failed to show that nexus, there was no compelling state interest upon which the trial court could rely to override Mr. Gomillion's constitutional right to privacy with respect to his toxicology records. The trial court's order departs from the essential requirements of law to the extent that it allows the State to subpoena those records. For that reason, we grant the petition and quash the order to that extent. We note that nothing about our disposition prevents the State from seeking to subpoena such medical records where it has shown or can in the future show the requisite nexus.

Petition granted in part; order quashed in part.

KELLY and LUCAS, JJ., Concur.

      Mr. Gomillion also challenges the trial court's order insofar as it denies his objection to a portion of the subpoena that seeks diagnostic and treatment records. Because the State sufficiently demonstrated that those records are relevant to the disputed issue of identity, among other things, we take no issue with that portion of the trial court's order. The State may seek to subpoena those records, and Mr. Gomillion's petition is otherwise denied as it relates thereto.

      The trial court stayed the issuance of the subpoena pending the outcome of these proceedings.

      There are also statutes that regulate the disclosure of confidential information in medical records, and those are also discussed in the petition. See §§ 395.3025, 456.057, Fla. Stat. (2016). Because it is the constitutional protection that drives the result in this case, however, we do not address them further.

      That aspect of the case is a bit puzzling. To prove the charged offense of carelessly or negligently operating a motor vehicle while causing death or serious bodily injury under section 322.34(6)(b), the State is required to prove that Mr. Gomillion operated the vehicle in a careless or negligent manner. See Fla. Std. Jury Instr. (Crim.) 28.12 (stating the element of carelessness or negligence and defining those terms). Mr. Gomillion's intoxication (if any) seems potentially probative of whether he drove negligently or carelessly, which might make his toxicology records relevant. Resolving that issue, however, would require us to resolve questions concerning whether, upon what showing, and to what extent a defendant's toxicology records become relevant when the State has charged an offense that has carelessness or negligence as an element (e.g., Is the mere fact that the State has charged such an offense enough and, if not, what showing is required?). Because the State did not factually develop these issues in the trial court and did not legally develop these issues here, we decline to do so. See Powell v. State, 120 So.3d 577, 591 (Fla. 1st DCA 2013) ("The tipsy coachman doctrine allows appellate courts to consider grounds for affirmance if the record supports doing so; it does not compel them to overlook deficient records and blaze new trails that even the tipsiest of coachmen could not have traversed."); E.K. v. Dep't of Children & Fam. Servs., 948 So.2d 54, 57 (Fla. 3d DCA 2007) (explaining that the "[t]ipsy [c]oachman" doctrine "does not rescue parties from their own inattention to important legal detail").
      The State does argue-for the first time in this court-that the toxicology records are relevant to establish a motive for Mr. Gomillion to leave the scene (i.e., that he was intoxicated) for purposes of proving the charged offense of leaving the scene of an accident. But the State has not shown that motive is at all relevant in this case. Stripped to essentials, the relevant question on the count for leaving the scene is whether Mr. Gomillion knowingly, intentionally, and purposely left the scene of an accident. See Fla. Std. Jury Instr. (Crim.) 28.4. On the facts in the appendices filed by the parties, there is no dispute that someone did that; the only question is whether that someone was Mr. Gomillion. Furthermore, as explained in the text, even if the State had identified a theory of relevance, it presented no evidence making it reasonable to expect that the toxicology records would contain information supporting the theory.


author: CASE, JAMES R., Associate Senior Judge.

text:
    J. D. P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4072
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   CASE, JAMES R., Associate Senior Judge.

J.D.P. appeals the disposition order adjudicating him delinquent and committing him to the Department of Juvenile Justice. On appeal, J.D.P. argues that the juvenile court erred in departing from the DJJ's recommended disposition without making adequate findings on the record. We agree and reverse.

The DJJ initially completed a predisposition report (PDR) recommending that the court withhold adjudication and sentence J.D.P. to probation. At his June 14, 2016, hearing, the juvenile court considered the DJJ's PDR but did not adjudicate J.D.P. or determine an appropriate disposition. Instead it ordered the DJJ to come up with a commitment level after hearing testimony from the victims' family. Based on this testimony, the court concluded that "I don't think the Department has adequately considered everything in this case so I'm ordering a staffing."

The DJJ conducted another review of J.D.P.'s case consistent with the factors provided in section 985.433(6), Florida Statutes (2016). It issued an amended PDR and attached a memo, again recommending probation. However, in light of the court's request, the DJJ also recommended in the alternative that a nonsecure commitment level be imposed as a suspended sentence if J.D.P. failed to comply with the treatment requirements of his probation. At his August 11, 2016, hearing, a successor judge considered whether adjudication should be withheld and J.D.P. should be sentenced to probation consistent with the DJJ's recommendations but concluded that in light of the prior judge's ruling on the record, she lacked the discretion to do anything but adjudicate J.D.P. delinquent and commit him to the custody of the DJJ. This was error.

We review the trial court's order adjudicating and committing a juvenile to the custody of the DJJ for an abuse of discretion. E.A.R. v. State, 4 So.3d 614, 637 (Fla. 2009). "The disposition statute requires a two-step process. In the first step, the court must decide whether to adjudicate and commit the child to the custody of DJJ or instead to withhold adjudication and place the child on probation." D.G. v. State, 170 So.3d 1, 3 (Fla. 2d DCA 2015) (citing § 985.433(6) ). "If the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing." E.A.R., 4 So.3d at 624. Neither judge in this case determined on the record that J.D.P. should be adjudicated and committed, nor did they make "a specific finding of the reasons for the decision to adjudicate and to commit the child to the department." Id. (quoting § 985.433(7) ). Accordingly, we must reverse.

Furthermore, the juvenile court erred when it sentenced J.D.P. to a commitment level inconsistent with the recommendations of the DJJ without making adequate factual findings justifying the departure. Only when the court determines that the child should be adjudicated and committed, should it then proceed to the second step of the disposition process and determine the appropriate restrictiveness level of commitment. D.G., 170 So.3d at 3. The Florida Supreme Court has explained that when departing from the DJJ's recommended disposition, the juvenile court must state

"reasons[ ]" [that] must provide a legally sufficient foundation for "disregarding" the DJJ's professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child's programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.

E.A.R., 4 So.3d at 638.

