author: SUAREZ, Senior Judge.

text:
    NATIONSTAR MORTGAGE LLC, Appellant, v. LHF HUDSON, LLC, Appellee.
    No. 3D18-443
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019. Rehearing Denied March 19, 2019
    Akerman LLP, and Nancy M. Wallace (Tallahassee); Akerman LLP, and Marc J. Gottlieb and William P. Heller (Fort Lauderdale); Akerman LLP, and Celia C. Falzone (Jacksonville); for appellant.
    Wallen | Kelley, and Todd L. Wallen, for appellee.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   SUAREZ, Senior Judge.

Nationstar Mortgage LLC ("Nationstar") appeals from the trial court's final summary judgment entered in favor of LHF Hudson, LLC ("Hudson") on Hudson's statute of limitations and estoppel affirmative defenses against Nationstar's foreclosure action. For the reasons discussed herein, we reverse the final summary judgment and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2006, Teudis Herrera ("the original borrower"), who is not a party to this appeal, executed a note worth $ 252,000 on behalf of Nationstar, secured by a mortgage on the original borrower's condominium in Miami-Dade County. The mortgage was recorded on May 31, 2006. On January 1, 2008, the original borrower stopped making monthly payments as required under the note. Thereafter, on May 14, 2008, Nationstar filed its first foreclosure action against the original borrower, alleging that the original borrower had failed to make the January 1, 2008, payment, and all subsequent payments, and declaring the full amount payable under the note and mortgage to be due. For reasons not in the record, Nationstar's first foreclosure action was dismissed without prejudice on February 11, 2013.

In January 2014, at a foreclosure auction following the entry of final judgment in a separate foreclosure action brought by the original borrower's condominium association, Hudson purchased the condominium for a total of $ 66,794.60, including auction fees. After acquiring the condominium, Hudson invested $ 80,276.60 into the property for rehabilitation and condominium association assessments.

On August 11, 2015, Nationstar filed the instant foreclosure action. In its complaint, Nationstar alleged that Hudson, as owner of record of the property secured by Nationstar's mortgage, had "defaulted under the Note and Mortgage by failing to pay the payment due January 01, 2008 and all subsequent payments." In response, Hudson raised several affirmative defenses, including: (1) that Nationstar's foreclosure action was barred by the statute of limitations, as the limitations period expired in May 2013 and the Florida Supreme Court's decision in Bartram v. U.S. Bank, N.A., 211 So.3d 1009 (Fla. 2016), changed the law and should not apply retroactively to revive Nationstar's claim; and (2) that Nationstar was estopped from enforcing the mortgage against Hudson because, at the time Hudson purchased the property, "the law was clear that the statute of limitations barred any further efforts to enforce the note and mortgage," Hudson relied on this law in purchasing and investing in the property, and it would be inequitable to enforce the mortgage against Hudson in this case. Then, on December 27, 2017, Hudson moved for summary judgment on these two affirmative defenses.

After a hearing on Hudson's motion for summary judgment, the trial court granted the motion and entered final judgment in favor of Hudson on Nationstar's foreclosure claim. This timely appeal ensued.

II. STANDARD OF REVIEW

We review the trial court's order entering final summary judgment de novo. Wells Fargo Bank, N.A. v. Rendon, 245 So.3d 917, 919 (Fla. 3d DCA 2018).

III. ANALYSIS

On appeal, Nationstar argues that the trial court erred in granting final summary judgment on both Hudson's statute of limitations and estoppel defenses. We agree.

With respect to the statute of limitations defense, Nationstar contends that the trial court erred by agreeing with Hudson's position that the law changed concerning the application of the statute of limitations in foreclosure actions with the Florida Supreme Court's decision in Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016), as well as this Court's en banc decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016) (en banc), and these two decisions should not "revive" Nationstar's foreclosure action. In Bartram, the Florida Supreme Court held that "with each subsequent default, the statute of limitations runs 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" and that a "mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a 'separate and distinct' default." 211 So.3d at 1019. In reaching this conclusion, the Florida Supreme Court examined its decision in Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004), which concluded that "when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata," regardless of the mortgagee's decision "to accelerate payments on the note in the first suit," id. at 1006-07. See Bartram, 211 So.3d at 1016-18. The Bartram court explicitly stated that the "holding in Singleton was based on the conclusion that an 'acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue' than a foreclosure action and acceleration based on the same default at issue in the first foreclosure action," id. at 1017 (quoting Singleton, 882 So.2d at 1007 ), and acknowledged that "because foreclosure is an equitable remedy, '[t]he ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage,' " see id. (quoting Singleton, 882 So.2d at 1008 ).

Although Singleton was decided on the basis of res judicata, the Florida Supreme Court "agree[d] with the reasoning of both [Florida] appellate courts and the federal district courts that [its] analysis in Singleton equally applies to the statute of limitations context," and thus "reaffirmed [its] prior holding in Singleton and the application of its reasoning to a statute of limitations context." Bartram, 211 So.3d at 1019 ; see also Beauvais, 188 So.3d at 944 ; Nationstar Mortg., LLC v. Brown, 175 So.3d 833, 834-35 (Fla. 1st DCA 2015) (noting that "the principles set forth in Singleton ... apply" in the statute of limitations context and that "[a]s a matter of law, appellant's 2012 foreclosure action, based on breaches that occurred after the breach that triggered the first complaint, was not barred by the statute of limitations"); Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954, 955 (Fla. 4th DCA 2014) (holding that under Singleton, where "the statute of limitations has not run on all of the payments due pursuant to the note, ... the mortgage is still enforceable based upon subsequent acts of default"). For example, in Beauvais, this Court held en banc that Singleton, "while made in the context of a res judicata defense," applied to statute of limitations defenses in foreclosure actions, and concluded that "dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action." 188 So.3d at 944. Therefore, "[u]nder Singleton, subsequent defaults allow for subsequent accelerations regardless of the nature of a prior dismissal." Id. at 945 ; see also PNC Bank, N.A. v. Neal, 147 So.3d 32 (Fla. 1st DCA 2013) ("[T]he dismissal with prejudice of PNC Bank's foreclosure action against the Neals does not preclude PNC Bank from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action."); Star Funding Sols., LLC v. Krondes, 101 So.3d 403 (Fla. 4th DCA 2012) ("A new default, based on a different act or date of default not alleged in the dismissed action, creates a new cause of action.").

Hudson, however, argues that the law at the time the statute of limitations had expired to bring suit for the default alleged in the initial foreclosure action did not permit Nationstar to bring a second foreclosure action based on a subsequent default after the dismissal of its initial foreclosure action, as Nationstar accelerated the note and mortgage and the statute of limitations had expired. Thus, as Hudson contends, the application of Singleton in the Bartram and Beauvais decisions created a "sea change in the law" in the application of the statute of limitations to foreclosure actions and should not apply retroactively to revive Nationstar's "extinguished"

claim. Cf. Rose v. Sonson, 208 So.3d 136, 139 (Fla. 3d DCA 2016). We reject Hudson's argument and characterization of the law prior to the issuance of Bartram and Beauvais. First, we note that in deciding Singleton, the Florida Supreme Court expressly disapproved of Hudson's characterization of the law as expressed by Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468 (Fla. 2d DCA 1963). See Singleton, 882 So.2d at 1008. In Stadler, the Second District Court of Appeal determined that "[w]hile it is axiomatic that a suit for one installment payment does not preclude suit for a later installment on a divisible contract, the scant authority found seems unanimous in the view that an election to accelerate puts all future installment payments in issue and forecloses successive suits." 150 So.2d at 472. In rejecting Stadler, the Court recognized "the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship" and "envision[ed] many instances in which the application of the Stadler decision would result in unjust enrichment or other inequitable results." See Singleton, 882 So.2d at 1007 ; see also Beauvais, 188 So.3d at 952 ("Thus, while we do not question that several courts across the country have adopted reasoning different from that accepted in Florida, the point is our Supreme Court has rejected that different analysis [in Stadler ]." (emphasis in original) ). Moreover, this Court has previously determined that its "analysis of Singleton neither undermines nor contradicts prior Florida Supreme Court or other Florida precedent" and that "[t]he decision in Singleton gives rise to no inconsistency in the law, and does nothing to change when the clock starts ticking for statute of limitations purposes." Beauvais, 188 So.3d at 942 n.3 ; see also Bartram, 211 So.3d at 1019-20 ("[I]t is entirely consistent with, and follows from, our reasoning in Singleton that each subsequent default accruing after the dismissal of an earlier foreclosure action creates a new cause of action, regardless of whether that dismissal was entered with or without prejudice."). Indeed, "[t]his resolution is in keeping with the long held practices of the Florida mortgage industry." Beauvais, 188 So.3d at 953.

