text:
    FARREY'S WHOLESALE HARDWARE CO., INC., Petitioner, v. COLTIN ELECTRICAL SERVICES, LLC; VCC, LLC; and Tampa Premium Outlets, LLC, Respondents.
    Farrey's Wholesale Hardware Co., Inc., a Florida Corporation, Appellant, v. Coltin Electrical Services, LLC, a Florida Limited Liability Company; VCC, LLC, a Foreign Limited Liability Company; and Tampa Premium Outlets, LLC, a Foreign Limited Liability Company, Appellees.
    Farrey's Wholesale Hardware Co., Inc., Appellant, v. Coltin Electrical Services, LLC; VCC, LLC; and Tampa Premium Outlets, LLC, Appellees.
    Case No. 2D17-2172 Case No. 2D17-2553 Case No. 2D17-3191 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    Opinion filed December 28, 2018
    Michael E. Stearns, Douglas J. Roberts, and Mark D. Nichols of Stearns, Roberts & Guttentag, LLC, Deerfield Beach, for Appellant/Petitioner.
    Duane A. Daiker of Shumaker, Loop & Kendrick, LLP, Tampa, and Brian R. Lambert of Cotney Construction Law, LLP, Tampa, for Appellee/Respondent Coltin Electrical Services, LLC.
    Phillip N. Hammersley and Erik M. Hanson of Norton, Hammersley, Lopez & Skokos, P.A., Sarasota, for Appellee/Respondent Tampa Premium Outlets.
    No appearance for Appellee/Respondent VCC, LLC.
   KHOUZAM, Judge.

In three different proceedings, Farrey's Wholesale Hardware Co., Inc. (Farrey's), seeks appellate review of an adverse partial summary judgment entered in favor of Coltin Electrical Services, LLC (Coltin), and a few other related orders entered after the entry of the partial summary judgment. The first proceeding is a petition for writ of certiorari (case 2D17-2172), and the second (case 2D17-2553) is a direct appeal pursuant to Florida Rule of Appellate Procedure 9.110(k). Both of these proceedings challenge the entry of partial summary judgment, as well as an order denying Farrey's motion for leave to file a second amended complaint. In its third proceeding (case 2D17-3191), which we are treating as a petition for writ of certiorari, Farrey's seeks review of the trial court's order granting Coltin's motion to release a lien transfer bond and an order denying leave to add the surety of the bond as an indispensable party. These three proceedings travelled together and were heard by the same panel. On our own motion, because all three proceedings are derived from the same case below and contain the same set of essential facts and issues, we consolidated all three proceedings, treating them as if they were initiated together as a single case.

Because the trial court departed from the essential requirements of law in (1) violating a clearly established principle of law to exclude evidence that created a genuine issue of material fact and (2) finding that Farrey's claim of lien was fraudulent and unenforceable as a matter of law and fact, we grant the petition for writ of certiorari and quash the order entering partial summary judgment and the order granting Coltin's motion to release the lien transfer bond. In light of this ruling, we dismiss the proceeding to the extent Farrey's challenges the orders denying both its motion for leave to file a second amended complaint and its motion to add the surety of the lien transfer bond as an indispensable party to the proceedings.

Factual Background and Procedural History

This matter arose from the construction of a new mall, the Tampa Premium Outlets Mall in Pasco County, Florida (the Project). The property owner, Tampa Premium Outlets, LLC (Owner), entered into a contract with the general contractor, VCC, LLC (VCC). VCC entered into a subcontract with Coltin, the electrical subcontractor, to provide and install light fixtures for the project. Coltin, in turn, sought pricing for certain light fixtures and materials from various electrical suppliers. On February 4, 2015, Farrey's, an electrical supplier, provided a quote to Coltin, in which it offered to provide various materials for the Project. In its February quote, Farrey's listed the unit price, quantity, type, and a short description for each of its electrical components, including the item's manufacturer. Upon receiving Farrey's pricing, Coltin accepted the quote and issued its initial purchase order for many of the listed items, which Farrey's began delivering to the jobsite.

Throughout the course of the Project, Coltin issued a total of nine change orders or revisions to the initial purchase order, ultimately increasing the total cost of their agreement. Coltin's multiple purchase orders made both quantitative and qualitative alterations to the initial purchase order. Some of the qualitative changes were allegedly made due to Coltin requesting electrical components from different manufacturers that were not originally priced in the February quote. As a result, Farrey's provided a revised quote to Coltin listing those different materials and other components on June 5, 2015. The pricing provided in the June quote was then apparently accepted and used in Coltin's subsequent purchase orders, including the last purchase order (the ninth-revised purchase order). These alterations, coupled with the purportedly late arrivals of fixtures that were supposedly both unassembled and lacking the requisite marking to pass the building code inspection, became the focus of the underlying dispute regarding the amount owed to Farrey's. When Coltin purportedly refused to pay Farrey's for the different materials it had supplied to the Project, Farrey's recorded a construction lien on the Owner's property to secure its unpaid receivables in the amount of $853,773.16. Farrey's filed suit thereafter on May 20, 2016.

In its amended complaint, Farrey's sought, among other things, to enforce its construction lien against Coltin, the Owner, and VCC (count I). In response, Coltin filed its answer, affirmative defenses, and counterclaims, which included an action to declare Farrey's claim of lien fraudulent and unenforceable under section 713.31, Florida Statutes (2016) (count IV). On February 8, 2017, Coltin filed a motion for partial summary judgment on count I of the amended complaint and count IV of the counterclaim. Shortly thereafter, Farrey's filed its response in opposition to Coltin's motion for partial summary judgment, as well as a motion for leave to file a second amended complaint to add an alternative count for breach of an implied-in-fact contract. Coltin subsequently filed its objection to Farrey's motion for leave to file a second amended complaint.

As to the motion for partial summary judgment, Coltin relied upon the total cost listed in the ninth-revised purchase order and the February quote referenced therein to argue that partial summary judgment was warranted because Farrey's claim of lien exceeded the total agreed-upon cost. More specifically, Coltin contended that because it was undisputed (1) that Coltin had made payments to Farrey's in the amount of $825,417.06 throughout the course of the Project and (2) that the ninth-revised purchase order reflected a total cost of $1,647,362.41, Farrey's lien amount of $853,773.16 constituted a willful exaggeration of the amount Coltin owed to Farrey's. That is, because Farrey's total cost of materials as stated in its claim of lien ($1,679,190.22) exceeded the total cost of materials as stated in the ninth-revised purchase order ($1,647,362.41), Coltin argued that Farrey's deliberately overstated its claim of lien by nearly $32,000. Consequently, Coltin requested that the trial court invalidate the lien.

In its response, Farrey's argued that partial summary judgment was not warranted because there were genuine issues of material fact regarding whether the lien was fraudulent. Relying primarily upon the detailed affidavit of its employee and contract manager (the Maceiras affidavit), Farrey's asserted that its lien was not willfully exaggerated because the ninth-revised purchase order did not adequately account for the total cost of the materials that it had actually supplied to Coltin. In fact, Farrey's asserted that the claim of lien was made in good faith, as its total cost for the materials supplied was based in part on its February quote and its revised June quote. According to the Maceiras affidavit, Coltin accepted the June quote because it required certain alternative fixtures that were not originally priced in the February quote. These alternative fixtures were allegedly delivered to and installed by Coltin. As a result, Farrey's contended that its claim of lien was made in good faith because any discrepancy between the total cost of the ninth-revised purchase order and the total amount of the claim of lien was due in part to Coltin's modifications to their original agreement.

On April 11, 2017, the trial court held a hearing on both Coltin's motion for partial summary judgment and Farrey's motion for leave to file a second amended complaint. At the hearing, counsel for Coltin first argued that summary judgment should be granted because the amount of Farrey's claim of lien was not the subject of a good faith dispute. Rather, Coltin's counsel contended that Farrey's filed its claim of lien in bad faith because it "completely ignored" the final agreed-upon cost in the ninth-revised purchase order. Coltin further asserted that Farrey's was attempting "to create a new contract based on new facts and in contravention of ... the parol evidence rule." That is, Coltin asserted that the trial court could not consider the Maceiras affidavit because it was simply "prior, oral evidence" being offered to alter the clear terms of the complete and exclusive written agreement-i.e., the ninth-revised purchase order. As such, Coltin argued that because there "really [was] no good faith basis" for Farrey's to assert that it had a different understanding of their written agreement, Coltin asked the court to grant partial summary judgment and "remove [the] lien."

However, Farrey's argued at the hearing that the parol evidence rule was simply inapplicable because "both parties dispute[d] what the contract [was]." Farrey's asserted that the ninth-revised purchase order was simply a modification of the original agreement and did not constitute the complete and exclusive agreement between the parties. Additionally, Farrey's argued that summary judgment was inappropriate at this stage because the Maceiras affidavit demonstrated how its claim of lien was filed in good faith. Finally, Farrey's asserted that even though the ninth-revised purchase order was signed by the parties and referenced the February quote, there was still a good faith dispute regarding the amount of the claim of lien because it was uncontroverted that Coltin received products that were not listed in the February quote.

