author: EDWARDS, J.

text:
    BANK OF AMERICA, N.A., Appellant, v. James EASTRIDGE and Jennifer Eastridge, Appellees.
    Case No. 5D17-2541
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Elizabeth Ann Henriques, and Tricia J. Duthiers, of Liebler, Gonzalez & Portuondo, Miami, for Appellant.
    James Eastridge, and Jennifer Eastridge, Oviedo, pro se.
   EDWARDS, J.

This case involves obtaining ownership of real property by squatters' rights, i.e. adverse possession. Bank of America, N.A. ("BOA"), appeals the final default judgment that extinguished BOA's mortgage and title to the subject property and awarded unencumbered title to Appellees, James and Jennifer Eastridge, based on their convincing, but incorrect, assertion that seven years of actual and continuous adverse possession is no longer required by section 95.18, Florida Statutes (2016). We find that the trial court erred by: (1) ruling that because a clerk's default had been entered, BOA could not oppose entry of judgment by asserting failure to state a cause of action, (2) finding that section 95.18 no longer required seven continuous years of adverse possession, (3) concluding that Appellees met the requirements of section 95.18, and (4) denying BOA's motion for rehearing. Accordingly, we reverse the final judgment and remand the cause to the trial court with instructions to dismiss Appellees' complaint without prejudice

BOA obtained a mortgage on the subject property when it issued a home equity line of credit to the Clairs, previous owners who subsequently abandoned the property. BOA obtained title to the property by obtaining a quit-claim deed from the homeowners association that foreclosed its lien on the subject property for the Clairs' unpaid association fees. Appellees asserted their claim of adverse possession by filing a complaint to quiet title in February 2017. As an exhibit to their complaint, Appellees attached their Return of Real Property in Attempt to Establish Adverse Possession Without Color of Title ("Return"), in which they claimed they began their possession of the subject property less than four-and-one-half years prior to filing suit.

When BOA was one day late responding to the complaint, Appellees sought and obtained a clerk's default. BOA's counsel appeared and filed a motion for extension of time, one day after the default had been entered. Five days post-default, BOA filed its verified motion to set aside the default, which the trial court denied. Appellees then moved the trial court to enter a final judgment. In a written memorandum filed prior to entry of final judgment, BOA opposed entry of judgment, claiming that Appellees' complaint failed to state a cause of action because the attachments affirmatively showed Appellees possessed the land for a little more than four years, rather than for seven years as specifically required by section 95.18. Following a hearing, the trial court ruled that because BOA was in default, it could not assert that defense. The trial court first entered final judgment quieting title in favor of Appellees and then denied BOA's timely-filed motion for rehearing in which BOA reasserted the same pleading deficiencies.

First, the trial court erred when it refused to consider BOA's argument that Appellees' complaint failed to state a cause of action. "The default operates as an admission by [the defendant] of the well-pled allegations of the complaint, but not as an admission of facts not properly pled or conclusions of law." Appel v. Lexington Ins. Co. , 29 So.3d 377, 379 (Fla. 5th DCA 2010). The party seeking affirmative relief may not be granted a judgment that is not supported by the pleadings or by substantive law applicable to the pleadings. Becerra v. Equity Imps., Inc. , 551 So.2d 486, 488 (Fla. 3d DCA 1989). A party in default may rely on these limitations. Id. "The defense of failure to state a cause of action may be raised by motion, even after a default, and may be raised at the trial on the merits." Appel , 29 So.3d at 379. Therefore, the trial court was required to entertain BOA's argument addressing Appellees' allegedly inadequate complaint, and erred by refusing to consider it. However, that error requires reversal only if Appellees' complaint fails to state a cause of action.

Second, the trial court erred by finding that section 95.18(1) no longer required seven continuous years of adverse possession. Adverse possession generally requires the possessor/claimant to have actual, open, and notorious possession for the statutory period. Milton v. Corrie , No. 16-62590-Civ-Scola, 2017 WL 2214756, at *3 (S.D. Fla. May 18, 2017). However, Florida allows a squatter or adverse possessor to "tack" or combine his/her period of adverse possession with the period of a prior adverse possessor in order to meet the statutory time requirement. See, e.g. , Supal v. Miller , 455 So.2d 593, 594 (Fla. 5th DCA 1984) (finding that "tacking can be used to establish a prescriptive easement" to meet the full prescriptive period).

Although tacking was not involved here, the statutory provisions regarding tacking were used to create confusion in this case. Section 95.18(1) speaks to the possessory accomplishments of both the claimant and the claimant's predecessors. Here, BOA, Appellees, and the trial court all agreed that the 2012 version of this statute required Appellees to prove that they, or their predecessors, had actually and continuously occupied the subject property for seven years. Under the 2012 version, Appellees' time of possession would have fallen short of the requirement by approximately thirty months. However, Appellees argued and the trial court found, despite BOA's disagreement, that a legislative change in 2013 eliminated the seven-year possessory requirement. To determine if such a change was made, we will examine both versions.

The relevant portion of the 2012 version reads:

When the occupant has, or those under whom the occupant claims have , been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied is held adversely if the person claiming adverse possession made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

§ 95.18(1), Fla. Stat. (2012) (emphasis added). After the amendment in 2013, which the 2016 version reflects, the statute now reads:

(1) When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, or when those under whom the possessor claims meet these criteria , the property actually possessed is held adversely if the person claiming adverse possession:
(a) Paid, subject to s. 197.3335, all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality within 1 year after entering into possession;
(b) Made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 30 days after complying with paragraph (a); and
(c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality for all remaining years necessary to establish a claim of adverse possession.

§ 95.18(1), Fla. Stat. (2016) (emphasis added).

Appellees argued and the trial court determined that the 2016 version of section 95.18(1) required either actual, continuous possession for seven years or, in the alternative, compliance with the requirements listed in subsections 95.18(1)(a)-(c) without seven years of possession. The court's interpretation of the statute is incorrect for three reasons: (1) the language allowing combined consideration of the activities of the possessor and its predecessors clearly and unambiguously applies only to the requirement of actual, continuous possession; (2) the court's interpretation would render portions of the statute meaningless; and (3) the court's interpretation would lead to an absurd result.

Both the 2012 and the 2016 versions set forth minimum seven-year actual and continuous occupancy or possessory requirements that can be met by the claimant alone or that can be met through tacking by considering the actions of the claimant and the claimant's predecessors. We will refer to the statutory language regarding the claimant's predecessor's actions as the tacking phrase. In the 2012 version, the tacking phrase was found at the beginning of the section: "When the occupant has, or those under whom the occupant claims have , been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree." § 95.18(1), Fla. Stat. (2012) (emphasis added). In this context, the language clearly and unambiguously indicates that either the occupant or its predecessor must have actually and continually occupied the property for seven years and must also be without color of title.

The 2016 version contains substantially the same tacking phrase, even though the phrase was shifted and now appears after the requirement of possession for seven years without color of title: "When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, or when those under whom the possessor claims meet these criteria ...." § 95.18(1), Fla. Stat. (2016) (emphasis added). It is because of this shift in location that the court apparently reached its interpretation that seven years of continuous and actual possession of the property was but one alternative way of obtaining ownership through adverse possession. However, in so construing, the court ignored simple sentence structure-the phrase "or when those under whom the possessor claims meet these criteria " clearly only refers back to the criteria or requirements of actual, continuous possession without color of title.

Furthermore, both versions have additional requirements or tasks that address the open, notorious, and adversary nature of possession of "the property actually occupied" or "possessed" which only the claimant can accomplish, such as filing a return and paying outstanding taxes and liens. Thus, the tacking phrase applies only to the possessory requirement and not to the additional adverse qualities of the possession required to perfect a claim for section 95.18(1). Since the language is clear and unambiguous, there is no need to look beyond the plain language of the statute. See Daniels v. Fla. Dep't of Health , 898 So.2d 61, 64 (Fla. 2005). The plain language of the statute clearly requires the claimants/possessors, here Appellees, individually or in combination with their predecessors to meet the criteria of actual, continuous possession for seven years without color of title. The requirement of actual possession, which can be accomplished by the claimant or its predecessor adverse possessors, is in addition to, rather than as an alternative to, the requirement of establishing the adverse nature of the possession which must be personally accomplished by the claimant/current possessor.

Additionally, the trial court's interpretation of the statute renders portions of the statute meaningless, which courts should avoid doing. See Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 456 (Fla. 1992). Here, the trial court presumably reached its conclusion by ignoring the following statutory language found in section 95.18(1) : "the property actually possessed is held adversely if the person claiming adverse possession ...." That phrase not only reiterates the "actual possession" requirement in a short-hand manner, it states that the statute only considers specific actions (making a return, paying taxes and liens) of "the person claiming adverse possession" to determine whether the possession was adverse. Neither version of the statute permits or considers whether a claimant's predecessor made a return, paid outstanding taxes, or paid outstanding liens. See Scherer v. Volusia Cty. Dep't of Corr. , 171 So.3d 135, 139 (Fla. 1st DCA 2015) (finding that no part of a statute, "not even a single word," should be ignored or rendered meaningless). Thus, for this reason as well, the trial court erred.

Moreover, the court's statutory interpretation would lead to absurd results. If one employed the trial court's interpretation, a person claiming adverse possession of a property with six years' outstanding taxes could successfully obtain ownership through adverse possession under section 95.18 simply by paying the outstanding taxes, filing the return, and then paying the current year's taxes without ever entering into possession of the property. Given the statute's title and clear requirement of seven years' possession by the claimant and/or its predecessors, this hypothetical result would be absurd. As courts should avoid interpretations rendering the result absurd, the court's interpretation was in error. See M.M. v. State , 187 So.3d 300, 304 (Fla. 5th DCA 2016).

