author: ORFINGER, J.

text:
    Les KROL, Appellant, v. FCA US, LLC and Gibson Auto Sales, Inc. d/b/a Gibson Truck World, Appellees.
    Case No. 5D18-2149
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Jeremy Kespohl and Angela Thomas, of Morgan & Morgan, P.A., Jacksonville, for Appellant.
    Robert E. Sickles and Yesica S. Liposky, of Nelson Mullins Broad and Cassel, Tampa, for Appellee, Gibson Auto Sales, Inc. d/b/a Gibson Truck World.
    No Appearance for other Appellee.
   ORFINGER, J.

Les Krol appeals an order compelling arbitration of the written warranty claims that he brought against Gibson Auto Sales, Inc. ("Gibson Auto") under the Magnuson-Moss Warranty Act ("MMWA"). Because we conclude that the MMWA does not prohibit binding arbitration of written warranty claims and the arbitration agreement here does not violate Federal Trade Commission ("FTC") disclosure rules, we affirm the order compelling arbitration.

BACKGROUND

This case arises from Mr. Krol's purchase of a used truck from Gibson Auto. As part of the sale, the parties executed an installment sales contract and a separate retail purchase order that included a binding arbitration agreement for any dispute related to the truck's purchase. Gibson Auto also extended an express written warranty on the truck.

A few months after purchasing the truck, Mr. Krol sued Gibson Auto under the MMWA, asserting several causes of action related to alleged defects in the truck that Gibson Auto was unable to remedy. In response, Gibson Auto moved to stay the proceedings and to compel arbitration in accordance with the parties' agreement. Mr. Krol opposed the motion, asserting the same arguments he makes in this appeal. Following a hearing, the trial court entered an order granting Gibson's motion to stay and compelling arbitration.

ANALYSIS

We review a trial court's ruling on a motion to compel arbitration de novo. Tropical Ford, Inc. v. Major, 882 So. 2d 476, 478 (Fla. 5th DCA 2004). When deciding whether to compel arbitration according to an agreement, a trial court must consider: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Mr. Krol's appeal centers on the second factor. He argues that no arbitrable issue existed here because MMWA claims are exempt from binding arbitration. Alternatively, he posits that the arbitration agreement is unenforceable because it violates the FTC's disclosure rules since the arbitration clause does not appear in a single document with the other warranty terms.

I. The Arbitrability of MMWA claims.

The United States Supreme Court has not addressed whether MMWA claims are arbitrable, and state and lower federal courts are divided on the issue. However, both federal circuit courts to consider the issue have concluded that the MMWA does not prohibit binding arbitration of written warranty claims. Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1272 (11th Cir. 2002) (holding that MMWA permits enforcement of binding arbitration agreements related to written warranties); Walton v. Rose Mobile Homes LLC, 298 F.3d 470, 479 (5th Cir. 2002) (holding that "MMWA does not preclude binding arbitration of claims pursuant to a valid binding arbitration agreement, which the courts must enforce pursuant to the [Federal Arbitration Act]"). After considering the MMWA and its legislative history, the federal policy favoring binding arbitration, and the persuasive federal circuit court opinions, we conclude that the MMWA permits pre-dispute binding arbitration of written warranty claims.

A. MMWA.

Because product warranties often left consumers with "little understanding of the frequently complex legal implications of warranties on consumer products," 40 Fed. Reg. 60168 (Dec. 31, 1975) (quoting S. Rep. No. 93-151 (1973)), Congress enacted the MMWA "[t]o provide minimum disclosure standards for written consumer product warranties; to define minimum federal content standards for such warranties; to amend the federal trade commission act in order to improve its consumer protection activities; and for other purposes." Magnuson-Moss Warranty-Federal Trade Comm'n Improvement Act, Pub. L. No. 93-637, § 356, 88 Stat. 2183 (1975). The MMWA requires warrantors to "fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty." 15 U.S.C. § 2302(a) (2012). It also creates a private right of action for those consumers who have been "damaged by the failure of a ... warrantor ... to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract." Id. § 2310(d)(1). An aggrieved consumer has the option to sue for damages and equitable relief in either state courts or federal district courts. Id. If the consumer prevails, he or she is entitled to attorney's fees and costs. Id. § 2310(d)(2).

Along with a private right of action, the MMWA encourages warrantors to settle consumer claims "fairly and expeditiously" through informal dispute settlement procedures. Id. § 2310(a). While the term "informal dispute settlement procedures" is not defined in the MMWA, Congress authorized the FTC to establish minimum requirements for any such procedures that are incorporated into the terms of a written warranty. Id. § 2310(a)(2). If a warrantor establishes an informal dispute settlement procedure, it may include within the written warranty "a requirement that the consumer resort to such procedure before pursuing any legal remedy." Id. § 2310(a)(3)(C). The FTC has broadly interpreted the term "informal dispute settlement procedures" to include both binding and nonbinding arbitration, 16 C.F.R. § 700.8 (2015), and has adopted a regulation stating that informal dispute settlement procedures under the MMWA cannot be legally binding. 16 C.F.R. § 703.5(j) (2015).

B. Federal Policy.

Federal policy favors arbitration. In 1925, Congress enacted the Federal Arbitration Act ("FAA") "to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). To this end, the FAA provides that

[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (2012).

The FAA establishes a "liberal federal policy favoring arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The Supreme Court has interpreted this policy as establishing a strong presumption favoring the enforcement of binding arbitration agreements so that any doubts over whether an issue is arbitrable should be resolved in favor of arbitration.

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). This presumption applies equally to statutory claims. Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). Courts will enforce binding arbitration of statutory claims, unless Congress has expressed a clear intention to preclude arbitration. Gilmer, 500 U.S. at 26, 111 S.Ct. 1647. The party challenging arbitration bears the heavy burden of proving such congressional intent. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

C. The McMahon Test.

To determine whether Congress has intended to prohibit binding arbitration of a statutory claim, we apply the Supreme Court's McMahon test, which requires us to consider three factors to determine Congress's intent: "(1) the text of the statute; (2) its legislative history; and (3) whether 'an inherent conflict between arbitration and the underlying purposes [of the statute]' exists." Davis, 305 F.3d at 1273 (quoting McMahon, 482 U.S. at 226, 107 S.Ct. 2332 ). To date, "[i]n every statutory right case that the Supreme Court has considered, it has upheld binding arbitration if the statute creating the right did not explicitly preclude arbitration." Id.

Turning to the first McMahon factor, the text of MMWA does not expressly preclude or even mention "binding arbitration." Despite a lack of an express reference, Mr. Krol argues that Congress expressed its intention to prohibit binding arbitration in two ways. One, it created a right to commence a civil action for written warranty claims. Two, when Congress enacted the MMWA, arbitration-both binding and non-binding-was widely considered an "informal" procedure. Hence, he posits that it was likely that Congress would have considered binding arbitration an informal dispute settlement procedure that would serve as a prerequisite to litigation that would be regulated by the FTC.

Both of these arguments fail. First, the provision of a private right of action alone does not establish Congressional intent to prohibit binding arbitration. Davis, 305 F.3d at 1274 (citing Gilmer, 500 U.S. at 29, 111 S.Ct. 1647 (rejecting argument that binding arbitration is improper "because it deprives claimants of the judicial forum provided for by the ADEA")). Second, binding arbitration is not comparable to the informal dispute settlement procedures described in the MMWA because it is not a prerequisite to litigation-it is a substitute for litigation. Walton, 298 F.3d at 475 ; see Mitsubishi, 473 U.S. at 628, 105 S.Ct. 3346 ("By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.").

The second McMahon factor requires us to examine the MMWA's legislative history. Like the text, the legislative history does not suggest that binding arbitration is prohibited. Indeed, it implies the opposite. For instance, the Senate declared in its Conference Report that litigants may look to the courts and arbiters alike "to resolve 'actions' and to be the 'ultimate' means of resolving an MMWA claim." Jones v. Gen. Motors Corp., 640 F. Supp. 2d 1124, 1137 (D. Ariz. 2009) (citing S. Rep. No. 93-1408 (1974), as reprinted in 1974 U.S.C.C.A.N. 7755). The Senate Conference Report further explains 15 U.S.C. § 2304(a)(4) -the section of the MMWA that gives the FTC the ability to define what constitutes "a reasonable number of attempts" a warrantor must make to remedy a product defect before a refund or replacement must be provided-by stating that "if the [FTC] does not determine by rule what constitutes a reasonable number of attempts in a given situation, then the parties or, ultimately , a third party (arbiter or judge) would decide." Id. (quoting S. Rep. No. 93-1408, as reprinted in 1974 U.S.C.C.A.N. at 7757) (emphases added). This explanation of 15 U.S.C. § 2304, which, among other things, authorizes the FTC to establish minimum standards regarding the duration of a warranty, consequential damage provisions, and conditions imposed by the warrantor, demonstrates that binding arbitration is permitted to resolve MMWA disputes. In fact, the same Conference Report recognizes that when there is no FTC rule regulating the reasonableness of a warrantor's duty, "the consumer could challenge the reasonableness of such requirement by bringing an action for breach of warranty and arguing that the warrantor had breached his full warranty obligation. The burden would then be upon the warrantor to establish before an arbiter or in a court that the requirement ... was reasonable ...." Id. at 1138 (quoting S. Rep. No. 93-1408, as reprinted in 1974 U.S.C.C.A.N. at 7757). Thus, the legislative history suggests that Congress considered binding arbitration a reasonable alternative to civil litigation for resolving MMWA claims. At least, it does not suggest that binding arbitration is prohibited.

The third McMahon factor requires us to consider whether there is an underlying conflict between binding arbitration and the purposes of the MMWA. Mr. Krol argues that such a conflict exists, suggesting that binding arbitration of written warranty claims would undermine Congress's goals of protecting consumers and correcting the inequality in bargaining power between warrantors and consumers.