At the initial disposition hearing in the instant case, the juvenile court requested a commitment recommendation from the DJJ based on its determination that the DJJ had not considered the duration of the charged offense or the victims' statements. However, the DJJ's representative stated that these factors were considered at the initial staffing. Defense counsel also clarified that information regarding the charged offenses was included in the packet provided to the DJJ prior to the staffing. Furthermore, in preparing the amended PDR that was presented to the successor judge, the DJJ expressly considered all of these factors and maintained its recommendation of supervision or, in the alternative, a suspended sentence to a nonsecure commitment facility. None of the factors identified by either judge in this case were sufficient to support a deviation from the recommended disposition of the DJJ. See R.A. v. State, 117 So.3d 1181, 1183 (Fla. 2d DCA 2013) ("The supreme court specifically held that the juvenile court's mere regurgitation or parroting of information in the DJJ's comprehensive assessment and PDR is insufficient to establish acceptable reasons why the court is disregarding those documents and the DJJ's recommended disposition." (citing E.A.R., 4 So.3d at 638 ) ).

Because the trial court abused its discretion in adjudicating J.D.P. without making the statutorily required findings and in deviating from the recommended disposition of the DJJ without sufficient explanation and based on factors already considered by the DJJ, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded with instructions.

KELLY and SALARIO, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Malcolm Randall BADGERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3488
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Malcolm Randall Badgers appeals the judgment and sentence imposed following the revocation of his probation in two cases that had been transferred from juvenile to adult court. We affirm in all respects except that we remand for the trial court to correct both the written judgment and the revocation order. Badgers correctly points out that the written judgment contains a scrivener's error; it improperly classifies attempted burglary of an unoccupied dwelling as a second-degree felony when it is, in fact, a third-degree felony. See Morgan v. State, 228 So.3d 681, 681 (Fla. 2d DCA 2017) (treating the incorrect classification of an offense as a scrivener's error and remanding for correction). Badgers also correctly points out that the trial court's written revocation order failed to specify the conditions of probation that he was found to have violated. See T.M. v. State, 233 So.3d 1275, 1275 (Fla. 3d DCA 2017) ("[T]he law is well-settled: if the trial court revokes a juvenile's probation, the court is required to render a written order setting forth the conditions of probation that were violated."). The State concedes that remand for the correction of the revocation order is appropriate. See id. Accordingly, we affirm but remand for the trial court to correct the scrivener's error in the written judgment and enter a written revocation order setting forth the specific conditions of probation that Badgers was found to have violated.

Affirmed and remanded with instructions.

BLACK and BADALAMENTI, JJ., Concur.


author: LUCAS, Judge.

text:
    Ediol TOPALLI and Irida Topalli, Appellants, v. Eddie FELICIANO and Bay Colony Community Association, Inc., Appellees.
    Case No. 2D18-617
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    James M. Moran of Marc L. Shapiro, P.A., Naples, for Appellants.
    Michael R. D'Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellees.
   LUCAS, Judge.

Eriol and Irida Topalli, the plaintiffs below, appeal the entry of a final judgment assessing attorney's fees against them. The fee judgment arose from their "agreement" (a term we use loosely) to pay some measure of the costs incurred by the defendants below, Eddie Feliciano and Bay Colony Community Association, Inc., in connection with a requested continuance of the jury trial by the Topallis. The Topallis make several arguments in this appeal. Unfortunately, we are precluded from considering most of the issues they have raised because of the very sparse appellate record the Topallis have chosen to present. However, there is error on the face of the judgment that requires reversal for the reasons we will explain below.

I.

From what we can glean from the record, Mr. Topalli was allegedly injured while riding a bicycle when he collided with Mr. Feliciano, who was driving a motor vehicle that belonged to Bay Colony Community Association, Inc. The Topallis filed a complaint against both defendants on January 22, 2016. The defendants, who were represented by the same counsel, filed an answer and affirmative defenses, and the case proceeded in due course. It appears that the matter was originally set for trial in October of 2016, then reset to January 10, 2017; however, based on the representations of the Topallis' lawyer that the trial would likely take between eight to ten days, the circuit court entered an order resetting the case again for the week of April 4, 2017.

According to the circuit court's docket entries, the parties appeared to be well on their way to trying the case in April. A not inconsiderable amount of discovery and depositions were taken and transcribed, various related discovery motions were filed and set for hearing, witness and exhibit lists were exchanged, and the parties filed motions in limine. Then, on March 25, 2017, a Saturday, the Topallis' attorney filed a handwritten motion to withdraw as counsel.

We do not have the motion in our record. However, from a transcript of a hearing convened on March 27, 2017, the Topallis' attorney represented that he and his client had irreconcilable differences that made him "extremely concerned" with his responsibility in the matter. In response to the circuit court's question whether the rules of professional conduct necessitated counsel's withdrawal but without divulging further details, the attorney replied, "yes, sir, that's correct."

This apparently came as a surprise to Mr. Topalli. When he appeared at the hearing, Mr. Topalli (who speaks English as a second language) testified:

I don't know what's happened for - because I remember well what's - but I know and I was telling to him, to my lawyer, I want to go before the judge about the case. If the judge find with the right wisdom, lawyer has always I was angry with him or whatever, always. As I want to go there, as I wanted to go there before the judge. I would say let the judge decide what's the call (phonetic). Because I don't know who (sic) I did. Did I did anything wrong?

For her part, Ms. Topalli explained to the circuit court that her husband had a brain injury, "and that's the reason that he takes it - he's very nervous when he argue with his lawyers, but I don't think that we have any big issue that his lawyers want to withdraw from the case."

Whatever may have transpired between attorney and client, the circuit court granted the motion to withdraw. In so ruling, the court recognized a dilemma the withdrawal created: with only a week remaining until its commencement, the upcoming jury trial would either have to be continued (which would impose a burden upon the defendants who had been preparing for the trial all along), or the Topallis would have to represent themselves (which would, to put it mildly, impose a rather daunting burden upon the Topallis). In a case where, the court noted, the plaintiffs had included on their witness list seven emergency room doctors, seven radiologists, two neurologists, three EMT's, two orthopedists, and two neurosurgeons, the defendants would incur undue prejudice if the trial were delayed, and so the court ruled that the jury trial would remain set for the following week. As the circuit court explained to the Topallis, the Topallis had three options: first, they could attempt to try the case without a lawyer; second, they could hire a lawyer to try the case with a week of preparation; or third, they could voluntarily dismiss their complaint without prejudice and refile their lawsuit since they were still well within the statute of limitations period.