After hearing from both sides, the trial court agreed with Coltin's arguments and granted the motion for partial summary judgment. It found that the parol evidence rule excluded consideration of the Maceiras affidavit and any other evidence outside of the ninth-revised purchase order and the February quote referenced therein. It reasoned that if Farrey's did not intend to honor the prices detailed in the February quote, then Farrey's should not have signed the ninth-revised purchase order. Upon granting the partial summary judgment, the trial court subsequently denied Farrey's motion for leave to file a second amended complaint to the extent it sought to plead a claim for breach of implied contract against Coltin. The trial court found that because the parties "had an express contract as a matter of fact and law in this case," parol evidence was not admissible to establish that Coltin had breached an implied contract.

On the same day of the summary judgment hearing, a document was recorded in Pasco County reflecting that Farrey's construction lien had been transferred from the property to a lien transfer bond under section 713.24, Florida Statutes (2017). The lien transfer bond was issued by Hudson Insurance Company (Hudson) as surety and Coltin as principal. Upon learning of the existence of the lien transfer bond, Farrey's promptly moved to add Hudson as an indispensable party to the case before the trial court entered its written order granting partial summary judgment.

On April 24, 2017, consistent with its oral findings, the trial court entered a written order granting partial summary judgment in favor of Coltin on count I of Farrey's amended complaint and count IV of Coltin's counterclaim. The trial court concluded that Farrey's had both willfully exaggerated its construction lien claim and failed to establish a genuine issue of material fact demonstrating a good faith dispute as to the lien amount. In accordance with its previous rulings at the hearing, the trial court also later entered another written order denying in part Farrey's motion for leave to file a second amended complaint. The order granting partial summary judgment was later corrected to enter "final partial summary judgment." These orders were then timely challenged by Farrey's in cases 2D17-2172 and 2D17-2553.

On April 28, 2017, Coltin moved to release the lien transfer bond in light of the trial court's order granting partial summary judgment. The trial court granted Coltin's motion on August 25, 2017, and directed the clerk of the circuit court to release the bond. As to Farrey's motion to add the surety of the bond, Hudson, as an indispensable party, the trial court denied the motion. These two orders became the subject of Farrey's third appeal in case 2D17-3191.

We hold that the trial court departed from the essential requirements of law in granting summary judgment based on its determinations that (1) the parol evidence rule excluded consideration of the Maceiras affidavit for the purpose of determining whether Farrey's construction lien was made in good faith and (2) the claim of lien was fraudulent and unenforceable as a matter of law and fact. Accordingly, we grant the petition for writ of certiorari and quash the partial summary judgment and the order granting Coltin's motion to release the lien transfer bond. In light of this ruling and its effect on the entire case, we dismiss the proceeding as moot to the extent Farrey's seeks review of both the order denying Farrey's motion to add an indispensable party and the order denying Farrey's motion for leave to file a second amended complaint.

Discussion

Review by certiorari is appropriate "when the following three elements have been established: '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.' " Shindorf v. Bell, 207 So.3d 371, 372 (Fla. 2d DCA 2016) (quoting Plantz v. John, 170 So.3d 822, 824 (Fla. 2d DCA 2015) ). Material injury that cannot be corrected on appeal is also called "irreparable harm." Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla. 2012) (quoting Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000) ). Furthermore, "[a] departure from the essential requirements of the law means 'a violation of a clearly established principle of law resulting in a miscarriage of justice.' " Gator Boring & Trenching, Inc. v. Westra Const. Corp., 210 So.3d 175, 184 (Fla. 2d DCA 2016) (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) ).

I. Partial Summary Judgment and the Release of the Bond

Because the entry of partial summary judgment and the connected order directing the release of the bond are nonfinal and nonappealable orders under Florida Rule of Appellate Procedure 9.110(k), Farrey's must demonstrate that it is entitled to certiorari relief to prevent dismissal of its appeal. Consequently, the first issue is whether the trial court departed from the essential requirements of law in entering partial summary judgment. The second issue is whether such departure caused a material injury to Farrey's that is irreparable on plenary appeal. Because we conclude that the trial court departed from the essential requirements of law and such departure would result in irreparable harm, we conclude that Farrey's is entitled to certiorari relief. We shall address each issue in turn.

A. Departure from the Essential Requirements of Law

"Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law." Alderman v. BCI Eng'rs & Scientists, Inc., 68 So.3d 396, 399 (Fla. 2d DCA 2011) (citation omitted). "Further, 'if the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.' " Gator Boring, 210 So.3d at 182 (quoting Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015) ).

It is well-established that the parol evidence rule prevents the terms of a valid written contract or instrument from being varied "by a verbal agreement or other extrinsic evidence where such agreement was made before or at the time of the instrument in question." J. M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484, 485 (Fla. 1957) ; see also Johnson v. Johnson, 403 So.2d 1388, 1390 (Fla. 2d DCA 1981) ("All conversations and parol agreements between the parties prior to or contemporaneous with the written agreement are considered to have been merged therein so that they cannot be given in evidence for the purpose of changing the contract or showing an intention or understanding different from that which is expressed in the written agreement."). However, if there is a disagreement regarding "whether the particular writing is in fact a complete and accurate integration of the contract, the parol evidence rule is not applied[,] [a]nd no relevant evidence, parol or otherwise, is excluded." Burgan v. Pines Co. of Ga., Ltd., 382 So.2d 1295, 1296 (Fla. 1st DCA 1980). Additionally, the parol evidence rule does not operate to preclude evidence of subsequent oral agreements modifying or changing the original agreement. Johnson, 403 So.2d at 1390 ("[A] subsequent parol agreement can always modify a written agreement."); see also Spann v. Baltzell, 1 Fla. 301, 352 (Fla. 1847) ("[I]n general, where an obligation is created merely by simple contract, it may, whether reduced to writing or not, be entirely dissolved by subsequent oral agreement."). Nor does the rule exclude oral or extrinsic evidence for the purpose of showing fraud, accident, or mistake. See Pentland v. Pentland, 113 So.2d 872, 875 (Fla. 2d DCA 1959).

Here, the trial court clearly departed from the essential requirements of law by excluding the Maceiras affidavit in violation of the clearly established principle that the parol evidence rule does not exclude oral or extrinsic evidence of fraud, accident, or mistake. Although the parol evidence rule operates to exclude evidence offered for the purpose of varying the terms of a written agreement, it does not bar extrinsic evidence offered for the purpose of showing whether the filing of a construction lien was made in good or bad faith. This is a separate and distinct inquiry that does not trigger the parol evidence rule. Thus, because the Maceiras affidavit was offered for the purpose of proving Farrey's good faith intent in filing its claim of lien, it was relevant evidence that should have been considered. Indeed, the Maceiras affidavit explained how Farrey's claim of lien was an accurate accounting of the materials it had supplied to Coltin throughout the course of the Project. This was sufficient to create a genuine issue of material fact as to whether Farrey's claim of lien was fraudulent. As such, partial summary judgment should not have been entered in favor of Coltin when disputed issues of fact remained. Cf. Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 587 (Fla. 2d DCA 2008) (quashing order granting partial summary judgment because genuine issues of material fact existed as to whether Trust exercised due diligence, which only requires a seller to act in good faith).

Furthermore, even if we assume, arguendo, that the ninth-revised purchase order was the complete and exclusive agreement between the parties, the trial court departed from the essential requirements of law in finding that Farrey's lien was willfully exaggerated simply because the claim of lien exceeded the total amount embodied in the ninth-revised purchase order. See Gator Boring, 210 So.3d at 183 ("[A] lien is not to be deemed fraudulent merely because it is not embodied in a written contract or change order, so long as there is a good-faith basis for the claim." (quoting Delta Painting, Inc. v. Baumann, 710 So.2d 663, 665 (Fla. 3d DCA 1998) (Cope, J., dissenting) ) ); see also Sam Rodgers Props., Inc. v. Chmura, 61 So.3d 432, 440 (Fla. 2d DCA 2011) ("A claim of lien that overstates the amount claimed is not necessarily fraudulent, unless the exaggeration is made willfully."); Vinci Dev. Co. v. Connell, 509 So.2d 1128, 1132 (Fla. 2d DCA 1987) (stating that a dispute between the parties "as to the amount of compensation due according to the contract plan of compensation or even a dispute as to the method of compensation provided in the contract does not convert such a good faith dispute into a fraudulent lien as provided in section 713.31" (emphasis added) ). In fact, for a construction lien to be deemed fraudulent, the party asserting the fraudulent lien claim must show that the lienor

[1] willfully exaggerated the amount for which such lien is claimed or [2] ... willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or [3] ... has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration ....

§ 713.31(2)(a) (emphasis added); see also Gator Boring, 210 So.3d at 182 (recognizing that "[t]he party asserting that a claim of lien is fraudulent bears the burden of proving that the lien is fraudulent" and that the trial court's finding of a fraudulent lien is not a "discretionary matter" but rather must be supported by competent substantial evidence in the record). "[A] minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration." § 713.31(2)(b).

Here, Coltin simply failed to show that Farrey's did not have a good faith dispute as to the amount of its claim of lien. The record reflects that Coltin failed to present any competent substantial evidence establishing that Farrey's willfully exaggerated the lien, claimed compensation for materials not furnished to the property, or filed its claim of lien with willful and gross negligence. At best, Coltin created a genuine issue of material fact regarding whether the amount of Farrey's claim of lien was properly calculated.