Third, the trial court erred by concluding that Appellees met the requirements of section 95.18, as it should have considered whether Appellees' complaint contained well-pled allegations that Appellees were in actual, continuous possession of the subject property for seven years as required by section 95.18(1), Florida Statutes (2016). Appellees' complaint generally asserts compliance with the statute. However, the only specific statement regarding when Appellees commenced possession is found in their Return which they attached to the complaint. Their Return states that they entered into possession of the subject property on September 24, 2012, which means that only four years, four months, and thirty days elapsed from first possession to the filing of their complaint-a period far short of the statutory seven-year requirement. Because the date provided in the Return which Appellees' attached to their complaint contradicts the general averment of compliance with the statute, the date set forth in the Return controls. "Where a document on which the pleader relies in the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action." Appel , 29 So.3d at 379. Given that Appellees' complaint failed to state a cause of action under section 95.18, under both the 2012 and 2016 versions, the lower court erred both by ignoring BOA's efforts to raise that defense and by entering the default final judgment.

Fourth, the trial court erred by denying BOA's motion for rehearing. A trial court's denial of a motion for rehearing is usually subject to an abuse of discretion standard of review; however when the motion only addresses issues of law the standard of review is de novo. Randall v. Walt Disney World Co. , 140 So.3d 1118, 1119-20 (Fla. 5th DCA 2014) (quoting Mistretta v. Mistretta , 31 So.3d 206, 208 (Fla. 1st DCA 2010) ). As the issues of law raised in BOA's motion for rehearing should have been decided in BOA's favor, the trial court erred in denying BOA's motion for rehearing.

Accordingly, the final default judgment is reversed in its entirety and the case is remanded to the trial court with instructions to dismiss Appellees' complaint with leave to file an amended complaint within twenty days if they can do so in good faith. Should Appellees file an amended complaint, BOA will be entitled to timely respond.

REVERSED and REMANDED with instructions.

SAWAYA and ORFINGER, JJ., concur.

      Appellees assert in their answer brief that their possession of the subject property commenced one month later, on October 24, 2012, which is even less time than reported in their Return.

      BOA argues that the Return and complaint disclose that Appellees failed in other ways to comply with section 95.18 ; however, because of the remand, we need not address those issues at this time.

      Given Appellees' previous statements of when their possession commenced, they may find themselves unable to plead compliance with section 95.18(1) without subjecting themselves to sanctions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2501, LLC, Appellant/Cross-Appellee, v. PRICE BUSTER MATTRESS, LLC and Price Buster Mattress Florida, LLC, Appellees/Cross-Appellants.
    Case No. 5D17-580
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018 Rehearing Denied September 28, 2018
    Dennis F. Fairbanks, Melbourne, for Appellant/Cross-Appellee.
    Michael E. Dujovne and David J. Volk of Volk Law Offices, P.A., Melbourne, for Appellees/Cross-Appellants.
   PER CURIAM.

2501, LLC ("Landlord"), filed two separate complaints against Price Buster Mattress, LLC ("Tenant"), alleging breach of a commercial lease. The parties stipulated that in the first suit, Landlord sought to recover for Tenant's alleged breach of lease through the date of filing of the first complaint-August 5, 2014. In the second suit, Landlord sought to recover through the date of filing of the second complaint-November 4, 2015. The two suits were consolidated and tried together. The issues at trial revolved around which party breached the lease agreement and when Landlord retook possession of the premises. The trial court ultimately found that Tenant breached the lease, but that Landlord retook possession of the property on June 6, 2014, and thereafter failed to mitigate its damages.

Landlord appeals, arguing that the trial court erred in finding that it retook possession of the premises. Tenant cross-appeals, contending that the Landlord was, in fact, the breaching party and that the trial court erred in its determination of when Landlord retook possession. Tenant also argues that the trial court erred in not separating the two cases in the final judgment.

We affirm both appeals because competent, substantial evidence supports the trial court's determinations that Tenant breached the lease but that Landlord retook possession of the premises on June 6, 2014. However, we agree with Tenant that even though the cases were consolidated for trial, Tenant is entitled to a judgment separating the two cases for damages purposes, as well as a determination as to which party was the prevailing party in each case. See OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So.2d 113, 116 (Fla. 5th DCA 2005) ("[C]onsolidated cases do not lose their individual identities as distinct, separately filed causes of action."); cf. CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So.2d 1031, 1033 (Fla. 5th DCA 2002) (remanding for trial court to enter separate judgments for damages, interest, attorney's fees, and costs on separate but consolidated cases; ordering trial court on remand to "apportion (if possible) the fees attributable" to the separate cases).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      Brevard County Circuit Court case number 05-2014-CA-37148.

      Brevard County Circuit Court case number 05-2015-CA-048128.


author: Per Curiam.

text:
    DEPARTMENT OF REVENUE, ON BEHALF OF Neandra GILMORE, Appellant, v. Byron JOHNSON, Appellee.
    No. 1D17-4036
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

The Department of Revenue appeals a final support order on behalf of Neadra Gilmore (mother), which set Byron Johnson's (father) monthly child support obligation. We reverse because the monthly support obligation, after accounting for Mr. Johnson's other monthly child support obligations, appears either to have been miscalculated or left erroneously unexplained under § 61.30(1)(a), Florida Statutes.

Mr. Johnson requested an administrative hearing after receiving a Proposed Administrative Support Order issued by the Department with respect to the party's common child. The Proposed Administrative Support Order set Mr. Johnson's child support obligation under the guidelines at $1,265 per month. After a hearing, the administrative law judge established Mr. Johnson's child support obligation at $900 per month.

The Department appealed arguing that it was improper for the Administrative Law Judge (ALJ) to have considered Mr. Johnson's $720 per month child support payment for other biological children when they were not court-ordered obligations. Mr. Johnson paid child support for his other children more-or-less voluntarily. We recognize the Department's point that § 61.30(3)(f) only provides for subtracting "[c]ourt-ordered" support for other children from a party's gross income in calculating a party's net income. However, the statute gives the trier of fact discretion to adjust a child support award to achieve an equitable result on account of a party's reasonable and necessary existing expenses or debts. See § 61.30(11)(a) 11., Fla. Stat. That is what the ALJ did here:

On this record and under these facts, the undersigned believes it would be an abuse of discretion not to consider regular child support payments being made by the Father for his two other biological children. As a result, a downward deviation is awarded.

We find no abuse of discretion in the ALJ's decision to deviate from the guideline amount based on the finding that Mr. Johnson provides "consistent and regular" support payments for his other biological children.

But we do see a problem related to the amount of the ALJ's apparent deviation from the support guidelines. The findings below as to Mr. Johnson's costs for his other children would appear to justify a guidelines-based support payment of about $1,110 per month, substantially higher than the $900 per month ordered below. The final order provided no reasons for deviating downward an additional $200. We recognize that the ALJ also referred to the mother's earning capacity, but we cannot discern whether, or by how much, that factor may have contributed to the final figure. But under a hypothetical guideline where the mother is imputed a $15-per-hour wage, the obligation would not have reached as low as $900. Rather, under those circumstances, the $900 support payment amount would still be more than five percent below the calculated guideline amount. Deviations from the guidelines of more than five percent require additional findings "explaining why ordering payment of such guideline amount would be unjust or inappropriate." § 61.30(1)(a), Fla. Stat.

We therefore reverse and remand for entry of an amended order. On remand, the ALJ should provide calculation details supporting his method of figuring the guideline-based amount of Mr. Johnson's obligation. And if the ALJ decides to deviate by greater than five percent from the guideline amount, he should explain why the guideline amount is unjust or inappropriate. See § 61.30(1)(a), Fla. Stat.; Dep't of Revenue v. Skirko , 855 So.2d 1205, 1206 (Fla. 5th DCA 2003) (remanding for an explanation of a downward deviation).

REVERSED and REMANDED for additional consideration consistent with this opinion.

Wetherell, Ray, and Osterhaus JJ., concur.


author: Wetherell, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, ON BEHALF OF Sharon WIND, Appellant, v. Mark COCHRAN, Appellee.
    No. 1D17-4604
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Mark Cochran, pro se, Appellee.
   Wetherell, J.

The Department of Revenue, on behalf of Sharon Wind (the mother), appeals the Final Administrative Paternity and Support Order (FAPSO) establishing Mark Cochran's (the father's) initial child support obligation for the parties' then-one-year-old daughter, H.R.W. (the child). The Department argues that the administrative law judge (ALJ) erred in the FAPSO by giving the father a Smith / Speed credit for his prospective support of a then-unborn child when calculating his support obligation for the child in this case. For the reasons that follow, we agree and reverse.

Facts

After a DNA test showed that there was a 99.999999999% probability of the father's paternity of the child, the Department served the father with a proposed order establishing his paternity and his child support obligation for the child. See §§ 409.256, 409.2563, Fla. Stat. (2017). The father timely notified the Department that he disagreed with the proposed support obligation, and the case was referred to the Division of Administrative Hearings. The case was assigned to an ALJ and a hearing was held on September 28, 2017.

