text:
    William BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1881
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
    ON MOTION FOR CLARIFICATION
   SCALES, J.

Appellant William Baker has filed a motion for clarification. We grant the motion, withdraw the previous opinion, and substitute the following in its place.

William Baker appeals his convictions after a jury found him guilty of violating sections 847.0135(3)(b) and (4)(b) of the Florida Statutes. These laws, respectively, prohibit the use of a computer service or device to solicit the parent of a child to consent to the child engaging in an unlawful sexual activity; and prohibit travel to meet the child for an unlawful sexual activity facilitated by the parent after solicitation. Baker makes several arguments on appeal. We determine that only Baker's double jeopardy argument has merit and, based on the Florida Supreme Court's recent decision in Lee v. State, 258 So.3d 1297 (Fla. 2018), we vacate Baker's solicitation conviction and remand to the trial court to resentence Baker on the travel after solicitation charge.

I. Relevant Factual and Procedural Background

As part of an undercover investigation, agents of The Department of Homeland Security (DHS) placed a Florida Keys Craigslist ad that read as follows:

Caution just met up with fun Key West mom who had an ad called taboo family playtime and she is trying to find a guy to hook up with her 13-year-old daughter. I thought it was RP and the girl would be legal but she showed up and is definitely underage. I want to put it out there so no one would get in trouble. The ad was flagged and is gone now and all I know about her is her name is Vicky and her daughter's name is Danielle and Vicky uses the e-mail address sassyprincess305@google.

On March 1, 2016, Baker sent an email to the address in the ad, prompting, over the ensuing two days, an exchange of sexually explicit emails between Baker and an undercover DHS agent posing as the mother of a thirteen-year old child. The emails established that Baker was responding to the undercover agent's offering of sex with a minor.

On March 3, 2016, the email exchange culminated with Baker and the undercover agent setting up a meeting at a Key West Burger King restaurant for Baker to meet the undercover agent and her "daughter." At approximately 1 p.m. on March 3, 2016, Baker drove into the Burger King parking lot where officers from the Key West Police Department arrested him. Ultimately, by a Second Amended Information, the State charged Baker with violating section 847.0135(4)(b), the travel after solicitation charge, a second degree felony; and section 847.0135(3)(b), the solicitation charge, a third degree felony.

The jury convicted Baker of both counts and the trial court sentenced Baker to five years for the solicitation offense (Count 2) and eight years for the travel after solicitation offense (Count 1). For the traveling offense, the trial court also imposed two years of community control followed by five years of probation. The trial court also ordered sex offender designation.

Baker timely appealed the judgment against him. As mentioned earlier, only the double jeopardy challenge is meritorious.

II. Analysis

In State v. Shelley, 176 So.3d 914, 919 (Fla. 2015), the Florida Supreme Court determined that the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, and therefore, double jeopardy prohibits separate convictions based on the same solicitation conduct. In order for a defendant to be punished for both violations, the state must plead and prove that the solicitation forming the basis of the travel after solicitation charge is separate and distinct from the solicitation forming the basis of the solicitation charge. Id.

In this case, the record plainly indicates that on March 2nd, Baker, through extensive emails with the DHS undercover agent, used a computer device to solicit and entice a person whom he believed to be the parent of a child to participate in sexual conduct specifically criminalized in section 847.0135(3)(b). The record also establishes that, on the following day, March 3rd, Baker and the undercover agent again exchanged emails establishing solicitation, and that Baker then traveled to meet the child with whom Baker would engage in unlawful sexual activity in violation of section 847.0135(4)(b).

Although the record establishes the separate instances of solicitation underpinning the two charges, the Florida Supreme Court recently held that, when determining whether separate acts of solicitation support the two convictions, a reviewing court's inquiry is limited to the charging document - here, the Second Amended Information. Lee, 258 So.3d at 1303-04. The Supreme Court in Lee plainly stated: "[T]to determine whether multiple convictions of solicitation of a minor ... and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document - not the entire evidentiary record." Id. at 1304. While the Second Amended Information charging Baker with both offenses states two separate dates - March 2nd as the date of the solicitation offense and March 3rd as the date of the travel after solicitation offense - it is not clear from this charging document that the solicitation forming the basis of each charge is a separate and distinct act of solicitation.

Indeed, the charging document in Lee similarly identifies the solicitation occurring "between December 22, 2013, and January 1, 2014," while the traveling offense occurred on a separate date "on or about January 2, 2014." Id. Notwithstanding the separate dates alleged in the separate counts, the Lee Court determined that the information in that case had not made clear that the State relied on separate conduct to charge the two offenses. Id. We note that neither the State, in charging Baker, nor the trial court in entering the judgment against Baker, had the benefit of Lee. We do have the benefit of Lee, and therefore, are compelled to vacate Baker's conviction for solicitation and remand the case to the trial court for the resentencing of Baker on the travel after solicitation charge.

To be clear, under Lee, if the State wishes to charge a defendant for separate offenses under sections 847.0135(3) and (4), in order to avoid a double jeopardy violation, the charging document must be clear, on its face, that the conduct constituting solicitation for one offense is separate and distinct from the conduct constituting solicitation under the other offense.

Affirmed in part; reversed in part, with instructions.

      Baker also contended that: (i) he was entitled to a judgment of acquittal because the State failed to overcome what he presented as a reasonable hypothesis of innocence; and (ii) there was error in a standard instruction given to the jury. We find no merit in these arguments.

      Count 1 of the Second Amended Information, citing section 847.0135(4)(b) (the travel after solicitation offense), alleged as follows:
      Defendant, William Roberts Baker on or about March 3, 2016 in the County of Monroe and State of Florida, did travel any distance within this state by any means, or attempted to do so, for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the defendant to be a child after using a computer on-line service, Internet service, or local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure or entice a parent, legal guardian or custodian of a child or another person believed to be the parent, guardian or custodian of a child to consent for the child or another person believed by the defendant to be a child to engage in any illegal act described in chapter 794, chapter 800, or chapter 827, or to engage in other unlawful sexual conduct with a child, contrary to F.S. 847.0135(4)(b).
      Count 2 of the Second Amended Information, citing section 847.0135(3)(b) (the solicitation offense), alleged as follows:
      Defendant William Roberts Baker on or about March 2, 2016, in the County of Monroe and State of Florida, did knowingly utilize a computer on-line service, Internet service, or local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure or entice, a parent, legal guardian or custodian of a child or another person believed by the defendant to be a parent, legal guardian or custodian of a child, to consent to the participation of the child or with another person believed by the defendant to be a child to commit any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any unlawful sexual conduct, contrary to F.S. 847.0135(3)(b).

      We review double jeopardy challenges de novo . Pizzo v.State, 945 So.2d 1203, 1206 (Fla. 2006).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terrance BENJAMIN, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D19-737
    District Court of Appeal of Florida, Third District.
    Opinion filed April 18, 2019.
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for petitioner.
    Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for respondent The State of Florida.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
    UPON CONFESSION OF ERROR
   PER CURIAM.

Petitioner, Terrance Benjamin, seeks a writ of habeas corpus, challenging his pretrial detention. Petitioner was charged with failure to return a hired vehicle, a third-degree felony. See § 817.52(3), Fla. Stat. (2018). The trial court ordered petitioner held without bond following a failure to appear for jury trial.

Petitioner argues the trial court failed to make a finding that his failure to appear was willful and that "no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process." State v. Blair, 39 So.3d 1190, 1192 (Fla. 2010) (quoting art. I, § 14, Fla. Const.); see Williams v. State, 68 So.3d 1010 (Fla. 4th DCA 2011). The State, properly and commendably, concedes error. See § 907.041, Fla. Stat. (2018) ; State v. Paul, 783 So.2d 1042 (Fla. 2001).

