author: B.L. Thomas, C.J.

text:
    ASPHALT PAVING SYSTEMS, INC., Appellant, v. Anderson COLUMBIA and State of Florida, Department of Transportation, Appellees.
    No. 1D18-2035
    District Court of Appeal of Florida, First District.
    February 18, 2019
    Scott Widerman of Widerman Malek, PL, Melbourne; John F. Palladino and Amy R. Weintrob of Hankin Sandman Palladino & Weintrob, Atlantic City, NJ, for Appellant.
    W. Robert Vezina III and Megan S. Reynolds of Vezina, Lawrence & Piscitelli, P.A., Tallahassee; Eduardo S. Lombard of Radley Law Firm, Tallahassee; Zeb Cheshire, General Counsel, Anderson Columbia Co., Inc., Lake City, for Appellee Anderson Columbia.
    Marc A. Peoples, Assistant General Counsel, Florida Department of Transportation, Tallahassee, for Appellee Florida Department of Transportation.
   B.L. Thomas, C.J.

Asphalt Paving Systems, Inc. appeals the Florida Department of Transportation's final order denying a petition for agency review of the Department's decision to preclude a challenge to a purported "supplemental agreement" which was not subject to competitive bidding. Asphalt Paving asserts that the well-pled allegations of its petition established standing and entitled it to a formal hearing pursuant to section 120.57(1), Florida Statutes. We agree and reverse.

Facts

In 2016, the Department published a notice seeking bid proposals for a maintenance contract for the highways in the Department's District 3 area. The bid solicitation specified that the work included the maintenance of "rumble strips," or raised lines along the edges of roads that make a distinct noise on impact, designed to warn drivers about speed restrictions or the roadway's edge. Appellee Anderson Columbia was the only bidder on the maintenance contract, and the Department executed a contract with Anderson Columbia.

Due to numerous public complaints regarding the noise generated by the rumble strips, the Department decided to fill the strips. The Department entered into an agreement with Anderson Columbia, calling for the repair of the Mahan Drive rumble strips by "microsurfacing." The Department did not publish a bid solicitation for this work.

Asphalt Paving filed an amended petition with the Department under section 120.57(1), Florida Statutes, requesting that the microsurfacing work be removed from the maintenance contract and submitted for public bidding. Asphalt Paving stated that the work is of the type that Asphalt Paving routinely engages in, and if the Department had solicited public bids on the work, Asphalt Paving would have bid on it. Asphalt Paving alleged that the work was required to be publicly bid, as it did not qualify as the subject of a "supplemental agreement" under section 337.11(9)(b), Florida Statutes, because the microsurfacing did not relate to the original contract. Asphalt Paving asserted that the Department's interpretation of section 337.11(9), Florida Statutes, was contrary to legislative intent mandating public bidding for the benefit of the taxpayers.

The Department dismissed Asphalt Paving's request for a formal hearing. In its final order, the Department stated that Asphalt Paving's amended petition did not provide information sufficient to establish how its substantial interests would be affected by agency action, and therefore Asphalt Paving had not demonstrated standing for a formal hearing under section 120.57(1), Florida Statutes. The Department stated that its decision to supplement the original contract was done in accordance with section 337.11(9), Florida Statutes, and therefore Asphalt Paving's "alleged potential economic injury [was] insufficient to afford standing under the injury in fact analysis."

Analysis

"Whether a party has standing to bring an action is a question of law that is to be reviewed de novo." Mid-Chattahoochee River Users v. Fla. Dep't of Entvl. Prot. , 948 So.2d 794, 796 (Fla. 1st DCA 2006). "To establish entitlement to a section 120.57 formal hearing, one must show that its 'substantial interests will be affected by proposed agency action.' " Fairbanks, Inc. v. State, Dep't of Transp. , 635 So.2d 58, 59 (Fla. 1st DCA 1994) ; §§ 120.52(13)(b); 120.57, Fla. Stat. (2018). "This, in turn, requires a showing that (1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect." Id. (citing Agrico Chem. Co. v. Dep't of Envtl. Regulation , 406 So.2d 478 (Fla. 2d DCA 1981).

All the allegations in Asphalt Paving's amended petition are assumed to be factually correct: "In determining whether a party has standing to seek a formal administrative hearing, the allegations contained in the party's petition must be taken as true." Mid-Chattahoochee , 948 So.2d at 796 ; see also Hospice of Palm Beach County, Inc. v. State, Agency for Health Care Admin ., 876 So.2d 4, 5 (Fla. 1st DCA 2004) (holding that "[i]n determining whether [the appellant] had standing, the allegations contained in its petition must be taken as true"); Ybor III, Ltd. v. Florida Housing Finance Corp. , 843 So.2d 344, 346 (Fla. 1st DCA 2003) (holding that allegations in appellant's petition for section 120.57 hearing should be "taken as true for purposes of appellate review").

Section 337.11(9)(b), Florida Statutes, provides criteria for work that may be permitted through a "supplemental agreement" to an existing contract, rather than bid publicly as a new contract. Asphalt Paving alleged that the work was required to be procured through public bidding, and the work did not meet the criteria of section 337.11(9)(b), Florida Statutes. Asphalt Paving relies on this court's decision in Keystone Peer Review Org., Inc. v. State, Agency for Health Care Admin. , 26 So.3d 652 (Fla. 1st DCA 2010) for the proposition that, because Asphalt Paving alleged that the microsurfacing was subject to public bidding, it established standing.

In Keystone , the Agency for Health Care Administration awarded a contract for health services to a vendor after publishing a request for information without publicly bidding the contract. 26 So.3d at 653. Keystone responded to the request for information but was not awarded the contract, and filed a protest and petition challenging the award and requesting a hearing pursuant to section 120.57(1), Florida Statutes. Id. The agency denied Keystone's request for a formal hearing, stating that the contract fell within a statutory exemption to competitive bidding, and therefore Keystone did not have standing to protest the agency's award of the contract. Id. However, Keystone had alleged in its petition that the contract was subject to public bidding. Id at 654. This court stated that it was required to accept Keystone's allegations that the contract did not qualify for an exemption from the public bidding, and therefore the allegations were sufficient to demonstrate standing. Id.

Appellees argue that Asphalt Paving's argument that the exemption under section 337.11(9)(b), Florida Statutes does not apply asserts only a legal conclusion that cannot establish standing. However, this court in Keystone agreed with the appellant's assertion that "a factual dispute exists as to whether the contract is exempt from the competitive bidding process." 26 So.3d at 653. (emphasis added). Here, as in Keystone , Asphalt Paving's amended petition alleged that the microsurfacing did not meet the statutory criteria for a public bidding exemption. That assertion, taken as true, establishes an injury that affects Asphalt Paving's substantial interests and establishes a material factual dispute, which establishes Asphalt Paving's standing and entitles it to a formal hearing under to section 120.57(1), Florida Statutes. Keystone , 26 So.3d at 654.

We reverse the Department's final order dismissing Asphalt Paving's petition for lack of standing. We remand with directions that the Department refer the petition for a formal hearing to determine whether the work "could not reasonably have been contemplated or foreseen in the original Plans and Specifications," and therefore was exempt from public bidding. This determination will require the resolution of factual and legal questions regarding the nature of the work involved and the application of section 337.11(9)(b), Florida Statutes.

REVERSED and REMANDED .

Jay, J., and Long, Jr., Robert E., Associate Judge, concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Peter Felix ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4528
    District Court of Appeal of Florida, First District.
    February 18, 2019
    Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant.
    Ashley B. Moody, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We agree with Appellant that the trial court should have corrected an illegal sentence. Appellant pleaded to DUI with property damage (count III), and leaving the scene of an accident involving unattended property (count IV). Following a jury trial, he was adjudicated guilty of DUI manslaughter (count I), and leaving the scene of an accident with property damage (count II). He was sentenced to fifteen years in prison on count I, time served on counts II and IV, and one year of probation on count III. The sentences on counts I and III were to run consecutively.

After Appellant had served four years on count I, the trial court granted Appellant's 3.850 motion and vacated his judgment and sentence as to count I alone. Appellant was released on bond, and ordered to report to state probation for supervision on count III. He argues that he in fact served his probation on count III satisfactorily, as evidenced by a letter from the Department of Corrections stating exactly that, which Appellant filed with his motion to correct illegal sentence and filed again with his motion for rehearing of the trial court's order dismissing the original motion. Meanwhile, over a year after the lower tribunal vacated the judgment and sentence on count I, the State amended the information, essentially substituting a count of vehicular homicide for the DUI manslaughter count. Appellant pleaded nolo contendere to this new count in exchange for a sentence of over nine years in prison followed by five years on probation. However, in its Order of Probation, the court sentenced Appellant on count III to another year on probation.

