text:
    Christopher UHLAND, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0410
    District Court of Appeal of Florida, Third District.
    APRIL 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Jon J. RAPPAPORT, et al., Appellant(s)/Petitioner(s), v. Joel Beth NAVRATIK, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0426
    District Court of Appeal of Florida, Third District.
    APRIL 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Luis RODRIGUEZ, Appellant(s)/Petitioner(s), v. Otto Enrique CASTILLO, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0262
    District Court of Appeal of Florida, Third District.
    April 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Clark CAPLAN, Appellant(s)/Petitioner(s), v. Solomon CAPLAN, et al., v. Barbara A. Reiser, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0652
    District Court of Appeal of Florida, Third District.
    APRIL 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    SUNBELT RENTALS, INC., Appellant(s)/Petitioner(s), v. COASTAL CONSTRUCTION OF MIAMI-DADE COUNTY, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2459
    District Court of Appeal of Florida, Third District.
    APRIL 06, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismiss.


text:
    Alois CATHALINA, Appellant(s)/Petitioner(s), v. BURLEIGH HOUSE CONDOMINIUM, INC., Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2218
    District Court of Appeal of Florida, Third District.
    APRIL 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Janet RODRIGUEZ, Appellant(s)/Petitioner(s), v. The BANK OF NEW YORK MELLON, Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0526
    District Court of Appeal of Florida, Third District.
    April 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Esther URREA, Appellant(s)/Petitioner(s), v. Jeffrey KOPLOW, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0303
    District Court of Appeal of Florida, Third District.
    APRIL 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Kathleen YATES, et al., Appellant(s)/Petitioner(s), v. Richard FERNANDEZ, et al., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0338
    District Court of Appeal of Florida, Third District.
    APRIL 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Anthony ROMANO, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-1738
    District Court of Appeal of Florida, Third District.
    APRIL 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    STATE of Florida, Department of Revenue, etc., Appellant, v. Milton TOMLIN, Appellee.
    No. 3D16-2772
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jermarsh ROBINSON, Appellant(s)/Petitioner(s), v. Madelyn Lebron MERCADO, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2185
    District Court of Appeal of Florida, Third District.
    APRIL 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Derek NOTTAGE, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2135
    District Court of Appeal of Florida, Third District.
    APRIL 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Blaine DE CASTRO, Appellant(s)/Petitioner(s), v. The STATE of Florida, Appellee(s)/Respondent(s),
    CASE NO.: 3D17-2040
    District Court of Appeal of Florida, Third District.
    APRIL 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Bruce ZIPPER, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D17-2444
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Will UTILE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1441
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    420 CWELT-2007 LLC, Appellant, v. CITIBANK, N.A., etc., Appellee.
    No. 3D17-1826
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Katherine TSAMASIROS, Appellant(s)/Petitioner(s), v. In re: the Matter of C.P., Appellee(s)/Respondent(s),
    CASE NO.: 3D18-0333
    District Court of Appeal of Florida, Third District.
    MAY 16, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Daniel PATERNOSTER, Appellant, v. The BANK OF NEW YORK, as Trustee, et al., Appellee.
    No. 4D16-1564
    District Court of Appeal of Florida, Fourth District.
    [August 9, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dennis COX, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3097
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos E. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0911
    District Court of Appeal of Florida, Fourth District.
    July 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerome Eric BIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3963
    District Court of Appeal of Florida, Fourth District.
    [June 21, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ernest GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-179
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Aleli HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1911
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-2117 & 4D17-2118
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Oldemar GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-653
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jaspah Dwuan SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3230
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Travis SLADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-822
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alan ROBINS a/k/a Alan J. Robins, Appellant, v. WELLS FARGO BANK, N.A., as Trustee FOR the REGISTERED HOLDERS OF IMH ASSETS CORPORATION, COLLATERALIZED ASSET BACKED BONDS, SERIES 2004-11, Poinciana Town Homes Owners' Association, Inc., and Wachovia Bank, National Bank, Appellees.
    No. 4D17-2248
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eric Troy MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-547
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1107
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian CLANCY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1165
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nick VINCENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1248
    District Court of Appeal of Florida, Fourth District.
    [July 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Imran HUSSAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2097
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Milagro CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2244
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shamar Dewayne LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4254
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    T.S., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-1761 4D17-1762
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Fidel CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2279
    District Court of Appeal of Florida, Fourth District.
    August 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    S.B., Mother of C.B., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1241
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leon FOSTER Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-673
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dennis AVILES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-263
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keith JEFFRIES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2660
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel Richard EICHOLTZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2607
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel CONNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2504
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Harold K. SWIFT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2331
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    SHAMROCK-SHAMROCK, INC. f/k/a Florida Lifestyle Homes, Inc. f/k/a Florida Lifestyle Homes of Volusia, Inc. and Ekana Home, LLC, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-NC5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NCS, et al., Appellees.
    Case No. 5D17-2366
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    E.P., Father of E.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-564
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Barbara Jean MCCREARY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1928
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Randall WASSERMAN, Individually; Infusit, a California Corporation; Walu, LLC, a Nevada Limited Liability Company; and Fidelity One Credit Corp., a Utah Corporation, Appellants, v. WLHB, LLC, a Florida Limited Liability Company, and HBT Investors, LLC, a Florida Limited Liability Company, Appellees.
    Case No. 5D17-3298
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher KIRCHNER, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a Christiana Trust, not Individually by as Trustee for Pretium Mortgage Acquisition Trust and Jacques-Partrice White, Appellees.
    Case No. 5D17-3657
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Laura DUNHAM, Appellant, v. CITRUS COUNTY SCHOOL BOARD, Appellee.
    Case No. 5D17-2219
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    MONCRIEF BAIL BONDS, INC., Appellant, v. STATE of Florida and Clerk of the Court for Volusia County, Appellees.
    Case No. 5D17-609
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John ZIELINSKI, Appellant, v. Gerald STRAKS, Dorothy Straks and Steven Rodriguez, Appellees.
    Case No. 5D17-3215
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Torri WYCHE, Appellant, v. Roderick MCCLENDON, Appellee.
    Case No. 5D17-2966
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 19, 2018 Rehearing Denied July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Patrick VALENTI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1814
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 12, 2018 Rehearing Denied July 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brendan Tremaine GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-4006
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brett D. HEBDON, Appellant, v. Marjorie KATEHAKIS, Appellee.
    Case No. 5D17-3559
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 5, 2018 Rehearing Denied August 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David M. MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1449
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018 Rehearing Denied July 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Denver Ivan WILSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-763
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018 Rehearing Denied July 27, 2018 Rehearing Denied August 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephen SIMON, Appellant, v. SANDHILL HAMMOCK, LLC, Appellee.
    Case No. 5D17-1374
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 26, 2018 Rehearing Denied August 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arthur AVERY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-988
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Theodore MATTEWS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1381
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jarbis MCCLURKIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1692
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael Jerome HOOD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1762
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Nestor Rivera ROJAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1116
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    K.D., Father of J.Z.C., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-113
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert D. ABRAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1463
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Reshawn COPELAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3944
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    DEPA HOTEL, INC., Appellant, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    Case No. 5D17-3547
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Katherine GILMER, Appellant, v. George GILMER, Appellee.
    Case No. 5D17-3078
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    King Lenard MALLORY, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1620
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ronald F. BULLARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1384
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Emmanuel J. ST. NATTIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1320
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Tony BERRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3072
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael Carleton ADAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4068
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    T.R., Father of J.R., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-1226
    District Court of Appeal of Florida, Fifth District.
    Decision filed July 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Conner, J.

text:
    Heath M. TRERICE, individually and in his derivative capacity, on behalf of Miljoco Corporation, a Florida corporation, Appellant, v. Howard O. TRERICE, an individual, and Miljoco Corporation, a Florida corporation, Appellees.
    No. 4D17-2726
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    John A. Tucker and Emily F. O'Leary of Foley & Lardner, LLP, Jacksonville, for appellant.
    Vijay G. Brijbasi of Dickinson Wright PLLC, Fort Lauderdale, and Daniel D. Quick of Dickinson Wright PLLC, Troy, Michigan, for appellee Howard O. Trerice.
   Conner, J.

