author: BLACK, Judge.

text:
    Norman GUNDEL; William Mann; and Brenda N. Taylor, Individually and on Behalf of All Similarly Situated Persons, Petitioners, v. AV HOMES, INC. and Avatar Properties, Inc., Respondents.
    Case No. 2D18-899
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; and Kenneth G. Turkel and Shane B. Vogt of Bajo Cuva Cohen & Turkel, P.A., Tampa, for Petitioners.
    Daniel J. Fleming and Christian M. Leger of Gray Robinson, P.A., Tampa, for Respondents.
   BLACK, Judge.

Norman Gundel, William Mann, and Brenda N. Taylor (the Residents) seek a writ of certiorari quashing the trial court's order denying their motion to dismiss the counterclaim filed by Avatar Properties, Inc., in the Residents' class action lawsuit against Avatar Properties and its parent company, AV Homes, Inc. The Residents assert that by failing to adhere to the language of sections 720.304 and 768.295, Florida Statutes (2017), and by not dismissing the counterclaim as a Strategic Lawsuit Against Public Participation (SLAPP) suit the court departed from the essential requirements of law. We grant the petition and quash the order denying the Residents' motion to dismiss.

I. Background

The Residents filed a class action complaint against AV Homes and Avatar Properties alleging violations of Florida's Homeowners' Association Act, §§ 720.301-720.407, and Florida's Deceptive and Unfair Trade Practices Act, §§ 501.201 - 501.213, Fla. Stat. (2017), and seeking declaratory relief, injunctive relief, and damages. A brief discussion of the claims in the Residents' complaint and Avatar Properties' counterclaim is necessary to provide context to our decision.

Avatar Properties is the developer of Solivita, the community in which the Residents own homes. In their complaint, the Residents claimed that Avatar Properties and AV Homes violated the law when they created both the Solivita Community Association and the Club Plan, each of which require Solivita homeowners to pay fees.

The Residents claim that the imposition of both of these fees is not legal and that certain marketing for the community was deceptive. In creating Solivita, Avatar Properties also established two community development districts (CDDs) to fund infrastructure within the community through additional assessments on homeowners.

The Residents' lawsuit arose after Avatar Properties proposed to sell the Club amenities, as established by the Club Plan, to the CDDs at a cost of $73.7 million. The purchase would be financed through the issuance of bonds, to be repaid by Solivita homeowners including the Residents. The Residents expressed concerns about the proposed sale and publicly commented on the propriety of the $73.7 million suggested purchase price and bond validation proceedings. They posted on Internet blogs, spoke at Solivita CDD meetings, distributed handouts at CDD meetings, commented at other local meetings at which Solivita homeowners were present, and circulated a petition to have the Club amenities appraised. The Residents obtained an appraisal setting the fair market value of the Club amenities at $19.25 million. The Residents also posted on the Internet information about the Bond Validation Case, the mechanism by which the CDDs would be granted the bonds to purchase the amenities. The posts included links to the court filings and summaries of the allegations.

After a failed motion to dismiss the Residents' lawsuit, Avatar Properties filed its answer and a counterclaim. The counterclaim raised three counts which the Residents allege seek to hold the Residents liable for damages based on constitutionally protected conduct: engaging in free speech, defending and prosecuting lawsuits, and engaging in discourse with governmental entities, the CDDs. Count I of the counterclaim alleged that the Residents breached the purchase and sale agreements "by actively and vocally contesting the validity and enforceability of: (1) the mandatory nature of the membership in the Club; (2) the Club Dues and Membership Fees; and (3) [Avatar Properties'] right to sell the Club [amenities] at its sole discretion." Count II alleged that the Residents breached the affirmative covenant running with the land-the requirements of membership in the Club Plan-"by contesting the validity of the Club Plan, [Avatar Properties'] right to collect Club Dues, and [Avatar Properties'] right to sell the Club [amenities]." Count III of the counterclaim sought a declaratory judgment finding "that the Club [amenities] (and the fees associated therewith) are not subject to [chapter 720]." Count IV claimed tortious interference with contractual relations, alleging that the Residents "unjustifiably interfered with [Avatar Properties'] agreement with the CDDs by contesting the enforceability of the Club Plan." Each count realleged the paragraphs outlining the Residents' conduct: (1) engaging in "extra-judicial conduct aimed at frustrating" the sale of the Club amenities to the CDDs, including posting "misleading information" on the Solivita blog, "handing out fliers to residents that included inaccurate information[,] and contesting [Avatar Properties'] right to collect Club [d]ues"; (2) attending meetings of local clubs/classes for homeowners and contesting the sale of the Club amenities to the CDDs for the requested price; (3) asking residents "to sign petitions contesting [Avatar Properties'] right to sell the Club [amenities]"; and (4) "by virtue of this [lawsuit]" continuing to frustrate Avatar Properties' "contractual interests." Avatar Properties claimed damages of "increased attorneys' fees in the Bond Validation Case, as well as the delay, frustration, and potential loss of the planned sale to the CDDs," and it argued that the Residents "unjustifiably interfered with [Avatar Properties'] agreement with the CDDs." The purchase agreement between Avatar Properties and the CDDs, dated December 1, 2016, was included in the attachments to the counterclaim.

In their answer, the Residents admitted that they posted information on the Solivita blog and that they "distributed handouts at CDD public meetings"; they admitted to attending classes for residents held by a local club and speaking about the proposed sale of the Club amenities to the CDDs; they admitted that they sought and obtained signatures on a petition for a fair market value appraisal of the Club amenities; and they admitted that Avatar Properties "is trying to sue [the Residents] for filing the above styled class action." The Residents also admitted that they "vocally contested the validity of certain aspects of the Club Plan and the proposed sale of the Club [amenities], as asserted in the official court records in the Bond Validation Case." The Residents filed the affidavit of Mr. Gundel, one of the Residents. Mr. Gundel averred that he made comments and distributed handouts about the proposed purchase of the Club amenities at public CDD meetings "in late 2015 or 2016"; that he posted on the Solivita blog about the Bond Validation Case; that he attended a February 10, 2017, CDD meeting and distributed information about the proposed purchase; that he attended a March 15, 2017, CDD meeting and presented the appraisal petition; and that he attended an April 19, 2017, CDD meeting and presented the appraisal report and another handout. He further averred that after the class action lawsuit was filed, he attended three more meetings of the CDD and spoke about the proposed purchase.

II. The Anti-SLAPP motion

Simultaneously with their answer, the Residents also filed a "Motion to Dismiss, For Judgment on the Pleadings or For Summary Judgment on Counterclaim and For Award of Attorneys' Fees and Costs Under Florida's Anti-SLAPP Statutes." The motion alleged that Avatar Properties' counterclaim "openly violates Florida's Anti-SLAPP Statutes because it seeks damages from the [Residents] because they assembled, engaged in free speech, and sought redress before their government," citing sections 768.295 and 720.304.

The Anti-SLAPP statute provides, in pertinent part:

A person or governmental entity in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

§ 768.295(3). The Anti-SLAPP statute defines "[f]ree speech in connection with public issues" as

any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.

§ 768.295(2)(a). "Governmental entity" is defined as "the state, including the executive, legislative, and the judicial branches of government and the independent establishments of the state, counties, municipalities, corporations primarily acting as instrumentalities of the state, counties, or municipalities, districts, authorities, boards, commissions, or any agencies thereof." § 768.295(2)(b).

The Residents' motion quotes the Anti-SLAPP statute and the operative paragraphs from the counterclaim, and it cites Mr. Gundel's affidavit. The Residents argued that "simply allowing SLAPPs to proceed violates the very constitutional rights Florida's Anti-SLAPP Statutes were implemented to protect" and that the trial court was tasked with determining two issues: (1) whether the counterclaim was brought "primarily" because the SLAPP defendants engaged in a protected activity, and (2) whether the counterclaim is "without merit." As to the first issue, the Residents argued that the counterclaim was based solely on protected activities relating to either the Bond Validation Lawsuit or the class action. As to the second issue, the Residents outlined in detail why Avatar Properties' claims were meritless. The Residents sought an expeditious hearing of the motion and dismissal of the counterclaim or judgment in favor of the Residents.

In response, Avatar Properties argued that the Residents expressly waived any constitutional protections afforded to them when they contractually agreed to the Club Plan. In essence, Avatar Properties argued that the contract paragraphs which the Residents claim are legally invalid are the paragraphs which form Avatar Properties' defense. Avatar Properties did not argue that material facts remained in dispute.

Following a hearing, the trial court entered its order denying the Residents relief. The court treated the Residents' motion only as a motion to dismiss, stating that the Residents could not "substitute a motion to dismiss for either a motion for summary judgment or a motion for judgment on the pleadings." As a result, the court did not consider the motion as a motion for summary judgment or motion for judgment on the pleadings. Based only on the allegations of Avatar Properties' counterclaim, the court found that the Residents failed to show that their conduct fell within the protections of the Anti-SLAPP statute and that the Residents failed to establish that their conduct was made "in connection with" an existing judicial proceeding.

III. Analysis

A. Certiorari jurisdiction

"Before a court may grant certiorari relief from the denial of a motion to dismiss, the petitioner must establish the following three elements: '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.' " Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) ). The latter two elements are jurisdictional. Id.

Certiorari review has been limited "as a matter of policy to avoid piecemeal review of pretrial orders." Id. at 1134. "However, in numerous cases, Florida courts have permitted certiorari review to determine whether [a party] was afforded the proper process through procedural compliance with the statutory requirements." Id.; see also Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995) ("[A]ppellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72[, Florida Statutes (1993) ] ...."). Moreover, certiorari review is appropriate where an "order implicates a violation of the parties' constitutional rights which cannot be remedied on plenary review." Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So.2d 1162, 1163 (Fla. 3d DCA 1999) ; see also SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 110 So.3d 87, 91 (Fla. 2d DCA 2013) (citing Rodriguez for this standard).