Neither of these goals overrides the strong federal policy favoring arbitration. To the first goal, the Supreme Court has repeatedly enforced binding arbitration of statutory claims where the purpose of the statute was consumer protection. See Davis, 305 F.3d at 1276 (collecting cases). Nothing suggests that consumers are less able to vindicate their MMWA claims through arbitration than through civil litigation. To the second goal, unequal bargaining power alone will not preclude binding arbitration when Congress has not expressed clear intent to do so. See id. at 1277 (citing Gilmer, 500 U.S. at 33, 111 S.Ct. 1647 (stating that "[m]ere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context")). Nothing here suggests that the inequality of bargaining power between consumers and warrantors is more substantial than in other instances when the Supreme Court has allowed binding arbitration.

D. The Chevron Test.

Notwithstanding the results of our McMahon analysis, Mr. Krol contends that since Congress gave the FTC rulemaking authority to enforce the MMWA, we must defer to its regulations prohibiting binding arbitration of MMWA written warranty claims. See 16 C.F.R. §§ 700.8, 703.5(j) (2015). Because Congress has given the FTC rulemaking authority regarding portions of the MMWA, we apply the two-prong test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to determine whether we must defer to the FTC's interpretive regulations.

Chevron informs us to defer to the FTC's interpretive regulations prohibiting binding arbitration only if: (1) Congress has not directly spoken to the specific issue; and (2) the FTC's interpretation "is based on a permissible construction of the statute." 467 U.S. at 843, 104 S.Ct. 2778. Because the MMWA does not speak to binding arbitration, we must only consider the test's second prong.

State and federal courts are again divided over whether the FTC's reading of the MMWA is permissible. The only federal circuit court to consider the reasonableness of the FTC's interpretation has found it unreasonable. See Davis, 305 F.3d at 1279. For several reasons, we agree with Davis that the FTC's interpretation that the MMWA precludes binding arbitration is unreasonable.

First, for the FTC to have authority to regulate binding arbitration, we would have to accept the notion that Congress considered binding arbitration an informal dispute settlement mechanism. We do not. As our discussion of the McMahon test demonstrates, Congress appears to have understood binding arbitration to be a substitute for a judicial forum, not an informal dispute settlement mechanism.

Second, the FTC's prohibition of arbitration relies in part on the idea that by providing a judicial forum, Congress intended to preclude binding arbitration. The Supreme Court has been unwavering on this point-a statute's provision of a judicial forum does not show Congressional intent to prohibit arbitration. Thus, we too reject this notion.

Third, the FTC's ultimate rationale for prohibiting binding arbitration is rooted in the belief that an arbitral forum does not ensure consumer protection. For more than half a century, the Supreme Court has not viewed arbitration as harmful to consumers, but instead as a proceeding that is adequate to protect consumers. See Davis, 305 F.3d at 1279 (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 280, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (noting that "arbitration's advantages often would seem helpful to individuals, say, complaining about a product, who need a less expensive alternative to litigation")). The Supreme Court has refused to defer to interpretive regulations prohibiting arbitration that have depended on the Court's formerly held view disfavoring arbitration. See, e.g., McMahon, 482 U.S. at 232-34, 107 S.Ct. 2332 (rejecting SEC's interpretation of Securities Exchange Act of 1934 that binding arbitration agreements were prohibited). Given the Supreme Court's current view on arbitration, the FTC's continued hostility towards arbitration is unwarranted.

In sum, given the limited scope of the FTC's authority to regulate only non-binding, pre-dispute settlement procedures and the federal policy favoring arbitration enforcement, we conclude the FTC's prohibition of arbitration is based on an impermissible construction of the statute. As a result, we need not defer to the FTC's interpretive regulations, and instead, hold that MMWA claims can be subject to binding arbitration.

II. The FTC's Single Document Rule.

Mr. Krol also contends that the arbitration agreement here is unenforceable because it was in the retail purchase order and not in a single document along with the other warranty terms.

The MMWA requires that warrantors, providing a written warranty to a consumer, must "fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty." 15 U.S.C. § 2302(a) (2012). Congress delegated authority to the FTC to establish the items warrantors must disclose. In response, the FTC requires a warrantor to disclose nine material facts related to the warranty, one of which requires disclosure in the warranty of "[i]nformation respecting the availability of any informal dispute settlement mechanism elected by the warrantor in compliance with part 703 of this subchapter." 16 C.F.R. § 701.3(a)(6) (2015). The FTC has also established what has been called the single document rule, which requires warrantors to "clearly and conspicuously disclose [all warranty terms] in a single document in simple and readily understood language." Id. § 701.3(a). The purpose of the single document rule is to avoid consumer confusion.

In arguing that the single document rule required Gibson Auto to disclose the binding arbitration clause in the same document with the other warranty terms, Mr. Krol relies on Cunningham v. Fleetwood Homes of Georgia, 253 F.3d 611, 624 (11th Cir. 2001). In that case, a mobile-home manufacturer, as a third-party beneficiary of a stand-alone arbitration agreement, moved to compel arbitration of a consumer's warranty claims against the warrantor under the MMWA. 253 F.3d at 613. The Eleventh Circuit affirmed the trial court's order denying the manufacturer's motion, concluding that the stand-alone arbitration agreement violated the FTC's single document rule. In reaching this conclusion, the court emphasized that the MMWA and applicable FTC rules obligate warrantors to "clearly and conspicuously disclose [warranty terms] in a single document in simple and readily understood language." Id. at 620 (quoting 16 C.F.R. § 701.3(a) ). One such term obligates a warrantor to disclose "[i]information respecting the availability of any informal dispute settlement mechanism." Id. at 621. Interpreting the "informal dispute settlement mechanism" to include binding arbitration, the court found that the failure to include the binding arbitration agreement in the warranty document violated the FTC's disclosure requirements. Id. at 620.

The Third District Court of Appeal has adopted Cunningham's application of the single document rule. See Larrain v. Bengal Motor Co. Ltd., 976 So. 2d 12, 14 (Fla. 3d DCA 2008) (determining, based on Cunningham, that "clear language of the MMWA expresses Congress' intent that any arbitration agreement must be disclosed within the written warranty and not as a stand-alone document," and thereafter, holding that single subject rule governs disclosure of binding arbitration agreements) (emphasis added). However, we decline to do so.

Since Cunningham, state and federal district courts have divided over whether to apply the single document rule to binding arbitration agreements. Compare Jones, 640 F. Supp. 2d at 1143, Patriot Mfg., Inc. v. Dixon, 399 F. Supp. 2d 1298, 1304-09 (S.D. Ala. 2005), and Patriot Mfg., Inc. v. Jackson, 929 So. 2d 997, 1005-07 (Ala. 2005) (all holding single document rule does not require arbitration agreement be included in written warranty), with Porter v. Chrysler Grp. LLC, No. 6:13-CV-555-ORL-37, 2013 WL 6768218, at *1 (M.D. Fla. Dec. 19, 2013), TGB Marine, LLC v. Midnight Exp. Power Boats, Inc., No. 08-60940-CIV, 2008 WL 3889578 (S.D. Fla. 2008), Harnden v. Ford Motor Co., 408 F. Supp. 2d 300, 307 (E.D. Mich. 2004), and Larrain, 976 So. 2d at 14 (all holding single document rule requires arbitration agreement to be included in written warranty).

The courts that have refused to follow Cunningham have done so by reasoning that its application of the single document rule rests on an incorrect understanding that the terms "binding arbitration" and "informal dispute settlement procedures" are interchangeable. See, e.g., Jones, 640 F. Supp. 2d at 1143 ; Dixon, 399 F. Supp. 2d at 1304-09 ; Jackson, 929 So. 2d at 1005-07. Instead, these courts conclude that the Eleventh Circuit subsequently reversed positions in Davis, making clear that binding arbitration is not an informal dispute settlement procedure or a prerequisite to litigation, a notion that also aligns with the Supreme Court's view of binding arbitration. See Mitsubishi, 473 U.S. at 628, 105 S.Ct. 3346.

In Dixon, the District Court for the Southern District of Alabama best explained Davis's effect on both Cunningham's holding and on the single document rule, writing:

In the wake of Cunningham and Davis, then, what is the present status of the MMWA's disclosure requirements? Clearly, the single document rule remains alive and well. But the statutory and regulatory scheme does not require that all information having any bearing on the warranty must be disclosed within the warranty. To the contrary, the MMWA-and more precisely § 2302(a) -plainly provides that a warrantor's required disclosures under the single document rule are limited to those specifically enumerated in the FTC regulations. Those regulations do not identify arbitration agreements as items that must be disclosed, but they do mandate disclosure of "informal dispute settlement mechanisms." The Davis case, which is binding precedent to this Court, decided that arbitration agreements are not "informal dispute settlement mechanisms" in the context of the MMWA.
Under this synopsis of the law, then, it is plain that, while the single document rule enjoys continued vitality, arbitration agreements lie beyond the scope of the disclosures required pursuant to that rule.

399 F. Supp. 2d at 1303-04.

This reasoning is persuasive. Cunningham's application of the single document rule rests solely on the notion that binding arbitration is an informal dispute settlement procedure. If we accept this premise, we would need to then defer to the FTC's regulations prohibiting binding arbitration because as an informal dispute settlement mechanism, binding arbitration would then be subject to the FTC's rulemaking authority. This is a view that we do not accept.

The FTC's disclosure regulations do not explicitly mention binding arbitration. By enforcing an arbitration disclosure requirement that is not expressly included in the FTC's regulations, this Court would "encroach on the [MMWA's] statutory and regulatory framework by unilaterally constructing a judicial rule that neither Congress nor the FTC has seen fit to create." Dixon, 399 F. Supp. 2d at 1309. The MMWA "requires disclosure in the warranty itself only 'to the extent required by the rules of the [FTC],' and the FTC has seen fit to require disclosure of required resort to an informal dispute-settlement mechanism, not the completely separate process of binding arbitration." Jackson, 929 So. 2d at 1006. For these reasons, we hold that the FTC's single-document rule does not apply to binding arbitration agreements. We disagree with the Third District Court's opinion in Larrain and certify conflict.

AFFIRMED; CONFLICT CERTIFIED.

EVANDER, C.J. and SASSO, J., concur.