As Bartram and Beauvais did not change the law in Florida regarding the application of the statute of limitations in foreclosure actions, we therefore hold that it was error for the trial court to grant summary judgment on Hudson's statute of limitations defense. Nationstar's complaint alleges that Hudson "defaulted under the Note and Mortgage by failing to pay the payment due January 01, 2008 and all subsequent payments ." (emphasis added). As alleged, some of these missing payments occurred within the five-year limitations period for filing a foreclosure action and after the dismissal of Nationstar's initial foreclosure action in 2013.

In holding so, we additionally find that the trial court erred in granting summary judgment on Hudson's estoppel affirmative defense. As a general principle, "[e]quitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position." Fla. Dep't of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla. 2002). A party claiming estoppel must prove that: "(1) the party against whom estoppel is sought must have made a representation about a material fact that is contrary to a position it later asserts; (2) the party claiming estoppel must have relied on that representation; and (3) the party seeking estoppel must have changed his position to his detriment based on the representation and his reliance on it." Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1103 (Fla. 5th DCA 2006). Here, Nationstar made no representation to or took steps to mislead Hudson regarding the status of the note and mortgage secured by the property after Nationstar's initial foreclosure complaint was dismissed without prejudice. Furthermore, Hudson's mistake as to the application of Florida law regarding the statute of limitations in a foreclosure action is not a proper basis for estoppel. See Clifton v. Clifton, 553 So.2d 192, 194 (Fla. 5th DCA 1989) ("However, [the appellant] took no steps to mislead [the appellee] or the intervenor as to her title or claims. Further, her mistake (as well as everyone else's involved in this case) was one of law-the misapplication of Florida law to the facts and circumstances which took place. This is not a proper basis for an estoppel." (citations omitted) ). Therefore, it was improper for the trial court to grant summary judgment on Hudson's estoppel defense.

IV. CONCLUSION

Accordingly, because the trial court erred in granting final summary judgment in favor of Hudson on both its statute of limitations and estoppel defenses, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: LINDSEY, J. Logue, J. (dissenting)

license: Public Domain

text:
    ZURICH AMERICAN INSURANCE COMPANY, a/s/o Lincoln-Drexel Waserstein, Ltd. and Lincoln Drexel, Ltd., Appellant, v. PUCCINI, LLC d/b/a 5 Napkin Burger, Appellee.
    No. 3D17-0690
    District Court of Appeal of Florida, Third District.
    Opinion filed February 6, 2019 Rehearing Denied April 17, 2019
    Derrevere Stevens Black and Cozad, and Jon D. Derrevere, and Michael B. Stevens, and Shirley Jean McEachern and Mary Grecz (West Palm Beach), for appellant.
    Hamilton, Miller & Birthisel, LLP, and Michelle A. Delancy and Melanie Grant, for appellee.
    Before EMAS, C.J., and LOGUE and LINDSEY, JJ.
   LINDSEY, J.

Appellant Zurich American Insurance Company ("Zurich"), as subrogee of Lincoln-Drexel Waserstein, Ltd. and Lincoln Drexel, Ltd. ("Landlord"), appeals the trial court's final order dismissing, with prejudice, all of its claims against Appellee Puccini, LLC. d/b/a 5 Napkin Burger ("Tenant"). Because we find, based on the written lease agreement as a whole, that Tenant was not an implied co-insured with Landlord for subrogation purposes, we reverse.

BACKGROUND

This subrogation action arises from Zurich's attempt to recover money from Tenant that Zurich paid to Landlord for fire damage sustained to Landlord's building. Tenant leased space from Landlord for a restaurant pursuant to a written lease agreement dated March 1, 2010, for a term of fifteen years and ten months. On February 7, 2015, a fire ignited in Tenant's kitchen followed by another fire on the roof of the building. At the time of the fire, Landlord had a Zurich insurance policy that covered a portion of the damage. Pursuant to the terms of its policy, Zurich alleged that it paid Landlord over $ 2.1 million dollars and that, as a result, Zurich became subrogated to all of Landlord's claims against Tenant up to that amount.

Tenant moved to dismiss Zurich's subrogation action, asserting that Tenant was an implied co-insured under the policy. The trial court ultimately agreed and entered a written order finding, based on various provisions of the lease, that Tenant was an implied co-insured and concluding, as a matter of law, that Zurich was barred from proceeding with a subrogation action against Tenant. The trial court then entered a final order dismissing Zurich's claims against Tenant with prejudice and without leave to amend. This timely appeal follows.

I. STANDARD OF REVIEW

We review a trial court's order granting a motion to dismiss de novo . Grove Isle Ass'n v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014) (citations omitted). "In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party." Id. (citations omitted).

Moreover, the interpretation of a lease agreement is a question of law, and the applicable standard of review is de novo . Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003) (citation omitted). In undertaking review of a lease, an appellate court is permitted to reassess the contract and reach a different interpretation from that of the trial court. Sugar Cane Growers Coop. of Fla. v. Pinnock, 735 So.2d 530, 534 (Fla. 4th DCA 1999). The contract should be reviewed as a whole and all language given effect, and where the language is clear and unambiguous, the contract should be enforced as it reads. Id.

II. ANALYSIS

At issue in this case is the concept of insurance by implication as it relates to an insurer's ability to maintain a subrogation action against a tenant who is not named in the insurance policy. "Generally, when an insurer pays the claim of its insured, the insurer stands in the shoes of its insured, and the insurer may bring a subrogation action against the tortfeasor to recover the amounts paid under the insurance policy." State Farm Fla. Ins. Co. v. Loo, 27 So.3d 747, 748 (Fla. 3d DCA 2010). However, an insurer may not maintain a subrogation action against its own insured, even if the insured's negligence caused the loss. Id. In the landlord/tenant context, when a tenant is found to be an implied co-insured with its landlord, the landlord's insurer is barred from bringing an action against the tenant in subrogation. Here, Zurich seeks to stand in the shoes of its insured, Landlord, to sue Tenant for any damage to the building that may have been caused by Tenant's agents or employees.

In determining whether a landlord's insurer may pursue a subrogation action against a negligent tenant, courts have typically adopted one of three views: (1) the approach set forth in Sutton v. Jondahl, 532 P.2d 478 (Okla. Civ. App. 1975), which establishes that a tenant is a coinsured of the landlord-and therefore subrogation is unavailable-absent an express agreement to the contrary; (2) the "anti- Sutton approach," which provides a presumption in favor of subrogation and permits an insurer to bring a subrogation action against the tenant absent an express or implied agreement to the contrary; and (3) the "case-by-case approach." Loo, 27 So.3d at 749 ; see also Am. Family Mut. Ins. Co. v. Auto-Owners Ins. Co., 757 N.W.2d 584, 589-94 (S.D. 2008).

In the case-by-case approach, there is no presumption in favor of or against subrogation; rather, "the 'lease as a whole' is examined 'in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence.' " Loo, 27 So.3d at 750 (quoting Am. Family, 757 N.W.2d at 592 ). This Court, along with some of our sister courts, has adopted the case-by-case approach. Id. at 750-51 ; see also Underwriters of Lloyds of London v. Cape Publ'ns, Inc., 63 So.3d 892, 895-96 (Fla. 5th DCA 2011) ("Although each approach is supported by persuasive policy rationales, this court concludes that the parties are in the best position to allocate the risk of loss for fire damage and, therefore, adopt the case-by-case approach." (footnote omitted) ); Cont'l Ins. Co. v. Kennerson, 661 So.2d 325, 326-30 (Fla. 1st DCA 1995) (examining several lease provisions to determine the parties' intent as to who should bear the risk of loss for damage caused by tenants' negligence).