At the hearing, the mother and father testified about their incomes, expenses, and the daycare costs for the child. The father also testified that he and his then-girlfriend (now fiancée) were expecting the birth of a child in November 2017, and in response to questions from the ALJ, the father testified about the girlfriend's income and expenses. Based on this testimony-which the ALJ found "credible" and "certain"-the ALJ included a Smith / Speed credit for the father in the child support guidelines worksheet attached to the FAPSO. The ALJ explained in the FAPSO that "the Smith Speed credit [was] conditioned on the upcoming birth and [the father]'s support of his new biological child" and that "[t]he Smith Speed award and calculation reflects the reality of the upcoming and imminent birth of another child, and will avoid the need for additional modification proceedings."

The father's current support obligation would have been $683 per month without the Smith / Speed credit. However, with the credit, the FAPSO set the father's support obligation at $573 per month, plus an additional $52 per month for retroactive support, for a total of $625 per month, effective November 1, 2017.

The Department timely appealed the FAPSO to this court.

Analysis

On appeal, the Department argues that it was error for the ALJ to consider the father's then-unborn child when calculating his support obligation for the child in this case. This argument was not raised below, and as a general rule, we will not consider an argument that is raised for the first time on appeal. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (quoting Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ); Williams v. Williams , 152 So.3d 702, 704 (Fla. 1st DCA 2014) ; Goodson v. Dep't of Bus. & Prof. Reg. , 978 So.2d 195, 196 (Fla. 1st DCA 2008). However, in this case, there was no reason for the Department to raise this issue at the hearing because (1) the father did not request a Smith / Speed credit for his then-unborn child at any point in the proceedings, and (2) the ALJ took the case under advisement at the conclusion of the hearing without informing the parties of his intent to award such a credit. Then, after the credit appeared for the first time in the FAPSO, the Department did not have the opportunity to raise the issue with the ALJ because "a motion for rehearing is not authorized in the context of the administrative establishment of child support obligations under section 409.2563, Florida Statutes." Dep't of Revenue v. Vanamburg , 174 So.3d 640, 642 (Fla. 1st DCA 2015). Accordingly, in these circumstances, appellate review is not precluded by the Department's failure to raise the issue below.

The issue of whether a Smith / Speed credit can be awarded for a parent's prospective support of an unborn child presents a pure question of law that we review de novo . See Dep't of Revenue v. Price , 182 So.3d 782, 782 (Fla. 1st DCA 2015) ("We review the trial court's application of the statute to the undisputed facts de novo.").

The Smith / Speed credit is an equitable adjustment to the obligor's child support obligation to account for the obligor's support of other biological children. See Dep't of Revenue ex rel. Shirer v. Shirer , 197 So.3d 1260, 1262 n.2 (Fla. 2d DCA 2016) (" Smith credit refers to credit for the support of other children born prior to the children for which the support order is being sought."). The credit is calculated based upon (1) the amount of support that the obligor would have to pay for the other child(ren) under the guidelines if he and the other child(ren)'s mother divorced; (2) a pre-existing support obligation; or (3) the amount that would be reasonably expended for the other child(ren)'s support. See Speed , 749 So.2d at 510-11 ; Smith , 716 So.2d at 334-35 ; Flanagan v. Flanagan , 673 So.2d 894 (Fla. 2d DCA 1996).

The Smith / Speed credit is not a deduction from the obligor's gross income because section 61.30(3)(f), Florida Statutes, only allows for a deduction of "[c]ourt-ordered support for other children which is actually paid." Instead, the credit is an equitable adjustment under section 61.30(11)(a) 11., Florida Statutes, which allows the trial court (or, here, the ALJ) to make "[a]ny other adjustment [to the guideline support amount] that is needed to achieve an equitable result." See Ogando v. Munoz , 962 So.2d 957, 959-60 (Fla. 3d DCA 2007) ("Although the Father is not entitled to a deduction from gross income for the support he provides to his other three children, section 61.30(11)(a)(11), Florida Statutes, (2006), allows a court to 'adjust the minimum child support award, or either or both parents' share of the minimum child support award ... to achieve an equitable result.' "); Henderson v. Henderson , 905 So.2d 901, 904 n.2 (Fla. 2d DCA 2005) ("While the obligation to support children not subject to any prior support action is not an allowable deduction from gross income, in some circumstances it is a matter that can be considered as grounds for a deviation under other provisions of section 61.30."); Joye v. Jones , 789 So.2d 508, 509 (Fla. 1st DCA 2001) (explaining that trial courts are vested with "wide discretion ... to take into account a parent's obligation of support to other children, in the determination of what is a proper child-support award for the minor child who is the subject of the support action").

The ALJ did not cite, nor has our research located, a single case involving an award of a Smith / Speed credit for an unborn child. The absence of such authority is not surprising because it is well-established that the child support obligation does not commence until the birth of the child. See Dep't of Revenue ex rel. Smith v. Selles , 47 So.3d 916, 921 (Fla. 1st DCA 2010) (quoting Morris v. Swanson , 940 So.2d 1256, 1257 (Fla. 1st DCA 2006) ("Support is a dual obligation owed by both biological parents to their child from the moment of the child's birth .") (emphasis added); Horn v. Dep't of Revenue ex rel. Abel , 752 So.2d 687, 688 (Fla. 3d DCA 2000) ("Under common law, a child was entitled to support retroactive to the date of birth."); Ellis v. Humana of Fla., Inc. , 569 So.2d 827, 828 (Fla. 5th DCA 1990) ("And while the [parent] had no direct obligation of child support before the birth of the child, this inchoate obligation created at fertilization springs forth into full life upon the birth of the newborn child.").

The award of a Smith / Speed credit for an unborn child also raises practical problems. Although the ALJ found in the FAPSO that there was "no evidence or argument presented to suggest that this imminent birth [of the father's then-unborn child] was not credible or certain," there is never a guarantee of a healthy pregnancy or delivery. If the unborn child was not born, the father would have received a windfall to the detriment of the child at issue in this case and the mother would be forced to file a modification petition to increase the award to what it should have been had the Smith / Speed credit not been awarded.

Conclusion

For the reasons stated above, the ALJ erred in giving the father a Smith / Speed credit for his prospective support of a then-unborn child when calculating the father's initial support obligation for the child in this case. Accordingly, we reverse the FAPSO and remand for entry of a new order consistent with this opinion.

REVERSED and REMANDED with instructions.

Roberts and Osterhaus, JJ., concur.

      Dep't of Revenue ex rel. Marshall v. Smith , 716 So.2d 333 (Fla. 2d DCA 1998).

      Speed v. Dep't of Revenue ex rel. Nelson , 749 So.2d 510 (Fla. 2d DCA 1999).

      During his questioning of the father, the ALJ cryptically stated, "I am not going to commit to what I will be doing with the information, but it is something we need to do if we have [other] children involved."

      The Department did not challenge the calculation of the retroactive support, which was based on guideline worksheets that did not include a Smith /Speed credit. The father did not file a cross-appeal challenging the FAPSO, but he argued in his answer brief that the retroactive support should only go back to May 2017, when he received the results of the DNA test, rather than August 2016, when the child was born. This argument is procedurally barred and will not be considered. See Dep't of Revenue v. Osagie , 229 So.3d 1289 (Fla. 1st DCA 2017) (striking answer brief to the extent it sought affirmative relief because the appellee had not filed a cross-appeal).

      Although not raised by the Department, we note that the ALJ failed to explain why the reduced child support obligation commenced on November 1 when the ALJ found that the child was not due to be born until November 30.

      The FAPSO was issued by the ALJ three days after the hearing, on October 1, 2017.

      Cases applying the Smith /Speed credit typically involve additional children that were born in a marriage and is based upon the premise that public policy does not support requiring a party to get divorced in order to deviate from the guideline award. See, e.g. , Speed , 749 So.2d at 511 ; Smith , 716 So.2d at 335. Likewise, as here, a party should not be required to get married and then divorced in order to be given an equitable deviation for his or her support of another child. See Dep't of Revenue ex rel. Gilmore v. Johnson , Case No. 1D17-4036, 253 So.3d 729, 2018 WL 3799048 (Fla. 1st DCA August 10, 2018) (finding no abuse of discretion in ALJ's award of a Smith /Speed credit for consistent and regular support payments for non-marital children).


text:
    Evan C. WILHELM, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D16-2262 1D17-0571
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus, Bryan E. DeMaggio, and Jesse B. Wilkinson, of Sheppard, White, Kachergus, & DeMaggio, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
    ON MOTION FOR REHEARING

      We deny rehearing, but grant clarification, substituting this opinion for our original opinion.

   Per Curiam.

This is a consolidated appeal from orders denying Evan C. Wilhelm's motion for postconviction relief and motion to correct illegal sentence. Mr. Wilhelm asserted multiple grounds of ineffective assistance of counsel related to the plea and sentencing process and also asserted that his sentence was an illegal general sentence.

BACKGROUND

At a Florida State University fraternity party in January 2011, Mr. Wilhelm was drinking and playing with a loaded AK-47 semi-automatic rifle, pointing it at various people. When he pointed it at one young woman in the room, the firearm discharged, striking her in the chest and killing her. Appellant was charged with and entered an open no contest plea to three criminal charges: manslaughter, possession of a firearm on school property, and culpable negligence with injury.

Because of Mr. Wilhelm's plea, the only remaining issue was sentencing. At a contested sentencing hearing, the State sought a lengthy prison sentence, while Mr. Wilhelm urged the court to downward depart from the lowest permissible sentence on the scoresheet of 127.35 months (or 10.5 years).

Before imposing sentence, the court discussed the manslaughter count, but did not find a downward departure to be appropriate. The court imposed a prison sentence of twenty years and ten years' probation. The clerk then inquired about count three, whereupon the court sentenced Mr. Wilhelm to time served on count three. There was no mention of count two (possession of a firearm on school property). The final written judgment, however, reflected a sentence of 20 years' incarceration followed by 10 years' probation for both counts one and two.