In the next few days, the Topallis were able to retain new counsel. On March 30, the Topallis' new attorney filed a motion to continue the trial. The motion was originally denied by a written order in which the court stated that the Topallis "have elected to proceed to trial pro se." On the morning of April 4, before the venire panel had been brought into the courtroom, the Topallis' counsel renewed their motion for a continuance and explained: "This is a case that involves multiple expert witnesses, a reconstruction expert, an economist, vocational rehabilitationist and multiple doctors[.] [I]t's a case that involves a closed-head injury and a surgery to the neck[.] [I]t is just a physical impossibility for me to have prepared to do this trial." The Topallis' lawyer further argued that the defendants would incur only a minimal cost if the case were simply rolled over to the next available trial docket, while the Topallis would experience a tremendous hardship if they had to dismiss their complaint and "start all over again" because they were already living on borrowed funds. Then, counsel brought up an idea, almost innocuously, that would become the feature of this appeal: "So I would ask the Court to respectfully grant a short continuance. My client has said at the previous pretrial conference that they would agree to be responsible for any costs associated with the delay that the Defendant incurred."

Defense counsel strenuously opposed a continuance because, as he pointed out, his clients and their witnesses were ready and fully prepared to try the case at that time. However, defense counsel allowed, if the court were inclined to grant the Topallis' motion, the court should award the defendants their attorney's fees and costs that were incurred as a result of the continuance. As counsel pointed out: "There are expenses. The [d]efense, like I said, has moved mountains to get this case ready for trial." In response, the Topallis' attorney again represented that his client would not object to paying the costs associated with the defense having to "re-prepare" for the case. The Topallis' lawyer emphasized it would not be appropriate "to charge [the Topallis] for costs all the way back to the beginning, but I think it would be appropriate for the costs associated with the delay."

Following the attorneys' cues, the circuit court granted the Topallis' motion, but elected to make the relief contingent upon the Topallis' payment of the defendants' attorney's fees and costs. The court found that the defendants would be entitled to recover their costs, but reserved deciding the amount of costs until it could convene an evidentiary hearing. Similarly, the court reserved on making a decision as to the defendants' entitlement and amount of attorney's fees, but seemed to indicate that some amount of attorney's fees would be appropriate.

The circuit court stayed the litigation in order to convene two evidentiary hearings on the defendants' request to recover fees and costs. At the conclusion of these hearings, the circuit court entered not an order, but a judgment, the final judgment now on appeal. In its Final Judgment Taxing Attorney's Fees Against Plaintiffs, the court determined that the defendants were entitled to recover attorney's fees of 164.3 hours at a billing rate of $500 per hour, 50.8 hours at $350 per hour, and 3.5 hours at $250 per hour, and paralegal's fees of 34.4 hours at $150 per hour for a total of $105,965. The court also tacked on the fee of a fee expert who apparently testified at the hearing for an additional $3000. After it had added prejudgment interest, the final total of the judgment-which had ostensibly been entered to effectuate a short continuance of a jury trial-was $110,817.32.

We do not have a transcript of what transpired at these evidentiary hearings. However, two aspects of the judgment on appeal are readily apparent: first of all, it is an executable money judgment (that conspicuously omits a preface stating what precipitated the judgment's entry); and second, the amount of fees awarded in the judgment is extraordinarily large given the context in which the judgment was entered. There is no explanation, no finding, and no legal citation within the judgment that might explain what prompted the circuit court to impose a money judgment against the plaintiffs for the continuance they had requested. Nor is it explained within the judgment why the defendants' attorneys, whose billing invoices (which were filed and included within our record) generally reflected a billing rate of $180 an hour, had become entitled to $500 and $350 per hour for purposes of the fee judgment.

The circuit court has continued to stay the proceedings, and the Topallis filed the appeal now before us.

In their appeal, the Topallis variously argue that the circuit court should never have granted their prior lawyer's motion to withdraw, or that, having allowed the withdrawal, the court should have granted the Topallis' repeated motions for a continuance without imposing any fee or cost conditions (which, relatedly, the Topallis claim were only agreed to "under duress"), or that the entry of any judgment like this infringes upon their constitutional right of access to the courts and due process. Some of their arguments might have been availing had the Topallis properly raised them and then appealed any of those rulings at the conclusion of a trial. They did not do that. Instead, they received the relief they had requested from the circuit court, conditioned upon a payment their attorney represented they would make. Their trial was continued. But the condition their lawyer had proposed turned out to be much more onerous than they expected. They now have a rather substantial money judgment recorded against them. The only question we can consider, then, is whether the Topallis are entitled to appellate relief from that judgment.

II.

Preliminarily, we are faced with a difficult question of categorizing this fee judgment. What source of law predicated the entry of an $110,817.32 judgment for attorney's fees against the Topallis in a lawsuit that has never been adjudicated on the merits? The answer to that question is not at all obvious. In fact, we have found it necessary to employ the process of elimination to arrive at a conclusion on the matter.

A.

Under the "American Rule," attorney's fees in civil litigation are ordinarily borne by the party who incurs them, and a court cannot award the recovery of attorney's fees from an opposing litigant unless "authorized by statute or by agreement of the parties." See Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1148 (Fla. 1985) ; see also Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1198 (Fla. 2009) ("It is well-settled that attorney's fees can derive only from either a statutory basis or an agreement between the parties." (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993) ) ). "Agreement of the parties" is ordinarily understood in this context to mean an agreement akin to an enforceable contract; "statute" means just what the term implies-a duly enacted act of the legislature.

This small list of exceptions to the American Rule has expanded-albeit ever so slightly-over time. Cf. Reiterer v. Monteil, 98 So.3d 586, 587 (Fla. 2d DCA 2012) (observing that "[w]e hesitate to create exceptions" to the American Rule that "generally, a litigant pays for his or her own fees in a lawsuit"). In litigation to establish or benefit a "common fund," a party may recover its attorney's fees from the proceeds of the fund. See, e.g., Fid. & Cas. Co. of N.Y. v. O'Shea, 397 So.2d 1196, 1198 (Fla. 2d DCA 1981) (recognizing the "common fund rule" that permits an attorney's fee award "from a fund or estate which has been benefitted by the rendering of legal services" (quoting Estate of Hampton v. Fairchild-Fla. Constr. Co., 341 So.2d 759, 761 (Fla. 1976) ) ). The Florida Supreme Court's rules of procedure may also provide litigants with recourse to recover their attorney's fees and costs during the course of litigation. See, e.g., Fla. R. Civ. P. 1.380 ; Fla. R. App. P. 9.400, .410. And in cases of especially pernicious litigation or inequitable conduct, courts have the "inherent authority" to award attorney's fees as a sanction. See Moakley v. Smallwood, 826 So.2d 221, 226 (Fla. 2002) ; Rowe, 472 So.2d at 1148.