Additionally, the record and briefs reveal that the filing of Farrey's claim of lien was premised upon a contentious issue concerning what constituted the complete and binding contract. Cf. Gator Boring, 210 So.3d at 183-84 (considering the briefs and the record to show that the subcontractor's claim of lien was actually based upon a "hotly contested" issue involving the legal construction of the subcontract). Indeed, while Coltin contended that the ninth-revised purchase order was the complete and final memorialization of the parties' agreement because it was signed by both parties, Farrey's argued that the ninth-revised purchase order was simply a postcontractual modification of its original agreement. As such, Farrey's asserted that it could rely upon the Maceiras affidavit and other extrinsic evidence outside of the ninth-revised purchase order to establish (1) the full understanding of its contract and (2) the accuracy of its claim of lien for its unpaid receivables. These arguments, which were neither deemed frivolous or wholly without merit, certainly indicate that Farrey's had some good faith basis in filing its claim of lien.

We therefore conclude that the trial court departed from the essential requirements of law in entering partial summary judgment based on its finding that Farrey's claim of lien was fraudulent and unenforceable as a matter of law and fact. Such departure resulted in a miscarriage of justice as the lien transfer bond was ordered to be released.

B. Irreparable Harm

The next issue concerns whether the trial court's violation of a clearly established principle of law and conclusion that the lien was fraudulent resulted in irreparable harm to Farrey's. We conclude that Farrey's has demonstrated irreparable harm that warrants certiorari relief.

This court's prior decision in Gator Boring is instructive on what constitutes irreparable harm. There, the subcontractor (Gator Boring) filed a claim of lien against the general contractor (Westra) for failure to pay its increased costs that it claimed were due for changed circumstances on a drilling project. Id. at 178. The lien was transferred to a lien transfer bond underwritten by Travelers (the surety). Id. In its complaint, the subcontractor raised, among other things, a count for breach of contract for failure to pay for its increased costs and another count to enforce the lien. Id. The surety and the general contractor moved for partial summary judgment on both counts, arguing that the amount of the lien was willfully exaggerated because the terms of the contract precluded the subcontractor from collecting additional money based simply on the work being "more difficult and costly than anticipated." Id. at 179. The trial court agreed with their interpretation of the contract and found that the lien had been overstated by several hundred thousand dollars. Id. Consequently, the trial court found that the amount of the lien was fraudulent as it had been willfully exaggerated as a matter of law. Id. It then entered partial summary judgment in favor of the general contractor and surety and directed the clerk of court to release the lien transfer bond. Id.

On appeal, this court found that it had certiorari jurisdiction to review the partial final judgment. Id. at 181. We concluded that potentially losing the benefit of a recovery under a bond on a claim to enforce a lien constitutes the type of irreparable harm necessary to entitle a party to certiorari relief. Id. We reasoned that if the subcontractor had to wait until the end of the litigation to challenge the release of the bond and then prevailed on plenary appeal, the subcontractor "would be without a remedy on the bond." Id. Upon resolving the question of jurisdiction, this court held that the trial court departed from the essential requirements of law in finding that a reduction in the amount of the lien "automatically rendered" the lien fraudulent and unenforceable as a matter of law. Id. at 184. Thus, we granted certiorari relief and quashed the partial summary judgment to the extent the trial court both entered judgment in favor of the general contractor on the claim to enforce the lien and directed the clerk of court to release the bond. Id. at 184-85.

Here, Farrey's may also be irreparably harmed if it must wait until the end of the litigation to appeal the trial court's order granting partial summary judgment on count I of its complaint and count IV of Coltin's counterclaim. This is because Farrey's, like the subcontractor in Gator Boring, may "lose the benefit of a recovery under the bond" if it ultimately prevails in this case. See id. at 181. In other words, "[t]he prospect that [Farrey's] will be left with a[n] ... unsecured judgment is a harm which is irreparable on final appeal." Bayview Const. Corp. v. Jomar Props., LLC, 97 So.3d 909, 912 (Fla. 4th DCA 2012). Indeed, Farrey's would be without a remedy on the bond against not only Coltin but also Hudson, as Farrey's motion to add Hudson as a party to the suit was denied. And though Coltin contends that all of these points are essentially moot because the bond was released and we do not have the authority to order a nonparty surety to reinstate the bond, Coltin misunderstands the effect of our quashing the trial court's order granting partial summary judgment.

Though not in the certiorari context, the Fourth District's decision in J.M. Beeson Co. v. Sartori, 584 So.2d 572 (Fla. 4th DCA 1991), illustrates that effect. There, a construction company, J.M. Beeson, brought suit to foreclose upon two construction liens it had filed upon Sartori's property (a shopping plaza) and for breach of contract. Id. at 572. The construction liens were subsequently transferred from the property to a lien transfer bond pursuant to section 713.24. Id. The surety of the transfer bond (Aetna), however, was not added as a party at that time. Id. at 573. The trial court later entered final judgment in favor of Sartori on the breach of contract claim and discharged the surety bond. Id. The construction company, in its first appeal, challenged the final judgment, and the Fourth District reversed and remanded for further proceedings. Id. Upon remand, the trial court refused to reinstate the lien transfer bond. Id. As a result, the construction company added Aetna as a party to the lawsuit and amended its complaint to add two additional claims for relief against it. Id. The construction company and Aetna both filed competing motions for summary judgment on those two claims. Id. The trial court granted summary judgment in favor of Aetna, finding, in part, that because "Aetna was no longer the surety insurer of Sartori by virtue of the judgment that expressly provided for return of the bond," it could not reinstate the bond as it had been discharged by the prior judgment. Id. at 573. On appeal, the Fourth District again reversed the trial court's decision, holding that "the trial court erred when [it] failed to reinstate the bond after the first appeal concluded." Id. at 574. The Fourth District reasoned that the effect of its reversal on the construction company's first appeal "returned all matters pertaining to the mechanic's lien to their prejudgment status, including the status of the bond" as it was clearly pertaining to the mechanic's lien. Id. at 573. As such, the Fourth District remanded with directions to the trial judge to reinstate the surety bond. Id. at 574.

Here, like in Sartori, quashing the partial summary judgment will return this case to its prejudgment status. This means that on remand, all matters pertaining to Farrey's construction lien, which includes the status of the lien transfer bond, will be returned to their prejudgment postures. See id. at 573-74. Indeed, the idea is to put Farrey's back in the same position it would have been in had the partial summary judgment never been entered. See Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 844 (Fla. 2001) (stating that when an order or judgment is quashed, "it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered"); see also Snyder v. Douglas, 647 So.2d 275, 279 (Fla. 2d DCA 1994) (stating that the effect of granting petition for writ of certiorari and quashing the erroneous order will allow the petitioners the opportunity to invoke its rights under a certain statutory provision "as if the order quashed had never been entered").

Thus, in light of our decision to quash the partial summary judgment entered in favor of Coltin, the trial court will need to revisit any ruling subsequent to its order granting partial summary judgment on April 24, 2017. This, of course, means that the trial court will have to revisit its order denying Farrey's motion to add Hudson as a party to the amended complaint and its order denying Farrey's motion for leave to file a second amended complaint. Accordingly, we conclude that Farrey's is entitled to certiorari relief because Farrey's has demonstrated that the trial court has departed from the essential requirements of law and that such departure has caused it material injury for the remainder of the case that is not correctable on plenary appeal.

Finally, as to Farrey's motion to amend its pleadings to add Hudson as an indispensable party and its motion for leave to file a second amended complaint to add a count for breach of an implied in fact contract, we remind the trial court that "[p]ublic policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit." Laurencio v. Deutsche Bank Nat'l Tr. Co., 65 So.3d 1190, 1193 (Fla. 2d DCA 2011). We also note that sureties of a lien transfer bond are typically added as parties in a suit seeking to enforce a claim of lien. See, e.g., Hiller v. Phoenix Assocs. of S. Fla., Inc., 189 So.3d 272, 274-75 (Fla. 2d DCA 2016) ; Gator Boring, 210 So.3d at 178 ; Sartori, 584 So.2d at 573. This is because a claim of lien is released from the property upon its transfer to a lien transfer bond under section 713.24. See Hiller, 189 So.3d at 274 ("If an owner elects to file a transfer bond and complies with the statutory requirements to do so, 'the real property shall thereupon be released from the lien claimed, and such lien shall be transferred to said security.' " (quoting § 713.24(1) ) ). In fact, as soon as the lien is transferred to the bond, the lienor has a limited amount of time to bring an action against the surety before the lienor's right to make a claim on the bond is extinguished. See id. at 275 ("[T]he failure to bring an action against the surety within a certain time period after the transfer results in the extinguishment of the right to make a claim on the bond." (citing N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 361 (Fla. 4th DCA 1999) ) ). Accordingly, to prevent the loss of its right to recover on a lien transfer bond, a lienor should generally be allowed to amend its pleadings to bring an action against the surety.

