author: CASANUEVA, Judge.

text:
    Eugene SMITH, Jr., Appellant, v. Eugenia Tiara WALLACE, Appellee.
    Case No. 2D16-2086
    District Court of Appeal of Florida, Second District.
    Opinion filed May 10, 2017.
    Jovona I. Parker, Fort Pierce, for Appellant.
    Eugenia Tiara Wallace, pro se.
   CASANUEVA, Judge.

Eugene Smith, Jr., appeals the final judgment resolving his supplemental petition for modification of child support. He alleges that the judgment contains numerous errors, including miscalculations and omissions. We note that our review is limited to errors on the face of the judgment because there is no transcript of the proceedings. In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979), the Florida Supreme Court explained:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

However, even in the absence of a transcript, an appellate court can reverse in those instances when the trial court makes an error of law on the face of the judgment. Siam Motors, Inc. v. Spivey, 136 So.3d 692, 694 (Fla. 2d DCA 2014). In the present case, we find no error of law on the face of the judgment and affirm.

We note that Mr. Smith asked the trial court to approve a statement of the evidence and an amended statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200. Rule 9.200(b)(4) provides as follows:

If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection. The statement shall be served on all other parties, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

On June 7, 2016, the trial court held a hearing on Mr. Smith's request and found that Ms. Wallace's counsel had "agreed that these things happened in this case, 1 through 19. So those will be part of the statement of proceedings." Then the trial court advised Mr. Smith, "You need to complete an order which states that, okay?" That way, the court noted, "the DCA will have at least 19 stipulated facts on the record." The court then decided to write the order: "Actually, you know what? I'm going to go ahead and do that order. Not that you can't do it, but it would be easier if I did it and I'll do that in a few minutes when we're finished."

After examining the record on appeal, we are unable to locate a written order that comports with the trial court's oral pronouncement. Rather, twenty-two days after the hearing, the trial court entered a written order denying the very motion it had previously granted as to the nineteen facts. In its order, the trial court ruled as follows:

5) The Court finds the Petitioner the Petitioner [sic] prepared a statement of the evidence and submitted the statement to the Respondent.
6) The Court finds the Respondent served the objections or proposed amendment.
7) The Court finds the Petitioner submitted the statement of evidence along with any proposed objections or amendments to the trial judge for settlement and approval. The Court reviewed the three steps in the process[.]
8) This Court finds it is unable to settle the factual differences between the parties. Therefore, this Court finds the statement of evidence offered by the party seeking review may not be used as a substitute for the transcript.

Mr. Smith filed a motion for rehearing as to this order, noting that the order was in direct conflict with the trial court's oral ruling. The trial court entered an order denying this motion without explanation.

The impact of an order denying a request to approve an agreed upon statement of the evidence is to deny even limited appellate review afforded by those facts. Certainly, a trial court is afforded the ability to, after further contemplation, alter or change its interlocutory ruling. However, this record provides no insight indicating why the trial court changed its mind.

Nonetheless, as our record does contain Mr. Smith's proposed amended statement of the evidence, we note that the nineteen facts set forth therein would not afford a basis for reversal. For example, item nineteen sets forth the fact that the trial judge "wholly adopted the Respondent's Final Judgment ... without amendment or modification." While that fact may, in and of itself, be true, it does not rise to a level requiring reversal. More is required.

Florida law does not prohibit the adoption, verbatim, of a judgment that has been proposed by a party to the litigation. See In re T.D., 924 So.2d 827, 831 (Fla. 2d DCA 2005). Rather, the adopted judgment "cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge." Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004) ; see also Ryans v. Bell, 210 So.3d 251 (Fla. 2d DCA 2017) ; Bishop v. Bishop, 47 So.3d 326 (Fla. 2d DCA 2010).

Affirmed.

VILLANTI, C.J., and KHOUZAM, J., Concur.

      The trial court was referring to the items in Mr. Smith's amended statement of the evidence.

      At the hearing, the trial court asked Ms. Wallace's counsel, "So you have agreed that this is what happened in the case? These 19 things." Ms. Wallace responded, "Correct, Your Honor."


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Monique M. AGIA and Lisa Agia, individually, and as cotrustees of the Agia Children Irrevocable Trust under trust agreement dated December 17, 1992, Appellants, v. Fareed OSSI, Appellee.
    Case No. 2D16-4659
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Arnold D. Levine and Robert H. Mackenzie of Levine & Sullivan, P.A., Tampa, for Appellants.
    Stuart J. Levine and Heather A. DeGrave of Walters Levine & Lozano, Tampa, for Appellee.
   KELLY, Judge.

Monique and Lisa Agia, individually and as cotrustees, appeal from the final judgment in favor of the appellee, Fareed Ossi, in an action on a promissory note. The dispositive issue in this appeal is whether the trial court erred in finding that Mr. Ossi was not individually liable on the promissory note.

The note represented a loan from the Agias to the Lelia Corporation of St. Pete. Mr. Ossi was a 25% owner of the Lelia Corporation and Monique and Lisa Agia's mother, Susan Agia, owned the remaining 75%. The signature page of the note contains the following two signature blocks:

The Lelia Corporation of St. Pete, a Florida corporation, By: ________________________ _________________________ Fareed Ossi, as President Fareed Ossi, individually Federal Tax ID No. _________ Social Security No. _____

Mr. Ossi signed the note twice-first as president and then individually. When the Lelia Corporation defaulted on the note, the Agias sued Mr. Ossi in his individual capacity.

Mr. Ossi raised four defenses to the complaint, only two of which are pertinent to this appeal. First, Mr. Ossi claimed fraud in the inducement. Specifically, he alleged that he was legally blind, a fact known to agents of the Agias, that those agents represented to him that he was only signing on behalf of the Lelia Corporation, which the agents knew to be false, and that they never told him he was signing on a line that said "Fareed Ossi, individually." Mr. Ossi next asserted that because of the alleged fraud, he believed he was only signing the note on behalf of the Lelia Corporation and thus, there was no "meeting of the minds" as to "the nature of the promissory note," and he should not be held liable individually.

At trial, Mr. Ossi presented no testimony that supported the allegations of fraud in his affirmative defenses. What he did testify to was that he signed "a bunch" of documents, but he never read any of them; that both signatures on the note were his; that he never read the note; that he never saw the note before the lawsuit was filed; that he did not know he had also signed a purchase money mortgage along with the note; that he did not have the magnifier he used for reading with him when he signed all the documents; that his administrative assistant of twenty-seven years, who signed as a witness on the mortgage, was with him when he signed the note, but he did not ask his assistant to review the note or any other documents; and finally, that he thought he was only signing for the Lelia Corporation.

When it announced its findings, the trial court found that Mr. Ossi had failed to prove fraud as alleged in his defenses. Because his "meeting of the minds" defense was based entirely on the allegations of fraud, this should have concluded the matter of Mr. Ossi's individual liability on the note. However, defense counsel, perhaps realizing Mr. Ossi's testimony was problematic to his chosen defense, had more or less abandoned that defense and instead shifted to an argument that the note did not unambiguously show Mr. Ossi intended to be personally obligated. Thus, he argued the court should consider parol evidence to determine in what capacity Mr. Ossi signed the note. In support of this argument, counsel pointed to everything about the transaction at issue except the signatures affixed to the note and succeeded in convincing the court that there was no "meeting of the minds" among the parties that Mr. Ossi be personally liable as a borrower. This was error.

Parol evidence may be considered when the manner in which a party signs a promissory note is such that the capacity in which the party signed is ambiguous. See § 673.4021(2)(b), Fla. Stat. (2016) ; Landis v. Mears, 329 So.2d 323, 325-26 (Fla. 2d DCA 1976) (noting that a court may consider parol evidence when there is an ambiguity on the face of the instrument concerning the capacity in which the parties entered an agreement). Here, however, there is no ambiguity created by the signatures. Mr. Ossi signed first "as President" of the Lelia Corporation and then signed a second time "individually." His first signature was clearly in a representative capacity, while the second time he signed he did so "exactly as he would have if it had been his intention to bind himself individually." See Marinelli v. Weaver, 187 So.2d 690, 692 (Fla. 2d DCA 1966) (quoting Betz v. Bank of Miami Beach, 95 So.2d 891, 894 (Fla. 1957) ) (rejecting parol evidence and holding that a party was individually liable where "there is no confusion as to the Capacity in which the individuals signed the note. It was signed first on behalf of the corporation, 'by John H. Garner (signature), President', with the corporate seal attached, and then by each of the individual persons separately, with the word 'Individually' typewritten after each of their signatures").

Accordingly, we reverse the final judgment and remand for entry of a final judgment in favor of the Agias.

Reversed.

CRENSHAW and BLACK, JJ., Concur.


author: CRENSHAW, Judge. LaROSE, Chief Judge, Concurring. MORRIS, J., Dissenting.

text:
    Jacqueline Denise SMALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-725
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018. Rehearing Denied July 24, 2018
    Howard L. Dimmig, II, Public Defender, and Christopher E. Cosden, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Jacqueline Small appeals her convictions for sale of a controlled substance and possession of a controlled substance with intent to sell. Small initially pleaded no contest to the sale charge in exchange for the State nolle prossing the possession charge, but she later withdrew her plea and proceeded to trial on both charges. She now contends that the trial court committed fundamental error by allowing the State to proceed to trial on the possession charge, which had been nolle prossed, without filing a new information. Because the trial court did not err in allowing the State to proceed on the original information after Small had withdrawn her negotiated plea, we affirm.