In Loo, the landlord maintained an insurance policy on a rental dwelling unit it leased to a tenant. 27 So.3d at 748. During the rental period, a fire occurred at the premises, and the insurer paid the landlord for the losses. Id. The insurer filed a subrogation action against the tenant to recover the amounts paid to the landlord, alleging that the tenant's negligence caused the fire. Id. The trial court applied the Sutton doctrine, under which a tenant is an implied co-insured under a landlord's policy unless there is an express agreement between the landlord and the tenant to the contrary. Id. at 748, 753. Because there was no such express agreement, the trial court granted summary judgement in favor of the tenant, finding it was an implied co-insured and barring the insurer from suing the tenant in subrogation for damages caused by the tenant's negligence. Id. at 748.

This Court reversed, determining that the trial court applied the incorrect legal standard and instead examined "the terms of the parties' lease to determine if, as a matter of law, the parties intended that the tenant would not be held liable for her negligent acts that damaged the leased premises." Id. at 751. In Loo, the lease provided that the landlord would repair the premises if damaged by fire "not due to lessee's negligence" and prohibited the tenant from keeping materials on the premises "that might unreasonably increase the danger of fire." Id. at 752. This Court, however, noted that nothing in those provisions prevented the landlord from holding the tenant liable for its negligence, and the landlord never agreed to purchase insurance for the tenant's benefit. Id.

This Court further relied on three additional factors in Loo in determining that the tenant was not an implied co-insured under the lease. Id. Specifically, there was no provision in the parties' lease (1) that exculpated the tenant from liability for her own negligence; (2) required the landlord to maintain insurance for the benefit of the tenant; or (3) shifted to the landlord any loss incurred as a result of the tenant's negligence. Id. Based on our review of "the lease as a whole," this Court allowed the insurer to proceed with its subrogation action against the tenant because the parties did not intend to limit the tenant's liability for her negligent acts. Id. (citations omitted).

We begin our examination of the "lease as a whole" in this case with provisions related to Tenant's liability to Landlord. Paragraph 41 provides that "[r]ent shall not be abated and Tenant shall be fully responsible for all repairs and damages if Premises are partially or totally destroyed by fire or any other casualty caused by Tenant or its agents." Not only does Paragraph 41 not exculpate Tenant for its own negligence, it expressly holds it liable. Further, Paragraph 33 eliminates Landlord's duty to make repairs to the "structural aspects and elements of the Building" if such repairs were "occasioned by any intentional or negligent act of Tenant, its agents, or its employees."

In addition, the lease contains unilateral provisions that expressly waive Landlord's liability and waive Tenant's right to make a claim against Landlord. See Cape Publ'ns, 63 So.3d at 896 ("Applying [the case-by-case] approach to the commercial lease in this case, we agree ... that the general provisions requiring [the tenant] to obtain general liability insurance and indemnify and hold [the landlord] harmless for its negligence are relevant to determining which party bears the risk of loss."). Specifically, Paragraph 9 states: "The Landlord shall not be liable for any loss or damage to any of Tenant's personal property or Premises unless directly caused by the gross negligence or willful misconduct of Landlord ... nor shall Landlord be liable for ... damages incurred or suffered by the Tenant ... or others occasioned by ... fire ...." Thus, by its plain language, Paragraph 9 shifts the risk of loss from Landlord, absent gross negligence or willful misconduct on its part, to Tenant. Moreover, Paragraphs 24 and 31 require Tenant to indemnify Landlord:

24. INDEMNITY/LIABILITY: Tenant will indemnify and save Landlord and any mortgagee of the Building harmless of and from any and all ... damages ... arising from or out of any occurrence in or upon the Premises ...."
...
31. TENANT'S RESPONSIBILITIES: ... Tenant shall be responsible for, and shall indemnify and hold harmless Landlord for any and all costs and expenses relating to such damages, actual or consequential ... resulting from Tenant's failure to properly maintain the Premises and appurtenances thereto.

(Emphasis added).

The above provisions, when examined to ascertain the intent of the parties as to who should bear the risk for damage caused by Tenant's negligence, support allowing Zurich to proceed with its subrogation claim because Tenant clearly agreed to bear that risk. See Loo, 27 So.3d at 750 ; cf. Kennerson, 661 So.2d at 330 (explaining that the modern trend of authority holds that an "insurer cannot obtain subrogation against the lessee in the absence of an express agreement or lease provision establishing the lessee's liability " (emphasis added) (quoting 6A John A. Appleman & Jean Appleman, Insurance Law and Practice, § 4055 at 77-78 (Supp. 1994) ) ).

We also consider the lease provisions related to the obligation to purchase insurance. Rather than require Landlord to maintain insurance for the benefit of Tenant, the lease affirmatively places the burden on Tenant to procure and maintain insurance for its own benefit and to name Landlord as an additional insured:

25. INSURED LOSS OR DAMAGE: In any event of loss or damage to the Building, the Premises and/or any contents, each party shall first exhaust its own insurance coverage before making any claim against the other party. As Tenant is obligated to maintain insurance to fully cover all of its losses, in the event Tenant sustains a loss not fully covered by its own insurance, Tenant acknowledges that it is self-insured for any uncovered loss; Tenant expressly waives the right to make any claim against the Landlord or seek recovery of any damages from the Landlord or its insurance company arising out of any loss or incident for which the Tenant should have maintained its own insurance.
...
26. TENANT INSURANCE: Tenant shall procure and maintain in force during the term of this Lease ..., at its expense, (a) Fire/Windstorm/Property Insurance with extended coverage endorsement on Tenant's fixtures, equipment, furnishings and other contents of the Premises, for the full replacement cost of said items; and (b) Comprehensive Commercial / Public Liability insurance ... sufficient to protect against liability for damage claims ... arising out of accidents occurring in or around the Premises in a minimum of $ 1,000,000.00 for each person injured; $ 1,000,000.00 for any one accident and $ 1,000,000.00 for property damage; and (c) Plate Glass Insurance .... Such insurance policies shall provide coverage for Landlord's contingent liability on such claims or losses, and shall name Landlord as an additional insured party .... Tenant shall maintain sufficient insurance to fully protect Tenant from all losses and damages; Tenant indemnifies and saves Landlord harmless for any claim for which Tenant was insurable.

(Emphasis added).

Finally, we consider Paragraph 45, which required Tenant to pay, as additional rent, seventy percent of the Landlord's operating expenses, including taxes, insurance premiums, and special assessments. Tenant argues, based primarily on this provision, that it was an implied co-insured under the terms of the lease because it paid a pro rata share of Landlord's insurance premiums. Similarly, the dissent seeks to create a bright-line rule-ignoring the other risk-allocating provisions in the lease-that a landlord's insurer cannot sue a tenant in subrogation if the tenant has paid the majority of the landlord's insurance premiums. But because we follow the case-by-case approach, we must examine the lease as a whole to determine whether the parties intended Tenant to be held liable for damages resulting from its alleged negligence. See, e.g., Loo, 27 So.3d at 750.

Here, it is clear that the parties did not intend to shift the risk of loss for damage caused by Tenant's negligence to Zurich, Landlord's insurer. As we have already explained, the lease explicitly holds Tenant liable for damage caused by its negligence or the negligence of its agents. There are also provisions holding Landlord harmless for such damage. In addition, the lease required Tenant to procure and maintain fire insurance for damage "arising out of accidents occurring in or around the Premises[,]" and Tenant agreed to name Landlord as an additional insured. Although the lease required Tenant to pay a percentage of Landlord's operating costs, including any insurance premiums, nothing in that provision explicitly required Landlord to purchase fire insurance or to name Tenant as an insured under the policy.