Here, the Residents contend that "the legislature has made it a matter of Florida public policy to recognize and dismiss SLAPP suits expeditiously because the very filing and continuation of" SLAPP suits has the chilling effect on constitutional rights that the Anti-SLAPP statute was enacted to prevent and that, therefore, the jurisdictional prongs of the certiorari standard have been met. We agree.

The legislature enacted the Anti-SLAPP statute in 2000. In creating section 768.295, the legislature specifically found that

"Strategic Lawsuits Against Public Participation" or "SLAPPs," are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their duties, and ... these lawsuits are an abuse of the judicial process and are used to censor, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs ....

Ch. 2000-174, § 1, Laws of Fla. The legislature further found that "it is essential in our democracy that the constitutional rights of citizens to participate fully in the process of government be uniformly, consistently, and comprehensively protected and encouraged" and that "the threat of financial liability, litigation costs, ... and other personal losses from groundless lawsuits seriously affects ... individual rights," which courts have recognized as harming individuals' fundamental rights. Id.

The statutory language and its stated purpose, in addition to case law governing similar statutes, supports our conclusion that the jurisdictional prongs of the certiorari standard have been met. Section 768.295(3) creates a right not to be subject to meritless suits filed "primarily because [the defendant] has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state."Cf. Globe Newspaper, 658 So.2d at 519 ("We read section 768.72 to create a substantive legal right not to be subject to a punitive damages claim ... until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.").

To the extent that Avatar Properties argues that the Residents have not established that this court may exercise certiorari jurisdiction because "an alleged error arising from a motion to dismiss is remediable on appeal regardless of whether the motion is granted or denied," Avatar Properties misconstrues the certiorari standard. As this court has stated, "certiorari may be precluded not by the availability of a mechanism for correcting the error itself; rather, the remedy must alleviate the harm that results from the error ." Gawker Media, LLC v. Bollea, 170 So.3d 125, 132 (Fla. 2d DCA 2015).

In the context of the Anti-SLAPP statute, the harm that results from the court's improper denial of a motion to dismiss or in its failure to rule on pending motions for summary judgment and judgment on the pleadings is precisely the harm that the Anti-SLAPP statute seeks to prevent-unnecessary litigation. See ch. 2000-174, § 1; cf. Williams, 62 So.3d at 1133-34 ("The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act-to avoid meritless claims and to encourage settlement for meritorious claims." (footnote omitted) ); Globe Newspaper, 658 So.2d at 520 ("[A] plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant."); Fla. Hosp. Med. Servs., LLC v. Newsholme, 255 So.3d 348, 350 (Fla. 4th DCA 2018) ("Certiorari jurisdiction lies to review whether a trial court has complied with the procedural requirements of section 768.72(1)." (citing Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016) ) ). In that way, the Anti-SLAPP statute bears some similarity to statutes providing for immunity from suit where the statutory protection cannot be adequately restored once it is lost through litigation and trial. See James v. Leigh, 145 So.3d 1006, 1008 (Fla. 1st DCA 2014) ("When the trial court denies a motion to dismiss on immunity grounds, certiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless if the lower court denied dismissal in error." (citing Fla. State Univ. Bd. of Trs. v. Monk, 68 So.3d 316, 318 (Fla. 1st DCA 2011) ) ); see also LoBiondo v. Schwartz, 199 N.J. 62, 970 A.2d 1007, 1020 (2009) (discussing the two categories of anti-SLAPP statutes and citing Florida's as within the category that "include[s] a legislative declaration that a public participant who has exercised his or her free speech right, sometimes in statutorily defined manner, enjoys immunity"). That is, if certiorari review is not available, the substantive right created by the Anti-SLAPP statute "is illusory and the very policy that animates the decision to" prevent SLAPP suits is frustrated such that the "statutory protection becomes essentially meaningless for the individual defendant." See Keck v. Eminisor, 104 So.3d 359, 365-66 (Fla. 2012) (quoting Tucker v. Resha, 648 So.2d 1187, 1190 (Fla. 1994) ).

B. Departure

1. Procedural mechanisms for resolution

The Residents contend that the trial court departed from the essential requirements of law by failing to adhere to the procedures set forth in the Anti-SLAPP statute. They argue that the statute expressly permits resolution of SLAPP claims through a motion for summary judgment and that the court's failure to consider their motion as both a motion to dismiss and a motion for summary judgment constitutes a departure.

The Anti-SLAPP statute provides that

[a] person or entity sued by a governmental entity or another person in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity. The person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant's or governmental entity's lawsuit has been brought in violation of this section. The claimant or governmental entity shall thereafter file a response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the motion, which shall be held at the earliest possible time after the filing of the claimant's or governmental entity's response.

§ 768.295(4). The Anti-SLAPP statute plainly authorizes the filing of a motion to dismiss or motion for summary judgment. While it does not elaborate on a motion seeking dismissal, the statute expressly provides that once a motion for summary judgment, "together with supplemental affidavits," has been filed, the claimant (Avatar Properties) "shall thereafter file a response and any supplemental affidavits." Id. The statute then establishes the duty of the court to, "[a]s soon as practicable, ... set a hearing on the motion, which shall be held at the earliest possible time after" the claimant files its response. Id. Therefore, the statute sets forth the procedural mechanisms by which a SLAPP defendant may invoke its substantive right-a motion seeking dismissal or summary judgment-as well as the requirement to hear such motions expeditiously.

And although it is true that motions for dismissal and motions for summary judgment serve separate purposes, "are not interchangeable, and one may not be substituted for another," contrary to the trial court's determination not to hear the motion for summary judgment filed by the Residents with their motion to dismiss, motions filed in the alternative are permitted. See U.S. Bank Nat'l Ass'n on Behalf of Holders of the Home Equity Asset Tr. 2002-4 Home Equity Pass-Through Certificates, Series 2002-4 v. Doepker, 223 So.3d 1083, 1084 (Fla. 2d DCA 2017) (citing Holland v. Anheuser Busch, Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994) ). That one motion cannot substitute for the other does not allow the court to decline to rule on an otherwise facially and substantively sufficient motion.

As relevant here, Florida Rule of Civil Procedure 1.510 governs summary judgment and provides that "[a] party against whom a claim [or] counterclaim ... is asserted or a declaratory judgment is sought may move for a summary judgment in that party's favor as to all or any part thereof at any time with or without supporting affidavits." Fla. R. Civ. P. 1.510(b). It further provides that "[t]he judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The content of the document and its attachments must support the relief requested, thereby allowing the court to rule upon the motion based upon its respective purpose and standard. Cf. HSBC Bank USA, Nat'l Ass'n for Deutsche Alt-A Sec. Mortg. Loan Tr., Series 2007-OA5 v. Nelson, 246 So.3d 486, 489 (Fla. 2d DCA 2018) ("[T]he character of a motion will depend upon its grounds or contents, and not on its title." (quoting Jones v. Denmark, 259 So.2d 198, 200 n.1 (Fla. 3d DCA 1972) ) ). The Residents' motion for summary judgment was supported by the contemporaneously filed affidavit of Mr. Gundel and sought judgment in favor of the Residents; Avatar Properties did not raise any material facts in dispute in its response to the motion, and it did not file any affidavits in opposition. That the Residents' motion was filed as a motion to dismiss, motion for summary judgment, and motion for judgment on the pleadings does not relieve the trial court of its statutory obligations to consider the motion under each standard where the motion was facially sufficient and in compliance with the rules of civil procedure and to set a hearing "[a]s soon as practicable" and "at the earliest possible time."

Because the statute allows for the filing of either or both a motion to dismiss and a motion for summary judgment, and because the motions may be filed within one document under an alternative heading, the trial court departed from the essential requirements of the law in declining to consider the Residents' motion as a motion for summary judgment. The motion should be heard on the evidence and pleadings on record as of the date of the hearing on the motion to dismiss.

2. Dismissal

The Residents also contend that the trial court departed from the essential requirements of law in denying the motion to dismiss based on its application of an "inapt"

dismissal standard, that applied to motions to dismiss for failure to state a cause of action. See, e.g., Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008). The Residents argue that the motion to dismiss was not based on Avatar Properties' failure to state a cause of action because the Anti-SLAPP statute focuses not on whether a cause of action has been sufficiently alleged but on whether the activity that is alleged to have given rise to the cause of action is protected activity; they contend that the trial court's failure to consider Mr. Gundel's affidavit and Avatar Properties' failure to file any conflicting evidence constitutes a departure. The Residents' argument suggests that a motion to dismiss based on the Anti-SLAPP statute requires the trial court to do more than accept as true the factual allegations in the four corners of the complaint and draw all reasonable inferences therefrom in favor of the claimant. We agree.

As discussed above, the Anti-SLAPP statute authorizes the filing of a motion seeking dismissal and a motion seeking summary judgment. Whereas the statute sets forth the procedures for considering a motion for summary judgment, the statute is silent as to the burden or procedure for considering a motion to dismiss. The language of the statute does, however, attach the action to the claimant rather than the SLAPP defendant: "[a] person or governmental entity in this state may not file," thus prohibiting the claimant from taking action, rather than "a person or entity may not be sued by a governmental entity or another person." § 768.295(3). The statutory language supports requiring the claimant to meet a burden.