      15 U.S.C. §§ 2301 -12 (2012).

      The arbitration clause in the retail buyer order states in full:
      Dealer and customer agree that any controversy, claim, suit, demand, counterclaim, cross claim, or third-party complaint, arising out of, or relating to this Order or the parties' relationship (whether statutory or otherwise), including, but not limited to any matter that may have induced the Customer to enter into any relationship with Dealer and any disputes regarding the validity or enforceability of this clause (collectively referred to as "Claim"), shall be submitted to final and binding arbitration .... The arbitration shall be final and binding on all parties.

      Compare, e.g., Jones v. Gen. Motors Corp., 640 F. Supp. 2d 1124, 1143 (D. Ariz. 2009), S. Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala. 2000), Borowiec v. Gateway 2000, 209 Ill.2d 376, 283 Ill.Dec. 669, 808 N.E.2d 957, 970 (2004), Abela v. Gen. Motors Corp., 469 Mich. 603, 677 N.W.2d 325, 327 (2004), and In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 492 (Tex. 2001) (all holding MMWA claims are subject to binding arbitration), with Higgs v. Warranty Grp., No. C2-02-1092, 2007 WL 2034376, at *8 (S.D. Ohio July 11, 2007), Rickard v. Teynor's Homes, Inc., 279 F. Supp. 2d 910, 921 (N.D. Ohio 2003), Browne v. Kline Tysons Imps., Inc., 190 F. Supp. 2d 827, 831-33 (E.D. Va. 2002), Pitchford v. Oakwood Mobile Homes, Inc., 124 F. Supp. 2d 958, 962-65 (W.D. Va. 2000), and Koons Ford of Balt., Inc. v. Lobach, 398 Md. 38, 919 A.2d 722, 737 (2007) (all holding MMWA claims are exempt from binding arbitration).

      In Kolev v. Euromotors West/The Auto Gallery, 658 F.3d 1024 (9th Cir. 2011), the Ninth Circuit held that the MMWA prohibited pre-dispute binding arbitration on written warranty claims. But that opinion has since been withdrawn. See Kolev v. Euromotors W./The Auto Gallery, 676 F.3d 867 (9th Cir. 2012) ("The Opinion filed September 20, 2011, and appearing at 658 F.3d 1024 (9th Cir. 2011), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.") (citations omitted).

      In Florida, only the Second District Court of Appeal has commented on the arbitrability of MMWA claims. See Stacy David, Inc. v. Consuegra, 845 So. 2d 303 (Fla. 2d DCA 2003). In Consuegra, the Second District, though not specifically asked to decide whether MMWA claims are arbitrable, briefly addressed the issue when considering the validity of an arbitration agreement. Citing Davis, it found that "the Eleventh Circuit has required arbitration of claims under the Magnuson-Moss Act." Consuegra, 845 So. 2d at 306. Based on Davis, the court concluded that "no count of the [consumer's] complaint appears to fall outside the arbitration agreement." Id. at 306-07. The Second District then reversed the trial court's order and compelled arbitration of the buyer's MMWA claims. Id. at 306.

      The Supreme Court has upheld binding arbitration agreements related to claims arising under the following federal statutes: Securities Act of 1933, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484-86, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), overruling Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) ; Age Discrimination in Employment Act ("ADEA"), Gilmer, 500 U.S. at 35, 111 S.Ct. 1647 ; Sherman Act, Mitsubishi, 473 U.S. at 628, 105 S.Ct. 3346 ; Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organization Act ("RICO"), McMahon, 482 U.S. 220, 107 S.Ct. 2332 ; Truth in Lending Act, Green Tree Financial Corp.-Alabama, 531 U.S. at 88-92, 121 S.Ct. 513 ; RICO, PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003) ; Credit Repair Organizations Act, CompuCredit Corp. v. Greenwood, 565 U.S. 95, 132 S.Ct. 665, 181 L.Ed.2d 586 (2012) ; and the Fair Labor Standards Act, Epic Systems v. Lewis, --- U.S. ----, 138 S. Ct. 1612, 200 L.Ed.2d 889 (2018).

      In Walton, the Fifth Circuit avoided Chevron's second prong by concluding that Congress spoke to binding arbitration when it expressed in the FAA a clear intention to favor enforcement of binding arbitration agreements. 298 F.3d at 475. We disagree and join the majority of courts who have concluded that Congress has not spoken directly to the permissibility of binding arbitration under the MMWA. See, e.g., Davis, 305 F.3d at 1278 ; Jones, 640 F. Supp. 2d at 1139 ; Higgs, No. C2-02-1092, 2007 WL 2034376, at *8 ; Lobach, 919 A.2d at 737.

      Under Florida law, when, as here, parties to a contract execute two or more documents at or near the same time and concern the same transaction or subject matter, the documents are generally construed together as a single contract. E.g., Mnemonics, Inc. v. Max Davis Assocs., 808 So. 2d 1278, 1280 (Fla. 5th DCA 2002) ; see Wilson v. Terwillinger, 140 So. 3d 1122, 1124 (Fla. 5th DCA 2014) (reiterating "contemporaneous instrument rule" and that origins "are of rather ancient vintage" and has been consistently applied since inception).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy J. MANKO, Appellant, v. Laurie A. MANKO, Appellee.
    Case No. 5D18-1445
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019 Rehearing Denied June 19, 2019
    Howard P. Newman, North Palm Beach, for Appellant.
    Andrew T. Windle, of The Windle Family Law Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellant, Timothy J. Manko, appeals an amended final judgment of dissolution of marriage that awarded Appellee, Laurie A. Manko, alimony and ordered Appellant to obtain life insurance naming Appellee as the beneficiary to protect the alimony award pursuant to section 61.08(3), Florida Statutes (2018). Appellant argues, inter alia , that the trial court erred in denying his Florida Rule of Civil Procedure 1.530(a) motion to reopen the evidence as to the life insurance issue. We agree and reverse on that ground.

After entry of the final judgment, Appellant moved for rehearing pursuant to rule 1.530, arguing inter alia , that he attempted to obtain life insurance after rendition of the final judgment and only then discovered that he could not get approved due to a medical condition. He supported the motion with an affidavit and documentation of denials from three life insurance companies. Given this alleged newly discovered evidence, Appellant requested a retrial on the life insurance provision in the final judgment.

The trial court denied Appellant's motion on this ground without considering Appellant's proffered evidence. We conclude that this was error.

" Florida Rule of Civil Procedure 1.530(a) enables a trial court to evaluate matters that it did not consider prior to judgment, and to correct any error if the trial court becomes convinced that it has erred." Byrne v. Byrne , 128 So. 3d 2, 7 (Fla. 3d DCA 2012) (citation omitted). "Generally, to reopen a case, a party must establish two evidentiary predicates." Gulf Eagle, LLC v. Park E. Dev., Ltd. , 196 So. 3d 476, 479 (Fla. 2d DCA 2016). "The first predicate is that the presentation of evidence will not unfairly prejudice the opposing party and, second, that reopening will serve the best interests of justice." Id. (citations omitted).

On this record, there is no indication that Appellee would suffer any prejudice were the trial court to reopen the evidence on this limited issue. Therefore, given Appellant's allegation that he discovered it was impossible for him to obtain life insurance after rendition of the final judgment, we conclude that the trial court abused its discretion when it denied Appellant's motion to reopen the evidence. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

EISNAUGLE, GROSSHANS and SASSO, JJ., concur.

      The trial court granted rehearing on another ground and subsequently rendered an amended final judgment.


text:
    Nickki Pierre CHARLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-392
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Nickki Pierre Charles, Clermont, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Nickki Pierre Charles challenges the order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We remand on grounds five and ten because the postconviction court failed to address those grounds. We affirm in all other respects.

Florida Rule of Criminal Procedure 3.850(f)(8)(A) provides that the postconviction court must "make findings of fact and conclusions of law" with respect to the issues raised in the postconviction motion and addressed at an evidentiary hearing. If the court does not address each ground raised in the postconviction motion, the court's ruling on the unaddressed ground must be reversed and remanded for the court to enter the required findings. Dillbeck v. State , 882 So. 2d 969, 971-72 (Fla. 2004) ; see also Hauter v. State , 206 So. 3d 839, 841 (Fla. 5th DCA 2016) (reversing in part order denying rule 3.850 motion and remanding for court to address claim of ineffective assistance of counsel based on cumulative error where claim, though raised in motion, was not addressed in order).

Here, the postconviction court generally denied all grounds in its final order "for the reasons announced by the Court on the record in detail at the conclusion of the Rule 3.850 evidentiary hearing." However, a review of the record reveals that the court did not address grounds five or ten either orally or in writing. We recognize that claims of cumulative error, as alleged in ground ten, are appropriately denied when every other ground for relief is rejected, but nevertheless the ground must be addressed. Thus, on remand, the court shall enter an order making findings of fact and conclusions of law as to grounds five and ten.

AFFIRMED in part, REVERSED in part, and REMANDED.

COHEN, LAMBERT, and SASSO, JJ., concur.


text:
    Marvin LANCASTER, Petitioner, v. State of Florida, DEPARTMENT OF CORRECTIONS and Florida Commission on Offender Review, Respondents.
    Case No. 5D18-2871
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Marvin Lancaster, Bushnell, pro se.
    Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent, Florida Department of Corrections.
    Mark Hiers, Assistant General Counsel, Tallahassee, for Respondent, Florida Commission on Offender Review.
    No Appearance for Respondent, State of Florida.
    ON MOTION FOR REHEARING OR CLARIFICATION
   PER CURIAM.

We grant Marvin Lancaster's motion for rehearing or clarification, withdraw our prior opinion, and substitute the following corrected opinion.

Marvin Lancaster seeks certiorari review of the order summarily denying his petition for writ of habeas corpus. He argues that the circuit court did not apply the correct law. We agree and reverse.

Lancaster was charged and convicted of robbery with a firearm. He was released on parole after serving twenty-three years of his fifty-year sentence. While on parole, Lancaster tested positive for cocaine and THC and was arrested for violating his parole. Lancaster claimed that he was diagnosed with cancer and utilized the drugs to relieve the pain resulting from his chemotherapy treatment. Following a hearing, the examiner recommended reinstating Lancaster's parole; however, the Florida Commission on Offender Review ("FCOR") disagreed and revoked Lancaster's parole.