The record reflects that Appellant began serving his sentence on count III the day the court vacated his judgment and sentence as to count I. He completed the probationary sentence on count III on February 28, 2017. He provided evidence of this in the form of a DOC letter, the authenticity and accuracy of which neither the State nor the trial court challenged. The trial court therefore improperly resentenced Appellant for count III three months after he completed his sentence, violating Appellant's right to be free from double jeopardy. U.S. Const. amend. V ; Art. I, § 9, Fla. Const.; Sneed v. State , 749 So.2d 545, 546 (Fla. 4th DCA 2000) (quoting Palmer v. State , 182 So.2d 625, 626-27 (Fla. 4th DCA 1966) ). On remand, the trial court should grant Appellant's motion to correct his illegal sentence and vacate his new sentence on count III.

REVERSED and REMANDED .

Ray, Kelsey, and Jay, JJ., concur.


text:
    DYCK-O'NEAL, INC., Appellant, v. Heather LANHAM, Appellee.
    No. 1D16-1624
    District Court of Appeal of Florida, First District.
    February 18, 2019
    Susan B. Morrison of the Law Offices of Susan B. Morrison, Tampa, for Appellant.
    Rick A. Savage of Savage Law Office, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

This case arises from the foreclosure of Heather Lanham's residential property in Gadsden County, Florida. After acquiring the rights arising from the foreclosure judgment, Dyck-O'Neal, Inc., filed suit against Lanham to recover the deficiency balance due under the assigned obligation. Lanham moved for summary judgment, arguing that Dyck-O'Neal failed to provide timely notice of the assignment under section 559.715, Florida Statutes, and that such notice was a condition precedent to bringing the deficiency action. The trial court agreed, and this appeal followed.

We initially quashed the trial court's order for lack of subject matter jurisdiction over the deficiency action based on then-controlling caselaw. Dyck-O'Neal, Inc. v. Lanham , 214 So.3d 802, 802 (Fla. 1st DCA 2017). On review, the Florida Supreme Court disagreed with this Court's precedent and held "that section 702.06, Florida Statutes (2014), permits an independent action at law for a deficiency judgment when the foreclosure court has expressly reserved jurisdiction to handle a deficiency claim but has not actually decided the merits of the claim." Dyck-O'Neal, Inc. v. Lanham , 257 So.3d 1, 3 (Fla. 2018). The supreme court quashed our decision and remanded for further proceedings.

The issue now before this Court is whether the trial court erred when it granted final summary judgment for Lanham. Dyck-O'Neal argued below as it does on appeal that the notice-of-assignment requirement in section 559.715 does not act as a condition precedent to bringing a deficiency action. We agree.

Section 559.715 is part of the Florida Consumer Collection Practices Act. §§ 559.55 - 559.785, Fla. Stat. It provides that an "assignee [of consumer debt] must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt." § 559.715, Fla. Stat.

In Brindise v. U.S. Bank National Association , mortgage debtors appealed a foreclosure judgment due to the judgment creditor's failure to provide them with written notice of the assignment of their mortgage prior to filing suit. 183 So.3d 1215, 1217 (Fla. 2d DCA 2016), rev. denied , SC 16-300, 2016 WL 1122325 (Fla. 2016). The Second District affirmed the final judgment, holding that "the notice described in section 559.715 is not a condition precedent to foreclosure." Id. at 1216. The court reasoned, in part, that "[s]ection 559.715 has no language making written notice of assignment a condition precedent to suit." Id. at 1219. The court observed that

[t]he Legislature, of course, knows how to condition the filing of a lawsuit on a prior occurrence. It has done so, for example, for libel and slander actions. §§ 770.01-.02, Fla. Stat. (2014). Before a victim of alleged medical malpractice can file a negligence suit, the victim must engage in a rigorous presuit investigation and discovery process. §§ 766.203-.206, Fla. Stat. (2014). In the condominium context, the Legislature has mandated that the parties engage in an alternative dispute resolution process before seeking trial court relief. § 718.1255(4), Fla. Stat. (2014). The Legislature knows how to create a condition precedent. Because the Legislature declined to be more specific when enacting section 559.715, we will not expand the statute to include language the Legislature did not enact.

Id. Following the same rationale, the Fourth District also rejected a debtor's attempt to use the notice-of-assignment requirement in section 559.715 to defeat a mortgage foreclosure action. Bank of Am., N.A. v. Siefker , 201 So.3d 811, 817 (Fla. 4th DCA 2016) ("The plain language [of section 559.715 ] does not impose a bar on filing suit if notice is not provided consistent with the statute and that makes this case distinguishable from the opinions relied on by the borrower, which all involve unambiguous statutory language providing a bar to suit if a specified act was not satisfied.").

This Court has since cited Brindise with approval in Nationstar Mortgage, LLC v. Summers , 198 So.3d 1162 (Fla. 1st DCA 2016) (reversing final summary judgment in favor of borrowers on authority of Brindise ), and McCall v. HSBC Bank USA, N.A. , 186 So.3d 1134 (Fla. 1st DCA 2016) (affirming judgment for lender on authority of Brindise ). Lanham argues these cases are distinguishable because they involved mortgage foreclosure cases-not actions to collect deficiencies-and do not include any discussion or analysis. However, we see no reason why the rationale adopted by this Court in the mortgage foreclosure context should not apply to an action for a deficiency decree based on a foreclosure judgment. Specifically, section 559.715 contains no language indicating compliance with the notice requirement is a condition precedent to debt collection. See Brindise , 183 So.3d at 1219 ("Focusing solely on whether the foreclosure suit is an effort to collect a consumer debt, the parties urge us to become ensnared unnecessarily in a briar patch. We need not fight their fight. Even if a foreclosure suit is an effort to collect a consumer debt, several reasons compel us to conclude that the trial court did not err."); see also Wright v. Dyck-O'Neal, Inc. , 237 F.Supp.3d 1218, 1221 (M.D. Fla. 2017) (concluding "it is irrelevant that this action stems from a deficiency judgment rather than a mortgage foreclosure" as " § 559.715 does not create a condition precedent because the Florida Legislature did not draft it that way"); cf. Merrill v. Dyck-O'Neal, Inc., 745 F. App'x. 844, 847 (11th Cir. 2018) (concluding there is no "persuasive indication" that the Florida Supreme Court would reject the Brindise line of cases and holding that section 559.715 does not create a condition precedent to debt collection); Nat'l Collegiate Student Tr. 2007-1 v. Lipari , 224 So.3d 309, 311 (Fla. 5th DCA 2017) (holding that section 559.715 does not create a condition precedent to collection of student loan debt and noting that "[t]he Legislature knows how to create a condition precedent when it so desires").

We therefore reverse the order granting final summary judgment and remand for further proceedings.

Wolf, Ray, and Makar, JJ., concur.

      We decline to address Dyck-O'Neal's argument, raised for the first time on appeal, that a deficiency action is not an action to collect a consumer debt under section 559.715. For purposes of this opinion, we assume arguendo that Dyck-O'Neal is an "assignee" under section 559.715.


text:
    Angel L. PEREZ a/k/a Angel Perez and Doris Gonzalez, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR JPMORGAN MORTGAGE ACQUISITION TRUST 2007-CH4, Asset Backed, Pass-Through Certificates, Series 2007-CH4; Jose M. Gonzalez; Polk County, Florida; State of Florida Department of Revenue; Stephanie B. Cooper; State of Florida; and Polk County Clerk of the Circuit Court, Appellees.
    Case No. 2D17-1043
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Mark P. Stopa of Stopa Law Firm, LLC, Tampa (withdrew after briefing); and Latasha Scott of Lord Scott, PLLC, Tampa, (withdrew after briefing), for Appellants.
    Angel L. Perez a/k/a Angel Perez and Doris Gonzalez, pro se.
    Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula & Associates, P.A., Miami, for Appellee Deutsche Bank National Trust Company.
    No appearance for remaining Appellees.
   LENDERMAN, JOHN C., Associate Senior Judge.

Angel L. Perez a/k/a Angel Perez and Doris Gonzalez appeal a final judgment of foreclosure entered after nonjury trial in favor of Deutsche Bank National Trust Company, as Trustee for JPMorgan Mortgage Acquisition Trust 2007-CH4, Asset Backed, Pass-Through Certificates, Series 2007-CH4 (Deutsche Bank). We agree with Perez and Gonzalez's argument that the trial court erred in denying their motion for involuntary dismissal. Deutsche Bank failed to introduce sufficient evidence demonstrating satisfaction of the condition precedent of mailing a default letter pursuant to paragraph 22 of the mortgage at issue in the underlying action. Accordingly, we reverse and remand for involuntary dismissal.