Furthermore, as to Farrey's motion for leave to file a second amended complaint to plead an alternative count for breach of an implied-in-fact contract, we note that "refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile." Grover v. Karl, 164 So.3d 1285, 1287 (Fla. 2d DCA 2015) (emphasis added) (quoting Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422-23 (Fla. 5th DCA 2003) ). To be futile, the proposed amendment must be either insufficient as a matter of law or insufficiently pled. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 871 (Fla. 2d DCA 2010). And while it may be true that the existence of an express contract renders a proposed implied-in-fact contract theory insufficient as a matter of law, a finding of an express contract at the summary judgment stage cannot be premised upon a view of the evidence most favorable to the moving party. Indeed, here, it appears that the trial court improperly inferred that because the ninth-revised purchase order referenced the February quote and was signed by Farrey's, it was the final and express memorialization of the parties' agreement. Such an inference simply does not preclude at this stage the possibility that an implied-in-fact contract existed between the parties, especially considering Farrey's modification arguments and the course of conduct described in the Maceiras affidavit. Thus, upon remand, the trial court should keep these facts and well-established principles in mind as it confronts these issues again.

Conclusion

The trial court departed from the essential requirements of law in (1) violating a clearly established principle of law to exclude consideration of evidence offered for the purpose of showing a good faith dispute as to the amount of the claim of lien and (2) finding that the claim of lien was fraudulent and unenforceable as a matter of law based solely on the fact that the claim of lien amount exceeded the total cost of the alleged "final contract" (the ninth-revised purchase order). As a result, the trial court caused Farrey's material injury-the loss of the potential recovery under the lien transfer bond-for the remainder of the case that cannot be corrected on plenary appeal.

Therefore, as to case 2D17-2172, we hereby quash the partial summary judgment entered in favor of Coltin and, in light of this ruling, dismiss as moot the order denying Farrey's motion for leave to file a second amended complaint. As to case 2D17-2553, we dismiss the direct appeal challenging both the entry of final partial summary judgment and the order denying Farrey's motion for leave to file a second amended complaint as nonfinal, nonappealable orders. Finally, as to case 2D17-3191, we hereby quash the order granting the motion to discharge the lien transfer bond and dismiss as moot the order denying Farrey's motion for leave to add Hudson as an indispensable party. We remand for further proceedings consistent with this opinion.

Petition granted; orders quashed in part and dismissed in part.

CRENSHAW and ATKINSON, JJ., Concur.

      The facts stated in this opinion are drawn from the pleadings, affidavits, and other documents in the record. We examine these facts in the light most favorable to Farrey's as the party against whom the partial summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla. 2002) ; Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 586 (Fla. 2d DCA 2008).

      For instance, in Coltin's second-revised purchase order dated on June 10, 2015, it appears that Coltin used the increased pricing from the June quote-instead of the lower pricing from the February quote-for item type "T19." This pricing was maintained in all of the following purchase orders, including the last purchase order, even though all of the purchase orders referenced only the February quote. We further note that the ninth-revised purchase order contains unit prices for various fixtures that do not correlate with the unit prices for those fixtures in either the February or June quotes.

      Farrey's unilaterally amended its initial complaint before any response was filed. Farrey's also raised a few other individual causes of action, including unjust enrichment against the Owner (count II), breach of subcontract against Coltin (count III), unjust enrichment against Coltin (count IV), and unjust enrichment against VCC (count V). Pursuant to a settlement agreement with the Owner and VCC, Farrey's voluntarily dismissed counts II and V.

      Coltin, not the Owner, was listed as the principal of the bond due to some form of agreement between Coltin, the Owner, and VCC that is not in the record.

      Though there is no document in the record indicating that the lien transfer bond was actually released, the circuit court clerk's "index on appeal" reflects that the bond was released.

      Before we can exercise jurisdiction over any partial final judgment under Florida Rule of Appellate Procedure 9.110(k), "we must ask: (1) whether the claim disposed of by the partial final judgment could be maintained independently of the remaining claims; (2) whether one or more parties were removed from the action when the partial final judgment was entered; and (3) whether the claims could be separately disposed of based on the same or different facts." Fla. Farm Bureau Gen. Ins. Co. v. Peacock's Excavating Serv., Inc., 186 So.3d 6, 8-9 (Fla. 2d DCA 2015). The partial summary judgment entered on Farrey's count to enforce its construction lien is nonfinal and nonappealable because the pleadings reflect that Farrey's claim and the underlying facts are interrelated with its remaining causes of action against Coltin for breach of contract and unjust enrichment. See Gator Boring, 210 So.3d at 180 (holding that an order granting partial summary judgment on a count to enforce a construction lien was nonfinal and nonappealable under rule 9.110(k) because the claim was "interrelated with the remaining claims"). It is also nonfinal and nonappealable because no parties were actually dismissed from the action when partial summary judgment was entered. See Harrison v. J.P.A. Enters., L.L.C., 51 So.3d 1217, 1219 (Fla. 1st DCA 2011) ("Where all parties remain in a case after an order is entered, the order cannot be said to dispose of the 'entire case' as to any party for purposes of rule 9.110(k).").

      We further note that at oral argument, Coltin's counsel characterized the contract's formation as a "moving target."

      J.M. Beeson Co. v. Sartori, 553 So.2d 180 (Fla. 4th DCA 1989).

      Though not raised by the parties, we note that the ninth-revised purchase order did not contain a merger clause. See Jenkins v. Eckerd Corp., 913 So.2d 43, 53 (Fla. 1st DCA 2005) ("Although the existence of a merger clause does not per se establish that the integration of the agreement is total, a merger clause is a highly persuasive statement that the parties intended the agreement to be totally integrated and generally works to prevent a party from introducing parol evidence to vary or contradict the written terms." (citation omitted) ).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Blake M. TILLEY, Appellant, v. Alyssa Eva GRANT and Allen Trevor Michaelson, Appellees.
    Case No. 5D17-4007
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 28, 2018 Rehearing Denied January 30, 2019
    Samuel A. Walker, Tee Persad and Russell J. Frank, of CPLS, P.A., Orlando, for Appellant.
    Nancy A. Hass, of Nancy A. Hass, P.A., Ft. Lauderdale, for Appellees.
   PER CURIAM.

We affirm. See G.F.C. v. S.G. , 686 So.2d 1382 (Fla. 5th DCA 1997). We conclude that Simmonds v. Perkins , 247 So.3d 397 (Fla. 2018), is distinguishable and, accordingly, not applicable.

AFFIRMED.

TORPY, BERGER and WALLIS, JJ., concur.


author: SALTER, J.

text:
    R.D.S., the Father, and T.D.S., the Mother, Appellants, v. The DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    Nos. 3D18-988 3D18-984 3D18-839
    District Court of Appeal of Florida, Third District.
    Opinion filed December 31, 2018
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, Coral Gables, and Kevin Coyle Colbert, Assistant Regional Counsel, Miami, for the Father; Roger Ally ; Lori Black Ogene, for the Mother, for appellants.
    Karla Perkins, Miami, for Dept. of Children & Families; Laura J. Lee (Tallahassee), for Guardian ad Litem Program, for appellees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

On (1) Father's Motion for Clarification and (2) Mother's Motion for Rehearing

Following the issuance of our opinion in these three consolidated cases on October 31, 2018, (1) the Father, R.D.S., filed a motion for rehearing and for rehearing en banc, and (2) the Mother, T.D.S., filed a motion for clarification. Appellees and respondents in these cases, the Department of Children and Families and the Guardian Ad Litem Program, have not filed a response (and no such response has been ordered).

Upon consideration of the motions for clarification and for rehearing, we withdraw our opinion of October 31, 2018, grant both motions in part, and issue this opinion in the place and stead of the prior opinion.

Parties and Consolidated Cases

We review three consolidated cases, all relating to a single dependency case in the circuit court, and all commenced here by the parents of S.D.S., born in October 2007 (the "Child"). The "Final Judgment Denying Termination of Parental Rights and Order of Adjudication," entered April 16, 2018 (the "Final Judgment"), denied a petition for the termination of parental rights ("TPR") of the Mother, T.D.S., and Father, R.D.S., by the Department of Children and Families ("DCF"), joined by the Guardian Ad Litem Program ("GAL Program"). The cases present difficult, mixed questions of law and fact: when is a minor's chronic medical condition-in this case, insulin-dependent diabetes-more than the parents can manage, and if so, what level of State intervention is appropriate?

In Case No. 3D18-988, the Father appeals the adjudication that the Child is dependent as to him. He also contends that the trial court reversibly erred in permitting counsel for a non-party hospital to be present during the closed proceedings. The GAL Program cross-appeals the denial of the petition for TPR as to the Father.

In Case No. 3D18-984, the Mother appeals the Final Judgment insofar as it included certain case plan directives. The GAL Program cross-appeals the denial of TPR as to the Mother. And in Case No. 3D18-839, the Father petitions this Court for a writ of certiorari to review and quash a non-final order entered at the same time as the Final Judgment, requiring the Father to submit to a psychological evaluation, to include a determination "if the parents suffer from any mental health disorders (including Munchausen by Proxy) which may have contributed to the issues which caused the case to come into care." The Mother filed a joinder in the petition, but also appealed those provisions in Case No. 3D18-984.