Accordingly, we grant the petition and direct the trial court to release petitioner with reasonable conditions. This opinion should not be read to limit the ability of the trial court to take additional evidence or impose ancillary conditions on pretrial release.

Petition granted.


author: HENDON, J.

text:
    MIAMI DADE COUNTY MRI CORP., etc., Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D19-354
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019
    Law Office of Chad A. Barr, P.A., and Chad A. Barr (Altamonte Springs), for petitioner.
    Michael J. Neimand, for respondent.
    Before LOGUE, SCALES, and HENDON, JJ.
    CONFESSION OF ERROR
   HENDON, J.

Miami Dade County MRI Corporation petitions this Court for a writ of certiorari, seeking to quash the following order entered by the circuit court, sitting in its appellate capacity: (1) an order granting United Automobile Insurance Company's motion for attorney's fees, and (2) an order denying Miami Dade County MRI Corporation's motion for attorney's fees under sections 627.428(1) and 627.736(8) of the Florida Statutes. Based on United Automobile Insurance Company's proper confession of error, we grant the petition, quash the orders under review, and remand for the entry of an order granting Miami Dade County MRI Corporation's motion for appellate attorney's fees filed under sections 627.428(1) and 627.736(8).

Petition granted; orders quashed; and remanded with directions.


text:
    The SHIR LAW GROUP, P.A., Guy M. Shir, Esq., and Stuart J. Zoberg, Esq., Petitioners, v. Dario CARNEVALE, et al., Respondents.
    No. 3D19-351
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Robert E. Menje, PLLC, and Robert E. Menje (Pembroke Pines), for petitioners.
    Kozyak Tropin & Throckmorton, LLP, and Javier A. Lopez, Tal J. Lifshitz, Miami and John I. Criste, Jr., for respondents.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   HENDON, J.

The Shir Law Group, P.A., Guy M. Shir, Esq., and Stuart J. Zoberg, Esq. (collectively, "the Shir Defendants"), petition this Court for a writ of certiorari, seeking to quash (1) the trial court's order granting the plaintiffs', Dario Carnevale, Esq. and Flavia Carnevale, Esq. (collectively, "the Carnevales"), motion to compel the forensic examination of the Shir Defendants' electronic data, and (2) the trial court's order setting forth the protocol for the forensic examination of the Shir Defendants' electronic data. We grant the petition, in part, quash the order setting forth the protocol for the forensic examination, and remand with directions to enter an amended order limiting the search terms to terms that will protect against the disclosure of privileged or irrelevant information, without hindering the forensic examiner's ability to retrieve relevant, non-privileged information, if any.

The Carnevales sued their former attorneys, the Shir Defendants, alleging counts for malpractice and violations of fiduciary obligations. The Carnevales, who owned a unit at a particular condominium, retained the Shir Defendants to represent them in their opposition to the dissolution of the condominium association, which dissolution would facilitate the sale of all units to a developer. Three other unit owners, collectively referred to as the Rogenia Group, also retained the Shir Defendants to represent them in their opposition to the termination of the condominium association.

During the litigation, the Carnevales sought discovery from the Shir Defendants of certain settlement communications with the developer and the Rogenia Group. The Carnevales also sought discovery from the law firm who represented the developers in the negotiations with the Rogenia Group. The documents that were produced by the developer's counsel included several communications between the Shir Defendants and the developer's counsel relating to the developer's settlement with the Rogenia Group. Although these communications between the developer's counsel and the Shir Defendants were responsive to the Carnevales' discovery request to the Shir Defendants, the communications were not included in the Shir Defendants' production to the Carnevales.

After discovering these undisclosed relevant communications, the Carnevales filed a motion to compel forensic examination, seeking to examine the Shir Defendants' electronic data. Following an evidentiary hearing, the trial court entered an order granting the Carnevales' motion to compel forensic examination, stating that, despite the Shir Defendants' good-faith attempt to produce the requested information, "their efforts have not been sufficiently technically competent. More expertise needs to be brought to bear to the task." The order provides, among other things, that the forensic examiner will be a third party mutually chosen by the parties, with the parties equally dividing the cost. Further, the order provides that, within thirty days, the parties' counsels are required to submit proposed orders setting forth the parameters and search protocols for the forensic examination. The order provides:

The parameters and search protocols should be appropriately crafted to protect against the disclosure of privileged or irrelevant information, without restricting the forensic examiner's ability to retrieve relevant, non-privileged information, if any. Counsel for the parties shall confer telephonically in a good-faith effort to reach agreement on this issue prior to the submission of proposed orders.

A few days before the thirty-day deadline set forth in the order compelling the forensic examination, the Shir Defendants' counsel unsuccessfully attempted to discuss the list of proposed search terms with the Carnevales' counsel. After not being able to schedule a meeting with the Carnevales' counsel, the Shir Defendants filed their proposed order setting forth the protocol for the forensic examination, which, among other things, limited the search to approximately thirty terms and/or emails. Following the Shir Defendants' submission of their proposed order, the Carnevales submitted their competing proposed order, which included over 110 search terms. Without refining the list of permissible search terms, the trial court adopted the proposed order submitted by the Carnevales' counsel. The Shir Defendants' petition for writ of certiorari followed.

In petitioning this Court for certiorari relief, the Shir Defendants contend that the list of over 110 search terms is overly broad as it contains common words that will result in thousands of results that are non-responsive to the discovery request and will result in private and privileged documents being subject to the protocol for the forensic examination. Under the circumstances of this case, certiorari relief is appropriate.

This Court has jurisdiction to review discovery orders that depart from the essential requirements of law resulting in material injury that cannot be remedied on appeal. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ("[T]o obtain a writ of certiorari, there must exist '(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' "). "Although overbreadth by itself is not a sufficient basis for certiorari jurisdiction, the Florida Supreme Court has held that certiorari review is appropriate where the discovery order effectively grants 'carte blanche' to irrelevant discovery." Publix Supermarkets, Inc. v. Santos, 118 So.3d 317, 319 (Fla. 3d DCA 2013) (citing Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 457 (Fla. 2012) ).

Defendant Shir Law Group, P.A., practices in the area of condominium and community association law, and defendants Shir and Zoberg are both board certified by The Florida Bar in the area of Condominium and Planned Development Law. One of the search terms approved by the trial court was the term "Condo*". In light of the Shir Defendants' condominium law practice, this search term alone will result in every document containing either the term "condo" or "condominium" being subject to the forensic examination protocol, which will include an extremely large number of documents that are unresponsive to the discovery request and unrelated to the litigation. Further, there will be numerous documents included that are either the private or privileged documents of current and former clients of the Shir Defendants. This is just one example of several other words included in the list that effectively "grants 'carte blanche' to irrelevant discovery." Publix Supermarkets, 118 So.3d at 319. The purpose of the forensic examination was not to allow the Carnevales to engage in a "fishing expedition" of the Shir Defendants' electronically stored information. Rather, as stated in the order compelling the forensic examination, "[t]he parameters and search protocols should be appropriately crafted to protect against the disclosure of privileged or irrelevant information, without restricting the forensic examiner's ability to retrieve relevant, non-privileged information, if any." Accordingly, we grant, in part, the Shir Defendants' petition for writ of certiorari, quash the order setting forth the protocol for the forensic examination, and remand for further proceedings consistent with this opinion.

The remaining arguments raised by the Shir Defendants and/or the Carnevales do not merit discussion.

Petition for writ of certiorari granted, in part; order setting forth the protocol for the forensic examination quashed; and case remanded for further proceedings.


author: SCALES, J.

text:
    John FORTE, et al., Petitioners, v. MIAMI-DADE COUNTY, Respondent.
    No. 3D19-289
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Bercow, Radell Fernandez & Larkin, PLLC, and Thomas Robertson, Miami, for petitioners.
    Abigail Price-Williams, Miami-Dade County Attorney, and James Edwin Kirtley, Jr., Assistant County Attorney, for respondent.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   SCALES, J.

