author: Per Curiam. Wolf, J., concurring.

text:
    Paul D. ST. ONGE, Jr., Appellant, v. Melissa T. CARRIERO, Appellee.
    No. 1D17-3943
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Kristina M. Cook, Navarre, for Appellant.
    Clay B. Adkinson, DeFuniak Springs, for Appellee.
   Per Curiam.

Paul D. St. Onge, Jr. (Former Husband) and Melissa T. Carriero (Former Wife) dissolved their marriage in 2013. Two minor children were born of the marriage. In 2014, Former Wife sought to modify the child support provision of the original final judgment of dissolution, which incorporated the parties' marital settlement agreement. In 2017, she moved to hold Former Husband in contempt of court for failing to pay one-half of the children's uncovered medical and dental expenses. In separate orders, the trial court modified Former Husband's child support obligation and held Former Husband in contempt. Former Husband appeals both orders. We affirm the modification of child support without further discussion. However, we reverse the contempt order.

A trial court may hold a party in contempt for intentionally failing to comply with a court order. Rojo v. Rojo , 84 So.3d 1259, 1261-62 (Fla. 3d DCA 2012). To support a contempt finding, the violated order must clearly and definitely make the party aware of the court's command. M.J. v. State , 202 So.3d 112, 113 (Fla. 5th DCA 2016). "[W]hen a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order." Keitel v. Keitel , 716 So.2d 842, 844 (Fla. 4th DCA 1998).

It is undisputed that the marital settlement agreement here requires Former Husband to pay one-half of the children's uncovered medical and dental expenses. However, Former Wife was seeking reimbursement for orthodontic expenses. The marital settlement agreement did not contain a definition of dental expenses. A portion of the agreement, which was left blank, specifically referred to medical, dental, and orthodontic expenses as three separate categories of expenses. And it was error for the trial court to find that payment for orthodontic expenses was implied in the requirement to pay for dental expenses.

Harris v. Hampton , 70 So.3d 747, 749 (Fla. 4th DCA 2011) (holding that an implied provision of a marital settlement agreement cannot serve as the basis for an order of contempt); Cooley v. Moody , 884 So.2d 143, 145 (Fla. 2d DCA 2004) ("[T]he law affords [the mother] the right to read the order as expressly written because the law also imposes upon the court the requirements to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction."). Because the marital settlement agreement was silent on the payment of orthodontic expenses, the trial court erred in holding Former Husband in contempt for failing to pay these expenses.

Further, the contempt order is defective because the trial court did not make an affirmative finding that Former Husband had the present ability to pay the purge amount. See Fla. Fam. L. R. P. 12.615(e) ; Martyak v. Martyak , 873 So.2d 405, 407 (Fla. 4th DCA 2004) (holding that a trial court must make separate affirmative findings that the alleged contemnor has the ability to pay the purge amount and the basis for such ability). Contrary to Former Wife's argument, the transcript of the final hearing, which shows that Former Husband arguably has the ability to pay the purge amount, cannot substitute for the affirmative finding that the contemnor has the ability the pay the purge. Jensen v. Jensen , 35 So.3d 972 (Fla. 5th DCA 2010).

We, therefore, affirm the order on child support and reverse the order on contempt.

AFFIRMED in part, REVERSED in part, and REMANDED .

Lewis and Rowe, JJ., concur;

Wolf, J., concurring with opinion.

Wolf, J., concurring.

I concur in the result in this case but write to emphasize the importance of the wording of the settlement agreement in determining whether the requirement to pay dental expenses is specific enough to encompass orthodontic expenses.

The common meaning of orthodontics is "a branch of dentistry dealing with irregularities of the teeth ... and their correction ...." https://www.merriam-webster.com/dictionary/orthodontics (last visited July 25, 2018) (emphasis added). If the agreement had not created ambiguity, I would find that the requirement to pay uncovered dental expenses is sufficiently clear to support a finding of contempt for failing to pay orthodontic expenses.

      I would also note that this court's holding only addresses the clarity required for a finding of contempt and does not specifically address whether the trial court can construe the settlement agreement to cover orthodontic expenses.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cory LISENBEE, Appellant, v. Dean WHITMAN, Appellee.
    Case No. 5D18-396
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2018 Rehearing Denied September 20, 2018
    Cory Lisenbee, Lake Mary, pro se.
    Joseph S. Justice, of Ringer, Henry, Buckley & Seacord, PA, Orlando, for Appellee.
   PER CURIAM.

The trial court properly dismissed Appellant's amended complaint with prejudice. The applicable statute of limitations had run, and Appellant admittedly failed to comply or plead compliance with the mandatory presuit investigation and notice requirements set forth in chapter 766, Florida Statutes.

AFFIRMED.

ORFINGER, EVANDER and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    Jose A. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1254
    District Court of Appeal of Florida, First District.
    August 24, 2018 Rehearing Denied September 26, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jose A. Gonzalez was 16 years, 10 months old when he committed first degree murder by stabbing a stranger twelve times. Following a jury trial, he was sentenced to life pursuant to the sentencing scheme later invalidated in the wake of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Gonzalez' sentence was thus vacated, and the cause remanded for resentencing. Gonzalez v. State , 177 So.3d 1266 (Fla. 2015). Following an evidentiary hearing, he again was sentenced to life with the opportunity for early release with a review hearing to be held in accordance with sections 775.082(1)(b)1. and 921.1402(2)(a), Florida Statutes (2016). Gonzalez now challenges that sentence.

We reject Gonzalez' argument that a jury, rather than a circuit judge, must pass on the factors set forth in section 921.1401(2). See Copeland v. State , 240 So.3d 58 (Fla. 1st DCA 2018) ; Beckman v. State , 230 So.3d 77 (Fla. 3d DCA 2017). As for the decision of the trial court to impose a life sentence, we find no error in the conclusion that the case at bar presents the "uncommon circumstance" where life imprisonment constitutes an appropriate sentence for a homicide offense committed by a juvenile. Copeland , 240 So.3d at 59. Prior to resentencing, the trial court received evidence and substantial argument regarding the sentencing considerations set forth in section 921.1401(2)(a)-(j). The trial court issued a detailed sentencing order analyzing the statutory factors. No error has been shown.

AFFIRMED .

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Noni Jamil STINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2675
    District Court of Appeal of Florida, First District.
    September 12, 2018
    Noni Jamil Stinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    Angela LAY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2692
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 14, 2018
    Mike Graves, Public Defender, and Amanda Sizemore, Assistant Public Defender, Ocala, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 9, 2018 order on motion to mitigate and the July 10, 2018 amended judgment and sentence rendered in Case No. 2016-CF-1928, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Donald DICKERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1146
    District Court of Appeal of Florida, First District.
    September 12, 2018
    Donald Dickerson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    John M. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-0456
    District Court of Appeal of Florida, First District.
    September 12, 2018
    Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville; John M. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Ray, Makar, and Bilbrey, JJ., concur.


text:
    Ricky VIVEIROS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3496
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 14, 2018
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without further discussion, Ricky Viveiros's judgment and sentence imposed in this case. However, we remand for the trial court to enter a written order to specifically reflect the conditions of violation that the trial court orally announced. See Lewis v. State, 8 So.3d 370, 371 (Fla. 5th DCA 2009) ; Payne v. State, 920 So.2d 742, 743 (Fla. 5th DCA 2006). Further, the record reflects two condition 5 violations but the State only proceeded on one condition 5 violation. On remand, the written order should only reflect the violation for disorderly intoxication. See Kemp v. State, 135 So.3d 347, 347-48 (Fla. 1st DCA 2013).

AFFIRMED and REMANDED with Instructions.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Todd James HART, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3438
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 14, 2018
    O.H. Eaton, Jr., and Lori D. Loftis, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the revocation of Appellant's probation. However, because the order of revocation does not accurately reflect the trial court's oral findings, we remand so that the order can be corrected.

An evidentiary hearing was held with regard to allegations that Appellant violated his probation. At the conclusion of the hearing, the court found and orally announced that Appellant violated his probation by failing to report to his officer, failing to complete substance abuse treatment, drinking alcohol heavily, and committing home-invasion robbery as well as resisting police without violence. The court found the violations to be willful, material, and substantial.

The court's written order correctly stated that Appellant violated certain numbered conditions of his probation that corresponded with failing to report to his probation officer and failing to live without violating any law. The written order also noted that the revocation of Appellant's probation was, in part, for his failure to notify his probation officer of a change in residence or employment; however, the court made no such oral pronouncement. Additionally, the written order failed to include the trial court's oral findings that Appellant violated his probation by drinking heavily and not completing his substance abuse treatment. Where the oral pronouncement of revocation conflicts with the written order, the oral pronouncement controls. Thompson v. State , 965 So.2d 1250, 1251 (Fla. 1st DCA 2007) (citing Cockrell v. State , 823 So.2d 322, 323 (Fla. 2d DCA 2002) ). Accordingly, we affirm the revocation of Appellant's probation and the resulting sentence, but reverse for entry of a corrected order of revocation that accurately reflects the oral findings of the trial court. See Desue v. State , 605 So.2d 933, 935 (Fla. 1st DCA 1992).

AFFIRMED AND REMANDED FOR ENTRY OF CORRECTED ORDER.