A plea agreement is a contract between a defendant and the State, to which ordinary rules of contract law apply. See Churchill v. State, 219 So.3d 14, 18 (Fla. 2017) (citing Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) ). It is a well-established principle of contract law that one party's material breach relieves the other party of his obligations under the contract. See Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 14 (Fla. 2d DCA 2015). Accordingly, this court has recognized on numerous occasions, that a defendant cannot enforce a plea agreement against the State after withdrawing a plea. See, e.g., Taylor v. State, 132 So.3d 882, 885 (Fla. 2d DCA 2014) (reasoning that defendant could withdraw his plea, but could not enforce the plea agreement against the State); Ciambrone v. State, 938 So.2d 550, 553 (Fla. 2d DCA 2006) (remanding to give defendant an opportunity to withdraw her plea but noting that "if she does so, neither she nor the State will be bound by the plea agreement"); Cornett v. State, 922 So.2d 297, 299 (Fla. 2d DCA 2006) ("If [defendant] 'decides to withdraw his plea and not be bound by the plea agreement, the State, too, will not be bound by the plea agreement.' " (quoting Goins v. State, 889 So.2d 918, 919 (Fla. 2d DCA 2004) ) ); see also Guynn v. State, 861 So.2d 449, 450-51 (Fla. 1st DCA 2003) ("The negotiated plea agreement placed obligations on both parties.... Having accepted the benefits of the bargain ... the defendant cannot, any more than any other contracting party, be relieved of the burden of his bargain."). Hence, withdrawal from a plea agreement is a breach that excuses the State from its obligations under the agreement.

Of greater significance in this context is the fact that "[w]hen a plea of guilty or nolo contendere is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio." State v. Vasquez, 918 So.2d 1016, 1017 (Fla. 2d DCA 2006) (quoting Williams v. State, 762 So.2d 990, 991 (Fla. 4th DCA 2000) ); see also Whitaker v. State, 881 So.2d 80, 82 (Fla. 5th DCA 2004) ("When a defendant successfully challenges and is permitted to withdraw a plea of nolo contendere or guilty which was entered as a result of a plea bargain, the negotiated plea bargain is 'abrogated.' " (emphasis omitted) ); Williams, 762 So.2d at 991. "The incentive to settle a case by plea bargaining or by an agreement not requiring a plea would quickly disappear if one party could renege on an agreement without any consequence." State v. Simons, 22 So.3d 734, 737 (Fla. 1st DCA 2009) ; see also Bell v. State, 262 So.2d 244, 245 (Fla. 4th DCA 1972). Allowing a defendant to renege on an agreement without consequence is certain to open the Pandora's Box the dissent brings up, by allowing for gamesmanship through the entry and withdrawal of pleas. But, permitting the State "to proceed as if a plea had never been entered," King v. State, 870 So.2d 69, 70 (Fla. 2d DCA 2003), forecloses the abuses the dissent's position invites.

As such, once the court permitted Small to withdraw her plea to the sale charge, the bargained for nolle prosse was likewise withdrawn, and the status quo ante restored. Small, however, insists that because the State had entered the nolle prosse, it was required to refile an information charging her with possession. We disagree. "[T]he only purpose of an indictment [or information] is to apprise a defendant of the charge against him.... An indictment or information ... is nothing more or less than the vehicle by which the state charges that a crime has been committed." Dougan v. State, 470 So.2d 697, 701 (Fla. 1985). Having been properly charged prior to entering the plea agreement, Small was fully aware of the charges against her, as well as the State's intention to prosecute her on these two offenses and thus-contrary to the dissent's position-she was accorded due process. As such, refiling the information would serve no meaningful purpose here. The withdrawal of the plea resulted in a return to the status quo that existed before the plea agreement was made, and the State was entitled to "proceed as if a plea had never been entered." King, 870 So.2d at 70.

Small's argument that everything after the filing of a nolle prosse is a nullity, is of little merit on these facts. That argument ignores the subtle distinctions attendant to whether the nolle prosse was pursuant to a plea agreement, as is the case here, or was entered by the State at its own discretion for any reason. "When, as in the present case, the plea agreement involves 'charge bargaining,' if the plea is withdrawn the defendant must again face the original charge as it existed prior to the state's offer [to nolle prosse]." Fairweather v. State, 505 So.2d 653, 655 (Fla. 2d DCA 1987) ; Gonzales v. State, 766 So.2d 452, 454 (Fla. 3d DCA 2000) ("If the trial court permits the defendant to withdraw his plea, the State must be returned to the same position it was in before the plea agreement ....").

After withdrawing her plea, Small was returned to the position she was in before entering the plea, facing charges of sale of a controlled substance and possession of a controlled substance with intent to sell, which the State had properly charged before Small had entered her plea-a fact the dissent attaches little importance to. The State was merely proceeding on the charges in the original information when it resumed its prosecution of Small. Small was not denied due process or prejudiced by the course of the proceedings-caused solely by her entry and subsequent withdrawal of a plea-and the interests of justice do not warrant a contrary finding. See Baker v. State, 4 So.3d 758, 760 (Fla. 1st DCA 2009) (explaining the standard for fundamental error). Accordingly, we affirm.

Affirmed.

LaROSE, C.J., Concurs with opinion.

MORRIS, J., Dissents with opinion.

LaROSE, Chief Judge, Concurring.

I concur fully in the court's opinion rejecting Small's claim of fundamental error. Applying contract law principles to the plea agreement between the State and Small, the court properly concludes that upon the withdrawal of her plea, Small returned to the status quo ante and was subject to prosecution for the possession charge that the State nolle prossed solely in conjunction with the negotiated plea agreement. See generally Garcia, 722 So.2d at 907 ("A plea agreement is a contract and the rules of contract law are applicable to plea agreements."); see also Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988) ("[B]ecause this court has voided the plea bargain, Geiger must be returned to the position that existed before the bargain."). Quite simply, upon the successful withdrawal of her plea, Small returned to square one to face the State on all charges. See Geiger, 532 So.2d at 1301 ; Fine v. State, 728 So.2d 307, 308 (Fla. 5th DCA 1999) (explaining that if the defendant chooses to withdraw his plea, "[t]he [S]tate would then be free to prosecute a burglary count against Fine, which it nol prossed").

Maintaining that the State was required to refile the possession charge, the dissent relies on notions of due process and separation of powers. These doctrines, I recognize, are of the utmost constitutional import. However, in all due respect, the dissent's concerns are illusory in this case.

The trial court order granting Small's motion to withdraw her plea recited that the motion was granted "as it relates to case 13-683CF and 13-685CF [and the cases] are returned to the trial docket." The dissent urges that we are encroaching on the State's prerogative to file charges. But the record is devoid of any objection by the State to the trial court's order. Moreover, relying on the same contract principles outlined by the court, the State maintains, before us, that the possession charge properly was reinstated upon the withdrawal of Small's plea. The parties returned to the same positions they occupied prior to the plea deal. See Geiger, 532 So.2d at 1301. All bets were off. Under these circumstances, I cannot agree that the court's decision impermissibly encroaches on the State's authority to prosecute crimes. Cf. State v. Oestreich, 83 Wash.App. 648, 922 P.2d 1369, 1370-71 (1996) (concluding that the trial court was entitled to treat "the original information as if it had been reinstated" when the parties treated it as if it had been reinstated and did not object "when the trial court reset trial on" the original counts).

Additionally, I am hard-pressed to conclude that Small suffered any due process injury. When the trial court granted her motion in late July 2015, Small was aware that both offenses would return to the trial docket. Thereafter, our record indicates that the parties engaged in discovery, attended pretrial conferences, and subpoenaed witnesses. Trial began on January 20, 2016, six months after the withdrawal of her plea. Small was represented at trial by counsel. Contrary to the dissent's stated concern, I cannot agree that Small was not on notice of the charges against her.

Even if the State, in an effort to create a cleaner record, should have refiled the possession information, I cannot say that its failure to do so under our facts constitutes a fundamental error so serious as to call into question the validity of the trial results.

MORRIS, J., Dissenting.

I am unable to join my esteemed colleagues' majority opinion in what is, to be sure, a valiant effort to achieve a just result in this case. But the road to the destination they have arrived at requires me to negotiate an obstacle which I will not hurdle-the doctrine of separation of powers.

As we know from the facts in this case, Small initially pleaded no contest to the charge of sale of a controlled substance. She did that pursuant to a negotiated plea wherein the State agreed to, and announced, a nolle prosse of count II of the information-possession of a controlled substance with intent to sell. Shortly thereafter, Small had a change of heart and moved to withdraw her plea, which the trial court granted. Subsequently, and without refiling the information reviving the previously nolle prossed possession count, the State renewed its prosecution of Small and obtained a conviction after a jury trial on both offenses. The problem, of course, is that Small was convicted of possession without being charged with it.

How can that be? The majority resorts to contract law in an effort to justify the proposition that a criminal defendant can be prosecuted and convicted of a crime for which she was not charged. If it were only that simple. In their haste to justify a criminal conviction on an unfiled charge, the majority has side-stepped constitutional due process, the doctrine of separation of powers, the jurisdiction of the criminal court, and the concept of judicial immunity.