According to the dissent, this case is "remarkably similar" to Kennerson, a case in which the First District held that an insurer was not entitled to subrogation from the tenants. However, a careful reading of Kennerson reveals that the lease provisions there are markedly different from the provisions here. Although the tenants in Kennerson paid a pro rata share of the fire insurance, the court did not rely on that fact alone. Instead, the court considered the lease as a whole. For instance, the lease in Kennerson provided that "damage caused by fire 'shall be repaired by and at the expense of [landlord].' " 661 So.2d at 328. Moreover, the parties agreed that the tenant "would be excused even from paying rent for damaged premises while [the landlord] applied insurance proceeds ... to effect repairs." Id. Finally, the lease in Kennerson had "no provision making [tenant] liable for damages its negligence might cause." Id. at 329.

Here, in contrast, the parties agreed that Tenant would be "fully responsible" for damage caused by fire, and Landlord had no obligation to make repairs "occasioned by any intentional or negligent act of Tenant, its agents, or its employees." Further, the parties explicitly agreed that Tenant would be liable for damages caused by its negligence, that it would maintain its own fire insurance for damage claims "arising out of accidents occurring in or around the Premises[,]" and that Landlord would be held harmless for such damage claims. Thus, unlike in Kennerson, the risk-allocating provisions in this case do not evidence the parties' intent to shift the risk of loss from a negligent tenant to the landlord's insurer; instead, the clear intent of the parties was that Tenant or Tenant's insurer would bear the risk of loss due to damage resulting from Tenant's negligence.

Finally, we address the dissent's contention that our case-by-case approach "runs afoul of the economic realities underlying these sorts of provisions in a lease ...."

This policy argument is similar to one that formed the basis of the Sutton decision. In holding that there should be a presumption against subrogation, the Sutton court explained that its anti-subrogation approach "is derived from a recognition of a relational reality, namely, that both landlord and tenant have an insurable interest in the rented premises-the former owns the fee and the latter has a possessory interest." 532 P.2d at 482. But we do not follow the Sutton approach, and we agree with other courts that have taken the case-by-case approach that "courts have no business adding insureds to an insurance policy in order to achieve their perception of good public policy." Rausch, 882 A.2d at 815 (citing 56 Assocs. ex rel. Paolino v. Frieband, 89 F.Supp.2d 189, 193 (D.R.I. 2000) ); see also Am. Family, 757 N.W.2d at 591 ("The insurer has a right to choose whom it will insure and did not choose to insure the lessees ...." (quoting 6A, J.A. Appleman, Insurance Law and Practice § 4055 at 78 (2005) ) ).

III. CONCLUSION

Based on our review of the lease as a whole, and in light of this Court's decision in Loo, we conclude that Tenant is not an implied co-insured under Zurich's policy, and therefore, Zurich may proceed with its subrogation action against Tenant. Accordingly, because we find the trial court erred in concluding that Tenant was an implied co-insured with Landlord under its policy with Zurich and in dismissing Zurich's subrogation action against Tenant, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

EMAS, C.J., concurs.

Logue, J. (dissenting)

The issue in this case is whether a landlord's insurer can bring a subrogation action against a tenant whose alleged negligence caused fire damage to the rented building when, under the lease, the tenant paid the majority of the premiums for the landlord's fire insurance. Until this case, the answer in Florida was no, a tenant who paid the insurer's premiums could not be sued in subrogation by the insurer. Because the majority opinion departs from well-established Florida law and the modern trends across the country, I respectfully dissent.

The crucial provisions of the lease specify that (1) in addition to other rent, the tenant will pay 70% of the landlord's expenses including "premiums for all insurance applicable to the Building," which premiums for the first year of the lease were agreed to be $ 20,654.45; (2) the tenant will pay any increased premiums for the landlord's building insurance caused by the tenant's use; and (3) "[i]n the event of loss or damage to the Building, the Premises and/or any contents, each party shall first exhaust its own insurance coverage before making any claim against the other party." Taken together, these lease provisions indicate that the "parties plainly agreed to shift the risk of fire damage to an insurance company." Cont'l Ins. Co. v. Kennerson, 661 So.2d 325, 328 (Fla. 1st DCA 1995).

Kennerson is remarkably similar to this case. In Kennerson, a landlord's insurer sued a tenant in subrogation for allegedly causing the fire that damaged the rental property. The lease at issue in Kennerson, like the one at issue here, required the tenant to pay "in addition to the rent elsewhere provided herein, as additional rent hereunder, its pro rata share of all costs of fire and extended coverage insurance for the shopping center." Id. at 326. Because the tenant was paying the premiums for the landlord's fire insurance, the court held that the landlord's insurer could not sue the tenant in subrogation. The First District concluded:

a landlord's insurer cannot exercise any right of subrogation against a merely negligent tenant to recover money paid the landlord under a fire insurance policy, where the landlord has agreed to bear the expense of repairing fire damage and has assumed responsibility for procuring fire insurance, the cost of which the tenant has agreed to bear and has in fact borne.

Id. at 330.

When examining a commercial transaction, a court must consider the economic realities that informed the bargain between the parties. Under the majority's reading of the lease, the tenant is essentially required to obtain two fire insurance policies to insure the same building from the same risk of loss. The tenant must pay the premiums for a fire policy to protect the landlord from the tenant's negligence, and it must pay the premiums for a second fire policy to protect himself from his own (the tenant's) negligence. This reading makes no economic sense from the perspective of either the landlord or the tenant: it increases the economic rent to the tenant with no corresponding benefit to the landlord.

Because it runs afoul of the economic realities underlying these sorts of provisions in a lease, the majority's reading of the lease runs contrary to the modern trend of authority that bars subrogation against a tenant contractually obligated to pay a landlord's insurance premiums. The majority of courts that have considered this issue have held that such provisions are properly read to indicate the parties' agreement to shift the risk of a fire loss from the parties to the insurance carrier. id. at 330-31 & n.1 (citing the great weight of authority from numerous jurisdictions supporting the proposition that a landlord's insurer had no right of subrogation against the tenant that either directly or indirectly paid its premiums).

The majority attempts to distinguish Kennerson by focusing on lease provisions other than those relied upon by Kennerson and the majority of jurisdictions. The crucial lease provision in Kennerson, which was the express basis for its holding, is substantively the same as the crucial provision here. It required the tenant to pay the landlord's fire insurance premiums, but did not require the landlord and tenant to be named as co-insureds for the fire insurance. Id. at 328.

The Fifth District reached a result similar to Kennerson in Underwriters of Lloyds of London v. Cape Publications, Inc., 63 So.3d 892, 896 (Fla. 5th DCA 2011). In Cape Publications, the Fifth District held that

[t]he lease expressly provides that the [landlord] would purchase a property and casualty insurance policy, which undisputedly covered fire damage on the commercial building. The parties further agreed that [the tenant's] rent included its pro rata share of the premium. These specific provisions ... plainly indicate that the parties intended the risk of loss be borne by the [landlord's] insurer.

Id.

The majority's attempt to distinguish Cape Publications is also unpersuasive. Whether or not the lease at issue here "expressly" provided that fire insurance be purchased, the lease "expressly" provided the tenant must pay fire insurance premiums, thereby clearly and unequivocally indicating the intent of the parties that the risk of fire loss be borne by the landlord's insurer whose premiums were being paid by the tenant.

State Farm Florida Insurance Co. v. Loo, 27 So.3d 747 (Fla. 3d DCA 2010), the main case relied upon by the majority, is not controlling because the tenant in that case did not pay the premiums for the fire insurance, as occurred here. In fact, the court in Loo distinguished Kennerson on this basis while still approving the way Kennerson "relied on lease provisions requiring the landlord to bear the expense of repairing any fire damage and to procure fire insurance on the property, the cost of which the tenant has agreed to bear and has in fact borne." Id. at 753 (citations and quotations omitted).

The majority suggests I am taking a legal position whereby "every commercial lease is transformed into an insurance policy providing coverage for negligent tenants." But that is of course the case for any commercial lease where the tenants are paying fire insurance premiums for a policy to protect the building from their own negligence. In the final analysis, I merely submit that we follow the rather unremarkable and well-established law that an insurance company cannot bring an action in subrogation against a tenant for a fire loss covered by fire insurance for which the tenant pays the premiums. See Kennerson, 661 So.2d at 330 ; Cape Publ'ns., 63 So.3d at 894-96 ; Loo, 27 So.3d at 752-53.