Placing the initial burden on the SLAPP defendant to set forth a prima facie case that the Anti-SLAPP statute applies and then shifting the burden to the claimant to demonstrate that the claims are not "primarily" based on First Amendment rights in connection with a public issue and not "without merit" serves the purpose of the statute and conforms with the procedures employed in considering other statutorily-based motions to dismiss. See, e.g., Volkswagen Aktiengesellschaft v. Jones, 227 So.3d 150, 155 (Fla. 2d DCA 2017) (discussing the shifting burden for motions to dismiss based on lack of personal jurisdiction); Becker v. Clark, 722 So.2d 232, 233 (Fla. 2d DCA 1998) (discussing the shifting burden for motions to dismiss based on qualified immunity). In considering motions to dismiss as to its anti-SLAPP statute, the Maine Supreme Court has stated that "the defendant carries the initial burden to show that the suit was based on some activity that would qualify as an exercise of the defendant's First Amendment right to petition the government" such that the anti-SLAPP statute applies and then "the burden falls on the plaintiff to demonstrate that the defendant's activity" is actionable. Schelling v. Lindell, 942 A.2d 1226, 1229 (Me. 2008) (quoting Title 14 M.R.S. § 556 ). The trial court here found that the Residents (1) "failed to show that [their] alleged conduct ... constitute[d] protected statements before government entities" based on the "[in]sufficient context" in Avatar Properties' counterclaim and (2) "failed to show that their alleged conduct was made 'in connection with' or 'in the course of' an existing judicial proceeding" based on the conduct being "limitedly described [and] lack[ing] sufficient context and temporality" in Avatar Properties' counterclaim. The effect of placing the burden exclusively on the SLAPP defendant based only on the claimant's allegations allows the claimant to avoid dismissal by being intentionally vague, thus thwarting the purpose of the statute.

Here, the vagueness of Avatar Properties' allegations as to the dates of specific conduct and as to the conduct itself prevents the trial court from determining from the face of the counterclaim that the Residents' actions constitute "free speech in connection with public issues" or instruction of representatives of government. Thus, while it may be clear from the face of the counterclaim that Avatar Properties has based some part of its claims on the filing of the class action and on the Residents' opposition to the Bond Validation Case, the trial court could not determine that Avatar Properties' claims were primarily based on protected activities, as the Anti-SLAPP statute requires. The Residents' motion and supporting affidavit attempt to provide the facts necessary to support dismissal. The trial court must expeditiously address the merits of the Residents' motion under the appropriate standard. See § 768.295(4).

IV. Conclusion

The petition for writ of certiorari is granted. The order denying the Residents' "Motion to Dismiss, For Judgment on the Pleadings or For Summary Judgment on Counterclaim and For Award of Attorneys' Fees and Costs Under Florida's Anti-SLAPP Statutes" is quashed for the reasons stated herein.

Petition granted; order quashed.

MORRIS and LUCAS, JJ., Concur.

      Membership in both the Solivita Community Association and the Club Plan are mandatory for Solivita homeowners. The association fee is an assessment. The Club Plan governs the "Club amenities" and establishes the "Club dues" or Club fees, which include both expenses, similar to common-area upkeep expenses, and "Club membership fees." The Club amenities are exclusively owned by the "Club Owner," Avatar Properties, and as alleged by the Residents, the Club membership fees are collected "without deduction of expenses or charges in respect of the Club" as profit to Avatar Properties.

      The bond litigation (Bond Validation Case) remains pending below but has not been consolidated with the action at issue here.

      For purposes of this opinion, we will refer to section 768.295 as Florida's Anti-SLAPP statute. Both chapter 718 and chapter 720 also contain anti-SLAPP provisions, respectively related to condominium unit owners and parcel owners. §§ 718.1224, 720.304(4), Fla. Stat. (2017).

      We have found only two Florida state cases discussing SLAPP suits: Two Islands Development Corp. v. Clarke, 239 So.3d 115 (Fla. 3d DCA 2018), and Florida Fern Growers Ass'n v. Concerned Citizens of Putnam County, 616 So.2d 562 (Fla. 5th DCA 1993). Neither case discusses whether certiorari relief is warranted in the context of SLAPP suits. Two Islands does, however, affirm the dismissal with prejudice of three counts of a lawsuit against homeowners who protested the development of land and "interfer[ed] in and prevent[ed] a settlement" of an ongoing action involving the vested rights of property owners, holding-without elaboration-that the trial court properly dismissed those counts "upon a determination that those counts were barred by Florida's anti-SLAPP statute, section 720.304, Florida Statutes (2015)." 239 So.3d at 121, 126 n.10. Florida Fern Growers, in addressing the argument that a particular lawsuit was a SLAPP suit, stated, "[a] SLAPP suit has been described as 'one filed by developers, unhappy with the public protest over a proposed development, filed against leading critics in order to silence criticism of the proposed development.' " 616 So.2d at 570 (quoting Westfield Partners, Ltd. v. Hogan, 740 F.Supp. 523, 525 (N.D. Ill. 1990) ). We note, too, that "[l]itigants' right to interlocutory appeal of anti-SLAPP motion decisions has been acknowledged in state courts in California, Georgia, Maine, Massachusetts, New Mexico, and Pennsylvania, and federal courts have allowed immediate appeal of holdings under the anti-SLAPP statutes of California, Louisiana, and Georgia." Carson Hilary Barylak, Note, Reducing Uncertainty in Anti-SLAPP Protection, 71 Ohio St. L.J. 845, 879-80 (2010) (footnotes omitted). The Maine Supreme Court has stated that it permits "interlocutory appeals from denials of special motions to dismiss brought pursuant to the anti-SLAPP statute because a failure to grant review of these decisions at this stage would impose additional litigation costs on defendants, the very harm the statute seeks to avoid, and would result in a loss of defendants' substantial rights." Schelling v. Lindell, 942 A.2d 1226, 1229-30 (Me. 2008).

      The language of sections 720.304(4)(c) and 768.295(4) are identical in terms of the procedure to be used by the parties and the trial court, as applicable to this case.

      We note that while the statute does not state that a SLAPP defendant may file a motion for judgment on the pleadings, as it does a motion for summary judgment, it provides that a defendant "may move the court for an order ... granting final judgment." § 768.295(4).


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Michael Rameil PATTERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1824
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Michael Rameil Patterson, pro se.
    Ashley Brooke Moody, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Michael Rameil Patterson, pro se, challenges an order summarily denying his motion seeking documents and transcripts in trial court cases 14-03395 and 14-03396. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm the order without prejudice to Mr. Patterson's right to seek the requested transcripts from his former public defender. Mr. Patterson has failed to show that he is entitled to free copies of the other documents.

Background

A jury convicted Mr. Patterson of burglary and possession of burglary tools. The trial court sentenced him to state prison. We per curiam affirmed Mr. Patterson's judgment and sentences on direct appeal. Patterson v. State, 224 So.3d 223 (Fla. 2d DCA 2017) (No. 2D16-822).

Afterwards, and for both cases, Mr. Patterson sent a letter to the Pinellas County Clerk of Court requesting copies of (1) the notices of written not guilty pleas, (2) his letter to the clerk requesting a speedy trial, and (3) the notice waiving speedy trial. Mr. Patterson also requested copies of the transcripts of his arraignments and hearings on his motions to dismiss counsel. When the Clerk informed Mr. Patterson that he would have to pay for the materials, he filed a motion, asking the postconviction court to order the Clerk and the Department of Digital Records to provide him with free copies because he was indigent. The postconviction court denied the motion and Mr. Patterson appealed.

Analysis

Mr. Patterson argues that the postconviction court erroneously denied his motion because, as an indigent, he is entitled to free copies of the materials and transcripts. He also asserts, for the first time on appeal, that he unsuccessfully requested the materials from the public defender's office. Mr. Patterson wants us to order "the State or public defender offices to provide [him] with the records that are needed."

Initially, we observe that the postconviction court should have treated Mr. Patterson's motion as a petition for writ of mandamus. See Harrell v. State, 963 So.2d 359, 360 (Fla. 2d DCA 2007) ("Although the postconviction court correctly denied the motion to compel, it should have treated the motion as a petition for writ of mandamus and determined whether it was facially sufficient or if more particularity was required." (footnote omitted) ).

Nevertheless, the postconviction court correctly denied the motion because Mr. Patterson is not entitled to free copies of the materials for postconviction purposes. See Roesch v. State, 633 So.2d 1, 2 (Fla. 1993) ("We know of no court which has ever ordered that indigent inmates be furnished public records free of charge."); Johnson v. State, 836 So.2d 1103, 1103 (Fla. 2d DCA 2003).

Mr. Patterson may receive free "copies of any transcripts that were prepared at government expense for his direct appeal and that are in the possession of his former public defender." See Johnson, 836 So.2d at 1103. However, as far as we can tell, Mr. Patterson never advised the postconviction court of any requests to his former public defender. We, of course, lack jurisdiction to compel an official act raised for the first time on appeal. See Bennett v. Clerk of Circuit Court Citrus Cty., 150 So.3d 277, 279 (Fla. 5th DCA 2014) ("Finally, '[a] litigant who seeks action from the trial court clerk to provide documents or accept filings cannot start with mandamus at the appellate court. He must seek relief in the trial court first.' " (alteration in original) (quoting Leichty v. Clerk of Circuit Court, Lake Cnty., 948 So.2d 47, 48 (Fla. 5th DCA 2007) ) ); Hernandez v. Denny's Rest. & Claims Ctr., 926 So.2d 446, 446 (Fla. 1st DCA 2006) ("A petitioner seeking to compel a public official to act must first make an express and distinct demand for performance of that act."). Accordingly, we affirm without prejudice to Mr. Patterson's right to seek the transcripts from his former public defender. See Johnson, 836 So.2d at 1103.

Affirmed.