At its most basic level, constitutional due process requires the State to file an indictment or information so that a defendant is put on notice of the charges against her. See Fla. R. Crim. P. 3.140 ; Price v. State, 995 So.2d 401, 404 (Fla. 2008) (citing art. 1, section 9, of the Florida Constitution ). The decision to file a criminal charge is exclusively within the province of the executive branch acting by and through its duly elected agent, the state attorney of the judicial circuit with jurisdiction in the matter. See Valdes v. State, 728 So.2d 736, 738-39 (Fla. 1999) (first citing article V, section 17, of the Florida Constitution, then citing Cleveland v. State, 417 So.2d 653, 654 (Fla. 1982) ). So too, the decision to nolle prosse a criminal charge is exclusively within the province of the relevant state attorney. See State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979) ; State v. Aguilar, 987 So.2d 1233, 1234-35 (Fla. 5th DCA 2008). The judicial branch has absolutely no authority to either file or nolle prosse a criminal charge. See Valdes, 728 So.2d at 739 ("[T]he judiciary cannot interfere with this 'discretionary executive function.' " (quoting State v. Bloom, 497 So.2d 2, 3 (Fla. 1986) ) ).

A nolle prosse operates as a dismissal of the charge, and any subsequent proceeding on the charge is a nullity. See State v. Vazquez, 450 So.2d 203, 204 (Fla. 1984) (quoting Op. Att'y Gen. Fla. 058-169 (1958) ); Davis v. State, 210 So.3d 101, 103 (Fla. 2d DCA 2016) (first citing Aguilar, 987 So.2d at 1234-35, then citing Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007) ). Once the State has entered a nolle prosse, as it did in this case, it may not "withdraw" the nolle prosse but must formally charge the defendant again by information or indictment. See Sadler, 949 So.2d at 305. Because the State did not refile count two after it had nolle prossed it, Small's conviction on that count is a nullity.

Not only was Small's conviction on count two a nullity, the trial court did not have jurisdiction over count two after it was nolle prossed. "[J]urisdiction to try an accused does not exist under ... the Florida Constitution unless there is an extant information [or] indictment ...." State v. Anderson, 537 So.2d 1373, 1374 (Fla. 1989). When a court lacks jurisdiction, the question of judicial immunity arises and a trial judge may not be protected against personal liability for his or her handling of the case. See Fuller v. Truncale, 50 So.3d 25, 27 (Fla. 1st DCA 2010) (citing Johnson v. Harris, 645 So.2d 96, 98 (Fla. 5th DCA 1994) ). Although a very serious matter, the majority seems unconcerned about possibly opening up this Pandora's Box by their opinion, which could serve as a trap for an unwitting judge.

All the State needed to do to prosecute Small on the possession charge was simply refile the original information charging her with the offense. Certainly, the circumstances did not prevent the State from refiling because the negotiated plea operated as a tolling event both for purposes of the statute of limitations and the speedy trial rule. See Geiger v. State, 532 So.2d 1298, 1301 (Fla. 2d DCA 1988) (holding that where the State nolle prossed charges as a result of a negotiated plea with the defendant involving other charges but the defendant is later permitted to withdraw her plea to the other charges, the statute of limitations and speedy trial rule will not prevent the State from proceeding on the charges that had been nolle prossed); Kehn v. State, 44 So.3d 640, 640-41 (Fla. 5th DCA 2010) (rejecting defendant's argument that the statute of limitations and speedy trial rule prohibited his prosecution on a charge after he successfully moved to withdraw his plea to the charge). I note that the State relies on Geiger in support of its argument that the State was not required to refile a new information in this case. But in Geiger, this court did not presume that the nolle prossed charges would automatically be revived after the withdrawal of the defendant's plea. Rather, we recognized the requirement of a charging instrument and "direct[ed] that the original informations be reinstated." 532 So.2d at 1301. Assuming that reinstatement would solve the problem, no such reinstatement occurred in this case.

The separation of powers doctrine prohibits one branch of government from "encroach[ing] upon the powers of another." Whiley v. Scott, 79 So.3d 702, 708 (Fla. 2011) (quoting Bush v. Schiavo, 885 So.2d 321, 329 (Fla. 2004) ). Encroachment by one branch of government on the exclusive authority of another is no small matter. Accordingly, I am unable to join the majority. I would reverse the trial court's conviction of Small on possession of a controlled substance (count II) because it was achieved without lawful authority.

      Although the trial court held a hearing on the motion to withdraw, our record contains no transcript of the hearing. Thus, we can do little more than speculate as to any objections, concessions, reservations, or reinstatements made by the parties. Without question, such speculations hardly form the basis for an appellate decision. Yet, any objection to proceeding to trial on both charges should have been raised then.

      Curiously, the dissent concludes that there was no reinstatement in this case. Without the transcript of the hearing on the motion to withdraw, such a conclusion is speculation or conjecture. After all, the State could have reinstated the original information at that hearing.

      In Geiger, 532 So.2d at 1301, this court directed the reinstatement of the original informations without citing any legal authority, and I question whether this court could do so when the exclusive authority to file informations rests with the executive branch.

      James Madison warned us early on about the importance of the separation of powers: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed. 1961).


text:
    NICON CONSTRUCTION, INC., a/a/o Richard Prager, Appellant, v. HOMEOWNERS CHOICE PROPERTY AND CASUALTY INSURANCE COMPANY ; and B & M Clean, LLC, d/b/a Sun Construction, Appellees.
    Case No. 2D16-1586
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018. Rehearing Denied August 3, 2018
    Jason Ciofalo of Mackinnon Law Group, P.A., Tampa; and Susan W. Fox and Gray R. Proctor of Fox & Loquasto, P.A., Orlando, for Appellant.
    Andrew A. Labbe of Groelle & Salmon, P.A., Tampa, for Appellee Homeowners Choice Property and Casualty Insurance Company.
    No appearance for Appellee B & M Clean, LLC.
   KELLY, Judge.

Nicon Construction, Inc., appeals from a summary judgment entered in favor of Homeowners Choice Property and Casualty Insurance Company on a breach of insurance contract claim. We reverse.

Homeowners Choice issued a property insurance policy to Richard Prager. In April 2012 a pipe burst in Mr. Prager's home. In exchange for immediate emergency services, Mr. Prager provided assignments of benefits from his insurance policy to two firms: B & M Clean, LLC, for water and debris removal, and Nicon, an asbestos remediation provider. Later that year, when he discovered additional water damage, Mr. Prager again provided assignments of benefits to B & M Clean and Nicon.

Eventually, both B & M Clean and Nicon sued Homeowners Choice for breach of the insurance contract alleging that it had failed to pay all benefits due them under the policy. Homeowners Choice obtained a summary judgment against Nicon after persuading the trial court that Nicon's assignment was invalid because at the time Mr. Prager provided the assignment to Nicon, he had already assigned all the benefits for this loss to B & M Clean. To reach this conclusion, the trial court focused on a portion of the assignment that states Mr. Prager is assigning "any and all insurance rights, benefits, and causes of action under my property insurance policy" to B & M Clean. The court reasoned that because of this language, Mr. Prager had no further rights under the policy left to assign to Nicon. We conclude the trial court erred in its interpretation of the assignment.

The interpretation of a contract is a question of law, and we are not restricted in our review powers from reaching a construction that is contrary to the one reached by the trial court. See City of Tampa v. Ezell, 902 So.2d 912, 914 (Fla. 2d DCA 2005). "In construing a contract, the intent of the parties should be determined from the words of the contract as a whole." Id. (citing Fla. Power Corp. v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671 (Fla. 1944) ). "The court also should consider the conditions and circumstances surrounding the parties and the objects to be obtained in executing the contract." Id.

In finding that Mr. Prager had no further interest in the claim to assign to Nicon, the trial court isolated a phrase in the assignment rather than viewing it in the context of the entire agreement. When the phrase "any and all insurance rights, benefits, and causes of action under my property insurance policy" is read in the context of the entire assignment and the purpose for which it was entered into, it is evident that Mr. Prager was assigning all his rights under the policy to payment for the services performed by B & M Clean-not all his rights to payment for the entire covered claim. Accordingly, the assignment to Nicon was valid, and it was error for the trial court to enter summary judgment in favor of Homeowners Choice.

Reversed and remanded for further proceedings.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: Per Curiam.

text:
    Edwardo DE JUAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0105
    District Court of Appeal of Florida, First District.
    April 30, 2018 Rehearing Denied August 7, 2018
    Edwardo De Juan, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Following a jury trial in 2011, Appellant was convicted of escape and sentenced to fifteen years in prison. In May 2017, Appellant filed a motion in the trial court pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, seeking to correct what Appellant claimed was an illegal sentence. In his motion, Appellant contended that the elements of escape were not met because he only went onto the roof of Taylor Correctional Institution while he was in custody and did not actually leave the prison. See § 944.40, Fla. Stat. (2010) (providing the elements of escape and establishing the crime as a second degree felony). Appellant therefore argued that he was at worst guilty of attempted escape. The trial court dismissed the motion and Appellant brought this appeal.