Six of eighteen condominium unit owners of the Harbour Bay Condominiums of Bay Harbor Islands, Florida, applied to the Miami-Dade County Historic Preservation Board (the "Board") for an historic designation of their building. On November 16, 2016, the Board approved the designation. Three unit owners - Petitioners John Forte, Paul Meyer and Sue Olson - appealed the historic designation to the Miami-Dade County Commission. After conducting a quasi-judicial hearing, the County Commission denied the appeal. The Petitioners then petitioned the Circuit Court for a first-tier certiorari review, and on January 11, 2019, the Circuit Court rendered its decision denying certiorari. The Petitioners now seek in this Court second-tier certiorari review of the Circuit Court decision. For the reasons set forth below, we deny the petition.

The issue at each level of review has been whether only six of eighteen condominium unit owners may constitute "owners" under the pertinent County ordinance for historic designation application purposes. While the Circuit Court's decision noted that, under the relevant provisions of the County Code, the application might have been faulty for not having been submitted by all owners, the Circuit Court concluded that this potential infirmity in the application did not render the Board's ultimate action invalid. In denying certiorari relief to the Petitioners, the Circuit Court determined that, because the Board, on its own, may begin the designation process - irrespective of whether an application is filed - the County Commission did not depart from the essential requirements of law by upholding the Board's designation.

On second-tier certiorari review, we do not analyze the Board's designation or the County Commission's denial of the Petitioners' appeal of the Board's designation. Rather, our review "is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law." Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla. 2003). We conclude that, in its certiorari review of the County Commission's action, the Circuit Court afforded the Petitioners due process and applied the correct law; thus, it committed no error.

Petition denied.

      The six unit owners applied for the historic designation on February 24, 2016. Section 16A-4(14) of the County's Historic Preservation Code, in effect at that time, defined a property owner as follows: "Owner of a designated property : As reflected on the current Metropolitan Miami-Dade County tax rolls or current title holder." Section 16A-10(IV), which outlined application procedures, merely provided that: "The owner(s) of any property in ... any municipality that is under Miami-Dade County historic preservation jurisdiction, may petition this Board for designation of their property ...." On November 1, 2016, while the subject application was under review by the Board, the County Commission changed the definition of "Owner(s)" by, among other things, adding this language to section 16A-4(20): "When the ownership of a building has been divided into condominiums, the condominium association shall be considered the sole owner, so long as the condominium association has the support of the majority of condominium unit owners." In its response brief, the County explains that this code amendment was not triggered by the subject application, but resulted from an ongoing process of code review. We recognize, though, how the County's subsequent legislative action might be perceived by the Petitioners as confirming their argument that the initial application was invalid.


text:
    Skip Stuart STANLEY, Appellant, v. Sheriff Rick RAMSAY, Appellee.
    Skip Stuart Stanley, Appellant, v. Sheriff Don Catala, Appellee.
    Skip Stuart Stanley, Appellant, v. Deputy Sheriff Aaron Roddy, Appellee.
    Skip Stuart Stanley, Appellant, v. Sheriff Don Catala, Appellee.
    Skip Stuart Stanley, Appellant, v. Sheriff Rick Ramsay, Appellee.
    Skip Stuart Stanley, Appellant, v. George Braff, et al., Appellees.
    Skip Stuart Stanley, Appellant, v. George Braff, et al., Appellees.
    Skip Stuart Stanley, Appellant, v. George Braff, et al., Appellees.
    Skip Stuart Stanley, Appellant, v. George Braff, et al., Appellees.
    Skip Stuart Stanley, Appellant, v. George Braff, et al., Appellees.
    Skip Stuart Stanley, Appellant, v. George Braff, Appellee.
    Skip Stuart Stanley, Appellant, v. Eric Moore, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Eric Moore, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Cara Higgins, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Chief Judge Mark H. Jones, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Chief Judge Mark H. Jones, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Hon. Jorge Labarga, Appellee.
    Skip Stuart Stanley, Appellant, v. Judge Peary Fowler, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Brian Yablonski, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Bo Rivard, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. FWC Captain David Dupree, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. FWC Sgt. Steve Dion, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Cynthia McPherson, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Cynthia McPherson, etc., Appellee.
    Skip Stuart Stanley, Appellant, v. Hon. Jorge Labarga, Appellee.
    No. 3D19-166 No. 3D19-167 No. 3D19-168 No. 3D19-170 No. 3D19-171 No. 3D19-204 No. 3D19-205 No. 3D19-206 No. 3D19-207 No. 3D19-208 No. 3D19-209 No. 3D19-210 No. 3D19-211 No. 3D19-212 No. 3D19-213 No. 3D19-214 No. 3D19-215 No. 3D19-217 No. 3D19-218 No. 3D19-219 No. 3D19-220 No. 3D19-221 No. 3D19-222 No. 3D19-223 No. 3D19-232
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Skip Stuart Stanley, in proper person.
    Purdy, Jolly, Giuffreda, Barranco & Jisa, P.A., and Gregory J. Jolly (Fort Lauderdale), for appellees Sheriff Rick Ramsay, Don Catala and Aaron Roddy; Cynthia L. Hall and Paunece R. Scull, Assistant County Attorneys, for appellee Cynthia McPherson.
    Before EMAS, C.J., and SALTER and MILLER, JJ.
    ON ORDER TO SHOW CAUSE
   PER CURIAM.

Following the issuance of this Court's Order to Show Cause requiring the appellant, Skip Stuart Stanley, to show good cause why these cases should not be dismissed as frivolous and an abuse of process, the appellant has not made such a showing. As such, these appeals are dismissed.

Additionally, we hold that the appellant has repeatedly abused the judicial system with his frequent, frivolous filings. Accordingly, the appellant is hereby barred from filing any additional pro se filings in any case before this Court. The Clerk of this Court is directed not to accept any future filings from the appellant unless they are reviewed and signed by a member in good standing of The Florida Bar.

Consolidated cases dismissed; appellant barred from future pro se filings.


author: Per Curiam.

text:
    Bruce MCINTOSH and Valli McIntosh, Appellants, v. James C. MYERS and Gayle E. Myers, Appellees.
    No. 1D17-3472
    District Court of Appeal of Florida, First District.
    May 2, 2019
    H. Lee Strayhan, III of Clark, Partington, Hart, Larry, Bond & Stackhouse, Destin, for Appellants.
    John R. Dowd, Jr. of the Dowd Law Firm, P.A., Fort Walton Beach, for Appellees.
   Per Curiam.

Bruce and Valli McIntosh challenge the trial court's entry of Final Judgment providing injunctive relief for the removal of cypress trees planted by James and Gayle Myers. We affirm, except as to the McIntoshes' argument that they are also entitled to injunctive relief regarding the trees planted in the common area near both properties.

I.

The McIntoshes and the Myerses own homes on adjacent lots in the Seaspray Subdivision (hereinafter "the subdivision") in Walton County. The subdivision is governed by the Covenants, Conditions and Restrictions of Seaspray, a Subdivision (hereinafter "the covenants"). The covenants require that residents obtain approval from the subdivision's Architectural Review Committee (ARC) before proceeding with any landscaping or improvement on their property.

The dispute arose when the Myerses planted twenty-one cypress trees within their property. Nine of the trees were planted in the common area abutting the rear lot line of both the Myerses' and McIntoshes' properties. The Myerses did not seek pre-approval from the ARC. As a result, the McIntoshes filed a complaint seeking to enforce the subdivision's covenants. In pertinent part, the complaint requested injunctive relief in the form of the removal of all the offending trees.