Heath Trerice ("Appellant"), individually and in his derivative capacity on behalf of Miljoco Corporation ("Miljoco"), appeals the final judgment against him and in favor of Appellees, Howard Trerice ("Howard") and Miljoco.

Appellant raises five issues on appeal, some of which have sub-issues. We affirm the trial court's order determining it did not have personal jurisdiction over Howard and dismissing the case for forum non conveniens without discussion. We reverse the trial court's order regarding Appellant's motion for status quo. In light of our affirmance on the first two issues and our reversal on the third issue, we do not address the remaining issues.

Background

Miljoco is a Florida corporation created in 1981 by the parties' father and his wife, Brenda. Miljoco has its registered agent in Broward County, but its sole place of business has always been in Michigan.

The parties' father ran the business until his death in 2009. Before the father's death, he and Brenda owned 77.5% of the stock, Appellant owned 5%, and Howard owned 17.25%. Howard owned a larger percentage of the stock than Appellant because he worked with the father in the corporation. In July 2009, shortly after the father passed away, the family entered into the Trerice Family Resolution Agreement ("TFR") that provided the plan for Miljoco after the father's death to maximize the benefits of his estate plan. The TFR created a trust and provided for an adjustment in the stock ownership in Miljoco. Howard purchased some of the shares owned by the father and Brenda, increasing his ownership interest to 51%, Appellant retained 5% ownership, and the remaining 44% of the stock was be placed into a trust for the care of Brenda. The TFR is governed by Michigan law.

In addition to the TFR, as part of the estate plan, the parties entered into separate employment agreements with Miljoco. The employment agreements detail the parties' compensation and roles within Miljoco, and are also governed by Michigan law.

Brenda passed away in 2013, resulting in Appellant acquiring the 44% of Miljoco stock from her care trust, bringing his total ownership to 49%.

In March 2016, Appellant filed suit in Broward County, Florida, individually and in his derivative capacity on behalf of Miljoco, accusing Howard of overly compensating himself and his wife. An amended complaint alleged four counts: (1) breach of statutory fiduciary duty in violation of Section 607.0830(1), Florida Statutes ; (2) breach of common law fiduciary duty; (3) corporate waste; and (4) unlawful suppression of dividends. The counts did not differentiate between direct and derivative claims.

Howard filed a motion to dismiss the amended complaint arguing: (1) lack of personal jurisdiction over him; (2) forum non conveniens ; (3) failure to satisfy the statutory pre-suit demand requirement in Section 607.07401(2), Florida Statutes ; and (4) Appellant could not properly seek both direct and derivative relief.

Appellant filed a motion for entry of status quo order. The motion essentially sought injunctive relief to prevent Howard from: (1) distributing to himself or his wife company profits disguised as a bonus or other supplemental compensation; (2) using company funds to pay his legal fees; and (3) terminating (or adversely changing) his employment position with the company.

Howard filed a response to the status quo motion arguing that it did not establish any of the factors necessary to grant a temporary injunction. He contended the status quo motion was actually attempting to depart from the status quo by placing a cap on his compensation. Moreover, Howard argued that limiting his compensation via an injunction would be an adjudication on the merits.

The trial court held a hearing on the motion to dismiss the amended complaint and the status quo motion. The trial court decided to address the motion to dismiss first because, if granted, then no ruling would be necessary on the status quo motion. After concluding the hearing on the motion to dismiss and taking the motion under advisement, the trial court proceeded to consider the status quo motion and took that motion under advisement was well. No evidence or witnesses were presented at the hearing on either motion. The factual findings were based on the verified pleadings and numerous affidavits from both parties. No new arguments were presented. The parties made the same arguments as in their various responses and memorandums. The trial court requested that both parties submit proposed orders on both motions.

Howard submitted two proposed orders. It is unclear from the record on appeal whether Appellant submitted proposed orders. One of Howard's proposed orders granted the motion to dismiss on three grounds: (1) lack of personal jurisdiction; (2) forum non conveniens ; and (3) failure to satisfy the pre-suit demand requirement. The accompanying cover letter expressly noted that if the motion to dismiss was granted, "then entry of an order on the Motion for Entry of Status Quo Order is unnecessary."

Howard's proposed order granting the motion to dismiss also addressed the status quo motion in a summary fashion: "Plaintiff's pending motion is hereby DENIED AS MOOT." The separate proposed Order Denying Status Quo Motion treated the motion like a request for injunctive relief, addressed the merits, and denied relief. Both proposed orders had findings of fact to support the legal conclusions.

The trial court entered both of Howard's proposed orders, verbatim. Appellant moved for rehearing, arguing that: (1) the trial court should not have addressed additional matters after determining it did not have personal jurisdiction; (2) the separate order denying the status quo motion made findings of fact and law as to the merits of the case, unrelated to jurisdiction; and (3) the trial court should not have concluded that Appellant failed to make a presuit demand. After the trial court denied the motion for rehearing, Appellant gave notice of appeal.

Appellate Analysis

Because resolution of the issue we address involves matters of law and not fact, our review is de novo . Rippy v. Shepard , 80 So.3d 305, 306 (Fla. 2012).

Appellant argues that the trial court should not have entered the second order denying the status quo motion because the trial court relinquished jurisdiction to the Michigan court.

The cover letter accompanying the proposed orders reveals that Howard intended that entry of the separate order addressing the status quo motion would be inappropriate if the order dismissing the case was entered. The proposed order granting dismissal expressly stated that the status quo motion ("Plaintiff's pending motion") was deemed moot since the case was dismissed.

Appellant is correct that entering an order addressing the merits of the status quo motion was error. We are affirming without discussion the trial court's decision to dismiss the case for lack of personal jurisdiction and forum non conveniens . By dismissing the case on those grounds, the trial court determined it was without jurisdiction. "Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Griffith v. Fla. Parole and Prob. Comm'n , 485 So.2d 818, 821 (Fla. 1986) (quoting Ex Parte McCardle , 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868) ).

The loss of "jurisdiction" we are discussing has been previously referred to by us as "case jurisdiction," that is "the 'power of the court over a particular case that is within its subject matter jurisdiction.' " MCR Funding v. CMG Funding Corp. , 771 So.2d 32, 35 (Fla. 4th DCA 2000) (quoting T.D. v. K.D. , 747 So.2d 456, 457 n.2 (Fla. 4th DCA 1999) ). As we noted in T.D. , when a final judgment or a final order dismissing a case is entered, the court loses its "jurisdiction" over that particular case. T.D. , 747 So.2d at 457 n.2. The concept of "the power of the court over a particular case" is rooted in the notion that given the procedural posture of the case , the court is without authority to act. See 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd. , 92 So.3d 320, 321 (Fla. 1st DCA 2012) (Ray, J., concurring); T.D. , 747 So.2d at 457 n.2. Other courts have referred to the concept as "continuing jurisdiction" and "procedural jurisdiction." See, e.g. Paulucci v. Gen. Dynamics Corp. , 842 So.2d 797, 801 n.3 (Fla. 2003) ; U.S. Bank Nat'l. Ass'n v. Anthony-Irish , 204 So.3d 57, 60 (Fla. 5th DCA 2016) ; 14302 Marina San Pablo Place , 92 So.3d at 321 (Ray, J., concurring). As explained in Anthony-Irish : "Flaws in a court's procedural jurisdiction arise in a number of contexts." 204 So.3d at 60. Anthony-Irish gives the examples of a trial court entering an order prior to the filing of proper pleadings, granting relief beyond the scope of the pleadings, and entering additional orders after a voluntary dismissal or a final judgment that did not reserve jurisdiction for the specific purpose of entering those orders. Id. We conclude that ruling on the propriety of a pending motion for temporary injunction (the status quo motion) is an additional example of a trial court exceeding its "case," "continuing," or "procedural" jurisdiction, once it determines it must dismiss the entire proceeding. It is particularly inconsistent for a trial court to say it is not going to exercise judicial power because it does not have personal jurisdiction over one of the parties and to then exercise judicial power by making factual determinations to justify denying injunctive relief over that same party.

Having concluded the trial court erred in entering the separate order denying the status quo motion, we reverse and remand the case for the trial court to vacate that order.