Rule 3.800 is "not the correct procedural vehicle for attacking the merits of an underlying criminal conviction." Echeverria v. State , 949 So.2d 331, 335 (Fla. 1st DCA 2007). A challenge to the sufficiency of the evidence cannot be raised in any kind of collateral postconviction motion. See Smith v. State , 41 So.3d 1037, 1040 (Fla. 1st DCA 2010) ("[C]laims of insufficient evidence have long been held to be procedurally barred in collateral proceedings."). The trial court was therefore correct to dismiss the rule 3.800(a) motion.

Furthermore, even if Appellant was correct and he was guilty of only attempted escape, an attempt to escape from lawful confinement satisfies that element of the crime of escape. See Keel v. State , 438 So.2d 850 (Fla. 1st DCA 1983) ; Fla. Std. Jury Instr. (Crim.) 27.1. Escape, whether attempted or completed, is a second degree felony under section 944.40, punishable by up to fifteen years in prison pursuant to section 775.082(3)(c), Florida Statutes (2010). Appellant's fifteen year sentence was lawful.

AFFIRMED .

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


author: SILBERMAN, Judge.

text:
    Joseph J. HORGAN, as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust Dated 7/29/93, Appellant, v. Christopher E. COSDEN, Individually and as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust Dated 7/29/93, Appellee.
    Case No. 2D17-1354
    District Court of Appeal of Florida, Second District.
    Opinion filed May 25, 2018 Rehearing Denied June 29, 2018
    Y. Drake Buckman and Allie R. Buckman of Buckman & Buckman, P.A., Sarasota, for Appellant.
    Susan J. Silverman, Sarasota, for Appellee.
   SILBERMAN, Judge.

Joseph J. Horgan, as successor cotrustee, appeals the final judgment that terminates The Yvonne S. Cosden Revocable Trust Dated 7/29/93. The trial court denied Horgan's motion for summary judgment and granted the motion for summary judgment filed by Christopher E. Cosden, individually and as successor cotrustee, in Cosden's action to terminate his mother's trust that had become irrevocable upon her death. Because Horgan is entitled to summary judgment as a matter of law, we reverse and remand for the trial court to enter a final summary judgment in favor of Horgan that denies termination of the trust.

Yvonne S. Cosden (the Settlor) created a revocable trust in 1993. It was amended and restated in 1998 and further amended and restated on January 24, 2004, in the Second Amendment to and Restatement of The Yvonne S. Cosden Revocable Trust Dated 7/29/93 (the Trust). Cosden and Horgan are the successor cotrustees of the Trust. Cosden is the Settlor's only child. Horgan was the Settlor's personal assistant and friend.

The Settlor died on May 27, 2010, rendering the Trust irrevocable. Under the Trust, Horgan received a cash distribution of $250,000 at the time of the Settlor's death. Although the Trust does not contain a specific provision prohibiting its early termination, it provides that the balance of the Trust is to be held in a lifetime trust for Cosden's benefit. The net income generated from the Trust principal is to be distributed to Cosden incrementally, at least quarterly. The Settlor named three institutions of higher education to share the principal which would be distributed outright upon Cosden's death. The Settlor included a spendthrift provision which provides that "[t]he income and principal of any trust hereunder shall be used only for the personal benefit of the designated beneficiaries of the trust" and that each beneficiary's interest "shall not be subject to any form of pledge, assignment, sale, attachment, garnishment, execution, or other form of transfer."

In August of 2015, the income and remainder beneficiaries entered into an agreement to terminate the Trust early and distribute the trust funds according to a calculation of present day value that Cosden prepared. The agreement stated that the value of the Trust was approximately $3,000,000. Cosden's calculation resulted in a distribution where he would receive over $2,000,000 of the principal. Horgan did not agree to an early termination of the Trust.

In October of 2015, Cosden filed a complaint against Horgan as successor cotrustee to terminate the Trust and direct the distribution of assets in accordance with the beneficiaries' agreement. Horgan responded, contending that termination of the Trust at that time was against the Settlor's wishes to provide for her son for the rest of his life and to provide for principal distributions upon Cosden's death.

The parties filed competing motions for summary judgment, each contending that no issues of material fact existed and that each party was entitled to a judgment as a matter of law. The trial court found that no issues of material fact existed and granted summary judgment in favor of Cosden and directed termination of the Trust, citing sections 736.04113 and 736.04115, Florida Statutes (2015).

Section 736.04113 entitled "Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose," provides in pertinent part as follows:

(1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
(a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
(b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
(c) A material purpose of the trust no longer exists.
(2) In modifying a trust under this section, a court may: ...
(b) Terminate the trust in whole or in part; ...
(3) In exercising discretion to modify a trust under this section:
(a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.
(b) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.
(4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

The trial court stated that section 736.04113 allowed for termination of a trust "if the purposes of the trust have become fulfilled or wasteful."

Section 736.04115, entitled "Judicial modification of irrevocable trust when modification is in best interests of beneficiaries," provides in pertinent part as follows:

(1) Without regard to the reasons for modification provided in s. 736.04113, if compliance with the terms of a trust is not in the best interests of the beneficiaries, upon the application of a trustee or any qualified beneficiary, a court may at any time modify a trust that is not then revocable as provided in s. 736.04113(2).
(2) In exercising discretion to modify a trust under this section:
(a) The court shall exercise discretion in a manner that conforms to the extent possible with the intent of the settlor, taking into account the current circumstances and best interests of the beneficiaries.
(b) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.
(c) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions....
(5) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

The trial court found that the beneficiaries' agreement to distribute the Trust was in their best interest "because it will preserve the assets held in the Trust by eliminating unnecessary expenses relating to trust administration. A continuation of the Trust would incur unnecessary expenses and trustee's fees."

Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ; Wesner v. JMS Marinas, LLC, 224 So.3d 912, 915 (Fla. 2d DCA 2017). Review of a summary judgment that presents a pure question of law is by a de novo standard of review. Fayad v. Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1085 (Fla. 2005) ; Roberts v. Sarros, 920 So.2d 193, 194-95 (Fla. 2d DCA 2006). A trial court's interpretation of trust documents is also reviewed de novo. Minassian v. Rachins, 152 So.3d 719, 724 (Fla. 4th DCA 2014). The trial court found no issues of material fact existed and construed the Trust with the statutory provisions that allow for termination of trusts.

The settlor's intent is the polestar of trust interpretation. Id. at 725. A court determines "the settlor's intent from the plain and ordinary meaning of the terms set forth in the Trust instrument." Nelson v. Nelson, 206 So.3d 818, 819 (Fla. 2d DCA 2016). Cosden argues that the purpose of the Trust was fulfilled by the beneficiaries' agreement because the Settlor's intent was to provide for her son and the three educational institutions. He also contends that approval of the agreement would avoid waste because administrative expenses and trustees' fees would not be incurred and it would avoid the risk of market fluctuation. Further, Cosden argues that the agreement was in the best interest of the beneficiaries because it would preserve Trust assets by eliminating unnecessary expenses relating to trust administration.

But the plain language of the Trust reflects that the Settlor wanted to provide for her son financially via incremental distributions of income until he died and then give the entire principal to the three educational institutions. Terminating the Trust before this event will frustrate the purposes of the Trust. The Settlor twice amended the Trust and could have made a lump sum distribution to her son, as she did for Horgan, but she chose not to do so. She also included spendthrift provisions designed to protect each beneficiary's interest.

The undisputed facts do not reflect that there has been any waste of Trust assets, that the purposes of the Trust have been fulfilled, or that termination is in the best interest of the beneficiaries when considered in light of the Settlor's intent. The trustees' fees are customary, there is no indication that the administration expenses are unusual, and there has been no invasion of principal. Further, the record does not establish that market fluctuations created a real risk that the Settlor's intent would be thwarted. In essence, the beneficiaries simply prefer a different course of action than that chosen by the Settlor: they want their money now. But on this record, the desire to have the money now would be in direct contravention of the Settlor's intent, including her intent that the income beneficiary would only receive incremental distributions of income rather than a lump sum distribution of principal.

The fact that the Trust does not contain an express provision prohibiting early termination does not mean that the Settlor did not express her intent. She expressly stated that she wanted her son to have income payments over the course of his life. Many settlors choose to not provide a beneficiary with a lump sum distribution and may not want to spell out the reasons in a trust document. If we were to affirm the trial court's ruling, beneficiaries could have trusts terminated simply by stating that they did not want to pay trustees' fees, administrative expenses, or be concerned with market fluctuations. Nothing in the record indicates that the Settlor was unaware that markets fluctuate. And the Settlor purposefully chose two trustees and was aware of trustees' fees and administration expenses because she provided for them in the Trust.

Based on the undisputed circumstances, as a matter of law, neither section 736.04113 nor section 736.04115 supports the termination of the Trust. Therefore, we reverse the order on the motions for summary judgment and the final judgment and remand for the trial court to enter a final summary judgment in favor of Horgan that denies termination of the Trust.

Reversed and remanded with directions.

KELLY and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    WINDERTING INVESTMENTS, LLC, a Florida Limited Liability Company; and Helen Emily James f/k/a Helen Emily Kwok, Petitioners, v. Gregory FURNELL, Darlene Braden, and Jamie Johnston n/k/a Jamie Tanner, Respondents.
    Case No. 2D17-1930
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018 Rehearing Denied July 20, 2018
    Stephen R. Senn and Matthew J. Vaughn of Peterson & Myers, P.A., Lakeland, for Petitioners.
    Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Respondents.
   PER CURIAM.