Several years later, Lancaster filed an emergency petition for writ of habeas corpus in the circuit court seeking an order compelling FCOR to restore the original conditions of his parole. Lancaster alleged that FCOR failed to make statutory findings that his parole violation was willful and substantial. The circuit court summarily denied his petition.

A defendant may seek review of an FCOR order by filing a petition for writ of habeas corpus or a writ of mandamus in the circuit court, depending on the nature of the claim. E.g., Mabrey v. Fla. Parole Comm'n, 858 So. 2d 1176, 1181 (Fla. 2d DCA 2003). On its face, Lancaster's petition properly challenged the revocation of his parole and consequential incarceration. E.g., Martin v. Fla. Parole Comm'n, 951 So. 2d 84, 85 (Fla. 1st DCA 2007). After the circuit court conducts a complete review and denies the habeas petition, a defendant is not entitled to a second plenary appeal but may file a petition for writ of certiorari in the district court of appeal. See Mabrey, 858 So. 2d at 1181. The scope of review is whether the circuit court afforded due process and applied the correct law. Id.

Only a willful violation of a substantial condition of parole will justify revocation, and the examiner must make these factual findings in its revocation order. E.g., Mathis v. Fla. Parole Comm'n, 944 So. 2d 1182, 1183 (Fla. 1st DCA 2006) (granting certiorari and remanding case for a factual determination where the examiner's recommendations failed to find whether the violation was willful). The circuit court cannot conclude that competent, substantial evidence supported the finding of a violation if the record is unclear as to whether the fact finder determined that the defendant's violation was willful. Id.; see also Crosby v. Fla. Parole Comm'n, 949 So. 2d 1181, 1182 (Fla. 1st DCA 2007) (holding that where it was not clear from the examiner's records or the Parole Commission's revocation order whether the defendant's violation was found to be willful, the circuit court could not have reviewed the matter in accordance with the essential requirements of law).

Here, although the examiner found that Lancaster violated the terms of his parole by using illegal drugs, it is not clear from the examiner's findings, the record, or FCOR's revocation order whether the violation was found to be willful and substantial. E.g., Harris v. Fla. Parole Comm'n, 986 So. 2d 632, 632 (Fla. 1st DCA 2008) (granting certiorari where trial court found that the defendant violated the terms of his supervision by testing positive for marijuana and failing to timely report to the parole office as instructed but failed to determine whether the violations were both willful and substantial). Accordingly, reviewing courts have concluded that a circuit court's failure to grant a habeas corpus petition in such a case amounts to failure to apply the correct law. See Johnson v. Fla. Parole Comm'n, 958 So. 2d 1109, 1110 (Fla. 1st DCA 2007).

Here, the circuit court concluded that FCOR's findings were consistent with the examiner's findings, which is true; however, the circuit court did not address Lancaster's claim that both the examiner and FCOR failed to find that the violation was willful.

We are sympathetic to FCOR's argument that Lancaster did not timely raise this issue. However, FCOR needed to raise this defense below before arguing it to this Court. Although there is no time limit to file a petition for writ of habeas corpus challenging the finding of a parole violation, the timeliness may be raised as an affirmative defense of laches. See McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997) (explaining that the doctrine of laches is properly applied to a habeas petition when a defendant unreasonably delayed in bringing a claim, which prejudiced the State in responding). Because the court did not request that FCOR respond to the petition below, it may raise that issue on remand.

Thus, we grant the petition for writ of certiorari, quash the order summarily denying the petition for writ of habeas corpus, and remand for consideration of Lancaster's claim.

PETITION GRANTED.

COHEN, EISNAUGLE and HARRIS, JJ., concur.


text:
    Contesa GISSENDANNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-150
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence entered against Contesa Gissendanner for DUI Manslaughter and DUI Resulting in Injury to Person or Property in all respects except one. Because the award for costs of investigation was not supported by competent, substantial evidence, we reverse the imposition of $ 8752 in investigative costs and remand with instructions to hold a new hearing. See Negron v. State, 266 So.3d 1266, 2019 WL 1302366 (Fla. 5th DCA Mar. 22, 2019) (remanding for new hearing where award of investigative costs was not supported by competent, substantial evidence); see also Williams v. State, 850 So. 2d 627, 628 (Fla. 2d DCA 2003) (reversing for new restitution hearing where award was based solely on contested hearsay evidence (citing Sherwood v. State, 832 So. 2d 926 (Fla. 2d DCA 2002) )).

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

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Michael Lewis-Steven JOHNS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1877
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Michael Lewis-Steven Johns, Malone, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Lewis-Steven Johns appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court's order without comment except as to claim three. As to that claim, we reverse.

In claim three, Johns argues that trial counsel was ineffective for failing to argue that the trial court improperly considered impermissible matters-his "psychopathy" and that he might "be a budding psychopath" when there was no evidence to support the trial court's observations. A defendant's due process rights are violated when a trial court considers unsubstantiated matters at sentencing. See McGill v. State, 148 So. 3d 531, 531-32 (Fla. 5th DCA 2014) (citing Crouse v. State, 101 So. 3d 901, 903 (Fla. 4th DCA 2012) ). The failure to preserve such an issue for appeal may well be ineffective assistance of counsel.

As such, we reverse the trial court's summary denial of claim three. On remand, the trial court should either attach additional records to conclusively refute the claim or hold an evidentiary hearing. The court must then decide whether Johns has established that his counsel's performance was deficient and if he was prejudiced as a result. See Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004).

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, COHEN and WALLIS, JJ., concur.


author: SASSO, J.

text:
    Lillian D. MANNEY, Appellant, v. MBV ENGINEERING, INC., f/k/a Mosby, MOIA, Bowles & Associates, Inc., f/k/a Mosby & Associates, Inc., Randall L. Mosby, Jean-Paul Pinelli, Space Coast Builders and Contractors, Inc. and Larry Cavaliere, Appellees.
    Case No. 5D18-1773
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019
    Patrick F. Roche, Melbourne Beach, for Appellant.
    Scott A. Cole, of Cole, Scott & Kissane, P.A., Miami, for Appellees, MBV Engineering, Inc, f/k/a Mosby, MOIA, Bowles & Associates, Inc., f/k/a Mosby & Associates, Inc., a Florida Corporation.
    No Appearance for Other Appellees.
   SASSO, J.

Lillian D. Manney appeals from an order entering judgment on the pleadings in favor of MBV Engineering, Inc., f/k/a Mosby, Moia, Bowles & Associates, Inc., f/k/a Mosby & Associates, Inc. ("MBV"), based on the application of a statute of repose. Manney argues that the trial court erred in applying the statute of repose because the plain language of the statute does not encompass Manney's claim against MBV. We agree and reverse.

Prior to purchasing a newly constructed house in November 2002, Manney hired MBV to review construction drawings and inspect the house to determine whether there were any structural defects. MBV advised Manney that the structural integrity of the house was in excellent shape and there were no signs of structural distress. Thirteen years after purchasing the house, and with the assistance of another licensed structural engineer, Manney discovered that the house had significant latent structural defects, including a design defect of the foundation.

Six months after receiving the structural engineer's report identifying the latent defects, Manney filed a negligence complaint naming several defendants, including MBV. As to MBV, Manney's June 30, 2017 complaint alleged:

[P]rior to purchasing the House, MANNEY hired MBV to provide her with professional engineering services by reviewing the original construction drawings and by preforming [sic] an on-site structural inspection of the House for the purpose of determining whether the House was correctly designed and constructed in order to determine if she should purchase the House.

Manney further alleged that she purchased the house in reliance on MBV's assurance of the structural integrity of the house, and but for MBV's assurance, she would not have purchased the house. Finally, she alleged that MBV breached its duty to her by negligently performing its review and inspection of the house and by negligently advising her that the overall structural integrity of the house was in excellent shape with no signs of structural distress.

MBV filed a motion for judgment on the pleadings, arguing that the claims against MBV were barred by the ten-year statute of repose contained in section 95.11(3)(c), Florida Statutes (2017), which provides:

An action founded on the design, planning, or construction of an improvement to real property ... must be commenced within 10 years after the date of actual possession by the owner ....

Manney disagreed, arguing that section 95.11(3)(c) was inapplicable. Instead, she argued that section 95.11(4)(a), which provides a two-year statute of limitations for an action for professional malpractice, applied. Under that statute, the limitations period begins to run "from the time the cause of action is discovered or should have been discovered with the exercise of due diligence." § 95.11 (4)(a), Fla. Stat. (2017). As Manney filed her complaint well within two years of discovering the defects, she argued that her complaint was timely.

The trial court found that the work completed by MBV fell within the purview of section 95.11(3)(c) because "said work is related to the planning, design, and construction of the Plaintiff's structure"; therefore, the ten-year statute of repose precluded Manney's claim against MBV. We disagree.

We review the trial court's granting of a judgment on the pleadings de novo. Plumbing Serv. Co. v. Progressive Plumbing, Inc. , 952 So. 2d 1211, 1212 (Fla. 5th DCA 2007) (reviewing trial court's decision granting judgment on pleadings de novo and noting all well-pled allegations of complaint must be accepted as true). Applying the plain language of section 95.11(3)(c) to the allegations in the complaint, as we are obligated to do, the issue becomes whether Manney's action against MBV is "founded on" the design, planning, or construction of an improvement to Manney's house, as required by section 95.11(3)(c). "Founded on" means based upon, arising from, growing out of, or resting upon. Avalon Assocs. of Del. Ltd. v. Avalon Park Assocs., Inc. , 760 So. 2d 1132, 1135 (Fla. 5th DCA 2000) (citations omitted).

As is evident from the allegations in the complaint, section 95.11(3)(c) is not applicable to Manney's claims against MBV. The crux of Manney's complaint is that MBV negligently performed an inspection of a completed, albeit newly constructed, structure. As such, MBV did not design, plan, or construct an improvement to real property. And while the inspection may have required the observation of completed "construction," this does not transform the claim into one founded on the "construction" of an improvement to real property, as that term is commonly understood. See Construction , Merriam-Webster's Collegiate Dictionary 248 (10th ed. 2000) (defining "construction" as

"the process, art, or manner of constructing something"); see also Construction , The Oxford American College Dictionary 297 (2002) (defining "construction" as "the building of something, typically a large structure"). Thus, a review of the plain language of section 95.11(3)(c) does not encompass Manney's claim against MBV.

