text:
    T.L.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1907
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his adjudication of delinquency for possession of marijuana. He contends that a search conducted by the school resource officer violated the Fourth Amendment because no reasonable suspicion justified it. We agree and reverse.

The State filed a petition for delinquency against appellant, charging him with one count of possession of less than twenty grams of marijuana, a first-degree misdemeanor. Appellant filed a motion to suppress the evidence seized in a search of appellant during school. At the hearing, a school resource officer testified that appellant was seen in videos of a gang, and he had exhibited gestures associated with gang membership at school in the past. A video posted over nine months prior to this incident showed gang members singing lyrics that made the officer concerned that weapons might be brought to school. C.H., another student, appeared in some photos as another member of the gang. Appellant's gang and a rival gang were involved in altercations at school, but none involved weapons. In one of the gang photos, some members carried firearms, but not C.H. or appellant. The officer related a past incident of fighting at school involving appellant and rival gang members, which occurred about five months prior to the incident in question. However, no altercations involved weapons, nor did the officer have any reports of appellant having weapons.

On the date of the incident, appellant had engaged in a verbal altercation with rival gang members. Later that afternoon, the school nurse testified that she saw C.H., who was an office aide, use the bathroom in the nurse's office, which he sometimes was allowed to do. Less than five minutes later, she saw appellant go into the same bathroom. He was allowed to use that restroom because of medical issues and was escorted to the area by a security officer. She thought it was strange, because C.H. had just been in there and she knew about the earlier altercation. She knew C.H. and appellant were friends and they were both in the same "group." She had a "gut" feeling that something was not right, but she observed nothing to suggest that either child had weapons or drugs on them. She approached the resource officer and told him of her concern. He directed her to search the bathroom, which she did but found nothing unusual.

The officer then brought appellant in and began to search his backpack. School was about to let out, and he was concerned about what might happen in the bus loop. He explained that he wanted to be proactive, not reactive. He was searching to see if appellant had possession of any weapons. He had a hunch that there might have been an exchange of a weapon, although the nurse had never mentioned a weapon, and he had never observed appellant with one. He searched appellant's pockets and then directed him to remove his shoes, where the officer found a small amount of marijuana, for which appellant was ultimately charged. After hearing the evidence, the court denied the motion to suppress, stating that the totality of circumstances justified the search. After the adjudicatory hearing, the court found appellant guilty of possession of marijuana.

Review of the trial court's application of the law to the facts in connection with a motion to suppress in a delinquency proceeding is de novo. G.C. v. State , 207 So. 3d 366, 368 (Fla. 4th DCA 2016). The standard for a search and seizure by a school official is one of reasonable suspicion. See New Jersey v. T.L.O. , 469 U.S. 325, 341-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In T.L.O. , the Court relaxed the requirement for searches of students at school. Instead of probable cause, an official must have reasonable suspicion based upon the totality of circumstances:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the ... action was justified at its inception," Terry v. Ohio , 392 U.S. [1] at 20, 88 S. Ct. [1868] at 1879 [20 L.Ed.2d 889 (1968) ] ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Id. (footnotes omitted). The question of reasonable or founded suspicion for a search of a student is viewed from the standpoint of a reasonable officer with this officer's training and experience; the officer may take into account the facts known to him. G.C. , 207 So. 3d at 368.

Reasonable suspicion in the context of school searches may involve a variety of factors. These may include:

the child's age, history and record in school; the prevalence and seriousness of the problem in the school to which the search was directed; the exigencies in making a search without delay and further investigation; the probative value and reliability of the information used as a justification for the search; and the particular teacher or school official's experience with the student.

State v. D.T.W. , 425 So. 2d 1383, 1387 (Fla. 1st DCA 1983). But as noted in S.V.J. v. State , 891 So. 2d 1221, 1223 (Fla. 2d DCA 2005), "[a] 'gut feeling' or hunch that something is wrong does not constitute a reasonable suspicion to justify the search."

In this case, the officer acted solely on a hunch. Although the officer may have reasonably concluded that appellant belonged to the same gang as C.H., the officer had no information that appellant had ever possessed weapons, nor that any weapons had been used or carried into school by any gang members. The altercation that morning was verbal, not physical. And the nurse's concern that something was wrong with two gang members using the bathroom in close succession was based upon no articulable facts or observations.

The State relies on K.P. v. State , 129 So. 3d 1121 (Fla. 3d DCA 2013), but that case is distinguishable. There, school officials received an anonymous tip that K.P. was carrying a firearm at school. Id. at 1124. An assistant principal took K.P.'s book bag and removed K.P. from the room. Id. A search of the book bag showed a loaded handgun. Id. K.P. sought to suppress the evidence, but the trial court denied the motion. Id. The Third District affirmed, explaining that a search in a school setting requires modification of the level of suspicion of illicit activity needed to justify a search. Id. at 1125-27. Thus, although the anonymous tip may not have been sufficient to justify a search outside a school setting, it would be reasonable for school officials to search based upon this specific threat to school safety. In this case, however, there was no articulable threat to school safety, unlike the tip of a weapon on the student in K.P. There were no tips or observations suggesting that either appellant or C.H. had any weapons at any time. That there was a video, recorded over nine months before the incident, showing other gang members with guns does not provide any specific, articulable facts that would suggest that the appellant had a weapon with him at school on that day.

Because the search of appellant was based upon mere suspicion, it did not meet the test of T.L.O. and violated appellant's Fourth Amendment right. The unlawful search led to the discovery of the marijuana, and it must be suppressed. As this was the sole evidence upon which the adjudication was based, we reverse and remand to vacate appellant's adjudication and disposition.

Gross and Forst, JJ., concur.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    Franklin P. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-656
    District Court of Appeal of Florida, Fourth District.
    [May 29, 2019]
    Carey Haughwout, Public Defender, and Claire Victoria Madill, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Levine, J.

The issue presented for our review is whether the trial court made findings sufficient to demonstrate that the defendant's constitutional right to retaining the counsel of his choice was not arbitrarily denied. We find that where appellant was transported to the county just five days before trial, appellant became aware of that trial date only a few days before trial, and appellant's counsel of choice appeared on the day of trial requesting a two- to three-day continuance, the trial court erred in not granting the brief continuance for appellant to retain counsel of choice. Based on the facts of this case, we reverse and remand for a new trial.

Appellant was charged in Martin County with DUI, driving with a suspended license, possession of cannabis, possession of drug paraphernalia, resisting an officer without violence, and three counts of high speed or wanton fleeing. While appellant was being held in Palm Beach County on unrelated charges, the public defender's office represented appellant and, although appellant was not present, told the court that appellant was "fine" with scheduling this case for a January 29 trial.

Five days before trial, appellant was transported from Palm Beach County to Martin County for trial. On Monday, the day of trial, appellant's public defender told the trial court that appellant had a private attorney present whom appellant wanted to represent him. Although the public defender had met with appellant two or three times, was "familiar with everything" in the case, and "in theory" could proceed to trial, he was requesting a continuance for private counsel to take over appellant's representation. The public defender stated that after agreeing on January 2 to the January 29 trial date, he had not sent anything to appellant letting him know that the trial had been set for January 29. The public defender further stated that appellant became aware of the trial date only after meeting with the public defender the Thursday before.

The private attorney stated that she would like a continuance for two or three days so as to prepare for trial. The state responded that one of its law enforcement witnesses was expected to be unavailable on Thursday for the birth of his child. The state did not explain whether the witness would be unavailable beyond Thursday. Appellant again expressed his desire to continue the trial in order to hire the private attorney. The trial court responded that the attorneys were prepared and ready to go to trial and that "it's not like we have unprepared lawyers. If we have an unprepared lawyer I would be continuing it." The trial court denied appellant's request for a brief continuance in order to hire counsel of his choosing.

The case proceeded to trial. After the trial, appellant was convicted of possession of cannabis, resisting arrest without violence, driving with a suspended license, and a single count of high speed or wanton fleeing. From these convictions, this appeal ensues.

We review a defendant's request to discharge court-appointed counsel in favor of private counsel of his choice under the abuse of discretion standard. Bentz v. State , 251 So.3d 201, 204 (Fla. 4th DCA 2018). A wrongful denial of the right to be represented by a privately retained lawyer of defendant's choice, however, is prejudicial per se. Foster v. State , 704 So.2d 169, 174 (Fla. 4th DCA 1997).

It is of course axiomatic that "[t]he Sixth Amendment of the United States Constitution protects the right of a criminal defendant to be represented by the attorney of his or her own choosing." Alvarez v. State , 75 So.3d 420, 422 (Fla. 4th DCA 2011) ; see also Fla. Const., art. I, § 16. Although a criminal defendant has a Sixth Amendment right to select his own attorney, that right is not unfettered, nor is it absolute. See Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). One limitation on the right to counsel of choice is related to considerations of judicial administration. Foster , 704 So.2d at 173. Furthermore, a criminal defendant does not have the right to "delay or otherwise subvert judicial proceedings." Jackson v. State , 979 So.2d 442, 444 (Fla. 4th DCA 2008) (citation omitted).