Paragraph 22 of the mortgage at issue in this appeal requires the lender to give the borrower notice of default and opportunity to cure prior to acceleration. Paragraph 15 requires that all notices be written and provides that notices to borrowers shall be deemed to have been given when mailed by first class mail or when actually delivered to the borrower's notice address. At trial, Deutsche Bank called one witness, a mortgage banking research officer with JPMorgan Chase Bank, N.A. (Chase). Through this witness, Deutsche Bank introduced a default letter drafted on Chase letterhead and addressed to Perez at the property address; the default letter had been maintained in Chase's business records. The witness never testified whether the letter was actually sent, and Deutsche Bank did not introduce any other documents relating to whether the default letter was sent. After Deutsche Bank rested, Perez and Gonzalez moved for involuntary dismissal, in pertinent part, because the bank's letter by itself could not demonstrate compliance with the required condition precedent. Deutsche Bank asserted that introduction of the letter was sufficient. The trial court agreed with Deutsche Bank and denied the original motion. Perez and Gonzalez called Deutsche Bank's witness during the defense case to address other matters, following which they renewed their motion for involuntary dismissal for failing to comply with paragraph 22. After Deutsche Bank again asserted that the letter by itself was sufficient, the trial court denied the renewed motion and ultimately entered the final judgment of foreclosure. Perez and Gonzalez timely appeal.

The trial court erred in denying Perez and Gonzalez's motion and renewed motion for involuntary dismissal because the mere existence of a default letter in Chase's business records is legally insufficient to prove compliance with the paragraph 22. See Holt v. Calchas, LLC, 155 So.3d 499, 507 (Fla. 4th DCA 2015). This court has subsequently held similarly. See Edmonds v. U.S. Bank Nat'l Ass'n, 215 So.3d 628, 630-31 (Fla. 2d DCA 2017) ; Allen v. Wilmington Tr., N.A., 216 So.3d 685, 687-88 (Fla. 2d DCA 2017). Accordingly, we reverse the final judgment of foreclosure and remand for involuntary dismissal. See Edmonds, 215 So.3d at 631 ; Allen, 216 So.3d at 688.

Reversed and remanded with directions.

LaROSE, C.J., and LUCAS, J., Concur.

      Deutsche Bank argues on appeal that Perez and Gonzalez somehow invited this error by absenting themselves from the courtroom to prevent Deutsche Bank from calling them to testify whether they received the letter. But Deutsche Bank ignores that after Perez and Gonzalez ultimately entered the courtroom, Deutsche Bank declined the trial court's invitation to reopen its case.


author: SILBERMAN, Judge. SLEET, Judge, Concurring in part and dissenting in part.

text:
    Michael RODGERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4366
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Michael Rodgers seeks review of his judgment and sentences for twenty counts of possession of child pornography. Rodgers entered a plea to the charges while reserving the right to appeal the denial of his dispositive motion to suppress. Rodgers argues that the police exceeded the scope of the search warrant by entering a recreational vehicle (RV) that was located on property at the given address but not separately identified in the warrant. We agree and reverse.

The special agent who applied for the search warrant testified that he had information that someone with a specific internet protocol (IP) address was sharing child pornography. His surveillance and investigation led him to believe the property associated with the IP address consisted of a house located on three or four acres of land. Because the house is situated far from the road he could not see what was on the land behind it. He thought multiple occupants were living on the property, but he was not sure how many.

The search warrant listed the address of the premises and described the premises as "a single story, block residence." The warrant authorized the police "to enter and search 'the Premises' aforesaid and curtilage thereof, and any vehicles thereon, or any persons located on 'the Premises' or within the curtilage reasonably believed to be connected with said illegal activity."

The special agent testified that when the police entered the property, they discovered a detached mother-in-law suite behind the main house and several RVs behind that. One of the RVs had an Indiana license plate registered to Rodgers. The interior was blocked from view by shades on the windows. The RV had an attached awning affixed to the ground and a septic connection to the ground. A router cable ran "from the main portions of the residence to the RV." The special agent admitted he did not have specific information regarding which structure on the property was accessing the IP address that was the basis for the warrant. He later found out, after the warrant was executed, that Rodgers' RV was accessing utilities, including the internet.

As to Rodgers' RV, when the warrant was executed one of the entry teams knocked on the door of his RV and announced that they had a warrant. Rodgers answered through a window and contested the officers' authority to enter. The police told Rodgers to come outside for officer safety, but he did not comply and disappeared from view. The police then heard a "commotion" in the RV, described as "unidentifiable noises." Although the police did not hear any voices other than Rodgers', they forced entry into the RV out of a concern that either someone else was inside or Rodgers might "retrieve some sort of weapon." They immediately located Rodgers in the main living area and escorted him outside. A sweep of the bedroom and bathroom revealed that Rodgers had been alone. It also revealed a computer broken into pieces underneath the bed. The team did not seize the computer but called for the special agent.

At that time, the special agent was speaking with the property owner. The property owner told the special agent that Rodgers had been living on his property in the RV for the past five years. Rodgers paid monthly rent and had access to utilities including electric, water, and internet. However, the testimony did not establish that the police had this information before they entered Rodgers' RV. But after talking with the property owner, the police obtained a separate search warrant for Rodgers' RV. They seized the computer during the subsequent search.

The dispositive issue on appeal is whether the original entry into Rodgers' RV was within the scope of the first warrant. "The authority to search pursuant to a warrant is limited to the place described in the warrant, and the description must be sufficiently particularized to lead the searching officers to the place intended." Carr v. State, 529 So.2d 805, 806 (Fla. 1st DCA 1988). A warrant that authorizes the search of a residence and its curtilage includes structures found within the curtilage, such as a shed used in connection with the residence. See Antone v. State, 382 So.2d 1205, 1212 (Fla. 1980).

However, officers are not authorized to search a separate dwelling unit that exists on the premises but is not separately identified in the warrant. See Maryland v. Garrison, 480 U.S. 79, 86, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) ; State v. McKewen, 710 So.2d 638, 639 (Fla. 5th DCA 1998) ; Merrick v. State, 338 So.2d 77, 78 (Fla. 4th DCA 1976). As for RVs, the key issue is whether it is apparent that an RV located on the curtilage is being used as a residence. See United States v. Briscoe, No. 16-10155-EFM, 2017 WL 1908594, at *6 (D. Kan. May 10, 2017), clarified on denial of reconsideration by No. 16-10155-EFM, 2017 WL 2591633 (D. Kan. June 15, 2017) ; United States v. Kinney, No. 4:05CR00280ERW, 2005 WL 3213909, at *2 (E.D. Mo. Nov. 30, 2005) ; State v. Martini, 104 Or.App. 44, 799 P.2d 184, 186 (1990). Courts consider a myriad of factors in analyzing the issue including the exact location of the RV, whether it is owned by the homeowner or a third party, whether it is affixed to the ground or appears to be readily mobile, whether it has utility hook-ups connected to the main residence, whether it is occupied at the time the warrant is executed, and whether the police had previously been informed that the RV is being used as a separate residence. See Briscoe, 2017 WL 1908594, at *6 ; Kinney, 2005 WL 3213909, at *2 ; Martini, 799 P.2d at 186.

On one end of the spectrum is Kinney in which it was not apparent that the RV was being used as a residence. 2005 WL 3213909, at *2. The RV was located inside a unit of "a commercial building not regularly used for residential purposes which had one glass door entrance and one rolling, garage-type door entrance." Id. There was no mention of it being occupied at the time the warrant was executed. The court held that the RV was a "vehicle" within the scope of the warrant because it was readily capable of being driven on the highway and found stationary in a place not generally used as either a temporary or permanent residence. Id. (citing California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) ); see also United States v. Noriega, 990 F.2d 1264, 1993 WL 83508, at *1-3 (9th Cir. 1993) (unpublished opinion) (upholding the search of a motor home in the bay of a garage under a warrant for a business address when the police were told it was used for storage and had not been moved for some time).

On the other end of the spectrum is Briscoe, in which it was known to police that the RV was being used as a residence. 2017 WL 1908594, at *1. The RV was parked ten to fifteen feet behind the main residence, and the police were aware it was being occupied by the residence owner's associates. Id. Moreover, the defendants were not at the wheel of the RV when the officers executed the warrant; instead, they were asleep in a bed inside the RV. Id. at *6. The court concluded that under these circumstances the "[d]efendants had a reasonable expectation of privacy in the RV." Id.

In between the two extremes are Heffernan v. State, 385 So.2d 1060 (Fla. 4th DCA 1980), and Martini. In Heffernan, the RV was a collapsible pop-up trailer parked next to the residence and registered in the homeowner's name. 385 So.2d at 1061. While it was hooked up to the home's electricity and water, it was apparently unoccupied when the warrant was executed. The Fourth District held that the search of the trailer was within the scope of the warrant as it was a vehicle located on the curtilage and owned by the occupant of the residence. Id.

In Martini, the travel trailer was located about twenty-five feet south of the main clubhouse. 799 P.2d at 185. It was also connected to the clubhouse by an electrical extension cord. There was a dog tied to the door, and the defendant identified the trailer as his. Additionally, the police had learned there were several travel trailers on the premises prior to executing the search but had not included those trailers in the warrant. The court of appeals concluded that "it seemed reasonably clear that the clubhouse and travel trailer were separate residences." Id. at 186.