For the reasons which follow, we affirm the trial court's adjudications of dependency as to each parent and the denial of the petition for TPR as to each parent. We conclude that the trial court was required to sustain the objections of the parents to exclude the non-party hospital's attorney from the courtroom as the trial was conducted (though we find no reversible error attendant to this ruling). We grant the petition for certiorari to a limited extent, quashing that provision within the order for psychological evaluation of both parents requiring a specific assessment for Munchausen syndrome by proxy. The trial court's directive for a mental health examination for both parents, as part of the case plan to protect the minor child, is affirmed.

I. Facts and Procedural History

At the age of 7, in 2014, the Child was diagnosed with insulin-dependent diabetes. In May 2015, the Child was hospitalized with hypoglycemia, a dangerously low blood sugar level characteristic of diabetes. Hypoglycemia can, in an extreme case, culminate in a diabetic coma or even death.

In April 2016, the Child was sheltered following another hospitalization and reports of abuse, abandonment, or neglect on the part of her parents. The parents were allowed supervised visitation at the hospital, and about two weeks later the Child was allowed by DCF to reside with her maternal aunt. The Child's aunt was allowed to supervise visitation by the parents.

In July 2016, DCF filed a petition for TPR as to both parents, alleging that the parents engaged in egregious conduct threatening the life, safety, or physical health of the Child. The Child had additional hospitalizations for diabetic hypoglycemia in March and April of 2017. The Child's treating endocrinologist contacted DCF to report that the parents were not administering insulin properly.

When the petition for TPR came to trial, an attorney from non-party Nicklaus Children's Hospital was in the courtroom. A physician and other witnesses were subpoenaed for testimony at trial. The parents objected to the presence of the attorney. Counsel for DCF acknowledged that the proceedings were closed, but advised that it had no objection to the presence of the hospital's attorney. The trial court overruled the objection.

After hearing seven days of testimony, the trial court prepared a proposed judgment and conducted a further hearing to allow the parties and their attorneys to review and comment on the proposed judgment. The parents objected to the provision relating to a mandatory mental health evaluation for "Munchausen by proxy," and the court agreed on the record that "There was, as I recall, not a single mention of Munchausen by Proxy in the trial, nor any specific allegation of it."

The medical testimony included, however, opinions by the Child's treating physician and doctors who observed the parents during the Child's March 2016 hospital stay, that the Parents may have administered insulin to the Child against the direct medical advice of the physicians.

II. Analysis

Our standard of review in the consolidated appeals is de novo with respect to the application of the controlling dependency statutes. D.R. v. J.R., 203 So.3d 952, 954 (Fla. 5th DCA 2016). As to factual determinations by the trial court, our review is for competent substantial evidence supporting the findings. T.P. v. Dep't of Children & Family Servs., 935 So.2d 621, 624 (Fla. 3d DCA 2006).

In the case of the related petition for certiorari, we must determine whether the challenged ruling is a departure from the essential requirements of the law, resulting in a material injury for the remainder of the case, such that the injury cannot be corrected in a post-judgment appeal. M.M. v. Florida Dep't of Children & Families, 189 So.3d 134 (Fla. 2016).

A. Denial of the Petition for TPR

The trial court in this case engaged in conscientious and painstaking deliberations regarding the nature of, and intentions behind, the parents' problems with the management of their Child's diabetes. The court ultimately found that "the State failed to prove by clear and convincing evidence that the Parents engaged in egregious conduct and therefore, a termination of parental rights would not be the least restrictive means of protecting the Child from future harm."

While the trial court concluded that there was sufficient evidence for an adjudication of dependency under section 39.811(1)(a), Florida Statutes (2018), it also found that the Parents' problems in following medical instructions regarding the administration of insulin were not shown to be intentional and "were likely due to miscommunication with the Child's physicians" resulting in faulty management of the Child's diabetes.

The trial court credited "persuasive testimony from witnesses that the Parents kept meticulous medication logs; continually and timely brought the Child in for medical treatment and assistance; brought the Child to school and communicated regularly with the school and school nurse, and even slept with the Child so they could monitor her health continually through the night." The trial court balanced the Parents' demonstrated care for the Child with their problems in understanding and applying the medical directives for the management of type I diabetes, a chronic and potentially life-threatening medical condition if not kept under tight control.

As pertinent here, section 39.01(47), Florida Statutes (2018), defines "medical neglect" as:

the failure to provide or the failure to allow needed care as recommended by a health care practitioner for a[n] ... illness [or] medical condition .... Medical neglect does not occur if ... the immediate health condition giving rise to the allegation of neglect is a known and expected complication of the child's diagnosis or treatment and:
...
(b) The parent or legal guardian received conflicting medical recommendations for treatment from multiple practitioners and did not follow all recommendations.

The trial court observed that it had to "consider the possibility that this is a case of a lack of clear communication with the medical professionals perhaps due to a language barrier or a case of some other complex mental health issue that was left unexplored by the Department of Children and Families." We conclude that the trial court relied on competent, substantial evidence in declining to find "egregious conduct" on the part of the parents. Such conduct is one of the fourteen enumerated grounds for TPR, paragraphs 39.806(1)(a) through (m), Florida Statutes (2018).

"Egregious conduct," paragraph (f) of section 39.806(1), includes conduct that "threatens the life, safety, or physical, mental, or emotional health of the child ...." The term is further defined in subparagraph 39.806(1)(f)2 to mean "abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child."

The GAL Program argues on cross-appeal that the physicians' testimony established that the Child experienced "repeated incidents of severe, life-threatening hypoglycemia (low blood sugar)." Although there is evidence in the record in support of the GAL Program's contention, there is also competent, substantial evidence supporting the trial court's finding that "the Child's condition has drastically improved and stabilized since she has been using an insulin pump."

The trial court also found a failure by DCF and the GAL Program to prove by clear and convincing evidence that TPR would be the "least restrictive means of protecting the Child from future harm." The court concluded that "grounds for dependency have been established by a preponderance of the evidence," such that the Child should remain in the care of the maternal aunt while the parents are placed in a case plan for rehabilitation and reunification with the Child.

We find no reversible error in the trial court's careful assessment of the evidence and law relating to the Child's medical condition and future treatment plan, in the court's adjudication of dependency, or in the denial of the petition for TPR.

B. Hospital Counsel's Attendance at Trial

Section 39.809(4), Florida Statutes (2018), includes this clear directive: "All hearings involving termination of parental rights are confidential and closed to the public." As the trial began, the parents objected to the presence of an attorney for the doctors, hospital, and nurses who were to testify. DCF acknowledged that the proceedings were closed, but told the trial court DCF had no objections to counsel's presence. The trial court overruled the parents' objection.

In Natural Parents of J.B. v. Florida Department of Children & Family Services, 780 So.2d 6, 11 (Fla. 2001), the Florida Supreme Court upheld the constitutionality of the special closure provision applicable to TPR proceedings. In the present case, the trial court erred in overruling the parents' objection to the presence of the independent attorney for the medical witnesses.

Applying any existing standard of harmfulness or harmlessness to the error in the light of the record in this case, however, we are unable to discern any degree of harm that would necessitate a new trial or otherwise alter our review of the trial court's findings and adjudication.

C. The Father's Consolidated Petition for Certiorari

We have approved, without comment, the trial court's inclusion of a directive that the case plan for the parents must include "mental health evaluation by a qualified professional who will be able to assess conditions the Parents may have that led to child's lack of proper medical treatment." We have done so because the trial court, DCF, the GAL Program, and the medical testimony in the record have recognized the harm to the Child that could follow if they are unable, after additional training with the infusion pump and further education regarding insulin and hypoglycemia, to understand their daughter's disease and the dangers of hypoglycemia.

The Father's petition for certiorari in consolidated Case No. 3D18-839 also addresses a specific element of the mental health examination directed by the trial court in its separate order entered at the same time as the Final Judgment. The petition addresses the trial court's specific requirement that the mental health professional evaluate "the possibility of the condition of Munchausen Syndrome by Proxy." No medical professional suggested such a diagnosis or possibility at trial, and the trial court acknowledged on the record that there was "not a single mention of Munchausen by Proxy in the trial, nor any specific allegation of it."

This specific mental health assessment requirement lacks "good cause shown" and notice. J.B. v. M.M., 92 So.3d 888, 889 (Fla. 4th DCA 2012). The directive, in isolation, meets the standards we have enumerated for certiorari relief in M.M., above, or this Court's decision in J.G. v. Department of Children & Families, 220 So.3d 555, 556 n.1 (Fla. 3d DCA 2017). We quash the specific provision of the trial court's order requiring the mental health examination of the parents to include "the possibility of the condition of Munchausen Syndrome by Proxy" (though the examining mental health professional's discretion and professional judgment are not precluded from reaching such a diagnosis, to the extent the professional's evaluation is based on other facts and occurrences related in the trial court's order and this opinion).

III. Conclusion

We affirm the adjudication of dependency and the denial of the petition for TPR as to both parents. We grant the consolidated petition for certiorari and quash the specific requirement within the Final Judgment and related order that the mental health evaluation of the parents address "the possibility of the condition of Munchausen Syndrome by Proxy." The case is remanded to the circuit court for the implementation of the case plan and other provisions detailed in the Final Judgment and related order.

      The online medical site "Medline" defines this disorder as:
      "Munchausen syndrome by proxy is a mental illness and a form of child abuse. The caretaker of a child, most often a mother, either makes up fake symptoms or causes real symptoms to make it look like the child is sick." See https://medlineplus.gov/ency/article/001555.htm (site last visited October 22, 2018).