In reaching a contrary conclusion, the trial court found, as urged by MBV, that section 95.11(3)(c) bars Manney's claims because Manney's action "relates to" the construction of new property. While it may be true that Manney's claim "relates to" construction, that language is not found within section 95.11(3)(c). As such, that interpretation does not flow from a natural reading of the statute's text.

Applying the plain language of 95.11(3)(c) to the claims against MBV in the complaint, we determine that the statute of repose contained within that section does not apply. Thus, we reverse the trial court's final judgment against Manney and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

EISNAUGLE and GROSSHANS, JJ., concur.


author: Kuntz, J.

text:
    Luci ZUBRICKY, Appellant, v. Michael ZUBRICKY, Appellee.
    No. 4D18-2196
    District Court of Appeal of Florida, Fourth District.
    May 15, 2019
    Stacy N. Beaulieu-Fawcett and Denise C. Desmond of Beaulieu-Fawcett Law Group, P.A., Delray Beach, for appellant.
    No appearance for appellee.
   Kuntz, J.

The Former Wife appeals the circuit court's final judgment of dissolution of marriage. We address two issues raised on appeal. First, we affirm the circuit court's order denying the Former Wife's request for alimony. Second, we reverse the court's order requiring the Former Wife to reimburse the Former Husband half the cost of a vehicle. We affirm the remaining issues without discussion.

Background

One day before petitioning for dissolution of marriage, the Former Husband and Former Wife signed a marital settlement agreement. The agreement provided, among other things, that the Former Husband would: pay the Former Wife $ 1,600 a month, pay $ 550 a month for her car, and give her $ 125,000 out of his Thrift Savings Plan (TSP). He was to retain the remainder of the TSP. This marital settlement agreement was later specifically incorporated into the final judgment of dissolution.

Two months after filing the petition for dissolution, the Former Husband and Former Wife took $ 40,425 out of their bank account to purchase the Former Wife a car. The Former Husband testified it was joint money, and the Former Wife originally testified the money was from her share of the TSP. But the Former Wife later testified at two points that the Former Husband gave her the $ 40,425 rather than pay the $ 550 monthly car payment.

Weeks later, the Former Husband gave the Former Wife $ 134,330.48 from the TSP distribution. This amount is not equal to the amount stated in the pre-suit marital settlement agreement, $ 125,000. The Former Wife testified that the Former Husband gave her additional money from the TSP because he thought she deserved more.

In December 2015, the court entered an order on the Former Wife's motion for temporary relief. The court incorporated the temporary relief order into the final judgment. This order included the date of the marriage and income information for the Former Wife and Former Husband. It also made a finding that the Former Wife had been living off of money from a live-in paramour. The court found the Former Wife was entitled to $ 760 a month from the Former Husband's pension, retroactive to January 1, 2015. The retroactive payment amount was set at $ 158, bringing the total monthly payment from the Former Husband to the Former Wife to $ 918.

Shortly before trial, the Former Husband and Former Wife signed a partial marital settlement agreement. That document states that the Former Husband "cashed out" the TSP and the "parties divided the marital contents of said plan." That partial agreement also noted the areas of disagreement left for the court to decide. Those areas generally included alimony, reimbursement of the funds used for the car, and cross-claims for attorney's fees.

The court held a non-jury trial on the areas of disagreement. Both the Former Wife and Former Husband testified. At trial, the Former Wife sought enforcement of the pre-suit marital settlement agreement, and the Former Husband argued he could no longer comply with the terms of that agreement.

After an extended delay, the court issued its final judgment. The court adopted the findings of fact and conclusions of law from the temporary relief order. But the court was imprecise with language and numbers. For example, the court found the Former Husband was paying $ 850 ($ 700 plus $ 150) a month to the Former Wife from his pension-when the number was $ 918. The court also suggested the parties "equally" distributed the TSP, but the distribution was in an agreed amount, not an equal amount. The court then stated both parties were asking it to save them from their own mistakes.

Finally, the court declined to award the Former Wife alimony. It found the Former Wife had no need for alimony and that the Former Husband had no ability to pay it. The court also found the Former Wife cohabited with the live-in paramour, making her ineligible for alimony under section 61.14, Florida Statutes (2014).

Analysis

We address two arguments raised on appeal. First, the Former Wife argues the court erred when it declined to award her alimony. Second, the Former Wife argues the court erred when it required her to reimburse the Former Husband for half of a car purchased for her use. We affirm on the first point and reverse on the second.

i. The Court Did Not Err in Failing to Award Alimony

The Former Wife argues the court erred in applying section 61.14, arguing it does not apply unless a party is seeking to modify a judgment. But before addressing section 61.14, the court specifically found the Former Wife did not have the need for alimony and that the Former Husband could not pay it.

This conclusion was based, in part, on the fact that the only income of the Former Wife and Former Husband is social security and the Former Husband's pension. The court also found that the parties distributed a large sum of money from the TSP in accordance with the pre-suit marital settlement agreement and that "the parties should have been financially secure going forward with their lives" as a result of the distribution.

The pension is being distributed in accordance with the earlier temporary relief order, an order specifically incorporated into the final judgment. In the temporary relief order, the court found that the marital portion of the Former Husband's pension was 71%. The court split the marital portion of the Former Husband's pension evenly, awarding both parties 30.5%. As a result, even after entry of the final judgment, the marital portion of the pension is being distributed evenly. That also means that all the Former Husband's marital income is being distributed evenly. Based on these findings, we cannot conclude the court abused its discretion when it declined to award alimony.

Even if the court had not found that the Former Wife is not entitled to alimony, we question her argument that the court erred in applying section 61.14. The Former Wife argues section 61.14 applies only to amend a judgment. As a result, she argues, section 61.14 could not be applied to amend the marital settlement agreement that had not yet been incorporated into a final judgment. But, years ago, the Florida Supreme Court rejected a similar argument. See Frizzell v. Bartley , 372 So. 2d 1371, 1372 (Fla. 1979) ( Section 61.14 "allows modification of the settlement agreement even though it was not made part of the final decree.").

The court found that the Former Wife lacked a need for alimony and that the Former Husband could not pay alimony. Next, the court found the Former Wife was precluded from receiving alimony because of her "cohabitation with her paramour for over one year and the money she received from him." We cannot conclude the court abused its discretion in reaching these conclusions.

ii. The Court Erred When It Required the Former Wife to Repay the Former Husband for the Purchase of a Vehicle

Next, the Former Wife argues the court erred when it required her to repay the Former Husband one-half the cost of a vehicle purchased with funds from a joint bank account. We agree and reverse.

The pre-suit marital settlement agreement incorporated into the final judgment required the Former Husband to pay $ 550 a month for the Former Wife's vehicle. She testified that rather than make a monthly payment, they purchased her a car with joint money. Consistent with that testimony, the Former Husband testified that he stopped making the monthly car payment when they purchased the vehicle for the Former Wife.

The court found that the vehicle was purchased with joint funds. As a result, the court required the Former Wife to reimburse the Former Husband for half the price paid for the vehicle. We do not find the fact that marital assets were used to purchase the vehicle to be dispositive. The marital settlement agreement required the Former Husband to make a monthly payment for the Former Wife's vehicle. Instead, the parties purchased a vehicle. It is inconsistent with the marital settlement agreement, and the testimony of the parties, to require the Former Wife to repay funds to the Former Husband relating to the vehicle. As a result, we reverse that portion of the final judgment.

Conclusion

We affirm the court's order declining to award alimony to the Former Wife. We specifically note our understanding that the Former Husband remains obligated to evenly distribute the portion of his pension the court found to be a marital asset. We reverse the portion of the court's judgment requiring the Former Wife to repay the Former Husband for one-half the cost of a vehicle. Finally, we affirm the remainder of the issues raised on appeal without further comment.

Affirmed in part and reversed in part.

Gerber, C.J., and Taylor, J., concur.

      The court found that because the Former Husband was a federal employee not required to pay social security taxes, the Former Husband's social security payment is a non-marital asset. The Former Wife was also receiving monthly payments from social security.


author: Per Curiam.

text:
    Hala M. FARID, Appellant, v. Claude RABBATH, Appellee.
    No. 1D17-4173
    District Court of Appeal of Florida, First District.
    May 16, 2019
    Summer N. Boyd of the Law Office of Summer Boyd, Jacksonville, for Appellant.
    Claude Rabbath, pro se, Appellee.
   Per Curiam.

Hala M. Farid, the former wife, appeals an order redistributing property and finding both parties in violation of the equitable distribution terms in the final judgment. Because the trial court's order is an impermissible modification of the final judgment in an enforcement proceeding, we reverse.

A Final Judgment of Dissolution of Marriage was issued on November 29, 2007, and a Supplemental Final Judgment entered in 2010. As part of the equitable distribution, the former husband, Claude Rabbath, was awarded personal property shipped from Kuwait, which the court valued at $ 100,000. The former husband was then ordered to pay the former wife $ 111,357.80 over the following four years at a rate of $ 2,319.95. monthly.

On March 16, 2016, the former wife filed a Verified Motion for Civil Contempt and Enforcement, alleging the former husband had willfully failed to comply with the final order by not making any payments toward the equitable property distribution. Thereafter, on May 13, 2016, the former husband filed a Verified Motion for Enforcement, Contempt and Attorney's Fees and Costs. The former husband requested the former wife be held in contempt for failing to deliver the $ 100,000 in personal property he was awarded.

At the enforcement hearing, the trial court found that both parties had violated the terms of the final judgment. However, instead of enforcing the final judgment, the trial court changed the terms of distribution. The former wife was awarded ownership of the personal property shipped from Kuwait, and the former husband a $ 100,000 credit for the property awarded to the former wife against his equitable distribution equalization payment of $ 111,357.80. The former husband was ordered to pay the balance, $ 11,357.80, plus interest, and minus alimony and child support overpayment.