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

Levine and Forst, JJ., concur.


author: Levine, J.

text:
    Charles ABEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4102
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Ashley D. Kay and Kevin J. Kulik of Kevin J. Kulik, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

Appellant was the chief financial officer and controller of a small company. Over the course of several years, appellant misappropriated more than $100,000 in company funds for his personal use. When the company's owners discovered this, appellant confessed to stealing money from them. In order to assist the owners with the investigation, appellant participated in an interview with two Boca Raton Police Department detectives. At that point, he was not under arrest. He was subsequently charged with and adjudicated guilty of one count of grand theft and one count of money laundering.

Appellant raises three issues on appeal, only one of which warrants discussion. At trial, after one of the interviewing detectives testified to the content of the police interview, the state sought to play a recording of appellant's interview for the jury. Appellant then objected, arguing that he was entitled to a hearing outside the presence of the jury regarding the voluntariness of his statement to the police. The court denied appellant's request for a hearing, which appellant argues constituted reversible error. Because the objected-to recording was cumulative to the detective's unobjected-to testimony, we affirm.

At trial, the jury heard testimony from one of the Boca Raton detectives who attended appellant's interview. She described appellant as fairly candid and "eager to get it off his chest" during the conversation. The detective explained that appellant admitted to stealing from the company in order to purchase a home. Appellant further confessed to the detective that this use of company funds was not authorized. During the interview, appellant explained how he transferred money from one of the company's accounts to another and then issued himself a cashier's check for $45,000 using the transferred funds. According to the detective, appellant estimated that he had taken roughly $125,000 through money transfers like this.

After the detective testified to this information, the state sought to move a recording of the interview into evidence and play the recording to the jury. At this point, appellant raised for the first time an issue of voluntariness, asking for a hearing on the voluntariness of his statements to the police. The court overruled the objection and denied appellant's request for a hearing.

The court then allowed the state to play the recording to the jury. In the recording, appellant admitted to taking funds from the business without authorization and described the process-previously testified to by the detective-by which he did so. During the interview, appellant also described additional unauthorized transactions that had not come up during the detective's testimony. Finally, he gave the $125,000 estimate that the detective had mentioned during her testimony.

Because appellant asserts a denial of due process in the form of a voluntariness hearing, our standard of review is de novo. Davis v. State , 227 So.3d 137, 139 (Fla. 4th DCA 2017).

In Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the United States Supreme Court established that a defendant who timely raises the issue of the voluntariness of his confession is entitled to an independent judicial determination of the voluntariness before the jury hears the confession. Id. at 376-77, 84 S.Ct. 1774. Florida courts have applied this rule to defendants who timely raise an issue of voluntariness. See Guess v. State , 579 So.2d 339, 340 (Fla. 1st DCA 1991), aff'd State v. Guess , 613 So.2d 406 (Fla. 1992).

It is of course the better practice that a defendant seeking to challenge the voluntariness of an inculpatory statement file a pretrial motion to suppress pursuant to Florida Rule of Criminal Procedure 3.190. See Smith v. State , 695 So.2d 864, 865 (Fla. 4th DCA 1997) (holding that trial court did not abuse discretion in denying request for voluntariness hearing that was not timely raised). Still, a defendant that does not file such a motion is entitled to a hearing on voluntariness outside the presence of the jury if he timely raises the issue.

However, no reversible error occurs when a defendant's voluntariness objection pertains to evidence that is duplicative of evidence already presented without objection. See Mathew v. State , 209 So.2d 234, 235 (Fla. 2d DCA 1968). In Mathew , the Second District found no reversible error when the defendant objected to the voluntariness of his admissions but later took the stand and testified to "essentially the same" admissions that he contended were involuntarily made. Id.

In this case, appellant raised his voluntariness objection only after hearing the detective's testimony summarizing the interview and appellant's confession to stealing $125,000. Notably, appellant did not object to that testimony, which the jury was then free to consider. Instead, appellant waited until the state's introduction of the recording to object. This objection was not timely, as the objected-to admissions contained in the recording were already the subject of unobjected-to testimony by the detective.

Because the recording was cumulative of properly admitted, unobjected-to testimony, appellant's objection was untimely. See id ; Smith, 695 So.2d at 865 . Therefore, we affirm.

Affirmed.

Warner and Taylor, JJ., concur.


text:
    Teresa N. LOVELASS f/k/a Teresa Hutchinson, Appellant, v. Christopher HUTCHINSON, Appellee.
    No. 4D17-1905
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    John D. Boykin of Ciklin Lubitz & O'Connell, West Palm Beach, for appellant.
    Robert D. Burgs of Robert D. Burgs, P.A., Plantation, for appellee.
   Levine, J.

The wife appeals a final judgment of dissolution of marriage. She raises three issues: whether the trial court incorrectly valued the martial portion of the husband's pension, whether the trial court erred in not allowing her to reopen the evidence to place an exhibit into evidence relating to the husband's accrued vacation and sick leave, and finally whether the trial court erred in sua sponte eliminating the unequal distribution the trial court previously awarded to the wife. We find the trial court did not err in valuing the husband's pension by using a 2.5% multiplier rather than the 3% multiplier that would become effective only upon the husband accruing twenty years of service. However, it did err in not allowing the admission of the husband's accrued vacation and sick leave and in eliminating the unequal distribution award on the basis that it was not pled. Thus, we affirm on the first issue and reverse on the second and third issues.

The parties were married in 2003 and a petition for dissolution of marriage was filed in 2016. At the time the petition was filed, the husband had been working for as a fireman for the City of Delray Beach for sixteen years. As a fireman, the husband received a pension that accrued from the beginning of his employment at a rate of 2.5% per year worked. The husband intended to work for twenty-five years as a fireman for the city. When the husband reached twenty years of service, the annual rate for the computation of retirement benefits would increase to 3% per year, and this higher multiplier would apply from the beginning of service. Nevertheless, at the time of filing, the husband had accrued only the multiplier of 2.5% per year.

The only expert who testified at trial was the husband's expert, Timothy Voit. Using the 2.5% multiplier, Voit calculated that the gross monthly benefit accumulated in the pension plan during the marriage was $2,254.80, of which the wife was entitled to one-half or $1,127.40. Voit used the 2.5% multiplier because his calculation was based on the amount of benefit that accrued as of the date of filing of the petition and did not take the husband's post-marital efforts into consideration.

The parties returned a week and a half after the close of evidence for closing arguments. At that time, the wife sought to reopen trial to introduce an exhibit reflecting the husband's accrued vacation and sick leave. The husband had not disclosed his accrued vacation and sick leave on his financial affidavits. The trial court declined to reopen trial and declined to admit any further evidence.

The trial court entered a final judgment of dissolution of marriage and later entered an amended and second amended judgment. The second amended judgment found that the wife was entitled to $1,127.40 per month for the husband's pension. Although the original final judgment of dissolution of marriage awarded an unequal distribution of marital assets in favor of the wife, the second amended judgment awarded an equal distribution, stating that the trial court was unable to award an unequal distribution because an unequal distribution was not pled. From this judgment, the wife appeals.

As to the first issue, we review de novo the determination of assets being either marital or non-marital, see Witt-Bahls v. Bahls , 193 So.3d 35, 37 (Fla. 4th DCA 2016), whereas the valuation of a marital asset is reviewed for competent substantial evidence, see Jordan v. Jordan , 127 So.3d 794, 796 (Fla. 4th DCA 2013).

The wife argues that the trial court erred in valuing the husband's pension utilizing the 2.5% annual multiplier rather than the 3% multiplier that will apply once the husband reaches twenty years of service. The husband testified that he intended to work for twenty-five years.

The husband argues that the trial court correctly valued his pension. He points to the fact that there is no penalty provision in his pension and that the trial court correctly valued the pension using the annual 2.5% multiplier at the time of filing with sixteen years of service.

Our analysis of this issue begins with the statute. Marital assets are defined by statute to include "[a]ssets acquired ... during the marriage, individually by either spouse or jointly by them." § 61.075(6)(a)(1), Fla. Stat. (2016). Marital assets also include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs." Id.