Having carefully reviewed the record and the appellate court file, we deny the petition for writ of certiorari without comment as the trial court did not depart from the essential requirements of law in ordering the disclosure of the personal financial information of Helen James f/k/a Helen Kwok.

Denied.

LaROSE, C.J., and KHOUZAM and CRENSHAW, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Mark STERN, Appellant, v. Hillel A. HORWITZ; Palm Aire at Desoto Lakes Country Club Condominium Association, Inc.; and Progressive Community Management, Appellees.
    Case No. 2D17-3044
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018 Rehearing Denied August 3, 2018
    Susan J. Silverman, Sarasota, for Appellant.
    Ashley E. Ettaro, Jeffrey A. Caglianone, and David R. Reed of Caglianone & Miller, P.A., Tampa, for Appellee Hillel A. Horwitz.
    Peter J. Delahunty of Law Office of Peter J. Delahunty, Tampa, for Appellees Palm Aire at DeSoto Lakes Country Club Condominium Association, Inc., and Progressive Community Management.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Mark Stern appeals the dismissal of his negligence cause of action against Hillel A. Horwitz, a deceased party, as well as the granting of final summary judgment in favor of Palm Aire at DeSoto Lakes Country Club Condominium Association, Inc., and Progressive Community Management. We affirm without comment the granting of final summary judgment. However, because the trial court erroneously dismissed Mr. Stern's action against Mr. Horwitz under Florida Rule of Civil Procedure 1.260(a), we reverse.

On February 16, 2011, Mr. Stern filed a complaint against Mr. Horwitz, alleging that Mr. Horwitz had operated his golf cart in a negligent manner, causing Mr. Stern bodily injuries. On August 9, 2016, counsel for Mr. Horwitz filed a suggestion of death, indicating that Mr. Horwitz had died. On August 22, 2016, Mr. Stern, who was representing himself at that time, filed a motion to substitute Mr. Horwitz with a personal representative of Mr. Horwitz's estate or another authorized person under rule 1.260. A notice of hearing was not filed with the motion to substitute; it was filed ten months later.

On March 8, 2017, counsel for Mr. Horwitz filed a motion to dismiss Mr. Stern's complaint. Mr. Horwitz's attorney argued that because a notice of hearing was neither filed with the motion to substitute nor within the ninety days of the filing of the suggestion of death, rule 1.260(a) mandated dismissal of Mr. Horwitz's complaint. In response, Mr. Stern contended that his complaint should not be dismissed because his motion for substitution was timely served based on the plain language of the rule.

After holding a hearing on the motion, the trial court, relying on Metcalfe v. Lee, 952 So.2d 624 (Fla. 4th DCA 2007), granted the motion to dismiss because Mr. Stern failed to comply with rule 1.260(a)'s requirement that a notice of hearing be served with the motion to substitute. However, we disagree with the trial court's reliance on Metcalfe. For the reasons set forth below, we hold that rule 1.260(a) is clear and unambiguous on its face and does not require dismissal when a notice of hearing is not served contemporaneously with the motion for substitution.

Because this issue involves the interpretation of a Florida rule of civil procedure, our standard of review is de novo. See Ochoa v. Koppel, 197 So.3d 77, 79-80 (Fla. 2d DCA 2016) (citing Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla. 2006) ), review granted, No. SC16-1474, 2016 WL 9454296 (Fla. Nov. 9, 2016).

Rule 1.260(a) governs the process for substitution of deceased parties. It provides, in relevant part, as follows:

If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Fla. R. Civ. P. 1.260(a)(1) (emphasis added).

The first sentence of rule 1.260(a)(1) authorizes a court to order substitution of the proper parties in the event that "a party dies and the claim is not thereby extinguished." The second sentence of the rule allows "any party" or successor or representative of the deceased party to move to substitute the proper party for the deceased person. Id. And if such a motion is made, the rule requires that the motion for substitution along with a notice of hearing be served on all parties in accordance with rule 1.080 and on all nonparties in the same manner as the service of a summons. Id.

The third sentence of rule 1.260(a)(1) provides a mechanism for the dismissal of a cause of action against a deceased party. The rule provides that if the motion for substitution is not "made within [ninety] days" after the party's death is suggested on the record, then "the action shall be dismissed as to the deceased party." See Mut. of Omaha Ins. Co. v. White, 554 So.2d 12, 13 (Fla. 3d DCA 1989) ("[T]he generic term 'made,' when read in context, contemplates that the motion for substitution is timely if served or filed within ninety days."). In other words, dismissal is not warranted once two things occur: (1) the party's death is suggested upon the record and (2) the motion for substitution is filed or served within ninety days of the suggestion of death. Significantly, unlike the second sentence which requires both the motion and the notice of hearing to be served upon all parties and nonparties, the third sentence concerning dismissal of an action omits any mention of serving "a notice of hearing." Cf. Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 13 (Fla. 2004) (Cantero, J., concurring) ("[W]e are not at liberty to add words to statutes that were not placed there by the Legislature." (quoting Hayes v. State, 750 So.2d 1, 4 (Fla. 1999) ) ). As such, the plain language of the rule indicates that dismissal is triggered only when the motion for substitution is not filed or served within the ninety-day period. See Scott v. Morris, 989 So.2d 36, 37 n.1 (Fla. 4th DCA 2008) (recognizing that "the rule requires only that the motion for substitution be made within ninety days"); see also Eusepi v. Magruder Eye Inst., 937 So.2d 795, 798 (Fla. 5th DCA 2006) (acknowledging that rule 1.260"specifies only that the motion [for substitution] be filed within ninety days" and that "the ninety-day period referenced in the rule has served its purpose once the motion is filed." (emphasis added) ).

Additionally, as we stated earlier in Blue v. R.J. Reynolds Tobacco Co., 234 So.3d 863 (Fla. 2d DCA 2018), the purpose of rule 1.260 was to "allow more flexibility in substitution." Id. at 867 (quoting N.H. Ins. Co. v. Kimbrell, 343 So.2d 107, 109 (Fla. 1st DCA 1977) ). Its ninety-day time period for filing or serving the motion for substitution "was not intended to act as a bar to otherwise meritorious actions." Id. (quoting Kimbrell, 343 So.2d at 109 ); see also Scott, 989 So.2d at 37 (stating that the purpose of rule 1.260 is "to facilitate the rights of persons having lawful claims against estates being preserved so that otherwise meritorious actions will not be lost" (citation omitted) ); Eusepi, 937 So.2d at 798 n.2 (noting that "[o]nce the motion for substitution is timely filed ... dismissal is not available under the ninety-day provision of Rule 1.260"). Indeed, as the Fourth District noted, "[t]here is little point in setting a hearing until it is known if an estate has been opened or will be opened." Scott, 989 So.2d at 37 n.1.

Moreover, a notice of hearing is distinct from a motion for substitution of a deceased party in both form and substance. A substitution motion is concerned primarily with the process of replacing a deceased party with the proper party-if or when that party becomes available-in order to preserve meritorious actions. See Eusepi, 937 So.2d at 798 (" Rule 1.260 is in its present form precisely so that the process of substitution of a new party for a party who dies while litigation is pending will not cause otherwise meritorious actions to be lost."). In contrast, the notice of hearing on a motion for substitution is concerned primarily with safeguarding the due process rights of the affected parties-but only once the proper party exists. See id. ("[W]here the estate is not in existence at the time the court considers the motion [for substitution], the court should not enter an order granting the motion." (citing Gronowicz v. Leonard, 109 F.R.D. 624, 626 (S.D.N.Y. 1986) ) ). Indeed, only when the proper party is in existence may it then be properly served and substituted; thus, allowing the proper party an adequate opportunity to defend itself. Cf. Schaeffler v. Deych, 38 So.3d 796, 800, 801 (Fla. 4th DCA 2010) (holding that the trial court violated the estate's due process rights by proceeding to enter final judgment without substitution of the proper party); Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So.2d 1107, 1111 (Fla. 3d DCA 2000) ("It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order, decree or judgment of any court." (quoting Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205, 205 (1939) ) ).

Here, it is clear that the trial court erred in dismissing Mr. Stern's action against Mr. Horwitz. The record reflects that the suggestion of death was filed on August 9, 2016, and that the motion for substitution was filed ten days later on August 19, 2016. Accordingly, because the motion for substitution was timely filed within ninety days of the filing of the suggestion of death, we conclude that the trial court erred in dismissing Mr. Stern's complaint against Mr. Horwitz.

Finally, we note that any reliance upon the Fourth District's decision in Metcalfe is misplaced. There, although the Fourth District interpreted rule 1.260 to mean that a party must file the notice of hearing with the motion for substitution to prevent dismissal, see Metcalfe, 952 So.2d at 629, this interpretation was short lived. A year later, the Fourth District in Scott cabined its previous interpretation, describing it as dicta and acknowledging that rule 1.260"requires only that the motion for substitution be made within ninety days." Scott, 989 So.2d at 37 n.1. Specifically, the Fourth District reasoned that its prior statement was dicta because the issue of "[w]hether the notice of hearing had to accompany the motion was not an issue in Metcalfe." Scott, 989 So.2d at 37 n.1. In fact, the controlling issues in Metcalfe dealt with who had standing to file a motion for substitution and when such a motion must be made. See Metcalfe, 952 So.2d at 628-30.

We therefore reverse and remand for reinstatement of Mr. Stern's cause of action against Mr. Horwitz.