ANALYSIS

In Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court outlined the two-pronged test to determine ineffective assistance of trial counsel. Spera v. State , 971 So.2d 754, 757 (Fla. 2007). "The deficient performance prong requires ... acts or omissions of counsel that are 'so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.' The prejudice prong requires ... 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id. at 757-58 (quoting Strickland , 466 U.S. at 649, 104 S.Ct. 2052).

On appellate review, the court applies a mixed standard of review. See Smith v. State , 213 So.3d 722, 739 (Fla. 2017). This Court reviews the trial court's factual findings for competent, substantial evidence, and it reviews the trial court's legal conclusions de novo. Hunter v. State , 87 So.3d 1273, 1275 (Fla. 1st DCA 2012).

Mr. Wilhelm raised multiple claims of ineffective assistance of counsel in the trial court. On appeal, he asserts that his attorneys were ineffective for failing to convey a plea offer, failing to give him good advice regarding the offer, and miscalculating his age and not taking advantage of the sentencing window during which he qualified for sentencing as a youthful offender (and not owning up to this error at the sentencing hearing).

At the evidentiary hearing on his post-conviction motion, Mr. Wilhelm testified that he was never advised of the State's plea offer of 10 years' incarceration, and would have taken the offer if he had known about it. Mr. Wilhelm had four attorneys, one of whom was his father. His father and another attorney testified that Mr. Wilhelm was not advised of this plea offer. However, Mr. Wilhelm's other two attorneys, Mr. Dobson and Mr. Smith, testified that they went to the jail and advised Mr. Wilhelm of the State's plea offer and he rejected it. They testified that they advised him he could potentially receive a sentence of 20 years or more. But Mr. Wilhelm was not prepared to accept a plea offer that included more than two or three years' incarceration. The attorneys told him that they did not think such an offer would be forthcoming. The trial court credited the testimony of the two attorneys. Thus, we find no error in the trial court's decision to deny relief because Mr. Wilhelm's argument did not establish prejudice.

Attorneys Dobson and Smith also testified that they originally considered seeking a youthful offender sentence for Mr. Wilhelm, but didn't correctly account for his age and that the window to seek the mitigated sentence expired just a few months after the charges were filed when Mr. Wilhelm turned 21. See § 958.04(1)(b), Fla. Stat. (authorizing youthful offender sentencing if a defendant is younger than 21 years of age at the time the sentence is imposed). The attorneys admitted miscalculating Mr. Wilhelm's age, but testified that the overarching defense strategy was to delay sentencing to give the victim's family time to heal, hoping that they would not oppose a mitigated sentence. In addition, they contended the originally assigned trial judge had a reputation for giving lengthy prison sentences. And Mr. Wilhelm did not want to enter an open plea in front of that particular trial judge. Under these circumstances, the trial court concluded "that the failure to explore sentencing under the Youthful Offender Act would simply not have made any difference in the outcome." We affirm this conclusion. We additionally find no merit to the argument that counsel's failure to own up to miscalculating Mr. Wilhelm's age at the sentencing hearing created a conflict of interest and ineffective assistance.

Finally, we affirm the trial court's decision to deny Mr. Wilhelm's 3.800(a) claim. Mr. Wilhelm argues that the court imposed an unlawful general sentence for counts one and two. But we see the issue like the trial court did. The sentencing judge's error on count two was not that it imposed an unlawful general sentence, but that it entirely overlooked count two when orally pronouncing the sentence. The written judgment suggested that the court had imposed an unlawful general sentence, but the written judgment was wrong. The trial court did not address count two at sentencing. This problem, however, has been addressed. The court issued a corrected judgment that corrected the sentence on count two to time served. As it stands, Mr. Wilhelm has already completed his time-served sentence on count two, and the sentence on count one is legal.

For these reasons, the orders are AFFIRMED .

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Curtis James JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-316
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Curtis James Jackson appeals his conviction for aggravated battery with a firearm. He raises two issues on appeal, one of which we find meritorious. We reverse and remand for a new trial because the trial court erred by not giving the jury instruction Mr. Jackson sought on the justifiable use of deadly force.

Mr. Jackson and another man had an altercation at a nightclub that ended when Mr. Jackson shot and wounded the victim. The victim testified that he exchanged words with Mr. Jackson and "the next thing I know I had got shot." Mr. Jackson on the other hand testified that the victim escalated the fight when he cornered Mr. Jackson against a wall and began punching him on both sides of the face. He claimed that one of the punches left him with nerve damage to his eye. More than that, he feared the victim's punches could break his medically vulnerable neck and shoulder. He showed a scar at trial from a cervical surgery, and the jury viewed a video of his interrogation in which Mr. Jackson claimed to have had multiple prior neck and shoulder surgeries and expected additional surgery. Mr. Jackson testified that the victim punching him was a big guy.

Mr. Jackson asserts that on these facts it was error for the court to not give his requested instruction on justifiable use of deadly force. A criminal defendant "is entitled, upon request and by law, to have the jury instructed on his theory of defense if any evidence supports that theory, so long as the theory is valid under Florida law."

Goode v. State , 856 So.2d 1101, 1104 (Fla. 1st DCA 2003) (emphasis in original). "This is true even if the only evidence of the defense is provided by the defendant's own testimony, and even if that testimony is weak or improbable." Williams v. State , 588 So.2d 44, 45 (Fla. 1st DCA 1991). In determining whether to give the requested instruction, the court may not weigh the credibility of the evidence that supports giving the instruction. See Chavers v. State , 901 So.2d 409, 410 (Fla. 1st DCA 2005). "[I]t is enough if any evidence supports the defense." Barnes v. State , 108 So.3d 700, 702 (Fla. 1st DCA 2013).

Florida law justifies the use of deadly force if someone "reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony." § 776.012(2), Fla. Stat. In most cases, a person in a fist fight lacks a sufficient justification to use deadly force. Here, however, we conclude that the jury could have viewed the combined evidence "as reasonably suggestive of a threat [of imminent death or great bodily harm] to a person in appellant's position." Chavers, 901 So.2d at 411.

We therefore REVERSE the judgment and sentence and REMAND for a new trial.

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Daniel E. GORMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4268
    District Court of Appeal of Florida, Second District.
    Opinion filed August 15, 2018.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Daniel E. Gorman, Jr., appeals the summary denial of his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a) in which he claimed that his concurrent forty-five-year sentences imposed while he was a juvenile are illegal according to Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Kelsey v. State, 206 So.3d 5 (Fla. 2016), and Henry v. State, 175 So.3d 675 (Fla. 2015). Pursuant to our order to the State to respond to Mr. Gorman's brief, the State conceded that he is entitled to be resentenced under chapter 2014-220, Laws of Florida, as codified in sections 921.1401 and 921.1402, Florida Statutes (2016). We accept the State's concession and reverse the order denying Mr. Gorman's rule 3.800(a) motion and remand for resentencing.

Our disposition deserves some explanation given the history of this case. Before filing the present rule 3.800(a) motion, Mr. Gorman raised the same claim in an earlier rule 3.800(a) motion. The postconviction court denied that motion, and in March 2016, this court affirmed citing Williams v. State, 197 So.3d 569, 571-72 (Fla. 2d DCA 2016), which held that a fifty-year sentence was not a de facto life sentence and therefore was not unconstitutional under Graham. See Gorman v. State, 232 So.3d 1006 (Fla 2d DCA 2017) (table decision). Among other cases, Williams cited to the First District's decision in Kelsey v. State, 183 So.3d 439, 440 (Fla. 1st DCA 2015), which concluded that concurrent forty-five-year sentences for the juvenile offender in that case did not violate Graham because they were not de facto life sentences.

While Mr. Gorman's appeal from the denial of that motion was pending, the Florida Supreme Court quashed the First District's decision in Kelsey and rejected the argument that Graham only applied to "de facto life" sentences. Kelsey, 206 So.3d at 10. Mr. Gorman, whose brief had already been submitted, filed a notice of supplemental authority bringing Kelsey to our attention. Several months later when we issued our decision affirming the denial of his motion, Mr. Gorman timely sought rehearing asserting that this court had overlooked our supreme court's decision in Kelsey. Nevertheless, we denied his motion for rehearing.

Our affirmance of the denial of Mr. Gorman's first rule 3.800(a) motion was the basis for the postconviction court's denial of the rule 3.800(a) motion that is the subject of this appeal. Mr. Gorman filed this motion shortly after we issued our affirmance, arguing that his forty-five-year sentences are illegal under Graham. The postconviction court denied the motion stating that it had "previously denied this claim" and that "[t]he Second District Court of Appeal per curiam affirmed and issued a Mandate on June 7, 2017." In following our decision, the postconviction court did not err-the error that warrants reversal here was in our decision affirming the denial of Mr. Gorman's first rule 3.800(a) motion.

Our decision rejecting Mr. Gorman's claim that his sentence violated Graham was the law of the case, and the postconviction court was bound to follow it. See Brunner Enters., Inc. v. Dep't of Revenue, 452 So.2d 550, 552-53 (Fla. 1984). Generally we, too, are bound by our prior decisions. "However, the doctrine is not an absolute mandate, but rather a self-imposed restraint that courts abide by to promote finality and efficiency in the judicial process and prevent relitigation of the same issue in a case." State v. Owen, 696 So.2d 715, 720 (Fla. 1997). We have "the power to reconsider and correct erroneous rulings in exceptional circumstances and where reliance on the previous decision would result in manifest injustice." Id.; see also Strazzulla v. Hendrick, 177 So.2d 1, 5 (Fla. 1965) (explaining that an appellate court has the power to reconsider and correct an erroneous ruling that has become law of the case).