"Two principal methods have evolved whereby courts distribute and divide pensions: the 'immediate offset' method and the 'deferred distribution' method." Trant v. Trant , 545 So.2d 428, 429 (Fla. 2d DCA 1989) (citation omitted). Under the immediate offset method, one spouse receives the present value of his or her interest in the other spouse's pension either in cash or as an offset to the share of marital property. Id. Under the deferred distribution method,

the court determines what the employee's benefit would be if he retired on the date of the final hearing without any early retirement penalty. The court then multiplies this dollar amount by the percentage to which the other spouse is entitled. This method yields a fixed dollar amount which the awarded spouse receives from each of the employee's pension payments after retirement. Although it prolongs contact between the parties and raises the possibility of enforcement problems, this approach equally distributes the risk of forfeiture between the parties.

Id.

Both parties cite to Boyett v. Boyett , 703 So.2d 451 (Fla. 1997), as supporting their argument. Thus, Boyett is key to our analysis of this issue.

In Boyett , the issue was the value of the husband's retirement pension using the deferred distribution method. Under the terms of the plan, the husband would receive yearly benefits of 75% of his highest annual salaries. Id. at 451. He would incur a 2% penalty for each year he retired before the age of sixty-two. Id. at 453.

The Florida Supreme Court in Boyett stated that "the valuation of a vested retirement plan is not to include any contributions made after the original judgment of dissolution." Id. at 452. The Florida Supreme Court also adopted the view that "it is more equitable for the valuation to be made excluding any penalty for early retirement." Id. at 453. Thus,

[b]y valuing the retirement plan without penalty, the valuation recognizes that both parties are entitled to share in the benefits that have accrued during the marriage but which cannot be presently received without penalty. Both parties also get the benefit of the growth of that value simply because the payments are not received beginning at the time of dissolution.

Id. The court determined the "proper valuation to be the present value without penalty for early retirement because of the deferred distribution." Id.

Thus, the decision in the instant case turns on whether awarding 2.5% instead of 3% is a "penalty." We find that the application of a 2.5% multiplier instead of the 3% multiplier the husband could achieve after four years additional service is not a "penalty." Rather, the 3% is a bonus for the additional service the husband must perform in order to qualify for the enhanced retirement multiplier. This is consistent with the basic premise of Boyett that the "valuation of a vested retirement plan is not to include any contributions made after the original judgment of dissolution." Id. at 452. Clearly, in order to get the benefit of the enhanced multiplier, the husband needs to continue working during a period of time after the dissolution. Thus, we find the enhanced multiplier to be akin to a bonus for longevity in the husband's employment and unlike the penalty in Boyett .

Regarding the second issue, the wife contends that the trial court abused its discretion in refusing to reopen the trial to allow her to present evidence of accrued vacation and sick leave, which were not listed on the husband's financial affidavits. The denial of a motion to reopen a case is reviewed for abuse of discretion. Loftis v. Loftis , 208 So.3d 824, 826 (Fla. 5th DCA 2017).

In deciding whether to grant a motion to reopen to present additional evidence, a trial court should consider whether granting the motion "would unfairly prejudice the opposing party and whether it would 'serve the best interests of justice.' " Id. (citation omitted). Factors to consider in deciding whether to reopen a case include: "(1) the timeliness of the request, (2) the character of the evidence sought to be introduced, (3) the effect of allowing the evidence to be admitted, and (4) the reasonableness of the excuse justifying the request to reopen." Grider-Garcia v. State Farm Mut. Auto. , 73 So.3d 847, 849 (Fla. 5th DCA 2011).

In this case, the interests of justice favored reopening the case to allow the wife to introduce the exhibit into evidence. Although the husband was required to report any possible assets including accrued vacation and sick leave, he left this section of his financial affidavits blank. See Fla. Family Law Form 12.902(c); Dye v. Dye , 17 So.3d 1278, 1281 (Fla. 2d DCA 2009). Because of the husband's non-disclosure of these potential assets, the wife did not learn of their existence until after the close of the evidence. The husband cannot claim that he would be unfairly prejudiced by reopening the evidence when his own non-disclosure caused the wife's delay in seeking to introduce this exhibit.

In her last issue, the wife asserts that the trial court erred in sua sponte eliminating the unequal distribution it previously awarded to her on the basis that unequal distribution was not pled. A trial court's equitable distribution is generally reviewed for abuse of discretion, but is reviewed de novo to the extent the issue on appeal concerns a pure question of law. Mathers v. Brown , 21 So.3d 834, 837 (Fla. 4th DCA 2009).

The wife is correct that the trial court incorrectly found that it was unable to grant an unequal distribution because it was not pled. In David v. David , 58 So.3d 336, 338 (Fla. 5th DCA 2011), the court rejected the claim that the trial court "lacked the jurisdiction" to enter an unequal distribution of the parties' assets and liabilities because the wife did not plead for unequal distribution in her counter-petition. The David court noted that section 61.075(1)"expressly authorizes trial courts to enter an unequal distribution of marital assets and liabilities based upon relevant factors." Id. As such, we reverse for the trial court to reconsider the distribution award in light of David .

In sum, we affirm issue 1 and reverse issues 2 and 3 for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded .

Warner and Taylor, JJ., concur.


author: Gross, J. Conner, J., dissenting.

text:
    Wylie BILLUPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3623
    District Court of Appeal of Florida, Fourth District.
    [Jun 27, 2018]
    Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

This case is the story of what can happen when words in a case become detached from a legal principle, to float freely in the ether of Westlaw or Lexis like free radicals ready to trigger mutations in the law. Here we return such free floating words to their original meaning and affirm the sentences under review.

After a trial, appellant was convicted of four felonies: (1) Robbery with a firearm; (2) robbery with a firearm; (3) aggravated assault with a firearm; and (4) felon in possession of a firearm.

His original sentences were:

Count I: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;
Count II: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;
Count III: aggravated assault with a firearm, 5 years in prison, 3 year mandatory minimum, and
Count IV: felon in possession of a firearm, 15 years in prison, 3 year mandatory minimum.

Counts I, II, and IV were imposed consecutively, including the mandatory minimum provisions. Count III was imposed concurrently to Count I.

These sentences were the subject of our decision in Billups v. State , 219 So.3d 900 (Fla. 4th DCA 2017). Based on the Supreme Court's decision in Williams v. State , 186 So.3d 989 (Fla. 2016) , we held that the imposition of consecutive mandatory minimum sentences under section 775.087(2)(d), Florida Statutes (2008), was improper, because appellant's convictions arose from the same criminal episode and did not involve the discharge of a firearm. Billups , 219 So.3d at 900 ; see also Walton v. State , 208 So.3d 60, 64 (Fla. 2016). We reversed the sentences and remanded the case to the circuit court for resentencing.

At the resentencing hearing, appellant argued that the four sentences, in their entirety, had to be run concurrently, not just the mandatory minimum portions of the sentences.

The circuit judge commented that, from his review of the original sentencing hearing, it was "clear" that the sentencing judge (since retired) intended that appellant serve 75 years in prison. In response to appellant's argument that all sentences had to run concurrently, the judge observed that Florida's policy is not that crimes are "cheaper by the dozen" and that "when you have separate victims the court should be able to impose consecutive sentences."

The judge resentenced appellant as follows, nunc pro tunc to September 17, 2010:

Count I: 30 years in prison, with a 10 year mandatory minimum;
Count II: 30 years in prison, with a 10 year mandatory minimum, consecutive to Count I;
Count III: 5 years in prison, with a 3 year mandatory minimum, concurrent to Count I;
Count IV: 15 years in prison, with a 3 year mandatory minimum, consecutive to Count II.

Pursuant to this court's mandate, the court ran all the mandatory minimum portions of the sentences concurrently.

This sentencing scheme creates two theoretical sentencing gaps in Counts II and IV. For Count II, the 20 year portion of the sentence in excess of the mandatory minimum does not begin to run until the sentence in Count I has been completed. For Count IV, the 12 year portion of the sentence in excess of the mandatory minimum does not begin to run until the 20 year portion of the Count II sentence has been completed. The chart below provides a pictorial representation of the sentences:

Count 1 10 min man 20 years Count 2 10 min man - Break in sentence - 20 years Count 3 3 min Served man 5 years Count 4 3 min man - Break in sentence - 12 years

Needless to say, appellant would continuously serve his prison sentence until the end of the sentence in Count IV, so the gaps are theoretical only. Appellant would experience the sentence as one long continuous period of incarceration.