The facts in this case are closer to Martini than Heffernan. Unlike in Heffernan, the police did not find an unoccupied pop-up trailer registered in the name of the homeowner. Instead, they found a full-size RV registered to and occupied by a third party who contested the officers' right to enter. Additionally, the RV had an awning and a septic line affixed to the ground, and it was connected to the main house by a router cable. The interior was also blocked from view by shades on all the windows. From this evidence, the police should have known that the RV was being used as a separate residence. Accordingly, the search of the RV exceeded the scope of the warrant.

We reject the State's argument that the officers' search was nonetheless authorized as a protective sweep. See Vasquez v. State, 870 So.2d 26, 31 (Fla. 2d DCA 2003) (holding that a protective sweep of a residence is not authorized without a separate, lawful basis for entry). We also reject the State's argument that suppression was not required under the good faith exception to the warrant requirement. See Briscoe, 2017 WL 1908594, at *6 (rejecting the application of the good faith exception when officers should have known that a separate structure not listed on the warrant was inhabited); see also State v. Johnson, 605 So.2d 545, 549 (Fla. 2d DCA 1992) (declining to apply the good faith exception when the police exceeded the scope of the warrant during its execution because the exception "only applies where the officers act in an objectively reasonable fashion in executing a search warrant that is subsequently found invalid"). But see United States v. Houck, 888 F.3d 957, 960 (8th Cir. 2018) (applying the good faith exception to "conclude that the officers made, at most, an 'honest mistake' in interpreting the warrant to include the RV").

Finally, we do not agree with the dissent's conclusion that Rodgers' convictions may be affirmed under the inevitable discovery doctrine. The inevitable discovery rule requires that there is "a 'reasonable probability' that the evidence would have been discovered despite the improper police procedure." Rodriguez v. State, 187 So.3d 841, 846 (Fla. 2015) (quoting United States v. Brookins, 614 F.2d 1037, 1042 (5th Cir. 1980) ). Moreover, "the investigation must be ongoing and the State must show that the facts known by the police at the moment of the unconstitutional procedure would have led to the evidence notwithstanding the police misconduct." Id. (emphasis added).

In Rodriguez, the supreme court addressed the question of whether this standard is met upon a showing "that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct." Id. at 849. The court expressly concluded that the police had to be in the process of obtaining a warrant prior to the misconduct. The court explained that the alternative option "would effectively nullify the requirement of a search warrant under the Fourth Amendment." Id. at 850.

The Rodriguez court emphasized that "a person should enjoy the highest reasonable expectation of privacy" when the sanctity of a home is involved. Id. at 849. Indeed, the court recognized that even if the police had information leading to the evidence before their improper entry into the home, the failure to pursue a warrant leads to the conclusion that "the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied." Id. The existence of probable cause does not "obviate the requirement to pursue a search warrant." Id. Any other result would "eliminate the role of the magistrate and replace judicial reasoning with the current sense impression of police officers." Id.

Simply put, the inevitable discovery doctrine does not apply because there was no evidence that the police were actively pursuing a search warrant for the RV at the time of the illegal entry into Rodgers' RV. Id. at 849 ; see also Perez v. State, 43 Fla. L. Weekly D2404, D2406, 2018 WL 5305880 (Fla. 2d DCA Oct. 26, 2018) (holding that the inevitable discovery doctrine did not apply to support the admission of videos obtained from a laptop computer even though the police had probable cause to obtain a search warrant when the police were not actively pursuing a search warrant); Clayton v. State, 252 So.3d 827, 829-31 (Fla. 1st DCA 2018) (holding that the inevitable discovery doctrine did not apply to evidence of indoor marijuana cultivation found in a home despite the fact that the officers had probable cause to obtain a search warrant because the officers had not been in the process of doing so).

We do not agree with the dissent that this case is distinguishable from Rodriguez and its progeny because the officers herein had already obtained a search warrant to enter the premises on which Rodgers' RV was located. It is not the entry onto the premises described in the warrant that was illegal; it is the entry into the RV that Rodgers was using as a home that was illegal. While the officers had obtained a search warrant for the premises, the RV was not within the scope of this warrant. Indeed, the police appeared to recognize as much because they did in fact obtain a search warrant for the RV after the illegal entry and their resulting discovery of the computer inside the RV.

We also do not agree that "it was reasonably unclear to the officers that the first warrant did not authorize entry into the RV." Rodgers disputed the officers' authority to enter as soon as the first warrant was produced, and the officer who entered testified that he did so for the purpose of securing the premises rather than any belief that the first warrant authorized the entry. And as addressed earlier, under the circumstances entry to secure the premises was not permissible.

For the foregoing reasons, the search of the RV was not within the scope of the warrant. Accordingly, the trial court erred in denying Rodgers' motion to suppress. We therefore reverse Rodgers' judgment and sentences.

Reversed.

ROTHSTEIN-YOUAKIM, J., Concurs.

SLEET, J., Concurs in part and dissents in part with opinion.

SLEET, Judge, Concurring in part and dissenting in part.

I concur fully in the majority's well-reasoned analysis and conclusion that the first search warrant did not authorize the search of Rodgers' RV. However, I respectfully dissent from its decision to reverse Rodgers' twenty convictions for possession of child pornography. The officers' discovery of Rodgers' laptop and the pornographic images thereon was inevitable based on his shared internet connection and IP address with the main residence and the second warrant obtained by police to lawfully search Rodgers' RV. Accordingly, I would affirm Rodgers' convictions and sentences and the order denying his motion to suppress.

Initially, I recognize that the State has not raised application of the inevitable discovery doctrine. And "[g]enerally, if a claim is not raised in the trial court, it will not be considered on appeal." Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (alteration in original) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ). Nevertheless, under the "tipsy coachman" doctrine, "a trial court's ruling must be affirmed where the record supports any legal basis for the judgment." State v. Hankerson, 65 So.3d 502, 505 (Fla. 2011) ; see also Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla. 1979) ("The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used. Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it."). Because the record evidence supports a conclusion that the laptop "would have inevitably been discovered in the course of a legitimate investigation," Rodriguez v. State, 187 So.3d 841, 845 (Fla. 2015) (quoting Moody v. State, 842 So.2d 754, 759 (Fla. 2003) ), I would affirm Rodgers' convictions and sentences on appeal. See Robertson, 829 So.2d at 906 ("[T]he 'tipsy coachman' doctrine[ ] allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.' " (quoting Radio Station WQBA, 731 So.2d at 644-45 ) ); State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla. 2002) ("[T]he key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law.").

The inevitable discovery doctrine is an exception to the exclusionary rule, which states that "evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means." Clayton v. State, 252 So.3d 827, 830 (Fla. 1st DCA 2018) (quoting Maulden v. State, 617 So.2d 298, 301 (Fla. 1993) ). "The purpose of the exclusionary rule is to sufficiently deter deliberate police misconduct;" however this exception recognizes that "[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial." Rodriguez, 187 So.3d at 845 (quoting Fitzpatrick v. State, 900 So.2d 495, 514 (Fla. 2005) ). Application of the inevitable discovery exception "first requires a 'reasonable probability' that the evidence would have been discovered despite the improper police procedure." Id. at 846. Second, the rule requires the State to "demonstrate that at the time of the constitutional violation an investigation was already under way. In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct." Id. at 845-46 (citations omitted) (quoting Fitzpatrick, 900 So.2d at 514 ).

Here, the police obtained an initial search warrant from a neutral magistrate and were lawfully on the described premises conducting a search when they discovered that a previously unknown residence, Rodgers' RV, shared an internet connection with the main residence described in the warrant. Rodgers had already been identified as a resident of the property in the affidavit that formed the basis for the first search warrant; however, police did not realize that he lived in a separate RV unit until they were on the property conducting the search. The special agent in charge of the investigation testified at the suppression hearing that despite conducting surveillance and a police flyover of the property, police were unable to clearly see the back portion of the property where Rodgers' RV was located because of tree cover and the location of the primary residence, which blocked a view of the RV from the public road. Once police were on the property and observed the cable connecting Rodgers' RV to the internet router in the main residence, they were able to conclude that Rodgers was using the same IP address from his RV that police had discovered was offering to share child pornography. This additional information standing alone was sufficient to support the second search warrant that authorized the search of Rodgers' RV. See State v. Hood, 68 So.3d 392, 395 (Fla. 2d DCA 2011) ("[T]he inclusion of illegally obtained evidence in a supporting affidavit does not automatically invalidate the resulting search warrant. Instead, the court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause. If so, the search warrant is still valid." (citations omitted) ); State v. Hunwick, 434 So.2d 1000, 1001 (Fla. 4th DCA 1983) ("The inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit contains other valid allegations sufficient to establish probable cause, does not invalidate a search warrant." (citing Neary v. State, 384 So.2d 881 (Fla. 1980) ) ).