This Court reviews orders on motions for enforcement for abuse of discretion. See Dugan v. Dugan , 498 So.2d 989, 991 (Fla. 1st DCA 1986). However, where a trial judge fails to apply the correct legal rule, the action is erroneous as a matter of law. Kennedy v. Kennedy , 622 So.2d 1033, 1034 (Fla. 5th DCA 1993).

"A party's property rights, if determined by a final judgment of dissolution of marriage, are fixed as a matter of law by the judgment, unless there is a reservation of jurisdiction." Fort v. Fort , 951 So.2d 1020, 1022 (Fla. 1st DCA 2007) ; see also Bridges v. Bridges , 848 So.2d 403, 404 (Fla. 2d DCA 2003) (reversing the lower court when, in an attempt to enforce the final judgment of dissolution of marriage, the lower court changed the former wife's award of tangible property into an award of money damages); Janovic v. Janovic , 814 So.2d 1096, 1100-01 (Fla. 1st DCA 2002) ("A trial court may not, in the guise of enforcement proceeding readdress the distribution of property when the property has been previously distributed ..."). Once the final judgment becomes final, the lower court does not retain the power to modify the equitable distribution of property. McEachin v. McEachin , 154 So.2d 894, 896 (Fla. 1st DCA 1963).

Here, the parties' interest in the property was set when the final judgment was entered-the former wife had a property interest in the $ 111,357.80 equalization payment; and the former husband had a property interest in the personal property shipped from Kuwait. Thus, unless there was a reservation of jurisdiction over the distribution of property by the final judgment of dissolution, the final judgment establishing property rights could not be modified. See Fort , 951 So.2d 1020 (reversed finding the lower court improperly "shuffled" property rights, which were settled at final judgment, where there was no reservation of jurisdiction). The final judgment states, "This Court reserves jurisdiction to modify and enforce terms [of] this final judgment ...." However, a "blanket reservation of jurisdiction for any modification of the final judgment is erroneous as a matter of law and legally unnecessary." Knecht v. Palmer , 252 So.3d 842, 847 (Fla. 5th DCA 2018) ; see also Daoud v. Daoud , 153 So.3d 312, 312 (Fla. 1st DCA 2014) ("the general reservation of jurisdiction for the enforcement of its dissolution judgment does not empower a trial court to address or redistribute vested property between the parties."); Encarnacion v. Encarnacion , 877 So.2d 960, 963 (Fla. 5th DCA 2004) ("At the time a judgment of dissolution of marriage becomes final, the parties' property rights, if determined by the judgment, are fixed as a matter of law ... [and] a trial court lacks jurisdiction ... to determine property rights, unless the final judgment reserves jurisdiction for a specific purpose regarding identified property."). Thus, because the reservation of rights here is nothing more than a blanket reservation of jurisdiction, it fails to provide the lower court the jurisdiction needed to modify the final judgment. Therefore, the trial court erred when it "shuffled" the property interests previously determined in the final judgment when neither party had properly plead for modification, and we reverse this portion of the order on appeal.

The trial court's finding that the former wife violated the final judgment is supported by competent, substantial evidence; thus, we affirm this issue. The remaining issues raised by the former wife are rendered moot by this opinion.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    FLORIDA DEPARTMENT OF REVENUE and Florida Department of Financial Services, Appellants, v. Brenda FORMAN, in her official capacity as the Clerk of the Circuit Court of the Seventeenth Judicial Circuit and the Clerk of the Court of Broward County, Florida, Appellee.
    No. 1D18-1891
    District Court of Appeal of Florida, First District.
    May 16, 2019 Rehearing Denied June 24, 2019
    Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and Daniel W. Bell, Deputy Solicitor General, Tallahassee, for Appellants.
    Mark Herron and Albert T. Gimbel of Messer Caparello, P.A., Tallahassee; and Melanie R. Leitman of Coppins Monroe, P.A., Tallahassee, for Appellee.
   Per Curiam.

The Department of Revenue and the Department of Financial Services appeal an order finding that several statutory provisions related to court filing fees are unconstitutional as applied because they rendered the office of the Clerk of the Circuit Court of the Seventeenth Judicial Circuit and the Clerk of Court of Broward County unconstitutionally underfunded. We find the Clerk failed to prove that her office is unconstitutionally underfunded. Thus, we reverse.

Brenda Forman, in her official capacity as the Clerk of the Circuit Court for the Seventeenth Judicial Circuit and the Clerk of Court of Broward County, Florida, filed a complaint against the Florida Department of Revenue and the Florida Department of Financial Services. She alleged that the Clerk's office was insufficiently funded, which was attributable to several statutory provisions that require county and circuit court clerks to remit portions of the funds they collect through filing fees, services charges, and costs ("fees") to the Department of Revenue and the Department of Financial Services to be used for other purposes. See §§ 28.2401(1), 28.241(1)(a)1.a., 28.241(1)(a)1.b., 28.241(1)(a)2., 28.241(1)(c)1., 28.241(1)(c)2., 34.041(1), 34.041(1)(c), & 44.108(1), Fla. Stat.

The Clerk alleged this redistribution of funds violated article V, section 14(b) of the Florida Constitution, which requires that "[a]ll funding for the offices of the clerks of the circuit and county courts performing court related functions, except as otherwise provided ... shall be provided by adequate and appropriate filing fees ... and service charges and costs ...."

The Clerk clarified she was not arguing that the statutes were facially unconstitutional, nor was she challenging the Legislature's authority to divert portions of filing fees for other purposes. Instead, she argued those statutes were unconstitutional as applied to her office because the diversion of fees resulted in her office being so underfunded that it was unable to perform its constitutional duties.

During an evidentiary hearing, the Clerk presented evidence that her office had not been in total compliance with statewide performance measures that set timeframes in which filings should be processed. The Clerk attributed this failure to meet performance measures to a lack of sufficient funding. The Clerk's Chief Financial Officer testified that even one instance of failing to meet a performance measure was constitutionally unacceptable.

The trial court found the filing fee statutes were unconstitutional as applied because they rendered the Clerk's office unconstitutionally underfunded, agreeing that even one instance of failing to meet a performance measure was indicative of unconstitutional operations.

However, we find the Clerk failed to prove her office was unconstitutionally underfunded because she failed to put forth any evidence that the alleged lack of funding impacted her ability to meet her constitutional duties or impacted litigants' constitutional rights. The supreme court has distinguished between operational underfunding versus constitutional underfunding, explaining "while this Court has stated that Florida's court system is operationally underfunded, see e.g. , In re Certification of Need for Additional Judges , 29 So.3d 1110 (Fla. 2010), we have not determined that the judiciary is underfunded to the point of it being a violation of the constitution." Crist v. Ervin, 56 So.3d 745, 752 (Fla. 2010), as revised on reh'g (Jan. 20, 2011) (finding filing fee statutes were not an unconstitutional tax, and there was no competent, substantial evidence to prove the judiciary in Florida was constitutionally underfunded).

The statewide performance measures for court clerks are not an appropriate tool to measure whether the Clerk is unconstitutionally underfunded. These standards, which were promulgated by the Clerks of Court Operations Corporation as directed by statute, are not constitutional requirements. See § 28.35(2)(d), Fla. Stat.; see also Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ. , 262 So.3d 127, 141-42 (Fla. 2019) (finding legislative standards for education were not "constitutional requirements").

At most, the Clerk proved her office was operationally underfunded. However, she failed to present any evidence that she was unconstitutionally underfunded. Performance standards are not constitutional requirements. Thus, the trial court erred in finding that the filing fee statutes violated article V, section 14(b) of the Florida Constitution. To the extent the trial court suggested the entire statutory structure for funding county and circuit courts was unconstitutional, we find that issue was not raised by the Clerk and was not proven by the evidence. Thus, we REVERSE .

Wolf, Osterhaus, and Jay, JJ., concur.


text:
    Christopher Joseph BORDONARO, Former Husband, Appellant, v. Emily Joy BORDONARO, Former Wife, Appellee.
    No. 1D18-4091
    District Court of Appeal of Florida, First District.
    May 21, 2019
    James Pratt O'Conner, Fernandina Beach, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Christopher Joseph Bordonaro appeals the trial court's order granting his former wife's Motion for Contempt/Enforcement and Motion for Attorney's Fees and Costs. The motion alleged that Appellant neglected his child support obligations under the Consent Final Judgment of Dissolution of Marriage (Final Judgment). We agree that the trial court adjudicated issues during the contempt hearing that were not properly pleaded or noticed and improperly granted attorney's fees to the former wife. We reject all of Appellant's other claims.

The increase of Appellant's monthly child support payments is improper for two reasons. First, it did not use the requisite separate pleading, financial affidavits, or worksheet. §§ 61.14, 61.30(14), Fla. Stat.; Fla. Fam. L.R.P. 12.285(k). Second, a trial court cannot modify child support on a party's motion for contempt for nonpayment of child support. McGrath v. Caron , 8 So.3d 1253 (Fla. 4th DCA 2009). As a result, the arrearages imposed by the trial court based on the improperly modified child support obligations were also improperly imposed.

Moreover, the trial court's order found that Appellant effectively abandoned his minor child. A motion for contempt or enforcement for failure to meet one's support obligations is not the proper vehicle to request a finding of abandonment. Abandonment must be established by clear and convincing evidence and is usually requested through a petition for termination of parental rights. See T.S. ex rel. D.H. v. Dep't of Children & Families , 969 So.2d 494, 495 (Fla. 1st DCA 2007).

Finally, the trial court erroneously granted Appellant's former wife's request for attorney's fees without considering or making any findings regarding either party's need or ability to pay. See Fulmer v. Fulmer , 961 So.2d 1081, 1082 (Fla. 1st DCA 2007) ; Perrin v. Perrin , 795 So.2d 1023, 1024 (Fla. 2d DCA 2001).

Accordingly, we reverse and remand so that the trial court can 1) strike the modified increase in child support and related arrearages and make the requisite findings supporting the enforcement of Appellant's original child support obligation pursuant to the Final Judgment; 2) strike its finding that Bordonaro effectively abandoned his minor child; and 3) make the appropriate findings regarding both parties' ability to pay and need for attorney's fees.

REVERSED and REMANDED .