Appellant's challenge here is to these theoretical sentencing gaps, arguing that the Florida Supreme Court has held, "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." Segal v. Wainwright , 304 So.2d 446, 448 (Fla. 1974).

In construing a sentencing statute, a court must "give effect to legislative intent." Mendenhall v. State , 48 So.3d 740, 747 (Fla. 2010).

The legislature has been crystal clear in stating the intent behind section 775.087 -"that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law ." § 775.087(2)(d), Fla. Stat. (2017) (emphasis supplied). The Supreme Court has expounded on this legislative policy:

[T]he Legislature has very clearly mandated that it is the policy of this State to deter the criminal use of firearms. This mandate is underscored by the widespread promulgation of the 10-20-LIFE law beyond mere statutory notice, through television commercials, posters, and other forms of advertising. This policy is further underscored by the statement of legislative intent in section 775.087, which was added in 1999, see ch. 99-12, § 1, at 538-42, Laws of Fla., and the accompanying increase to the mandatory minimum sentence under section 775.087 from three years for all crimes to ten years for all crimes except aggravated assault, possession of a firearm, or burglary. Id.

McDonald v. State , 957 So.2d 605, 611 (Fla. 2007). As the Court noted in McDonald , in promulgating the 10-20-Life statute, the Legislature set forth the reasons that violations of the statute be punished to the "fullest extent of the law:"

WHEREAS, Florida ranks among the most violent states in the nation, and
WHEREAS, in 1975 the Florida Legislature enacted legislation requiring a minimum mandatory sentence of three years in prison for possessing a gun during the commission or attempted commission of a violent felony, and
WHEREAS, the Legislature enacted this mandatory penalty in order to protect citizens from criminals who are known to use guns during the commission of violent crimes, and
WHEREAS, the FBI reports that among persons identified in the felonious killings of law enforcement officers in 1997, 71% had prior criminal convictions, and one of every four were on probation or parole for other crimes when they killed the officers, and WHEREAS, criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida's citizens and to Florida's law enforcement officers who daily put their lives on the line to protect citizens from violent criminals, and
WHEREAS, the Legislature intends to hold criminals more accountable for their crimes, and intends for criminals who use guns to commit violent crimes to receive greater criminal penalties than they do today, and
WHEREAS, the Legislature intends that when law enforcement officers put themselves in harm's way to apprehend and arrest these gun-wielding criminals who terrorize the streets and neighborhoods of Florida, that these criminals be sentenced to longer mandatory prison terms than provided in current law, so that these offenders cannot again endanger law enforcement officers and the public, and
WHEREAS, there is a critical need for effective criminal justice measures that will ensure that violent criminals are sentenced to prison terms that will effectively incapacitate the offender, prevent future crimes, and reduce violent crime rates , and
WHEREAS, it is the intent of the Legislature that criminals who use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act ...

Id . at 611-12, quoting Ch. 99-12, Laws of Fla., at 537-38 (Emphasis added).

Against this mass of legislative intent emphasizing punishment, appellant relies on language plucked from Segal v. Wainwright , that "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." 304 So.2d at 448. That is a far narrower principle than appellant contends. The legal principle derives from situations where a defendant has been released from incarceration, whether on parole or otherwise. This is not the situation presented here, where appellant will continuously serve the sentence imposed by the circuit judge.

Segal involved a situation where a defendant was convicted of attempted robbery, sentenced to "not more than 5 years" and paroled. He then committed two crimes, for which he was convicted and sentenced to one year and for which his parole was revoked. He completed his sentence for the two crimes (apparently in a county jail) and was returned to the state custody "for completion of his initial robbery sentence." Id. at 447. He was paroled, arrested for robbery, convicted, sentenced to 9 years, and for which his parole was revoked. Id.

The Division of Corrections took the position that the defendant would not complete service of his initial 5 year sentence until after he served the subsequently imposed 9 year sentence. The Supreme Court rejected that approach in a situation where the defendant had been paroled on the initial 5 year sentence, was sentenced subsequently for later committed crimes, and was entitled to some credit on the 5 year sentence for time served on the one year sentence. Id. at 448.

As authority for the statement that a defendant "is entitled to pay his debt to society in one stretch, not in bits and pieces," Segal relied on State v. Coleman , 149 Fla. 28, 5 So.2d 60 (1941), a case which also involves a situation where a defendant was released from custody. The Coleman defendant was "committed to the county jail" to serve a six month sentence. Id. at 29, 5 So.2d 60. Five days later, without her consent, she was released from custody. Id. After she was free for "more than six months," the Dade County Sheriff took her into custody to serve the remainder of the six month sentence. Id. As the Supreme Court framed it, the question it had to "decide is whether the State can stay the running of a jail sentence prior to expiration, once it begins, without the convict's consent." Id. at 30, 5 So.2d 60.

The Supreme Court held that the Coleman defendant was entitled to release by way of habeas corpus, that the State could not split up the jail sentence without the defendant's consent, and commented that a "convict has a right to pay his debt to society by one continuous period of imprisonment." Id.

Both Segal and Coleman rest on the notion that a sentence of incarceration cannot be split by periods of freedom. That is not the situation in this case, where appellant will serve the mandatory minimums concurrently pursuant to Williams , but will serve the remainder of the sentences consecutively in one continuous period of incarceration. Unlike the situation in Segal , the crimes for which appellant was sentenced were part of the same criminal episode and he was sentenced for all crimes at the same time. Appellant's sentencing contention would require an absurd result-that a crime with multiple victims had to be punished the same as a crime with a single victim. Such a result is contrary to the expressed intent of the legislature in enacting the 10-20-Life statute.

We distinguish Smith v. State , 243 So.3d 415 (Fla. 4th DCA 2018). That case involved the sentencing of a defendant as a prison release reoffender, not a sentencing under the 10-20-Life statute, where only mandatory minimum sentences were required to be concurrent.

We acknowledge that other district courts of appeal have applied Segal's "bits and pieces" language beyond the fact situations present in Coleman and Segal to sentences involving continuous periods of incarceration. See Stroman v. State, 837 So.2d 1070 (Fla. 2d DCA 2003) ; Preyer v. State , 575 So.2d 748 (Fla. 5th DCA 1991) ; Rozmestor v. State , 381 So.2d 324 (Fla. 5th DCA 1980). None of these cases concerned sentences where a defendant was released from incarceration as in Segal and Coleman . None of these cases involve the 10-20-Life statute with its express legislative directive that offenders be punished "to the fullest extent of the law." § 775.087(2)(d), Fla. Stat. (2017). In cases with multiple victims, to allow the requirement of concurrent mandatory minimum sentences to handcuff a judge's sentencing options is to nullify the express legislative intent.

We agree with appellant's contention that the sentence calculates to 62 years, as set forth above.

Affirmed .

Gerber, C.J., concurs.

Conner, J., dissents with opinion.

Conner, J., dissenting.

Although the conclusion reached by the majority is very attractive, my understanding of the law constrains me to dissent. I contend this case is not a story of what can happen when words in a case become detached from a legal principle, but instead, this case raises the question of whether a statute has altered a common law rule of Florida. I also contend that the common law rule of Florida, relevant to this case, is that once a sentence begins, it is to be served continuously and without interruption. I do not agree with the majority that section 775.087, Florida Statutes, altered the common law. I disagree with the majority contention that the resentences for counts 2 and 4 impose "theoretical sentencing gaps"; instead, the sentence gaps are palpable ones, as concretely demonstrated in the majority's graphic. Finally, I contend our supreme court's opinion in Williams v. State , 186 So.3d 989 (Fla. 2016), as well as other supreme court case law and a substantial body of case law from this District and others, compels us to reverse the resentences imposed by the trial court for counts 2 and 4 after our last remand, and again remand the case for resentencing on those counts.

The premise of the majority's opinion is that the language that a "convict has a right to pay his debt to society by one continuous period of imprisonment," State ex rel. Libtz v. Coleman , 149 Fla. 28, 5 So.2d 60, 61 (1941), and "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces," Segal v. Wainwright , 304 So.2d 446, 448 (Fla. 1974), announces "a far narrower principle than appellant contends." More specifically, the majority contends that "[b]oth Segal and Coleman rest on the notion that a sentence of incarceration cannot be split by periods of freedom," which is not the factual situation presented in this case.