Nonetheless, a request for a substitution of counsel on the eve of trial cannot be arbitrarily denied. Alvarez , 75 So.3d at 423. "[A] trial court ruling on a request for substitution on the eve of trial should focus on the balancing of the defendant's right to counsel of his own choosing with considerations of judicial administration." Id. at 422. "Although requests for substitution of counsel on the eve of trial are disfavored, we have held that this fact alone does not dispose of the balancing test to be undertaken." Bentz , 251 So.3d at 205.

Thus, regardless of when a request for substitution is made, the trial court must engage in an "adequate inquiry into the surrounding circumstances and make proper findings to show that the defendant's constitutional right is not being arbitrarily denied." Deal v. State , 145 So.3d 212, 214 (Fla. 4th DCA 2014) (citation and quotation marks omitted). The "[f]actors to be considered by the trial court include whether the motion is being made in bad faith or as a delay tactic; whether a continuance would prejudice the State; or whether the court's schedule would not permit a continuance." Valcarcel v. State , 201 So.3d 795, 798 (Fla. 4th DCA 2016) (citation and quotation marks omitted).

Applying these factors to the present case, it is apparent that the trial court erred in denying the request for a short continuance in order for private counsel of appellant's choosing to prepare to represent appellant at trial. Since appellant only found out that the trial was set for Monday, January 29 on the preceding Thursday, the request for private counsel to have a continuance for two to three days would appear not to be in bad faith or delay. Once appellant was made aware of the Monday trial date, private counsel was contacted, was in the process of being retained, and would have been ready for trial in two to three days.

As to prejudice to the state, the state only placed on the record that one of its law enforcement witnesses would not be available on one day, Thursday. The state did not claim on the record that the witness would not be available on that Friday, on the following Monday, or on some other day. The trial court could have proceeded with trial after a two- to three-day continuance without prejudicing the state and accommodating the state's concern that one witness would not be available that Thursday for trial.

Finally, as to whether the court's schedule would not permit a continuance, the trial court had already agreed to a continuance if the public defender was not "prepared" to proceed with trial. Since the public defender was "prepared," the trial court denied the motion to continue. But the fact remains the trial court's schedule was flexible enough to accommodate a continuance, only for a different stated reason.

Significantly, appellant did not merely want a second opinion or "another set of eyes to review his case" like the defendant in Bentz , 251 So.3d at 205. Appellant wanted the private attorney of his choosing to be his lawyer for the imminent trial. He had a specific attorney in court asking for a brief continuance, once again unlike Bentz , where the defendant "did not identify a specific lawyer." Id.

In summary, we find that the trial court abused its discretion in not granting a short continuance. The court did not make "proper findings" that the state would be prejudiced by the delay, that the request for continuance was made in bad faith, or that the trial court's schedule would not permit a continuance. See Deal , 145 So.3d at 214. Accordingly, we reverse and remand for a new trial.

Reversed and remanded .

Gross and Taylor, JJ., concur.


author: LEVINE, J.

text:
    Marlon A. ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1754
    District Court of Appeal of Florida, Fourth District.
    [May 29, 2019]
    Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

In this case, we consider whether the trial court erred in admitting evidence of an out-of-court identification of appellant by a witness, who was not present at the scene of the robbery, after viewing a surveillance video. We find the trial court erred in admitting this particular out-of-court statement since it was unlike the statements of the other two witnesses who were present at the robbery and whose statements bore the "the mark of reliability." Since this witness's out-of-court statement was not based on her own "visual memory of the event," but rather on her recognition of appellant from viewing a surveillance video, that out-of-court statement was inadmissible hearsay. Further, we find that the admission of this hearsay was not harmless error. Accordingly, we reverse.

Two masked men wearing gloves and hooded sweatshirts entered a CVS and pointed guns at the two store employees. After failing to get money from the safe, the robbers took money from the cash registers and left. The police interviewed the two employees at the scene. Both employees told the police in recorded interviews that appellant was one of the robbers. However, at trial both witnesses recanted the statements of identification they had made in the recorded interviews.

In the recorded interview, the first employee stated that the light skinned robber was appellant, who was the boyfriend of Brittany Harris, a former CVS employee who had been fired the day before the robbery. The employee told the police that she had seen appellant "thousands of times," including recently, and that appellant's aunt was the employee's best friend. Also in the interview, the employee stated she was "a thousand percent" sure appellant was one of the robbers. She told the police she recognized his voice, the "curly hair on his legs," his physical build, his skin tone, his height, and his size.

The police also interviewed the other employee, who was a manager. During the recorded interview, the manager said that she recognized the light skinned robber as Harris's boyfriend and that she had seen him at CVS three weeks earlier buying milk. The manager told the police she realized one of the robbers was appellant after the other employee said it was him. The manager also told the police she recognized appellant's skin tone and eyes.

Subsequently, the police showed a surveillance video of the robbery to Harris, a former employee who was not present during the robbery. In a recorded statement to the police, Harris identified appellant as one of the robbers after reviewing the surveillance video. She told the police that she recognized appellant from the way he moved, his skin tone, his height, and his physical build. She also told the police that she and appellant had been dating for almost a year.

Appellant was charged with robbery with a firearm while wearing a mask. At trial, the two employees recanted what they stated in the recorded interviews. Neither employee identified appellant in court. Harris identified appellant in the courtroom, but recanted her identification of appellant as one of the robbers and denied having been in a romantic relationship with appellant. Over defense counsel's hearsay objections, the trial court admitted into evidence the employees' and Harris's recorded interviews with the police.

Additionally, over defense counsel's Fifth Amendment objection, a detective testified that during a phone call between appellant and the detective, appellant hung up when the detective said that he was investigating a robbery. Defense counsel again objected when the detective testified that appellant never called him back. The trial court sustained the objection but denied a motion for mistrial. Appellant was convicted as charged, and this appeal ensues.

Appellant argues that the trial court erred in admitting Harris's recorded interview identifying him as one of the robbers in the surveillance video. Significantly, Harris was not an eyewitness.

Trial court decisions on the admissibility of evidence are reviewed for an abuse of discretion, as limited by the rules of evidence. Nardone v. State , 798 So.2d 870, 874 (Fla. 4th DCA 2001). "[W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Browne v. State , 132 So.3d 312, 316 (Fla. 4th DCA 2014) (citation omitted).

Section 90.801(2)(c), Florida Statutes (2016), states: "A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." The reasoning behind the rule is that "such statements bear the mark of reliability because they are usually made in close temporal proximity to the actual event while the witnesses' visual memory of the event is fresh." Stanford v. State , 576 So.2d 737, 739 (Fla. 4th DCA 1991). A statement of identification "refers to the witness seeing a person after the criminal episode and identifying that person as the offender." Id. at 740. The rule was not "intended to allow other out-of-court statements by a witness to others naming the person that the witness believes committed the crime." Id. "To extend the rule that far would permit countless repetitions by a witness to others, regardless of time and place, of the witnesses' belief as to the guilty party, a result we do not believe intended by the drafters of the rule." Id.

In Ibar v. State , 938 So.2d 451 (Fla. 2006), police showed six individuals who were acquaintances of the defendant-but not eyewitnesses to the crime-a photograph created from a video surveillance tape. These individuals testified at trial that when they were initially shown the photo, they identified the person in the photo as the defendant or someone who resembled the defendant. The supreme court adopted the reasoning of several district court opinions, including Stanford , and disproved of such evidence. The supreme court explained: "To expand the rule to allow as substantive evidence an out-of-court identification made by anyone who sees or is shown a picture of the defendant could result in the defendant being convicted through the testimony of persons who have no relationship or connection to the criminal offense." Id. at 462.

In this case, the trial court admitted Harris's recorded statement to police in which she identified appellant from a surveillance video of the robbery. As the state concedes, this was improper under Ibar . Harris's recorded out-of-court identification, unlike that of the other two eyewitnesses, would not be admissible under section 90.801(2)(c).

The state claims that the error was harmless because the employees identified appellant as the robber at the scene. Under the harmless error test, the state must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986).

Contrary to the state's contention, the error was not harmless. Identification was the central issue at trial. The state's argument ignores the fact that both employees and Harris recanted their identification of appellant as the robber at trial. Additionally, the state relied on Harris's pre-trial identification in closing arguments. Further, during deliberations, the jury requested a playback of all the recorded interviews, including Harris's. Given these circumstances, it cannot be said that the error was harmless beyond a reasonable doubt. See Banks v. State , 790 So.2d 1094, 1099 (Fla. 2001) (rejecting contention that error was harmless where the improperly admitted evidence implicated defendant, was used in arguments by the state to the jury, and the jury requested a read-back of the erroneously admitted statements during deliberations); Santana v. State , 191 So.3d 946, 948 (Fla. 4th DCA 2016) (finding error not harmless where jury requested during deliberations to listen to improperly admitted recording).