After a bench trial, the trial court held that the trees were planted without the approval of the ARC and that they constituted a nuisance in violation of the subdivision's covenants. The trial court also found that the Myerses removed the trees located on their property. The trial court, therefore, granted injunctive relief by enjoining the Myerses from planting any other trees on their property.

The trial court, however, declined to extend injunctive relief as to the tress located in the common area claiming that there was no testimony establishing that the Myerses planted the trees in the common areas, as well as the fact that the complaint only requested that the trees be removed from the Myerses' property and that the subdivision's homeowner's association needed to have been made a party to the complaint.

II.

Reviewing a trial court's decision to grant an injunction presents a mixed standard of review.

Nipper v. Walton Cty. , 208 So.3d 331, 331 (Fla. 1st DCA 2017). An injunction resting on factual findings must be reviewed for abuse of discretion. Id. An injunction predicated on purely legal matters, however, is reviewed de novo . Id.

III.

The trial court declined to grant injunctive relief as to the trees in the common areas because it found that 1) there was no testimony that established the Myerses planted the trees in the common areas; 2) the McIntoshses' complaint simply requested relief for the trees planted on the Myerses' property; and 3) the subdivision's homeowner's association needed to be made a party to the complaint.

First, the record is clear that Bruce McIntosh testified that the trees in the common area were planted by the Myerses. Furthermore, a member of the ARC testified that the Myerses had planted the trees without approval from the board. Bruce McIntosh also testified that there were nine trees in the common area between both properties. All this testimony indicates that the offending trees in the common area were planted by the Myerses. Thus, the trial court abused its discretion by finding that no evidence was adduced connecting the Myerses to the trees in the common area.

Second, this Court has recognized that "the character of an equitable pleading is determined, not by its title, but by its contents, and by the actual issues in dispute." Circle Fin. Co. v. Peacock , 399 So.2d 81, 84 (Fla 1st DCA 1981). Accordingly, "courts have the fullest liberty in molding decrees to the necessity of the action regardless of the prayer." Id. In any event, the complaint's "general allegations" referenced all the trees planted by the Myerses, including the ones located in the common area. Moreover, the complaint requested "such other and further relief as the Court may deem necessary or proper to grant Plaintiff's full relief in this action."

Lastly, Florida law allows homeowners to bring "[a]ctions at law or in equity" against other homeowners to "redress alleged failures or refusal" to comply with the restrictive covenants governing their homeowners' association. § 720.305(1)(b), Fla. Stat. The statute does not set forth any limitation on this right as it relates to common areas. More importantly, the covenants governing the subdivision clearly provide for individual owners to seek enforcement of the covenants in law or equity. Therefore, the trial court erred in denying injunctive relief.

IV.

In conclusion, the McIntoshes' sought injunctive relief as it related to the trees planted by the Myerses. The trial court found the trees in violation of the subdivision's covenants, but failed to provide injunctive relief as to the trees located in the common area. The McIntoshes, however, established that the trees in the common area were planted by the Myerses and sufficiently pled for relief as to the common area. Finally, Florida law, as well as the subdivision's covenants, allow individual homeowners to enforce the covenants of their homeowners' associations. As such, the trial court erred in denying the McIntoshes full injunctive relief. We, therefore, reverse and remand so that the trial court may amend its Final Judgment consistent with this opinion.

REVERSED and REMANDED .

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.

      Article III of the subdivision's covenants establish that "[t]he Association, or any Owner shall have the right to enforce by any proceeding by law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration" and that "[a]ny single violation of any provision of this Declaration by an Owner shall constitute a continuing violation which shall allow the Association or any other Owner to seek permanent injunctive relief ." (Emphasis added).


author: SLEET, Judge.

text:
    Jurate Klizaite DOWELL, Appellant, v. Mantas KNORAS, Appellee.
    Case No. 2D18-4420
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019
    Elizabeth A. Wolt of Law Offices of Elizabeth A. Wolt, P.A., Naples, for Appellant.
    Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee.
   SLEET, Judge.

Jurate Klizaite Dowell challenges the trial court's contempt order entered against her in Mantas Knoras' action for determination of paternity of the minor child Ms. Dowell and Mr. Knoras share. In its contempt order, the court found Ms. Dowell to be in contempt for violating a standing order of the court by moving the minor child from Collier County to Tampa without the court's permission. However, the unrefuted evidence presented below establishes that Ms. Dowell had moved her child before she was served with the court's standing order. Accordingly, we reverse.

When the minor child was born in 2011, Ms. Dowell and Mr. Knoras were living together as a family. However, they separated in 2016 and, at that time, agreed to a timesharing schedule without the aid of the courts. Ms. Dowell has never disputed that Mr. Knoras is the father of the minor child.

At some point, Ms. Dowell, who ran a business in Naples, began talking of moving with the child to Tampa in order to grow her business. Shortly thereafter, Mr. Knoras filed his petition for determination of paternity on June 26, 2018, asking the court to enter a parenting plan and timesharing schedule. On the same day that Mr. Knoras filed his petition, Ms. Dowell informed him that she was moving out of her apartment in Naples, but she did not specify that she was moving out of Naples to Tampa.

Ms. Dowell was served with the paternity petition and the trial court's Standing Temporary Domestic Relations Order at her address in Naples on June 30, 2018. The standing order included the following directive: "Neither party will remove, cause to be removed, nor permit the removal of any minor children of the parties from their current county of residence for residential purposes without written agreement of both parties or Court order."

Ms. Dowell did not give Mr. Knoras her new address, and on July 25, 2018, he left for a planned visit to his family in Lithuania. He returned on August 13, 2018, and contacted Ms. Dowell, who then told him that she and the minor child had moved to Tampa and would be staying there. Mr. Knoras then filed his First Motion for Contempt and Enforcement, in which he alleged that Ms. Dowell violated the trial court's standing order by moving the child out of Collier County. Following a hearing, the trial court entered an order granting the motion, holding Ms. Dowell in contempt for violating the standing order and ordering the minor child returned to Collier County. In its order, the trial court made the specific factual findings that Ms. Dowell was served with the standing order on June 30, 2018, and that "[s]ubsequently, [she] relocated the minor child to Tampa, FL."

On appeal, Ms. Dowell argues that the evidence presented was insufficient to support a finding that she violated the standing order because the evidence established that she moved to Tampa before she was served with the paternity petition and standing order on June 30, 2018. We agree.

Although the undisputed evidence presented below was that Ms. Dowell was served in Naples on June 30, the evidence also established that she had already moved to Tampa by June 29. At the contempt hearing, Ms. Dowell testified that she had closed on a home in Tampa on June 29; that the electricity and water had been turned on at the Tampa residence on June 27; that all of her belongings and those of her current boyfriend and the minor child had already been moved to Tampa by the time she was served in Naples; and that she was only in Naples on June 30 to clean out the apartment she had rented there and to return the keys to the landlord.

Furthermore, Mr. Knoras, as the movant, presented no evidence to show that Ms. Dowell moved to Tampa after she was served with the standing order. As such, the only evidence presented below established that Ms. Dowell had moved to Tampa at the latest by June 29 and that at that time, she had not yet been served with the standing order and was not subject to the requirement that she seek court approval before moving with her child.

As such, the trial court's finding that Ms. Dowell was in contempt of court for willfully violating the standing order is not supported by competent substantial record evidence, and we must therefore reverse. See Driggers v. Driggers, 127 So.3d 762, 764 (Fla. 2d DCA 2013) (reversing order finding former husband in contempt for failure to pay alimony where former husband's evidence established an uncontemplated drop in income and former wife "failed to rebut Mr. Driggers' evidence" and stating that "[u]nder these circumstances, we must also conclude that the contempt order is unsupported by competent substantial evidence and constitutes an abuse of discretion");

Pearson v. Pearson, 932 So.2d 601, 604 (Fla. 2d DCA 2006) ("Because the order of contempt is not supported by competent substantial evidence, we reverse.").