None of those bases are present here, however.

First, there was no contract between the Topallis and the defendants that provided for the payment of the defendants' attorney's fees. Indeed, none of the parties in this appeal have suggested that the fee judgment was predicated upon a contractual agreement. Given that the only "consideration" (a continuance of a jury trial) would have been something only the circuit court could have provided as an exercise of its judicial discretion, that the actual amount of fees and costs that were the subject of this purported agreement has been in continuous dispute, and how highly unlikely it was that the Topallis' lawyer ever had the authority to agree to the entry of a money judgment against his clients, we can dispense with that as a basis fairly easily.

Second, there is no applicable statute that could form the basis of the fee judgment the circuit court entered. Here as well, no one has argued otherwise in this appeal.

Third, this is a personal injury case in which the Topallis claim to have sustained damages as a result of a motor vehicle accident. It is not a proceeding that concerns a common fund in any way.

Fourth, nothing within Florida Rule of Civil Procedure 1.460, the rule that governs continuances, authorizes a court to condition a continuance upon the payment of an opposing party's attorney's fees or costs. The final judgment does not recite, and we have not found, any rule of procedure that could have authorized the entry of a fee judgment under these circumstances.

Fifth, the fee judgment was not entered as a sanction. The Topallis (perhaps confronting the very characterization issue we are struggling through now) argue that we should liken the fee judgment to a bad faith sanction that the circuit court imposed against them. We decline to do so because, from our view of the record, it was no such thing. Nor will we, as the Topallis urge us, ascribe some hidden motive behind the presiding judge's ruling in this case. Whatever error he might have made, the circuit judge capably and dutifully considered what our court has described as the "Hobson's choice" that arises when an attorney is permitted to withdraw on the eve of a trial. See Garden v. Garden, 834 So.2d 190, 193 (Fla. 2d DCA 2002).

And finally, the final judgment was obviously not the product of an adjudication on the merits of a claim. To the contrary, its entry-and presumably, its satisfaction-has effectively become a precondition to convening a trial in this litigation.

What, then, was the basis for this fee judgment?

B.

The answer to that question may be found in a small niche of case law that has gradually formed, a current and concise summation of which appears in this pronouncement from the Fifth District Court of Appeal: "A trial court has the authority to assess attorney's fees when one party moves for a continuance on the eve of trial and the resulting order is reviewed for an abuse of discretion." See Kay v. Kay, 988 So.2d 1273, 1275-76 (Fla. 5th DCA 2008) (reversing award of $15,000 of attorney's fees and $481 of costs attributed to the grant of a continuance because, although expert testimony was not required to support the award, "the court abused [its] discretion by awarding fees and costs without evidence regarding the reason for the continuance and the amount of the fees and costs"). The Kay court's stated rule was not at all unprecedented. Accord Dep't of Children & Families v. M.G., 838 So.2d 703, 704 (Fla. 5th DCA 2003) ("Under these circumstances, the trial court had the authority to assess attorney's fees occasioned by the belated request for a continuance. Because the attorney's fees were awarded in conjunction with the granting of the Department's motion for continuance, we reject the Department's contention that the absence of a contractual or statutory basis for the recovery of attorney's fees is fatal to the award."); Brake v. Murphy, 693 So.2d 663, 666 (Fla. 3d DCA 1997) ("[T]here is no abuse of discretion in conditioning an eve of trial continuance on payment of attorney's fees caused by delay."). For lack of a better term, we may call this category of pretrial rulings-whereby a party obtains a requested continuance from a court upon the condition of paying an opposing party's attorney's fees and costs-a conditional continuance. Where it has been recognized, the conditional continuance has simply been stated as a rule of authorization, without further rationale, usually by reference to a prior case citation, without further elaboration. Our court has never expressly held that a trial court has the authority to condition a continuance upon the payment of an opposing party's attorney's fees. But we must acknowledge the pronouncements from our sister districts which have. From the record in the case at bar, it appears that the attorneys for the litigants were able to persuade the court below that it could enter a conditional continuance based on some of these pronouncements.

Had the Topallis preserved and argued the issue, we might have parted ways with those courts that have authorized conditional continuances upon the payment of attorney's fees. As has already been noted, there is simply no organic legal authority-no statute, contract, or claim-to support a fee order as a condition for a continuance. The applicable procedural rule, rule 1.460, says nothing at all about awarding attorney's fees or costs as a component of a trial court's discretion when considering granting a continuance, unlike other rules of civil procedure that, in other contexts, do. Cf. Fla. R. Civ. P. 1.380. Given the presumptive aversion against ordering the payment of an opposing party's attorney's fees under the American Rule, the pronouncements we find from the district courts of appeal in this regard would seem somewhat puzzling or, at least, counterintuitive.

Moreover, when we trace the origin of this rule's current iteration-that "[a] trial court has the authority to assess attorney's fees when one party moves for a continuance on the eve of trial," Kay, 988 So.2d at 1275 -we find a rule that, without a ratio decidendi to guide or constrain its course in the common law, has drifted far from its point of origin. Most of the recent decisions recognizing conditional continuances tend to cite to the case of Flea Market U.S.A., Inc. v. Cohen, 490 So.2d 210 (Fla. 3d DCA 1986), as authority. We note that the litigants before us have also spent a considerable amount of time in their briefing and oral arguments discussing the Flea Market decision. But Flea Market's single paragraph opinion contains precisely one line and one case citation germane to that court's recognition of conditional continuances: "We find no abuse of discretion in the order under review, which conditioned granting the appellant's eve-of-trial motion for continuance upon the payment of the appellees' attorney's fees caused by the delay." Id. at 210. The case that the Flea Market court relied upon was Western Union Telegraph Co. v. Suit, 153 Fla. 490, 15 So.2d 33 (1943), which, as best as we can tell, appears to be the case of origin in Florida for this singular rule. Insofar as this is the wellspring of authority for conditional continuances in Florida Law, the Suit opinion merits closer reading.

In Suit, a defendant's counsel had become incapacitated on the day of trial. Id. at 34. The defendant moved for a continuance, but the plaintiff's attorney objected, arguing

he could not agree to any further postponement; that the case had been twice continued at defendant's request and that it had been agreed between counsel that the case would not be further continued but would be set for trial at the next term of the court without further notice; that the plaintiff and his witnesses were present in court and that all of them had to secure releases from their employment, and that one was employed by the railway, making it difficult and inconvenient for him to attend the trial.