Under the circumstances presented in this case, we conclude that it is appropriate to exercise our power to reconsider our prior decision erroneously rejecting Mr. Gorman's claims that his sentences are illegal under Graham and that pursuant to Kelsey, he is entitled to be resentenced. To adhere to our prior decision would be a manifest injustice. It would be fundamentally unfair to deny Mr. Gorman the relief we have afforded to other similarly situated juvenile offenders that would deprive him of the opportunity for subsequent judicial review of his sentences and an opportunity for early release based on a demonstration of maturity and rehabilitation. See, e.g., Alfaro v. State, 233 So.3d 515, 516 (Fla. 2d DCA 2017) (reversing denial of defendant's postconviction motion based on Kelsey and remanding for resentencing on crimes he committed while a juvenile); Mosier v. State, 235 So.3d 957, 957-58 (Fla. 2d DCA 2017) (reversing denial of defendant's motion to correct illegal term-of-years sentence for offenses he committed while a juvenile and remanding for resentencing pursuant to sections 775.082, 921.1401, and 921.1402 ). Accordingly, we reverse Mr. Gorman's sentences and remand for resentencing pursuant to sections 921.1401 and 921.1402.

Reversed and remanded.

KELLY, VILLANTI, and SLEET, JJ., Concur.

      The table opinion that per curiam affirmed Gorman, appearing in the hardbound copy of Southern Third Reporter at 232 So.3d 1006, does not include the citation to Williams. Our slip opinion and the Westlaw version of the opinion, however, do contain the Williams citation. See Gorman v. State, No. 2D16-1914 (Fla. 2d DCA Mar. 17, 2017) ; Gorman v. State, 2017 WL 1040776 (Fla. 2d DCA Mar. 17, 2017).


author: VILLANTI, Judge.

text:
    Alberto R. VALLE, Appellant/Cross-Appellee, v. Scott S. FLORY, Appellee/Cross-Appellant.
    Case No. 2D16-2848
    District Court of Appeal of Florida, Second District.
    Opinion filed August 15, 2018
    Roy D. Wasson of Wasson & Associates, Chartered, Miami; and Frank D. Butler of Frank D. Butler, P.A., Pinellas Park, for Appellant/Cross-Appellee.
    Anthony J. Russo and Mihaela Cabulea of Butler Weihmuller Katz Craig LLP, Tampa; and Nina M. Hanson of Kaleel & Kaleel, St. Petersburg, for Appellee/Cross-Appellant.
   VILLANTI, Judge.

Alberto Valle, who was the plaintiff below, seeks review of the final judgment entered in favor of Scott Flory after a jury trial in this personal injury case arising from an auto accident. Flory cross-appeals the denial of his motion for attorney's fees pursuant to a proposal for settlement that he served under section 768.79, Florida Statutes (2014), and Florida Rule of Civil Procedure 1.442. We reject Valle's arguments directed to the final judgment and affirm that judgment without further comment. On the cross-appeal of the attorney's fee order, we reverse and remand for further proceedings.

Valle sued Flory for injuries he allegedly suffered in a car accident that occurred on August 2, 2012. Prior to trial, Flory admitted that the driver of his car was negligent in causing the accident; however, the issues of causation of any injuries and damages were hotly contested.

As the case proceeded through discovery, Flory served a proposal for settlement on Valle pursuant to the provisions of section 768.79 and rule 1.442. There is no dispute that Valle's counsel timely received the proposal for settlement via certified mail; however, there is also no dispute that the certificate of service that accompanied the proposal for settlement was not signed by Flory's counsel, apparently through oversight. But, Valle rejected the proposal for settlement and proceeded to trial.

At trial, the jury returned a verdict in favor of Flory, finding that the negligence of the driver of his car was not the cause of any of Valle's injuries. After final judgment was rendered in favor of Flory, Flory filed a motion for an award of attorney's fees pursuant to the unaccepted proposal. The trial court denied this motion solely on the ground that the proposal was invalid because the certificate of service that accompanied it was not signed, which the court found rendered the proposal noncompliant with the requirements of rule 1.442(c)(2)(g). Flory now appeals this ruling, arguing that this omission did not render the proposal invalid. We agree.

Rule 1.442(c)(2) lists the requirements for the form and content of a proposal for settlement. When the proposal at issue was served in 2014, subsection (2)(G) required that the proposal "include a certificate of service in the form required by rule 1.080." (Emphasis added.) In turn, the applicable version of rule 1.080(a) provided that "[e]very pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516." (Emphasis added.) And the applicable version of rule 2.516 prescribed the required form of a certificate of service:

When any attorney certifies in substance:
"I certify that the foregoing document has been furnished to (here insert name or names, addresses used for service, and mailing addresses) by (e-mail) (delivery) (mail) (fax) on ...(date)...
_________________________
Attorney"
the certificate is taken as prima facie proof of such service in compliance with this rule.

Fla. R. Jud. Admin. 2.516(f). Other sections of rule 2.516 defined when and how service was to be made. Notably, however, nothing in rule 1.442, rule 1.080, or rule 2.516 referred to any other rule of procedure, including rule 2.515 which deals with signatures of attorneys on documents. Hence, nothing in the plain language of the applicable rules actually required the certificate of service accompanying the proposal for settlement to be signed.

Recently, in Boatright v. Philip Morris USA, Inc., 218 So.3d 962 (Fla. 2d DCA 2017), this court addressed the question of whether the language of rule 1.442(c)(2)(G) required compliance with all of the provisions of rule 2.516. In concluding that it did not, this court noted that rule 1.442(c)(2)(G) requires compliance with rule 1.080(a) ; rule 1.080(a) requires that service comply with rule 2.516 when a document is filed; and since proposals under rule 1.442 are not filed, they do not have to comply with the portions of rule 2.516 dealing with service. "Simply stated, proposals for settlement are not subject to the service requirements of rule 2.516 because the proposals do not meet rule 1.080(a)'s threshold requirement that they be 'filed in the action.' " Id. at 965. Thus, Boatright made clear that the only portion of rule 2.516 that is relevant to proposals for settlement is the form of certificate of service identified in rule 2.516(f).

Here and in the trial court, Valle did not contend that the certificate of service that accompanied Flory's proposal for settlement did not comply with the form prescribed by rule 2.516(f). Rather, he argued that the certificate of service had to be signed pursuant to rule 2.515, which requires that "[e]very document of a party represented by an attorney shall be signed by at least 1 attorney of record." However, applying the logic of Boatright that the portions of rule 2.516 not specifically referenced in rule 1.442 are not relevant to the issue of whether a proposal for settlement complies with that rule, it is clear that the provisions of rule 2.515-a completely separate rule that is not referenced at all in rule 1.442-are not relevant to that issue either.

Moreover, even if the signature requirements of 2.515 could somehow be construed to apply to proposals for settlement under rule 1.442, the text of rule 2.515 demonstrates that it does not apply to proposals for settlement. As noted above, rule 2.515 requires that a "document" be signed by the attorney of record; however the rule does not define the term "document." Instead, the definition of the term "document" is found in rule 2.520, which defines "documents" as "pleadings, motions, petitions, memoranda, briefs, notices, exhibits, declarations, affidavits, orders, judgments, decrees, writs, opinions, and any paper or writing submitted to a court." Fla. R. Jud. Admin. 2.520(a) (emphasis added). Not only does a proposal for settlement not fall into any of the enumerated categories of "documents" in rule 2.520, it does not fall into the catch-all provision because proposals for settlement are not "submitted to a court" when they are served. See Fla. R. Civ. P. 1.442(d) (providing that a proposal be served on the parties to whom it is made "but shall not be filed unless necessary to enforce the provisions of this rule"). Therefore, even if Valle was correct that the signing requirement of rule 2.515 applied generally to rule 1.442, that requirement would nevertheless not apply to the initial service of proposals for settlement on the opposing party because those proposals are not "documents" as defined.

For all of these reasons, we conclude the trial court's determination that Flory's proposal for settlement was invalid because the certificate of service accompanying it was not signed in compliance with rule 2.515 was simply incorrect. In reaching this conclusion, we neither condone nor encourage a practice of failing to sign certificates of service. An attorney's signature on any document or paper served on another party establishes that the attorney has read the document and that, to the attorney's knowledge, there are good grounds to support it. See Fla. R. Jud. Admin. 2.515(a)(1), (2). Moreover, a signed certificate of service can have legal significance if questions arise about whether a document was timely served. See, e.g., JPMorgan Chase Bank, Nat'l Ass'n v. Bigley, 120 So.3d 1265, 1267 (Fla. 3d DCA 2013) (noting that a signed certificate of service "creates a rebuttable presumption" that the document was mailed on the date certified (quoting Migliore v. Migliore, 717 So.2d 1077, 1079 (Fla. 4th DCA 1998) ) ). Further, the importance of attorney signatures on documents is underscored by the fact that rule 2.515 contains a sanctions provision that permits unsigned documents to be stricken. See Fla. R. Jud. Admin. 2.515(a)(4). In light of these purposes and consequences, our decision in this case should not be viewed as an imprimatur of approval of the failure of an attorney to sign a document. However, we cannot impose signature requirements on the parties that are not placed there by the applicable statute and rules, and we cannot find a proposal for settlement invalid for the lack of a signature on the certificate of service when no signature is expressly required. Any such requirement will require an amendment to the applicable rules.