Affirmed in part, reversed in part, and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      Of course, this interpretation does not preclude a party from raising excusable neglect as a defense to dismissal under rule 1.260(a)(1). See Mims ex rel. Mims v. Am. Sr. Living of Dade City, FL, LLC, 36 So.3d 935, 936 (Fla. 2d DCA 2010) ; Tucker v. Firestone Tire & Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989).

      Mr. Horwitz's attorneys argue that not requiring a notice of hearing to be filed or served along with the motion for substitution will result in the perpetual abatement of an action. Though we certainly do not condone Mr. Stern's behavior in this action, such a concern is not warranted. Rule 1.260 places no limitations on whom may serve or file a notice of hearing following the motion for substitution being served within the ninety-day period. In fact, rule 1.260(a)(1) provides specifically that "any party," including "the successors or representatives of the deceased party," may file or serve such a motion with a notice of hearing. (Emphasis added.)


text:
    Daisy RICHARDS, as Personal Representative of the Estate of James E. Hurd, Jr., Deceased, Appellant, v. James E. RISH, Appellee.
    No. 1D17-3013
    District Court of Appeal of Florida, First District.
    May 31, 2018 Rehearing Denied July 31, 2018
    George V. Matlock, Tallahassee, for Appellant.
    James E. Rish, pro se, Appellee.
   Per Curiam.

Appellant appeals a Final Judgment entered in Appellee's favor on several claims, including unjust enrichment, arising from an unenforceable oral contract for the sale of real property. We agree with Appellant that the trial court's determination that equity did not compel repayment of funds paid to Appellee is unsupported by the evidence. See Golden v. Woodward , 15 So.3d 664, 670 (Fla. 1st DCA 2009) (noting that an unjust enrichment action exists to prevent " 'the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity' " (citation omitted) ); see also Cole Taylor Bank v. Shannon , 772 So.2d 546, 551 (Fla. 1st DCA 2000) (applying the competent, substantial evidence standard of review in reviewing a trial court's ruling in favor of a defendant in an unjust enrichment action). We, therefore, reverse the Final Judgment on the issue of unjust enrichment and remand with directions that the trial court enter judgment in Appellant's favor on that claim.

REVERSED and REMANDED with directions.

B.L. Thomas, C.J., and Lewis and Makar, JJ., concur.


text:
    Elijah THOMAS, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0909
    District Court of Appeal of Florida, First District.
    May 30, 2018 Rehearing Denied July 25, 2018
    Elijah Thomas, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

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


author: Per Curiam. Makar, J., dissenting.

text:
    KAPSCH TRAFFICCOM IVHS, INC., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Florida Turnpike Enterprise, Neology, Inc., and Smartrac, N.V., Appellees.
    No. 1D17-743
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Philip J. Padovano of Brannock & Humphries, Tallahassee; Kelly Overstreet Johnson and Russell B. Buchanan of Baker Donelson Bearman Caldwell & Berkowitz, PC, Tallahassee, for Appellant.
    Marc Peoples, Assistant General Counsel, Tallahassee, for Appellees Florida Department of Transportation and Florida Turnpike Enterprise; W. Douglas Hall and Peter D. Webster of Carlton Fields, Tallahassee, for Appellees Neology, Inc., and Smartrac, N.V.
   Per Curiam.

This case came before the trial court on the parties' cross-motions for summary judgment. The parties were then-and still are-fully in agreement regarding the material facts. They disagree, however, as to the legal conclusions to be drawn from the undisputed facts. The matter, therefore, was appropriately disposed of by summary judgment. On appeal, Kapsch TrafficCom IVHS, Inc. ("Kapsch") argues that the trial court erred in not granting summary judgment in its favor. We disagree and affirm.

This case centers on a patent license agreement ("Agreement") entered into between the Florida Turnpike Enterprise acting on behalf of the Florida Department of Transportation (collectively, "FDOT"), and Neology, Inc. and its parent company, Smartrac, N.V. (collectively, "Neology"). Under the terms of the Agreement, FDOT paid $7 million to Neology for the nonexclusive right to use technology owned by Neology, namely, Neology's patented 6C technology. The 6C technology would allow FDOT's automated toll collection "readers" to communicate not just with Florida's Sun Pass® system transponders, but with all transponders or "tags" on passing vehicles from any state, in order to assess a toll.

Kapsch filed suit in the trial court claiming the license agreement was illegal because FDOT failed to follow the competitive bidding process dictated by section 287.057, Florida Statutes. That section applies when a state agency seeks to procure "commodities" or "contractual services" costing more than $35,000. § 287.057(1), Fla. Stat. (referencing the "threshold amount provided for CATEGORY TWO in s. 287.017"). The trial court expressly noted that Kapsch did not contend that the Agreement is one for services, and it duly observed that nothing in the agreement requires Neology to deliver a commodity.

Kapsch argued that a patent license is a "commodity" because it is a type of intangible personal property, and "personal property" is specifically listed in the definition of "commodity" in section 287.012(5), Florida Statutes. It also attempted to place the license agreement within the purview of Article IX of the Uniform Commercial Code ("UCC"), as codified in section 679.1021, Florida Statutes, because, in a UCC comment, "general intangibles" are defined as a residual category of personal property, including, for example, a license for the use of intellectual property; hence, a patent license. The trial court rejected both contentions. It observed that "[t]he definitions and comments in Article IX of the UCC [ ] serve a different purpose than those in section 287.057." It further explained that "[i]f such a broad, sweeping interpretation were given to the term 'personal property' urged by [Kapsch], there would be no reason to list the several examples in [ section 287.012(5) ]. The term 'personal property' would necessarily include all others."

Instead, the trial court was "more persuaded" by the cases cited by FDOT and Neology describing "the nature of a nonexclusive patent license as a covenant not to sue or a grant of immunity from suit for patent infringement," thereby giving the licensee, FDOT, no property right in the patent itself. See Gen. Talking Pictures Corp. v. W. Elec. Co. , 304 U.S. 175, 181, 58 S.Ct. 849, 82 L.Ed. 1273 (1938) (citation omitted) (holding that a company was "a mere licensee under a nonexclusive license, amounting to no more than 'a mere waiver of the right to sue' "); U.S. Philips Corp. v. Int'l Trade Comm'n , 424 F.3d 1179, 1189 (Fed. Cir. 2005) ("A nonexclusive patent license is simply a promise not to sue for infringement."); Pub. Varieties of Miss., Inc. v. Sun Valley Seed Co. , 734 F.Supp. 250, 252 (N.D. Miss. 1990) ("A license merely grants a party permission to do something which would otherwise be unlawful; it grants immunity from suit rather than a proprietary interest in the patent."); see also TransCore, LP v. Elec. Transaction Consultants Corp. , 563 F.3d 1271, 1275 (Fed. Cir. 2009) ("[A] patentee, by license or otherwise, cannot convey an affirmative right to practice a patented invention by way of making, using, selling, etc.; the patentee can only convey a freedom from suit."); W. Elec. Co. v. Pacent Reproducer Corp. , 42 F.2d 116, 117 (2d Cir. 1930) (citations omitted) ("In its simplest form, a license means only leave to do a thing which the licensor would otherwise have a right to prevent. Such a license grants to the licensee merely a privilege that protects him from a claim of infringement by the owner of the patent monopoly .... He has no property interest in the monopoly of the patent, nor any contract with the patent owner that others shall not practice the invention.").

The trial court then turned to the actual wording of the Agreement between Neology and FDOT. In Article 2.1, the Agreement grants FDOT "a nonexclusive, perpetual, nontransferable, license under [the] respective Patent Rights." Applying the logic of the foregoing federal decisions, the trial court concluded "as a matter of law" that "the Agreement does not constitute a purchase of personal property, tangible or intangible. It merely gives FDOT permission to use the 6C technology patented by Neology without risking liability to Neology for patent infringement." The trial court went on to explain that even were the license to be considered a form of personal property, "its very nature makes it impossible to be procured by competitive bid. The right to use technology protected by a particular patent can only be obtained from the patent owner. No amount of competitive bidding can change that."

Lastly, the trial court addressed Kapsch's claim that paragraph 2.8 of the Agreement, which gave FDOT a credit equal to $7 million-the amount of the license fee-against future purchases of products from Neology, brings the agreement within the purview of section 287.057. However, as the trial court determined, that issue is moot due to the fact that FDOT and Neology voluntarily amended the license agreement prior to the instant suit being filed to remove paragraph 2.8 from the Agreement. The Agreement contains a severability clause in paragraph 7.8 that permitted the severance of the credit clause without affecting the rest of the Agreement. This is so because, as the trial court rightly decided, paragraph 2.8 "did not go to the essence of the agreement." See, e.g. , Lamaritata v. Lucas , 823 So.2d 316, 316 n.3 (Fla. 2d DCA 2002) (applying the severability clause to sever the unenforceable portion of the contract, while the remainder of the contractual provisions remained valid and in force); Brevard Cty. Bd. of Cty. Comm'rs v. Williams , 715 So.2d 1100, 1101-02 (Fla. 1st DCA 1998) (holding that the invalid provision of a settlement agreement should have been severed pursuant to the severability clause rather than declaring the entire agreement unenforceable). New Prod. Corp. v. City of N. Miami , 241 So.2d 451 (Fla. 3d DCA 1970) (holding that "the obligation to perform certain covenants in addition to conveyance of the property (which are for the benefit of the purchaser) are severable," and, "even though the covenants may not be performed or would be illegal they are not integral parts of the contract and the purchaser may require specific performance of the remaining valid portions of the agreement").