Id. at 34-35. The circuit court denied the motion and the trial was held in the absence of defense counsel. Id. at 35. On appeal, the Florida Supreme Court suggested an alternative to denying the motion for continuance:

We realize that the trial judge had a rather delicate situation to deal with, and that in view of the fact that the court had already twice continued the case at the request of defendant's counsel, and the plaintiff and his witnesses being present when the case was called, and demanding a trial, he felt it to be his judicial duty, in spite of the request of defendant's counsel for at least a brief postponement on account of his illness, to go ahead and try the case, and also to deny the motion for new trial. But our analysis of this record convinces us that the absence of defendant and its counsel was due entirely to a providential cause-the actual, not feigned, illness of defendant's counsel. This being the case, there was 'another way out' for the trial judge. He could have granted an adjournment of the trial for such time as he thought proper and entered at once a judgment against the defendant for the per diem and mileage of plaintiff and his witnesses.

Id. (emphasis added).

There is, of course, a categorical difference between awarding per diem and mileage costs of a party and its witnesses occasioned by a canceled trial and awarding that party's attorney's fees for preparing for a canceled trial. Cf. First Protective Ins. Co. v. Featherston, 978 So.2d 881, 884 (Fla. 2d DCA 2008) ("Unlike costs, ordinarily attorney's fees are not recoverable and thus are not at issue.... The availability of a recovery of costs is part of the warp and woof of litigation."); Jennings v. Habana Health Care Ctr., 183 So.3d 1131, 1134 (Fla. 1st DCA 2015) ("But entitlement to costs is distinct from entitlement to attorney's fees."). The latter award would require "a statute or ... agreement of the parties." Rowe, 472 So.2d at 1148. Yet, over the years in Florida jurisprudence these two distinct categories of expenses-travel costs and attorney's fees-somehow became conflated when it comes to granting continuances. See Kay, 988 So.2d at 1275 ; M.G., 838 So.2d at 704 ; Flea Market, 490 So.2d at 210. And no court has yet explained why or how that happened.

C.

We make these observations to ensure that our decision today is not mistakenly construed as our having tacitly adopted the notion that a trial court may condition an order continuing a trial upon the payment of an opponent's attorney's fees. Indeed, in the absence of a statute, contract, or rule, we have some reservations about this practice-substantively, there is little support for it; procedurally, there is no guidance how to implement it; and pragmatically, it could, in some cases, pose a significant impediment upon a party's constitutional right of access to the courts. But whether such an order was within the ambit of a trial court's power is not an argument the Topallis can make. Having represented to the court below that they would agree to pay a measure of the defendants' costs if the court granted a short continuance-and having received the continuance from the court on that representation-the Topallis cannot challenge in this appeal the ruling that they asked for. Cf. Tate v. Tate, 91 So.3d 199, 204 (Fla. 2d DCA 2012) ("[T]he invited error rule prevents [a party] from complaining on appeal about a ruling [it] invited the trial court to make."). Nor can the Topallis raise an argument against the amount of fees in the judgment because they failed to provide a transcript of the evidentiary hearings in which the trial court determined the judgment amount. Cf. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court [cannot] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory."); Thomas v. Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998) (affirming a fee and cost award where the appellant failed to include a transcript of the fee and cost hearing in the record: "In the absence of a record of the evidence considered by the trial court in making this award, we cannot find that the trial court abused its discretion and must therefore affirm").

The only issue we may consider in this appeal is whether an error of law appears on the face of the judgment. See generally Boone v. Boone, 3 So.3d 403, 404 (Fla. 2d DCA 2009) ("Without a transcript, this court's review is limited to any errors that appear on the face of the trial court's order."); 7550 Bldg., Inc. v. Atl. Rack & Shelving, Inc., 999 So.2d 663, 664 (Fla. 3d DCA 2008) ("Absent a transcript, this Court may reverse the decision 'only if an error of law appears on the face of the final judgment.' " (quoting Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) ) ). And in that, we do find error.

We have before us an executable final judgment. There is no stated legal basis for its entry, no underlying claim, or counterclaim, or court sanction from which it sprung. Its very existence is an anomaly for a pending civil case in which a trial on the merits has never occurred, the judgment holders have never pled a claim for relief, and a sanction was never ordered. See Makar v. Inv'rs Real Estate Mgmt., Inc., 553 So.2d 298, 299 (Fla. 1st DCA 1989) ("A judgment is a court's decision on the merits as to whether the plaintiff shall obtain the relief sought in the litigation." (first citing Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1391 (Fla. 3d DCA 1986) ; then citing George Vining & Sons, Inc. v. Jones, 498 So.2d 695, 697 (Fla. 5th DCA 1986) ) ). No Florida court has ever imposed such an onerous condition, an adverse fee judgment, upon a litigant seeking a continuance; rather, for those courts that have recognized the payment of attorney's fees as an appropriate condition for a continuance, the underlying ruling appears to have been effectuated as a pretrial order. At most, that was what the Topallis acquiesced to in the case below, the entry of an order, which is markedly different from an executable final judgment. Indeed, in this case, there appears to be a facial inconsistency between this judgment's entry and the only articulated basis for its existence (the granting of a continuance)-this final judgment's enforcement is not conditioned on having a trial at all. The defendants could initiate collection proceedings against the Topallis even if their trial never happens. This civil judgment had no attendant legal basis for its entry and, as such, was erroneous.

III.

Accordingly, we must reverse the final judgment below. Although we would question why a continuance needed to be conditioned upon anything at all (in light of the circumstances that were reported to us in this appeal), we do not reach the issue of whether a trial court may enter an order granting a continuance conditioned upon the payment of an adversary's attorney's fees. It is a problematic notion, as we have already discussed, but one we must leave for another day.

Reversed and remanded.

ROTHSTEIN-YOUAKIM, J., Concurs.

MORRIS, J., Concurs in result only.

      In case no. 2D17-3993, they appeal a separate judgment that assessed related costs against them; both appeals arise from the same case and circumstances. Neither party requested consolidation of the appeals.

      In all likelihood, the court was inferring that the Topallis' new attorney, who had filed a "limited notice of appearance," had not been retained as trial counsel. The status of representation was clarified later when counsel appeared at the trial.