Part of my problem with this premise is that it ignores what I consider to be additional key language in Coleman . The majority correctly points out that the supreme court framed the question presented in Coleman as "whether the State can stay the running of a jail sentence prior to expiration, once it begins, without the convict's consent," but the court also said, "It is alleged and not denied that the sentence was interrupted without petitioner's consent ." Coleman , 5 So.2d at 61 (emphases added). The majority seemingly ignores the use of the word "stay" with regards to sentencing. It is difficult for me to conclude the language in Coleman is limited to situations in which a prisoner was improperly given release from a sentence. To me, the terms "stay" and "interruption," particularly in the context of what the State can do, connotes something more than the precise fact patterns discussed in Coleman and Segal .

It is also significant the manner in which our supreme court expressed itself regarding a criminal's "right to pay his debt to society by one continuous period of imprisonment." The court has said:

We recognize the general rule that a sentence to jail is executed only when the convict has actually suffered the imprisonment unless relieved by some competent authority. 15 Am.Jur. Criminal Law, Section 512.
A limitation to this general rule is sustained by logic and good authority. This limitation is to the effect that the convict has a right to pay his debt to society by one continuous period of imprisonment.

Coleman , 5 So.2d at 61 (emphasis added). It appears to me the court was clearly stating a Florida common law rule: once an incarceration sentence begins, it is to be served continuously and without interruption.

Additionally, I am concerned that the majority has overlooked some important language in its partial quote from Segal . The full quote is:

The most striking feature of this case, as reflected above, is respondent's apparent disregard of our oft-repeated holdings that a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces.

Segal , 304 So.2d at 448 (emphasis added). Again, it strikes me that the court is referring to a common law rule that once a prison sentence begins, it is to be continuous and uninterrupted.

As the majority correctly acknowledges, "other district courts of appeal have applied Segal's 'bits and pieces' language beyond the fact situations present in Coleman and Segal to sentences involving continuous periods of incarceration." What the majority fails to acknowledge, is that this District has also relied upon the "bits and pieces" language to resolve factual situations beyond those presented in Coleman and Segal , and even ones similar to the facts of the instant case. In Regisma v. State , 120 So.3d 144 (Fla. 4th DCA 2013), we recently upheld a sentence after stating, "Generally, Florida courts are without authority to impose 'piecemeal' sentences that are interrupted and, thus, divided without the defendant's consent." Id. at 146 (quoting Goodwin v. State , 752 So.2d 689, 691 (Fla. 1st DCA 2000) ); see also Francisco-Augustin v. State , 695 So.2d 1299, 1300 (Fla. 4th DCA 1997) (reversing on concession of error a sentence for count 2 in which a portion of the sentence ran consecutively to count 1 and the remainder ran concurrently with count 1, relying on Rozmestor v. State , 381 So.2d 324 (Fla. 5th DCA 1980) ); cf. Gordon v. State , 960 So.2d 31, 40 (Fla. 4th DCA 2007) (noting that serving time spent in jail on the weekends as a condition of probation was not a sentence that violates the rule that a defendant must serve his sentence in one stretch rather than in bits and pieces).

In addition to my concern that the majority is ignoring Florida common law, it appears the majority ignores what I understand to be a correct principle of law as pointed out by the Fifth District,

Unless there is specific statutory authority to impose a sentence, it cannot stand. And the language susceptible of differing constructions shall be construed most favorably to the accused.... [ Section 921.16, Florida Statutes (1979) ] provides for concurrent sentences or consecutive sentences, but not a combination . Divided or non-consecutive sentences have been uniformly disapproved in this state.

Rozmestor , 381 So.2d at 326 (emphasis added) (internal citations omitted). I respectfully submit that the majority is taking the statutory words "that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law," § 775.087(2)(d), Fla. Stat., and stretching those words to now authorize something that neither section 775.087 nor section 921.16 expressly provides for: incarceration sentences being divided and interrupted into portions so that they can be stacked consecutively and concurrently in various combinations. In other words, the majority is solving an alleged impropriety (detaching words from the moorings of a legal principle) with another impropriety (stretching words beyond their meaning to embrace a new legal rule). Other than the "fullest extent of the law" language quoted above, the majority can point to no other statutory language that allows sentences imposing a fixed period of incarceration to be divided into portions.

As early as 1855, our supreme court wrote:

It is an admitted canan [sic], applicable to the construction of statutes, that where a statute contravenes or alters a principle of the common law it must always be strictly construed.

Sealey v. Thomas , 6 Fla. 25, 33 (Fla. 1855). In 1912, the court said:

A statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required-that is to say, unless it be found that the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.

Cullen v. Seaboard Air Line R. Co. , 63 Fla. 122, 58 So. 182, 183 (1912) (quoting Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co. , 204 U.S. 426, 437, 27 S.Ct. 350, 51 L.Ed. 553 (1907) ). Seventy years ago, the court said:

Statutes in derogation of the common law and penal statutes should be strictly construed, and if there is any doubt as to their meaning, the courts should resolve such doubt in favor of the citizen.

State ex rel. Williams v. Coleman , 131 Fla. 892, 180 So. 357, 359 (1938).

Simply put, I agree with the logic and analysis of the Fifth District in Rozmestor :

In Segal v. Wainwright , 304 So.2d 446 (Fla. 1974), the Florida Supreme Court rejected the state's argument that the defendant should serve a five year robbery sentence with a one year sentence and a nine year sentence sandwiched between parts of the five year sentence. The court noted its "oft-repeated holdings that a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." Id. at 448. The sandwiching of parts of one sentence between another was rejected in that case. Whether consecutive or concurrent the prisoner must be allowed to serve his sentence seriatim and in one stretch rather than in bits and pieces.

Rozmestor , 381 So.2d at 326.

The case law demonstrates that the concept of serving an incarceration sentence continuously and without interruption is not a "free radical," but one grounded in a common law rule relied upon not only by our sister courts, but this Court as well. Although the majority focuses on the language from Segal regarding "bits and pieces," both this Court, as well as the Second District have expressly condemned a part consecutive and part concurrent sentencing scheme. The Second District, using the strong language that "imposing a prison sentence that is part concurrent with and part consecutive to another prison sentence is a punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances ." Stroman v. State , 837 So.2d 1070, 1071 (Fla. 2d DCA 2003) (emphasis added).

Shortly before oral argument in this case, this Court used similar (although not as strong) language, in Smith v. State , 243 So.3d 415 (Fla. 4th DCA 2018). In Smith , we said, "Imposing a sentence that is partly concurrent and partly consecutive to another sentence violates a defendant's right to 'pay his debt to society in one stretch, not in bits and pieces.' " Id. at 416, 2018 WL 1747825, at *1 (emphasis added) (quoting Segal , 304 So.2d at 448 ). In Smith , we demonstrated the grounding of the concept, anchoring the "bits and pieces" language to the impropriety of a part concurrent and part consecutive sentence. The majority's bid to distinguish Smith relies on a distinction without a difference, particularly where the majority relies on the intent of the 10-20-Life statute to reach its conclusion. Notably, in one of the cases it cites for that very purpose, our supreme court discussed how this Court found the intent for the Prisoner Reoffender Releasee statute to be the same as that of the 10-20-Life statute. See McDonald v. State , 957 So.2d 605, 609 (Fla. 2007) ("The Fourth District further concluded that the legislative intent expressed in section 775.087(2)(d) [the 10-20-Life statute], that violators be 'punished to the fullest extent of the law,' is the same clear intent expressed in section 775.082(9)(d)(1) [the Prisoner Reoffender Releasee statute] that was noted by this Court in Grant [ v. State , 770 So.2d 655 (Fla. 2000) ]." (emphasis added) ).