NORTHCUTT and KHOUZAM, JJ., Concur.

      Mr. Patterson states in his initial brief that he wants the documents pursuant to section 940.04, Florida Statutes (2018). This argument is not cognizable on appeal because Mr. Patterson never mentioned section 940.04 in the postconviction court. See Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982) ("[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below."). Moreover, section 940.04 is not applicable because Mr. Patterson is not an applicant for executive clemency and is not seeking certified copies of his information, indictment, judgment, or sentence. See § 940.04 (providing that any applicant for executive clemency is entitled to certified copies of the applicant's information, indictment, judgment, or sentence, free of charge by the clerk of court).

      Our review of the record in Mr. Patterson's direct appeal does not reflect that the requested transcripts were ever prepared and filed with this court.


author: SALARIO, Judge.

text:
    Jorge HANANIA, DOC# 366702, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4044
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Jorge Hanania, pro se.
   SALARIO, Judge.

Jorge Hanania appeals from a final order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Having reviewed his motion and our limited postconviction record, we conclude that Mr. Hanania has presented three claims of ineffective assistance of counsel related to a search of his motel room that are not refuted by the record and that are either legally sufficient or might be amended to make them so and a fourth legally sufficient claim of cumulative error. The postconviction court erred by summarily denying those claims. We reverse the order to that extent and affirm the balance without comment.

In October 2012, Mr. Hanania pleaded no contest to one count each of possession of methamphetamine, possession of alprazolam, possession of cannabis, and possession of paraphernalia. The trial court sentenced Mr. Hanania to a total of eleven years-five years on the methamphetamine charge to run consecutively to five years on the alprazolam charge and concurrent terms of twelve months each on the cannabis and paraphernalia charges, which the trial court ran consecutively to the sentences for possession of alprazolam and possession of methamphetamine. The trial court suspended the sentences and required Mr. Hanania to complete eleven years of probation.

Two weeks later, Mr. Hanania was arrested and charged with possession of methamphetamine and possession of paraphernalia. The arrest followed the search of a motel room in which Mr. Hanania, a friend named Oscar, and Mr. Hanania's girlfriend, Krystal Leighton, were present. Mr. Hanania's motion tells the story as follows: Polk County Sheriff's Deputy William Roberts was driving behind Ms. Leighton as she was parking a car at the motel. Ms. Leighton backed out of her parking spot to straighten the car out and almost hit Deputy Roberts' patrol car. Deputy Roberts got out of his car and began questioning Ms. Leighton. She told the deputy that the car belonged to Mr. Hanania, who was upstairs in their motel room. Deputy Roberts told Ms. Leighton that his computer showed that the car belonged to Mr. Hanania's mother and asked to speak with him. Ms. Leighton remained in the parking lot with another deputy, who had since arrived, while Deputy Roberts went upstairs.

Deputy Roberts met Mr. Hanania at the door of his motel room. Mr. Hanania said that the car was his mother's and that he let Ms. Leighton drive it. Deputy Roberts asked whether he was on probation, and Mr. Hanania replied that he "was just put on probation for meth." The deputy asked if he could search Mr. Hanania and Oscar. Both consented. The second deputy arrived with Ms. Leighton-who evidently also consented to be searched-and all three were searched outside the room.

The searches turned up bubkes, and Deputy Roberts let Mr. Hanania, Ms. Leighton, and Oscar return to the motel room. As they walked into the room, Deputy Roberts stopped the door from closing and followed them in, over Mr. Hanania's objection, asserting that he had a right to search Mr. Hanania's room because he was on probation. Undeterred by Mr. Hanania's continuing protests over his entry into the room, Deputy Roberts searched the room and found a pipe and a scale between the bed sheets, which Mr. Hanania denied were his. The pipe tested positive for methamphetamine. Mr. Hanania was then arrested on new possession charges, which prompted the State to file a notice of violation of probation related to the eleven-year sentence Mr. Hanania had just received on the old possession charges.

At an evidentiary hearing on the probation violations, Deputy Roberts testified that after Mr. Hanania was arrested, he admitted buying the pipe, using the pipe to smoke methamphetamine, and using the scale to weigh methamphetamine. In his rule 3.850 motion, Mr. Hanania denies anything of the kind. Our limited record does not contain any information apart from Deputy Roberts' testimony at the probation violation hearing.

At that hearing, Deputy Roberts also testified that before searching the motel room, he did not have any reason to think that there were drugs in the room. Deputy Roberts stated several times that he asked for consent to search the motel room, but he never said whether the consent he sought was given or withheld. The trial court found that Mr. Hanania's statements to Deputy Roberts established that he willfully violated his probation by possessing drug paraphernalia, revoked probation, and reimposed the previously suspended sentences. This court affirmed. See Hanania v. State, 138 So.3d 1031 (Fla. 2d DCA 2014) (table decision).

Mr. Hanania then filed his rule 3.850 motion, which he later amended and supplemented. The postconviction court struck these filings because Mr. Hanania had not complied with the English-literacy certification requirement of rule 3.850(n)(2). At the postconviction court's direction, Mr. Hanania refiled a single rule 3.850 motion curing that deficiency. The motion raised five claims of ineffective assistance of counsel and one claim of cumulative error, all of which were related in one way or another to his contention that the evidence against him was the product of an illegal search in violation of the Fourth Amendment.

The postconviction court summarily denied claim five and ordered the State to respond to the other claims. The State responded that claim one should be denied, that claims two and three should be dismissed with leave to amend, and that claim four required an evidentiary hearing.

Notwithstanding the State's response that Mr. Hanania should get leave to amend two claims and that an evidentiary hearing was required on a third, the postconviction court entered a final order summarily denying Mr. Hanania's motion in its entirety. Contrary to what the State said in its response, the postconviction court wrote that "the State argues that the Defendant's claims should be denied. The Court agrees." It reasoned that all of Mr. Hanania's claims boiled down to whether to believe Mr. Hanania's story concerning whether he consented to the search of the motel room or whether, instead, to believe the deputy's. The court concluded as follows: "Given the Defendant's past record and interest in the outcome of the case, the Court finds that it is not probable that a motion to suppress would have been granted or that the result of the Defendant's [probation violation] hearing would have been different." It attached to its order the transcript of Deputy Roberts' testimony at Mr. Hanania's probation violation hearing. This is Mr. Hanania's timely appeal.

We review the summary denial of a motion for postconviction relief de novo. Martin v. State, 205 So.3d 811, 812 (Fla. 2d DCA 2016). Our task is "to determine whether the claims are legally sufficient and whether they are conclusively refuted by the record." Watson v. State, 34 So.3d 806, 808 (Fla. 2d DCA 2010) (quoting Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008) ). "When a postconviction court summarily denies a defendant's motion without an evidentiary hearing, an appellate court 'must accept a defendant's factual allegations as true to the extent they are not refuted by the record.' " Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) ). To sufficiently plead a claim of ineffective assistance of counsel, the defendant must sufficiently allege facts showing (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In claim two of his postconviction motion, Mr. Hanania asserted in a generalized fashion that his counsel should have "challenged" the search of his motel room during his probation violation proceedings. However, as the State pointed out in its response, Mr. Hanania did not make any allegations regarding exactly what counsel should have done or how counsel should have done it. Based on some of the cases his motion cites, Mr. Hanania probably meant that counsel should have filed a motion to suppress or otherwise tried to exclude the evidence resulting from that search on the theory that Deputy Roberts lacked the authority to conduct a warrantless, nonconsensual search of his hotel room-which, as we discuss below, is also the focus of claim four. But as presented in claim two, this claim was merely conclusory and thus facially insufficient. See Knight v. State, 923 So.2d 387, 399 (Fla. 2005) (noting that the defendant's claim that counsel was ineffective for not challenging the State's experts was conclusory and insufficient when the defendant did not allege what particular challenge counsel should have made); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (stating that a defendant seeking postconviction relief "must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant"). Instead of summarily denying it, the postconviction court should have given Mr. Hanania an opportunity to amend this claim. See Fla. R. Crim. P. 3.850(f)(2). To the extent he can allege a legally sufficient claim based on counsel's failure to "challenge" the search that is independent of claim four, he is entitled to an opportunity to plead it. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007).

Because claim four is closely related to claim two, we discuss that claim next. In claim four, Mr. Hanania specifically alleged that counsel should have filed a motion to suppress the evidence obtained as a result of the search of the motel room. He asserted that the search was warrantless, that his status as a probationer did not authorize a warrantless search, and that he did not give consent to the search. Absent a justification to be found in Mr. Hanania's status as a probationer or his consent, of course, Deputy Roberts' search of the motel room would have required a showing of exigent circumstances. See Holloman v. State, 959 So.2d 403, 406 (Fla. 2d DCA 2007) ; see also Lambert v. State, 811 So.2d 805, 807 (Fla. 2d DCA 2002) (discussing ineffective assistance in the context of a violation hearing for failing to seek suppression of evidence of a new law violation that was later shown to be subject to suppression in the proceeding related to the new charges and citing State v. Scarlet, 800 So.2d 220, 222 (Fla. 2001), to conclude that the exclusionary rule does apply to probation revocation proceedings). The postconviction court summarily denied claim four, reasoning only that it would not have believed Mr. Hanania's testimony over Deputy Roberts' on the question of consent and that a motion to suppress would, for that reason, not have been granted. But Deputy Roberts' testimony was, at the very best, ambiguous on the matter of consent. A motion to suppress may very well have been meritorious.