      Indeed, at oral argument, Appellees' counsel very candidly stated that had the Topallis gone forward with the trial and then appealed the denial of their requested continuance, Appellees would have conceded the circuit court had abused its discretion. As to the constitutional arguments, the Topallis never raised them below; hence, we will not consider them here.

      See Land Co. of Osceola Cty., LLC v. Genesis Concepts, Inc., 169 So.3d 243, 247 (Fla. 4th DCA 2015) ("An enforceable contract, requires 'an offer, an acceptance, consideration, and sufficient specification of terms so that the obligations involved can be ascertained.' " (quoting W. Constr., Inc. v. Fla. Blacktop, Inc., 88 So.3d 301, 304 (Fla. 4th DCA 2012) ) ); see also Harris v. Dep't of Revenue ex rel. Insixiengmay, 191 So.3d 921, 924 (Fla. 2d DCA 2016) ("Trial courts enjoy broad discretion in ruling on motions for continuance." (citing Neal v. Swaby, 975 So.2d 431, 433 (Fla. 2d DCA 2007) ) ); cf. Dixie Operating Co. v. Exxon Co., U.S.A., 493 So.2d 61, 63 (Fla. 1st DCA 1986) ("It is well-settled in Florida that a settlement agreement entered into by an attorney is enforceable only when it has been determined that the attorney was given 'clear and unequivocal' authority by the client to compromise the claim." (quoting Nehleber v. Anzalone, 345 So.2d 822, 823 (Fla. 4th DCA 1977) ) ).
      We are not suggesting that a litigant could not contractually agree to support an opposing litigant's motion for a continuance in exchange for compensation of some agreed upon amount of attorney's fees. That is not at all what happened here, though.

      Cf. Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643, 650 (Fla. 2d DCA 2006) (Kelly, J., dissenting) (discussing federal law and explaining that, "[w]hen the Supreme Court states that in construing attorney's fees provisions it is 'mindful of the fact that Congress legislates against the strong background of the American Rule,' Fogerty[ v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ], what it means is that any analysis of what Congress intended starts with the presumption that fees are not recoverable").

      The Flea Market opinion also included citations to the legal encyclopedia Florida Jurisprudence Second, and an article from the American Law Reports fourth edition, neither of which are, in and of themselves, of any binding, precedential force. Cf. Martin v. Ritcheson, 306 So.2d 582, 586 (Fla. 1st DCA 1975) (rejecting insurance company's quotation from Florida Jurisprudence and observing that "[w]e are cited to no Florida case supporting the above quoted statement and our independent research has revealed none. Our interpretation of the statutory provisions ... lead to a different conclusion."). We note that the Florida Jurisprudence section cited in Flea Market references only the Suit opinion (which does not support the proposition Flea Market asserted) and section 54.07, Florida Statutes (which, at the time of this edition of the Florida Jurisprudence's publication, had already been repealed). See 11 Fla. Jur. 2d Continuances § 40 (1979) ; ch. 67-254, § 49, Laws of Fla. (1967). The American Law Reports article discusses cases in which trial courts in other jurisdictions were found to have abused, or not abused, their discretion by imposing attorney's fees as a condition for granting a continuance. Romualdo P. Eclavea, Annotation, Continuance of Civil Case as Conditioned Upon Applicant's Payment of Costs or Expenses Incurred by Other Party, 9 A.L.R. 4th 1144 (1981). None of the cases discussed in the A.L.R. article, however, were from Florida. Id.

      Cf. art. I, § 21, Fla. Const. ("The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."). The case at bar provides a cautionary example: the Topallis are effectively charged to pay over a hundred thousand dollars of their opponents' attorney's fees for the "privilege" of having the trial they were constitutionally entitled to.

      The Final Judgment Taxing Attorney's Fees Against Plaintiffs states only that it was entered "upon Defendants' Sworn Motion for Court to Determine Amount of Attorney's Fees"-which, of course, only begs the question of why the defendants were entitled to such a judgment.


author: PER CURIAM.

text:
    Lorenzo BROWER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-87
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 25, 2019
    Robert Wesley, Public Defender, and Robert Adams, Assistant Public Defender, Orlando, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Lorenzo Brower, petitions this court for a writ of certiorari challenging the trial court's denial of his public defender's motion to withdraw. The motion was filed pursuant to section 27.5303, Florida Statutes (2018), and asserted a conflict of interest between Petitioner and his counsel. We grant the petition and quash the trial court's order under review.

Petitioner's counsel filed a motion to withdraw in compliance with section 27.5303, certifying a conflict of interest and explaining that any additional explanation would require counsel to reveal privileged and confidential information. The trial court held a hearing on the motion and certification at which Petitioner's counsel appeared with counsel's direct supervising attorney and the Chief Assistant Public Defender. Counsel advised the court that the motion was filed within an hour of discovering the conflict and that after consulting The Florida Bar Ethics Hotline, the public defender's office continued to believe it had a conflict. The Chief Assistant Public Defender advised the court that all conflict certifications must be approved by a supervisor. The trial court inquired of both Petitioner and his counsel concerning the details of the conflict, but they both declined to answer on privilege grounds.

The trial court thereafter denied the motion, and Petitioner filed the instant petition for writ of certiorari. This court granted Petitioner's motion to stay the proceedings below pending resolution of the instant petition.

"Certiorari is an appropriate vehicle for review of an order denying a motion to withdraw in a criminal matter." Smith v. State , 156 So.3d 1119, 1122 (Fla. 1st DCA 2015) (citations omitted). "[B]y requiring an ethically conflicted attorney from the [Public Defender's] Office to represent the petitioner, the trial court would be denying effective assistance of counsel." Ward v. State , 753 So.2d 705, 708 (Fla. 1st DCA 2000) ; see also Young v. State , 189 So.3d 956, 961 (Fla. 2d DCA 2016) ; Smith , 156 So.3d at 1126.

While section 27.5303 permits the trial court to inquire as to the nature of the conflict, the court is not permitted to inquire into confidential matters. § 27.5303(1)(a), Fla. Stat. (2018). Even though the exact nature of the conflict was unknown, the trial court nevertheless departed from the essential requirements of law when it inquired into privileged and confidential matters and denied Petitioner's facially sufficient motion to withdraw. See Young , 189 So.3d at 960.

We therefore grant the certiorari petition, quash the trial court's order denying the motion to withdraw, and remand with instructions that the trial court appoint conflict-free counsel.