While this disposition renders appellant's remaining arguments on appeal moot, we briefly address the other issues raised by appellant to provide guidance in the event there is a retrial on remand. We first address the admission of hearsay evidence contained in the two employees' recorded statements. As noted above, section 90.801(2)(c) provides a hearsay exception for statements of identification. "Florida courts have limited the scope of section 90.801(2)(c) to exclude statements containing descriptions or accusatory narratives." Smith v. State , 880 So.2d 730, 739 (Fla. 2d DCA 2004), approved sub nom. Polite v. State , 116 So.3d 270 (Fla. 2013). As this court has explained:

We believe that the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says "that's the man." Hence, the phrase "identification of a person made after perceiving him" refers to the witness seeing a person after the criminal episode and identifying that person as the offender.

Stanford , 576 So.2d at 739-40 (footnote omitted).

In Puryear v. State , 810 So.2d 901, 903 (Fla. 2002), the Florida Supreme Court held that testimony concerning a victim's out-of-court description of her assailant was not admissible into evidence as a statement of identification because "a description is not an identification." See also Johnson v. State , 199 So.3d 433, 435-36 (Fla. 4th DCA 2016) (holding that "the victim's and the victim's friend's descriptions of the defendant as the one of the men who participated in the incident, as the responding officer's testimony recounted, do not qualify as non-hearsay 'statements of identification' under section 90.801(2)(c)"); Simmons v. State , 782 So.2d 1000, 1000 (Fla. 4th DCA 2001) (finding that testimony concerning the victim's out-of-court statement about his confidence in his ability to identify his assailant was not a statement of identification).

In this case, the recorded interviews of both employees contained descriptions or narratives that fell outside statements of identification. Thus, the recorded interviews admitted at trial may include only statements of identification.

Finally, with respect to evidence that appellant hung up the phone in response to the detective's statement that he was investigating a robbery, the trial court should note that Florida law differs from federal law on the issue of the admission of comments on a defendant's right to silence. Under federal law, a defendant's pre-arrest, pre-Miranda silence may be used as substantive evidence of a defendant's guilt where a defendant has not expressly invoked the privilege against self-incrimination. See Salinas v. Texas , 570 U.S. 178, 189, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). The Florida Supreme Court, in contrast, has concluded that "a defendant's privilege against self-incrimination guaranteed under article I, section 9 of the Florida Constitution is violated when his or her pre-arrest, pre-Miranda silence is used against the defendant at trial as substantive evidence of the defendant's consciousness of guilt." State v. Horwitz , 191 So.3d 429, 442 (Fla. 2016).

In summary, we find that the trial court erred in admitting out-of-court statements of identification made by a non-eyewitness to the crime. Accordingly, we reverse and remand.

Reversed and remanded .

GROSS and TAYLOR, JJ., concur.


author: SUAREZ, J. ROTHENBERG, C.J. (dissenting).

text:
    James FRATANGELO, et al., Petitioners, v. John OLSEN, Respondent.
    No. 3D18-1016
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2018 Rehearing Denied May 16, 2019
    Gunster, and Angel A. Cortinas and Jonathan H. Kaskel, Miami, for petitioners.
    Buchanan Ingersoll & Rooney PC, and Jennifer Olmedo-Rodriguez and Mark S. Auerbacher, Miami, for respondent.
    Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
   SUAREZ, J.

James Fratangelo et al. ("Fratangelo") petition for writ of certiorari and to quash the trial court's April 20, 2018 non-final Order, and to instruct the trial court to enter final judgment for Fratangelo, or, alternatively, to instruct the trial court to enter final judgment based on the twenty-six assets and remaining counts that were tried in the November 27, 2017 bench trial. We dismiss the petition, as Fratangelo has failed to show any required irreparable harm.

FACTS

James Fratangelo, John Olsen, and Daniel Coosemans together owned multiple limited liability companies ("LLCs") and subsidiaries formed to invest in and rehabilitate low or non-performing assets. Two primary LLCs are at issue in this appeal: 21-AMH, and AR23. Olsen was the original owner of 21-AMH, but Fratangelo eventually became a 50% owner. Effective January 1, 2013, Olsen and Fratangelo entered into purchase and sale agreements ("General Agreements"), to divest Olsen of his role in 21-AMH and to leave Fratangelo sole owner, at least on paper. Around March of 2014, Fratangelo and Olsen decided to part ways, and to wind up their multiple business relationships. Effective September 1, 2014, Olsen and Fratangelo entered into Amended Agreements wherein Olsen agreed to release Fratangelo from any and all claims arising before that effective date, including all claims arising from disposition of 21-AMH assets, including the subsidiaries. The Amended Agreements also provided for division of assets and an accounting for any missing, unknown, or concealed assets (the "Missing Assets").

Olsen ultimately sued Fratangelo for 1) breach of the 21-AMH agreement; 2) breach of the AR23 agreement; 3) joint venture; 4) declaratory relief; 5) equitable accounting; and 6) unjust enrichment. Olsen alleged that Fratangelo sold or transferred assets of 21-AMH and AR23 prior to the effective dates of the General and Amended Agreements, hiding these transactions from Olsen and thereby diminishing the number and value of missing assets.

FIRST TRIAL

The trial court dismissed Olsen's joint venture count and entered a partial final judgment in favor of Fratangelo regarding the Release, determining the Release was valid and enforceable, and that Olsen expressly agreed to extinguish any claims involving 21-AMH arising prior to September 1, 2014. The court found that Olsen had sufficient information to determine the identity of Missing Assets and to demand liquidation under the General Agreements, and had no membership interest in 21-AMH after the effective date of first General Agreement. The trial court directed the parties to prepare a joint list of all potential Missing Assets. The parties submitted a list of 525 potential Missing Assets.

• At the end of the discovery period, the trial court granted partial summary judgment in favor of Fratangelo by concluding 460 of the potential Missing Assets were actually sold and payment was made to Olsen.
• The trial court granted partial summary judgment in favor of Fratangelo on Olsen's claims regarding thirty-two additional assets, concluding those were not Missing Assets. Seven of those had been transferred to a subsidiary of 21-AMH.
• The trial court granted partial summary judgment in favor of Fratangelo on Olsen's claims regarding seven additional assets, concluding they had been charged off and Olsen had abandoned any claims to them.
• The trial court granted partial summary judgment on Olsen's breach of contract claims against five more assets, but allowed Olsen's claims as to those five assets to proceed for equitable accounting.

SECOND TRIAL

At the time of the second trial in front of a successor judge, only twenty-six assets remained to be determined. The trial court denied Olsen's motion to bifurcate the issues of liability and damages, and proceeded to conduct an eight-day bench trial, during which the trial court, upon considering new testimony and evidence, revisited and reversed several of the prior partial summary judgments. The trial court found that the parties were partners, and that disposition of certain assets prior to the September 1, 2014 Amended Agreement could result in cognizable claims against Fratangelo. The court found that Olsen did not release Fratangelo from claims arising out of those asset transfers, that Fratangelo had breached the General Agreements, and that Olsen was entitled to recover the value of assets transferred prior to September 1, 2014, and for revenue generated from all Missing Assets. The trial court determined that,

Based on the facts presented, the Court finds that the greater weight of the evidence shows Defendants breached obligations by failing and refusing to disclose and/or account for Missing Assets; failing to make appropriate distributions; and failing to provide cooperation in regards to documenting and liquidating or transferring "Transferred Assets."

The trial court ordered a third trial for equitable accounting, explaining that without such an accounting Olsen was not capable of fully quantifying his damages. Fratangelo moved for entry of final judgment and reconsideration of the non-final Order, arguing it was based on 1) an impermissible finding of an unpled partnership; 2) due process violations stemming from the un-noticed reconsideration and reversal of prior partial summary judgments; 3) erroneous retention of jurisdiction to allow Olsen to pursue an equitable accounting. The trial court denied the motion, and Fratangelo here petitions for a writ of certiorari seeking to quash that order and enter judgment in his favor.