Here, it bears repeating that no factual dispute exists regarding FDOT's prime motivation to enter into the Agreement. It desired to obtain a patent license, not to purchase commodities or services from Neology. Therefore, the credit provision was properly severed from the Agreement.

Based upon the foregoing discussion and the trial court's well-reasoned analysis, we hold that summary final judgment was properly entered in favor of FDOT and Neology. Accordingly, we affirm.

AFFIRMED .

Wetherell and Jay, JJ., concur; Makar, J., dissents with opinion.

Makar, J., dissenting.

Government procurement codes are followed meticulously to uphold principles of fair and open competition upon which they are founded. When governmental agencies choose to contract directly with one private vendor, thereby foregoing competitive public bidding, their exercise of discretion must hew closely to lawful parameters of an exception or risk invalidation See Accela, Inc. v. Sarasota Cty. , 993 So.2d 1035, 1044 (Fla. 2d DCA 2008) (county agreements that significantly expanded a piggy-back exception in the procurement code held to be arbitrary and capricious such that the agreements were "void and of no effect").

The privately-negotiated contract in this case-which is "an unusual agreement" and not a "routine transaction" for a Florida governmental agency-is between the Florida Department of Transportation (FDOT) and two vendors, Neology, Inc., and Smartrac N.V., consisting of two related parts: (a) the grant to FDOT of the use of certain intellectual property rights of the vendors for $7 million, and (b) a credit in that same amount to FDOT to be applied to the procurement of related commodities offered by the vendors. The first part extends immunity or indemnity from suit for potential violations of the intellectual property rights of the vendors, for which a colorable claim exists that no "commodity" has been procured and compliance with section 287.057, Florida Statutes, was unnecessary.

But the second part of the agreement, which states as follows, presents a problem:

2.8 In addition to the license of Patent Rights under this Agreement, the [FDOT] shall have a credit equal to the amount of the License Fee [$7 million] that may be applied dollar for dollar against any future purchases of tags or readers or other products sold by or on behalf of the [Neology and Smartrac]. The [FDOT]'s credit balance may be used as full payment for [FDOT]'s purchases until the complete credit balance has been exhausted. [Neology or Smartrac] will provide [FDOT] with a written acknowledgement of the remaining balance of the credit after each purchase made by [FDOT].

No dispute exists that this paragraph provides a $7 million credit for the purchase of commodities ("tags or readers or other products") from the vendors, who expressly wanted to establish a customer relationship for these items with FDOT.

Once the agreement became public, it resulted in controversy and, ultimately, litigation. Mr. Kapsch, the CEO of a competitor, Kapsch Trafficom, who learned of the contract due to a press release, traveled from Austria to meet with the FDOT official in charge, expressing disappointment that his company did not get to participate in the procurement process and claiming it could have provided the technological licensing protocol for free; he also pointed out that the $7 million credit put his company at a competitive disadvantage as to procurement of the listed commodities. Soon thereafter, the FDOT official instructed that paragraph 2.8 be removed and a new agreement was signed, the ostensible purpose being to "provide a confidence level" to vendors by "eliminat[ing] the appearance of an unlevel playing field in a future procurement." The $7 million of bargained-for commodities credit was thereby extinguished in the process.

All this was too little too late. An agreement that included the procurement of $7 million of commodities had been effectuated without compliance with state law; it was privately-negotiated and subject to no public scrutiny before its finalization and release. That it contained a potentially valid agreement for intellectual property rights does not save its overall legitimacy; excising the commodities clause (and foregoing a $7 million benefit to the State) does not change the fact that the procurement process was violated and the agreement overall was invalidly procured. The remedy for non-compliance is to declare the agreement void. Wester v. Belote , 103 Fla. 976, 138 So. 721, 724 (1931) (contract violating public competitive bid laws "is absolutely void, and that no rights can be acquired thereunder by the contracting party, is beyond question in this jurisdiction."); Robert G. Lassiter & Co. v. Taylor , 99 Fla. 819, 128 So. 14, 17 (1930) (failure to comply with provision as to contracting is a violation that renders the agreement "illegal and void"). Severance of the commodities clause might make sense if the clause were, as the trial court determined, a non-essential one. But a $7 million credit to State coffers-that would negate "dollar for dollar" the FDOT's entire $7 million upfront payment-can't be other than a material one; seven million dollars is not chump change.

And severance sends the wrong message: it normalizes an improper procurement practice, forgiving the agency at great expense to State coffers. It cuts against the grain of principles of procurement laws that must be followed to "prevent favoritism" and are of a "highly remedial character" whose "construction always ... will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated." Wester , 138 So. at 724. And dispensing with the commodities clause seems little different from the types of "exceptions, releases, and modifications in the contract after it is let" that "afford opportunities for favoritism, whether any favoritism is actually practiced or not." Id.

FDOT and the vendors counter that the $7 million credit would have been exercised only if either Neology or Smartrac was a successful bidder for these commodities in a future competitive procurement process, but their agreement doesn't say that. Even if it were true, it doesn't excuse the failure to comply with the procurement code in the first instance. The reason is that the $7 million commodities credit is little different than the procurement of gift cards, vouchers, or other similar means of purchasing "tags or readers or other products sold by or on behalf of" the vendors. Kapsch Trafficom and others who compete with the vendors have a legal right to be participants in a competitive procurement of these items, but were excluded. An agency can't do indirectly what it's prohibited from doing directly. Lassiter & Co. , 128 So. at 17 ("[C]ity could not circumvent the charter provision by first entering into a legal contract for pavement 'in accordance with plans and specifications on file,' and later, by agreement, change the contract to a different type of pavement or make a new contract."); see generally Evasion of law requiring contract for public work to be let to lowest responsible bidder by subsequent changes in contract after it has been awarded pursuant to that law , 69 A.L.R. 697 (1930 & Supp. 2018) (overview of cases consistent with Lassiter & Co. ). Perhaps FDOT focused on the licensing portion of the agreement, and was lulled into ceding to the commodities clause, which served the vendors' interests of getting a foothold for its commodities. That may be the case, but unlike situations where an agency is entitled to "regroup, reevaluate, redesign, or reject" a project, the commodities clause was a means of avoiding competition that can result in contractual invalidation. Dep't of Transp. v. Groves-Watkins Constructors , 530 So.2d 912, 914 (Fla. 1988).

This case is unlike those where severance of an invalid covenant, such as one requiring that property be rezoned by a city, could be accomplished without prejudice to the parties or the public. In New Products Corp. v. City of North Miami , 241 So.2d 451, 452 (Fla. 3d DCA 1970), the city was sued to force specific performance of a land sales contract in which it promised to the buyer to that it would rezone the property to multi-family. The city changed its mind, the buyer sued, and the trial court held that the illegal covenant made the entire contract illegal. The appellate court disagreed, ruling that the buyer's offer to take the property as currently zoned and waive the covenant was valid. The difference is that a contract made in violation of a procurement statute is void; it is irredeemable, not merely voidable at the behest of the party for whom it would have benefitted. Wester , 138 So. at 724 (citing Lassiter & Co. ); see Harris v. Sch. Bd. of Duval Cty. , 921 So.2d 725, 735 (Fla. 1st DCA 2006) ("A contract entered into in violation of statutes and rules requiring competitive bids 'is absolutely void, and ... no rights can be acquired thereunder by the contracting party.' ") (footnote omitted) (quoting Wester , 138 So. at 724 ).

All this said, the trial judge's decision-upholding the split of the contract into two severable slices-has a Solomonic quality at first glance. But what gets lost is public faith in the procurement process; and let's not forget the $7 million. Wester , 138 So. at 724 ("[L]aws of this kind requiring contracts to be let to the lowest bidder are based upon public economy, are of great importance to the taxpayers, and ought not to be frittered away by exceptions.").

      Prior to 2012, the automated tolling technologies utilized throughout the United States employed readers to communicate with vehicle transponders or "tags" to identify the vehicle's tag number through radio frequency identification protocols ("RFID"). But the system lacked uniformity. Some of the more common protocols are known in the industry by their acronyms TDN, SeGo, and 6C. For example, Florida's RFID protocol was SeGo. SeGo, however, could not read a transponder in a vehicle from Georgia, which was calibrated to be read by Georgia's 6C RFID protocol. As a consequence, Florida could not collect a toll from a Georgia vehicle, and millions of dollars in revenue from Georgia drivers were being lost each year.
      In 2012, Congress addressed the disparity in state tolling systems by enacting "MAP-21"-the acronym for "Moving Ahead in the 21st Century."See Pub. L. No. 112-141, § 1521 [23 USCA § 129 Note (b) ]. This federal law required a national, interoperable toll system by July 2016.