For these reasons, I think the trial court was correct. I would uphold the trial court's final order of dismissal.

      According to the dissent, our case-by-case approach departs from the majority view, which is the anti-subrogation approach from Sutton. But see Rausch v. Allstate Ins. Co., 388 Md. 690, 882 A.2d 801, 814 (2005) ("The majority of courts, however, have avoided per se rules and taken a more flexible case-by-case approach, holding that a tenant's liability to the landlord's insurer for negligence causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole." (quoting Union Mut. Fire Ins. Co. v. Joerg, 175 Vt. 196, 824 A.2d 586 (2003) ) ). We are, however, bound by our prior cases to follow the case-by-case approach. Moreover, as articulated by other courts, "[w]e are not particularly impressed with characterizations of a doctrine as the 'majority' or 'minority'. We will give due consideration to all decisions of other jurisdictions but will be persuaded only by the soundness of their reasoning and their consistency with [our State's] law." Am. Family, 757 N.W.2d at 594 (alterations in original) (quoting Koch v. Spann, 193 Or.App. 608, 92 P.3d 146, 150 n.2 (2004) ).

      This type of provision is found "[i]n virtually all commercial leases ...." 49 Am. Jur. 2d Landlord and Tenant § 358. The purpose is to assure "that the landlord will actually receive the lease's stated profits, that is, an amount or rent 'net' of the cost of taxes, operating expenses, and the like." Id.

      The risk-allocating provisions in this case also distinguish it from Cape Publications. There, the Fifth District found-based on the landlords' express agreement to purchase insurance and tenant's payment of a pro rata share of the premium-that the parties intended that the risk of loss be borne by the landlords' insurer. Cape Publ'ns, 63 So.3d at 896. However, the court, in its case-by-case approach, never mentions any provisions in the lease explicitly holding the tenant liable for damage resulting from its own negligence.

      Under the dissent's approach, almost every commercial lease is transformed into an insurance policy providing coverage for negligent tenants because virtually all commercial leases require the payment of operating expenses. See supra note 2. This is not the law in Florida. Were it, insurance companies would find themselves on the hook for damages caused by negligent tenants whom they have never met much less had the opportunity to assess and assign risk in calculating the amount of the premium being charged to their landlords under the landlords' own policies of insurance.

      The addendum to paragraph 15 of the lease deals with fire insurance. Paragraph 10 of the lease, which concerned general liability insurance for tort claims by third parties, required the landlord and tenant to be named as co-insureds. AS the Kennerson opinion expressly points out, however, that paragraph 10 "contrasts with the addendum to paragraph 15" in this regard. Id. The opinion further notes that the "agreement to carry general liability insurance constitutes additional protection that would apply in circumstances involving liability to injured third parties not at issue here." Id. at 328 n.2 (emphasis added) (citations and quotations omitted).


author: SCALES, J.

text:
    ASSET RECOVERY GROUP, LLC, et al., Petitioners, v. Kyle WRIGHT, et al., Respondents.
    No. 3D18-2351
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019
    Conroy Simberg, and Diane H. Tutt (Hollywood), for petitioners.
    James C. Blecke, Coral Gables, for respondent Kyle Wright.
    Before SALTER, SCALES and LINDSEY, JJ.
   SCALES, J.

Petitioners, Asset Recovery Group, LLC and Wayne Ginter (collectively, "the Receiver"), seek to prohibit the trial court from further exercising jurisdiction to adjudicate Counts III and IV in the underlying premises liability action filed by the plaintiff below, respondent, Kyle Wright. We have jurisdiction. See Asset Recovery Group, LLC v. Cabrera, 233 So.3d 1173, 1176 (Fla. 3d DCA 2017) (granting a writ of prohibition to prevent the circuit court from exercising jurisdiction over a receiver that was appointed by the court in a separate foreclosure action). Because it is not clear from the face of the operative pleading that the Receiver acted outside the scope of the Receiver's delegated, legal authority, we grant the petition for writ of prohibition and quash the order under review without prejudice to Wright seeking leave to file suit against the Receiver from the foreclosure court that appointed the Receiver. See Desulme v. Rueda, 252 So.3d 293, 294-95 (Fla. 3d DCA 2018).

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Kyle Wright was a tenant of an apartment complex located in Homestead, Florida. On June 20, 2013, Wright was allegedly stabbed by an assailant at the apartment complex. At the time of the incident, the property was under a court-imposed receivership in a commercial foreclosure action then pending in the Miami-Dade County Circuit Court. See Samjack Homestead LLC v. 1200 Homestead 72 (LLC), Case No. 2011-38747 (Fla. 11th Cir. Nov. 21, 2011).

In the foreclosure action, the trial court appointed petitioner Wayne Ginter of petitioner Asset Recovery Group, LLC to take possession, custody and control of the apartment complex. The alleged stabbing occurred after the subject property was sold at a foreclosure sale and the certificate of title had issued to the purchaser, Samjack Homestead LLC, but before the foreclosure court discharged the Receiver.

As set forth in the foreclosure court's order of appointment, the Receiver's delegated responsibilities included, with limitations, controlling, managing, operating, and insuring the subject property. The Receiver was also given authority to maintain the subject property, "making such repairs and renovations as are necessary and appropriate to ensure the life, health and safety of the occupants." The order of appointment contained a judicial immunity provision providing, among other things, that the Receiver and the Receiver's attorneys and agents: (1) "shall not be held liable to anyone for their own good faith compliance with their duties and responsibilities as a receiver, or as attorney or agent for Receiver"; and (2) "shall not be liable to anyone for their acts or omissions, except upon a finding by this Court that such acts or omissions were outside the scope of their duties or were grossly negligent." (Emphasis added).

In August 2015, Wright filed the instant premises liability action (lower court case number 2015-19538) against the apartment complex's owner, Samjack Homestead LLC, for negligent security of the apartment complex. Wright alleged in the complaint that the owner had breached its duty to maintain the apartment complex in a reasonably safe condition by not taking measures to provide security to prevent criminal attacks that the owner allegedly should have known were likely to occur thereon. Wright further alleged that, as a direct and proximate result of the owner's negligence, Wright had suffered great bodily harm from the stabbing that occurred on June 20, 2013.

In May 2017, Wright filed a second amended complaint in the instant action to include identical negligent security claims against the Receiver. In December 2017, the Receiver moved to dismiss the second amended complaint for lack of subject matter jurisdiction, relying upon the judicial immunity provision contained in the order of appointment entered in the foreclosure action. In the motion, the Receiver cited to this Court's then recently issued decision in Cabrera, which, as discussed further herein, granted a prohibition petition in a similar premises liability action against this same Receiver where the complaint failed to contain any allegations that the Receiver had "step[ped] outside the authority granted by the court or [did] things in [a] personal capacity and not as a receiver." Cabrera, 233 So.3d at 1175, n.3 (quoting Murtha v. Steijskal, 232 So.2d 53, 55 (Fla. 4th DCA 1970) ). The trial court granted the Receiver's motion to dismiss without prejudice, giving Wright leave to amend his complaint.

In January 2018, Wright filed his third amended complaint (the operative complaint) in his premises liability action, alleging the same negligent security claims against the Receiver. Similar to Wright's second amended complaint, this third amended complaint detailed acts and omissions allegedly constituting negligence of the Receiver; but, unlike Wright's second amended complaint, the third amended complaint also alleged - albeit in conclusory fashion - that certain "acts and omissions of [the Receiver] were outside the authority granted to it as Receiver by the Appointing Court ...." After the trial court denied the Receiver's motion to dismiss the third amended complaint and directed the Receiver to file an answer and defend the action, on March 30, 2018, the Receiver filed a motion seeking, in part, to require Wright to obtain leave of the foreclosure court that appointed the Receiver before allowing the instant negligent security action to proceed against the Receiver ("March 30, 2018 motion").