Reversed.

NORTHCUTT and BADALAMENTI, JJ., Concur.

      We find no merit in the other arguments raised by Ms. Dowell on appeal.


author: ATKINSON, Judge. CASANUEVA, Judge, Concurring.

text:
    Juan MESEN, a/k/a Juan Oscar Mesen, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4971
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019.
    Chris Westmoreland, Clearwater; and Donald J. Kilfin of The Kilfin Law Firm, P.C., St. Petersburg, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, Susan D. Dunlevy, Assistant Attorney General, and Helene S. Parnes, Senior Assistant Attorney General (substituted as counsel of record), Tampa, for Appellee.
   ATKINSON, Judge.

Juan Mesen appeals his conviction and sentence for lewd or lascivious exhibition in the presence of an elderly or disabled person. He argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to introduce sufficient evidence to prove that he exposed his genitals to the victim because there was no testimony that his genitals were visible. We agree and reverse.

On October 1, 2013, two employees were driving back to a nursing facility following their lunch break when they saw Mr. Mesen with a woman in a wheelchair on a sidewalk just past the facility's private driveway. This area was not visible from the facility. They circled back to get another look at the situation and ultimately parked across the street. They saw Mr. Mesen's pants unzipped and the victim's arm extending into his pants, moving back and forth, but they could not see the victim's hand. His pants were not pulled down; they may have been unbuttoned but were definitely unzipped. Neither witness saw his genitals.

Mr. Mesen denied any wrongdoing, claiming that he took the elderly dementia patient off-site so she could get some fresh air and sunshine. He said that he had been doing range-of-motion exercises with her, like the ones that he did with his wife, who was also a resident at the facility. He said that his fly was down because he had been experiencing urinary issues, including leakage and the frequent urge to relieve himself. Three months prior to the incident, he visited his urologist complaining of those symptoms. Although an investigating officer testified that Mr. Mesen initially said nothing happened with the victim that could have been misconstrued by the witnesses, Mr. Mesen subsequently admitted to the officer that the victim touched him on her own, reaching out and squeezing a fist over his genitals while his pants were on before he immediately stepped back.

The State charged Mr. Mesen with two crimes arising out of this incident-lewd or lascivious battery upon an elderly or disabled person, in violation of section 825.1025(2)(a), Florida Statutes (2013), and lewd or lascivious exhibition in the presence of an elderly or disabled person, in violation of section 825.1025(4)(a). Notably, Mr. Mesen was not charged with lewd or lascivious molestation of an elderly or disabled person. That crime is limited to cases in which the defendant intentionally touches the victim's breasts, genitals, genital area, buttocks, or the clothing covering those areas, in a lewd or lascivious manner; it does not encompass the converse-the victim touching the defendant. See § 825.1025(3)(a).

" 'Lewd or lascivious exhibition in the presence of an elderly person or disabled person' occurs when a person, in the presence of an elderly person or disabled person," "knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent to having such act committed in his or her presence" and:

1. Intentionally masturbates;
2. Intentionally exposes his or her genitals in a lewd or lascivious manner; or 3. Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity[.]

§ 825.1025(4)(a) (emphasis added).

Mr. Mesen stipulated that the victim was elderly or disabled and that he knew or reasonably should have known that she lacked the capacity to consent. He moved for a judgment of acquittal on both counts. The trial court granted his motion as to the lewd or lascivious battery count, finding no evidence that Mr. Mesen encouraged, forced, or enticed the victim to engage in sexual activity, which is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." § 825.1025(1). However, the trial court denied the motion as to the second count, lewd or lascivious exhibition in the presence of an elderly person or disabled person. The jury found Mr. Mesen guilty, and the trial court denied his renewed motion for judgment of acquittal.

A denial of a motion for judgment of acquittal is reviewed de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). Statutory interpretation is a question of law also subject to de novo review. Acevedo v. State, 218 So.3d 878, 879 (Fla. 2017). A claim of insufficient evidence fails as long as "there is substantial competent evidence to support the verdict and judgment." Spinkellink v. State, 313 So.2d 666, 671 (Fla. 1975). The State contends in its brief that the "exposes" element of lewd or lascivious exhibition can be satisfied by the inference that the defendant exhibited his genitalia to the victim "through her sense of touch" by "situating his groin area extremely close to her and well within her reach and unzipping his shorts," allowing her to place her hand on his genitals-"whether directly or on top of his underwear."

Courts must afford statutory language "its plain and ordinary meaning, giving due regard to the context within which it is used." Hampton v. State, 103 So.3d 98, 110 (Fla. 2012) ; see also Brittany's Place Condo. Ass'n, Inc. v. U.S. Bank, N.A., 205 So.3d 794 (Fla. 2d DCA 2016). A reasonable reader would understand "exhibition" by "exposure" to require that the defendant's genitals are visually observable-an ordinary meaning of those words that is all the more reasonable in light of their context in section 825.1025(4). Common uses of the word "expose" that do not entail visibility-e.g., exposure to radiation, exposure to the elements-might cast a scintilla of doubt on this interpretation but not after considering the other language of section 825.1025 and the language of related statutes. Here, the word "exposes" cannot be understood to mean the mere exposure of covered genitals to another's touch. Cf. Ware v. State, 124 So.3d 388, 391 (Fla. 1st DCA 2013) ("[O]ffenses involving the lewd exposure of sexual organs are akin to visual assault ....").

The State argues that the "victim was exposed to Mesen's genitals via her hand, which was placed in his genital area beneath his outer clothing." The fact that the victim had her hand in the defendant's pants is merely incidental to what is proscribed by the statute, which criminalizes actions taken by the defendant, not the inducement of an action taken by the victim. The evidence supports only one action alleged to have been taken by the defendant: unzipping his fly within reach of a victim who is disabled or elderly, so as to place his genitals within reach of her touch without making them visible.

The State's contention that this conduct is within the meaning of "exposes" in section 825.1025(4) lacks intuitive sense in light of the language of the statute itself. Section 825.1025(4) contains a list of alternative acts, commission of any of which would constitute commission of the crime. The statute insists that these acts take place "in the presence" of the victim-a qualifier inconsistent with a crime that entails physical contact with the victim (which would necessarily have to be committed in the victim's presence) but consistent with an interpretation of "exposes" that involves actions intended to be observed by the victim. Id.

The State's interpretation of section 825.1025(4) is further undermined by a reading of that statute in pari materia with section 800.04, Florida Statutes (2013). Courts are required "to construe related statutes together so that they illuminate each other and are harmonized." McGhee v. Volusia County, 679 So.2d 729, 730 n.1 (Fla. 1996) ; see also Anderson v. State, 87 So.3d 774, 777 (Fla. 2012) (noting that when statutes relate to the same subject matter, the court must read those statutes together). These almost identical statutes relate to the same subject matter-the protection of vulnerable populations from lewd or lascivious conduct.

Section 800.04 protects minors and contains a lewd or lascivious exhibition provision nearly identical to the one pertaining to disabled and elderly victims. § 800.04(7). It also contains a similar provision relating to lewd or lascivious molestation, with one significant exception: it criminalizes forcing or enticing a minor to touch the perpetrator in addition to the intentional touching of a minor by the perpetrator. Compare § 800.04(5)(a) ("A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation." (emphasis added) ), with § 825.1025(3)(a) (" 'Lewd or lascivious molestation of an elderly person or disabled person' occurs when a person intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of an elderly person or disabled person when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent."). See also Sanders v. State, 101 So.3d 373, 375 (Fla. 1st DCA 2012) (stating that section 800.04(5)(a) is violated either "1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner").