The majority notes that the special agent in charge "admitted" that the police did not have any evidence that Rodgers' RV shared the suspect IP address at the time of the first search warrant and implies that therefore police did not have probable cause to obtain a search warrant of Rodgers' RV at the time they entered the RV. I disagree. Once police entered the property they observed a router cable strung from the main router of the residence to Rodgers' RV and learned from the residence owner that Rodgers had been accessing the internet for years.

This established probable cause and that is all that is required under the law. See Schmitt v. State, 590 So.2d 404, 409 (Fla. 1991) ("[W]e have defined 'probable cause' as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged.").

Based on the record in this case, I conclude that police discovery of the partially destroyed laptop was inevitable. There was a reasonable probability that police would have sought and obtained the second warrant authorizing a search of Rodgers' RV based on the shared IP address and without the additional evidence found after unlawfully entering the structure. And there is no question that police were already in the process of conducting an investigation into the IP address associated with the subject property. Police already had a warrant to search the primary residence and knew that Rodgers shared an address with the primary residence. Accordingly, I believe that the pornographic images on the laptop were admissible under the inevitable discovery doctrine.

Recently, in cases where police had probable cause to procure a warrant but failed to do so, the Florida Supreme Court has additionally required the State show that a search warrant was being actively pursued prior to the occurrence of the illegal police conduct in order to satisfy the second prong of the inevitable discovery doctrine, which requires that the State "demonstrate an active and independent investigation." Rodriguez, 187 So.3d at 848 ; see also Clayton, 252 So.3d at 831 ("[I]nevitable discovery supports admission of illegally obtained evidence only when police actively sought to obtain a search warrant before searching a home."). The justification for this additional requirement was aptly explained by the First District in Clayton:

If the inevitable discovery doctrine were applied this way, any time police have probable cause to search a home, they could do so without seeking a search warrant and the State would be permitted to introduce evidence seized in such a search by asserting that the evidence would have been discovered inevitably. Such a rule would eviscerate the warrant requirement.

252 So.3d at 831 ; see also Rodriguez, 187 So.3d at 850 ; Young v. State, 207 So.3d 267, 270 (Fla. 2d DCA 2016) ; Rowell v. State, 83 So.3d 990, 995 (Fla. 4th DCA 2012) ("[T]he inevitable discovery doctrine will not be applied in every case where the police had probable cause for a search warrant, but failed to get one." (quoting McDonnell v. State, 981 So.2d 585, 593 (Fla. 1st DCA 2008) ) ).

In Rodriguez, the supreme court considered a situation where police, who had probable cause to believe that the defendant was growing marijuana in his home, chose to seek voluntary consent instead of pursuing a warrant. 187 So.3d at 844. The trial court concluded that the consent to search was involuntary, and the supreme court held that the inevitable discovery doctrine did not apply, explaining that "[w]ith no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence." Id. at 849. Because police in this case had a warrant and were in the process of conducting an investigation into the suspect IP address-which led to their discovery that Rodgers had access to the main residence's router independent of the unlawful search-this case is distinguishable from the situation described in Rodriguez.

This is not a case "where the police had probable cause to obtain a warrant but simply failed to get one." See Rodriguez, 187 So.3d at 850. The record demonstrates that the unlawful entry into Rodgers' RV happened simultaneously with the investigation into the router cable and Rodgers' access to the suspect IP address. Indeed, the special agent in charge testified that he observed the internet cable running to the RV and learned from the owner of the residence that it was connected to the router in the primary residence before he became aware of the RV search or the disabled laptop. This evidence inevitably would have led police to obtain the second warrant regardless of the warrantless entry or discovery of the laptop. See, e.g., Craig v. State, 510 So.2d 857, 863 (Fla. 1987) (holding that evidence was admissible when it "would have been found independently even without the [unlawful police conduct] by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure"). I do not read the holding of Rodriguez to require that officers be in the process of obtaining a second warrant at the time of a warrantless search in order for the inevitable discovery doctrine to apply. The warrant requirement outlined in Rodriguez was satisfied by the fact that the officers in this case had already obtained the first warrant prior to searching Rodgers' residence.

The inevitable discovery doctrine "balance[s] the need to deter police misconduct with the societal cost of allowing obviously guilty persons to go free." Rodriguez, 187 So.3d at 845 (citing Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ). In this case, the police misconduct was neither especially deliberate nor egregious. When the police initially entered the property and discovered the additional structures, they made a decision to execute a coordinated, simultaneous search of all of the structures including the main residence described in the search warrant. Police initially made contact with Rodgers and asked him to come outside the RV for officer safety. After Rodgers retreated beyond the officers' line of sight, the officers heard a commotion that they described as a "rattling, banging and stuff like that." Concerned that Rodgers was "going back to retrieve some sort of weapon" and that someone else may be inside his RV, the police decided to make a forced entry into his RV. Once Rodgers was removed from the RV, an officer reentered the RV to check for other occupants. The unrefuted testimony of the officer who conducted the search was that he only looked in places where another individual could be hiding; he did not search compartments, desks, drawers, or other areas which might have contained contraband related to this offense. When the officer searched the bedroom, he found a "bed elevated enough for a person to fit underneath there so I briefly looked under the bed with my gun drawn and the light on my gun to see if there was anybody underneath the bed." He did not find anyone else in the RV, but he did see a broken computer under the bed. Without touching or searching the computer, the officer exited the RV and informed his supervisor. Police abated the search until they received the second warrant based on the discovery of the computer, the internet router connection between Rodgers' RV and the main residence, and Rodgers' status as a tenant on the property who paid rent and shared utilities with the main residence. Although the entry into the RV

was unlawful, it happened at a time when it was reasonably unclear to the officers that the first warrant did not authorize entry into the RV and their search was substantially limited in scope. When the officers realized that the RV was a personal residence, they obtained the second warrant before reentering and removing the laptop.

Because I conclude that if the police had not discovered the broken computer during the initial sweep of Rodgers' RV, they inevitably would have pursued and obtained the second search warrant based on the discovery that Rodgers was using the same suspect IP address as the main residence, I would affirm his convictions and sentences.

      An Internet Service Provider (ISP) assigns a single, unique IP address to a router; therefore any computer accessing the same router would share a single IP address. See generally Tim Lachance, "IP" So Facto? Not So Fasto: Why IP Addresses Should Not Be Considered PII, 58 IDEA 303, 307 (2018) ("[U]tilizing [Network Address Translation] a customer can connect multiple devices to the internet through a central router using a single IP address. When this protocol is used, the IP address that is transmitted through the internet does not identify the single machine being used, but rather the router through which that machine is connected to the internet."); Paul Ham, Warrantless Search and Seizure of E-Mail and Methods of Panoptical Prophylaxis, B.C. Intell. Prop. & Tech. F., May 2008, at 14 ("An ISP assigns a unique IP [address] ... to the router. Any computer that accesses the Internet through that router then assumes the single IP address of the router. Through this IP [address], someone can request from an ISP the identity of the subscriber who owns the router-but potentially not the identity of all the users who access the Internet through the router.").

      The special agent in charge testified that he did not believe he needed the second warrant to search the RV until he realized that it was being used as a separate residence.


author: VILLANTI, Judge.

text:
    Erin W. PHILLIPS, Petitioner, v. Donald E. PHILLIPS ; Lost Heaven Trust; Encore Trust; and Legacy Trust, Respondents.
    Case No. 2D18-1025
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    John B. Agnetti of Hoffman, Larin, & Agnetti, P.A., North Miami Beach, for Petitioner.
    Michael R. Carey of Carey, O'Malley, Whitaker, Mueller, Roberts & Smith, P.A., Tampa, for Respondents Lost Heaven Trust, The Encore Trust, and Legacy Trust.
    No appearance for Respondent Donald E. Phillips.
   VILLANTI, Judge.

Erin W. Phillips (the Wife) petitions for a writ of certiorari to quash the trial court's order that sustained the objections of nonparties Lost Heaven Trust, Encore Trust, and Legacy Trust (collectively "the Trusts") to her requests for production of documents and quashed the accompanying subpoenas for records directed to them in this dissolution case between the Wife and Donald E. Phillips (the Husband). Because the trial court's order departed from the essential requirements of the law and because the error cannot reasonably be corrected on plenary appeal at the conclusion of the case, we grant the petition and quash the trial court's order.

The primary disputes between the parties revolve around financial issues, including alimony, child support, and attorney's fees. The record shows that the trial court had previously ordered the Trusts to produce financial records for a specified period of time, at least some of which showed that the Trusts regularly disbursed funds to or on behalf of the Husband in amounts that were not reflected on his financial affidavit.

In anticipation of a hearing on her motion for temporary support and attorney's fees, the Wife sought to subpoena updated financial records from the Trusts. The Trusts objected to the requests and moved to quash the subpoenas, contending that the documents were confidential and irrelevant to any issue before the court.