      § 39.806(1)(f), Fla. Stat. (2016).

      The trial court concluded that the Parents failed to follow the medical direction of the Child's treating physicians at the hospital, and that the Parents did not properly manage the Child's insulin intake.

      DCF and the GAL Program acknowledge that the Child was not hospitalized for further hypoglycemic episodes while under the care of the maternal aunt.

      § 39.811(1)(a), Fla. Stat. (2018).

      The Mother (a) joined the Father's petition for certiorari regarding the "Munchausen Syndrome by Proxy" directive in consolidated Case No. 3D18-839, but also (b) raised and briefed the issue separately in her appeal, Case No. 3D18-984. For the avoidance of doubt, our rulings in the appeals and in the petition for certiorari apply to both parents.


author: Wetherell, J.

text:
    Barbara BALZER, Petitioner, v. Cindy RYAN and Hoyt Maxwell, dba North Florida Decorative Concrete, Respondents.
    No. 1D18-3182
    District Court of Appeal of Florida, First District.
    December 31, 2018
    Barbara Balzer, pro se, Petitioner.
    Elwin R. Thrasher, III, Tallahassee, for Respondents.
   Wetherell, J.

In this second-tier certiorari proceeding, Petitioner seeks review of a circuit court appellate decision holding that Respondents are not liable for damaging a tree on Petitioner's property when they cut some of the tree's roots that had encroached onto Respondent Cindy Ryan's property. Because the circuit court's decision does not violate any clearly established principle of law, we deny the petition for writ of certiorari.

Factual and Procedural Background

A large pine tree stood on Petitioner's property near the boundary between her and Ms. Ryan's properties. The tree's roots encroached onto Ms. Ryan's property, damaging the sewer line that ran under her driveway. To fix the sewer line, the driveway had to be removed and replaced, and Ms. Ryan hired Respondent Hoyt Maxwell to do that work. While removing the driveway, Mr. Maxwell cut some of the encroaching tree roots. Although this did not kill the tree, it undermined the tree's structural integrity and increased the risk that the tree might someday fall on Petitioner's house. Accordingly, Petitioner paid to have the tree removed.

Petitioner sued Respondents in county court to recover the costs of removing the tree. After a nonjury trial, the county court entered a final judgment awarding Petitioner only a portion of the costs she incurred. Petitioner appealed the judgment to the circuit court, arguing that the county court erred by not awarding all of her costs. Respondents cross-appealed the judgment, arguing that the county court erred in finding them liable to Petitioner for damaging the tree because Ms. Ryan had the right to cut the tree roots that encroached onto her property.

The circuit court reversed the judgment. The court reasoned that because Petitioner could not be compelled to pay for the damage to Ms. Ryan's sewer line caused by the encroaching tree roots, she likewise had no cause of action against Ms. Ryan if the tree was damaged when Ms. Ryan exercised her "privilege" to cut the roots encroaching onto her property. The court remanded the case for entry of a final judgment dismissing Petitioner's claim against Respondents with prejudice.

Petitioner sought review of the circuit court's decision by filing a petition for writ of certiorari in this court.

Legal Analysis

The scope of our review in this second-tier certiorari proceeding is extremely narrow. See Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So.3d 1086, 1092 (Fla. 2010). Where, as here, it is undisputed that the circuit court afforded the parties procedural due process, our review is limited to determining whether the court's decision "departed from the essential requirements of law." Id. A departure from the essential requirements of law requires something more than mere legal error; it requires a violation of a "clearly established principle of law" resulting in a miscarriage of justice. Id. Clearly established law can derive from controlling precedent, but if there is no controlling precedent, "certiorari relief cannot be granted because '[w]ithout such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly establish[ed] principle of law.' " Dep't of Highway Safety & Motor Vehicles v. Edenfield , 58 So.3d 904, 906 (Fla. 1st DCA 2011) (brackets in original) (quoting Ivey v. Allstate Ins. Co. , 774 So.2d 679, 682 (Fla. 2000) ); see also Nader v. Dep't of Highway Safety & Motor Vehicles , 87 So.3d 712, 723 (Fla. 2012) (explaining that "certiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied") (emphasis in original).

Under Florida law, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner "is privileged to trim back, at [his] own expense, any encroaching tree roots or branches ... which has grown onto his property." Gallo v. Heller , 512 So.2d 215, 216 (Fla. 3d DCA 1987) ; see also Scott v. McCarty , 41 So.3d 989 (Fla. 4th DCA 2010) (noting that Gallo reflects the predominate view around the country) (citing Encroachment of Trees, Shrubbery, or Other Vegetation Across Boundary Line , 65 A.L.R. 4th 603 (1988) ).

The issue in this case, however, is whether the adjoining property owner is liable to the tree owner when the self-help remedy authorized by Gallo causes damage to the tree. There is conflicting authority on this issue in other states, but we have found no Florida case addressing the issue. Accordingly, in the absence of any controlling precedent, it follows that the circuit court did not violate clearly established law in ruling the way that it did.

This conclusion is not undermined by the sole case relied on by Petitioner in her petition for writ of certiorari, McCain v. Florida Power Corp. , 593 So.2d 500 (Fla. 1992). Although the general principles of negligence law discussed in that case have been extended to suits against landowners in certain circumstances, we are not persuaded that those principles are dispositive here because Petitioner did not allege that Respondents' actions caused damage to anything other than the tree whose encroaching roots Ms. Ryan undisputedly had a right to cut, and a rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.

Conclusion

For the reasons stated above, the petition for writ of certiorari is DENIED .

Wolf and Lewis, JJ., concur.

      Clearly established law can also derive from "rules of court, statutes, and constitutional law," see Allstate Ins. Co. v. Kaklamanos , 843 So.2d 885, 890 (Fla. 2003), but Petitioner has not argued that the circuit court's decision violates any rule, statute, or constitutional provision.

      Compare Mustoe v. Ma , 193 Wash.App. 161, 371 P.3d 544 (2016) (holding that landowner does not owe a duty of care to prevent damage to neighbor's tree when cutting roots that are encroaching onto the landowner's property) with Brewer v. Dick Lavy Farms, LLC , 67 N.E.3d 196 (Ohio Ct. App. 2016) (holding that landowner exercising his right to cut encroaching branches from his neighbor's tree must use reasonable care so as not to cause damage to the neighbor's property) and Fliegman v. Rubin , 1 Misc.3d 127A, 781 N.Y.S.2d 624 (N.Y. Sup. Ct. App. Term 2003) (table) (holding that "an adjoining landowner's right to engage in self-help [by cutting encroaching tree roots] 'does not extend to the destruction or injury to the main support system of the tree' " (quoting 1 N.Y. Jur 2d, Adjoining Landowners § 57 ) ) and Booska v. Patel, 24 Cal.App.4th 1786, 30 Cal.Rptr.2d 241, 245 (1994) (holding that landowner had a duty to act reasonably when cutting encroaching roots from a tree on his neighbor's property).

      See , e.g. , Williams v. Davis , 974 So.2d 1052 (Fla. 2007) ; Whitt v. Silverman , 788 So.2d 210 (Fla. 2001). Accord Hardin v. Jacksonville Terminal Co. , 128 Fla. 631, 175 So. 226, 228 (1937) (explaining that "there is no liability on the part of a landowner to persons injured outside his lands ... unless the owner has done or permitted something to occur on his lands which he realizes or should realize involves an unreasonable risk of harm to others outside his land").

      Whether and how the general principles of negligence discussed in McCain and its progeny would apply if Respondents' actions were alleged to have caused damages to persons or property other than the tree is a different issue that is not presented in this case.


author: WILSON, T., Associate Judge.

text:
    Jerry PARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3446
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 31, 2018
    Peyton Bush Hyslop, of Hyslop & Pila, PA, Brooksville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   WILSON, T., Associate Judge.

After pleading no contest to possession of ammunition by a convicted felon, Jerry Parker appealed the denial of his dispositive motion to dismiss, where he alleged that section 790.23(2)(a), Florida Statutes (2017), unconstitutionally infringed on the executive branch's authority to restore civil rights. We disagree and affirm the trial court's denial of Parker's motion to dismiss.

In 1987, Parker was convicted of burglary of a structure, a third-degree felony. One year later, the Office of Executive Clemency ("the executive branch") restored Parker's civil rights except the specific authority to possess or own a firearm. In 2017, police searched Parker's home pursuant to a search warrant and discovered twelve rounds of live ammunition on his nightstand. The State charged Parker with possession of ammunition by a convicted felon in violation of section 790.23(1)(a).

Parker moved to dismiss the information, arguing that the legislature, by implementing section 790.23(2)(a), infringed on the executive branch's power to restore civil rights. He also alleged that when the governor restored his rights, he obtained the right to possess all property, including ammunition, and any restriction thereof amounted to a due process violation. Parker's argument lacks merit, and as such, the trial court did not err in denying his motion to dismiss.