WALLIS, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Thomas R. JAMES, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-3482
    District Court of Appeal of Florida, First District.
    September 18, 2018
    Thomas R. James, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Wolf, Lewis, and Rowe, JJ., concur.


text:
    Jennifer Van BERGEN, Appellant, v. KOPPEL, Scott T., DPM, Appellee.
    No. 1D18-2991
    District Court of Appeal of Florida, First District.
    September 18, 2018
    Jennifer Van Bergen, pro se, Appellant.
    Joseph E. Brooks and Jami M. Kimbrell of Brooks Law, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . Snelson v. Snelson , 440 So.2d 477 (Fla. 5th DCA 1983).

Makar, Osterhaus, and M.K. Thomas, JJ., concur.


text:
    James W. MCGRIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2979
    District Court of Appeal of Florida, First District.
    September 18, 2018
    James W. McGriff, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Makar, Osterhaus, and M.K. Thomas, JJ., concur.


text:
    Jonathan HARDT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2566
    District Court of Appeal of Florida, First District.
    September 18, 2018
    Jonathan Hardt, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. Civ. P. 1.090(b) ; Payne v. Jones , 183 So.3d 1130 (Fla. 1st DCA 2015).

Wolf, Kelsey, and Jay, JJ., concur.


text:
    Franklin PEREZ, Appellant, v. Jim CUCCIA, Anna Cuccia, and Patrick Lange, Appellees.
    No. 1D17-4026
    District Court of Appeal of Florida, First District.
    September 18, 2018
    S. Hunter Malin of Heekin Litigation Group, Jacksonville, for Appellant.
    No appearance, for Appellees.
   Per Curiam.

AFFIRMED . Shelswell v. Bourdeau , 239 So.3d 707, 708 (Fla. 4th DCA 2018) ; Vorbeck v. Betancourt , 107 So.3d 1142, 1147 (Fla. 3d DCA 2012).

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Amos Donald BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0183
    District Court of Appeal of Florida, First District.
    September 20, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Frank Xavier Moehrle Jr., Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges his criminal judgment and sentence, arguing the trial court erred by adjudicating him guilty although he had not entered a plea.

A trial court is required to inquire into a defendant's understanding of a plea so that the record contains information showing the defendant entered into the plea intelligently and voluntarily. Davis v. State , 187 So.3d 1284 (Fla. 1st DCA 2016). Here, the record shows the trial court conducted part of a plea colloquy but then abandoned it because appellant was not aware of the mandatory minimum sentence he was facing. In fact, the trial court stated on the record that it was resetting the hearing "[f]or plea hopefully." At the subsequent hearing, the parties and the trial court mistakenly believed appellant had already entered a plea, and the court proceeded to sentence appellant without first conducting a colloquy. The trial court thereby violated Florida Rule of Criminal Procedure 3.172(c). See Davis , 187 So.3d at 1284.

Accordingly, we REVERSE and REMAND with instructions either to conduct a plea colloquy before entering a judgment and sentence or to allow appellant to proceed with a trial.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Linda M. FEHLING, Appellant, v. David K. FEHLING Sr., Appellee.
    No. 1D18-2762
    District Court of Appeal of Florida, First District.
    September 18, 2018
    Linda M. Fehling, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

DISMISSED . Fla. R. App. P. 9.110(b).

Wolf, Rowe, and Kelsey, JJ., concur.


text:
    Ronny LANDINGIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4973
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Brett Spencer Chase of Chase Law Florida, P.A., St. Petersburg, for Petitioner.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED . See Hart v. State , 43 Fla. L. Weekly D1232, --- So.3d ----, 2018 WL 2472451 (Fla. 1st DCA June 4, 2018).

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    Kareem Abdul JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1488
    District Court of Appeal of Florida, First District.
    September 20, 2018
    Kareem Abdul Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Kareem Abdul Johnson, appeals from an order dismissing his Motion for Correction of Jail Credit and/or Prison Time Credit. The trial court dismissed the motion with prejudice, deeming it untimely pursuant to Florida Rule of Criminal Procedure 3.801. However, although the Appellant's motion cited to rule 3.801, which governs claims for additional jail credit, it requested prison credit for the time served from the date of his sentencing hearing until his resentencing hearing following the reversal of his original sentences on direct appeal. Thus, Appellant's motion should have been construed pursuant to Florida Rule of Criminal Procedure 3.800(a). See Calderon v. State , 138 So.3d 589, 589 (Fla. 2d DCA 2014). In response to this Court's Toler order, the state concedes that remand is required to permit the trial court to consider the motion pursuant to rule 3.800(a). Under these circumstances, we reverse and remand for further proceedings.

REVERSED and REMANDED.

Makar, Osterhaus, and Jay, JJ., concur.

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    J.S.C., Father of G.I.C., Appellant, v. T.I.R. and M.A.N., Appellees.
    No. 1D18-2557
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Megan Peak, Assistant Regional Conflict Counsel, Panama City, and Susan Barber, Assistant Regional Conflict Counsel, Tallahassee, Office of Candice K. Brower, Criminal Conflict & Civil Regional Counsel, for Appellant.
    No appearance for Appellees.
   Per Curiam.

Appellant seeks review of a Final Judgment and Order on Report and Recommendation on Petition for Termination of Parental Rights and Adoption. However, this order does not finally dispose of the issue of termination of parental rights. J.A. v. Dep't of Children & Families , 18 So.3d 665 (Fla. 1st DCA 2009) ; E.S. v. Dep't of Children & Families , 836 So.2d 1089 (Fla. 1st DCA 2003). Therefore, the appeal is premature and is hereby dismissed for lack of jurisdiction.

MAKAR, OSTERHAUS, and WINSOR, JJ., concur.


text:
    Abraka OKPOSIO, Appellant, v. BARRY UNIVERSITY (MAIN CAMPUS), Appellee.
    No. 1D17-4106
    District Court of Appeal of Florida, First District.
    September 25, 2018
    Abraka Okposio, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

Appellant, Abraka Okposio, a Canadian citizen, appeals a Notice of Dismissal entered by the Florida Commission on Human Relations ("Commission") wherein the Commission dismissed Appellant's Public Accommodations Complaint in which he claimed that Appellee, Barry University, discriminated against him based on race and national origin because it would not assist him with financing his third year of law school. In its Notice of Dismissal, the Commission informed Appellant that it did not have authority to investigate his charge of discrimination. Appellant challenges the Commission's dismissal based upon his contention that Appellee is a place of "public accommodations" under the Florida Civil Rights Act of 1992 ("Act") because it has libraries or "places of entertainment" on its premises. For the following reasons, we reject Appellant's argument and affirm.

The general purposes of the Act are to:

secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

§ 760.01(2), Fla. Stat. (2016). Section 760.08, Florida Statutes (2016), provides that "[a]ll persons are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, national origin, sex, pregnancy, handicap, familial status, or religion." The term "[p]ublic accommodations" is defined as "places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments." § 760.02(11), Fla. Stat. (2016). Each of the following establishments "which serves the public is a place of public accommodation within the meaning" of subsection (11):

(a) Any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than four rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his or her residence.
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment, or any gasoline station.
(c) Any motion picture theater, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment .
(d) Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment .

§ 760.02(11), Fla. Stat. (2016) (emphasis added).

The goal of statutory construction, which is a pure question of law reviewable de novo, is to identify the Legislature's intent. Schoeff v. R.J. Reynolds Tobacco Co. , 232 So. 3d 294, 301 (Fla. 2017). When a statute is clear and unambiguous, a court must use the plain language of a statute and avoid rules of statutory construction to determine legislative intent. Id. Where statutory language is unclear or ambiguous, statutory construction rules should be applied. Id. at 302. One such rule requires courts to presume that the Legislature intended the words it chose to include in a statute. Id. Under the canon of construction expressio unius est exclusio alterius, the supreme court has reasoned that "the Legislature purposefully excluded items not included in a list." Id.

In support of his argument on appeal, Appellant relies upon the fact that section 760.02(11) does not expressly exclude libraries from the definition of "public accommodations." However, under the doctrine of expressio unius est exclusio alterius, it can be said that the Legislature purposefully excluded libraries from the definition of "public accommodations" by not including them therein. While Appellant argues that a library could be considered a "place of entertainment" under section 760.02(11)(c), we disagree. A library is distinct from a "motion picture theater, theater, concert hall, sports arena, [or] stadium." Although Appellant cites United States v. DeRosier , 473 F.2d 749, 751-52 (5th Cir. 1973), in support of his argument that a library should be considered a place of entertainment, the place at issue in that case was a "neighborhood bar," not a library. In addressing this issue, we find it of interest that 42 U.S.C.A. § 12181(7)(H), which is part of the federal Civil Rights Act and applies to discrimination against people with disabilities, defines "public accommodation" to include "a museum, library, gallery, or other place of public display or collection." Museums and galleries are far more similar to libraries than the places listed in section 760.02(11)(c). Had the Florida Legislature wished to include such places within its definition of "public accommodations," it certainly could have done so. Because it did not, Appellant's argument is meritless. We, therefore, affirm the order on appeal.

AFFIRMED .

Wolf and Lewis, JJ., concur; Rowe, J., concurs in result.


text:
    Malcolm X. CROMARTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-508
    District Court of Appeal of Florida, First District.
    September 27, 2018
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Frank Xavier Moehrle Jr. and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Parker v. State , 18 So.3d 555, 558-59 (Fla. 1st DCA 2008).