Prior to a hearing on the March 30, 2018 motion, this Court issued its opinion in Desulme, which the Receiver filed as a supplemental authority in the lower court.

At the hearing conducted on the March 30, 2018 motion, the Receiver argued, in part, that: (1) Wright had failed to adequately plead in his third amended complaint that the Receiver had acted outside the scope of the Receiver's authority granted to the Receiver by the foreclosure court; and (2) therefore, under Desulme and Cabrera, Wright must seek leave from the foreclosure court to file the instant suit against the Receiver. At the conclusion of the hearing, the trial court entered the challenged order denying the March 30, 2018 motion, with the Receiver's counsel announcing her intention to seek a writ of prohibition in this Court. On agreement of the parties, the trial court stayed the lower court proceedings pending the outcome of this prohibition proceeding.

II. ANALYSIS

Under what is known as "the Barton doctrine," a plaintiff generally must seek leave from the court that appointed the receiver before the plaintiff can file suit against a court-appointed receiver. Barton v. Barbour, 104 U.S. 126, 128, 14 Otto 126, 26 L.Ed. 672 (1881). In Cabrera, however, this Court recognized an exception to the Barton doctrine where the receiver "steps outside the authority granted by the court or does things in [a] personal capacity and not as a receiver." Cabrera, 233 So.3d at 1175 (quoting Murtha, 232 So. 2d at 55 ).

Cabrera involved the same apartment complex, the same receiver (Asset Recovery Group, LLC and Wayne Ginter), and the same order of appointment from the same foreclosure action as this case. Cabrera, who was also stabbed by an assailant on the subject property, brought a similar premises liability action against the Receiver for allegedly "failing to maintain the premises in a reasonably safe condition by not keeping it free from third party criminal conduct." Id. at 1175. Because Cabrera's complaint did not contain any allegations that the Receiver "step[ped] outside the authority granted by the court or [did] things in his personal capacity and not as a receiver," this Court found that the exception to the Barton doctrine was inapplicable in that case. Id. at 1175, n.3 (quoting Murtha, 232 So.2d at 55 ).

Concluding that the trial court lacked subject matter jurisdiction over Cabrera's lawsuit as the pleadings were then framed, this Court granted the Receiver's petition for writ of prohibition, directing that the trial court dismiss the claims against the Receiver "without prejudice to allow Cabrera to move to amend his complaint in an attempt to sufficiently allege that the acts or the omissions of the Receiver were outside the authority granted to him by the appointing court, or to seek leave to file the negligence action from the court that appointed the Receiver." Id. at 1178 (emphasis added).

In this case, unlike Cabrera, Wright's third amended complaint contains allegations, albeit conclusory ones, that the acts or omissions of the Receiver were outside the authority granted to the Receiver by the court in the foreclosure action. The threshold question we must resolve, therefore, is whether the subject allegations against the Receiver are sufficient for the recognized exception to the Barton doctrine to apply in this case such that the instant proceeding may go forward. Id. If the allegations are not sufficient, the instant action must be dismissed without prejudice to Wright seeking leave to file suit against the Receiver from the court that established the receivership. See Desulme, 252 So.3d at 294-95 ("An exception to [the Barton doctrine] exists where the receiver has acted outside his or her legal authority. However, when it is not clear from the face of the complaint whether the receiver acted outside his authority, it is proper to have that review take place in the context of a request to file suit against the receiver filed and heard in the case establishing the receivership.") (citation omitted).

We conclude that the third amended complaint does not sufficiently allege that the Receiver's alleged acts and omissions were outside the authority granted to the Receiver by the appointing court. Indeed, many of the alleged acts or omissions identified therein as falling outside the Receiver's authority appear to fall within the Receiver's authority to operate, manage, maintain, insure and control the apartment complex. These conclusory allegations include the Receiver's alleged: "fail[ure] to manage, preserve, protect and maintain the Mortgaged Property in a reasonable, prudent, diligent, and efficient manner"; "fail[ure] to reasonably secure the property despite violent crimes occurring during the Receivership period ... which constituted a failure to reasonably manage, preserve, protect, and maintain the Property in a reasonable, prudent, diligent, and efficient manner, and was not appropriate to ensure the life, health, and safety of the occupants"; "fail[ure] to make repairs or renovations as appropriate to ensure the life, health and safety of the occupants"; and "fail[ure] to maintain insurance coverage in accordance with the Court's Order."

While the operative complaint may adequately allege a premises liability action for negligent security, it fails to allege, with any specificity, how the Receiver's alleged negligence constituted conduct that was outside the scope of the Receiver's authority. This Court, in Desulme, required a heightened level of pleading when a plaintiff, without obtaining leave of the appointing court, seeks to hold a receiver liable for tort damages: the face of the complaint must clearly demonstrate that the receiver acted outside of the scope of the authority of the appointment order. See Desulme, 252 So.3d at 294-95.

Because it is not clear from the face of the third amended complaint whether the Receiver acted outside the authority granted by the appointing court, "it is proper to have that review take place in the context of a request to file suit against the receiver filed and heard in the case establishing the receivership." Desulme, 252 So.3d at 294-95 ; Cabrera, 233 So.3d at 1176 ("[E]ven when the receiver has been discharged, as in the instant case, leave from the court that had appointed the receiver must still be obtained to file suit against the receiver.").

III. CONCLUSION

Despite Wright's best efforts, the third amended complaint suffers the same shortcoming as his second amended complaint. The pleading does not sufficiently allege that the Receiver's alleged acts and omissions were outside the authority granted to the Receiver by the appointing court. Accordingly, we grant the petition for writ of prohibition, quash the order under review, and remand with directions to enter an order dismissing counts III and IV of the third amended complaint without prejudice to Wright seeking leave from the foreclosure court to assert his claims against the Receiver.

Petition granted; subject order quashed; remanded with instructions.

      Count III is against Asset Recovery Group, LLC. Count IV is against Wayne Ginter.

      In denying the Receiver's March 30, 2018 motion, the trial court implicitly found that Wright's allegations were sufficient.

      We express no opinion as to whether Wright has demonstrated the "prima facie case of liability" required for the appointing court to grant leave to file suit. Cabrera, 233 So.3d at 1176. Given our resolution of this petition, we need not, and therefore do not, reach the question of when, and in what manner, the trial court should consider a receiver's entitlement to judicial immunity where the plaintiff sufficiently alleges that the Receiver acted outside the authority of the appointing court.


author: PER CURIAM.

text:
    Willard BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-114
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019 Rehearing Denied March 25, 2019
    Willard Bryant, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018).


text:
    Jesus MENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-169
    District Court of Appeal of Florida, Third District.
    Opinion filed February 13, 2019.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SALTER and LOGUE, JJ., and SUAREZ, Senior Judge.
   SUAREZ, Senior Judge.

Jesus Mendez appeals from his convictions for lewd or lascivious molestation of a minor under the age of twelve and for sexual battery on a minor under the age of twelve. Mendez challenges the sufficiency of the evidence with respect to the molestation conviction and also argues that the trial court improperly admitted evidence of an uncharged crime, resulting in an unfair trial. We agree and vacate the molestation conviction, reverse the battery conviction, and remand for a new trial.

BACKGROUND

Mendez and M.H., his niece, lived in the same two-bedroom house. Mendez lived there with his then-girlfriend and their two children. Mendez's brother slept in the living room with his wife and daughter, M.H. On February 12, 2010, M.H., who was eight, told her teacher that she was scared to go home because her uncle (Mendez) had touched her privates. M.H. repeated the allegation to school administrators and told them that her uncle had told her to keep what happened a secret or he would kill her. The school immediately contacted the authorities. That same day, Detective Paul Espana went to the house, where he took photographs and collected a comforter from Mendez's room. Detective Espana then had M.H. transported to Kristi House for a physical examination.