"A trial court's decision on the constitutionality of a statute is subject to de novo review." Crist v. Fla. Ass'n of Crim. Def. Lawyers, Inc. , 978 So.2d 134, 139 (Fla. 2008) (citations omitted). There is a "well-established principle that a legislative enactment is presumed to be constitutional." Lawnwood Med. Ctr., Inc. v. Seeger , 990 So.2d 503, 508 (Fla. 2008) (citing Fla. Dep't of Rev. v. City of Gainesville , 918 So.2d 250, 256 (Fla. 2005) ). Whenever possible, courts should construe a challenged law to effect a constitutional outcome. Fla. Dep't of Rev. v. Howard , 916 So.2d 640, 642 (Fla. 2005) (citations omitted).

Section 790.23, Florida Statutes (2017), provides, in pertinent part:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state;
....
(2) This section shall not apply to a person:
(a) Convicted of a felony whose civil rights and firearm authority have been restored.

(emphasis added).

Article IV, section 8 of Florida's Constitution provides, in part, that "the governor may, by executive order ... restore civil rights ...." Fla. Const. art. IV, § 8. The authority to restore civil rights belongs solely to the executive branch and cannot be infringed upon by the legislative or judicial branches. See Sullivan v. Askew , 348 So.2d 312, 314-16 (Fla. 1977) ; France v. State , 436 So.2d 428, 430 (Fla. 5th DCA 1983). Moreover, the executive branch's authority to restore an individual's civil rights is discretionary. See United States v. Owens , 15 F.3d 995, 997 (11th Cir. 1994) (discussing how Florida law "dictates that the restoration of civil rights resides within the discretionary power of the governor ..."). Thus, it is within the executive branch's discretionary authority to grant a full or partial restoration of civil rights, and an individual is not constitutionally deprived by receiving only a partial restoration of his or her civil rights. See France , 436 So.2d at 430-31 ; Thompson v. State , 438 So.2d 1005, 1006 (Fla. 2d DCA 1983) ; Williams v. State , 402 So.2d 78, 79 (Fla. 1st DCA 1981).

The crux of Parker's argument is that the restoration of rights permitted him to possess all things except a firearm, and any limitation on what he could possess violated his due process rights. Parker's argument misses the point. In this case, the governor only partially restored Parker's civil rights, which did not include the specific right to possess a firearm. In its role as the state's lawmaking body, the legislature has expressly prohibited felons who have not been granted the authority to possess a firearm from possessing ammunition. Therefore, in the hands of a convicted felon, who has received only a partial restoration of civil rights, ammunition is akin to contraband. As Parker was not granted authority to possess a firearm, section 790.23 also prohibited him from possessing ammunition.

The statute's plain language leads to the conclusion that the legislature has not usurped the executive branch's authority regarding restoration of rights under subsection (2)(a). Subsection (2)(a) works in conjunction with, not in the place of, the executive branch's sole authority to restore civil rights to convicted felons. As such, this Court affirms.

AFFIRMED.

TORPY and GROSSHANS, JJ., concur.


author: EDWARDS, J.

text:
    STATE of Florida, Appellant, v. Emmanuel BUTLER, Appellee.
    Case No. 5D17-1823
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 4, 2019 Rehearing Denied February 11, 2019
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    Philip Massa, West Palm Beach, for Appellee.
   EDWARDS, J.

Emmanuel Butler was found guilty by a jury of first-degree murder. The State appeals the trial court's order giving Butler a new trial based on the trial court's finding that the State's failure to disclose certain information about a witness, Brodie Hamilton, hindered Butler's cross-examination regarding that witness's credibility. We agree that the trial court committed reversible error, and we remand for entry of a judgment consistent with the jury's verdict.

Butler's conviction was based in part on recorded conversations obtained by Hamilton, a man who had prior felony convictions and was facing prison on new charges. Hamilton approached the state attorney's office seeking probation instead of prison on the new charges if he could provide law enforcement with recorded conversations of Butler and another man, Miller, regarding this crime. The state attorney's investigators did not trust Hamilton, as he had lied to them before; however, they were willing to arrange for Hamilton to meet with Butler and Miller, separately, while Hamilton wore both an audio transmitter and an audio recording device.

In the recorded conversation, Butler told Hamilton that he went after the victim when he saw the brand new car the victim was driving; however, the victim had no cash when Butler confronted him at the victim's apartment complex laundry room. Butler told Hamilton that he killed the victim with a .357 caliber gun.

The medical examiner's testimony confirmed that the fatal bullet came from a medium-sized revolver, such as a .357. At trial, the state introduced two images of Butler holding a .357 revolver that he had posted on his Facebook page, one a week before and the other a week after the murder.

The jury was shown surveillance video from the date of the murder depicting the victim arriving at his apartment complex in a white Mitsubishi, going into the apartment complex, and being followed in by an unidentified male figure. Shortly afterwards, the same car is seen leaving that complex at a relatively high speed. Video from a different apartment complex shows the same car and a male figure talking on a cell phone as he leaves the car. The date and time stamp of the video corresponded with one of the many cell phone calls between Miller and Butler. The State also introduced a recorded phone call between Butler and his girlfriend in which Butler, using code, could be understood to admit to the crimes. The jury listened to the recordings of Butler and Hamilton and of Butler and his girlfriend when initially published at trial and again during deliberations.

By agreement of the parties Hamilton did not testify at trial. The State laid the foundation for introduction of Hamilton's recording of Butler's confession through the testimony of an investigator from the state attorney's office. That investigator testified that Hamilton had about ten prior felony convictions and was facing serious narcotics related criminal charges with possible prison time of fifteen years or more. The investigator told the jury that Hamilton came to them looking for a deal where he could receive probation instead of prison time on the open charges. During cross-examination by Butler's lawyer, the investigator repeated the information about Hamilton's background and his motivation for recording Butler. The investigator then confirmed to defense counsel that Hamilton had lied to them about the extent of his own knowledge of the crime. The investigator made it clear that Hamilton's recitation of any conversation with Butler was of no interest; it had to be a recorded conversation because the investigator did not trust Hamilton. Furthermore, a police officer testified at trial that he did not trust Hamilton. Thus, even though he did not testify, Hamilton's motivation and credibility were thoroughly developed at trial.

After the verdict was returned, but before Butler was sentenced, the State learned that Hamilton had received one hundred dollars from the police to buy a bus ticket to go to his mother's house and that he received two hundred dollars from Crime Stoppers for providing information about the crime. The police agreed to provide him with money for the bus ticket because Hamilton and Butler were members of the same gang, and there was concern for Hamilton's safety after he "ratted out" Butler to the police. The Crime Stoppers reward of two hundred dollars was paid by the victim's family as part of an overall reward offered of fifteen thousand dollars. The police officers had no recollection of providing any of this information to the State prior to trial.

The State promptly disclosed this information to Butler, who asserted that it was a Brady violation and that if he had this information earlier he would have been able to more effectively cross-examine and impeach Hamilton. At the hearing on Butler's Brady motion, the trial court agreed that nothing in the recently disclosed information would change what was in the recorded conversation between Butler and Hamilton. Nevertheless, the trial court concluded it was a Brady violation and that Butler was entitled to a new trial.

"The Brady rule requires that the prosecution not suppress evidence favorable to an accused where that 'evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' " Boyd v. State , 910 So.2d 167, 179 (Fla. 2005) (quoting Brady , 373 U.S. at 87, 83 S.Ct. 1194 ). Thus, a " Brady violation occurs 'when the government fails to disclose evidence materially favorable to the accused.' " Hurst v. State , 18 So.3d 975, 988 (Fla. 2009) (quoting Youngblood v. West Virginia , 547 U.S. 867, 869, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) ). "The government's obligation to disclose materially favorable evidence extends to both exculpatory and impeachment evidence, and to evidence that is known only to police investigators and not to the prosecutor." Id. (internal quotation marks and citations omitted). "In order to demonstrate a Brady violation, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced." Id. (citing Strickler v. Greene , 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ). It can certainly be argued that the payment of three hundred dollars to Hamilton constituted evidence favorable to Butler's defense, and there is no doubt that it was not provided to the defense in a timely fashion, prior to trial. Thus, the only issues we need to focus on is whether the evidence was material and whether Butler was prejudiced by not receiving that information prior to trial.

"To meet the materiality prong of Brady , the defendant must demonstrate 'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Franqui v. State , 59 So.3d 82, 101 (Fla. 2011) (quoting Strickler , 527 U.S. at 280, 119 S.Ct. 1936 ). "The materiality inquiry is not satisfied by simply discounting the inculpatory evidence in light of the undisclosed evidence and determining if the remaining evidence is sufficient." Id. at 102. "Rather, the question is whether 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' " Id. (quoting Strickler , 527 U.S. at 290, 119 S.Ct. 1936 ). Butler cannot identify how the previously undisclosed information would have been used to further undermine Hamilton's credibility. Nor can we conclude that there is reason to believe that Hamilton's credibility before the jury would have been diminished further by information that Hamilton had received three hundred dollars essentially for getting Butler's confession on tape. That previously undisclosed evidence was only cumulative impeachment evidence which was unlikely to change the jury's view of Hamilton's credibility. See Rivera v. State , 187 So.3d 822, 839 (Fla. 2015) (holding that where a witness's motivation for testifying-seeking reduced jail time-was thoroughly explored and his credibility was impeached by evidence of multiple felony convictions, no new trial was warranted because the undisclosed information was largely cumulative of the disclosed and utilized impeachment evidence).