At a hearing on the Trusts' objections and motions to quash, the Wife asserted that she needed updated financial records to be able to establish the Husband's income and expenses so that she could offer evidence of the parties' financial resources as well as the Husband's ability to pay temporary support and attorney's fees. In response, the Husband stipulated on the record that he could afford to pay "whatever the trial court ordered." Based on that magnanimous stipulation, the trial court sustained the Trusts' objections and granted the motions to quash the subpoenas. However, because this ruling prevents the Wife from obtaining the evidence she needs to meet her burden of proof, we must grant the petition and quash the trial court's order.

Section 61.16(1), Florida Statutes (2017), permits the trial court to order one party to pay a reasonable amount for attorney's fees, suit money, and costs to maintain or defend a dissolution action "after considering the financial resources of both parties." The purpose of such an award is "to ensure that both parties will have a similar ability to obtain competent legal counsel." Cullen v. Cullen, 884 So.2d 304, 306 (Fla. 2d DCA 2004). In furtherance of this purpose,

[a] circuit court cannot deny attorneys' fees and costs under section 61.16 without making any findings as to the parties' relative financial needs and abilities. Perrin v. Perrin, 795 So.2d 1023, 1024-25 (Fla. 2d DCA 2001) (citing Schlafke v. Schlafke, 755 So.2d 706, 707 (Fla. 4th DCA 1999) ). The court must make findings of fact sufficient to permit appellate review of its decision to award or deny a party's request for attorneys' fees and costs under section 61.16. See Cullen, 884 So.2d at 306.

Powers v. Powers, 193 So.3d 1047, 1048 (Fla. 2d DCA 2016).

To enable the court to make the required findings, the party requesting an award of temporary support and attorney's fees must present evidence of the financial resources of both parties, the marital lifestyle, the need for temporary support, and the other party's ability to pay. The trial court is required by statute to consider all sources of income available to each spouse, including trust income, when considering such temporary awards of support and attorney's fees. See, e.g., Beck v. Beck, 852 So.2d 934, 936 (Fla. 2d DCA 2003). Because the scope of the inquiry into the parties' respective financial resources is relatively broad, the trial court cannot elect to limit its review to only the parties' financial affidavits if a party seeks to present additional relevant evidence. See, e.g., Weasel v. Weasel, 421 So.2d 749, 750-51 (Fla. 4th DCA 1982) (reversing denial of motion for temporary fees and costs when the court considered only the financial affidavits and refused to consider other evidence concerning the parties' standard of living). And this is particularly true when there is some indication that the parties' financial affidavits do not fairly reflect their financial status. If the party seeking an award of temporary support and attorney's fees fails to present sufficient evidence to establish the parties' relative need and ability to pay, the trial court has no choice but to deny the motion. See, e.g., Rutan v. Rutan, 177 So.3d 35, 36 (Fla. 2d DCA 2015) ; Esaw v. Esaw, 965 So.2d 1261, 1266 (Fla. 2d DCA 2007) ("[A] 'litigant requesting ... alimony has the burden of proof on that issue.' " (quoting Walter v. Walter, 442 So.2d 257, 259 (Fla. 5th DCA 1983) ) ); Gilliard v. Gilliard, 162 So.3d 1147, 1153 (Fla. 5th DCA 2015) ("The burden to show his or her financial need and the spouse's ability to pay is on the party requesting alimony.").

Here, the Wife sought to obtain information from the Trusts about their disbursements to and on behalf of the Husband in an effort to present evidence concerning the parties' respective financial resources, the Wife's ability to retain competent counsel, and the Husband's ability to pay temporary support. The Wife asserted that there was evidence that the Husband was receiving disbursements both directly and on his behalf from the Trusts that were not reflected on his financial affidavit, and she proffered some limited evidence on this issue at the hearing on the motions to quash. In light of these facts, absent the Wife being able to obtain additional documents and records from the Trusts, she would be precluded from carrying her burden to establish the extent of the parties' respective financial resources and the trial court would be denied the evidence it needs to make the findings required of it by statute. The Husband's stipulation can neither dispense with the trial court's statutory obligation to make findings of fact concerning the parties' financial resources nor trump the Wife's right to the financial discovery necessary to prove her case. Therefore, the trial court's order that denied the Wife the ability to obtain this relevant and necessary evidence constituted a departure from the essential requirements of the law.

In response to the Wife's petition, the Trusts contend that the Wife is not entitled to have the writ issue because she cannot show that she has no remedy on direct appeal. And the Trusts are correct that, in general, "[c]ertiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal." Giacalone v. Helen Ellis Mem'l Hosp. Found., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009) (citing State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993), and Power Plant Entm't, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So.2d 565, 567 (Fla. 4th DCA 2007) ("[F]ew orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review.") ).

However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings. See Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004) ; Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000) ; Criswell v. Best W. Int'l, Inc., 636 So.2d 562, 563 (Fla. 3d DCA 1994).

Id. at 1234-35 (emphasis added) (footnote omitted).

Here, the order at issue denied the Wife discovery of information that was relevant to her claim for awards of temporary support and attorney's fees. Without such information, the Wife's claim for these temporary awards was effectively eviscerated because she was prevented from offering evidence to establish the Husband's financial resources and ability to pay-information that was required to enable the trial court to make the findings required of it by statute. And the trial court's obligation to make the statutorily required findings could not be excused by the Husband's stipulation concerning his alleged ability to pay. Therefore, in this unusual set of circumstances, the Wife has shown that the error cannot be corrected on appeal, and she is entitled to issuance of the writ.

In additional opposition to the Wife's petition, the Trusts argue that because the Husband stipulated that he can afford to pay whatever the court orders, evidence about his income and expenses became irrelevant. And there is some limited authority from other district courts that tends to supports the Trusts' argument on this point. See, e.g., Woodward v. Berkery, 714 So.2d 1027 (Fla. 4th DCA 1998) (refusing to permit the mother to obtain discovery about the father's finances where the father (Tom Jones) indisputably had over $ 89,000 per month in income and had stipulated to his ability to pay any amount of child support awarded); Granville v. Granville, 445 So.2d 362 (Fla. 1st DCA 1984) (quashing order denying the husband's motion for protective order in a child support case when the mother sought a modification of child support based on her change in financial circumstances and when the father, a famous author, stipulated that he could pay any amount of child support awarded); Palmar v. Palmar, 402 So.2d 20 (Fla. 3d DCA 1981) (finding no error in trial court refusing to permit discovery of the husband's assets in a two-year marriage where the husband stipulated that he could pay whatever was awarded). However, unlike in those cases, this case does not involve a famous party with reasonable concerns about disclosure of assets to the media as in Woodward and Granville or a very short-term marriage as in Palmar. Moreover, unlike in those cases, the Wife has argued here-and the record supports-that the financial affidavit filed by the Husband contained serious omissions concerning the extent and sources of his income, making it impossible for the court to rely on that document in making its findings. Therefore, we decline to extend the holdings of those cases to this factual scenario.

Further, even if those cases could apply here, the supreme court rejected a similar argument in Miller v. Schou, 616 So.2d 436, 437 (Fla. 1993). In that case, the mother petitioned for an increase in child support based on an allegation that the father's income had increased dramatically. When the court ordered the father to file a financial affidavit, he objected and then stipulated that he had the ability to pay $ 3000 per month in child support. Id. The trial court denied the father's motion, and he filed a petition for writ of certiorari, which the Third District granted. Id. On appeal, the supreme court noted that the father's stipulation that he could pay up to $ 3000 and the fact that the child's needs might be gleaned from the mother's financial affidavit could not excuse the father from providing financial information because "[w]ithout knowing [the father's] financial status it would be impossible for the trial court to determine the appropriate" increase in child support. Id. at 438. "Simply informing the court that [the father] could provide a certain amount of child support did not provide the court with information as to the amount of support which would be reasonable." Id. The court also noted that its decision would be the same "even if [the father] had stipulated that he had the financial ability to pay any reasonable award of child support." Id. at 438 n.2. In other words, this type of stipulation does not preempt full financial disclosure in the absence of some other compelling circumstances.

Here, as in Miller, the Husband's decision to inform the court that he could provide any amount of temporary support did not provide the court with the information it needed to discharge its statutory obligation to determine the amount of temporary support that would be reasonable given the parties' financial resources. Therefore, the Husband's stipulation was insufficient to excuse the Trusts from producing the requested records.

For all of these reasons, we hold that the trial court departed from the essential requirements of the law by sustaining the Trusts' objections and quashing the Wife's subpoenas for documents relevant and necessary to her claim for awards of temporary support and attorney's fees. Accordingly, we grant the petition and quash the trial court's order.

Petition granted.

LaROSE, C.J., and SLEET, J., Concur.