Roberts, Makar, and Bilbrey, JJ., concur.


text:
    Elaine VEGA, Appellant, v. SAINT JOHN XXIII CATHOLIC CHURCH and Reemployment Assistance Appeals Commission, Appellees.
    No. 4D18-2313
    District Court of Appeal of Florida, Fourth District.
    September 26, 2018
    Elaine Vega, Pembroke Pine, pro se.
    Cristina A. Velez, Tallahassee, for appellee Reemployment Assistance Appeals Commission.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

Ciklin, Forst and Kuntz, JJ., concur.


text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. NEUROLOGY PARTNERS, P.A., d/b/a EMAS Spine & Brain Specialists a/a/o Phyllis Easley, Respondent.
    No. 1D17-4784
    District Court of Appeal of Florida, First District.
    September 27, 2018
    Michael C. Clarke, Betsy Ellwanger Gallagher, and Danielle M. Lutyk of Kubicki Draper, P.A., Tampa, for Petitioner.
    Adam Saben of Shuster & Saben, LLC, Jacksonville, and Chad A. Barr of the Law Office of Chad A. Barr, P.A., Altamonte Springs, for Respondent.
   Per Curiam.

DISMISSED . See Progressive Express Ins. Co. v. Neurology Partners, P.A., d/b/a EMAS Spine & Brain Specialists a/a/o Roderick A. Williams , No. 1D18-1350, --- So.3d ----, 2018 WL 4042463 (Fla. 1st DCA Aug. 24, 2018) ; Progressive Express Ins. Co. v. Neurology Partners, P.A., d/b/a EMAS Spine & Brain Specialists a/a/o Rachel K. Kopp , No. 1D18-1351, --- So.3d ----, 2018 WL 4042461 (Fla. 1st DCA Aug. 24, 2018).

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    Bert MOORE and Vicki Moore, Petitioners, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee FOR GSAMP TRUST 2001-FM2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-FM2, Respondent.
    No. 1D18-1684
    District Court of Appeal of Florida, First District.
    September 27, 2018
    Bert Moore and Vicki Moore, pro se, Petitioners.
    Gabriel M. Hartsell of McGlinchey Stafford, Jacksonville, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Lewis, Wetherell, and Winokur, JJ., concur.


author: Kuntz, J.

text:
    Kareen Kenneth WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2179
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

The Defendant appeals his conviction for one count of second-degree murder with a firearm. The Defendant raises several issues, and we affirm with one exception. We agree with the Defendant that the court erred in considering his jailhouse behavior at sentencing.

Our review of a court's sentence is de novo , Norvil v. State , 191 So.3d 406, 408 (Fla. 2016), but is limited when the court has sentenced the defendant within the minimum and maximum limits established by the legislature. Nusspickle v. State , 966 So.2d 441, 444 (Fla. 2d DCA 2007). This limited review includes the consideration of impermissible factors at sentencing. Charles v. State , 204 So.3d 63, 66 (Fla. 4th DCA 2016).

At sentencing, the State informed the court of the Defendant's prior convictions.

The State then argued that the Defendant misbehaved in jail, and stated:

And he's been a total-constant misbehavior in the jail. Not the victim of other inmates, but, in fact, victimizing the deputies, throwing urine on them and striking them, which leads to these other charges.

After counsel for the State and the Defendant concluded their argument, the court determined the Defendant was subject to the 10-20-Life Statute. The court sentenced him to "forty years' imprisonment, a mandatory minimum imprisonment of forty years imprisonment day-to-day for life punishment," with credit for time served.

Relevant here is the Florida Supreme Court's holding that "a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." Norvil , 191 So.3d at 410. Here, the court stated at sentencing that the "court is also taking into consideration the constant misbehavior in the jail with regards to his improper actions towards the guards and the issues that are going on in the jail with respect to that as well." This was contrary to Norvil .

The court considered a factor at sentencing that the Florida Supreme Court has found impermissible. Thus, we vacate the Defendant's sentence and remand for resentencing before a different circuit judge.

Affirmed in part, vacated in part, and remanded for resentencing .

May and Ciklin, JJ., concur.


author: May, J.

text:
    Stephen A. GAROFALO, Lori Garofalo, Louisiana Partners Fund, LLC, Baton Rouge Partners Fund, LLC and New Orleans Partners Fund, LLC, Appellants, v. PROSKAUER ROSE LLP, Appellee.
    No. 4D17-2398
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    John W. McKenzie, III, W. Ralph Canada, Jr., and Jeven R. Sloan of Loewinsohn Flegle Deary Simon, LLP, Dallas, Texas, for appellants.
    Matthew Triggs of Proskauer Rose LLP, Boca Raton, and David M. Lederkramer and Elise A. Yablonski of Proskauer Rose LLP, New York, for appellee.
   May, J.

The length of time a law firm can be held liable for an alleged fraudulent tax shelter is challenged in this appeal. The plaintiffs appeal a final order dismissing their complaint with prejudice based on the fraud statute of repose. They argue the trial court erred in dismissing the complaint because the law firm had an ongoing continuing duty to correct information in its 2002 opinion letter; and its failure to do so was an ongoing fraudulent omission. We disagree and affirm.

Background

The principal plaintiff was a co-founder of a telecommunications company that went public in 1997. The company soared to a valuation of $36 billion before declaring bankruptcy during the 2001-2002 market crash. Despite the insolvency, the principal realized a multi-million-dollar capital gain by borrowing against his company's shares before the crash.

After realizing the gain, the principal met with representatives from Arthur Andersen LLP ("Andersen") and Bricolage Capital LLC ("Bricolage"). They pitched an investment strategy (the "Strategy") designed to take "advantage of the tax code and tax laws to generate a completely legal tax loss that could be used to offset [the principal's] ordinary income and/or capital gains." The law firm prepared a letter to serve as an independent opinion on the validity of the Strategy.

The defendant law firm delivered the opinion letter to the plaintiffs on October 8, 2002. The letter confirmed the legitimacy of the Strategy, and assured legal support if there was a dispute with the IRS. Accordingly, the plaintiffs claimed the losses on their tax returns. When the IRS audited the plaintiffs' tax returns, it concluded the Strategy was an abusive tax shelter.

The Complaint and Motion to Dismiss

On June 22, 2016, the plaintiffs filed a complaint alleging Andersen and Bricolage conspired with the law firm to lure them into participating in the Strategy. They claimed the opinion letter was a "fill in the blank boilerplate legal opinion" not specifically related to the plaintiffs' financial situation. The law firm allegedly helped design, develop, market, and implement the Strategy as part of a conspiracy to commit fraud; knowingly provided false information in the opinion letter; and continued its involvement in the conspiracy by withholding material information from the plaintiffs after they filed their tax returns. The plaintiffs alleged the co-conspirators worked together to lure clients to use the Strategy.

The law firm moved to dismiss the complaint based on the fraud statute of repose. In its motion, and at the hearing on the motion, the law firm argued it had no contact with the plaintiffs after delivering the opinion letter on October 8, 2002. The complaint was barred by the statute of repose. The law firm further argued the plaintiffs' "continuing omission theory" would eviscerate the statute of repose because the law firm's duty would continue indefinitely.

The plaintiffs conceded the lack of contact after October 8, 2002, but suggested the law firm should have been in contact with them because it owed them a continuing duty to disclose errors in its opinion and relationship with the co-conspirators. They argued the law firm's failure to make corrective disclosures were fraudulent omissions. As a result, they claimed the repose period should have been measured from the date of the law firm's last fraudulent omission, not the delivery of the opinion letter.

The trial court granted the law firm's motion and dismissed the complaint with prejudice. From this order, the plaintiffs appeal.

The Appeal

The plaintiffs continue to argue that the dismissal with prejudice was premature and the trial court misapplied the statute of repose. The law firm responds that the complaint was filed after the statute of repose period expired, and the "continuing omission" theory was an impermissible attempt to toll the statute of repose.

We have de novo review of a trial court's application of the statute of repose. Inmon v. Air Tractor, Inc. , 74 So.3d 534, 537 (Fla. 4th DCA 2011).

"An appellate court must accept the facts alleged in the complaint as true ... [and a]ll reasonable inferences must be drawn in favor of the pleader." Visor v. Buhl , 760 So.2d 274, 275 (Fla. 4th DCA 2000). When the trial court dismisses a complaint based on the statute of repose, "the appellate court's focus is on whether the factual allegations set forth in the complaint and its attachments establish that the claims for relief therein are time barred." Busch v. Lennar Homes, LLC , 219 So.3d 93, 94 (Fla. 5th DCA 2017).

Application of the Fraud Statute of Repose

The statute of repose is an affirmative defense, which the defendant has the burden of proving. Hess v. Philip Morris USA, Inc. , 175 So.3d 687, 694-95 (Fla. 2015). Affirmative defenses are generally raised in an answer. Grove Isle Ass'n v. Grove Isle Assocs. , 137 So.3d 1081, 1089 (Fla. 3d DCA 2014). But, where the facts supporting the defense "affirmatively appear on the face of the complaint and establish conclusively that the [defense] bars the action as a matter of law," the issue can be raised in a motion to dismiss. City of Riviera Beach v. Reed , 987 So.2d 168, 170 (Fla. 4th DCA 2008) (citation omitted).

The statute of repose "bar[s] actions by setting a time limit within which an action must be filed as measured from a specified act, after which time the cause of action is extinguished."

Hess , 175 So.3d at 695 (citation omitted). Florida's fraud statute of repose provides in part:

[I]n any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

§ 95.031(2)(a), Fla. Stat. (2017).