Deputy Roberts acknowledged in his testimony at the probation violation hearing that he did not have any basis to think that Mr. Hanania had anything illegal in his possession when he began searching the motel room, all but admitting that he lacked even reasonable suspicion for a search without Mr. Hanania's consent. See United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (discussing whether a law enforcement officer, as opposed to a probation supervisor, would have needed only reasonable suspicion to conduct a search). And to the extent he searched the room based solely on the fact that Mr. Hanania was on probation, as Mr. Hanania contends, that presents a facially sufficient assertion that Mr. Hanania's counsel should have sought to suppress the fruits of the search as contrary to law. Although a probation supervisor may conduct a warrantless and suspicionless search of a probationer's person or residence, law enforcement officers who are not probation supervisors-like Deputy Roberts-do not enjoy the same freedom of action.

Grubbs v. State, 373 So.2d 905, 909 (Fla. 1979) ("The search of a probationer's person or residence by a probation supervisor without a warrant is, in our view, a reasonable search and absolutely necessary for the proper supervision of probationers. However, granting such general authority to law enforcement officials is not permissible under the search and seizure provisions of the Florida or United States Constitutions."); see also Gnann v. State, 662 So.2d 406, 407 (Fla. 2d DCA 1995) ("A motel room is considered a private dwelling [in which a person may claim Fourth Amendment protections] if the occupant is there legally, has paid or arranged to pay, and has not been asked to leave."). It is certainly possible that the terms of Mr. Hanania's probation required him to submit to warrantless searches by law enforcement officers, but we cannot tell that from our record. If such a term exists, the postconviction court's order summarily denying Mr. Hanania's motion did not include it as an attachment. See Fla. R. Crim. P. 3.850(f)(4), (5).

Thus, the facts provided by this record do not conclusively refute Mr. Hanania's allegations that his status as a probationer did not authorize Deputy Roberts' search of his motel room. If that allegation is true, the search would have comported otherwise with the Fourth Amendment only if an exception to the warrant requirement applied. And the only other exception that could have applied here would have been consent. See Gnann, 662 So.2d at 408 ("The five basic exceptions are: (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk." (citing Engle v. State, 391 So.2d 245 (Fla. 5th DCA 1980) ) ).

The postconviction court stated that Deputy Roberts testified that Mr. Hanania consented to the search. From there, its order appears to have concluded that the record conclusively refutes Mr. Hanania's allegation that he did not consent to the search. The postconviction court did not, however, accurately describe Deputy Roberts' testimony. To be sure, the deputy testified-three times, in fact-that he asked for consent to search the motel room. But he never testified that Mr. Hanania or anyone else actually gave him the consent he sought. There is nothing else in our record, like a police report or testimony from another witness, which would establish that Deputy Roberts had valid consent to search the motel room. And to the extent that Deputy Roberts searched the motel room based on his belief that Mr. Hanania's status as a probationer gave him the right to do so, as Mr. Hanania alleges, that would suggest that he did not search the room because he believed he had consent to do so. As a result, Mr. Hanania's allegation that he did not give consent to the search of his room is not conclusively refuted by the record.

We are aware, of course, that it was Mr. Hanania's postarrest statements to Deputy Roberts, and not the pipe and scale discovered during the search of the motel room, that were used to establish his possession of paraphernalia and that served as the basis for the revocation of his probation. We are further aware that "[a] probationer's admissions against interest may, as a matter of law, be sufficient to revoke his probation" even where, as is arguably the case here, there is no independent evidence of the corpus delicti of the crime. State ex rel. Russell v. McGlothin, 427 So.2d 280, 282 (Fla. 2d DCA 1983). To determine whether Mr. Hanania sufficiently alleged deficient performance and prejudice in a way that is not conclusively refuted by the record, then, we need to consider whether Mr. Hanania's statements could have been suppressed along with the physical evidence from the motel room.

Oral statements made after an unlawful search or arrest can be suppressed in the same manner as tangible evidence obtained during an unlawful search or arrest where those statements are properly considered fruits of the unlawful search. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; see also Talley v. State, 581 So.2d 635, 636 (Fla. 2d DCA 1991). Determining whether such statements are admissible requires consideration of three factors: "The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct ...." Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (citation omitted) (footnotes omitted); see also State v. Frierson, 926 So.2d 1139, 1143 (Fla. 2006). The burden of proving that the statements are admissible, of course, rests with the State. Brown, 422 U.S. at 604, 95 S.Ct. 2254.

Here, our limited postconviction record tells us next to nothing about the facts relevant to whether Mr. Hanania's postarrest statements were required to be suppressed. We know that Deputy Roberts testified that he spoke with Mr. Hanania outside of the motel room immediately after the search and also later at a sheriff's office substation. His testimony did not provide any details of the initial conversation at the motel, although he testified that sometime after that initial conversation, at the substation, Mr. Hanania admitted to having purchased the pipe the day before. On these limited facts, we are unable to say that the record conclusively shows that Mr. Hanania's statements would not have been suppressed. See, e.g., Brown, 422 U.S. at 604-05, 95 S.Ct. 2254 (holding that a statement made within two hours of arrest was inadmissible when there were no intervening circumstances); State v. Rogers, 427 So.2d 286, 288 (Fla. 1st DCA 1983) (holding that statements made the day after the arrest were inadmissible when they were made during the same period of custody and there were no intervening circumstances).

We are thus left with facially sufficient allegations by Mr. Hanania that his counsel's performance in the probation violation proceedings was deficient (he failed to file a motion to suppress that reasonable counsel would have filed) and that he suffered prejudice as a result (a reasonable probability that the motion would have been granted and that the only evidence establishing that he violated condition five of his probation would have been suppressed) that the record does not refute. As such, the postconviction court erred in summarily denying claim four of Mr. Hanania's motion. See, e.g., McDonald v. State, 35 So.3d 169, 170 (Fla. 2d DCA 2010) (reversing summary denial of ineffective assistance claim based on the failure to file a motion to suppress where "[a]bsent additional supporting facts or a finding that McDonald consented to a search," law enforcement lacked a constitutionally permissible basis for a search); Rodriguez v. State, 892 So.2d 510, 510-11 (Fla. 2d DCA 2004) (reversing summary denial of ineffective assistance claim where defendant alleged that counsel knew that he had not consented to an otherwise illegal search of his truck).

Turning to claim three, Mr. Hanania alleged that Ms. Leighton would have testified that he did not consent to the search of the motel room and thus asserted that counsel provided ineffective assistance by not calling Ms. Leighton to testify. In doing so, Mr. Hanania sufficiently identified the witness, stated what her testimony would have been, explained how her testimony would have affected the outcome of the proceedings, and alleged that the witness was available to testify. See Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004). It is not clear from his motion, however, whether Mr. Hanania is alleging that Ms. Leighton's testimony should have been presented at a hearing on a motion to suppress that never occurred because no such motion was made or at the probation violation hearing that did, in fact, occur. If the former, the claim is entirely subsumed by what the postconviction court must consider within claim four-Ms. Leighton's alleged testimony that Mr. Hanania did not consent to a search is simply evidence of both deficient performance and prejudice in the question of whether a motion to suppress should have been filed or would have been granted. If the latter, the claim is not facially sufficient because it is entirely conclusory in that it fails to provide any facts to show that the failure to offer the testimony at the violation hearing (where both the results of the search and the postarrest statements were introduced) constituted either deficient performance or prejudice. See Knight, 923 So.2d at 399 ; Kennedy, 547 So.2d at 913. The postconviction court should have offered Mr. Hanania an opportunity to clarify this claim in regard to which hearing the testimony would relate to and the grounds upon which it rests.

Last, in claim six, Mr. Hanania asserted cumulative error. "Based on our reversal and remand on some of the claims, we reverse the denial of this claim and remand for the postconviction court to consider it after the court has resolved the remaining claims." Hempstead v. State, 980 So.2d 1254, 1265 (Fla. 2d DCA 2008).

In sum, we affirm the denial of claims one and five, reverse the denial of claims two, three, four, and six, and remand for further proceedings. The postconviction court shall allow Mr. Hanania an opportunity to amend claims two and six and shall then either attach record evidence conclusively refuting Mr. Hanania's remaining claims or hold an evidentiary hearing. See Richardson v. State, 617 So.2d 801, 803 (Fla. 2d DCA 1993).

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Witness credibility is not regarded as an appropriate basis for the summary denial of a postconviction motion. See Coley v. State, 74 So.3d 184, 185 (Fla. 2d DCA 2011) ("[C]redibility may be called into question based on conflict with testimony adduced at trial[;] such conflict is necessarily an evidentiary matter that must be weighed after a hearing and is not proper grounds for denial at the summary stage of the proceeding."). Mr. Hanania has not raised that aspect of the postconviction court's order here, however, and so we do not address it further or reverse on that basis. See I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007).

      We have recognized that Grubbs was superseded in part by the United States Supreme Court's ruling in Knights. See Bamberg v. State, 953 So.2d 649, 654 (Fla. 2d DCA 2007). However, "[i]f law enforcement officers lack a reasonable suspicion to search," which Deputy Roberts admitted was the case here, "then Knights is inapplicable." Id. at 654 n.4.

      In this regard, we recognize that some of the factual allegations in the postconviction motion are refuted by the record. As explained in the text, however, when we take the asserted facts that are not refuted by the record as true, as we must at this stage of the proceedings, a summary denial was improper. Whether the unrefuted factual allegations of the motion might be refuted, by other portions of the record not attached to the order presently on appeal or at an evidentiary hearing, is not a matter that is before us.


author: Jay, J.

text:
    Gregory RAWSON, Former Husband, Appellant, v. Lisa L. RAWSON, Former Wife, Appellee.
    No. 1D17-1413
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.
    William S. Graessle and Jonathan Graessle of William S. Graessle, P.A., Jacksonville, for Appellee.
   Jay, J.