I completely agree with the majority and share the frustration of the trial court that if my position is correct, the common law and current status of the applicable statutes significantly "handcuffs" the trial court from trying to achieve the total length of time the trial court justifiably imposed at the original sentencing: 75 years of incarceration. However, I disagree that the common law and current status of the applicable statutes nullify the express legislative intent to punish "to the fullest extent of the law." In this case, because the sentence imposed for count 2 is illegal, on resentencing, the trial court has the option of imposing a more severe sentence for that count. See Harris v. State , 645 So.2d 386, 388 (Fla. 1994) (determining that a trial court can impose a habitual offender sentence on remand after the court has pronounced a non-habitual sentence in the original proceedings without violating the Double Jeopardy Clause because there was no expectation of finality when the defendant attacked the legality of the sentence); State v. Swider , 799 So.2d 388, 391 (Fla. 4th DCA 2001) ("A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant's double jeopardy rights."). I do not see the pre-existing common law rule that a defendant is to serve an incarceration sentence continuously and without interruption as so repugnant to any statutory provision that the survival of such right would in effect deprive the subsequent statute of its efficacy or render its provisions nugatory.

With regard to the ability to stack mandatory minimum sentences, I contend that the problem must be fixed by the legislature, rather than a judicial declaration that words in a case have become "detached" and "float ... like free radicals ready to trigger mutations of the law." Agreeing that a substantial body of prior case law is correct, I respectfully dissent.

      Williams stated this general rule applicable to this case:
      Generally, consecutive sentencing of mandatory minimum imprisonment terms [under the 10-20-Life statute] for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.
      186 So.3d at 993. We applied this general rule in ordering resentencing in this case. Billups , 219 So.3d at 900.


author: Damoorgian, J.

text:
    Alton Bernard MANOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0234
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Ramona L. Tolley of Ramona L. Tolley, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Alton Manor appeals his conviction and sentence for one count of burglary of a structure or conveyance, one count of grand theft, one count of criminal mischief, and one count of possession of burglary tools. Appellant argues that the prosecutor fundamentally erred by commenting on his silence at trial. We affirm.

While patrolling an industrial area at 11:30 p.m., an officer noticed a box truck parked behind a closed business. Appellant was sitting in the front passenger seat of the truck. After the officer observed several tools inside of the truck, including a bolt cutter and torches, he searched the area and discovered that the chain link fence surrounding a nearby tool rental business was cut open. Lined up along the outside of the compromised fence were several large tools belonging to the tool rental business.

During direct examination, the prosecutor asked the officer whether Appellant had an explanation for his presence in the parking lot that night. The officer responded, without objection, that when he approached Appellant and asked if everything was okay, Appellant did not respond or otherwise explain what he was doing in the parking lot. In closing argument, the prosecutor commented on Appellant's failure to explain his presence in the parking lot that night and specifically asked the jury to take that failure into consideration. Appellant, who did not testify at trial, failed to object to the prosecutor's comments. This appeal follows.

It is well established that "[a] defendant has the constitutional right to decline to testify against himself in a criminal proceeding." Rodriguez v. State , 753 So.2d 29, 37 (Fla. 2000). Accordingly, "[a]ny comment on, or which is fairly susceptible of being interpreted as referring to, a defendant's failure to testify is error and is strongly discouraged." State v. Marshall , 476 So.2d 150, 153 (Fla. 1985). The "fairly susceptible" test is a "very liberal rule." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986). When a defendant does not testify at trial, use of the defendant's pre-arrest silence "as substantive evidence of guilt violates the defendant's right against self-incrimination under the Florida Constitution." State v. Horwitz , 191 So.3d 429, 431 (Fla. 2016).

In the present case, there is no doubt that the prosecutor's comments on Appellant's failure to explain his presence in the parking lot that night are fairly susceptible of being interpreted as a comment on Appellant's silence at trial. See id. ; Rodriguez , 753 So.2d at 37-38. Nevertheless, Appellant did not object to the comments and we may therefore only reverse if the comments amounted to fundamental error. Under the facts of this case, we hold that none of the unpreserved comments rise to the level of fundamental error. See Spencer v. State , 842 So.2d 52, 75-76 (Fla. 2003) (recognizing that even erroneous comments on a defendant's failure to testify "do not require an automatic reversal"); Rodriguez , 753 So.2d at 39 (holding that the prosecutor's remarks that "[t]here were no two sides" or other theory of innocence advanced at trial, although "susceptible to interpretation as comments on the defendant's failure to testify and also to impermissibly suggest a burden on [the defendant] to prove his innocence," were harmless).

Affirmed.

Kuntz, J., and Fahnestock, Fabienne, Associate Judge, concur.


author: Gross, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Risbel MENDOZA and Vincente Jubes, Appellees.
    Nos. 4D16-1302 4D17-2286
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Kara Berard Rockenbach and David A. Noel of Link & Rockenbach, P.A., West Palm Beach, and John H. Richards of Boyd Richards Parker & Colonnelli, P.L., Fort Lauderdale, for appellant.
    Andrew Barnard and Garrett William Haakon Clifford of Barnard Law Offices, L.P., Miami, for appellees.
   Gross, J.

This is a case where an insurance company denied a homeowner's claim for water damage resulting from a water heater leak, asserting that the damage fell under a policy exclusion. A jury returned a verdict in favor of the homeowner. We reverse the final judgment because the judge improperly instructed the jury about a duty to adjust the claim and how to construe a contract, which transformed the case into a referendum on the quality of the adjuster's performance instead of focusing the jury on the factual issue of whether the loss fell under the policy exclusion.

The insured appellees, Risbel Mendoza and Vincente Jubes ("Insureds"), incurred water damage to their home caused by a water heater leak. The insureds filed a claim with Citizens Property Insurance Corporation, which sent an adjuster to investigate the claim.

Citizens denied the claim pursuant to the policy's constant or repeated seepage or leakage exclusion which provided that Citizens did not insure for loss caused by

Constant or repeated seepage or leakage of water or steam, or the presence or (sic) condensation of humidity, moisture or vapor; which occurs over a period of time, whether hidden or not and results in damage such as wet or dry rot, "fungi," deterioration, rust, decay or other corrosion.

At trial, Citizens offered testimony that the leak in this case was a continued and repeated seepage of water over a long period of time, which fell under the policy exclusion, and not a sudden and accidental discharge of water, for which there would have been coverage.

Over Citizens' objection, the trial judge instructed the jury regarding Citizens' "duty to adjust" the Insureds' claim:

• You are instructed that the law in Florida provides: Every adjuster shall adjust or investigate every claim, damage, or loss made or occurring under an insurance contract in accordance with the terms and conditions of the contract and the applicable loss of the state.
• So getting to those laws of the state, the duty to adjust. Florida administrative codes 69B220.201 is the rule and law which sets forth the ethical requirements in effect during 2013 and '14 which all adjusters are bound by.
• 626.878 rules, Code of Ethics. An adjuster shall subscribe to the code of ethics specified in the rules of the department. The rules shall implement the provisions of this part and specify the terms and conditions of the contracts, including a right to cancel, and require practices as necessary to ensure fair dealing, prohibit conflicts of interest, and ensure preservation of the rights of the claimant to participate in the adjustment of claims.
• The rule states an adjuster shall not approach investigations, adjustments, and settlements in a manner prejudicial to the insured.
• The rule states an adjuster shall make truthful and unbiased reports of the facts after making a complete investigation.
• The rule[ ] states an adjuster is permitted to interview any witnesses, or prospective witnesses, without the consent of the opposing counsel or party.

The trial court also instructed the jury regarding interpretation of the policy, over Citizens' objection:

• Disputed terms in the contract should be given the meaning used by the people in that trade, business, or technical field unless the parties agree that the disputed term should have another meaning.
• When two exclusions could cover the same loss, the more specific exclusion takes precedence over the general exclusion.
• If relevant policy language is susceptible to more than one reasonable interpretation, one providing for coverage and the other limiting coverage, the ambiguity must be resolved in favor of coverage for the insured.

In their closing argument, the Insureds claimed that the adjuster picked the wrong exclusion to deny their claim, that he should have picked the "more specific" exclusion over the "more general" exclusion, and that he violated the "duty to adjust." They asked the jury to construe the contract:

And the judge read you the rule. When it comes to specific versus general, you got to go with the specific. The specific controls, just like if you ordered roses for your girlfriend. And they brought back carnations and said hey, they're flowers. No. It doesn't work that way. You order the roses. You get the roses.