Accordingly, we reverse the denial of Flory's motion for attorney's fees and remand for further proceedings. In doing so, we note that while Flory asks this court to reverse and remand for entry of a judgment of attorney's fees in his favor, the trial court denied his motion for attorney's fees solely on the basis that the certificate of service accompanying the proposal was not signed. The trial court did not rule on any of the other arguments made by Valle concerning the validity of Flory's proposal for settlement, and we will not determine the validity of the proposal for settlement for the first time on appeal. Instead, we simply reverse and remand for further proceedings, at which the trial court should address any remaining issues concerning Flory's entitlement to attorney's fees pursuant to the proposal.

Affirmed in part; reversed in part; remanded for further proceedings.

KELLY, J., Concurs.

LUCAS, J., Concurs in result only.

      Valle did contend that the absence of a signature on the certificate of service rendered the proposal ambiguous because he could not be sure that Flory's counsel intended to actually serve the proposal. However, the ambiguities that could render a proposal for settlement invalid are those that preclude the recipient from "fully evaluat[ing] its terms and conditions." Carey-All Transport, Inc. v. Newby, 989 So.2d 1201, 1205 (Fla. 2d DCA 2008) (quoting Nichols v. State Farm Mut., 851 So.2d 742, 746 (Fla. 5th DCA 2003) ). Nothing about the absence of counsel's signature on the certificate of service precluded Valle from evaluating the terms and conditions of Flory's proposal. In addition, such "minor [and] nonsubstantive objections" are anathema to the purposes of the proposal for settlement statute and rule, which is to promote settlement and finality. Id. at 1206.

      We recognize that proposals for settlement may ultimately be filed with the court if enforcement proceedings become necessary; however, that does not change the outcome here because the question of whether a proposal for settlement is valid is based on the circumstances that existed when it was served on the opposing party-not when it is later filed following the entry of judgment. This subsequent filing cannot retroactively invalidate a proposal that was otherwise proper when it was initially served.


author: SUAREZ, J.

text:
    Bernabe MIRANDA and Irela Miranda, Appellants, v. RBS CITIZENS, National Association, Appellee.
    No. 3D17-1717
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Kenneth Eric Trent (Ft. Lauderdale), for appellants.
    Liebler Gonzalez & Portuondo, and Elizabeth A. Henriques and Tricia J. Duthiers, Miami, for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   SUAREZ, J.

Appellants Bernabe and Irela Miranda appeal from a final judgment of foreclosure, seeking a new trial due to the unavailability of the trial transcript. Based on the particular facts of this case, we affirm the judgment below.

Following a non-jury trial, the trial court entered a final judgment of foreclosure in favor of Appellee RBS Citizens, National Association. Appellants filed a motion for new trial/rehearing asserting that RBS Citizens had failed to prove it had standing at the time it filed the action. In their motion, Appellants stated they were making arrangements to receive the transcript. But Appellants were unable to supplement their motion with the trial transcript because the court reporter's stenographic notes of the trial were stolen. The trial court heard arguments on why the motion for rehearing/new trial should be granted and denied the same. The Appellants now appeal.

The issue on appeal is whether the trial court erred in not granting a new trial under the circumstances of the transcript not being available for review through no fault of the Appellants. We find the trial court did not err as the Appellants failed to first attempt to comply with Florida Rule of Appellate Procedure 9.200(b)(4), which sets forth the procedure for attempting to reconstruct an unavailable transcript. We therefore affirm.

"It is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error." S. Florida Apartment Ass'n, Inc. v. Dansyear, 347 So.2d 710, 711 (Fla. 3d DCA 1977) ; see also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). If the trial transcript is unavailable, "a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection." Fla. R. App. P. 9.200(b)(4).

Appellants assert that through no fault of their own they are unable to produce a trial transcript and that the testimony at trial is necessary for their appeal. The Appellants also assert that it is not possible to prepare a statement of evidence pursuant to Rule 9.200(b)(4)"because the extended, inconsistent and nuanced testimony of the bank's witness was required to be printed verbatim to permit meaningful review ...." However, as this Court explained in Chisholm v. Chisholm, 538 So.2d 961, 962 (Fla. 3d DCA 1989), compliance with Rule 9.200(b)(4) contemplates more than a mere allegation that Appellants would be unable to undertake a reconstruction of the record. "The rule requires an attempt by the appellant to reconstruct a transcript by the 'best available means,' to submit the resulting statement to the appellee for his objections and amendments, and finally to have the transcript approved by the lower court." Id. at 962-63.

Indeed, in each of the cases Appellants rely on for their argument that they are entitled to a new trial, there was a preliminary attempt to reconstruct the record. See Copeland v. Capital Bank of Miami, 372 So.2d 1149 (Fla. 3d DCA 1979) ("[A]ppellants have made a conscientious effort to reconstruct the record pursuant to Florida Appellate Rule 9.200(b)(3)."); Werner v. Harper, 328 So.2d 511 (Fla. 1st DCA 1976) (remanding for a new trial after the trial court had prepared a reconstruction of the testimony, because the record was prepared without a transcript and may have omitted evidence); Van Scoyoc v. York, 173 So.2d 483 (Fla. 2d DCA 1965) (remanding for a new trial after the parties attempted but failed to agree on a stipulated statement).

Here, as in Chisholm, Appellants have "not demonstrated that [they] took the timely steps to include a reconstructed transcript in the record on appeal." 538 So.2d at 963. We are under no obligation to afford Appellants "a second opportunity to create an entire transcript because [they] ignored the rule when the record on appeal was being prepared." Id. Therefore, because Appellants did not first attempt to reconstruct the record pursuant to Rule 9.200(b)(4), they have not laid the proper foundation to now argue that they are entitled to a new trial due to the trial transcript necessary for their appeal being lost through no fault of their own. As Appellants are unable to provide us with a sufficient record to review the matter assigned as error, we must affirm the final judgment of foreclosure below.

Affirmed.

      It is not clear from the motion for new trial/rehearing why a transcript would even be necessary to determine the legal issue of standing. Appellants argued in their single-page motion that RBS Citizens did not prove that it had standing because its exhibits "including the assignment of mortgage, the pay history, and the demand letter, all reference Bank of America and not RBS." Only on appeal do Appellants claim they require a verbatim transcript of witness testimony.


author: LAGOA, J.

text:
    James RAIMONDI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-583
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Ilene F. Tuckfield, P.A., and Ilene F. Tuckfield, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER, and SCALES, JJ.
   LAGOA, J.

James Raimondi ("Raimondi") appeals from the trial court's revocation of his community control and sentence. Because the record on appeal does not contain the relevant affidavit upon which the revocation was based, we remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

On July 11, 2013, Raimondi was charged with shooting or throwing a deadly missile and aggravated assault with a firearm. Raimondi pled guilty to the charge of aggravated assault with a firearm, and on January 23, 2015, was sentenced to 366 days in prison followed by two years of community control and two years of probation. Raimondi received 431 days of credit for time served.

On January 7, 2016, an amended affidavit of violation of community control (the "January 7, 2016, affidavit") was filed alleging that Raimondi violated multiple conditions of his community control by committing offenses on September 18, 2015, and October 8, 2015. On September 27, 2016, the trial court entered an order of probation (the "September 27, 2016, order of probation"), placing Raimondi on community control for two years. Condition five of Raimondi's supervision required that he live "without violating the law."

Less than twenty-four hours after he signed the September 27, 2016, order of probation, Raimondi was arrested on September 28, 2016. The State argues in its Answer Brief that as a result of Raimondi's September 28, 2016, arrest, an amended affidavit of violation of probation was subsequently filed, alleging two separate violations of condition five of Raimondi's community control-battery and resisting arrest with violence.

Additionally, in its Answer Brief, the State refers to and cites to the January 7, 2016, affidavit found in the record. That affidavit, however, is not the affidavit that applies to these offenses. The record only contains the January 7, 2016, affidavit, which pertains to offenses that occurred in September and October of 2015. Even a cursory review of the January 7, 2016, affidavit confirms that it is not the affidavit applicable to this appeal. Indeed, as the January 7, 2016, affidavit pre-dates the events at issue, which occurred on September 28, 2016, that affidavit neither references the offenses relevant to this appeal nor does it otherwise include a charge of resisting arrest.

The trial court held a violation of probation hearing on February 17, 2017. The State presented evidence regarding events that occurred on September 28, 2016, in support of its argument that Raimondi violated his community control by committing the offenses of battery and "resisting arrest with violence." At the conclusion of the hearing, the trial court stated:

You know, it pains me, but I do find that he violated probation. I do find that the State has proved by a preponderance of the evidence that he violated number five - - paragraph number five.

The trial court sentenced Raimondi to eighteen months in prison, to be followed by six months of probation. The record contains no written order of revocation of community control.

II. ANALYSIS

It is well-settled that "[i]t is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation." Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004) ; see also Gray v. State, 170 So.3d 890, 892 (Fla. 3d DCA 2015) (holding that trial court erred in revoking Gray's probation based on offense not alleged in affidavit of violation of probation); Thomas v. State, 159 So.3d 937, 937 (Fla. 3d DCA 2015) (finding that trial court erred in revoking probation for offense not alleged in affidavit of violation of probation).

Here, the trial court conducted a hearing concerning the events that occurred on September 28, 2016, and orally pronounced that the State proved by a preponderance of the evidence that Raimondi violated condition five of his supervision. As noted above, the record on appeal, however, does not contain an affidavit of violation of community control (or probation) setting forth the specific substantive violations Raimondi allegedly committed on September 28, 2016, in violation of condition five of his supervision.