Here, the plaintiffs argue dismissal was improper. They contend the law firm had an ongoing fiduciary relationship with them. And, this continuous fiduciary duty required the law firm to: 1) correct the knowingly false misrepresentations contained in the opinion letter; and 2) inform them of material information pertaining to the Strategy. They allege that by remaining silent, the law firm committed fraud by omission.

The plaintiffs acknowledge that most of the alleged fraudulent acts and omissions are not dated, but suggest at least one omission, the law firm's failure to advise them about a 2005 IRS settlement opportunity, occurred within the statute of repose. In paragraph 72, the plaintiffs allege the law firm and

Co-Conspirators failed to retract, modify, or qualify in any way their advice and opinions expressed to [the p]laintiffs confirming the propriety of the Investment Strategy. In addition, [the law firm] and the Co-Conspirators failed to advise [p]laintiffs to file a qualified amended return to reverse the Investment Strategy from their 2001 tax return (as well as for later years), which would have prevented the IRS from assessing penalties and substantial interest against [p]laintiffs. Indeed, [the law firm's] failure to fully disclose its lack of independence prevented [the plaintiffs] from participating in an IRS settlement negotiated by attorneys at the law firm of Mayer Brown. [The principal] had initially elected to join a group of Mayer Brown clients in an IRS settlement in or around 2005, but withdrew because [he] was advised [the law firm's] independence supported the legality of the Investment Strategy and that he was therefore in a better position to resolve the matter than Mayer Brown's other clients. The lost opportunity to participate in this settlement caused [the plaintiffs'] IRS penalties and interest to increase significantly.

The law firm argues this paragraph actually alleges that Mayer Brown, and not the law firm, advised the plaintiffs about the 2005 IRS settlement opportunity. In fact, it's important to note what the complaint failed to allege. It did not allege the law firm:

(1) consulted with the plaintiffs after 2002;
(2) was aware of the 2005 IRS settlement opportunity;
(3) was aware that Mayer Brown relied on the law firm's opinion letter to counsel the plaintiffs; or
(4) knew when the IRS audit occurred.

In Hess , our supreme court advised that "[t]he statute of repose may be constitutionally applied to bar claims even when the cause of action does not accrue until after the period of repose has expired." Hess , 175 So.3d at 695 (citation omitted). "Statutes of repose are 'legislative [declarations] ... [of] an outer limit beyond which claims may not be instituted.' " Id. (citation omitted). In short, the statute of repose runs from the date of a discrete act without regard to when the cause of action accrues. Id. The defendant's "last act or omission triggers Florida's fraud statute of repose." Id. at 698.

In the context of criminal fraud, we have held that "although silence as to a material fact (nondisclosure), without an independent disclosure duty, usually does not give rise to an action for fraud, suppression of the truth with the intent to deceive (concealment) does." de la Osa v. State , 158 So.3d 712, 730 (Fla. 4th DCA 2015) (citations omitted); see also Philip Morris USA, Inc. v. Duignan , 243 So.3d 426, 442 (Fla. 2d DCA 2017) ("[S]ilence, unaccompanied by a duty to disclose, is not actionable as fraud.").

Fraud based upon a failure to disclose material information exists only when there is a duty to make such a disclosure. Friedman v. Am. Guardian Warranty Servs., Inc. , 837 So.2d 1165, 1166 (Fla. 4th DCA 2003). "This duty arises when one party has information which the other party has a right to know because there is a fiduciary or other relation of trust or confidence between the two parties." Id. "The existence ... of a duty is a question of law and is appropriate for an appellate court to review." Gracey v. Eaker , 837 So.2d 348, 354 n.7 (Fla. 2002).

The plaintiffs rely upon our decision in McAbee v. Edwards , 340 So.2d 1167, 1170 (Fla. 4th DCA 1976). There, the plaintiff's mother hired a lawyer to draft a will that devised the mother's entire estate to the plaintiff. Id. at 1168. After executing the will, the mother married and requested the lawyer to redraft her will to keep her testamentary plan intact. Id. The lawyer told the mother it was unnecessary to redraft the will. Id. When the mother died, her spouse received a portion of her estate. Id. The decedent's daughter sued.

The plaintiffs argue the opinion letter here is analogous to the will in McAbee . Just as the will anticipated a death, the opinion letter anticipated an IRS audit. See id. And, like McAbee , the law firm knew or should have known that the opinion letter would not serve its intended purpose.

However, our holding in McAbee was limited to whether the complaint stated a cause of action because the daughter had not hired the lawyer and whether the action was barred by the statute of limitations. The first issue was one of privity. As to the statute of limitations, we held the "factual question [should] not ... be decided summarily." Id. at 1170. The statute of repose was not in play. McAbee is therefore not persuasive on the issue here.

The statute of repose runs from the date of a discrete act on the part of the defendant without regard to when the cause of action accrued. Kush v. Lloyd , 616 So.2d 415, 418 (Fla. 1992). As previously noted, the statute of repose is a "valid legislative means to restrict or limit causes of action." Carr v. Broward Cty. , 541 So.2d 92, 95 (Fla. 1989). And, the "[c]ourt is not authorized to second-guess the legislature's judgment." Kush , 616 So.2d at 422.

Nevertheless, the plaintiffs theorize a law firm is burdened with a presumably never-ending duty to make corrective disclosures. Under that theory, the statute of repose would never expire. Such an interpretation subverts the statute's very purpose. See Hess , 175 So.3d at 695.

The law firm drafted the opinion letter, delivered it to the plaintiffs in 2002, and had no further communications with them. The plaintiffs did not inform the law firm about the 2005 IRS settlement opportunity. The time limitation within which to file expired under the fraud statute of repose. The trial court correctly dismissed the plaintiffs' complaint with prejudice.

The Constitutionality of the Fraud Statute of Repose

Next, the plaintiffs argue Florida's statute of repose is unconstitutional because it prohibits fraud actions before accrual. The law firm responds that Florida courts have upheld various statutes of repose as constitutional even when the cause of action does not accrue until after expiration of the repose period.

We have de novo review. Inmon , 74 So.3d at 537.

This issue is easily resolved. In Damiano v. McDaniel , 689 So.2d 1059, 1061 (Fla. 1997), our supreme court held a medical malpractice action was barred by the statute of repose. It has upheld the constitutionality of the statute of repose for both medical malpractice and products liability actions. See Carr , 541 So.2d at 92 ; Pullum v. Cincinnati, Inc. , 476 So.2d 657, 659 (Fla. 1985).

In Hess , our supreme court reminded us that statutes of repose are valid legislative decisions to limit causes of action to balance the rights of the injured person against the exposure of defendants to liability for endless periods of time. Hess , 175 So.3d at 695. This is because "over time 'memories fade, documents are destroyed or lost, and witnesses disappear.' " Id. (quoting Nehme v. Smithkline Beecham Clinical Labs., Inc. , 863 So.2d 201, 209 (Fla. 2003) ).

The plaintiffs rely on Kempfer v. St. Johns River Water Mgmt. Dist. , 475 So.2d 920, 924 n.14 (Fla. 5th DCA 1985), to suggest that the statute is an unconstitutional bar of access to the courts. However, Kempfer predates our supreme court's decisions upholding the constitutionality of the statute of repose in products liability and medical malpractice actions. And, the language in Kempfer has been found to be mere dicta. See Shepard v. Philip Morris Inc. , No. 96-1720-CIV-T-26B, 1998 WL 34064515, at *5 (M.D. Fla. Apr. 28, 1998) (upholding the constitutionality of Florida's fraud statute of repose and providing that the language in Kempfer "is dicta."). The Third District has also upheld the constitutionality of the fraud statute of repose. See Kish v. A.W. Chesterton Co. , 930 So.2d 704, 706 (Fla. 3d DCA 2006).

Although the statute of repose "may cause injustice by eliminating a valid cause of action, [it] address[es] a countervailing concern-that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred." Nehme , 863 So.2d at 208-09. "[T]he legislature may properly take into account the difficulties of defending against a stale fraud claim in determining a reasonable period for the statute of repose." Carr , 541 So.2d at 95.

In short, the fraud statute of repose is constitutional.

For the reasons expressed, we affirm the dismissal of the plaintiffs' complaint.

Affirmed.

Warner and Forst, JJ., concur.

      Stephen A. Garofalo was the principal of the companies. He and his wife are plaintiffs along with the companies.

      They make three arguments on appeal: (1) the trial court's dismissal was premature because the pleadings could not support the affirmative defense that the repose statute had run; (2) the court below misapplied the repose statute by ignoring alleged fraudulent omissions that both continued into and first arose during the repose period; and (3) Florida's fraud statute of repose, both facially and as applied by the trial court, is unconstitutional under the Florida Constitution.

      In oral argument the plaintiffs requested that we at least reverse and remand for an opportunity to amend the complaint. This request for relief does not appear in either the initial or reply brief. Nor do we think additional allegations would save this complaint from the statute of repose given the underlying facts.


author: Forst, J.

text:
    CAN FINANCIAL, LLC, Appellant, v. Daryl R. KRAZMIEN a/k/a Daryl Krazmien and Laura Krazmien a/k/a Laura M. Krazmien, Appellees.
    No. 4D18-356
    District Court of Appeal of Florida, Fourth District.
    [August 1, 2018]
    Damian G. Waldman of Law Offices of Damian G. Waldman, P.A., Largo, for appellant.
    Preston J. Fields, Sr. of Preston J. Fields, P.A., Palm Beach Gardens, for appellee.
   Forst, J.