      Notably, neither the Husband nor the Trusts had objected to the court's earlier order that required them to produce the same types of documents that the Wife now seeks to have updated.


author: KELLY, Judge.

text:
    Shayla LEWIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1247
    District Court of Appeal of Florida, Second District.
    Opinion filed February 20, 2019
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Shayla Lewis appeals from her judgment and sentences for executing a scheme to defraud on a financial institution, unlawful possession of a stolen credit card, fraudulent use of a credit card ($ 100 or more), grand theft ($ 300 or more), and criminal use of personal identification information. We affirm Lewis's convictions with the exception of her conviction for grand theft.

Lewis argues, correctly, that this court has held that convictions for scheming to defraud and grand theft based on the same underlying conduct violate double jeopardy principles. See Henry v. State, 64 So.3d 181, 183 (Fla. 2d DCA 2011) ("[D]ouble jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct." (quoting Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) ) ). Therefore, we strike the conviction for grand theft, which is the lesser offense. See id. ("[B]ecause organized fraud includes all of the elements of grand theft as well as an additional element, grand theft is a lesser offense of organized fraud." (citing Pizzo, 945 So.2d at 1207 ) ); see also Riley v. State, 854 So.2d 807, 808 (Fla. 1st DCA 2003) (holding that the defendant could not be convicted of illegally obtaining property through the use of a forged credit card and grand theft arising out of the same transaction because fraudulent use of a credit card and grand theft were degrees of the same offense).

We find no merit in Lewis's remaining points on appeal. Accordingly, we affirm the convictions for scheming to defraud, unlawful possession of a stolen credit card, fraudulent use of a credit card, and criminal use of personal identification information. We reverse the conviction for grand theft and remand for resentencing pursuant to a corrected scoresheet.

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

SLEET and SALARIO, JJ., Concur.


author: Gerber, C.J.

text:
    Robert Edward TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2439
    District Court of Appeal of Florida, Fourth District.
    February 20, 2019
    Carey Haughwout, Public Defender, and Christine Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his sentence for aggravated assault with a deadly weapon following his no contest plea. The defendant argues that the circuit court erred by accepting the victim's unsworn statement at sentencing in violation of section 921.143(1), Florida Statutes (2018). We affirm, because the defendant did not preserve this argument for review, and fundamental error did not occur.

We present this opinion in three sections:

1. The sentencing hearing;
2. The parties' arguments on appeal; and
3. Our review.

1. The Sentencing Hearing

At sentencing, during the state's presentation, the prosecutor explained that the victim, who was in the courtroom, felt emotionally unable to verbally address the court. In lieu of the victim's testimony, the state offered the victim's unsworn written statement and other documents.

In response, defense counsel stated, "I have no objection to most of [the documents], Your Honor, I would like to cross-examine the victim cause there are some statements in his letter that - [.]" The circuit court interrupted defense counsel, and stated, "Well, if he doesn't want to testify, he doesn't have to, I'll read the letter and I'll take it for what it's worth at that point." At that point, the circuit court apparently realized that it should ask for the defense's position on whether the court should review the state's documents, including the victim's unsworn written statement. The circuit court asked, "Well, legally, though, I can review them; correct?" and defense counsel responded, "Yes, Your Honor, review them."

The victim asked the prosecutor to read the unsworn statement into the record. The victim's unsworn statement detailed his injuries, his difficult recovery, and his significantly diminished quality of life after the attack. The victim explained that, among other things, he experienced severe pain, was required to wear a neck collar, and had been bedridden for nine months. He stated that he could no longer eat without pain or enjoy outdoor family activities and other social functions.

Next, the prosecutor called the victim's wife, who also was present in the courtroom, to read her unsworn written statement. The defense did not object. The wife's unsworn statement detailed the attack's aftermath and the victim's deteriorating condition. Unlike the victim, though, the victim's wife was cross-examined by defense counsel. The wife admitted that the victim had a neck injury before the assault. However, she explained that the assault aggravated the victim's preexisting injury.

Defense counsel argued, among other things, that given the victim's preexisting injuries, the defendant could not be blamed for the victim's current medical problems. Defense counsel also stated that the defendant was willing to complete probation as part of his sentence and asked the circuit court to consider supervision in lieu of additional incarceration.

In contrast, the state asked for the maximum five-year prison sentence.

In a lengthy oral pronouncement, the circuit court accepted the defendant's argument that the victim had a preexisting neck injury. However, the circuit court found that the defendant assumed the risk of the victim's condition when he attacked the victim. Ultimately, the circuit court sentenced the defendant to three years in prison, with credit for time-served, followed by house arrest for one year, then probation for one year. The circuit court explained that such a sentence would protect the victim from future contact with the defendant.

2. The Parties' Arguments on Appeal

This appeal followed. The defendant argues that the circuit court erred by accepting the victim's unsworn statement at sentencing in violation of section 921.143(1), Florida Statutes (2018). Section 921.143(1) states, in pertinent part:

At the sentencing hearing, and prior to the imposition of sentence upon any defendant ... the sentencing court shall permit the victim of the crime for which the defendant is being sentenced ... to:
(a) Appear before the sentencing court for the purpose of making a statement under oath for the record; and
(b) Submit a written statement under oath to the office of the state attorney, which statement shall be filed with the sentencing court.

The state responds that the defendant did not preserve this argument for review because, at sentencing, the defense did not object to the admission of the victim's unsworn statement. Instead, the defense merely asked to cross-examine the victim about the statement, and then ultimately agreed that the circuit court could review the statement.

3. Our Review

We agree with the state that the defendant did not preserve this argument for review. Even if we were to treat defense counsel's request to cross-examine the victim as an objection, that objection is different than the ground upon which the defendant's appeal is based. See Rodriguez v. State , 609 So.2d 493, 499 (Fla. 1992) ("It is well settled that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal.").

The defendant, anticipating the state's lack of preservation claim, argues as a fallback position that even if the ground now raised on appeal was not properly raised below, we should hold that the circuit court's acceptance of the victim's unsworn statement at sentencing rises to the level of fundamental error.

We decline to hold that fundamental error occurred in this case. It is debatable whether a court's acceptance of an unsworn victim statement is error at all, based on a conflict which exists between the First District and Second District on this issue. We will address that conflict in detail.

The First District, in Patterson v. State , 994 So.2d 428 (Fla. 1st DCA 2008), held that a court's acceptance of a victim's unsworn statement is error. There, the defendant appealed an order summarily denying his motion for postconviction relief. Id. at 429. He argued his counsel was ineffective when, at sentencing, counsel failed to object to the state's reliance upon an unsworn letter from a victim's family member. Id. The First District reversed for an evidentiary hearing, reasoning:

[S]ection 921.143, Florida Statutes, requires that the victim or family member either appear before the sentencing court under oath or submit a written statement under oath to the state attorney, neither of which occurred in this case. Furthermore, it is apparent that the sentencing judge relied on the erroneously admitted evidence when imposing appellant's sentence.

Id.

More recently, the Second District certified conflict with Patterson in Dickie v. State , 216 So.3d 35 (Fla. 2d DCA 2017). In Dickie , the Second District concluded that the circuit court did not abuse its discretion when it considered several unsworn victim impact statements at sentencing. Id. at 39. The Second District reasoned:

The plain language of section 921.143(1) does nothing to restrict the type of information that a court may consider when fashioning a criminal defendant's sentence. In pertinent part, section 921.143(1)(a)-(b) provides that a sentencing court "shall permit the victim of [a] crime" to "[a]ppear before the sentencing court for the purpose of making a statement under oath for the record" and "[s]ubmit a written statement under oath to the office of the state attorney." (Emphasis added.) The statute's plain language says nothing about what a sentencing court shall not permit, and courts have declined to read such restrictive verbiage into the statute.
We conclude that section 921.143(1) was meant to create a narrow class of victim impact statements which the trial court shall permit to be heard prior to imposing a sentence. That is, the legislature mandated that the trial courts permit all victims of crimes the opportunity to be heard prior to the imposition of a criminal sentence, so long as the victims' statements were made under oath. In so doing, the legislature did not sub silentio create a new sentencing doctrine precluding trial courts from considering unsworn victim impact statements in fashioning a criminal sentence. The trial court must be permitted to consider, and afford the appropriate weight to, any constitutionally and statutorily permissible information that reasonably might bear on the proper sentence for a particular defendant.
The sole judicial opinion construing section 921.143(1) as a barrier to the admissibility of unsworn victim impact statements is Patterson , 994 So.2d at 429. The defendant in Patterson appealed from a summary denial of a motion for postconviction relief. Id. The First District affirmed the trial court's summary denial of all the defendant's postconviction issues, save for one; the defendant claimed his trial counsel was ineffective for failing to object to a letter from the victim's brother which was not authenticated, handwritten, or signed. Id. In remanding for an evidentiary hearing on this ground, the First District read section 921.143(1) as a statute which "requires that the victim or family member either appear before the sentencing court under oath or submit a written statement under oath to the state attorney, neither of which occurred." Accordingly, the First District reversed the summary denial of this single issue.
The Patterson court's construction of section 921.143(1) is unsupportable by the statute's text. The plain language of section 921.143(1) does not impose any "requirement" on victims or their families. In fact, the word "require" does not appear in the statute at all. The only constraint section 921.143(1) creates is on trial courts, to the extent that the trial courts "shall permit" victims the opportunity to be heard so long as those victims make their statements under oath. The Patterson court's interpretation of section 921.143(1) as "requiring" that only sworn statements of victims be considered by the trial courts markedly changes the meaning of the statute, encroaches on the legislature's role to write the laws of our state, and therefore contravenes bedrock principles of separation of powers ....
We disagree with Patterson and the proposition that unsworn victim impact statements are per se inadmissible at sentencing hearings. Trial courts have the discretion to consider such statements, just as they did before passage of section 921.143(1)....