ANALYSIS

We note that the Petitioners seek review of the trial court's non-final order via petition for certiorari, rather than by waiting until the litigation has concluded to take an appeal from the as yet undetermined Final Judgment. Therefore, our standard of review is not what it would be for an appeal from a final judgment. A non-final order for which no appeal is provided by rule is reviewable by certiorari only in extremely limited circumstances. The non-final order is reviewable only if the order is a departure from the essential requirements of law and thus causes material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal. See Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., 99 So.3d 450, 454 (Fla. 2012) ; Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) ); Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). The threshold question that must first be addressed by this Court, before we may address the petition itself, is whether there is a showing of a material injury/irreparable harm that cannot be corrected on appeal. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So.3d 344, 351 (Fla. 2012) (holding that before certiorari can be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question of whether there is a material injury that cannot be corrected on appeal). Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the essential requirements of law. Id.

We first consider the threshold jurisdictional issue of irreparable harm. Fratangelo claims that as a result of the trial court's non-final order he has suffered prospective loss of business and impaired relationships with employees and vendors. He asserts he has suffered irreparable harm because 1) companies with which he previously did business, or was negotiating to do business with, have been reluctant to engage in business with him; 2) prospective lenders have notified him that his reputation stemming from this lawsuit may impair his ability to conduct future business; 3) prospective principals to a proposed new company have expressed "concern and reluctance" to proceed as a result of the trial court's order; and 4) some of his employees have received negative emails about their employment with Fratangelo's companies. As a matter of law, however, none of these claimed damages rise to the level of an irreparable injury that cannot be addressed on appeal from a final judgment. Fratangelo's claims of reputational harm and others' "reluctance" to engage in prospective business deals are too prospective and speculative in nature to invoke the certiorari jurisdiction of this Court, which may be exercised only upon a proper, legally recognized showing of irreparable harm. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla. 1987) (recognizing that to establish the type of irreparable harm necessary in order to permit certiorari review, a party cannot simply claim that continuation of the lawsuit would damage one's reputation); Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1042 (Fla. 5th DCA 2007) (stating irreparable harm cannot be premature or speculative). Without this threshold showing of irreparable harm, Fratangelo has not met the required jurisdictional threshold for us to consider the petition and, therefore, the petition for certiorari must be dismissed.

We write further only to state that, even had that jurisdictional threshold been met, certiorari would still not be an appropriate remedy. Fratangelo's due process arguments fail to consider that prior to final judgment, a successor judge has the power to vacate or modify a predecessor's interlocutory rulings, such as an order on a motion for summary judgment. Because the trial judge here had not entered a final judgment in the case, he could modify his previous rulings and those of his predecessor. See Tingle v. Dade Cty Bd. of Cty Commissioners, 245 So.2d 76, 78 (Fla. 1971) (successor judge may "vacate or modify the interlocutory rulings or orders of his predecessor in the case."); Wasa Int'l Ins. Co. v. Hurtado, 749 So.2d 579 (Fla. 3d DCA 2000). To be sure, the facts became more fully developed once the litigation entered the second trial phase. During the second trial phase, the court found substantial competent evidence that Fratangelo breached the General Agreements by hiding and transferring assets for his own gain. Fratangelo has not made any convincing argument that the equitable accounting ordered by the trial court is error. Indeed, after hearing the evidence presented, the trial court specifically held that the contract demands between the litigants involve extensive or complicated accounts and that it was not clear that the remedy at law is as full and adequate as it is in equity. In light of the 8-day bench trial during which the trial court heard extensive additional evidence and weighed the credibility of multiple witnesses, the trial court was free to revisit any prior interlocutory, non-final orders entered by the predecessor judge - including, but not limited to, the findings of fact and conclusions of law made by the predecessor judge in the September 6, 2016 Order. Accordingly, we find the Petitioner's due process arguments and reliance on St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377, (Fla. 2d DCA 1998), and Levy v. Ben-Shmuel, 255 So.3d 493 (Fla. 3d DCA 2018), to be inapposite, as the facts in both of those cases arose out of final judgments and not, as here, from a non-final order. This litigation is not ended, and until a Final Judgment is rendered, the Petitioners have not met their burden to establish either irreparable harm or a departure from the essential requirements of the law.

Having found no material or irreparable harm that cannot be remedied on appeal from a final judgment, we dismiss the petition.

Lagoa, J., Concurs.

ROTHENBERG, C.J. (dissenting).

The petitioners, James Fratangelo ("Fratangelo") and several of his companies, 21 Assets Management Holdings, LLC ("21-AMH"), Assets Recovery 23, LLC ("AR23"), BLB Trading, LLC ("BLB"), AMH-21 Trust, AMH 21, LLC ("AMH 21"), Assets Recovery 24, LLC ("AR24"), and Assets Recovery 27, LLC ("AR27") (collectively, "the petitioners"), seek certiorari review of the trial court's non-final April 20, 2017 order issued after a bench trial. Because the record reflects that the trial court departed from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on direct appeal, the petition should be granted.

The Underlying Lawsuit

Fratangelo, respondent John Olsen ("Olsen"), and Daniel Coosemans ("Coosemans") entered into a business relationship in 2007 wherein they formed limited liability companies for the purpose of purchasing performing and non-performing first and second mortgages, home equity loans, lines of credit, credit card debt collections, non-performing auto loans, and REO properties ("distressed assets"). Through these limited liability companies, the parties improved the performance of the loans and the payment of debts or liquidated them for a negotiated cash settlement. The parties' relationships were governed by fully integrated limited liability company operating agreements.

There were three sets of companies, which the parties generally refer to as the "Miami Companies," the "Panama Companies," and the "Virgin Island Companies." The Miami Companies included 21-AMH and its subsidiaries, BLB, AMH-21 Trust and AMH 21. The Panama Companies included AR23, AR24, and AR27. The Virgin Island Companies included various companies, which will not be identified as they are not relevant to this petition. At various times, the parties were members of and managed their businesses through two primary limited liability companies: (1) 21-AMH, the Miami Company, operated by Fratangelo and Olsen; and (2) AR23, the Panama Company, which was managed by Coosemans.

In August 2011, Olsen withdrew from AR23 and thereafter Fratangelo and Coosemans each had a 50% membership in AR23. The operating agreement was therefore amended to reflect that as of August 2011, Olsen had no membership interest in AR23.

On January 1, 2013, Olsen also entered into a purchase and sale agreement with Fratangelo ("the original 21-AMH agreement) wherein he divested his membership interest in 21-AMH (the Miami Company). Pursuant to this agreement, Fratangelo was to pay Olsen $ 300,000 within 24 months; Olsen was to receive the redemption assets listed on Schedule A and the sold assets listed on Schedule B; and Fratangelo was to receive the assets listed on Schedule C.

Although, as of January 1, 2013, Olsen no longer had an ownership interest in 21-AMH, and he never had an ownership interest in any of the 21-AMH subsidiaries, Olsen continued to maintain a working relationship with Fratangelo and worked as the asset manager of one of Fratangelo's companies, Asset Recovery Management Co.

On September 1, 2014, Fratangelo and Olsen executed an amended and restated purchase and sale agreement ("the amended 21-AMH agreement") which was then attached to and incorporated into the original purchase and sale agreement. The amended 21-AMH agreement provided that Olsen would receive millions of dollars in assets in exchange for signing a broad release, whereby Olsen agreed to release and forever discharge Fratangelo and 21-AMH from any and all claims related to Fratangelo's acts or omissions prior to September 1, 2014. Olsen also agreed to assume 21-AMH's non-bank debt in exchange for additional assets.

The amended 21-AMH agreement also provides for the distribution of assets not listed on Schedules A, B, or C, and which were referred to in the amended 21-AMH agreement as the "missing assets." The "missing assets" provision of this agreement, however, limited the distribution of the "missing assets" to those assets owned by 21-AMH prior to the "effective date," which was the date Fratangelo and Olsen entered into the amended 21-AMH agreement: September 1, 2014. Paragraph 3.(g) of the amended 21-AMH agreement provides in relevant part as follows:

Missing Assets.... In the event as of the Effective Date any of the Asset Companies owns any other assets (other than its interest in entities that are parties to this Agreement, and other than as set forth in clause (h) below), either directly or indirectly, then Fratangelo (the "Paying Partner ") shall pay Olsen ("the Payee Partner ") one-half (1/2) of the net market value of such asset.

The procedure for distribution of the missing assets was also provided. Olsen was required to make a written demand for his 50% share of the net market value of an identified missing asset; Fratangelo would confirm that the asset identified by Olsen was an asset owned by 21-AMH as of September 1, 2014 and was not listed on Schedules A, B, or C; Fratangelo would sell the missing asset; and then Fratangelo would distribute 50% of the net market value of the missing asset to Olsen.