PETITION GRANTED; ORDER QUASHED; REMANDED with instructions.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


author: KELLY, Judge.

text:
    Susan K. DEFRANCES, Appellant, v. Bill FURST, as Property Appraiser of Sarasota County, Florida, Barbara Ford-Coates, as Tax Collector of Sarasota County, Florida, and Leon M. Biegalski, as Executive Director of the Florida Department of Revenue, Appellees.
    Case No. 2D17-3973
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    Sherri L. Johnson of Johnson Legal of Florida, Sarasota, for Appellant.
    J. Geoffrey Pflugner, Anthony J. Manganiello, and Jason A. Lessinger of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee Bill Furst, as Property Appraiser of Sarasota County.
    Ashley Moody, Attorney General, and Robert P. Elson, Assistant Attorney General, Tallahassee, for Appellee Marshall Stanburg, as Executive Director of the Florida Department of Revenue.
    No appearance for Appellee Barbara Ford-Coates.
   KELLY, Judge.

Susan K. DeFrances appeals from a final judgment in favor of the Department of Revenue and the Sarasota County Property Appraiser and Tax Collector finding that her property is subject to assessment for back taxes for the year 2014. Section 193.092, Florida Statutes (2013), authorizes the assessment of property for back taxes where the property has escaped taxation. Because we conclude that Ms. DeFrances's property did not escape taxation, we reverse.

The facts are not in dispute. Ms. DeFrances holds a life estate in a large parcel of waterfront property in Sarasota County. She resides in a single family home situated on the property. There is also a rental home on the property. In 2014, the Property Appraiser assessed the value of the property at $ 302,400. Ms. DeFrances timely paid the taxes. The previous year, the property had an assessed value of $ 2,269,560. The change in assessed value occurred when the Property Appraiser's office transferred data from one computer assisted mass appraisal system to another.

Eventually, the Property Appraiser's office became aware that an error had occurred during the transfer, and as a result, in 2015, it sent Ms. De Frances a Notice of Proposed Increase in Assessed Value and Taxes notifying her that the 2014 assessment was being retroactively increased to $ 4,920,600. She also received a bill from the Tax Collector for $ 26,254.30 in back taxes for the 2014 tax year.

Ms. DeFrances filed a three count declaratory judgment action challenging the 2014 back taxes, the 2014 revised assessed value, and the 2015 assessed value. Ultimately, the trial court ruled against her on all counts. In this appeal, we are asked to review only the trial court's judgment as to the count challenging the 2014 back taxes.

Section 193.092 governs the assessment of property for back taxes. Ms. DeFrances's complaint sought a declaration that the assessment of back taxes against her was not authorized by section 193.092(1), which requires property appraisers to assess back taxes, for up to three years, on property that should have been taxed but was not. "Only property which has 'escaped taxation' may be back-taxed under [ section 193.092(1) ]." Okeelanta Sugar Refinery, Inc. v. Maxwell, 183 So.2d 567, 568 (Fla. 4th DCA 1966). "Once the Tax Assessor has certified the tax roll and the tax levied thereon paid on particular described property, said property cannot again be taxed for that particular year." Id.

While there is no statutory definition of "escape taxation," Florida Administrative Code Rule 12D-8.006(1), which implements section 193.02(1), provides:

"Escape taxation" means to get free of tax, to avoid taxation, to be missed from being taxed, or to be forgotten for tax purposes. Improvements, changes, or additions which were not taxed because of a clerical or some other error and are a part of and encompassed by a real property parcel which has been duly assessed and certified, should be included in this definition ... Property under-assessed due to an error in judgment should be excluded from this definition. Korash v. Mills, 263 So.2d 579 (Fla. 1972).

The first part of the definition appears to have originated in Okeelanta in which the court held that "escape taxation" means "to get free of tax, to avoid taxation, to be missed from being taxed, or to be forgotten for tax purposes." 183 So.2d at 568.

Ms. DeFrances's property was not missed, overlooked, or forgotten-the entire parcel as well as the improvements were assessed and included on the tax roll. In fact, the Property Appraiser acknowledged this in answers to interrogatories: "[T]here is no specific, defined area of land that escaped taxation since the land was valued as a whole." Rather, the property was undervalued as the result of an error. The appellees argue that because the error is the type the Property Appraiser may correct under rule 12D-8.021, the resulting back taxes may be assessed. We disagree. Rule 12D-8.021 sets forth the procedure for the correction of errors by property appraisers, it does not address the circumstances under which back taxes may be assessed. Section 193.092 governs when back taxes may be assessed, and it authorizes back taxes when property has "escaped taxation," not when it has simply been mistakenly undervalued. See Countryside Country Club, Inc. v. Smith, 573 So.2d 14, 16 (Fla. 2d DCA 1990) (stating that although a property appraiser is allowed to correct clerical errors and to assess back taxes on property that has escaped taxation, he may not reassess property once taxes are levied and paid); United Tel. Co. of Fla. v. Colding, 408 So.2d 594, 595 (Fla. 2d DCA 1981) (distinguishing between property that has escaped taxation versus property that has been taxed but was erroneously valued); Okeelanta, 183 So.2d at 568 (noting that section 193.092 is not a basis for the correction of tax rolls that have been accepted and certified by the property appraiser).

The appellees argue that Korash v. Mills, 263 So.2d 579 (Fla. 1972), stands for the proposition that back taxes may be assessed where a property partially escapes taxation in that a portion of the value of the property has escaped taxation. On the contrary, Korash cites Okeelanta with approval and reaffirms that a back assessment that simply increases the valuation of property that was already assessed is void. See Korash, 263 So.2d at 580-81.

In Korash, the property in question was an oceanfront lot upon which a motel had been built. 263 So.2d at 579-580. The property appraiser assessed the land and the motel separately and recorded the values on separate cards. Somehow the cards got separated, and only the value reflected on the card pertaining to the land was entered on the tax roll. Id. at 580. The following year the error was discovered and the property appraiser increased the assessment for the prior year. The owner refused to pay the back tax assessment arguing that for tax purposes the property included the land together with the improvements, that they could not be assessed separately, and that the late assessment of the motel separately was an improper attempt to increase the prior year's valuation. The lower court agreed. Id.

The supreme court disapproved the lower court's decision. It began its analysis by explaining that the flaw in the lower court's reasoning was in characterizing what happened as an increase in valuation for the prior year. Id. It continued stating:

If it Were only for the purpose of an Increase in the valuation of the total property then we would agree with the chancellor, for it has been consistently so held. It will be seen however that in these prior cases the increase has been an attempted increase in Amount only (after an assessment of the improvement for a total lesser Amount) and not instances where the entire improvement was skipped and failed to be noted at all for taxation because of error or oversight as in the present case.