Gregory Rawson, the former husband, and Lisa L. Rawson, the former wife, appeal and cross-appeal, respectively, the trial court's Final Judgment of Dissolution of Marriage. Having carefully considered the unique and complicated facts of this case and the extensive arguments of the parties-as well as having given due deference to the trial court's exercise of its discretion toward the matters before it-we have concluded that all points raised by the former husband on appeal must be affirmed, but three of the four points raised by the former wife on cross-appeal call for reversal.

I

The parties had been married just over twenty-eight years when the former husband filed his Petition for Dissolution of Marriage and Other Relief on November 9, 2015. During those twenty-eight years, the parties moved frequently and purchased several parcels of property, some of which contained the family's homes and others of which were designated as rentals. This peripatetic lifestyle was due in large part to the former wife's having served, off and on for twenty years, as a commissioned officer in the United States Navy.

There were four children born of the marriage with only one minor child remaining at the time of the final hearing-a son, who turned eighteen on October 5, 2017. Over the years, as the family grew, the former wife was deployed to both domestic and foreign ports of call. For the most part, while based in the United States, the children remained with the former wife and were cared for by her retired parents. Often, the former husband followed along with his family, but, just as often, he did not-preferring to remain behind in the city where he was at the time employed.

Upon the former wife's retirement from the Navy, the parties moved to Gainesville, Florida, where the former wife took a job with the University of Florida working in Human Resources in the Department of Engineering. In addition, she worked at the recreation center as a swim instructor. However, she quit her job with the university and moved back to Memphis, Tennessee, where the parties owned property and a home, and took a position with a company as a business analyst, while the former husband stayed in Gainesville with the youngest child. From there, he worked remotely for his own Tennessee employer.

From that point forward, the parties changed employment frequently. In 2013, the entire family moved to Gulf Breeze, Florida. Not long after, the former husband moved back to Memphis and a new job, while the former wife remained in Gulf Breeze. For a time, the former wife also moved to Memphis to work for the University of Tennessee Medical Group ("UTMG"), where the former husband was doing "consulting" work, while the parties' youngest son remained in Florida with his grandfather. But, when UTMG began to downsize, both parties were laid off. The former wife returned to Gulf Breeze, while the former husband took up residence in their Arlington, Virginia condominium.

At the final hearing on the former husband's petition and the former wife's counter-petition, the trial court heard testimony from each party, as well as from their adult daughter, a certified public accountant, career and employment rehabilitation consultants, and a neuropsychologist who had examined the former wife. While the divorce proceedings were pending, the former husband was arrested for domestic violence/battery against the former wife. A domestic violence injunction against the former husband was still in effect at the time of the hearing.

The former wife testified that the former husband's threatening behavior against her began when he was served with her Petition for Dissolution of Marriage. She testified that he told her that she would lose everything and go into bankruptcy, while he would be "in Hawaii with his new lover." Additionally, he threatened that if she ever tried "to come after him for alimony or child support, he would kill [her] and make it look like a suicide because [she is] so crazy everyone would believe him." She also testified that the former husband had not paid child support or alimony since June 2015 and was paying only the mortgage on their house in Tennessee, while the former wife was paying for all the other properties.

When the former wife resigned her commission with the Navy in 2010, she did so with an 80% disability rating according to the Department of Veterans Affairs. Her financial affidavit reflected that at the time of the final hearing, she worked two days a week at the YMCA, earning $ 120 per month. In addition, she received a monthly disability check for $ 1900, as well as her Navy retirement pay of $ 3977. She was in debt to her father, who had loaned her $ 87,500 for the home in which she was then living, as well as an additional $ 100,000 for her legal expenses. The former wife testified that she hoped to begin repaying her father $ 1000 per month when she was able. Her financial affidavit showed her monthly income was $ 5,165, while her monthly expenses totaled $ 11,670.

Much of the former wife's monthly expenses was attributable to the mortgage payments on properties she and the former husband owned during the marriage. They owned rental property in Sanford, Florida, and in Gulf Breeze. As noted earlier, besides the family home in Gulf Breeze, the parties owned the condominium in Arlington, Virginia, as well as a home in Lakeland, Tennessee. The parties stipulated to the values of those properties with the exception of what was also intended to be rental property for boarding horses, located on Brunswick Road in Arlington, Tennessee. The former wife had negotiated a twelve-month lease with an option for a second year on the latter property, with the lessees agreeing to make repairs and get the property back in shape, but the former husband blocked the deal on the day it was to be signed by sending out the police based on his accusation that the wife had no business being there, as it was a personal farm in his name only.

The former wife testified that once the divorce was final and her youngest child was out of high school, she would attempt to find a job in human resources that would accommodate her disabilities. As a long-term plan, she suggested she could also possibly put a house on the Brunswick Road property and run a horse boarding business-boarding and feeding the horses, and working with the owners-which she described as a fairly low-stress career and something she could do to support herself.

As for the former husband, on the day that he was first served with the former wife's initial petition for dissolution-which she later voluntarily dismissed-he took a full distribution from his 401(k) plan and drained the former wife's retirement account along with his own. He also cashed out their joint checking account for the sum of $ 3500. The 401(k) plan had $ 40,000 in it and was earmarked for their minor son's housing costs once he entered college.

An accountant testified that he had advised the parties to file a joint return for 2015, but the former husband filed a separate return claiming head-of-household status and the youngest child as a dependent. Unaware of this fact, the former wife did likewise-since the youngest child lived with her-which, according to the accountant, would more likely than not raise a red flag with the Internal Revenue Service. The 2015 tax returns were admitted into evidence. They revealed that the former husband claimed losses and took deductions that should have been shared equally between the two parties. In addition, the former husband took full advantage of an overpayment that resulted from their 2014 joint return by applying it to his own 2015 tax return. Significantly, the accountant testified that the present value of the wife's military pension was $ 728,645.

II

After the hearing, the trial court took on the sizable task of sifting through and scrutinizing the voluminous evidence. In its lengthy final judgment, after largely discrediting the former husband's testimony and weighing in the balance his dissipation of assets, the court crafted a division of the marital properties and other assets between the parties; considered each of the factors set forth in section 61.13(a)-(t), Florida Statutes, concerning parental responsibility and timesharing of the minor child-finding that most of the factors favored the former wife; and made equally detailed findings on the factors found in section 61.08(a)-(j), Florida Statutes, concerning an award of alimony. The trial court found that the former wife had presented "credible uncontested expert testimony" as to her lack of employability and as to the former husband's "earning capacity of $ 130,000." Ultimately, the court collated all of the values in its equitable distribution scheme and gave the former husband $ 787,956 in assets-which included a 45% share of the former wife's military pension-and, to the former wife, $ 783,883 in assets. Accordingly, it ordered the former husband to make an equalization payment of $ 4073 to the former wife.

Notwithstanding its division of assets, the trial court went on to fashion a lump sum alimony award to the former wife by giving her the former husband's 45% share of her military retirement benefits and repurposing it as lump sum alimony. In doing so, the trial court reasoned:

After the determination of the equitable distribution, the Court has determined that a judgment for alimony shall be made to the Wife. The Wife is entitled to permanent alimony from the husband. No other form of alimony is appropriate. After the Court takes 45% of the Wife's pension, the Court finds that the Wife has actual need for support of $ 7,294 per month. After the court credits the Husband for 45% if [sic] the pension, the court finds the Husband has the ability to pay support of $ 3,066 per month based upon an imputation of income and pursuant to the assets distributed to the Husband. Therefore, the Husband's ability to pay only cures a portion of the Wife's need. As permitted and specifically contemplated by Florida Statutes 61.075(10), the court finds that to do equity between the parties, the Wife should retain the Husband's 45% share of the military retirement as and for permanent alimony in a lump sum. The Court has significant concerns about the enforceability of its alimony award. Such lump sum will facilitate and effectuate the equitable provision of such.

As for child support, the trial court ordered that "[c]hild support shall be paid by the Husband to the Wife pursuant to the Child Support Guidelines based upon the imputation of income to the Husband." However, no amount of support was stated. No provision was made for retroactive child support, as prayed for by the former wife in her counter-petition.

Lastly, the trial court succinctly ordered that "[e]ach party shall be responsible for their own attorney fees and costs."

III

On the main appeal, we address only the former husband's argument that the trial court abused its discretion in awarding to the former wife the former husband's marital share of her military retirement as lump sum alimony.

While section 61.075(1), Florida Statutes, instructs the trial court to "begin with the premise that the distribution [of marital assets] should be equal," it goes on to qualify that goal by permitting an "unequal distribution" based on the relevant factors enumerated in paragraphs (a)-(j) of the statute, most relevant here being the one found in paragraph (j): "Any other factors necessary to do equity and justice between the parties." (Emphasis added.) In like manner, section 61.075(10), Florida Statutes, expressly states that the trial court, in order "[t]o do equity between the parties" and "in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, [may] order a monetary payment in a lump sum ...."

We review an award of lump sum alimony for an abuse of discretion. Canakaris v. Canakaris , 382 So.2d 1197, 1202 (Fla. 1980). "Lump sum alimony for support requires a showing of need on the part of the recipient spouse, an ability to pay on the part of the payor spouse, and a justification for the payment." Sellers v. Sellers , 68 So.3d 348, 351 (Fla. 1st DCA 2011) (citing Jackson v. Jackson , 507 So.2d 1160, 1163 (Fla. 1st DCA 1987) ).

A "justification" is a " 'good reason' or useful purpose which can sustain [an] award." Rosen v. Rosen , 386 So.2d 1268, 1271 (Fla. 3d DCA 1980) (finding that "the subject matter of the award provide[d] its own justification" where the trial court awarded the wife the marital home as lump sum alimony and the parties had been living there for several years with their children); see Rosario v. Rosario , 945 So.2d 629, 632 (Fla. 4th DCA 2006) ("[T]he trial court must find some special necessity for lump-sum payment of alimony" and, if support is needed, there must exist unusual circumstances which would require a non-modifiable award of support.").