The legislature declined to include the same proscription in the elderly and disabled statute as it did in the minor statute. When the legislature has included a provision in one statute but omitted it in an analogous statute, courts should not read it into the statute from which it has been excluded. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla. 1995) (declining to "imply [a term] where it has been excluded" when the term was used in one section governing the implied warranty for developers but not another implied-warranty section governing contractors); see also Rollins v. Pizzarelli, 761 So.2d 294, 299 (Fla. 2000) (explaining that "[j]ust as the legislative use of different terms in different portions of the same statute is evidence that different meanings were intended," the language of statutes in different chapters can be compared for the same purpose); Ocala Jockey Club, LLC v. Rogers, 981 So.2d 1245, 1247 (Fla. 5th DCA 2008) (finding that language in one statute "reveal[ing] that the Legislature knows how to make provision" for an award of both actual and treble damages implied that another statute lacking such language did not permit both). Rather, courts must "presume that [the] legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ; see also Cason v. Fla. Dep't of Mgmt. Servs., 944 So.2d 306, 315 (Fla. 2006) ("[W]e have pointed to language in other statutes to show that the Legislature 'knows how to' accomplish what it has omitted in the statute in question." (quoting Rollins, 761 So.2d at 298 ) ).

Some might find it perplexing that the legislature did not choose to protect elderly or disabled people from being forced or enticed to touch someone's genitals as it did people under sixteen. Defense counsel even suggested during his judgment-of-acquittal argument that he thought that the legislature's omission of the reciprocal language was not intentional. But unless it can be said "with absolute confidence that no reasonable legislature would have intended for the statute to carry its plain meaning," courts should "presume that [our] legislature says in a statute what it means and means in a statute what it says there." Maddox v. State, 923 So.2d 442, 452 (Fla. 2006) (alteration in original) (Cantero, J., dissenting) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) ). The absurdity doctrine "exception to the plain meaning rule should not be used to avoid an unintended result, only an absurd or patently unreasonable one." Id. at 452-53. Cf. Stelmack v. State, 58 So.3d 874, 877 (Fla. 2d DCA 2010) ("We do not mean to suggest that the possession of composite images of real children that simulate lewd [or] lascivious exhibition of the children's genitals should not be criminalized." (emphasis added) ).

Other contextual indicators further undermine the State's interpretation that the word "exposes" does not require visibility. The name of the crime of which Mr. Mesen was convicted, "lewd or lascivious exhibition in the presence of an elderly person or disabled person," § 825.1025(4), uses a term that describes the act of making something visible: "exhibition."

The doctrine of noscitur a sociis (a "word is known by the company it keeps") is relied upon "to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words." Cosio v. State, 227 So.3d 209, 213 (Fla. 2d DCA 2017) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) ). This canon of construction is applicable here, where the State is ascribing a meaning to a term ("exposure") that is more expansive than the term ("exhibition") used in the name of the crime the former word is used to describe. A meaning of the word "exposes" that includes merely exposure to a grasp through or under clothing cannot be employed to describe a term-"exhibition"-that indicates the presentation of something to another's viewing.

In addition to the exposure of one's genitals, "[l]ewd or lascivious exhibition in the presence of an elderly person or disabled person" proscribes masturbation. See § 825.1025(4)(a) 1. It also proscribes "other lewd or lascivious act[s]"-including sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity-done in an elderly or disabled person's presence but without any "physical or sexual contact." See § 825.1025(4)(a) 3. The language used to describe the other proscribed acts indicates the performance of lewd or lascivious activity in a manner that allows an elderly or disabled person to observe it. Noscitur a sociis (also known as the associated-words canon) "dictates that 'words grouped in a list should be given related meaning.' " Dole v. United Steelworkers of Am., 494 U.S. 26, 36, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (quoting Massachusetts v. Morash, 490 U.S. 107, 114-15, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989) ). Thus, the word "exposes" should be understood to indicate visibility as well. See, e.g., State v. Carrier, 240 So.3d 852, 858 (Fla. 2d DCA 2018) (applying noscitur a sociis to construe "alters" in context with "forges," "counterfeits," and "simulates," to mean that a person must "alter" a certificate in a way that makes "it false or deceptive in order to constitute a violation of the statute").

Nothing in the context of section 825.1025 suggests anything other than the ordinary understanding of "exhibition" by "exposure": making one's genitals observable by uncovering them. Thus, even when a defendant has facilitated a situation in which the victim is able to touch the defendant's covered genitals, he has not exposed them within the meaning of the statute unless his genitals are visible.

Although the evidence of Mr. Mesen's conduct might reasonably support a theory that Mr. Mesen "force[d] or entice[d]" the victim to touch his genitals "or the clothing covering them" under section 800.04(5)(a), that conduct is not proscribed by the statute pertaining to the type of victim in this case. The question of whether the legislature could "really have meant not to protect" elderly and disabled people from being forced or enticed to touch a person's covered genitals is a "riddle" that "is not ours to solve (if it can be solved at all)." See Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 145, 134 S.Ct. 2250, 189 L.Ed.2d 234 (2014). "[T]he question ... is not what [the legislature] would have wanted but what [the legislature] enacted ...." Id. (internal quotation marks omitted) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) ); see also Macchione v. State, 123 So.3d 114, 119 n.3 (Fla. 5th DCA 2013) ("[W]hatever the consequences, we must accept the plain meaning of plain words." (quoting United States v. Brown, 206 U.S. 240, 244, 27 S.Ct. 620, 51 L.Ed. 1046 (1907) ) ).

The plain and ordinary meaning of the word "expose" in the context of section 825.1025(4) is the one most favorable to Mr. Mesen-to make something visible, typically by uncovering it. The two witnesses testified that they did not see Mr. Mesen's genitals. And while they observed that the victim's hand was in Mr. Mesen's pants, they left unanswered the question whether at any time his genitals were uncovered so as to make them visible. Accordingly, the trial court erred in denying Mr. Mesen's motion for judgment of acquittal because the State did not prove that he exposed his genitals in the presence of the victim.

Reversed and remanded.

SALARIO, J., Concurs specially with an opinion in which CASANUEVA, J., Concurs.

CASANUEVA, J., Concurs in part with an opinion.

SALARIO, Judge, Concurring specially.

I agree with the court on three points that dispose of this appeal. First, the undefined term "exposes" in section 825.1025(4)(a)(2) should be interpreted in accord with its ordinary meaning. See City of Treasure Island v. Tahitian Treasure Island, LLC, 253 So.3d 649, 657 (Fla. 2d DCA 2017) (explaining that undefined terms get their everyday meanings unless the context indicates a particular, specialized meaning). Second, the ordinary meaning of the term "exposes" as used in section 825.1025(4)(a)(2) -i.e. , with the term "genitals" as its object-is, unambiguously, to make visible. (Without getting bogged down in details, suffice it to say that the image the statutory phraseology conjures in the mind of the everyday reader is the stereotype of the trenchcoat-wearing flasher.) Third, the State's evidence failed to create a jury question about whether Mr. Mesen made his genitals visible; not even the State argues that its evidence was solid enough to get it that far. The plain meaning of the statute thus requires that we reverse the trial court's denial of the motion for judgment of acquittal on whether the State presented a prima facie case under section 825.1025(4)(a)(2).