However, as already stated, the amended 21-AMH agreement also included a broad release whereby Olsen agreed to release and forever discharge Fratangelo and 21-AMH from any and all claims related to Fratangelo's acts or omissions prior to September 1, 2014. The release language in paragraph 4.3. of the amended 21-AMH agreement provides as follows:

Seller hereby waives, releases and forever discharges Fratangelo and the Company from and against all manner of actions, cause and causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, obligations, liabilities, costs, expenses, losses, damages, judgments, executions, claims and demands, of whatever kind and nature, in law or in equity, whether known or unknown, whether or not concealed or hidden, arising out of or relating to any matter, cause or thing whatsoever, that Seller may have had or now has by reason of any matter or thing whatsoever arising out of any or in any way connected to the Company or the Redemption Assets, excluding the obligations of Fratangelo and/or the Company hereunder, under that certain General Agreement among Fratangelo, the Company, Olsen and other parties thereto dated as of September 1, 2014 and that certain [sic] General Agreement among Fratangelo, Daniel Coosemans, Olsen and other parties thereto dated as of September 1, 2014 (collectively, the "General Agreements .").

After executing the amended 21-AMH agreement, Olsen came to believe that in the months prior to the agreed-upon September 1, 2014 effective date, Fratangelo and 21-AMH sold or transferred assets of the Asset Companies, thereby diminishing the number and value of the missing assets. Olsen sued the petitioners for: (1) breach of the 21-AMH amended agreement (referred to as the "General Agreement"); (2) breach of the AR23 agreement; (3) joint venture; (4) declaratory relief; (5) equitable accounting; and (6) unjust enrichment. Olsen's count for joint venture sought to pierce the corporate veil of the various limited liability companies and have the trial court declare that Olsen and Fratangelo were joint venturers.

The Trial Court's Interim Rulings

A. Olsen's claim for joint venture

Olsen sought in his amended complaint to have his relationship with Fratangelo and Coosemans declared a joint venture. In order to establish the existence of a joint venture, Olsen sought to pierce the corporate veil of the various limited liability companies in which he and Fratangelo were associated. On January 11, 2016, the trial court (Judge Jennifer Bailey) granted the petitioners' motion to dismiss Olsen's joint venture claim (count III), but gave Olsen ten days to amend count III. Olsen failed to amend his joint venture claim. Olsen therefore abandoned his joint venture claim thus leaving intact the designation and protections provided to limited liability companies.

B. Olsen's motion for a temporary injunction

Olsen sought to enjoin the sale or transfer of the petitioners' assets. On February 9, 2016, Judge Bailey conducted a hearing on Olsen's motion for injunctive relief and denied the motion.

C. Partial final judgment following a bench trial

In order to limit the issues, Judge Bailey bifurcated the case and conducted a two-day bench trial on the petitioners' affirmative defense of release. The issue tried was the effect of the release language contained in the amended 2l-AMH agreement and Olsen's claims regarding asset transfers between January 1, 2013 and September 1, 2014.

It was undisputed that in 2013, when Olsen and Fratangelo decided to seek financing in the amount of $ 10 million, and because Olsen had outstanding IRS tax liens of approximately $ 1.5 million, which would have precluded obtaining the financing, Olsen agreed to be removed from the company. 21-AMH's counsel prepared the necessary documents, including an assignment of Olsen's membership interest and a purchase agreement for the sale of Olsen's interest in 21-AMH to Fratangelo. Olsen acknowledged that he signed the assignment of his membership interest transferring his membership interest to Fratangelo as of January 1, 2013.

Between January 1, 2013 and August 2014, Olsen continued to work with Fratangelo as an asset manager. Olsen testified that during that time he participated in management and decision making regarding 21-AMH, he had access to the database of all 21-AMH's assets, and he was intimately involved in the daily operations of the company. However, in August 2014, when Olsen came back from vacation, he discovered that Fratangelo had vacated the premises with the employees and the company's records and files. As a result, the parties' longtime transactional attorney, who took a neutral position regarding Olsen and Fratangelo because she had represented them both over the years, drafted the 2014 agreements. These documents were signed by Olsen and Fratangelo on October 1, 2014, and made effective September 1, 2014. The signed documents contained a general agreement, an amended purchase and sale agreement, and the release provision previously provided in this opinion, and which was the subject of the bifurcated trial.

At the bifurcated trial, Olsen claimed that between January 2013 and September 2014, Fratangelo transferred assets from 21-AMH to other companies he unilaterally controlled without Olsen's consent or authorization. Fratangelo contended that he had the authority to sell these assets because he was the sole owner of 21-AMH during that time, but more importantly, he contended that any transfers from 21-AMH between January 21, 2013 and September 1, 2014 were not subject to Olsen's claims because Olsen signed the release releasing Fratangelo from any claims regarding these assets.

Judge Bailey issued a partial final judgment following the bifurcated trial, finding for Fratangelo on his affirmative defense of release on September 6, 2016. Specifically, Judge Bailey found that the amended 21-AMH agreement and the release language in paragraph 4.3.1 were clear and unambiguous, and that pursuant to the release, Olsen specifically released Fratangelo and "the Company" from all actions and against all sums of money and accounts "known or unknown, whether or not concealed or hidden."

Judge Bailey noted that "[t]here is no warranty with regard to the assets here.... The parties agreed to accept asset distribution free and clear of any issues with regard to each other, the company as well as their respective assets." Judge Bailey additionally noted that during that time Olsen and Fratangelo were adversaries; it was undisputed that Olsen had sufficient documents under his own control to double-check that each of the assets had been accounted for; and he should have performed due diligence before he signed the agreement which contained an extremely broad release. Thus, Judge Bailey concluded that although Olsen may now regret signing the release, he signed as a sophisticated business person, the release is valid and binding, Fratangelo is not liable to Olsen for claims arising from 21-AMH's asset transfers between January 1, 2013 and September 1, 2014, and thus Olsen is only entitled to 50% of the net market value of the missing assets owned by 21-AMH on September 1, 2014.

D. The potential missing assets

Following the issuance of Judge Bailey's partial final judgment granting Fratangelo's affirmative defense of release, the parties prepared a Joint Missing Asset List, which listed 525 potential missing assets. On February 16, 2017, the trial court granted partial summary judgment in favor of the petitioners, concluding that 460 of the 525 potential missing assets were missing assets that had been sold and for which Olsen had been paid.

On March 16, 2017, the trial court granted partial summary judgment in favor of the petitioners regarding an additional thirty-two of the potential missing assets, concluding that they were not missing assets.

On November 16, 2018, the trial court granted partial final judgment in favor of the petitioners regarding an additional twelve assets, thus leaving only approximately twenty-six potential missing assets to be tried.

E. The trial court's pre-trial rulings

In November and December 2017, the successor judge, Judge William Thomas ("the successor judge"), conducted an eight-day bench trial regarding the remaining potential missing assets. Prior to trial, the successor judge:

(1) granted the petitioners' motion in limine to preclude Olsen from submitting any evidence contrary to the partial final judgment issued by Judge Bailey on September 6, 2016; and
(2) denied Olsen's motion to bifurcate the trial on issues of liability and damages.

The Trial

A. The trial court failed to honor its pre-trial rulings and other prior judgments rendered during the litigation

Based on the successor judge's pre-trial rulings, the petitioners proceeded to trial on the remaining twenty-six potential missing assets expecting that the trial court would honor its rulings. Thus, based on the successor judge's pre-trial rulings, no evidence should have been introduced concerning: (1) any unpled partnership; (2) any assets other than the remaining twenty-six potential missing assets; or (3) the transfer or disposition of any assets between January 1, 2013 and September 1, 2014, and Olsen was required to prove all of his remaining claims at the bench trial, not have a second bite of the apple following the trial.

The record, however, reflects that the successor judge failed to honor his pre-trial rulings and allowed Olsen to try, over strenuous objection by the petitioners, his unpled claim of partnership; allowed Olsen to introduce evidence in support of Olsen's claim that he had an ownership interest in 21-AMH after January 1, 2013; sua sponte reversed his prior summary judgment order regarding seven assets and allowed Olsen to introduce evidence regarding these assets; retried the issue of the release contained in the amended 21-AMH agreement; and concluded that the disposition of assets prior to September 1, 2104 were subject to Olsen's claims.

The successor judge then concluded that Olsen and Fratangelo were partners in a joint venture, despite: Judge Bailey's dismissal of Olsen's joint venture claim without prejudice; Olsen not amending his complaint to plead either a joint venture or a partnership; and Fratangelo's objections to defending against an unpled claim with no notice. Also without notice, in direct violation of his own pre-trial ruling, and in contravention of Judge Bailey's order granting summary judgment in favor of the petitioners on their defense of release, the successor judge: found that Olsen did not release the petitioners from claims arising out of asset transfers prior to September 1, 2014; allowed Olsen to present evidence and make argument regarding the disposition of assets prior to September 1, 2014; concluded that Fratangelo's unauthorized transfers of assets was not protected by the release provisions contained in the amended 21-AMH agreement; and the petitioners were liable to Olsen for these assets.