At Kristi House, Doctor Walter Lambert interviewed M.H. before the physical examination. Doctor Lambert testified that M.H. told him the following during the interview: "Yesterday my uncle, Jesus, touched me in my private ... with his finger. I was wearing jeans and butterfly panties. It was under my clothes, under my panties ... at nighttime in his room ...." M.H. further stated that Mendez threatened to punch her if she told anyone and that her mother did not believe her at first. With respect to the physical examination, Doctor Lambert testified that M.H. had a "normal examination" with no injuries, which could be consistent with M.H.'s allegations but also consistent with the allegations being false. Doctor Lambert collected M.H.'s underwear but did not take DNA swabs because M.H. told him that she had bathed.

Later that night, police took Mendez into custody. At trial, Mendez testified that he arrived at the police station around midnight, and the police interrogated him from 2:00 AM to 6:00 AM. According to Mendez's testimony, he told the police that there was one past incident where he had accidentally touched M.H. "where she wasn't supposed to be touched" while he picked her up. He further testified that he never touched M.H. under her clothes. Detective Espana testified as a rebuttal witness. According to Espana, Mendez denied touching M.H. throughout the interrogation, but eventually admitted to accidentally touching M.H., on two occasions, underneath her clothing while trying to remove her from her bed.

On February 18, 2010, Pam Garman conducted a forensic interview of M.H. The interview was recorded and admitted into evidence during Garman's testimony. According to the Interview Report, "MH was asked what happened and she said, 'once upon a time.' She was then advised to tell me the truth and not a story." M.H. said the incident had occurred in her godfather's room and then corrected herself and said she meant her uncle Mendez's room. M.H. told Garman that Mendez placed his finger inside her privates and that she began to bleed and saw a drop of blood on her underwear. M.H. further stated that she told her mother what happened right after the incident and that her mother did not believe her. M.H. also told Garman that Mendez had touched her on the outside of her clothes the day before the incident, in the living room.

M.H.'s out-of-court statements were admitted under section 90.803(23), Florida Statutes (2018), which creates a hearsay exception for statements made by child victims. M.H. also testified at trial. She stated that Mendez had touched her under her clothing, inside her front private part, and that the next morning she had blood on her underwear. She further testified that Mendez told her that if she told anyone he would kill her mother but that he did not directly threaten her. M.H. also denied reporting the abuse to her teacher the next day.

During her trial testimony, M.H. did not recall the incident she mentioned during her forensic interview where Mendez had touched her in the living room outside of her clothes. However, when asked if she remembered any other times she had been touched, she described a prior, uncharged incident where Mendez tried to touch her in exchange for candy:

[THE STATE: M.H.], do you remember any other times that Jesus touched you?
[M.H.]: Yes.
[STATE]: What do you remember?
[M.H.]: One night [in] my stepfather's sister's room, the kids were sleeping on the bottom bed and [in] the living room, everybody was like watching the game. They were like screaming ... because their team was winning and I had to sleep in Jesus' room .... Jesus had like candy on top of a thing and he gave me some, I ate it and then ... I asked can I get some more. He was like first let me touch there. And I'm like no. And he's like if you want some more candy let me touch you. And I was like no, I don't want no more candy and I [went] to bed.
[THE STATE]: Did he touch you?
[M.H.]: No, I didn't let him.

The State referenced this claim in closing argument to argue that Mendez had been grooming M.H. for abuse:

[STATE]: Where does he get off, grooming behavior, the candy, being gross? It is gross. It's called grooming your victim: you let me touch you, I will give you candy.

Mendez was ultimately convicted of one count of sexual battery and one count of lewd and lascivious molestation. He was sentenced to life in prison for the sexual battery, with a concurrent twenty-five year sentence for the molestation. This belated appeal follows.

ANALYSIS

Mendez raises two arguments on appeal. First, he argues that there was insufficient evidence to support the molestation conviction because M.H.'s testimony at trial was inconsistent with her out-of-court statements, and there was no other proper corroborating evidence. Second, Mendez argues that improperly introduced evidence of an uncharged collateral crime deprived him of a fair trial. We address each argument in turn.

I. Sufficiency of the Molestation Conviction

The molestation charge was based on M.H.'s out-of-court statement, during the forensic interview, that Mendez had inappropriately touched her on the outside of her clothing in the living room the day before the more serious sexual battery incident in the bedroom. At trial, however, M.H. repeatedly denied remembering the incident in the living room. On appeal, Mendez argues that M.H.'s uncorroborated out-of-court statements were insufficient to sustain his conviction for lewd or lascivious molestation. We agree.

Because Mendez's challenge to the sufficiency of the State's case was not preserved below, we review this issue for fundamental error. F.B. v. State, 852 So.2d 226, 229 (Fla. 2003). Fundamental error occurs "when the evidence is insufficient to show that a crime was committed at all." Id. at 230. Because M.H.'s out-of-court statements with respect to the molestation charge were inconsistent with her trial testimony and not supported by other proper corroborating evidence, we find that the evidence was insufficient to show that the molestation occurred at all.

"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Beber v. State, 887 So.2d 1248, 1251 (Fla. 2004) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). The information stated that Mendez "did unlawfully and intentionally touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks, of M.H. (A MINOR), a person less than 12 years of age in a lewd or lascivious manner, in violation of 800.04(5)(b), Fla. Stat ...." The only evidence that this occurred was from M.H.'s out-of-court statement during the forensic interview, which was admitted under the child victim hearsay exception, section 90.803(23), Florida Statutes (2018).

At trial, M.H. stated multiple times on direct and cross-examination that she did not recall the molestation incident she had described during her forensic interview:

[DIRECT EXAMINATION]
Q. Okay. And I just want to ask you one last question, [M.H.]: Do you remember any other times that Jesus touched you?
A. No.
....
Q. [M.H.], I want to ask you, I know I just said one last question. I lied .... Do you remember if Jesus touched you when you were sleeping in the living room?
A. No.
Q. You don't remember that incident?
A. No.
....
[CROSS-EXAMINATION]
Q. All right. So, you don't remember, then, what you said to the lady at the Christie House, do you?
A. No.
Q. Do you recall telling the lady at the Christie House that Jesus touched you the first time in the living room, do you remember telling that lady that that happened in the living room?
A. No.

In Baugh v. State, 961 So.2d 198, 204 (Fla. 2007), a case also involving "the admission of pretrial statements as substantive evidence under the child victim hearsay exception[,]" the Florida Supreme Court repeated the established principle that "a prior inconsistent statement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt." (quoting State v. Green, 667 So.2d 756, 760 (Fla. 1995) ); see also Beber v. State, 887 So.2d 1248, 1252 (Fla. 2004). Here, M.H.'s statements during the forensic interview, which formed the basis for the molestation charge, were inconsistent with her trial testimony, where she was asked multiple times about the incident, and she repeatedly denied remembering anything about it.

The State argues that M.H.'s trial testimony was consistent with her forensic interview because she testified that she was touched twice-once over her clothing and the second time under her clothing. However, the State's record citations do not support this assertion. The State first directs us to the trial testimony of Ms. Garman, the forensic interviewer. But this is simply Ms. Garman's recapitulation of M.H.'s out-of-court forensic interview. Next, the State points us to testimony that directly contradicts its position, where M.H. only addressed the sexual battery incident and denied being touched over her clothes:

Q. Did Jesus touch you on top of your pants and panties?
A. No.
Q. Did he touch you underneath your pants and panties?
A. Yes.

Finally, the State relies on a leading question asked during cross-examination, where defense counsel summarized M.H.'s allegations and mentioned two separate touching incidents. Based on our careful review of the record, we cannot find that M.H.'s trial testimony was consistent with her forensic interview, especially in light of M.H.'s repeated and consistent denials that she remembered the incident.

Although M.H.'s out-of-court statements, standing alone, are insufficient to prove Mendez's guilt with respect to the molestation charge, statements admitted under the child victim hearsay exception may be used "as substantive evidence when other proper corroborating evidence is submitted." Green, 667 So.2d at 761. Here, the State relies on Mendez's statements to police that he accidentally touched M.H. "where she wasn't supposed to be touched" while picking her up. However, this evidence is insufficient to corroborate M.H.'s out-of-court statements. See Span v. State, 732 So.2d 1196, 1197 (Fla. 4th DCA 1999) ("[T]he State may not rely on evidence presented in the defense's case to supply the missing elements necessary to prove its case."). Because the evidence at trial was legally insufficient to support Mendez's lewd and lascivious molestation conviction, we hold that fundamental error has occurred, and we vacate said conviction.