Wolf, Kelsey, and Winokur, JJ., concur.


author: Wolf, J.

text:
    Elizabeth HALVELAND, individually and as a Personal Representative of the Estate of Michael Halveland, deceased, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, an Agency of the State of Florida, Isaac Andrews, both in his individual and official capacity as a Correctional Officer of Florida Department of Corrections, Carlton Spooner, both in his individual and official capacity as an Officer of Florida Department of Corrections, Jennifer Reeves, both in her individual and official capacity as an Officer of Florida Department of Corrections, Patrick Jason William, in his individual capacity, Appellees.
    No. 1D18-1822
    District Court of Appeal of Florida, First District.
    May 21, 2019
    Megan Cunningham and Ann Finnell of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville, for Appellant.
    Kenneth Steely, General Counsel, Florida Department of Corrections, Tallahassee, Ashley Moody, Attorney General, Elizabeth M. van den Berg and Anthony Dean Johnson, Assistant Attorneys General, Tallahassee, for Appellees.
   Wolf, J.

Appellant argues that the trial court erred in not allowing her to amend her complaint to add a cruel and unusual punishment claim pursuant to 42 U.S.C. § 1983 against 3 correctional officers. We have jurisdiction because appellant voluntarily dismissed all other counts against the officers; thus, the effect of the order was to completely dispose of the action as to them. See Fla. R. App. P. 9.110(k).

The trial court refused to allow appellant to amend her complaint because it found (1) the statute of limitations had run on the federal cause of action, and the amended complaint did not relate back to the original complaint; and (2) it lacked the authority to permit appellant to amend her complaint because doing so would exceed the court's specific instructions on remand of an earlier appeal in this case. We find the trial court erred in both determinations and reverse and remand to allow appellant to file her third amended complaint.

FACTS

Appellant was the mother and personal representative of the estate of an inmate who died while incarcerated. In August 2015, she brought a cause of action against several defendants including the Department of Corrections, the inmate who was responsible for the death, and 3 correctional officers.

Appellant filed her original complaint in August 2015. Pertinent to this appeal, she brought claims for wrongful death and intentional infliction of emotional distress against the officers and the Department, as well a claim for intentional infliction of emotional distress against the officers. The complaint included the following general factual allegations:

20. On or about August 10, 2013, one of the officers was conducting showers in G1 Dormitory when inmate Williams advised him that [the decedent] needed assistance. Later, the other 2 officers responded to the call for assistance of [the decedent].
21. Officers of [the prison], including but not limited to [appellees], found [the decedent] down on the floor and unresponsive in his prison cell.
22. On or about 9:00 p.m. on August 10, 2013, [the decedent], in critical condition was intubated by EMS and taken to Bay Medical Center.

The complaint alleged that the inmate passed away on August 12. An autopsy determined he had multiple contusions and abrasions on his face, head, and abdominal area, and he died of "blunt force head trauma as a result of the assault by another." The doctor "noted that a period of time passed between sustaining head trauma and [the decedent's] subsequent presentation for medical care." The decedent's cellmate was later charged with manslaughter perpetrated by beating the decedent "on or about August 8, 2013 through August 10, 2013."

Specifically as to the wrongful death count against the officers, the complaint alleged that the decedent had "noticeable injuries," yet the officers failed to timely "investigate ... inspect ... [or] adequately respond to" these injuries, and they failed to "provide or ensure that [the decedent] receive[d] proper medical care and assistance." Similarly, as to the count for intentional infliction of emotional distress, the complaint alleged the officers "could have investigated the cause of [the decedent's] injuries and seek [sic] for [the decedent] to be provided with immediate medical assistance ... during the span of at least (2) days," but instead "disregard[ed] the presence of any injuries."

The trial court dismissed with prejudice the wrongful death claims against the Department and the officers, finding they were time-barred by a one-year statute of limitations pursuant to this court's decision in Green v. Cottrell , 172 So.3d 1009 (Fla. 1st DCA 2015). The court also dismissed with prejudice the intentional infliction of emotional distress claim against the officers. Appellant filed an appeal to this court.

While the appeal was pending, the supreme court reversed this court's decision in Green , 172 So.3d 1009, finding a 4-year statute of limitations applied to this type of wrongful death action. Green v. Cottrell , 204 So.3d 22, 29 (Fla. 2016). This court remanded, stating: "In light of Green , we vacate the order of dismissal and remand for further proceedings consistent with that decision." Halveland v. Florida Dep't of Corr. , 219 So.3d 1037, 1038 (Fla. 1st DCA 2017).

On remand, there was apparently no dispute that the wrongful death actions were timely filed pursuant to the 4-year statute of limitations set forth in Green . However, the officers moved to dismiss that count as it pertained to them, arguing they were protected by sovereign immunity.

Before the court ruled on that motion, appellant moved to file a third amended complaint. This complaint did not include a wrongful death claim against the officers, and appellant confirmed she intended to abandon that count as to them. The third amended complaint sought to add counts against the officers and the Department for cruel and unusual punishment pursuant to 42 U.S.C. § 1983. This federal cause of action contained additional allegations against the Department, including that they failed to prevent the attack; failed for over a week to investigate the cause of the decedent's injuries and to obtain medical care for them; failed to review the decedent's medical records, which would have shown he had pre-existing conditions that put him at a greater risk of harm; and intentionally failed to provide access to emergency medical care.

During a hearing, the officers argued that the motion to amend should be denied because the statute of limitations period to bring the federal action had run, and the amended complaint did not relate back to the original complaint.

The trial court entered a written order denying appellant's motion for leave to amend the complaint to the extent that she sought to add a 1983 action against appellees or the Department. The court found the amended complaint did not relate back because it contained factually distinct allegations that did not relate back to the "sparse" allegations in the original complaint. Alternatively, the court found it lacked the authority to permit appellant to amend her complaint with a new cause of action because doing so would exceed the specific directions in this court's opinion remanding for "further proceedings consistent with [ Green ]."

THE AMENDED COMPLAINT RELATED BACK TO THE ORIGINAL COMPLAINT

"The Florida Rules of Civil Procedure encourage a policy of liberality in allowing litigants to amend their pleadings, especially prior to trial; this policy exists so that cases will be tried on their merits."

Morgan v. Bank of New York Mellon , 200 So.3d 792, 795 (Fla. 1st DCA 2016) (citing Fla. R. Civ. P. 1.190(a) ; Hatcher v. Chandler, 589 So.2d 428, 429 (Fla. 1st DCA 1991) ).

However, this policy does not apply where the statute of limitations has run. "Although amendments should be permitted liberally, one cannot defeat the bar of the statute of limitations by filing a new cause of action labelled as an amended complaint. The rule of liberality does not authorize a new cause of action." Sch. Bd. of Broward Cty. v. Surette , 394 So.2d 147, 154 (Fla. 4th DCA 1981) (citing Cox v. Seaboard Coast Line R. Co. , 360 So.2d 8 (Fla. 2nd DCA 1978) ; Versen v. Versen , 347 So.2d 1047 (Fla. 4th DCA 1977) ).

Here, it is undisputed that the statute of limitations has run on the federal claim. The trial court denied the motion to amend because the court found the amended complaint did not relate back to the original complaint and exceeded the scope of remand.

We review the determination of whether an amended complaint relates back to the filing of the original complaint de novo. Kopel v. Kopel , 229 So.3d 812, 815 (Fla. 2017).

"An amended complaint raising claims for which the statute of limitations has expired can survive a motion to dismiss if the claims relate back to the timely filed initial pleading." Id. An amendment relates back "[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading ...." ' Fla. R. Civ. P. 1.190(c) (emphasis added).

Even if two complaints allege slightly different facts or theories of recovery, a finding of relation back is not automatically precluded. Kopel , 229 So.3d at 818. "[A]s long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back.... This is true even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements." Id. at 816 (approving Fabbiano v. Demings , 91 So.3d 893, 895 (Fla. 5th DCA 2012) ; Flores v. Riscomp Indus. , 35 So.3d 146, 148 (Fla. 3d DCA 2010) ; Kiehl v. Brown , 546 So.2d 18, 19 (Fla. 3d DCA 1989) ).

The supreme court qualified this general rule by stating, "a newly added claim could fail to meet the relation back test if the new claim is so factually distinct that it does not arise out of the same conduct, transaction, or occurrence as the original," even though the new claim was "emanating from the same set of operative facts." Id. (quoting Fabbiano , 91 So.3d at 895 ).

In Kopel , the plaintiff filed a complaint demanding repayment of $ 5 million loaned to his brother and nephew, but he later filed an amended complaint alleging a different theory of recovery - that during settlement negotiations, his nephew and brother agreed to repay the $ 5 million in exchange for him giving up his interests in companies the parties held together. Id. at 813-14. The supreme court found the new claim of an oral contract related back to the original complaint because both alleged that the defendants owed the plaintiff $ 5 million and refused to pay that amount "regardless of the asserted theory of recovery":

Both the original and fifth amended complaints allege that (1) Petitioner and [his brother] borrowed $ 15 million, with Petitioner being liable for $ 5 million and [the brother] being liable for $ 10 million; (2) Petitioner loaned such amount to either [his nephew] individually or Respondents collectively; and (3) regardless of the asserted theory of recovery, Respondents, individually and collectively, have failed and refused to pay this amount. Accordingly, the new claim is not factually distinct, but arises out of the same conduct, transaction, or occurrence as that established in the original pleading.

Id. at 818.

"[C]laims for federal law violations can relate back to pleadings which previously alleged only violations of the common law." Janie Doe 1 ex rel. Miranda v. Sinrod , 117 So.3d 786, 789 n.4 (Fla. 4th DCA 2013), approved sub nom . Palm Beach Cty. Sch. Bd. v. Doe , 210 So.3d 41 (Fla. 2017). In Janie Doe , parents filed suit against their child's teacher and the school board alleging sexual abuse by the teacher. Id. at 787-88. The initial complaint alleged common law claims, whereas the amended complaint raised a federal claim under Title IX, which prohibits sex discrimination by recipients of federal education funding. Id. at 788 n.2. The Fourth District found the Title IX claim related back because "[b]oth claims arose from the same conduct and resulted in the same injury." Id. at 790.