B. The trial court departed from the essential requirements of law

A denial of due process is a per se departure from the essential requirements of law requiring certiorari relief. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) ("Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void") (quoting State v. Smith, 118 So.2d 792, 795 (Fla. 1st DCA 1960) ).

There is nothing more fundamental than the right to notice and a meaningful opportunity to be heard. "Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue, and requires fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner." Crosby v. Fla. Parole Comm'n, 975 So.2d 1222, 1223 (Fla. 1st DCA 2008) ; see also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (holding that the notice required to satisfy due process must reasonably convey the required information, apprise interested parties of the pendency of the action, and afford them a meaningful opportunity to present their objections); Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001) ("Procedural due process requires both fair notice and a real opportunity to be heard.").

(1) The petitioners were denied procedural due process when they were forced to defend against an unpled claim at trial

The petitioners were denied procedural due process where, without notice, the trial court permitted Olsen to present evidence on a claim dismissed by the predecessor judge, and then awarded relief on Olsen's unpled claim. As this Court has repeatedly held, it is error to allow a plaintiff to proceed on an unpled claim and for the trial court to assess liability on the unpled claim. See Sunbeam Television Corp. v. Mitzel, 83 So.3d 865, 875 (Fla. 3d DCA 2012) ; see also Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 995 (Fla. 3d DCA 2010) (disapproved on other grounds) (holding that "when a plaintiff pleads one claim but tries to prove another, it is error for a trial court to allow the plaintiffs to argue the unpled issue at trial); Michael H. Bloom, P.A. v. Dorta-Duque, 743 So.2d 1202, 1203 (Fla. 3d DCA 1999) ("It is well settled that a defendant cannot be found liable under a theory that was not specifically pled.").

It is also well-settled law that a trial court lacks jurisdiction to enter judgment on an issue not raised by the pleadings. See Bank of Am., N.A. v. Nash, 200 So.3d 131, 135 (Fla. 5th DCA 2016) (holding that judgment granting relief outside the pleadings is void); Cunha v. Mann, 183 So.3d 1113, 1115 (Fla. 3d DCA 2015) (holding that judgment granting relief outside the pleadings is voidable on appeal); Wachovia v. Mortg. Corp. v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015) ; Paulk v. Paulk, 25 So.3d 672, 674 (Fla. 2d DCA 2010) (holding that the trial court lacks jurisdiction to enter judgment outside the pleadings).

Olsen had pled that the relationship between the parties was one of a joint venture. Judge Bailey dismissed the joint venture count; Olsen did not replead the existence of a joint venture, thereby abandoning the claim; and Olsen failed to plead the existence of a partnership. The governing documents also clearly reflect that Fratangelo and Olsen chose to operate as members of limited liability companies, not as partners. A partnership is a "residual form of ... business association, existing only if another form does not." § 620.8202(2), Fla. Stat. Uniform Cmt. 2;

Houri v. Boaziz, 196 So.3d 383, 389-90 (Fla. 3d DCA 2016) (finding that it was error to disregard the limited liability company as joint ventures); Marriott Int'l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So.3d 902, 910 (Fla. 3d DCA 2015) ("As a matter of law, a corporation is not a joint venture") (Scales, J., concurring).

(2) The petitioners were denied procedural due process when they were forced to defend at trial claims decided in their favor prior to trial

Summary judgment was granted in favor of the petitioners regarding their affirmative defense of release. Summary judgment was also granted in their favor on the majority of the assets Olsen claimed were missing assets, for which he was entitled to receive his 50% interest. Additionally, just prior to trial, the petitioners filed, and the successor judge granted, a motion in limine to preclude Olsen from submitting any evidence contrary to the partial final judgment issued by Judge Bailey on September 6, 2016 (wherein Judge Bailey found for the petitioners on their defense of release). Thus, the petitioners expected that the trial would be limited to a determination of whether any of the remaining listed twenty-six potential missing assets were, in fact, missing assets subject to partial disbursement to Olsen.

The successor judge, however, with no notice to the petitioners, and over repeated objections by the petitioners, permitted Olsen to relitigate the effect of the very broad release he signed and to present evidence regarding assets he claimed were missing assets and which were not in the remaining twenty-six identified assets the petitioners were prepared to address at trial. Although we recognize that a trial court has the inherent authority to revisit an earlier ruling either it has made or a predecessor judge has made, it must provide notice and a meaningful opportunity to the party or parties to prepare for and to defend its position. See Wright v. Wright, 654 So.2d 674, 674 (Fla. 5th DCA 1995) ("While a trial court may modify [an interlocutory order], elementary notions of procedural due process which include notice and a meaningful opportunity to be heard apply ....").

The successor judge's mid-trial revisiting of issues resolved prior to trial, without notice, without allowing the petitioners a meaningful opportunity to prepare for, and over the petitioners' repeated objections was a clear departure from the essential requirements of law and from one of the most basic and fundamental protections to be afforded every litigant.

(3) The petitioners were denied procedural due process, when, after denying pretrial Olsen's motion to bifurcate liability and damages, the trial court reversed its position after trial

Prior to trial, Olsen moved to bifurcate the issues of liability and damages. The trial court denied Olsen's motion to bifurcate liability and damages and declared that all remaining issues would be tried during the trial. Olsen proceeded to trial on his claims, wherein he sought damages on revenue from the missing assets earned prior to the sale of those assets, and damages arising from the approximately twenty-six remaining missing assets that the trial court determined would be tried. Olsen failed to present any competent evidence regarding damages relating to his claimed damages on the revenue earned by the missing assets or to prove that any of the remaining twenty-six potential missing assets were missing assets. Thus, Olsen failed to prove his damages, and the trial court found no damages for either category.

However, instead of entering judgment in favor of the petitioners, the trial court concluded that Olsen was entitled to an equitable accounting in order to prove his damages. This too was a departure from the essential requirements of law. See Cleveland v. Crown Fin., LLC, 212 So.3d 1065, 1069 (Fla. 1st DCA 2017) (holding that "courts generally do not provide parties with an opportunity to retry their case upon a failure of proof"); Correa v. U.S. Bank, Nat'l Ass'n, 118 So.3d 952, 956 (Fla. 2d DCA 2013) (noting that counsel should have been aware of its burden and citing to cases refusing to give a party a second bite of the apple); Allard v. Al-Nayem Int'l, Inc., 59 So.3d 198, 202 (Fla. 2d DCA 2011) (stating that a party's failure to prove damages is an improper ground for rehearing).

Equitable accounting is a remedy, not a mechanism to provide a plaintiff, who failed to prove his damages at trial, with another opportunity to do so post trial. The law is also well settled that a court cannot exercise its equitable powers where an express contract exists and where the plaintiff has an adequate remedy at law. Ocean Commc'ns, Inc. v. Bubeck, 956 So.2d 1222, 1225 (Fla. 4th DCA 2007) ("Defendants correctly state that a plaintiff cannot pursue an equitable theory ... if an express contract exists."); Lake Tippecanoe Owners Ass'n v. Nat'l Lake Devs., Inc., 390 So.2d 185, 187 (Fla. 2d DCA 1980) (holding that a court cannot exercise equitable powers when a plaintiff has an adequate remedy at law); Rosen v. Rosen, 167 So.2d 70, 72 (Fla. 3d DCA 1964) (holding that jurisdiction to impose equitable remedies assumes that no adequate remedy exists at law).

The trial appeared to recognize this well-established legal concept, but then it failed to apply it to Olsen's equitable accounting claim. When addressing Olsen's unjust enrichment claim, the trial court correctly concluded that Olsen was not entitled to relief because he was entitled to relief pursuant to the contract (agreements). However, when addressing Olsen's equitable accounting claim, the trial court concluded that because the underlying transactions were complex, Olsen's ability to prove his contractual damages was insufficient. See Bankers Tr. Realty, Inc. v. Kluger, 672 So.2d 897, 898 (Fla. 3d DCA 1996) (concluding that a plaintiff may obtain an equitable accounting if he demonstrates that the contract demands involve extensive or complicated accounts and it is clear that the remedy at law is inadequate).

Olsen, however, failed to establish either of these two requirements: complexity or an inadequate remedy at law. He offered no evidence regarding complexity and both agreements contain a straight forward formula for payment of the missing assets. He is entitled to one-half of the net market value of the missing 21-AMH assets, and one-third of the net market value of the missing AR23 assets. And, the parties created a list of these assets prior to trial. The number of transactions does not make them complex nor establish a need for an equitable accounting. Managed Care Sols., Inc. v. Essent Healthcare, Inc., 694 F.Supp.2d 1275, 1280 (S.D. Fla. 2010) (concluding that the fact that the aggregation of thousands of receivables might be required did not make calculation of damages unduly complex).