Id. The trial court must make findings justifying such an award either on the record or in the final order. Id. A pension may be considered as a source of payment of permanent periodic alimony instead of being equitably divided. Diffenderfer v. Diffenderfer , 491 So.2d 265, 267 (Fla. 1986).

Here, the former husband claims the trial court failed to make sufficient findings of both a "special necessity" and "unusual circumstances" in awarding the wife his marital share of her military pension as lump sum alimony. He relies primarily on the decisions in Rosario v. Rosario , 945 So.2d 629 (Fla. 4th DCA 2006), Porzio v. Porzio , 760 So.2d 1075 (Fla. 5th DCA 2000), and Glazner v. Glazner , 693 So.2d 650 (Fla. 5th DCA 1997), and cites to Jessee v. Jessee , 839 So.2d 842 (Fla. 3d DCA 2003), for its holding that the finding of "special circumstances" must be something above and beyond the justifications for an award of permanent periodic alimony.

Id. at 843. We find each of those decisions to be distinguishable.

In Rosario , the Fourth District reversed the award of the marital home to the wife as lump sum alimony not only because the trial court made no special findings as to why it was appropriate, other than to find that the fourteen-year marriage fell into the "gray area" for purposes of determining alimony, but also because the end result was that the lump sum award reduced the husband's net worth from $ 120,000 to $ 15,000, thereby "endangering his economic status." 945 So.2d at 632. Here, the trial court made numerous "special findings" and did not significantly erode the former husband's equitable award or his economic status.

In Porzio , the award of lump sum alimony was reversed because the trial court failed to include any "special" findings to justify the award. In addition, the Fifth District's review was hampered by the lack of a trial transcript. 760 So.2d at 1077. Again, in the present case, the court made significant findings and the record contained the complete hearing transcript. Our review of the instant judgment, therefore, was not hindered.

In Glazner , the award of lump sum alimony was reversed because the Fifth District found the wife was not entitled to either permanent periodic or rehabilitative alimony, and the award did not serve to equitably distribute a marital asset. 693 So.2d at 652. No such conclusions can be made on the basis of the instant record in the face of evidence establishing that the former wife has an 80% disability rating and is limited in her ability to work.

Lastly, in Jessee , the Third District reversed the award to the wife of the marital home. It said, "The sole justification given for the award of the lump sum alimony was 'the Husband's intentional attempt to avoid financial obligations by intentionally putting himself in a position to be terminated.' " 839 So.2d at 843. But the Third District found that that particular fact had already been "taken into consideration in imputing income to the former husband and in awarding permanent periodic alimony to the former wife." Id. Accordingly, it ruled that "[i]t cannot additionally support the award of lump sum alimony ...." Id. We conclude there was no redundancy here in the trial court's findings of facts.

Rather, we are firmly of the view that the instant case presented its own unique equitable challenges to the trial court's exercise of its discretion. Therefore, we do not feel compelled by the above-cited decisions to apply their logic as authority for reversal. Here, the trial court did impute income to the husband, which, as in Jessee , reflected the court's conclusion that the former husband was intentionally avoiding employment. But, the trial court also found that the former husband's dissipation of the parties' assets and his withholding of the rental income from the former wife-as well as his threat that he would rather kill the former wife than support her-underscored the court's "significant concerns about the enforceability of its alimony award." Those findings were sufficient to show both a "special necessity" and "unusual circumstances" to support awarding the former wife the husband's marital share of her military pension as lump sum alimony. Furthermore, the former wife was left with significant property expenses as a result of the final judgment.

This case exemplifies an instance when the trial court rightly concluded that "equal" would not be equitable, and it commendably performed its equitable functions while not abandoning its legal responsibilities under chapter 61. Based on these considerations, we hold the trial court did not abuse its discretion in ordering that the wife retain the husband's 45% interest in her military pension as permanent lump sum alimony. See Goodman v. Goodman , 666 So.2d 262, 263 (Fla. 4th DCA 1996) (considering the disabled husband's early retirement pension as a source of payment of permanent periodic alimony, rather than subject to equitable division, and awarding the pension to the husband as lump-sum alimony, was not an abuse of discretion on the trial court's part; the wife was relieved of the obligation of supporting the former husband from long-term marriage).

IV

We turn now to the points raised by the former wife in her cross-appeal of the final judgment. As her first point, the former wife argues that the trial court, in awarding child support, erred as a matter of law in failing to set a monthly support amount. The former husband correctly concedes error on this point, as the award is mandatory. Accordingly, on remand, the trial court is ordered to calculate the amount of child support according to the child support guidelines as set forth in section 61.30, Florida Statutes.

In her second point on cross-appeal, the former wife claims the trial court abused its discretion in failing to award retroactive child support pursuant to section 61.30(17), Florida Statutes. Again, the former husband appropriately concedes error. Although the parties dispute the date from which the retroactive support should begin-the former wife claims it should start from the date of separation in June 2015, while the former husband argues the correct date is November 9, 2015, the date of filing of the petition for dissolution of marriage-it has been held that "[a] trial court abuses its discretion when it fails to award retroactive child support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay." Leventhal v. Leventhal , 885 So.2d 919, 920 (Fla. 3d DCA 2004). Accordingly, on remand the trial court is directed to award retroactive child support from the date of filing.

The last point we consider is the former wife's fourth point on cross-appeal, in which she asserts the trial court erred in denying her request for the former husband to pay her attorney's fees. Without making any findings as to the former wife's need for fees and the former husband's ability to pay them, the trial court ruled only that both parties were responsible for their own attorney's fees. In simply denying fees without further explanation, the trial court erred. Section 61.16(1), Florida Statutes, states in pertinent part that the trial court "may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees ...." But here, the trial court's ruling leaves us guessing as to whether it followed the statute, and, thus, denies us the ability to review the correctness of its decision. In Rosen v. Rosen , 696 So.2d 697 (Fla. 1997), the Florida Supreme Court found "that section 61.16 governs the standard to be applied in determining an award of attorney's fees in dissolution of marriage, support, and child custody cases." Id. at 701. To that end, it determined that under the "scheme" of section 61.16,

the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.

Id. at 700. Inherent in weighing these equitable factors is the necessity for the trial court to make express findings. Nassirou v. Borba , 236 So.3d 1180, 1181-82 (Fla. 1st DCA 2018) (citing Sumlar v. Sumlar , 827 So.2d 1079, 1084 (Fla. 1st DCA 2002) ); see also Powers v. Powers , 193 So.3d 1047, 1048 (Fla. 2d DCA 2016) ("A circuit court cannot deny attorneys' fees and costs under section 61.16 without making any findings as to the parties' relative financial needs and abilities.") Accordingly, we reverse this point and remand for the trial court to reconsider the former wife's motion for attorney's fees under the guidance of Rosen , and to make appropriate findings before making its ruling.

V

For all of the reasons expressed, the Final Judgment of Dissolution of Marriage is affirmed in part, reversed, in part, and remanded for further proceedings consistent with this opinion.

AFFIRMED , in part, REVERSED , in part, and REMANDED with instructions.

Wolf and Winokur, JJ., concur.

      We affirm without further discussion Points II, III, and IV raised on appeal, and Point III raised on cross-appeal.

      Cf. Horne v. Horne , 711 So.2d 1310, 1313 (Fla. 1st DCA 1998) (Wolf, J., dissenting) (observing that neither the language of chapter 61 nor the dictates of our supreme court mandate the distribution of assets "be 'equal' rather than 'equitable' ").

      This point, as were all her points, was preserved for appeal by virtue of the same arguments having been raised in the former wife's motion for rehearing.


author: Wetherell, J.

text:
    Jimmy FOREHAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1970
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Ashley B. Moody, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   Wetherell, J.

In this certiorari proceeding, the petitioner, Jimmy Forehand, seeks review of the circuit court order dismissing his appeal of a county court criminal judgment and sentence. Although we are mindful that "[o]ur job is not to decide whether, facing the same circumstances, we too would dismiss," McBride v. Vansandt , 201 So.3d 835, 837 (Fla. 1st DCA 2016), we agree with Forehand that the circuit court departed from the essential requirements of law when it dismissed his appeal. Accordingly, we grant Forehand's petition for writ of certiorari and quash the dismissal order.

Forehand was convicted of two misdemeanors in the county court, and he appealed the resulting judgment and sentence to the circuit court. After Forehand did not file his initial brief within the time prescribed by the appellate rules, see Fla. R. App. P. 9.140(g)(1) (requiring the initial brief to be served within 30 days of transmission of the record), the circuit court ordered Forehand to file the brief within 30 days and warned him that the appeal would be dismissed if he did not comply with the order.

On the thirtieth day after the order was entered, Forehand's attorney filed a motion for extension of time in which she explained that the trial transcript was not yet complete because it had taken Forehand time to obtain the funds necessary to pay for the transcript. The circuit court denied the motion for extension of time and dismissed the appeal, citing Forehand's delay in ordering the transcript and his failure to timely advise the court that there were problems with the record.

Forehand appealed the dismissal order to this court, but because the order was entered by the circuit court in its appellate capacity, we converted the appeal to a certiorari proceeding and directed Forehand to file a petition for writ of certiorari. See Fla. R. App. 9.030(b)(2)(B) ("The certiorari jurisdiction of the district courts may be sought to review final orders of circuit courts acting in their review capacity."); Kaloyios v. Regal Homes of Central Florida, Inc. , 967 So.2d 1035, 1036 (Fla. 5th DCA 2007) ("An order dismissing [a circuit court] appeal is reviewable by certiorari.").