The supreme court agreed, finding the fact that the amended complaint alleged the school board "acted with deliberate indifference," whereas the initial complaint alleged negligence, did not preclude a finding of relating back. Palm Beach County Sch. Bd. , 210 So.3d at 47. "[S]uch differing terms do not indicate different facts. Instead, they indicate that the facts are being described in legal terms to demonstrate specific elements of each cause of action. And claims requiring proof of different elements can still relate back." Id. Thus, although the allegations in the Title IX claim were "more specific," the supreme court concluded that the common law claims "were similar enough to the new claim to put the School Board on notice that it could be held responsible for any harm resulting from the alleged conduct." Id. (emphasis added),

In this case, both the original complaint and the proffered third amended complaint specifically relate to the attack that took place in the prison. Both complaints alleged the officers (1) failed to investigate the cause and extent of appellant's injuries, and (2) failed to obtain the proper medical care. As in Kopel , the claims in both complaints arose out of the same conduct, transaction or occurrence. While several new facts were alleged in the amended complaint, appellees were given fair notice of the factual underpinnings of the claim. Thus, pursuant to Kopel , we are required to reverse the trial court's determination that the third amended complaint did not relate back to the original complaint.

THIS COURT'S INSTRUCTION ON REMAND DID NOT PRECLUDE APPLICATION OF THE RELATION BACK DOCTRINE

Appellant also argues the trial court erred in finding that her attempt to amend her complaint exceeded the scope of remand from this court, which stated, "In light of Green , we vacate the order of dismissal and remand for further proceedings consistent with that decision." Halveland , 219 So.3d at 1038.

Both parties seem to agree that an opinion remanding with specific instructions can limit the scope of remand, whereas a broad remand "for further proceedings" does not. See Collins v. State , 680 So.2d 458, 459 (Fla. 1st DCA 1996) ("When an order or judgment is reversed and remanded, the lower tribunal has authority to conduct further proceedings in conformity with the instruction of the appellate court. A reversal and remand with general directions for further proceedings vests the trial court with broad discretion in directing the course of the cause.... Where the remand instruction is specific, it is improper to exceed the bounds of that instruction.").

However, they dispute how to interpret this court's instruction on remand. Appellant argues that because this court used the phrase "remand for further proceedings," the lower court was not limited in the scope of remand. However, the officers argue that because this court remanded for further proceedings "consistent with that decision," referring to Green , the only consideration on remand should have been whether the wrongful death claims were timely pursuant to the 4-year statute of limitations set forth in Green .

This court addressed this issue in Fitchner v. Lifesouth Community Blood Centers, Inc. , 88 So.3d 269, 276 (Fla. 1st DCA 2012), finding that if an appellate court reverses an interlocutory order entered at a stage of the trial proceeding during which the parties would have been entitled to amend, then amendment on remand is permissible.

Here, as in Fitchner , appellant was entitled to amend. The effect of this court's remand was not to decide the case. It was to require consideration of whether the complaint should be dismissed under the supreme court's recent decision in Green . It is undisputed that dismissal was not required under Green . Thus, as in Fitchner , the effect of this court's order was to return the case to the posture it would have assumed if the trial court had correctly denied the officers' motion to dismiss the second amended complaint. Here, that would mean returning the case to the pleadings stage, at which point appellant would have had the opportunity to amend.

It would be illogical to state that if the trial court had correctly denied the officers' motion to dismiss the wrongful death claim, appellant would have been entitled to seek leave to file an amended complaint, but because the trial court erroneously dismissed that complaint, she was not entitled to amend on remand after successfully obtaining a reversal of that dismissal. Thus, the trial court erred in finding the scope of remand did not permit appellant to amend her complaint.

We, therefore, REVERSE the trial court's determination that the third amended complaint did not relate back to the original complaint and REMAND for further proceedings.

Lewis and Wetherell, JJ., concur.

      Notably, the trial court did not make any findings regarding whether the privilege to amend had been abused.

      The statute of limitations of the federal claim did not run until after this court's mandate issued (though appellant waited until after the statute of limitations ran to file her third amended complaint).


author: KELLY, Judge.

text:
    Maureen KING, Appellant, v. Stetson Wilkie KING, Appellee.
    Case No. 2D18-1179
    District Court of Appeal of Florida, Second District.
    Opinion filed May 22, 2019 Rehearing Denied May 21, 2019
    Mark A. Neumaier, Tampa, for Appellant.
    Stetson King, pro se.
   KELLY, Judge.

Maureen King, the former wife, appeals from the final judgment dissolving the parties' five-year marriage. She correctly argues that the trial court abused its discretion in awarding Stetson King, the former husband, the marital home without making findings to support the uneven distribution of marital assets.

"The final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence." Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004) ; see also § 61.075(3), Fla. Stat. (2016). Section 61.075(1), provides that the distribution of assets and liabilities "should be equal, unless there is a justification for an unequal distribution." If the trial court makes an unequal distribution, it must articulate the reasons justifying the disparity. Franklin v. Franklin, 988 So.2d 125, 126 (Fla. 2d DCA 2008).

The former wife contends that because the former husband purchased the home during the marriage, it is a marital asset and should have been part of the equitable distribution. See § 61.075(8) ("All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage ... are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities."). The record confirms that the former husband purchased the house during the marriage and titled it in his own name. Because title alone is insufficient to support an unequal distribution of the property, Foley v. Foley, 19 So.3d 1031, 1032 (Fla. 5th DCA 2009), the trial court should have made findings as to whether the house was a marital or nonmarital asset and stated its reasons for awarding the house solely to the former husband.

The former wife also argues that the trial court abused its discretion in denying her claim for an award of alimony. However, because this was a short-term marriage, the presumption against an award of alimony applies. See Kellerman v. Kellerman, 659 So.2d 1390, 1390 (Fla. 3d DCA 1995) (stating that the parties' marriage of less than seven years was a short-term marriage); see also Reeves v. Reeves, 821 So.2d 333, 334 (Fla. 5th DCA 2002) (noting that a rebuttable presumption against awarding permanent alimony arises in the case of a short-term marriage). The record does not show that the former wife rebutted the presumption. In the final judgment, the court recited the factors it considered, including the duration of the marriage, the age and condition of the parties, and the contributions of the parties to the marriage, and found that the former wife was not entitled to alimony. We can discern no abuse of discretion in the court's decision from the face of the judgment.

Finally, the former wife contends that the trial court abused its discretion in denying her claim for an award of fees and costs. We note that the trial court did award the former wife $ 400 in "costs" but made no findings as to how it arrived at that amount. See Arena v. Arena, 103 So.3d 1044, 1047 (Fla. 2d DCA 2013) ("Distinct findings regarding an award of fees in dissolution proceedings are imperative because a trial court's vague findings present an obstacle to meaningful appellate review.").

Accordingly, we reverse and remand for the trial court to make findings of fact to support its award of the home to the former husband or to reconsider the unequal distribution of the asset. The trial court must also make findings as to the former wife's motion for attorney's fees and costs.

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

CASANUEVA and ATKINSON, JJ., Concur.

      Review of this case is hampered by the failure of the parties to have a court reporter at the final hearing. In the absence of a transcript or a statement of the evidence, this court may only review the final judgment for an error of law apparent on the face of the judgment. Silverman v. Silverman, 940 So.2d 615, 616 (Fla. 2d DCA 2006). Unfortunately, the final judgment in this case contains scant findings for this court to review. See Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011) (stating that the lack of findings precludes meaningful appellate review).


author: MILLER, J.

text:
    COVENANT BAPTIST CHURCH, INC., etc., Appellant, v. VASALLO CONSTRUCTION, INC., etc., et al., Appellees.
    Nos. 3D18-1315 & 3D18-1060
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019.
    John A. Jabro, for appellant.
    Hill, Ward & Henderson, P.A., Marie A. Borland, and B. Ben Dachepalli (Tampa); Rembold Hirschman, Scott D. Rembold and Ashley A. Graham, for appellees.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   MILLER, J.

Under Florida law, "[w]hen a newly finished roof leaks it is not only apparent, but obvious, that someone is at fault." Kelley v. Sch. Bd. of Seminole Cty., 435 So.2d 804, 806 (Fla. 1983) (citation omitted). Thus, "where a cause of action [is] specifically based on leaking roofs ... the statute [of limitations] begins to run when an owner has notice of the first [roof]

leak." Dubin v. Dow Corning Corp., 478 So.2d 71, 73 (Fla. 2d DCA 1985). Here, it is well-documented that appellant had knowledge of the roof leaks by 2006, yet failed to file suit until 2011. Accordingly, we affirm the final judgment under review. See § 95.11(3)(c), Fla. Stat. (2018) ; Kelley, 435 So.2d at 806 (holding the claim was barred by the four-year statute of limitations where "the school board had knowledge of the defective roofs sufficient to put it on notice that it had, or might have had, a cause of action" since the roofs began to leak shortly after being finished, "more than four years prior to" filing the action); Conquistador Condo. VIII Ass'n, Inc. v. Conquistador Corp., 500 So.2d 346, 347 (Fla. 4th DCA 1987) (holding summary judgment based on the four-year statute of limitations was proper where the law suit was not filed until 1984 and the trial court concluded that "as a matter of law appellant had notice in 1979 that [the roof leaks] existed"); Dubin, 478 So.2d at 73 ("[T]he cause of action accrued and the statute [of limitations] began to run in the summer ... when [appellant] had notice of the first [roof] leaks. Therefore, because appellant failed to file his complaint before the expiration of the four-year statute of limitations ... we must affirm" the trial court's order granting summary judgment.); Havatampa Corp. v. McElvy, Jennewein, Stefany & Howard, Architects/Planners, Inc., 417 So.2d 703, 704 (Fla. 2d DCA 1982) ("On the day appellant took occupancy of the facility, it knew [the roof was leaking] .... Appellant cannot rely on a lack of knowledge of the specific cause of the problem to protect it against the expiration of the four year statute of limitations."); K/F Dev. & Inv. Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078, 1079 (Fla. 3d DCA 1979) ("The evidence is clear that the purchaser knew or should have known of the alleged defect when the roof began to leak, and this was more than four years prior to the filing of the law suit.").

Affirmed.