      The trial court declined Kapsch's invitation to address the issue of whether FDOT's agreement with Neology was a "prudent and wise expenditure of taxpayer's money." It correctly concluded that it was not for the court to decide whether FDOT's agreement "was a good or bad deal." Instead, it properly parsed the various arguments and distilled the issues to the single, relevant legal inquiry: Whether the license agreement "is one for commodities or services as contemplated by section 287.057, [Florida Statutes ]." It concluded, "it is not," and we agree.


text:
    AZALEA TRACE, INC., Appellant, v. Nora MATOS and Arnold Eskin, Appellees.
    No. 1D17-753
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Patrick Dervishi of the Shir Law Group, P.A., Boca Raton, for Appellant.
    Samuel W. Bearman of the Law Office of Samuel W. Bearman, L.C., Pensacola, for Appellees.
   Per Curiam.

Toward the end of her life, Pearl Eskin moved into Azalea Trace, a nursing home. She signed a residency contract, which required her to pay a substantial entrance fee. The agreement provided that if she died within a certain timeframe, Azalea Trace would refund a portion of the entrance fee. Mrs. Eskin later signed an "Assignment of Reimbursement of Entrance Fee," through which she assigned her refund rights to her children, appellees Nora Matos and Arnold Eskin. After Mrs. Eskin's death triggered the refund obligation, Azalea Trace gave the children only a partial refund, asserting that it could offset certain amounts. The home said it provided discounted services to Mrs. Eskin before she died and that it could recoup the discounts from the refund. The children sued, seeking a full refund and alleging that the residency contract did not permit the offsets. The children prevailed at summary judgment, Azalea Trace appealed, and we affirmed (albeit without opinion), see Azalea Trace, Inc. v. Matos , 178 So.3d 397 (Fla. 1st DCA 2015) (unpublished table decision).

The case now comes to us again, the main issue this time being whether the children are entitled to prevailing-party attorney's fees for the victory already won. The trial court held that they were, and it awarded the children approximately $27,000 for trial-court attorney's fees, approximately $13,500 for appellate attorney's fees, and approximately $18,300 in expert costs. We conclude it was error to award fees other than the appellate attorney's fees and expert costs, so we reverse in part.

I.

Florida generally follows the American Rule, under which each side pays its own attorney's fees. Johnson v. Omega Ins. Co. , 200 So.3d 1207, 1214 (Fla. 2016). Courts can order losing parties to pay victors' fees, though, if there is a contractual or statutory basis for doing so. Id. at 1214-15. Below, the children asserted two statutory bases to justify a fee award. First, they sought fees under section 768.79, Florida Statutes (2013), Florida's offer-of-judgment statute. But Azalea Trace argued that the children's offer-of-judgment was invalid, and the children ultimately disclaimed reliance on that statute. Cf. TGI Friday's, Inc. v. Dvorak , 663 So.2d 606, 612 (Fla. 1995) (holding that under section 768.79, a trial court can deny an award of attorney's fees if the qualifying offer was not made in good faith). This left the children (and now leaves us) with just one asserted basis for fees: section 57.105(7), Florida Statutes, which is the focus of this appeal.

Under section 57.105(7), when a contract provides prevailing-party fees for one party, the court may allow prevailing-party fees for the opposing party, even if the contract does not explicitly provide for them. In other words, the statute serves "to statutorily transform a unilateral attorney's fees contract provision into a reciprocal provision." Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald , 215 So.3d 116, 119 (Fla. 3d DCA 2017) ; accord Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC , 197 So.3d 1112, 1115 (Fla. 3d DCA 2016) ("[N]otwithstanding that the contractual fee provision is one-sided, entitling only one of the contract's parties to prevailing party fees, by operation of law section 57.105(7) bestows on the other party to the contract the same entitlement to prevailing party fees.").

The trial court awarded fees under this provision, concluding that the assignment document included a prevailing-party fee provision that would have allowed Azalea Trace to recover fees from the children had it prevailed. Thus, the trial court reasoned, section 57.105(7) made that provision reciprocal and allowed the children to recover fees from Azalea Trace. On appeal, Azalea Trace argues that it cannot be liable under section 57.105(7) because it was not a "party" to the assignment. We review this issue de novo . See BOLD MLP, LLC v. Smith , 201 So.3d 1261, 1261 (Fla. 1st DCA 2016).

II.

We first consider the children's argument that-right or wrong-the fee issue was already decided in the earlier appeal. Under the law-of-the-case doctrine, issues of law actually decided on appeal govern the rest of the proceedings, including subsequent appeals. Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 105 (Fla. 2001). So if we decided in the earlier appeal that the assignment and section 57.105(7) authorized a fee award, we would stick to that now, absent some showing of manifest injustice, see id. at 106 (noting manifest-injustice exception).

Our unpublished order granting fees in the earlier appeal explained that the children moved for appellate attorney's fees "pursuant to either section 768.79 [the offer-of-judgment statute] or section 57.105(7)." (emphasis added). The order then said, without elaboration, that "Appellees' motion is granted." For whatever reason, we did not specify the basis on which we granted appellate attorney's fees. As a result, there is no way for us now to conclude that this order actually decided the issue now before us-whether section 57.105(7) authorized an award. Our order might have turned on section 57.105(7), but it might have turned on the offer-of-judgment statute, a statute no longer at issue. To the extent the lower court awarded fees based on our earlier, unchallenged order, that award can stand. But to the extent the lower court awarded fees for work in the trial court, law of the case will not help us, and we must decide the issue independently.

III.

Florida law is clear that no person can claim fees under section 57.105(7) unless that person is a "party" to the contract that includes the fee provision. See Nationstar Mortg. LLC v. Glass , 219 So.3d 896, 898 (Fla. 4th DCA 2017) ("The plain language of section 57.105(7) has two requirements. First, the party must have prevailed. Second, the party had to be a party to the contract containing the fee provision."); Fla. Cmty. Bank, N.A. , 197 So.3d at 1115 ("As section 57.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision."); see also Bank of New York Mellon Tr. Co., N.A. , 215 So.3d at 119 ("Because section 57.105(7) shifts the responsibility for attorney's fees, it is in derogation of common law and must be strictly construed."). Because we agree with Azalea Trace that it was not a party to the assignment, we reverse the fee award.

The assignment document itself opens by saying it "is made" by Mrs. Eskin and the children. It recited that Mrs. Eskin "desire[d]" that any reimbursement of her entrance fee "be assigned to and become the property of the" children. It also made clear that the assignment would not modify or otherwise affect the underlying resident agreement: "The Resident/Assignor [Mrs. Eskin] and the Assignee [the children] further acknowledge and agree that this assignment is intended to be a separate agreement between the Resident/Assignor and the Assignee , and it is not intended to be, nor is it an amendment to the Residency Contract." (emphasis added). Then, on the signature page-and under the line "the parties hereunto subscribe their names"-Mrs. Eskin and the children signed.

To be sure, the assignment accounted for Azalea Trace's involvement. The assignment had the parties "acknowledge that such assignment is subject to approval of Azalea Trace, Inc., in its sole discretion," and it included a line (not on the parties' signature page) where Azalea Trace's executive director "approve[d] the forgoing assignment." The assignment even reflected the parties' agreement to provide certain benefits to Azalea Trace, most notably the fee provision at the heart of this appeal: Mrs. Eskin and the children "agree[d] to indemnify and hold Azalea Trace, Inc. harmless from any claims which may be brought and any costs or expenses, including reasonable attorneys' fees, which may be incurred by Azalea Trace, Inc. as a result of or otherwise in connection with the assignment." But the parties' intent to benefit a third party does not make the beneficiary a party to the contract. See Mendez v. Hampton Court Nursing Ctr., LLC , 203 So.3d 146, 149 (Fla. 2016).

Because Azalea Trace was not a party to the assignment, it cannot be held accountable for attorney's fees under section 57.105(7), and we reverse the trial court's award of $27,072 in trial attorney's fees. However, we reject Azalea Trace's arguments that the court committed reversible error in calculating and awarding appellate attorney's fees and expert costs, and we therefore affirm those portions of the order.

AFFIRMED in part; REVERSED in part.

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    Randolph CAMPBELL, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2560
    District Court of Appeal of Florida, First District.
    June 4, 2018 Rehearing Denied August 3, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Following a three day jury trial in August 2011, Appellant was found to be a sexually violent predator and civilly committed under the Jimmy Ryce Act, sections 394.910 - 394.932, Florida Statutes. The Act requires annual reviews for continued commitment. § 394.918, Fla. Stat. Here, Appellant challenges the trial court's order of May 17, 2017, following his most recent review, which found that his "mental condition has not changed" and that "despite his treatment advances [he] remains likely to commit an act of sexual violence if not confined for long term control, care and treatment."

Appellant contends that the State offered insufficient evidence that commitment was serving its purpose of providing mental health treatment. Appellant's argument that the State is required to prove the value of treatment in the recidivism equation under section 394.918(4) is contrary to the holding in Westerheide v. State , 831 So.2d 93, 101-102 (Fla. 2002), where the Florida Supreme Court held:

Even assuming that no viable treatment is available for sexually violent predators, the Constitution does not prevent the State "from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." [ Kansas v. ] Hendricks, 521 U.S. [346] at 366, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). "To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions." Id. The Legislature has determined that these individuals pose a risk to society because there is a high likelihood that they will engage in repeat acts of predatory sexual violence. See § 394.910, Fla. Stat. (2001). "[I]ncapacitation may be a legitimate end of the civil law" and does not necessarily lead to the conclusion that the Ryce Act is punitive. Hendricks, 521 U.S. at 365-66, 117 S.Ct. 2072. Thus, we find no merit to this argument.
AFFIRMED .

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.