The scope of our review in this proceeding is extremely narrow, and we can only grant relief if the circuit court failed to afford procedural due process or departed from the essential requirements of law. Allstate Ins. Co. v. Kaklamanos , 843 So.2d 885, 889 (Fla. 2003). A circuit court departs from the essential requirements of law when it violates a clearly established principle of law resulting in a miscarriage of justice. Id. (citing Ivey v. Allstate Ins. Co. , 774 So.2d 679, 682 (Fla. 2000) ).

Forehand's petition argues that the circuit court departed from the essential requirements of law when it dismissed his appeal because dismissal is an extreme sanction that is not warranted under the circumstances of this case. We agree.

It is well-established that dismissal of an appeal is an extreme sanction that is reserved for the most flagrant violations of the appellate rules. Lindsey v. King , 894 So.2d 1058, 1059 (Fla. 1st DCA 2005). The appellant's failure to timely file an initial brief does not justify the dismissal of an appeal unless the appellant has been warned that this consequence may flow from a late filing. Id. at 1060 (quoting United Auto Ins. Co. v. Total Rehab & Med. Ctr. , 870 So.2d 866, 869 (Fla. 3d DCA 2004) ). However, even when the appellant has been duly warned, the district courts have routinely quashed dismissal orders when the appellant's failure to file the initial brief does not stem from extreme, willful misconduct, or an intentional disregard of court orders or the appellate rules. See , e.g. , Untied Auto Ins. Co. v. County Line Chiropractic Ctr. , 8 So.3d 1258, 1260 (Fla. 4th DCA 2009) ; Kaloyios , 967 So.2d at 1038 ; Gillespie v. City of Destin , 946 So.2d 1195, 1196 (Fla. 1st DCA 2006) ; Hastings v. State , 640 So.2d 115 (Fla. 2d DCA 1994).

Here, although Forehand was warned that his failure to file his initial brief within 30 days would result in the dismissal of his appeal, Forehand did not disregard the order and instead timely filed a motion for extension of time explaining why he was not able to file a brief within the deadline set by the court. Cf. Swicegood v. Dep't of Transp. , 394 So.2d 1111, 1112 (Fla. 1st DCA 1981) (holding that dismissal was proper because counsel had failed to file a brief, failed to request an extension of time, and failed to explain his conduct in response to the court's order to show cause). The reason for the extension requested by Forehand-and the requested extension itself-was not unreasonable under the circumstances, and thus, the circuit court's denial of the motion for extension of time and the resulting dismissal of the appeal constituted a departure from the essential requirements of law. See Paul Revere Life Ins. Co. v. Kahn , 873 So.2d 595 (Fla. 3d DCA 2004) (quashing order that only granted extension of time to file initial brief to the date that the trial transcript was to be completed because "[i]t is fundamentally unfair to require a party to prepare a brief without a transcript").

That said, it would have been better practice for Forehand's attorney to bring the issues with the trial transcript to the circuit court's attention sooner than she did. However, despite the attorney's shortcomings, we are loath to allow the "sins of the attorney [to be] visited on the client." Lindsey , 894 So.2d at 1059 (quoting Hastings v. State , 640 So.2d 115, 116 (Fla. 2d DCA 1994) ); see also Gillespie , 946 So.2d at 1199 (explaining that the "[d]ismissal of an appeal for the untimely filing of a brief serves only to penalize the client for the shortcomings of counsel, which can better be addressed by the use of other sanctions such as fines, costs, reprimand, and contempt"); Gentry v. Gentry , 463 So.2d 511, 512 (Fla. 1st DCA 1985) (same). This is particularly true in a criminal case such as this where the effect of the dismissal was to deprive Forehand of his right to obtain appellate review of his conviction and there is no apparent prejudice to the State in allowing the appeal to proceed. See Altman v. State , 41 So.3d 1030, 1035 (Fla. 2d DCA 2010).

Accordingly, we quash the order dismissing Forehand's appeal and remand the case to the circuit court for further proceedings.

PETITION GRANTED ; ORDER QUASHED .

Wolf and Lewis, JJ., concur.

      The attorney representing Forehand in the circuit court is not the same attorney representing him in this court.

      Forehand did not seek rehearing of the dismissal order before filing the appeal even though the trial transcript was filed with the circuit court within the 15-day timeframe for filing a motion for rehearing. It is quite possible that the learned circuit court judge would have reconsidered her decision to deny the motion for extension of time and dismiss the appeal if she had been informed that the trial transcript had been filed.

      For example, as soon as the record was filed without the trial transcript (or no later than 30 days thereafter when the initial brief was due), the attorney should have filed a motion for extension of time to file the brief. Of course, the attorney might not have needed to request an extension of time if she had designated the trial transcript for transcription when she filed the notice of appeal as the appellate rules contemplate, see Fla. R. App. P. 9.140(f)(2), because had that been done, the record would not have been transmitted-and the time for filing the initial brief would not have commenced-until the trial transcript was filed, see Fla. R. App. P. 9.140(f)(1).


author: Per Curiam.

text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC, Appellant, v. Sylvia JOHNSON, Appellee.
    No. 1D18-863
    District Court of Appeal of Florida, First District.
    February 5, 2019
    Ethan J. Loeb, Jon P. Tasso, and Michael J. Labbee of Smolker, Bartlett, Loeb, Hinds & Thompson, P.A., Tampa, for Appellant.
    Michael J. Tomkiewicz, Gino Luzietti, and Ashley H. Lukis of GrayRobinson, P.A., Tallahassee; James W. Anderson and Jeffrey H. Savlov of Savlov & Anderson, P.A., Tallahassee, for Appellee.
   Per Curiam.

Florida Gas Transmission ("FGT") appeals a final order awarding attorney's fees related to a protracted eminent domain action. FGT argues the trial court erred in awarding attorney's fees pursuant to subsection (2), rather than subsection (1), of section 73.092, Florida Statutes (2018). We agree and reverse.

FGT is a natural gas transmission pipeline company which sought to construct and operate a pipeline on Johnson's property. On or about January 13, 2010, FGT submitted a written offer to Johnson, offering $12,127.80 as full compensation for the easement it required for construction of a pipeline. Johnson rejected the offer, and FGT filed a Petition in Eminent Domain on April 5, 2010. On June 9, 2010, the parties filed a Joint Motion for Entry of a Stipulated Order of Taking, which reduced the scope and size of the taking from what was originally anticipated. It was not until August 15, 2017, that the parties filed a Joint Motion for Entry of Proposed Final Judgment in which FGT ultimately agreed to pay Johnson $420,000.00. Thereafter, Johnson filed a Motion to Tax Fees and Costs. Johnson argued FGT's initial offer of $12,127.80 was invalid as the scope of the easement changed following the offer, and that the attorney's fee award under subsection (1) of the statute was unconstitutionally low. Ultimately, the trial court awarded Johnson hourly attorney's fees pursuant to subsection (2) of the statute in the amount of $611,441.50.

On appeal, FGT argues the trial court erred by calculating attorney's fees pursuant to section 73.092(2), the lodestar method, rather than section 73.092(1), the benefits achieved method, as there is no valid offer. Section 73.092(1) provides, in pertinent part:

(1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client.
(a) As used in this section, the term "benefits" means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired ....

Under subsection (1), once the benefits achieved is determined, a formula is applied to determine the attorney's fees owed. § 73.092(1)(c), Fla. Stat. Under subsection (2), a defendant may be awarded attorney's fees "incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings" using the lodestar method. § 73.092(2), Fla. Stat.

Based on the plain reading of the statute, the benefits achieved method must be applied where there is a written offer and subsequent final judgment. However, section 73.092 does not define what constitutes a "written offer." Here, Johnson argues the initial offer submitted by FGT is not a valid offer because there was a change in the scope of the easement after the offer was made. However, we are constrained by this Court's decision in JEA v. Williams , 978 So.2d 842 (Fla. 1st DCA 2008), and, thus, must disagree.

In JEA , JEA argued attorney's fees should be based on the difference between the third offer and the settlement obtained, claiming the first offer "sought to acquire a different interest on the original property and less total property than the final taking." Id. at 845. This Court affirmed the lower court's order holding the first letter offering to purchase an easement was a written offer in pre-suit eminent domain proceedings for the purposes of calculating attorney's fees. Id. at 846. This Court held:

[S]uch a construction is not supported by the text of section 73.092 and judicial interpretation of the statute is not appropriate where the language of the statute is clear and unambiguous. Section 73.092 states that attorney's fees are computed based on the difference between the last written offer before the landowner has hired counsel and the final judgment. As such, this Court is bound to give effect to the statute's clear and unambiguous language.

Id. at 845-46 (internal citations omitted). Thus, based on JEA , this Court finds the offer in the instant case was valid at the time it was made, and a subsequent change to the scope of the easement did not invalidate the offer.

As the initial offer was valid for the purposes of calculating attorney's fees under the benefits achieved method, the trial court erred in applying the lodestar method set forth in subsection (2) of the statute. On remand, the trial court should calculate the attorney's fees owed utilizing the benefits achieved method. However, should the trial court find on remand additional attorney's fees were incurred by Johnson in supplemental proceedings, additional fees may be awarded for the time spent related to those issues. Additional fees arising from supplemental proceedings should be awarded pursuant to the lodestar method. We do not address the issue of whether application of the benefits achieved method is unconstitutional, as applied, as the issue was not ruled on by the trial court and, thus, is not before us.

We REVERSE and REMAND for further proceedings consistent with this opinion.

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