Olsen was also provided with a full opportunity to conduct discovery, and as Judge Bailey found in the partial final judgment she issued on September 6, 2016:

Olsen had sufficient source documents under his own control to double-check that each and every asset in 21AMH throughout the history of the LLC had been accounted for. Olsen simply failed to do his due diligence .... The asset listing process began in spring 2014 at a time when Olsen had full access to all the records, and Olsen never lost access to the underlying source spread sheets.

The successor judge thus departed from the essential requirements of law by permitting Olsen to pursue his equitable accounting claim post trial after he failed to prove his damages under the express written agreements.

C. The majority opinion

The majority opinion's answer to the identified due process violations is its argument that a successor judge has the power to vacate or modify a predecessor judge's interlocutory rulings. While that statement is true, a successor judge does not have the authority to enter a judgment on an issue not raised in the pleadings, see Nash, 200 So.3d at 135 ; Cunha, 183 So.3d at 1115 ; Posti, 166 So.3d at 945 ; Sunbeam, 83 So.3d at 875, Agrofollajes, 48 So.3d at 995 ; Paulk, 25 So.3d at 674 ; Bloom, 743 So.2d at 1203.

Due process also mandates that if a successor judge wishes to revisit a prior ruling either by a predecessor judge or by itself, he or she must provide notice and a meaningful opportunity to the party or parties to defend the earlier ruling. Wright, 654 So.2d at 674. The trial court in the instant case violated all of these well-settled principles and denied Fratangelo his right to even the most rudimentary protections of procedural due process.

D. The petitioners have established irreparable harm that cannot be adequately remedied on appeal

Based on the successor judge's rulings, Olsen must be given access to Fratangelo's confidential and personal financial records from the beginning of their relationship to the present. Because Judge Bailey dismissed Olsen's joint venture claim, and Olsen did not amend his pleadings to pursue the existence of either a joint venture or a partnership, Olsen was not entitled to delve into Fratangelo's personal financial records. However, the successor judge has now reversed the partial final judgment issued by Judge Bailey, without providing notice to Fratangelo or affording him with a meaningful opportunity to defend himself against Olsen's claims; concluded that the parties were partners; and has concluded that the amended 21-AMH agreement did not release Fratangelo or 21-AMH from claims Olsen may have had regarding assets and asset transfers from January 1, 2013 through September 1, 2014. Thus, Olsen is now entitled to access to Fratangelo's confidential financial records, which he did not previously have access to.

In Mana v. Cho, 147 So.3d 1098, 1098-99 (Fla. 3d DCA 2014), this Court granted Mana's petition for certiorari relief and quashed the portion of the trial court's order requiring Mana to produce his personal financial information. This Court concluded that we had jurisdiction because permitting the discovery constituted a departure from the essential requirements of law "and the discovery of confidential financial information is the type of 'cat out of the bag' discovery that can cause material injury that cannot be adequately redressed on appeal." Id. at 1100 ; see also Diaz-Verson v. Walbridge Aldinger Co., 54 So.3d 1007, 1011 (Fla. 2d DCA 2010) (granting certiorari and quashing the trial court's order denying petitioner's motion for a protective order, concluding that petitioner's personal financial information was not relevant to the issues raised in the pleadings and disclosure of personal financial information would result in irreparable harm).

Similarly, Olsen failed to plead partnership, the issue of the parties' relationship was definitively tried and determined by Judge Bailey, and the issue was not tried by consent. Thus, the disclosure of Fratangelo's personal financial information is not relevant to any issue raised in the pleadings, and disclosure is the type of "cat out of the bag" discovery that will result in irreparable harm.

Fratangelo had also asserted and submitted proof of actual on-going harm based on the trial court's rulings flowing from the issues improperly tried with no notice to Fratangelo. For example, Fratangelo submitted proof that, based on the trial court's April 20, 2018 order, a company with which Fratangelo has had a long-standing and significant business relationship has instructed its employees to not engage with Fratangelo in any way, and prospective principals with whom Fratangelo had been negotiating with regarding the start of a new business are now demonstrating a reluctance to include Fratangelo as a member of any new company. Fratangelo's employees have received and are continuing to receive threatening emails, warning them that their continued relationship with Fratangelo will harm them, and prospective lenders have notified Fratangelo that they are aware of the trial court's findings in its April 20, 2018 order and these findings are negatively impacting their ability to do business with him.

In Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371, 1373 (Fla. 4th DCA 1987), the Fourth District Court of Appeal concluded that the loss of potential sales constituted irreparable harm because of the difficulty in determining how many sales were lost and what the profit would have been on each lost sale. Thus, the Fourth District found that because the damages would be speculative and unascertainable, the remedy at law would be inadequate and the harm irreparable. Id.; see also K.G. v. Fla. Dep't of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011) ("A petitioner can show irreparable harm by demonstrating either that the injury cannot be redressed in a court of law or that there is no adequate legal remedy."); City of Oviedo v. Alafaya Utils., Inc., 704 So.2d 206, 207 (Fla. 5th DCA 1998) (affirming temporary injunction based on the incalculable loss that would occur if the injunction was not granted).

Here too, the loss and harm to Fratangelo will be difficult to measure and prove. Thus, his damages will be speculative and unascertainable, his remedy at law will be inadequate, and he will suffer irreparable harm. Because Fratangelo was denied procedural due process, the trial court's findings cannot stand. Failure to grant his petition, requiring him to open his books and accounts and disclose personal financial information, and allowing his business relationships to continue to deteriorate, will result in irreparable harm that cannot be remedied on direct appeal. Thus, Fratangelo's petition should be granted.

Conclusion

The petitioners have demonstrated both a clear departure from the essential requirements of law and irreparable harm that cannot be remedied on appeal. There is nothing more fundamental than the right to notice and a meaningful opportunity to be heard. Fratangelo was denied that fundamental right when the successor judge re-tried issues previously tried and resolved in Fratangelo's favor and also tried unpled issues, all without notice to Fratangelo and over Fratangelo's objection. The harm: granting Olsen access to Fratangelo's business and personal financial information, and allowing the trial court's findings (based on the improperly tried issues) to stand until resolution of the entire case, is incapable of measurement and thus constitutes irreparable harm that cannot be remedied on appeal. I, therefore, dissent from the majority's dismissal of the petition.

      The Petitioners include Fratangelo and several of his companies: 21 Assets Management Holdings, LLC ("21-AMH"); Assets Recovery 23, LLC ("AR23"); BLB Trading, LLC; AMH 21 Trust; AMH 21, LLC; Assets Recovery 24, LLC; and Assets Recovery 27, LLC.

      Coosemans settled his case against Fratangelo. The trial court granted Coosemans' motion to enforce that December 1, 2017 Settlement Agreement, and Fratangelo's appeal from that order is currently pending before this Court, see 3D18-705.

      The trial court found that, based on evidence in the record, Olsen and Fratangelo continued to make management decisions regarding 21-AMH even after the purchase and sale agreement.

      Many of the arguments raised in the petition are arguments which may be appropriate and relevant for review upon appeal of a final judgment but not on certiorari review of a non-final order.

      We find Fratangelo's concern that the trial court has given Olsen "unfettered access" to confidential financial records to be easily remedied by a motion filed in the trial court to seal those records to prevent unauthorized disclosure. See e.g., Eberhardt v. Eberhardt, 666 So.2d 1024 (Fla. 4th DCA 1996) (holding that discovery requiring production of personal income tax returns in case involving claim for breach of contract and accounting, in and of itself, not irreparable harm).


author: PER CURIAM.

text:
    Rafael CENDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1567
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019. Rehearing Denied March 20, 2019
    Rafael Cendan, in proper person.
    Ashley Brooke Moody, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before FERNANDEZ, SCALES and LUCK, JJ.
   PER CURIAM.

Rafael Cendan appeals an order denying, after an evidentiary hearing, his postconviction motion alleging claims for ineffective assistance of defense counsel. See Fla. R. Crim. P. 3.850. We affirm.

To establish a claim of ineffective assistance of counsel, Cendan must demonstrate both that defense counsel's performance was deficient and that the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Chandler v. State, 848 So.2d 1031, 1035 (Fla. 2003). Cendan asserts that his defense counsel was ineffective for counsel's alleged failure to advise Cendan of available defenses prior to Cendan pleading guilty to the underlying charges. To prevail on this claim, Cendan was required to prove both: (i) that defense counsel's performance was deficient; and (ii) that under "the totality of the circumstances surrounding the plea," there was a reasonable probability that, but for defense counsel's deficiency, Cendan would have gone to trial instead of entering a plea. Grosvenor v. State, 874 So.2d 1176, 1181-82 (Fla. 2004).