The court's use of rules of statutory construction that we typically use to resolve ambiguities in statutory language is, to my mind, not necessary to decide the case or to address any argument the State has made. See Kephart v. Hadi, 932 So.2d 1086, 1090 (Fla. 2006) ("If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving rules of construction... . ") (quoting Zuckerman v. Alter, 615 So.2d 661, 663 (Fla. 1993) ). We are deciding the case on the unambiguous language of the statute, which is typically conclusive of a statutory construction question. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ). And the State's only argument on appeal boils down to an assertion that we should interpret the term "exposes" in section 825.1025(4)(a)(2) to mean "exposes to the touch," an argument that the ordinary meaning of the term as used in the statute excludes. Accordingly, I concur in the result and in the court's opinion only to the extent that it ascertains and applies the unambiguous, ordinary meaning of the statute and respectfully decline to join the balance.

CASANUEVA, J. Concurs.

CASANUEVA, Judge, Concurring.

I join in and concur with the result reached by the majority and with the three points with which Judge Salario agrees in his special concurrence. Accordingly, I, too, conclude that "[t]he plain meaning of the statute thus requires that we reverse the trial court's denial of the motion for judgment of acquittal."

      See expose, Oxford English Dictionary, http://www.oed.com/viewdictionaryentry/Entry/66705 (last visited Apr. 9, 2019) ("[T]o remove the covering of"). The plain and ordinary meaning of words can be ascertained by reference to a dictionary. Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla. 2003). However, various dictionary definitions of the word "exposes" do not definitively favor one party's interpretation over the other. See, e.g., expose, Oxford English Dictionary ("To place in an unsheltered or unprotected position"; "to leave without shelter or defence"; "To lay open (to danger, ridicule, censure, etc.)"; "to place in the way of something that would be better avoided"; "to render accessible or liable"; "To lay open to ... the action or influence of"; "To present to view, put forth"; "To exhibit openly"; "to display to the public gaze"; "To disclose, display, allow to be seen"); expose, American Heritage Dictionary 625 (5th ed. 2011) ("[T]o subject or allow to be subjected to an action, influence, or condition; to make visible; to make known; or to engage in indecent exposure of (oneself)").

      "[I]t's not intentional. I believe it's a legislative oversight. It should be there. There's absolutely no reason why it should be in 800.0[4](5)(a) and not in [825.1025](3)(a)."

      Dictionary definitions of the word "exhibition" favor an interpretation of section 825.1025(4) that requires visibility. The American Heritage Dictionary defines "exhibition" as the act or an instance of exhibiting; the only relevant definitions of the verb "exhibit" indicate an act of making something visible: "1. To show outwardly; display: exhibited pleasure by smiling. 2a. To present for others to see: rolled up his sleeve to exhibit the scar." Exhibition, American Heritage Dictionary 621 (5th ed. 2011); see also display, American Heritage Dictionary 521 (defining "display" as to "present to view; cause to be seen" and to "spread out; unfurl"); exhibition, Oxford English Dictionary, http://www.oed.com/viewdictionaryentry/Entry/66183 (last visited Apr. 9, 2019) ("The action of exhibiting, submitting for inspection, displaying or holding up to view; manifestation; visible show or display (of a feeling, quality, etc.)"; "Something that is exhibited; a display, sight, spectacle").

      Use of the word "other" in the catch-all provision of the exhibition subsection of section 825.1025 provides yet more compelling support for an interpretation that requires visibility:
      Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity[.]
      § 825.1025(4)(a)3. (emphasis added). The word "other" only has meaning in relation to the preceding enumerated acts, which include exposure. Use of the word "other" to indicate that the preceding enumerated acts are also "lewd or lascivious" would be gratuitous, since the crime itself only encompasses "lewd or lascivious" exhibition and the subsection enumerates all the ways in which a "[l]ewd or lascivious exhibition" can "occur[.]" § 825.1025(4)(a). A reasonable reader would assume that the word "other" is instead being used to indicate that the preceding enumerated acts, including exposure, also "do[ ] not involve actual physical or sexual contact," § 825.1025(4)(a) 3., since it would be needless to specify that, like the acts previously enumerated, these other acts must also be done in a lewd or lascivious manner. And it would be unreasonable to read the phrase "any other ... act that does not involve actual physical or sexual contact" to mean that, while the previously enumerated acts ("masturbates" and "exposes") do include those that involve physical or sexual contact, the catch-all encompassing "any other" acts does not include any that involve physical or sexual contact. Id. Thus, to give effect to the word "other," it must be understood to indicate that, like the preceding acts, which include exposure of genitals, these other acts in the catch-all provision also do not involve actual physical or sexual contact with the victim. Cf. Potts v. Ctr. for Excellence in Higher Ed., Inc., 244 F.Supp.3d 1138, 1142 (D. Colo. 2017) (concluding that "reading 'employee' to mean 'current employee' is especially fitting in light of § 3730(h)(1)'s catchall residual clause, which covers 'other' actions that likewise 'discriminate[ ] ... in the terms and conditions of employment' " (alteration in original) (quoting 31 U.S.C. § 3730(h)(1) ), aff'd 908 F.3d 610 (10th Cir. 2018).

      Even if the statute were susceptible of differing constructions, which it is not, this court would be required to construe it most favorably to the accused. See § 775.021(1), Fla. Stat. (2013).


author: ATKINSON, Judge.

text:
    HSBC BANK USA, N.A., AS TRUSTEE FOR the REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-3, Appellant, v. Sabatino J. LEONE and Diana Leone, Appellees.
    Case No. 2D17-2851
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019
    Kimberly S. Mello and Danielle M. Diaz of Greenberg Traurig, P.A., Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing), and Sabatino J. Leone and Diana Leone, pro se, for Appellees.
   ATKINSON, Judge.

HSBC Bank USA, N.A., as Trustee for the Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-3 (the Bank) appeals the trial court's involuntary dismissal of its mortgage foreclosure action brought against Sabatino and Diana Leone (the Borrowers). After the Bank's first foreclosure action was dismissed without prejudice, the Bank filed a second foreclosure action predicated on the same default, which the trial court dismissed. Because the trial court's dismissal was based on the Bank's failure to send a new default notice prior to filing its second foreclosure action, we reverse. We have considered the alternative arguments raised by the Borrowers and find them to be without merit.

On June 20, 2007, the Borrowers executed a promissory note payable to Fidelity Mortgage, a division of Delta Funding Corporation, in the principal amount of $ 175,000. The note was secured by a mortgage executed by the Borrowers in favor of Fidelity Mortgage for the subject property. The note was then endorsed to Delta Funding Corporation followed by a blank endorsement. The Borrowers defaulted on the note and mortgage by failing to make the payment due on July 1, 2010, and all payments thereafter. Ocwen Loan Servicing (Ocwen), the mortgage loan servicer, sent two default notices on May 15, 2010, and January 28, 2011. The default letters advised the Borrowers of their default and ability to cure within thirty days.

On May 23, 2011, the Bank filed a foreclosure complaint against the Borrowers. In response, the Borrowers filed an amended motion to dismiss and for summary judgment, along with a supporting affidavit, arguing in part that the Bank failed to provide the notice required under paragraph 22 of the mortgage because it failed to attach any documents to its complaint showing it provided such notice. The trial court granted the motion and dismissed the case without prejudice, finding that the Borrowers' affidavit, which was unrefuted by any counterevidence, established that the Bank failed to provide the required notice.

On June 3, 2013, the Bank filed a new foreclosure complaint against the Borrowers. The Bank alleged the same default date of July 1, 2010, as it had in the previous lawsuit. At a nonjury trial, the Bank presented the testimony of Diane Comstock, a senior loan analyst for Ocwen. Through her testimony, the two default letters were admitted into evidence.