Appellant Can Financial, LLC ("Bank") appeals a final summary judgment that was entered in favor of Appellee Laura Krazmien ("Borrower"). The summary judgment was premised on the trial court's determination that Bank's foreclosure complaint against Borrower was barred by the statute of limitations applicable to foreclosure actions, as the complaint was filed more than five years after Borrower's debts were discharged in bankruptcy. The trial court erred in its application of the statute of limitations to this case. Thus, we reverse.

Background

Borrower's personal debts were discharged in Chapter 7 bankruptcy on August 31, 2009. She made no further payments on her note and mortgage after the discharge. Bank filed an in rem action for foreclosure on February 2, 2017 alleging a February 5, 2012 default on Borrower's monthly installments, followed by subsequent defaults as Borrower had made no payments since January 2012. Borrower answered the complaint with the affirmative defense that Bank had only five years from the date that Borrower's debts were discharged in bankruptcy (August 31, 2009) to file the complaint, and that Bank failed to do so.

Borrower relied upon this statute of limitations defense in moving for summary judgment. In granting the motion, the trial court made the following findings and conclusions of law: the debt memorialized in the note and mortgage was discharged in bankruptcy; no subsequent defaults occurred after the debt was discharged; Bank filed for foreclosure more than five years later; the foreclosure was barred by the five year statute of limitations of section 95.11(2)(c), Florida Statutes (2009) ; and a valid lien on the property would remain throughout the statute of repose. The order is before us on appeal.

Analysis

"The standard of review for a trial court's ruling on a summary judgment is de novo." Cabo Flats Jupiter, LLC v. Dawley , 236 So.3d 464, 465 (Fla. 4th DCA 2018). Likewise, "[g]enerally, 'the issue of whether [a] claim is barred by the statute of limitations is a question of law subject to de novo review.' " Access Ins. Planners, Inc. v. Gee , 175 So.3d 921, 924 (Fla. 4th DCA 2015) (second alteration in original) (quoting Beltran v. Vincent P. Miraglia, M.D., P.A. , 125 So.3d 855, 859 (Fla. 4th DCA 2013) ).

A Chapter 7 "bankruptcy discharge extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam -while leaving intact another-namely, an action against the debtor in rem ." Johnson v. Home State Bank , 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (discussing 11 U.S.C. §§ 522(c)(2), 524(a)(1) ). "A mortgage is an interest in real property that secures a creditor's right to repayment." Id. at 82, 111 S.Ct. 2150. "[A] creditor's right to foreclose on the mortgage survives or passes through the bankruptcy." Id. at 83, 111 S.Ct. 2150.

Following a bankruptcy discharge, a debtor has "three options with respect to property subject to a lien or mortgage: (1) surrender the property; (2) redeem the property; or (3) reaffirm the debt." Alvarez v. Bank of Am. Corp. , No. 14-CV-60009-KAM, 2015 WL 12670510, at *3 (S.D. Fla. Apr. 17, 2015) (quoting In re Steinberg , 447 B.R. 355, 357 (Bankr. S.D. Fla. 2011) ).

When a debtor is unwilling to enter into a reaffirmation agreement and unable to pay off the mortgage, the mortgagee may nonetheless determine that it does not wish to obtain its collateral or dispossess the debtor. The debtor may continue to make periodic mortgage payments in order to discourage the mortgagee from foreclosing on the property. The mortgagee may accept such payments and not seek to foreclose. Section 524(j) [of the Bankruptcy Code] recognizes this possibility and specifically empowers the mortgagee to take action to seek or obtain regular mortgage payments, in the ordinary course of business, in lieu of pursuing an in rem foreclosure.

Id. at *4 (alteration in original) (quoting In re Steinberg , 447 B.R. at 359 ).

In Alvarez , a mortgagor sought to void a mortgage by arguing that her Chapter 7 bankruptcy charge either extinguished the mortgage or constituted a default on the entire mortgage, thereby commencing the statute of limitations, which had expired when she sued. Id. at *1-2. The court found no legal support for either theory, finding that only her personal liability was extinguished, not her in rem liability, and that there was no evidence the mortgagee had accelerated the loan. Id. at *2-3. In Deutsche Bank Trust Co. Americas v. Nash , 136 So.3d 1267 (Fla. 2d DCA 2014), the Second District Court of Appeal held similarly, finding the bankruptcy discharge only extinguished personal liability, not in rem liability. Id. at 1269.

Here, Borrower exercised a de facto fourth option by simply ceasing payments. To the extent the trial court found that no subsequent defaults occurred after the debt was discharged, it was in error. The terms of the note and mortgage remained intact, as a bankruptcy discharge "extinguishes only 'the personal liability of the debtor.' " Johnson , 501 U.S. at 83, 111 S.Ct. 2150 (quoting 11 U.S.C. § 524(a)(1) ). Bank was in no way prejudiced, with respect to the statute of limitations, by not foreclosing upon Borrower's first failure to pay her monthly installment after the discharge. Rather, "[w]ith each subsequent default, the statute of limitations r[an] from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Bartram v. U.S. Bank Nat'l Ass'n , 211 So.3d 1009, 1019 (Fla. 2016). Because Bank alleged a default date within five years of the date that it filed its complaint, the trial court erred in finding the action was barred by the statute of limitations.

Borrower cites no authority for the proposition that the bankruptcy discharge "acted as the acceleration of the debt for foreclosure purposes," and we can find none. As noted above, there is similarly no support for the trial court's findings that "[n]o subsequent defaults occurred after the default was discharged" and "[t]he foreclosure action was barred by the statute of limitations because the foreclosure action was filed more than five (5) years after the debt was discharged." These findings are contrary to Bartram and a myriad of opinions that have followed. See, e.g. , U.S. Bank Nat'l Ass'n for Lehman XS Tr. Mortg. Pass-Through Certificates, Series 2007-16N v. Morelli , No. 3D17-286, 2018 WL 2708699, at *4 (Fla. 3d DCA June 6, 2018) ("It is now settled law that ... when a foreclosure complaint alleges a borrower is in default for any payment due within five years of the filing of the complaint, the action is not barred by section 95.11(2)(c) of the Florida Statutes."); HSBC Bank USA, Nat'l Ass'n for Registered Holders of Nomura Home Equity Home Loan, Inc. v. Estate of Petercen , 227 So.3d 640, 643-44 (Fla. 4th DCA 2017) (holding similarly); Desylvester v. Bank of N.Y. Mellon , 219 So.3d 1016, 1019-20 (Fla. 2d DCA 2017) (relying upon Bartram in denying the affirmative defense of statute of limitations, concluding "the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations."); Forero v. Green Tree Servicing, LLC , 223 So.3d 440, 445 (Fla. 1st DCA 2017) (relying upon Bartram to conclude "each missed payment constituted a new default").

Thus, the foreclosure complaint, filed within five years of a continuing default, was not barred by the statute of limitations and Borrower's bankruptcy discharge did not affect Bank's ability to initiate an in rem foreclosure action. As such, the trial court erred in entering summary judgment for Borrower.

Conclusion

As Bank's foreclosure complaint was not barred by the statute of limitations, we reverse the summary judgment in favor of Borrower and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

Warner and May, JJ., concur.

      11 U.S.C. § 727 (2009).

      The discharge order in Nash stated, in relevant part, that "a creditor may have the right to enforce a valid lien, such as a mortgage or security interest, against the debtors' property after the bankruptcy." Nash , 136 So.3d at 1269.


text:
    Julianne R. FRANK, Appellant, v. Diane FRANK, Appellee.
    No. 4D17-2201
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Matthew Jay Lane of Matthew Lane & Associates, P.A., Lake Park, and James L. Green of the Law Office of James L. Green, P.A., Jupiter, for appellant.
    Eddie Stephens and Caryn A. Stevens of Ward, Damon, Posner, Pheterson & Bleau, P.L., West Palm Beach, for appellee.
   Kuntz, J.

The circuit court held the appellant in contempt for failing to make permanent periodic alimony payments required by a final judgment dissolving a marriage. The appellant appeals, and we reverse.

The final judgment, issued in 1999, incorporated a marital settlement agreement that required the appellant to make permanent periodic alimony payments. The appellant provided the appellee twelve postdated checks intended to fulfill the alimony obligation while the appellant was on an extended sailing trip. When the appellee tried to deposit the first check, the bank rejected it for insufficient funds. The appellee moved for civil contempt and enforcement. The appellee served the motion by email, mail, and facsimile. She also published a notice of action.

At a hearing on the contempt motion, the appellee testified that she had received no alimony payments in over eight months. As a result, she had not paid the mortgage on a residence jointly owned by the appellee and the appellant.

The court granted the contempt motion and awarded the appellee full title in the home. The court also held the appellant in civil contempt for violating the court's orders, and issued a writ of bodily attachment that included a purge provision of $23,558.09. Later, the appellant satisfied the purge provision, and the circuit court vacated the writ of bodily attachment.

Soon after, the appellant moved for relief from the contempt order. Relevant here, the appellant argued (1) the court's jurisdiction was defective because the notice of action did not include a legal description of the home; and (2) the court lacked continuing jurisdiction to modify the property distribution in the final judgment of dissolution of marriage. The court denied the rehearing motion and the appellant appealed.