Hamilton's contribution to the case was not his testimony or credibility; rather, it was obtaining Butler's confession in a recording that was played for the jury. Even if Hamilton's credibility was somehow further diminished by his receipt of three hundred dollars, Butler has not shown how that would impact the jury's consideration of Butler's recorded confessions to Hamilton and to his girlfriend. The trial court's conclusion that this information "might have affected the defense's strategy" is insufficient. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Nixon v. State , 932 So.2d 1009, 1019 (Fla. 2006) (quoting United States v. Agurs , 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ). There is nothing in the record to suggest or support a conclusion that the verdict in Butler's case would have been different had he known earlier of the three-hundred-dollar payment made to Hamilton.

Accordingly, we find that the trial court erred in granting Butler a new trial based on an alleged Brady violation. We reverse and remand for entry of judgment consistent with the jury's verdict and this opinion.

REVERSED AND REMANDED.

WALLIS and HARRIS, JJ., concur.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    Raymond STRONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1509
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 4, 2019 Rehearing Denied January 29, 2019
    Diane K. Davison, of Law Office of Diane K. Davison, PL, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Raymond Strong was convicted following trial of aggravated battery on a pregnant person and false imprisonment and brings this appeal. We affirm his convictions without further discussion. However, because we agree with Strong that the trial judge fundamentally erred when she injected Strong's failure to show remorse as a factor in sentencing, we vacate the sentences and remand for resentencing before a different judge.

Strong testified at trial that he did not touch the victim and essentially was not present when the victim was injured. The jury found otherwise, and the trial judge deferred sentencing. At this later hearing, Strong's counsel very briefly argued one statutory ground under section 921.0026(2), Florida Statutes (2015), for a downward departure sentence. Notably, Strong did not seek a departure sentence on the basis that the "offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." See § 921.0026(2)(j), Fla. Stat. (2015).

Strong also spoke at his sentencing and steadfastly maintained his innocence. He expressed no remorse, made no apology or expression of sympathy for or empathy towards the victim, nor suggested that he had become rehabilitated subsequently to the trial. Strong continued to deny responsibility for the crimes for which he stood convicted and primarily laid blame for his convictions on the failings of society as a whole as well as "corrupt judges, attorneys and policemen." Strong concluded that his intent going forward was "to clear his name." In response, the State did not argue to the trial judge that she should consider Strong's lack of remorse or failure to take responsibility for his crimes when imposing sentence. The trial judge, however, in pronouncing sentence, related that it was Strong's "failure to have any kind of remorse" and his insistence on being respected both as a person and a father that caused her to conclude that a downward departure sentence was inappropriate.

As a general rule, a court "may not base its sentencing decision on a defendant's lack of remorse or failure to take responsibility." Catledge v. State , 255 So.3d 937, 940 (Fla. 1st DCA 2018) (citing Hayes v. State , 150 So.3d 249, 251 (Fla. 1st DCA 2014) ). Further, "[w]here 'a statement made by the trial court can reasonably be read only as conditioning the sentence, at least in part, upon appellant's claim of innocence,' fundamental error occurs." Id. (quoting Macan v. State , 179 So.3d 551, 553 (Fla. 1st DCA 2015) ); see also Whitmore v. State , 27 So.3d 168, 172 (Fla. 4th DCA 2010) (ruling that fundamental error occurred when the court based its sentence on the defendant's lack of remorse and refusal to accept responsibility).

The State asserts that this general rule is not absolute and that under Catledge , and this court's opinion in Corbitt v. State , 220 So.3d 446 (Fla. 5th DCA 2016), the trial judge's consideration of Strong's lack of remorse was appropriate here because it was done in the context of determining whether any grounds for mitigation of Strong's sentences existed, and not in fashioning the sentence. Corbitt and Catledge are readily distinguishable from the case at hand.

In Corbitt , the parties entered into a plea agreement during trial. 220 So.3d at 448. The agreement provided that Corbitt would enter a plea to two of the charges, the State would waive the minimum mandatory sentences applicable to these two counts, and it would file a nolle prosequi to all remaining charges. Id. As a result, Corbitt's sentencing range was 16.85 years to life in prison. Id. During the subsequent plea colloquy, a factual basis for the plea was established, Corbitt admitted his involvement in the two charged crimes, and he specifically testified to shooting one of the victims. Id.

Prior to sentencing, Corbitt moved to withdraw his plea. Id. at 449. At the hearing on his motion, Corbitt argued that at the time he executed the plea agreement, he did not understand that life in prison was still a potential sentence. Id. The court denied the motion and then proceeded with sentencing. Id. Corbitt then shifted gears as to his culpability for the crimes. Id. Although he still acknowledged some involvement in the crimes, Corbitt made "excuses for his misconduct in an attempt to mitigate his sentence," claimed not to remember the shooting, and asserted that his now-deceased accomplice "was primarily responsible for the crimes." Id. He also presented several witnesses who testified in mitigation. Id. The trial court, in considering the appropriate sentence and whether mitigating factors existed, noted that Corbitt accepted little responsibility for his actions. Id. at 450.

We did hold that the trial court properly considered Corbitt's lack of responsibility or remorse in attempting to find mitigating factors during sentencing. Id. at 452. Nevertheless, our court expressly recognized the continued viability of the general rule prohibiting the trial court from considering a defendant's lack of responsibility or remorse "in cases where the defendant entered a plea of not guilty, proceeded to trial, and continued to maintain his innocence at sentencing." Id. at 453-54. However, we concluded that this rule had no application when the defendant waived his rights, entered a plea, and admitted his guilt. Id. at 454. Here, and unlike the defendant in Corbitt , Strong never admitted guilt or his involvement in the crimes for which he was convicted and maintained his innocence at sentencing.

In Catledge , the First District Court observed that in seeking mitigation of his sentence for false imprisonment, the defendant specifically injected the issue of remorse, including a statement of apology, into the proceedings. 255 So.3d at 938. The court held that by the defendant doing so, the trial court thereafter properly considered all factors relevant to mitigation, including the defendant's remorse or lack thereof. Id. In contrast, Strong never injected or argued remorse as a basis for mitigating his sentence and made no apology.

We find that the present case is more analogous to the Third District Court of Appeal's case of Lawton v. State , 207 So.3d 359 (Fla. 3d DCA 2016). There, like here, the defendant asserted one ground for a downward departure sentence, unrelated to section 921.0026(2)(j), Florida Statutes, which specifically allows the trial judge to consider a defendant's remorse for his crimes. Id. at 360. Moreover, the defendant never raised issues of remorse or rehabilitation in his argument to the court for mitigation. Id. The State argued against a downward departure non-prison sentence, commenting that the defendant "has, still to this day, not expressed any remorse for what he's done." Id. The trial court agreed and imposed a prison sentence. Id. at 361. The Third District Court vacated the defendant's sentence, finding that under the circumstances, the trial court's consideration of the defendant's lack of remorse in sentencing constituted fundamental error. Id. at 361 (citing Davis v. State , 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) ).

In the present case, we conclude that the trial judge sua sponte injected and thus improperly considered Strong's lack of remorse in imposing sentence. Accordingly, we affirm Strong's convictions, vacate his sentences, and remand with directions that Strong be resentenced before a different judge.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED for RESENTENCING.

EVANDER, C.J., and COHEN, J., concur.

LAMBERT, J., concurring specially with opinion.

LAMBERT, J., concurring specially.

I agree with the majority opinion. But for the trial judge's expressed consideration of remorse when fashioning Strong's prison sentence, I suspect that this case would have been affirmed without opinion. I write briefly to address the resentencing process.

Based on our decision today, Strong will now appear before a successor judge. That judge will be required to become acquainted with what transpired at trial so that whatever sentence he or she may impose is a product of independent judgment. See Ross v. State , 958 So.2d 442, 443 (Fla. 4th DCA 2007). Resentencing proceedings are a "clean slate." The defendant's vacated sentence is a nullity, and resentencing proceeds de novo on all issues bearing on a proper sentence. See Branton v. State , 187 So.3d 382, 385 (Fla. 5th DCA 2016) (quoting Galindez v. State , 955 So.2d 517, 525 (Fla. 2007) (Cantero, J., specially concurring) ). Both the State and Strong may produce additional evidence and argument at resentencing and are not limited to the evidence presented, or not presented, at the original sentencing. See id. (citing Lucas v. State , 841 So.2d 380, 387 (Fla. 2003) ).

So that it is clear, Strong's now-vacated sentences did not impose a ceiling on the sentences that the successor judge may impose at resentencing. Having been convicted of a second-degree felony and a third-degree felony, Strong is now facing an aggregate sentence of up to twenty years in prison, which is considerably longer than the original concurrent prison sentences Strong received. If the successor judge chooses to impose a harsher sentence, there is no presumption of vindictiveness in violation of North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), because the judge did not impose the original sentence. See Richardson v. State , 821 So.2d 428, 430 (Fla. 5th DCA 2002). Absent proof of actual vindictiveness by the successor judge, he or she is free to impose any lawful sentence. See Allende v. State , 942 So.2d 950, 951 (Fla. 5th DCA 2006) (citing Richardson , 821 So.2d at 430 ).

      See Fla. R. Crim. P. 3.700(c)(1).