Id. at 37-39 (emphasis in original; footnotes and citations omitted).

Here, because the defendant did not preserve the argument that a court's consideration of an unsworn victim statement is error, we need not decide whether we are persuaded by the First District's or the Second District's reasoning on this issue.

However, on the defendant's fallback fundamental error argument, we hold that no fundamental error occurred. The First District, in Baugh v. State , 253 So.3d 761 (Fla. 1st DCA 2018), recently held that a court's acceptance of a victim's unsworn statement does not necessarily rise to the level of fundamental error. The First District reasoned:

Based on Patterson , the trial court erred in accepting the victim's unsworn statement in this case. However, the error did not rise to the level of fundamental error. Unlike the facts in Patterson , it is not apparent from the record that the court relied on the victim's unsworn statement in sentencing [the defendant] to twenty years in prison, rather than the fifteen years mandated by the PRR statute. The State did not argue for an enhanced sentence based on the victim's statement, nor did the court give any indication that it was influenced by the statement. Additionally, the twenty-year sentence was well within the court's discretion to impose and far less than the maximum of thirty years allowed by the sentencing statute and recommended by the victim.

Id. at 765.

As in Baugh , we hold in this case that any error did not rise to the level of fundamental error. Here, it is not apparent from the record that the circuit court relied on the victim's unsworn statement in sentencing the defendant to prison, rather than to probation as the defendant requested. The circuit court just as easily could have relied on victim's wife's testimony at the sentencing hearing, which also discussed the victim's injuries and trauma from the assault. Or the trial court could have relied upon the very violent nature of the assault itself. Additionally, the three-year sentence was well within the court's discretion to impose and less than the maximum of five years allowed by statute and recommended by the state.

Based on the foregoing, we affirm the defendant's sentence.

Affirmed.

Ciklin and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Israel OTERO and Pura Rodriguez, Appellants, v. Omar J. ARCIA, Appellee.
    Case No. 5D17-3043
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Israel Otero and Pura Rodriguez, Orlando, pro se.
    Omar J. Arcia, of The Arcia Law Firm, P.L., Miramar, for Appellee.
   PER CURIAM.

Appellants, Israel Otero and Pura Rodriguez, appeal the trial court's final order dismissing their complaint with prejudice. Appellants sued Appellee, Omar Javier Arcia, alleging that he committed legal malpractice and breached fiduciary duties while representing them in defense of a mortgage foreclosure case. Appellants claimed in their complaint that they entered into a consent judgment foreclosing their interest in property based upon the negligent advice and negligent representation provided to them by Appellee. Appellee incorrectly represented to the trial court that Appellants had appealed the consent judgment, and the trial court dismissed Appellants' complaint, finding that their claim was not ripe for litigation because of the supposed pending appeal. However, Appellants never appealed the consent judgment. Thus, Appellants' claim was ripe and should not have been dismissed. We reverse and remand for further proceedings.

With regard to when a litigation-related malpractice action accrues or achieves ripeness, the Florida Supreme Court has clearly stated: "[T]he two-year statute of limitations for litigation-related malpractice under section 95.11(4)(a), Florida Statutes (1997), begins to run when final judgment becomes final." Silvestrone v. Edell , 721 So.2d 1173, 1175-76 (Fla. 1998). "[A] judgment becomes final either upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing." Id. at 1175 n.2. Thus, the issue in this case is whether the "underlying legal proceeding" at issue had become final. See Larson & Larson, P.A. v. TSE Indus., Inc. , 22 So.3d 36, 44 (Fla. 2009) (quoting Peat, Marwick, Mitchell & Co. v. Lane , 565 So.2d 1323, 1325 (Fla. 1990) ).

Here, the litigation-related malpractice claim was that Appellee committed malpractice by failing to properly represent Appellants in the foreclosure matter and by specifically advising Appellants to abandon any defenses they had to the foreclosure by entering into a consent judgment in favor of the lender. The record is clear that Appellants did not appeal the consent judgment. Appellants did file a motion to vacate the consent judgment, which was denied, as was Appellants' motion for rehearing. Appellants appealed the order denying their motion for rehearing but that appeal was dismissed more than a year before Appellants filed their complaint against Appellee. Appellants repeatedly objected to all efforts to conduct the foreclosure sale, and appealed one order denying their motion to cancel the sale. This appeal of a post-judgment nonfinal order was still pending in this Court when their complaint was dismissed.

At the hearing on Appellee's motion to dismiss, whether intentionally or negligently, Appellee misled the trial court when he told the judge multiple times that Appellants had "appealed the consent judgment to the 5th District Court of Appeals" and that the appeal of the consent final judgment was still pending in this Court. The trial court accepted Appellee's representation and dismissed Appellants' complaint, ultimately with prejudice, on the basis that Appellants' malpractice claim against Appellee was not ripe. However, at the time Appellants' complaint was dismissed, there were no appeals pending that attacked the consent final judgment of foreclosure. The only appeal still pending when the trial court dismissed Appellants' complaint was of the order denying their motion to cancel the foreclosure sale.

Finally, although at the time of their complaint Appellants had not determined the extent of their alleged damages, Silvestrone "merely establishes a bright line for establishing when the client has suffered some loss as a consequence of the attorney's negligence"; it "does not require that there be a determination of the full extent of all losses suffered by the client due to the lawyer's negligence." Larson , 22 So.3d at 42 ; see also R.S.B. Ventures, Inc. v. Berlowitz , 211 So.3d 259, 264 (Fla. 4th DCA 2017) ("[T]he foreclosure judgment resulted in RSB's loss of any rights to the foreclosed property. ... [A] foreclosure judgment adverse to RSB has reached the point of finality, so RSB's legal malpractice claim has accrued with respect to the foreclosure judgment.").

Here, Appellants met the bright-line requirement of Silvestrone because they established "some loss" as a result of the negligence alleged in their complaint-that loss being a foreclosure judgment against them in which they lost rights to the subject property. Because the consent final judgment was never the subject of a motion for rehearing or a direct appeal, the judgment was final and their claim for malpractice was ripe.

For the reasons expressed above, we hold that the trial court erred in dismissing Appellants' malpractice complaint against Appellee. We reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

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


text:
    SAFEPOINT INSURANCE COMPANY, Appellant, v. Walter SCHMITZ, Appellee.
    Case No. 5D18-2054
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Mihaela Cabulea, Curt Allen, and Anthony J. Russo, of Butler Weihmuller Katz Craig, LLP, Tampa, for Appellant.
    Matthew G. Struble and Christine M. Deis, of Struble, P.A., Ft. Lauderdale, for Appellee.
   PER CURIAM.

Having concluded, after full briefing, that the nonfinal order under review effectively is an order briefly staying the underlying action and not, as argued by Appellant, one granting injunctive relief, we dismiss this appeal for lack of jurisdiction. See Dep't of Child. & Fams. v. L.D. , 840 So.2d 432, 434 (Fla. 5th DCA 2003) (recognizing that an order staying a proceeding is not an appealable nonfinal order (citing Perry v. Fireman's Fund Ins. Co. , 379 So.2d 429, 429 (Fla. 2d DCA 1980) ) ). We also decline to sua sponte grant certiorari relief.

Appeal dismissed without prejudice to either party addressing the merits of the order in a final appeal.

DISMISSED.

EVANDER, C.J., LAMBERT and EISNAUGLE, JJ., concur.


text:
    Keith BUFFARDI and Kendra Buffardi, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    Case No. 5D18-2633
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 22, 2019
    Melissa A. Giasi, of Sivyer Barlow & Watson, P.A., Tampa, for Appellants.
    Jonathan D. Franklin, of the Franklin Legal Group, P.A., Miami, for Appellee.
    ON CONCESSION OF ERROR
   PER CURIAM.

Pursuant to Citizens Property Insurance Corporation's Concession of Error, we reverse the trial court's final judgment and remand for further proceedings.

REVERSED and REMANDED.

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