First, we address the appellant's argument that the court's order is void because the published notice failed to describe the real property. While the published notice may not have described the real property, formal service of process was not required. The appellant had already appeared in the case as a party. Strict compliance with the service of process statute was required when the dissolution action was filed, not when a motion was filed years later. See, e.g. , Davis v. Dieujuste , 496 So.2d 806, 808 (Fla. 1986).

Beyond that, Florida Rule of Family Law Procedure 12.615(b) (2017) governs notice of a civil contempt motion. Rule 12.615(b) states that a party must serve contempt motions in the manner provided in Florida Rule of Judicial Administration 2.516 (2017). An order granting counsel for the appellant's motion to withdraw included a mailing address to serve all future filings on the appellant. The appellee served the motion by email to two email addresses, by U.S. Mail to two different mailing addresses, and by facsimile. The appellee served the motion in accordance with the court's earlier order and Rules 12.615 and 2.516. Thus, the court's order is not void for improper service of process.

Second, we address the appellant's argument that the court lacked continuing jurisdiction to modify the distribution of property in the final judgment. On this point, we agree with the appellant.

Once a final judgment of dissolution of marriage is rendered, property rights are fixed and vested and a court is without jurisdiction to modify those rights unless it specifically reserved jurisdiction to do so. Encarnacion v. Encarnacion , 877 So.2d 960, 963 (Fla. 5th DCA 2004) (citing Brandt v. Brandt , 525 So.2d 1017 (Fla. 4th DCA 1988) (en banc) ). But a court may enter an order that clarifies or enforces the final judgment. Brandt , 525 So.2d at 1017 ; Hobbs v. Hobbs , 518 So.2d 439, 440 (Fla. 1st DCA 1988).

Here though, the order was not limited to items for which the court had retained jurisdiction. Nor was it intended to clarify or enforce the final judgment. The final judgment provided that the appellee and appellant owned the marital residence as tenants-in-common and gave the appellee "exclusive use and possession" of the residence. The final judgment also stated that any sale of the property would be at a price mutually agreeable to the appellee and appellant.

Yet the contempt order transferred the rights to the marital property to the appellee. While courts have broad discretion to fashion creative contempt sanctions to enforce a judgment, the contempt power is not limitless and "[t]he law is well-settled that contempt does not lie to enforce a property settlement arising out of a dissolution of marriage." Byrne v. Byrne , 133 So.3d 1082, 1084 (Fla. 4th DCA 2014). The court erred when it transferred the residence in the contempt order because the final judgment determined those rights.

The court lacked jurisdiction to determine property rights adjudicated in the final judgment. Thus, the contempt order is vacated, and the case remanded for further proceedings.

Reversed and remanded.

May and Ciklin, JJ., concur.


author: Harper, Bradley, Associate Judge.

text:
    T.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-442
    District Court of Appeal of Florida, Fourth District.
    [August 29, 2018]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
   Harper, Bradley, Associate Judge.

This case presents the question of whether the plain touch exception to the Fourth Amendment permits an officer, without a warrant, to seize objects felt during a weapons search, when the objects are not weapons and there is insufficient evidence of contraband. It does not. We reverse the defendant's conviction.

The following evidence was adduced at a hearing on T.T.'s motion to suppress.

While responding to a traffic stop, an officer observed T.T. sitting in the rear passenger seat. The officer engaged T.T. in conversation and observed that T.T. had "slurred speech" and "red bloodshot eyes." The officer did not suspect T.T. of criminal activity; however, the officer noticed that T.T. was nervous and fidgeting with his waistband. Although the officer did not see any weapons, he "[f]igured ... [T.T.] probably had something there that was a concern."

The officer asked T.T. to step out of the vehicle and place his hands on the trunk. He conducted a "top to bottom" pat-down search for weapons. The officer's search extended to T.T.'s scrotal area where he felt two "hard," "cylindrical" objects he believed to be containers. The officer knew the two objects were not weapons. He could not feel what, if anything, was inside the objects. Likewise, there was no testimony that he smelled an odor emanating from the objects. The officer subsequently removed the hard objects from T.T.'s scrotal area and observed a green, leafy substance; he later determined the substance to be marijuana.

At the suppression hearing, the officer testified that he had been involved in "probably 50, 100" stops dealing with drugs. Also, he testified that "[p]robably eight, five percent of those stops involved marijuana." There was no evidence that he had any experience identifying marijuana or illegal cylindrical objects using tactile perception. There was no evidence he had previously stopped a juvenile, or anyone else, who hid a container with drugs in the scrotal area. There was no testimony to detail the experience the officer had, if any, that would allow him to conclude that the illegal nature of the containers was immediately apparent based on tactile perception.

The officer, nevertheless, concluded that juveniles tend to place illegal substances in hard containers and hide the containers in their scrotal area. Based on these conclusions, the officer testified that he "immediately knew" that the objects in T.T.'s scrotal area contained an illegal substance.

T.T. was charged, by petition for delinquency, with possession of cannabis. He filed a pretrial motion to suppress the evidence, arguing that the officer conducted a warrantless search without probable cause in violation of the Florida and United States Constitutions. The trial court denied the motion and T.T. pled no contest to the charges, reserving his right to appeal. On review, this court defers to the trial court's factual findings but reviews legal conclusions de novo. See State v. Abbey , 28 So.3d 208, 210 (Fla. 4th DCA 2010).

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. VI. "[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Terry v. Ohio , 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citing Union Pac. R. Co. v. Botsford , 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) ); see also Minnesota v. Dickerson, 508 U.S. 366, 379-83, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (Scalia, J. concurring) (noting that there appears to be no clear support at common law for physically searching a suspect absent arrest or the degree of cause needed for that purpose).

Thus, searches and seizures conducted, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment except when involving the narrow protective search exception or the narrow plain view and plain touch extensions of that exception. Horton v. California , 496 U.S. 128, 134, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

In Terry v. Ohio , a plurality of the United States Supreme Court recognized a "narrowly drawn" exception to the warrant requirement permitting officers to briefly stop suspicious persons and make "reasonable inquiries" aimed at confirming or dispelling suspicions. Terry , 392 U.S. at 26, 88 S.Ct. 1868. Given the danger to policemen during these brief stops the Court construed this authority also to extend to "[a] reasonable search for weapons, where the police officer has reason to believe he is dealing with an armed and dangerous individual." Id. Later, the Court noted that the justification of a protective search is gone once it is determined that a suspect is not armed. See Dickerson , 508 U.S. at 373, 113 S.Ct. 2130 (citing Sibron v. New York , 392 U.S. 40, 65-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ) (finding that when "[t]he protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed").

The plain view exception allows officers to seize contraband if they can view the contraband from a lawful position and the unlawful nature of the contraband is "immediately apparent." Horton , 496 U.S. at 134, 110 S.Ct. 2301 ; Arizona v. Hicks , 480 U.S. 321, 338, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ; Coolidge v. New Hampshire , 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The doctrine, however, may not be used to extend a general exploratory search from one object to another until something incriminating emerges. Coolidge , 403 U.S. at 466, 91 S.Ct. 2022. Thus, if the incriminating character of the object in "plain view" is not "immediately apparent," without conducting some further search of the object, the plain view doctrine cannot justify its seizure. Horton , 496 U.S. at 138, 110 S.Ct. 2301.

"[T]he rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no 'search' within the meaning of the Fourth Amendment-or at least no search independent of the initial intrusion that gave the officers their vantage point." Dickerson, 508 U.S. at 375, 113 S.Ct. 2130 (citing Illinois v. Andreas , 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ); see also Texas v. Brown , 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

The plain touch extension arises from the same rationale and practical considerations as the plain view doctrine. Dickerson , 508 U.S. at 375, 113 S.Ct. 2130. By analogy, the plain touch extension allows officers to seize illegal objects discovered during a protective pat-down search when the illegality of the object is, using the sense of touch, "immediately apparent." Id. at 375-76, 113 S.Ct. 2130. Under the circumstances, there is no invasion of a suspect's privacy beyond that already authorized by the officer's search for weapons. Id.

With this background in mind, we turn to the application of these doctrines in the instant case. As an initial matter, T.T. does not challenge the validity of the stop or the legitimacy of the officer's pat-down search for weapons. T.T. argues that this Court should reverse the lower court's denial of his motion to suppress because the officer's testimony regarding his training and experience was insufficient to support the conclusion that he was immediately aware, through tactile perception, that the cylindrical objects were illegal. See Jordan v. State , 664 So.2d 272 (Fla. 5th DCA 1995) (the "plain feel" doctrine requires specific expert testimony as to the arresting officer's tactile experience with the particular contraband in question.)

The state argues that the officer's "knowledge," attributable to his training, the feel and location of the objects, and his observations of T.T.'s slurred speech and bloodshot eyes, amounted to a "practical, nontechnical" probability that the objects were contraband. See Brinegar v. U.S. , 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

To seize an object under the plain touch exception to the United States Constitution, an officer must know, through the use of tactile perception, that the object is contraband. G.M. v. State , 172 So.3d 963, 968-69 (Fla. 4th DCA 2015). Testimony regarding an officer's training and experience is relevant to explain that the officer has developed the ability to know how the illegal object feels by using the sense of touch. Doctor v. State , 596 So.2d 442, 445 (Fla. 1992).

Accordingly, "[t]he State must present more than the naked subjective statement of a police officer who has a 'feeling' based on 'experience' ..." to support a seizure under the plain touch extension. Id.