As the relevant affidavit of violation is not contained in the record on appeal, this Court cannot discern whether the trial court erred in revoking Raimondi's community control, as we cannot review the substantive violations alleged in the affidavit. Because the record on appeal reveals the possibility that an affidavit of violation of probation was filed before the February 17, 2017, hearing, however, it is appropriate to remand the case to the trial court with instructions to locate and consider the appropriate affidavit. See Howard, 883 So.2d at 880 (remanding to "the trial court with instructions to conduct further proceedings to determine the existence of the amended affidavit" of violation of probation where the only affidavit in the record referenced offenses other than the one that formed the basis for the violation, and the hearing transcript revealed the possible existence of an amended affidavit charging the substantive violation); see also Lishinsky v. State, 219 So.3d 89, 89 (Fla. 4th DCA 2017) (reversing and remanding to the trial court to conduct further proceedings directed at locating and considering probation affidavit where probation affidavit was not included in record on appeal, but hearing transcript indicated that affidavit existed).

III. CONCLUSION

Because the possibility exists that an affidavit of violation of community control was, in fact, filed below that charged Raimondi with substantive violations committed on September 28, 2016, in violation of the conditions of his supervision, we remand for the trial court to conduct further proceedings directed at locating and considering the relevant affidavit. We also instruct the trial court to enter a written order specifying the basis for its revocation of community control. See Mitchell v. State, 238 So.3d 386, 387 (Fla. 3d DCA 2018).

Remanded with directions.

      No other affidavit appears in the record regarding the offenses committed on September 18, 2015, and October 8, 2015. This Court is therefore unclear why this affidavit is titled "amended affidavit."

      A review of the clerk's minutes contained in the record on appeal, however, shows that an amended affidavit of violation of community control may in fact exist. The clerk's minutes for September 30, 2016, state, "aff of VOP filed," and for October 4, 2016, state, "See amended affidavit violation of community control filed 10/3/16."

      The State argues that the amended affidavit at issue alleged Raimondi committed the offense of resisting arrest with violence. The transcript of the violation of probation hearing, however, indicates that Raimondi proceeded with a defense to an allegation that he resisted arrest without violence. The record further reflects that Raimondi was acquitted on a charge of resisting arrest without violence in case number 16-28283 for an arrest that occurred on September 28, 2016.

      Upon the trial court's entry of a written order revoking probation, if Raimondi contends that any of the grounds relied on by the trial court to revoke probation are not supported by the evidence, he may appeal at that time. See Mitchell, 238 So.3d at 387 n.2.


author: Jay, J.

text:
    Timothy Clarence MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4094
    District Court of Appeal of Florida, First District.
    August 16, 2018 Rehearing Denied September 27, 2018
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Benjamin L. Hoffman and Samuel B. Steinberg, Assistant Attorneys General, Tallahassee, for Appellee.
   Jay, J.

In this direct criminal appeal from a judgment and sentence for robbery with a firearm, Appellant argues that the trial court committed fundamental error when it failed to instruct the jury that a BB gun is not a firearm. Appellant also claims that if we disagree with his first argument, we should find that defense counsel's failure to request the special instruction constituted ineffective assistance of counsel that was evident on the face of the appellate record. We decline to make the latter finding and do so without further comment. Also, for the reasons that follow, we conclude Appellant has failed to demonstrate fundamental error.

I.

On July 28, 2016, a surveillance camera captured stark images of Appellant robbing a clerk at gunpoint at a Dollar Tree Store in Jacksonville. In a post-arrest taped interview that was played for the jury-when Appellant was faced with the indisputable still photographs of him committing the robbery-Appellant's first concern was "what kind of time" he would get for his actions. He then claimed that he had not planned to kill the clerk because he was only armed with a BB gun. When the detective asked Appellant to tell him where he had dumped the gun-because it would "add to the credibility of [his] story ... it not being a real gun"-he equivocated. And, when asked to describe the BB gun-whether it was a big one or a little one-Appellant informed the detective that "it has a .44 [caliber] bullet." In response to the detective's next question of whether it was "semiautomatic or a revolver," Appellant responded, "Revolver."

After studying the still photographs pulled from the surveillance film, the detective commented, "So right now that as far as I'm concerned it was a big ass gun, okay? You're telling me it was a BB gun. Tell me where I can find the gun that looks just like that ...." Appellant gave the detective three different locations as to where he had concealed the gun. The gun was never recovered. The detective testified that after looking at the picture of the gun and analyzing Appellant's actions and statements, he had "all the reason to believe that it was a firearm." He further explained it was his understanding that the opening where the projectile comes out of a BB gun is "much smaller than a .44."

The store clerk testified as to how "cold" and "hard" the barrel of the gun felt when Appellant placed it against the back of her neck, under her hair. She heard the sound it made when Appellant placed it on the counter in order to empty the cash register-it was a heavy metal sound, like "when you drop something in the trash can that's metal." It was not plastic. She stated she had shot a handgun on prior occasions and the weapon Appellant possessed did not appear to her to be a BB gun because the opening of the gun's barrel was not small, as it is on a BB gun. When asked if it appeared to be a real gun, the clerk answered, "Yes, sir."

The jury also heard a taped phone call from the jail between Appellant and his mother. During their conversation, Appellant's mother asked him if he "did it." Appellant said, "Yeah." Then she asked him if he had used a gun, Appellant said, "Yeah. Yeah."

In his closing arguments to the jury, defense counsel advanced the following points:

There is nothing in this case to show that it was a firearm. ...
....
And by definition what a firearm is is any weapon including a starter gun which will, is defined to or may readily be converted to expel a projectile by the action of an explosive, the frame or receiver of such weapon, any firearm muffler or firearm silencer, any destructive device, any machine gun. Key word explosive. There is nothing here that shows that - even what that weapon was, item or whatever you want to call what it was - had the capability of being an explosive weapon. ... There was nothing to show that that gun had explosive capabilities.
There's nothing in that item to show that it was even a deadly weapon. Was it a BB gun? I don't know. But according to Mr. Miller ... [h]e said it was a BB gun ....

(Emphasis added.)

With defense counsel's express consent, the trial court instructed the jury on the definition of "firearm" from section 790.001(6), Florida Statutes, as set out verbatim in Florida Standard Jury Instruction (Crim.) 15.1:

A firearm means any weapon including a starter gun which will, is designed to or may readily be converted to expel a projectile by the action of an explosive , the frame or receiver of any such weapon, any firearm muffler or firearm silencer, any destructive device, any machine gun.

(Emphasis added.) In that same instruction, the trial court advised the jury on the definition of a "deadly weapon" and a "weapon," and further, if the jury found Appellant was in possession of neither a deadly weapon nor a weapon, but did commit the robbery, it was free to find Appellant "guilty only of robbery."

Well into its deliberations, the jury submitted the following question to the trial court: "Does a BB gun classify as a firearm because it expels a projectile?" When the court read the question to the parties, defense counsel immediately responded by asserting that the "[d]efinition is in the jury instruction ...." After further discussion, the prosecutor pointed out that "there is a case that specifically cites that a BB gun is not a firearm." The trial judge retorted, "Well, I know that the BB gun is not a firearm. We all know that." Then he added, "There's been no testimony about that, no evidence about that. I don't know that I'm comfortable telling them that." A brief, unreported sidebar took place following the State's suggestion that they craft a special instruction.

Once back on the record, the judge announced:

I have made a decision, I think both the state and the defense agree, that I'm simply going to bring the jury back in and tell them that they've heard all the evidence in the case and they've heard the definition specifically as to firearm and weapon, so I'll refer them back. I'm not going to re-read it to them.

When asked, neither side had any objection to the judge's decision. The jury was called into the courtroom and the trial judge instructed them as follows:

You probably wish I could give you a better answer than this but this is what I am required to do and limited to do. All the evidence that you've heard in this case has been presented. There's no other evidence that I can offer to you or explain to you and the definitions specifically as it relates to that question as to what a firearm is those are - that's the law in Florida that defines what a firearm is, so I'll defer [sic] you back to those pages in the jury instructions that you have back there that define again firearm, deadly weapon and weapon.

Less than thirty minutes later, the jury returned a verdict finding Appellant guilty of robbery as charged in the information. It also specifically found that during the commission of the robbery, Appellant carried a firearm and that Appellant "did actually possess" the firearm. The trial court adjudicated Appellant guilty in accordance with the jury's verdict and sentenced him to a term of thirty years' imprisonment with a ten-year minimum mandatory sentence based on his possession of the firearm. This appeal followed.

II.

In Cardenas v. State , 867 So.2d 384 (Fla. 2004), the Florida Supreme Court applied the fundamental error analysis to jury instructions:

Instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. To justify not imposing the contemporaneous objection rule, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged er ror.
In other words, fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.

Id. at 390 (emphasis added); see also Stewart v. State , 420 So.2d 862, 863 (Fla. 1982).

Here, consistent with the evidence, the jury received the standard instructions related to the charge of robbery with a firearm. Nothing essential to the charged offense was omitted. When presented with the question of whether a BB gun is "a firearm because it expels a projectile[,]" the trial court referred the jury back to the instructions, which defined the terms firearm, deadly weapon, and weapon. There was no objection to the court's response. The trial court was well within its discretion in the manner it responded to the jury's question. See Green v. State , 907 So.2d 489, 497 (Fla. 2005) ("A trial court does have discretion in answering or refusing to answer a jury's question."); Perriman v.State , 731 So.2d 1243, 1247 (Fla. 1999) ("[T]he trial court did not abuse its discretion in declining to give an additional instruction.").