Id. at 580-81 (alteration in original) (footnote omitted). Here, no portion of Ms. DeFrances's property was skipped-it is an increase in amount of the valuation of the total property.

The appellees' argument relies in part on a sentence in Korash that states, "we have here an instance where the principal value of the property has indeed 'escaped' taxation which is fairly within the contemplation of [ section 193.092 ]." Id. at 581-82. But read in context, this sentence is no more supportive of their position than the rest of the opinion. The court takes pains to distinguish between property that has not been assessed at all and property that has been assessed but undervalued due to an error:

We must keep in mind the distinction between changes and "miscalculations" by the assessor which "up" the amount previously assessed after tax roll certification, and the situation here where there has been no billing at all on the improvement (or it could be a separate, "overlooked" parcel of land) which has been completely excluded from the tax roll.
The distinction is clear. The "back assessment" here was in fact the initial and original assessment never theretofore assigned to the principal value of the property, a new $ 650,000.00 motel. There has been no reevaluation, no recalculation and no reassessment of the property in this sense. It simply turns out to be a separate assessment of land and buildings which, while not intended to be the usual manner of assessment, was the result of oversight and was without any change in the basic valuation made by the assessor but "lost" on a separate card [the previous year].

Id.

The appellees also assign significance to the fact that Korash notes that the change in the assessment was the result of an error and not the result of change in judgment by the assessor. Again, in context this distinction is of no benefit to the appellees. The court is distinguishing the facts before it from those in Markham v. Friedland, 245 So.2d 645 (Fla. 4th DCA 1971), in which an increase in an assessment due to the inclusion of an omitted improvement was precluded because the omission was the result of an exercise in judgment by the assessor rather than an error:

Markham [v. Friedland ] involved the unusual circumstance of a difference in Judgment by successive tax assessors, one placing a partially completed structure on the tax roll as "substantially complete" and then "after very careful consideration" striking it; the other belatedly in 1969 (after certification) trying to add the improvement as "85% Complete." This falls within the "judgment exercised" theory described Subjudice, resulting in a rare instance of precluding the back assessment of an "omitted improvement" because it really had not escaped consideration. We do not see this result as inconsistent with our view.

Korash, 263 So.2d at 581.

The principle that a partial escape from taxation that is the result of a correctable error is encompassed by section 193.092(1) is reflected in rule 12D-8.006(1) which specifies that "[i]mprovements, changes, or additions which were not taxed because of a clerical or some other error and are a part of and encompassed by a real property parcel which has been duly assessed and certified, should be included in this definition if back taxes are due." Robbins v. Kornfield, 834 So.2d 955 (Fla. 3d DCA 2003), illustrates the application of this principal, albeit in a case that seems primarily concerned with when a property appraiser can make changes to a base year assessment of homestead property. In Kornfield, the taxpayers built an addition to their home that increased its square footage. Id. at 956. Due to an error by the property appraiser, that additional square footage was not included in the calculation of the value of the property for nine years. Id. When the property appraiser discovered the error, it placed a back assessment on the property and sought back taxes for three of the nine years pursuant to section 193.092. Id. On appeal, the court approved the back assessment on the portion of the property that escaped taxation. Id. at 957.

While the error here may be correctable in the records of the Property Appraiser, it did not result in any portion of Ms. DeFrances's property escaping taxation as that term has been defined in the case law or as it is defined in rule 12D-8.006. The entire parcel and all the improvements were assessed and placed on the tax roll. The correction here did nothing more than increase the valuation of property that had already been assessed. Therefore, we reverse the summary judgment in favor of the appellees, and remand with directions to the trial court to enter judgment in favor of Ms. DeFrances as to count 1 of her complaint.

Reversed and remanded.

NORTHCUTT and LUCAS, JJ., Concur.

      The parties have characterized what happened as being in the nature of a clerical or administrative error. In 2013, the system valued the parcel by treating it as being made up of five lots each with its own value. The new system, however, used a different methodology (per front foot versus per lot) to arrive at the value of the parcel, which it treated as a single parcel made up of a single lot. Other factors that the new system used to calculate value were not entered into the system resulting in the reduced value. The new system also applied Ms. DeFrances's homestead exemption to the entire parcel.

      In pertinent part, section 193.092(1) states:
      When it shall appear that any ad valorem tax might have been lawfully assessed or collected upon any property in the state, but that such tax was not lawfully assessed or levied, and has not been collected for any year within a period of 3 years next preceding the year in which it is ascertained that such tax has not been assessed, or levied, or collected, then the officers authorized shall make the assessment of taxes upon such property in addition to the assessment of such property for the current year, and shall assess the same separately for such property as may have escaped taxation at and upon the basis of valuation applied to such property for the year or years in which it escaped taxation, noting distinctly the year when such property escaped taxation and such assessment shall have the same force and effect as it would have had if it had been made in the year in which the property shall have escaped taxation, and taxes shall be levied and collected thereon in like manner and together with taxes for the current year in which the assessment is made. But no property shall be assessed for more than 3 years' arrears of taxation, and all property so escaping taxation shall be subject to such taxation to be assessed in whomsoever's hands or possession the same may be found, except that property acquired by a bona fide purchaser who was without knowledge of the escaped taxation shall not be subject to assessment for taxes for any time prior to the time of such purchase, but it is the duty of the property appraiser making such assessment to serve upon the previous owner a notice of intent to record in the public records of the county a notice of tax lien against any property owned by that person in the county.

      In Smith v. Krosschell, 937 So.2d 658 (Fla. 2006), the court also addressed the question of when a property appraiser could make retroactive changes to the base year assessment of homestead property. In the case before it, a data entry error had eliminated the homestead dwelling entirely from the property records. Id. at 659. The court concluded that a data entry error that "totally eliminates the improvements on real property" is subject to correction under section 197.122(1), Florida Statutes. Id. at 661. Kornfield had found the error in that case correctable under a recent amendment to section 193.155, Florida Statutes. The Krosschell opinion opts not to resolve whether the amended version of section 193.155 applies and limits its discussion to the correction of errors under 197.122(1). Id. at 660-61. The opinion addresses only the issue of when a base year assessment of homestead property may be corrected-it does not speak to the issue of when back taxes may be assessed in connection with the correction of an error.