In G.M. , this court considered whether the trial court erred in refusing to suppress marijuana found in a juvenile's pocket during a weapons search. G.M. v. State , 172 So.3d at 968-69. G.M. was the passenger in a stolen vehicle. The arresting officer removed G.M. from the vehicle and conducted a protective pat-down search. The arresting officer testified that he felt a baggie containing plant-like material in G.M.'s pocket which, based on his training and experience, he believed to be marijuana. Id. This Court reversed the trial court's denial of the motion to suppress the evidence because the testimony that the officer believed the substance was marijuana amounted to no more than a hunch. Id.

This Court reasoned that "[t]he officer's perception that the material in the plastic bag was contraband did not come as a result of his tactile perception, but from an educated hunch ...." Id. (citing C.A.M. v. State , 819 So.2d 802, 805 (Fla. 4th DCA 2001) (reversing denial of a motion to suppress where the officer's unadorned conclusion was that he immediately knew the packaging in the defendant's pocket contained marijuana); State v. J.D., 796 So.2d 1217, 1220 (Fla. 4th DCA 2001) (officer stated substance could possibly be marijuana); Meeks v. State , 356 So.2d 45, 46 (Fla. 2d DCA 1978) (officer stated the lump in defendant's pocket was not a weapon and believed it to be marijuana.).

Thus, the state, in G.M ., failed to elicit evidence to explain how the officer's training and experience informed his ultimate conclusion that the plantlike material was marijuana. G.M. , 172 So.3d at 968-69 ; see also Doctor , 596 So.2d at 445 (Fla. 1992) (noting that "[n]ot all concealed objects in a person's possession are contraband.").

Similarly, Florida courts have declined to find probable cause when an object, commonly used for drugs, is seen or touched. Caplan v. State , 531 So.2d 88 (Fla. 1988) (several small rolled burnt cigarette wrappings on the floor of defendant's automobile did not provide probable cause of marijuana), cert. denied , 489 U.S. 1099, 109 S.Ct. 1577, 103 L.Ed.2d 942, (1989) ; Walker v. State , 514 So.2d 1149 (Fla. 2d DCA 1987) (plain view of pipe did not constitute probable cause to arrest for possession of paraphernalia).

Here, the state failed to elicit evidence regarding the officer's experience with drug containers and his prior use of tactile perception to identify contraband. The officer did not feel any plantlike material in T.T.'s pants. Moreover, he did not testify regarding his experience with containers during drug arrests.

The Florida Supreme Court in Doctor v. State evaluated whether an officer's testimony was sufficient to support the seizure of a bag of crack cocaine hidden in a suspect's groin area. The Court noted as follows:

[D]eputy Aprea testified that he had made approximately 250 arrests for possession of a controlled substance, had been present during approximately 1000 arrests and had seen or felt crack cocaine approximately 800 times. He further stated that during the course of 130 search warrant arrests, he had discovered cocaine hidden in the groin area on 70 occasions. Thus, Deputy Aprea's testimony regarding his experience in apprehending drug offenders went well beyond a generalized statement or mere conclusion that he was an experienced officer. Rather, he offered specific statistics evidencing his significant experience with this particular aspect of drug trafficking. Deputy Aprea concluded that in this case he believed the object he felt was crack cocaine because of "[b]eing in contact with it so many times, the texture of it, the texture of the plastic bag that it's in, the little rock formations of it, it was-if you could imagine, it was almost like a peanut brittle type feeling in it."

Doctor , 596 So.2d at 445.

The Court reasoned that Deputy Aprea's testimony was more than a mere generalized statement in support of probable cause. Id. Accordingly, the Court found that the trial court correctly denied the defendant's motion to suppress. Id. The Court noted that the officer's testimony was sufficient to conclude that "[D]eputy Aprea had knowledge acquired through specific experience with the unique texture of crack cocaine as well as with this type of concealment." Id. at 445.

Here, the officer's testimony regarding his training and experience was not sufficient for the lower court to determine that his conclusion was more than a "feeling" or a "hunch." See Steadman v. State , 997 So.2d 1258, 1260 (Fla. 5th DCA 2009) (holding that if the officer "discover[s]" the item's identity as contraband only after removing it from the defendant's person, the seizure "runs afoul of the dictates of Dickerson "). Although the officer testified that juveniles hide drugs in the scrotal area, his conclusory statement without more is the type of bare, subjective statement that this Court has held to be insufficient to overcome the protections of the Fourth Amendment. See State v. J.D., 796 So.2d 1217, 1219 (Fla. 4th DCA 2001) (citing Doctor , 596 So.2d at 445 (noting that "[t]he state must present more than the "naked subjective statement of a police officer who has a 'feeling' based on 'experience' " that the item was contraband).

In making probable cause determinations, courts must conscientiously evaluate the sufficiency of evidence and decline to ratify naked conclusions or the use of "buzz words" that imply certainty. See, e.g. , State v. Rabb , 920 So.2d 1175, 1181 (Fla. 4th DCA 2006) (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ).

Accordingly, we reverse the trial court's decision denying the motion to suppress, and this case is remanded for the trial court to grant the motion and suppress the fruits of the search.

Reversed and remanded.

May, J., concurs.

Ciklin, J., dissents with opinion.

I would affirm. According to his testimony, the officer's pat-down led him to discover cylindrical containers hidden in T.T.'s groin area, and his experience taught him that young people often hide drugs in these types of containers and in the groin area. Also, the pat-down must be viewed in light of the officer's prior observation of T.T. fidgeting with his pants, and of his slurred speech, red and bloodshot eyes, and nervous demeanor. Armed with this knowledge, the totality of the circumstances provided the officer with a reasonable certainty that the canisters he felt in T.T.'s groin area contained contraband. See Harris v. State , 790 So.2d 1246, 1249 (Fla. 5th DCA 2001) (noting probable cause arises where an officer feels an object that he or she is "reasonably certain ... is contraband").


text:
    Devon SEAYS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1827
    District Court of Appeal of Florida, Fourth District.
    [September 5, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   Per Curiam.

Affirmed . See Hart v. State , 246 So. 3d 417 (Fla. 4th DCA 2018) (en banc). We again certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

May, Levine and Klingensmith, JJ., concur.


text:
    J.G., Father of J.G., minor child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    CASE NO. 1D17-3561
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    J. G., pro se, Petitioner.
    Sarah J. Rumph, Children's Legal Services, Tallahassee, for Department of Children and Families; Thomasina Moore, Guardian ad Litem Program, Sanford, for Guardian ad Litem.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


author: SALTER, J.

text:
    James Eric KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2484
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   SALTER, J.

James Eric Knight appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. As the motion alleged, Knight was sentenced in Count II for an uncharged offense. This was fundamental error. As such, the denial of the motion is reversed and remanded.

Knight was charged in Count II of the information with robbery based on the taking of property "by force, violence, assault or putting in fear ... in violation of 812.13 Florida Statutes...." These are the elements of a simple robbery, a second-degree felony under section 812.13(2)(c), Florida Statutes (1977), for which the maximum sentence is 15 years under section 775.082(3)(c), Florida Statutes (1977).

An armed robbery is committed, under section 812.13(2)(a), Florida Statutes (1977): "If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment ...." In this case, the recitation in Count II omits both the statutory subsection and the element of armed robbery-possession of a firearm by the defendant. As a result of the omissions, Count II did not allege the crime for which Knight was sentenced.

Notwithstanding the shortcomings in the Count II allegations, Knight was sentenced to life in prison for the robbery.

Knight filed a Rule 3.800(a) motion to correct the illegal sentence on Count II. He argued that because Count II did not charge the essential elements of the crime of armed robbery, he could only be sentenced to the 15 year maximum for the charged crime, simple robbery, as a second degree felony. The trial court denied Knight's motion. This appeal followed.

"[A]n information is fundamentally defective where it fails to cite a specific section and totally omits an essential element of the crime." Weatherspoon v. State, 214 So.3d 578, 584 (Fla. 2017) (quoting Figueroa v. State, 84 So.3d 1158 (Fla. 4th DCA 2012) ); State v. Gray, 435 So.2d 816, 818 (Fla. 1983). Weatherspoon explained the origins of the rule:

In addition to the violation of a defendant's right to be fully informed of the charges against him under article I, section 16, of the Florida Constitution, a defendant's right to due process under article I, section 9, is denied when there is a conviction on a charge not made in the information or indictment:
Due process of law requires the State to allege every essential element when charging a violation of law to provide the accused with sufficient notice of the allegations against him. ... For an information to sufficiently charge a crime it must follow the statute, clearly charge each of the essential elements, and sufficiently advise the accused of the specific crime with which he is charged.

214 So.3d at 583-84 (citations omitted). Count II does not do this. It does not support the life sentence imposed.

Knight's case is indistinguishable from Figueroa. There, the court elaborated as follows: "[A]n information is fundamentally defective where it fails to cite a specific section and totally omits an essential element of the crime. And '[n]either a jury finding nor inclusion of the appropriate statute number in the information can cure' the State's failure to charge essential elements of the crime." Figueroa, 84 So.3d at 1161. Under this holding, Knight was entitled to relief.