After the Bank rested its case, the Borrowers moved for an involuntary dismissal, arguing that a new default notice was required to be mailed prior to filing the second foreclosure action. The trial court granted the Borrower's motion for involuntary dismissal, finding that there should have been a new paragraph 22 letter sent prior to the filing of the second case. The trial court reasoned that a new default notice must be sent because the amount due to cure the default would be much higher than the one stated in the prior default notice.

A trial court's ruling on a motion for involuntary dismissal is reviewed de novo. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016) (citing Allard v. Al-Nayem Int'l, Inc., 59 So.3d 198, 201 (Fla. 2d DCA 2011) ). The party who raises a motion for involuntary dismissal "admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non-moving party." Id. (quoting Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989) ). This court must "interpret and apply the provisions of mortgages the same way we interpret and apply the provisions of any other contract." Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 12-13 (Fla. 2d DCA 2015). Because a contract must be construed in accordance with its plain language, the plain language of a mortgage controls. See Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011) (citing Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) ). The relevant mortgage provision in this appeal is paragraph 22. Paragraph 22 of the mortgage states, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date not less than 30 days from the date notice is given to the Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

Paragraph 22 of the mortgage further provides that "[i]f the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding." (Emphasis added.)

Paragraph 22 indicates that after a default and prior to acceleration, the Bank is required to provide the Borrowers with notice of the default and an opportunity to cure. The notice requirements set forth in paragraph 22 of the mortgage are conditions precedent to the filing of a foreclosure action against the Borrowers. See Bank of N.Y. Mellon v. Nunez, 180 So.3d 160, 162 (Fla. 3d DCA 2015) (citing Konsulian, 61 So.3d at 1285 ) ).

The Borrowers argue, and the trial court held, that paragraph 22 of the mortgage required the Bank to mail a new default notice before filing the second foreclosure action. The Borrowers rely on Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), and Schindler v. Bank of New York Mellon Trust Co., 190 So.3d 102 (Fla. 4th DCA 2015), in support of their argument. However, neither case supports their position.

In Bartram, the Florida Supreme Court addressed the issue of whether acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to Florida Rule of Civil Procedure 1.420(b) triggers the application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to dismissal of the first foreclosure suit. Bartram, 211 So.3d at 1012. The Florida Supreme Court held that the mortgagee "was not precluded by the statute of limitations from filing a subsequent foreclosure action based on payment defaults occurring subsequent to the dismissal of the first foreclosure action, as long as the alleged subsequent default occurred within five years of the subsequent foreclosure action." Id. (emphasis added). Bartram did not address the issue of whether paragraph 22 requires sending a new default notice before a second foreclosure action is filed based on the same default. Bartram did acknowledge, however, that "a dismissal without prejudice would allow a mortgagee to bring another foreclosure action premised on the same default as long as the action was brought within five years of the default." Id. at 1020 (emphasis added).

Nonetheless, the Borrowers relied on the proposition in Bartram-that the involuntary dismissal of a lender's first foreclosure lawsuit gives rise to the borrower's contractual right to deceleration of the balance due under paragraph 19 of the mortgage-to argue that a new notice has to be sent before the lender can re-accelerate the balance due. See id. at 1013-14, 1021 (citing paragraph 19 of the mortgage, which provides that a borrower has a right to reinstate the note and mortgage after acceleration if certain conditions are met). However, the acceleration of a loan under paragraph 19 is different than meeting the condition precedent under paragraph 22 in order to provide the lender with the right to accelerate.

There is no language in Bartram that suggests that the dismissal of a foreclosure action without prejudice requires the lender to re-establish its right to exercise its option to accelerate by sending a new default notice under paragraph 22. And nothing in paragraph 22 requires the lender to send a new default notice prior to filing a second foreclosure action based on the same default.

In Schindler, after the bank's first foreclosure case against the defendant was dismissed, the bank filed a second complaint seeking foreclosure based on the same default that was alleged in the first foreclosure case. Schindler, 190 So.3d at 103. The trial court dismissed the bank's first foreclosure case because it "had 'chosen not to timely file an amended complaint.'

" Id. The trial court dismissed the case pursuant to rule 1.420(b). Id. According to rule 1.420(b), "the order operates as an adjudication on the merits '[u]nless the court in its order of dismissal otherwise specifies.' " Id. at 104. Because the trial court's order did not specify that the order does not operate as an adjudication on the merits, the Fourth District found that it had the effect of a dismissal with prejudice. Id. Thus, the dismissal of the prior case necessitated the sending of a new default notice because the dismissal was an adjudication on the merits. See id. at 105 ("Because Bank's second foreclosure action was predicated upon the same default raised in the first action, the prior adjudication on the merits barred Bank from relying on that default under the doctrine of res judicata.").

Here, unlike in Schindler, the dismissal was without prejudice and was, therefore, not an adjudication on the merits. As such, the Bank was not required to send a new default notice prior to filing the second foreclosure action, and the trial court erred in concluding otherwise.

The reasoning of the Fourth District's decision in Sill v. JPMorgan Chase Bank, National Ass'n, 182 So.3d 851 (Fla. 4th DCA 2016), further supports the conclusion that the Bank was not required to mail a new default notice before filing a second foreclosure action based on the same default when the first foreclosure action was dismissed without prejudice. In Sill, after the borrower defaulted on the loan, Chase sent a default notice pursuant to paragraph 22, advising him that he had thirty days to cure the default or the loan would be accelerated. Id. at 852. After the borrower failed to cure the default, Chase filed a foreclosure complaint, which was voluntarily dismissed without prejudice. Id. Chase then filed a second foreclosure complaint alleging the same default. Id. The borrower argued that paragraph 22 required Chase to mail a second default notice before filing the second foreclosure action. Id. The Fourth District disagreed, stating the following:

Chase filed the new complaint less than two months after it voluntarily dismissed the first suit. Sill had not made any payments between receipt of the 2009 notice of default and the filing of the second complaint in 2013. The mortgage does not require that a new notice of default be sent, and we find that requiring a second notice of default would serve no practical purpose. As such, Chase's 2009 thirty-day notice of default remained valid and a second notice of default was not required before filing the second complaint based on the same default.

Id. at 852-53. The Fourth District also distinguished its previous holding in Schindler, explaining that the "holding in Schindler-that a borrower is entitled to a new notice before the second complaint is filed-applies where the dismissal of the first complaint was an adjudication on the merits." Sill, 182 So.3d at 852. A new default notice is not required before the filing of the second complaint when the dismissal of the first complaint was without prejudice and thus not an adjudication on the merits. See id. at 853.

Furthermore, the trial court's assertion that a new default notice must be sent after a dismissal without prejudice because the amount due to cure the default would be different than the one stated in the prior default notice is misplaced. There is no requirement that a new default notice must be sent for each subsequent default prior to filing a foreclosure action. See Milam, 177 So.3d at 18 n.4 ("It does not follow that a borrower's continuing and uninterrupted failure to make monthly payments-as existed in this case-requires a new paragraph twenty-two notice letter for each instance in which the borrower fails to pay."); Nationstar Mortg., LLC v. Silva, 239 So.3d 782, 785 (Fla. 3d DCA 2018) ("As long as the default was not cured, and the Silvas did not pay, Nationstar was not required to send another default letter before accelerating the mortgage and proceeding with the foreclosure." (emphasis added) ); Bank of N.Y. Mellon v. Withum, 204 So.3d 136, 139 (Fla. 4th DCA 2016) ("Bank was also not obligated to send new Paragraph 22 notices after each partial payment received since Borrowers never cured the total amount due.").

Here, the Borrowers failed to make the payment due on July 1, 2010, as well as all subsequent payments. Because the default was never cured, the Bank was not required to send a new default notice before filing a second foreclosure action based on the same default. Accordingly, we reverse the trial court's order of dismissal and remand for further proceedings.

Reversed and remanded.

MORRIS and BADALAMENTI, JJ., Concur.