Based on the evidence adduced at the evidentiary hearing conducted below, the trial court concluded that defense counsel was not at all deficient and denied Cendan's rule 3.850 motion. Having reviewed the record, we find no error in the trial court's determination. See Mungin v. State, 932 So.2d 986, 998 (Fla. 2006) ("In reviewing a trial court's ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts."). We therefore affirm the order denying Cendan's motion for postconviction relief.

Affirmed.


author: SCALES, J.

text:
    Trenton Erik TROIKE, Appellant, v. Jennifer Mercedes Ariza TROIKE, Appellee.
    No. 3D18-1187
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Kimberly H. Schultz, P.A., and Kimberly H. Schultz, for appellant.
    Barton King Law, P.A., and Michelle Barton-King, for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   SCALES, J.

Appellant Trenton Erik Troike appeals two, non-final orders of the Miami-Dade County Circuit Court arising from proceedings in the dissolution of his marriage to Appellee Jennifer Mercedes Ariza Troike. Specifically, Appellant asserts that the trial court erred in entering: (i) a May 25, 2018 corrected order modifying timesharing, and (ii) a May 31, 2018 omnibus order granting Appellee temporary alimony and temporary attorney's fees and costs. We dismiss as moot the appeal pertaining to the May 25, 2018 timesharing order. We affirm in part, and reverse in part, the trial court's May 31, 2018 order pertaining to the award of temporary support to Appellee, remanding a portion of this order to the trial court for further proceedings.

I. Facts

Appellant Husband and Appellee Wife were married for approximately five years before Appellant filed for dissolution of the marriage in 2016. They have two daughters, born in 2012 and 2014, respectively. They resided in a home in Cutler Bay, Florida, that Appellant and his parents purchased prior to the marriage, although Appellee was added as an owner of the home by quitclaim deed during the marriage.

A. Facts Relevant to the May 25, 2018 Timesharing Order

In his petition for dissolution, Appellant sought timesharing of the children, which Appellee did not oppose. Acrimony developed between the parties over this issue during these proceedings. In July of 2017, the trial court appointed a Guardian ad Litem to advise the trial court regarding the children's interests. The trial court also ordered psychological evaluations of each of the parties. These evaluations produced a recommendation from the psychologist that Appellant's time with the children be supervised.

The trial court held an evidentiary hearing on the timesharing issue on May 9, 2018. The trial court adopted the psychologist's recommendation in a series of orders during May of 2018, culminating in the corrected May 25, 2018 timesharing order on appeal. In the first of these orders, dated May 3, 2018, the trial court imposed on the Appellant the full obligation to pay all costs associated with supervised timesharing. After the filing of the initial brief in this appeal, the trial court, on October 5, 2018, issued an order that, among other things, reinstated unsupervised timesharing for the Appellant and his children, albeit not to the extent that Appellant had prior to May of 2018. Appellant has not sought review of this October 5, 2018 order.

B. Facts Relevant to the May 31, 2018 Temporary Support Order

Appellant works as a police officer for Miami-Dade County. In the trial court's August 2017 temporary child support order, the court found that Appellant earns the gross amount of $8,190 per month. At the start of the marriage, Appellee worked as an executive assistant and earned additional money working part-time for Mary Kay Cosmetics. Appellee left her executive assistant job when she became pregnant with her first child. Since the rupture in her marriage, she has resumed working part-time.

The August 2017 order imposed a monthly temporary child support payment on Appellant of $ 1,351. The May 31, 2018 order imposed a monthly temporary alimony payment on Appellant in the amount of $ 2,000. In addition, the trial court determined that Appellant owes a child support arrearage of $ 3,325.54 from August to October 2017, and ordered that sum be paid to Appellee within forty-five days. Since the separation, Appellant has voluntarily paid Appellee's monthly car payment, car insurance premium, health insurance premium, and a partial cellphone cost in an amount calculated by the trial court as $ 970 (collectively, "Voluntary Payments").

The July 2017 order appointing a Guardian ad Litem required Appellant to pay all Guardian ad Litem fees and costs. Appellant testified at the April 3, 2018 hearing that, as of that date, those fees and costs amounted to approximately $ 15,000. In his initial brief, Appellant represented that those fees and costs had reached approximately $ 33,000. The May 31, 2018 order imposed on Appellant the full payment of Appellee's attorney's fees and costs in the amount of $ 28,275.28, payable within sixty days of the May 31, 2018 order, unless Appellant arranges a payment plan.

Appellant has paid the Guardian ad Litem fees, his own attorney's fees, and a portion of the psychologist's fees from loans from his parents. At the April 3, 2018 hearing, Appellant testified that, while no promissory note memorializes the obligation, he owes his parents approximately $ 40,000. Appellant represents that he has paid approximately $ 1,000 per month for court-ordered therapy and supervised visitation, though the record is unclear as to these payment amounts. Appellant also pays $ 1720 per month on the home mortgage and associated expenses, a portion of which benefits Appellee due to her ownership interest in the home. Appellee remained in the home until the end of October 2017, when she rented an apartment for herself and the children for which she pays $ 1,350 in rent per month.

II. Analysis

A. The May 25, 2018 Timesharing Order

Appellant argues that the May 25, 2018 order modified timesharing without appropriate due process. Notwithstanding this argument, we conclude that the October 5, 2018 order that reinstated some unsupervised timesharing to Appellant supersedes the May 25, 2018 order and, therefore, moots this issue. See Klammer v. Klammer, 677 So.2d 52, 53 (Fla. 3d DCA 1996). Appellant has not appealed this October 5, 2018 order, and we do not reach a consideration of its merits. We therefore dismiss the appeal of the May 25, 2018 timesharing order.

B. The May 31st Temporary Support Order

The ultimate question here is whether the trial court ordered Appellant to pay too great a percentage of his income toward temporary child support, temporary alimony, and temporary attorney's fees and costs. The record reflects that the trial court, in its separate August 2017 and May 2018 orders, imposed on Appellant a monthly temporary child support payment of $ 1351 and a monthly temporary alimony payment of $ 2000. We understand that this temporary alimony amount encompasses the $ 970 in monthly Voluntary Payments on Appellee's behalf. Because these temporary monthly payments (totaling $ 3351) reflect an amount that is less than forty percent of Appellant's monthly earnings (of $ 8393), we conclude that the trial court did not abuse its discretion in ordering Appellant to make such payments. See De La Piedra v. De La Piedra, 243 So.3d 1052, 1053 (Fla. 1st DCA 2018).

We conclude, however, that the trial court did abuse its discretion in imposing on Appellant the payment of $ 28,275.28 in Appellee's attorney's fees and costs without the accompanying findings of his ability to pay them. While the record reflects that Appellant has the ability to pay the temporary, monthly obligation of $ 3351, the record does not contain competent substantial evidence that Appellant has the ability to pay this additional $ 28,275.28 obligation. See Clore v. Clore, 115 So.3d 1100, 1104 (Fla. 5th DCA 2013) (confirming that an award beyond a party's ability is not supported by competent substantial evidence).

Specifically, section 61.16(1) of the Florida Statutes requires that the trial court take into consideration the parties' financial ability to pay when imposing attorney's fees and costs. While Appellee's need is present in the record, Appellant's ability to pay is not thoroughly established. De La Piedra, 243 So.3d at 1054. We therefore reverse that portion of the May 31, 2018 temporary support order requiring Appellant to pay the $ 28,275.28, and remand for proceedings consistent with this opinion. On remand, the trial court should consider the cumulative effect on Appellant's financial ability of the $ 28,725.28, together with the Guardian ad Litem fees and costs and the cost of supervised timesharing, both of which were imposed piecemeal on Appellant in separate orders.

III. Conclusion

We conclude that the appeal of the May 25, 2018 timesharing order is moot. We reverse and remand that portion of the May 31, 2018 temporary support order that requires Appellant to pay the $ 28,275.28 in additional expenses. On remand, the trial court should re-evaluate, and make appropriate findings regarding, Appellant's ability to shoulder these expenses.

Dismissed in part; affirmed in part; reversed in part and remanded with instructions consistent with this opinion.

      This amount on an annualized basis equals $ 98,280, and derives from Appellant's amended financial affidavit, dated March 3, 2018. At the April 3, 2018 hearing, the Appellant represented that his gross monthly earnings were $8393.

      In the temporary child support order, the trial court found Appellee's actual part-time income plus imputed income added up to $ 1,667 per month or $ 20,004 on an annualized basis. The May 31, 2018 order updates Appellee's actual annual earnings to $ 15,873, plus $ 352 per month for food stamps, but does not address imputed income.

      The standard of review of the discretionary orders for timesharing, temporary alimony, and attorney's fees and costs is abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).

      We note Appellant's testimony that he has taken loans from his parents to pay his own attorney's fees and costs, along with the fees and costs of the Guardian ad Litem, and other costs associated with the dissolution of the marriage. These loans should not be considered in determining Appellant's financial ability. Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002).