Moreover, the State presented competent, substantial evidence on the nature of the weapon used by Appellant during the robbery, including the pictures of the gun from the surveillance photographs, the store clerk's testimony as to the characteristics of the weapon pressed to her neck, the detective's testimony that what he saw in the photographs was a firearm, and Appellant's affirmative response to his mother's question asking if he had carried a gun. The taped interview of Appellant's protestations that he had only carried a BB gun could readily have been interpreted by the jury as self-serving, given his initial interest as to "what kind of time" he would get for the crime. Further, his declaration to the detective that he had carried only a BB gun came much later in the interview, when the detective emphasized the undeniable evidence that Appellant was the robber.

For his part, defense counsel forcefully cross-examined the detective in order to inject doubt as to whether the weapon was in fact a firearm or, as Appellant had claimed, merely a BB gun. And, in closing arguments, he was careful to distinguish for the jury the differences between a BB gun and a firearm based on the former's inability to expel a projectile by an "explosive" action. Consequently, it was logical for defense counsel to propose answering the jury's "projectile" question with the statutory definition of a firearm.

Appellant relies for support on case law holding that a BB gun is not a "firearm," as that term is defined in section 790.001(6). See J.M.P. v. State , 43 So.3d 189 (Fla. 4th DCA 2010) ; Petz v. State , 917 So.2d 381 (Fla. 2d DCA 2005) ; Mitchell v. State , 698 So.2d 555 (Fla. 2d DCA 1997). However, in all three of those cases, the weapon had been recovered and was identified as a BB gun. In the present case, whether Appellant's weapon was in fact a BB gun was in dispute, since no weapon was ever found. As pointed out by Appellee, there was circumstantial evidence from which the jurors could have determined that it was not a BB gun-had they believed the testimony of the store clerk and the detective; or, that it was a BB gun-had they accepted as true Appellant's statements to the detective that it was only a BB gun.

That the jury wrestled with this evidence is readily apparent from another question it posed to the trial court, that question being whether there was "any more discussion about [the] gun or BB gun on the collect [jail] call." That question-and the one at the forefront of this appeal-raised factual issues concerning the ultimate question of fact the jurors were being asked to decide: whether the weight of the evidence was sufficient to prove Appellant was in possession of a firearm. This is not a case where the trial court refused to give a requested instruction on a category one lesser-included offense or gave a standard instruction that had been invalidated by the Supreme Court, as in State v. Montgomery , 39 So.3d 252 (Fla. 2010), or where the trial court gave instructions that were fundamentally defective for omitting an essential element of the crime charged, as was the case in Mercer v. State , 656 So.2d 555, 556 (Fla. 1st DCA 1995). Rather, the trial court properly instructed the jury on the necessary legal definitions. No fault can be found on that score.

III.

We conclude that the trial court did not err-much less commit fundamental error-when, in answer to the jury's question, it referred the jury back "to those pages in the jury instructions" that defined a firearm, a deadly weapon, and a weapon. See Cannon v. State , 180 So.3d 1023, 1036 (Fla. 2015) ("Generally, the feasibility and scope of any reinstruction of the jury 'resides within the discretion of the [trial] judge.' ") (citation omitted). That response was perfectly consistent with the evidence. Appellant, therefore, has not demonstrated fundamental error within the meaning of Cardenas . Accordingly, Appellant's judgment of conviction and sentence are affirmed.

AFFIRMED .

Makar and Osterhaus, JJ., concur.


author: ROTHENBERG, C.J.

text:
    Margaret A. BROZ, Appellant, v. Prudence CLARK, Appellee.
    No. 3D17-2463
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Margaret A. Broz, Gainesville, for appellant.
    Prudence Clark, in proper person.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

Margaret Broz ("Broz"), an attorney who represented Prudence Clark ("Clark") for a period of time in the matter of Brandee Sweesy v. Prudence Clark in lower case number 12-174-M, appeals the trial court's order entered on September 29, 2017 denying her motion: to enforce the settlement agreement entered into by Broz and Clark; to enforce Broz's charging lien; and for additional attorney's fees Broz claims she is owed. Because a settlement agreement was entered into by Broz and Clark regarding Broz's fees on or about October 16, 2012, and the trial court entered an order on October 16, 2012 approving the settlement agreement, the trial court was required to enforce that agreement. We, therefore, reverse the portion of the trial court's order that failed to enforce the terms of the settlement agreement.

Analysis

The record reflects that Broz initially represented Clark in the above civil matter, but she was discharged in 2012, and in July 2012, Broz filed a charging lien against Clark for her outstanding legal fees. The charging lien was perfected. Thereafter, Brandee Sweesy (the plaintiff in the underlying action) and Clark (the defendant in that action) entered into a settlement agreement to resolve the lawsuit, and on September 21, 2012, the trial court entered an order approving their settlement agreement. In this order, the trial court specified that the money being held in an account at Centennial Bank based on the trial court's February 15, 2012 order freezing the account was to be released, and that $3,500 of the money being held in the Centennial Bank account was to be delivered to and held in Paul Cowan, Esq.'s ("Cowan") trust account until the issues between Broz and Clark, and specifically Broz's charging lien, were resolved. The order also reserved jurisdiction to enforce the terms of the settlement agreement.

On or about October 16, 2012, Broz and Clark entered into and executed a settlement agreement wherein Clark agreed to immediately pay Broz $3,500 of the fees Clark owed Broz from the funds being held in Cowan's trust account, and that Broz would continue to have a lien of $2,000 against the real property located at 655 East 105 Street Ocean, Marathon, Florida, with interest accruing at the rate of 4.75% until the property was sold. The settlement agreement further provided that both Broz and Clark were waiving any other claims from the cause. The trial court entered an order on October 16, 2012 approving the settlement agreement between Broz and Clark resolving the dispute over Broz's fees.

Despite the clear terms of the trial court's October 16, 2012 order approving the settlement agreement between Broz and Clark, which required that the $3,500 being held in Cowan's trust account be immediately released to Broz, Broz's demands for payment, and Broz's numerous motions to compel the release of those funds to her, the funds remained in Cowan's trust account. Cowan apparently was relying on the September 21, 2012 order requiring him to retain the funds in his trust account until the issues between Broz and Clark regarding Broz's fees was resolved, rather that the later October 16, 2012 order approving the settlement agreement between Broz and Clark wherein they agreed that the $3,500 being held by Cowan be released to Broz immediately (in 2012).

Ultimately, in 2016, Cowan filed a petition to deposit the $3,500 he was holding in his trust account into the court registry, which the trial court granted on October 10, 2016. On February 15, 2017, the trial court finally entered an agreed order releasing the $3,500 held in the court registry to Broz. Thereafter, on July 28, 2017, Broz filed another motion seeking to enforce the settlement agreement and her charging lien, and seeking the award of additional fees incurred in her attempts to enforce the settlement agreement. Specifically, Broz sought to enforce the portion of the settlement agreement which agreed to a charging lien of $2,000 against the real property located at 655 East 105 Street Ocean, Marathon, Monroe County, Florida with interest accruing at 4.75% for the remainder of the fees Clark owed Broz. Broz's motion noted that the property sold on July 7, 2017, however, the funds were being held in the closing agent's trust account in violation of the settlement agreement and the trial court's order approving the settlement agreement. Broz's motion sought release of the $2,000 plus interest to her, plus additional fees for the time she had spent in the collection of her fees pursuant to the settlement agreement. The trial court entered an order denying the motion in its entirety, and Broz appeals that order here.

The terms of the settlement agreement adopted by the trial court on October 16, 2012 are clear and unambiguous. Paragraph 2 provides: "Counsel shall have a lien of $2,000.00 against the real property at 655 East 105th Street Ocean, Marathon, Monroe County, Florida, with interest at the present statutory rate 4.75% until said property is sold." When the property sold on July 7, 2017, Broz was entitled to the $2,000 plus interest the parties agreed would be paid to Broz as satisfaction of her charging lien. Because the payment was not conditioned upon any factor other than the sale of the property, and the property was sold, the trial court lacked discretion to modify or to avoid the terms of the settlement agreement. See Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1213-14 (Fla. 3d DCA 2008) ("Settlement agreements are interpreted and governed by the law of contracts. Courts, without dispute, are not authorized to rewrite clear and unambiguous contracts. And where a contract is clear and unambiguous, it must be enforced as written.") (citations omitted). The trial court, therefore, erred by denying Broz's motion to enforce the settlement agreement regarding the $2,000 plus 4.75% interest owing and due to Broz.

We, however, affirm the trial court's order denying Broz's motion for the additional fees she has incurred in her attempts to collect the fees agreed to by the parties in their settlement agreement. There is no provision in the settlement agreement that provides for the award of additional fees and Broz cites to no statutory or other authority for the entitlement of such fees. We also note that there is no transcript of the hearing where the additional fees Broz was requesting was addressed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). We, therefore, affirm the portion of the trial court's order that denies Broz's motion for the additional fees incurred in her collection efforts.

Conclusion

We reverse the trial court's order denying Broz's motion to compel enforcement of the settlement agreement and remand for enforcement of the provision providing for the payment of $2,000 plus 4.75% interest to Broz as satisfaction of her charging lien against Clark. We affirm the trial court's order denying Broz's motion for additional fees incurred in her collection efforts.

Affirmed in part; reversed in part.