The Insureds complained about the way the adjuster denied the claim, asserting that it "was a violation of the ethical responsibilities. It is a violation of the ethical-of the adjuster's law. It is a violation of the contract itself where it says, we will adjust all losses."

The verdict form posed this question to the jury, "Did Citizens[ ] properly exclude the claim from coverage under the policy?" The jury answered "No" and awarded the insureds $22,000 in damages.

The central fact issue for the jury in this case was whether the Insureds' loss fell under the repeated seepage or leakage exclusion of the policy. If so, there was no coverage; if not, there was coverage. The main problem with the jury instructions and the Insureds' arguments at trial is that the jury could have decided the case solely because the adjuster did not "do a good job" regardless of whether the incident fell within the policy exclusion. The instructions focused on whether the adjuster "properly investigated" or "properly adjusted" the claim and talked about a code of ethics. While such considerations may be appropriate in a bad faith case, they have no place in a simple breach of contract action. See Citizens Prop. Ins. Corp. v. Calonge , 43 Fla. L. Weekly D855b (Fla. 3d DCA Apr. 18, 2018) (Rothenberg, J., dissenting). The Insureds were free to criticize the adjuster's conclusions without arguing that he breached a duty or obligation to them. If an adjuster makes a mockery of the code of ethics but the insurance company correctly denies a claim, there is no action for breach of contract .

A second problem with the jury instructions is that they tasked the jurors with a job reserved for the judge. The Insureds contended that a different exclusion (Exclusion 1.m.), in the policy trumped the one upon which Citizens relied; they argued that if Citizens were forced to rely exclusively on Exclusion 1.m., then there would have been coverage, because that exclusion applied only to property that had been "vacant" for more than 30 days.

The two exclusions are not in conflict. It was the trial judge's job to so inform the jury or to sustain objections to argument to the contrary. "It is well settled that the construction of an insurance policy is a question of law for the court." Jones v. Utica Mut. Ins. Co. , 463 So.2d 1153, 1157 (Fla. 1985). "However, it is for the jury to determine whether the facts of the case fall within the scope of coverage as defined by the court: '[w]hether a certain set of facts exists to bring a loss to the insured within the terms of a policy is an issue to be determined by the trier of fact.' " Id. (quoting State Farm Fire & Cas. Co. v. Lichtman , 227 So.2d 309, 311 (Fla. 3d DCA 1969) ).

We also note that the trial court applied the wrong standard in determining that a juror's nondisclosure of a prior insurance lawsuit was not material to jury service in this case. As the Florida Supreme Court stated in Roberts v. Tejada , 814 So.2d 334, 341 (Fla. 2002), a "[n]ondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror from the jury." (quoting Garnett v. McClellan , 767 So.2d 1229, 1230 (Fla. 5th DCA 2000) ).

The declaratory judgment entered in favor of the Insureds must also be reversed. Citizens never disputed the validity of the contract, and therefore there was no "bona fide, actual, present practical need for the declaration." Martinez v. Scanlan , 582 So.2d 1167, 1170 (Fla. 1991) (citation omitted).

For these reasons, we reverse and remand for a new trial on the breach of contract claim.

Gerber, C.J., and Ciklin, J., concur.

      In their initial claim to Citizens, the Insureds said that the estimated cost to repair the damage was $58,151.19.


text:
    Edward A. SPECTOR, individually, and Edward A. Spector, D.D.S., LLC, a Florida Limited Liability Company, Appellants, v. Cheryl UBER, Jean E. Sprague and Janine N. Meyer, Appellees.
    Nos. 4D17-1178 4D17-1179 4D17-1180
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Robin Bresky and Jeremy Dicker of Law Offices of Robin Bresky, Boca Raton, for appellants.
    Linda Elise Capobianco and Jerome A. Stone, Jr., of Stone & Capobianco, P.L., Stuart, for appellees.
   Damoorgian, J.

In this consolidated appeal, Appellants, Edward A. Spector and Edward A. Spector, D.D.S., LLC, appeal three separate final judgments entered in Appellees, Cheryl Uber, Jean Sprague, and Janine Meyer's, individual lawsuits against Appellants. For the reasons set forth below, we reverse the judgments entered in Ms. Uber's and Ms. Sprague's cases but affirm the judgment entered in Ms. Meyer's case.

Briefly, each Appellee separately sued Appellants in 2011. Appellants were represented by the same attorney in each case from the inception of the lawsuits until June 2, 2016, when the court entered identical orders in each case granting Appellants' counsel's motion to withdraw. The orders provided that until Appellants obtained new counsel, all future notices, pleadings, and orders should be served on Appellants at a designated mailing address. Neither Appellant obtained new counsel until they initiated the instant appeal.

Before to Appellants' counsel's withdrawal in Ms. Meyer's case, the court issued an order setting the case for trial. The service list reflects that this order was served on Appellants' counsel. Similar orders (with different trial dates) were issued in Ms. Uber's and Ms. Sprague's cases, but those orders were issued after Appellants' counsel withdrew. Despite the timing, the service list for the orders in Ms. Uber's and Ms. Sprague's cases reflect that the orders were also served on Appellants' former counsel and were not sent to Appellants at the address designated in the orders granting counsel's motion to withdraw.

Appellees' individual trials proceeded as scheduled in the court's orders setting the trials. Neither Appellant appeared at any of the trials. The juries found in favor of Appellees in each case and the court entered corresponding final judgments. On appeal, Appellants argue that these judgments are void for lack of notice.

"Whether a judgment is void is a question of law reviewed de novo." Vercosa v. Fields , 174 So.3d 550, 552 (Fla. 4th DCA 2015). It is well established that due process requires that "[e]very pleading and paper filed in any court proceeding must be served on each party or their counsel." Stevens v. Nationstar Mortg., LLC , 133 So.3d 628, 629 (Fla. 5th DCA 2014) (citing Fla. R. Jud. Admin. 2.516 ). "A judgment is void if, in the proceedings leading up to the judgment, there is '[a] violation of the due process guarantee of notice and an opportunity to be heard.' " Shiver v. Wharton , 9 So.3d 687, 690 (Fla. 4th DCA 2009) (alteration in original) (quoting Viets v. Am. Recruiters Enters. , 922 So.2d 1090, 1095 (Fla. 4th DCA 2006) ). Therefore, a final judgment is void if a party was not provided with notice of the hearing producing the judgment. Watson v. Watson , 583 So.2d 410, 411 (Fla. 4th DCA 1991) (reversing order denying motion to set aside a final judgment where the court did not mail the notice of trial to the party's correct address because "a judgment entered without notice to a party is void").

Here, the order setting trial in Ms. Meyer's case was sent to Appellants' counsel before counsel withdrew. Accordingly, the record reflects that Appellants were afforded proper notice in Ms. Meyer's case. See Niki Unlimited, Inc. v. Legal Servs. of Greater Miami , 483 So.2d 46, 49 (Fla. 3d DCA 1986) (service of notice of hearing upon party's counsel of record who had not yet officially withdrawn was sufficient to satisfy due process). Appellants'

suggestion that former counsel failed to inform them of the notice is immaterial to the issue of whether notice was properly provided. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co. , 56 So.3d 41, 43-44 (Fla. 3d DCA 2010) (when a party is represented by counsel and counsel is properly served with a notice of a proceeding, that the attorney did not communicate the notice with the client is not an excuse for non-attendance because "notice to the attorney constitutes notice to the client").

The Uber and Sprague judgments, however, present a different scenario. In those cases, the orders setting trial were served after Appellants' counsel withdrew. Although the orders of withdrawal provided that all papers and pleadings should be served on Appellants at a designated address, the notices setting trial were not served as ordered but were instead sent to Appellants' former counsel. This violated Appellants' due process rights and requires reversal. Stevens , 133 So.3d at 629 (holding that judgment of foreclosure was void where notice setting trial was served on defendant's former counsel after counsel withdrew instead of on defendant as provided in the order permitting counsel to withdraw).

Based on the foregoing, the judgments in Ms. Uber's and Ms. Sprague's cases, Case Nos. 17-1178 and 17-1179, are reversed and the cases are remanded for further proceedings. The judgment in Ms. Meyer's case, Case No. 17-1180, is affirmed.

Affirmed in part, reversed in part and remanded.

Klingensmith and Kuntz, JJ., concur.