This is not a case where there is a mere technical defect in the charge-Count II wholly fails to allege the statute violated and the essential elements of the crime. Connolly v. State, 172 So.3d 893, 903-04 (Fla. 3d DCA 2015). Compare Mesa v. State, 632 So.2d 1094, 1097 (Fla. 3d DCA 1994) (finding no error in conviction where the information "references a specific section of the criminal code which sufficiently details all the elements of the offense."). The defect here may be raised at any time and does not require a showing that the defendant was misled in the preparation of his defense. 172 So.3d at 904.

Because the sentence for Count II constitutes fundamental error, we reverse the denial of the Knight's motion, and remand for the trial court to resentence him for Count II for simple robbery. Knight is entitled to be present at the resentencing.

Reversed and remanded.


text:
    Donna Brown KLINKA, Appellant, v. In re: ESTATE OF John E. BROWN, Appellee.
    No. 3D17-510
    District Court of Appeal of Florida, Third District.
    Opinion filed November 8, 2017
    Donna Brown Klinka, in proper person.
    Stokes McMillan Antúnez, P.A., and Juan C. Antúnez; Kula & Associates, P.A., and Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that, given the presumption of correctness of the trial court's ruling, where no transcript is provided to appellate court, then appellate court is unable to conclude that the trial court abused its discretion).


author: ROTHENBERG, C.J.

text:
    Isabel MAGDALENA, et al., Appellants, v. TOYOTA MOTOR CORPORATION, et al., Appellees.
    No. 3D16-2322
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017
    Fowler Rodriguez LLP, and Luis E. Llamas, for appellants.
    Bowman and Brooke LLP, and Stephanie M. Simm, John C. Seipp, Jr., and Donald A. Blackwell, for appellees Toyota Motor North America, Inc., Toyota Tsusho America, Inc., and Toyota Motor Sales USA, Inc.
    Before ROTHENBERG, C.J., and EMAS and SCALES, JJ.
   ROTHENBERG, C.J.

Isabel Magdalena, individually and as plenary guardian of Eugenio Magdalena, and Eugenio Magdalena, individually (collectively, "the plaintiffs") appeal the trial court's order granting Toyota Motor North America, Inc., Toyota Tsusho America, Inc., and Toyota Motor Sales USA, Inc.'s (collectively, "Toyota") motion to tax costs and the final judgment subsequently rendered setting the amount of the costs award. The orders under review are based on the trial court's earlier ruling granting Toyota's motion to dismiss on the basis of forum non conveniens and its later finding that, pursuant to section 57.041, Florida Statutes (2016), and Florida Rule of Civil Procedure 1.525, Toyota was entitled to its costs as the "prevailing party." Because we conclude that a dismissal on the ground of forum non conveniens is not a judgment or ruling on the merits of the claims against Toyota, but rather a ruling which merely provides that another forum is more convenient and would best serve the ends of justice, we conclude that the trial court erred by awarding Toyota its costs.

STANDARD OF REVIEW

As the issue before this Court involves the interpretation of a statute, which is a pure question of law, the standard of review is de novo. B.Y. v. Dep't of Children & Families, 887 So.2d 1253, 1255 (Fla. 2004) ; Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723, 730 (Fla. 1st DCA 2007) ("An appellate court reviews whether a trial court's award of costs is excessive for an abuse of discretion; however, whether a cost requested may be awarded, at all, is a question of law to be reviewed de novo.") (citation omitted).

ANALYSIS

The trial court awarded Toyota its costs as the prevailing party under section 57.041. We conclude that this was error for several reasons. First, there is existing authority that calls into question whether the "prevailing party" standard is even applicable when assessing whether a party is entitled to an award of costs under section 57.041. See Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1137 (Fla. 2d DCA 2012) (en banc) (receding from its earlier decision in Spring Lake Improvement Dist. v. Tyrrell, 868 So.2d 656 (Fla. 2d DCA 2004), and holding that the "prevailing party" standard is inapplicable to a determination of whether a party is entitled to an award of costs under section 57.041 ); Bessey v. Difilippo, 951 So.2d 992, 995 (Fla. 1st DCA 2007) (holding that " 'prevailing party' is not the statutory standard for costs awards") (footnote omitted); but see Granoff v. Seidle, 915 So.2d 674 (Fla. 5th DCA 2005) (applying the "prevailing party" standard to a determination under section 57.041 ).

Second, regardless of whether or not the "prevailing party" standard may be applied under section 57.041, it was error to award Toyota its costs under section 57.041 because no judgment has been entered, and Toyota is not a "prevailing party" merely because the litigation will take place in a different forum.

A. Section 57.041

Section 57.041 provides in relevant part as follows:

Costs; recovery from losing party.-
(1) The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

Here, the plaintiffs have not obtained a "judgment" within the meaning of section 57.041 ; the case has simply been transferred to another forum. There was no determination of liability or holding on the merits, and the dismissal was conditioned on Toyota not contesting jurisdiction or raising certain defenses, such as the statute of limitations, should the case be refiled in Panama or Japan within one year of the date the dismissal order becomes final. In fact, the case has already been refiled in Panama against all of the Toyota defendants.

Although we have not found a case specifically addressing whether an order dismissing a case on forum non conveniens grounds constitutes a "judgment," the following cases are persuasive. In Do v. GEICO General Insurance Co., 137 So.3d 1039, 1044-45 (Fla. 3d DCA 2014), this Court held that the order of dismissal for lack of prosecution was not a judgment or its functional equivalent, when determining whether a party was entitled to an award of attorney's fees under section 627.428, Florida Statutes, which requires the "rendition of a judgment" for entitlement to attorney's fees. Additionally, in Sal's Abatement Corp. v. Sid Harvey Industries, Inc., 718 So.2d 885 (Fla. 3d DCA 1998), and O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785, 786 n.1 (Fla. 3d DCA 1998), abrogated on other grounds by Caufield v. Cantele, 837 So.2d 371 (Fla. 2002), this Court held that a voluntary dismissal is not an adjudication on the merits and therefore, does not constitute a judgment or its functional equivalent. See also Guarantee Ins. Co. v. Worker's Temp. Staffing, Inc., 61 So.3d 1233 (Fla. 5th DCA 2011) (same).

In conclusion, section 57.041 is clear and unambiguous. Only a "party recovering judgment shall recover his or her legal costs." No judgment or the functional equivalent has been obtained by Toyota.

Thus, Toyota is not entitled to recover its costs at this stage of the proceedings.

B. Prevailing Party

Toyota is also not entitled to recover its costs at this stage of the proceedings as a "prevailing party." The parties agree that the prevailing party (the party that prevailed on the significant issues below) is entitled to recover its costs.

Although there is no Florida case directly on point, there are federal cases that have addressed this very issue. In Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006), the United States Circuit Court noted that "[a] dismissal on the ground of forum non conveniens does not, after all, immunize a defendant from the risk of further litigation on the merits of a plaintiff's claims; it merely provides that another forum would be the most convenient and best serve the ends of justice." (italics in original) (internal quotation omitted). The Second Circuit therefore found that "because Dattner [was] free to pursue his claims against the defendants in France, and because it remains to be seen which party will, in fact, prevail on the merits, defendants have not yet achieved a judicially sanctioned change in the legal relationship of the parties so as to be considered 'prevailing' under Rule 54(d)." Id. at 103 ; see also United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1057 (10th Cir. 2004) (holding that Praxair was the prevailing party in the context of attorney's fees because "Grynberg is now prohibited from bringing further claims on these facts"); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1076-77 (7th Cir. 1987) (holding that the defendant was not a "prevailing party" where the complaint was dismissed without prejudice because "dismissal without prejudice ... does not decide the case on the merits.... The defendant remains at risk.").

We find these cases persuasive as the reasoning is sound. An order granting dismissal on forum non conveniens grounds resolves a procedural issue, not a substantive issue in the case. Liability has yet to be determined. Although the forum issue was hotly debated and extensively litigated, and may, at the end of the litigation, be determined to have been a "significant issue" upon which Toyota prevailed, resolution of whether Toyota may recover its costs litigating that issue is premature. Determination of whether a party was the prevailing party on the significant issues of a case requires consideration of the final judgment rendered as to the parties at the end of the case. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla. 1992) (holding that "the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party"); Lake Region Paradise Island, Inc. v. Graviss, 323 So.2d 610, 612 (Fla. 2d DCA 1975) (concluding that costs were not taxable against the party that caused the mistrial and that the determination of entitlement to costs must await final judgment); Sharpe v. Ceco Corp., 242 So.2d 464, 465 (Fla. 3d DCA 1970) ("The prevailing party is regarded as that party who has affirmative judgment rendered in his favor at the conclusion of the entire case.").

The claims filed by the plaintiffs against Toyota in Miami-Dade circuit court are still pending, albeit in Panama, due to the forum non conveniens dismissal and based on the refiling of the plaintiffs' claims against these same Toyota defendants in Panama. While one significant issue in the litigation may have been resolved in Toyota's favor, whether these Toyota defendants may be entitled to recover costs will ultimately depend on whether it is determined that Toyota or a specific Toyota company is the prevailing party at the conclusion of its litigation with the plaintiffs in the case. We, therefore, conclude that the trial court's consideration of Toyota's motion for costs as the prevailing party and subsequent award of costs was legal error. Accordingly, we reverse the orders on appeal.

Reversed.

      This Court takes no position on whether a dismissal on forum non conveniens grounds, which is a procedural ruling, as opposed to a substantive ruling on the merits of the claims alleged in the complaint, can be considered a "significant issue" upon which a motion for costs may be directed for purposes of determining prevailing party costs.