II. Evidence of the Uncharged Attempted Molestation

We now turn to the second argument Mendez raises on appeal: that the improperly introduced evidence of a prior uncharged attempted molestation deprived Mendez of a fair trial. This argument was not preserved, so to prevail, Mendez must demonstrate fundamental error. Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009). As we have already explained, M.H. was unable to corroborate, at trial, the molestation incident she had described during her forensic interview. When the State attempted to elicit testimony about this incident, M.H. unexpectedly mentioned a time when Mendez had asked to touch her in exchange for candy, though she denied that he had touched her. During closing arguments, the State relied on this incident as evidence of grooming: "Where does he get off grooming behavior [sic], the candy, being gross? It is gross. It's called grooming your victim: You let me touch you, I will give you candy ...."

"Evidence of bad acts not included in the charged offenses is generally referred to as 'collateral crimes evidence.' " Dorsett v. State, 944 So.2d 1207, 1212 (Fla. 3d DCA 2006). Generally, collateral crimes evidence is admissible to prove "a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." § 90.404(2)(a), Fla. Stat. (2018). This general rule of admissibility is referred to as the Williams rule. Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 404.9 (2018 ed.); see also Williams v. State, 110 So.2d 654, 659 (Fla. 1959). In cases involving child molestation, the rule on admissibility of collateral crimes evidence is even broader:

1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b), Fla. Stat. (2018).

If the State intends to introduce Williams rule evidence, it must give written pretrial notice:

1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or paragraph (c), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant's counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

§ 90.404(d), Fla. Stat. (2018). Here, no pretrial notice was given.

The State argues that M.H.'s candy incident testimony was not Williams rule evidence because it was inextricably intertwined with the crimes charged. Specifically, the State asserts that the evidence showed the entire context in which the molestation and sexual battery occurred because it showed how Mendez groomed M.H. Evidence that is inextricably intertwined with the charged offense falls into the category of relevant evidence under section 90.402; therefore, no pretrial notice under section 90.404(2)(d) is required. See Dorsett, 944 So.2d at 1213 ("Relevant evidence admitted under section 90.402 does not require notice."); see also Ehrhardt, supra, at § 404.17 ("Because the evidence is admissible under section 90.402, rather than 90.404(2), the ten day notice provision in section 90.404(2) is not applicable. However, the defendant will almost always be fully aware of this evidence and prepared at trial to dispute it because it is an inseparable part of the charge crime.").

We reject the State's argument that the evidence was inextricably intertwined because evidence of the uncharged act was not necessary to describe the crimes charged. See Beckman v. State, 230 So.3d 77, 84 (Fla. 3d DCA 2017) ("Collateral evidence is admissible under section 90.402 if it is a "relevant and inseparable part of the act which is in issue." (quoting Dorsett, 944 So.2d at 1214-15 )). "The Florida courts have reasoned that the evidence of an inseparable crime should be admitted when it is inextricably intertwined with the underlying crime and where it is impossible to give a complete or intelligent account of the crime charged without reference to the other crime." Ehrhardt, supra, at § 404.17 (footnotes and internal quotation marks omitted). Here, evidence of the candy incident was not necessary to give a complete account of the molestation or the sexual battery. Indeed, the State concedes that it was not even aware of the candy incident before trial, which undermines its argument that this incident was an inseparable part of the charged offenses.

We must now determine whether the admission of the uncharged crime rises to the level of fundamental error. We conclude that it does because, as in Fike, this case turned solely on the victim's credibility, and "[t]here was no physical evidence to corroborate her version of events, nor was there any confession or admission." 4 So.3d at 739. With respect to the physical evidence, M.H. underwent a full physical examination the day after the sexual battery. Dr. Lambert testified that it was a normal examination and there were no signs of injury. There was no DNA evidence to corroborate the incident since no DNA was collected from M.H. or from Mendez's bedroom. Dr. Lambert did collect M.H.'s clothing, and although M.H. told the forensic interviewer and also testified at trial that there was blood in her underwear after the sexual battery, the lab results came back negative for the presence of blood. There was also no confession or admission to the charged crimes. Because there was no physical evidence or confession to corroborate M.H.'s version of the events, we find that this is one of the very rare cases in which the fundamental error doctrine applies. See Fike, 4 So.3d at 739 ("Fundamental error is error that undermines the confidence in the trial outcome and goes to the very foundation of a case. Mathew v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003). That has occurred here. 'Because of the commonly held belief that individuals who commit sexual assaults are more likely to recidivate as well as societal outrage directed at child molesters, the admission of prior acts of child molestation has an even greater potential for unfair prejudice than the admission of other collateral crimes.' ").

CONCLUSION

For the reasons set forth above, we conclude that (1) there was insufficient evidence as to Mendez's molestation conviction, and (2) the State's reliance on evidence of an uncharged crime, coupled with the lack of corroborating physical evidence or a confession, undermined the confidence in the verdict. We therefore reverse and remand with instructions to vacate Mendez's conviction for lewd or lascivious molestation and to enter a judgment of acquittal as to that charge, and to conduct a new trial with respect to the remaining sexual battery charge.

REVERSED and REMANDED.

      At trial, Cozette Alvarez, a forensic biologist at the Miami-Dade crime lab, testified that the underwear lab results came back negative for the presence of blood.

      At trial, the mother denied that M.H. reported any abuse to her at home; she testified that she did not find out until the school notified her.

      Trial commenced on February 21, 2012, nearly two years after the incidents.

      Mendez was initially convicted of two counts of lewd and lascivious molestation, but because one of the molestation counts pertained to the same act as the sexual battery, that count was vacated.

      The State suggests that this rule is inapplicable because M.H.'s out-of-court statements were admitted under the child hearsay exception, section 90.803(23), and not as prior inconsistent statements under section 90.801(2)(a). Although the rule set forth in Baugh originated from State v. Moore, 485 So.2d 1279 (Fla. 1986), which only addressed the sufficiency of prior inconsistent statements, Moore's holding has been expanded to address the sufficiency of evidence admitted under the child hearsay exception. See State v. Green, 667 So.2d 756, 760 (Fla. 1995) ("We reiterate that conclusion today, finding that our holding in Moore ... applies regardless of whether the prior inconsistent statement is admitted under section 90.801(2)(a) or section 90.803(23)."). Indeed, Baugh itself deals with statements admitted under the child hearsay exception.

      "Legal sufficiency alone, as opposed to evidentiary weight," is our only concern. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981), aff'd sub nom. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).


text:
    Frank P. SANABRIA, Appellant, v. Lidania SANABRIA n/k/a Lidania Davis, Appellee.
    No. 3D17-1821
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019 Rehearing Denied March 22, 2019
    Martinez-Scanziani & Associates Law, P.A., and Denise Martinez Scanziani, for appellant.
    Mandel Law Group, P.A., Palmetto Bay, and Roberta G. Mandel, for appellee.
    Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge.
   SUAREZ, Senior Judge.

Frank P. Sanabria (the "father") appeals from an Order Granting Former Wife's Petition to Relocate, which granted Lidania Sanabria's (the "mother") petition to relocate with the parties' two minor children from Miami to Huntsville, Alabama. As explained below, because the trial court erred in applying a presumption that the relocation is in the best interests of the children and placing the burden of proof on the father, as the nonrelocating parent, to show that the relocation is not in the best interests of the children, we reverse and remand for a hearing consistent with the burden of proof as set forth in section 61.13001(8), Florida Statutes (2017).

I. SUMMARY OF ISSUE ON APPEAL

The issue on appeal concerns the interaction between two subsections of section 61.13001, Florida Statutes (2017), Parental Relocation with a Child. Section 61.13001(3)(d), Florida Statutes (2017), provides that if a petition to relocate with a minor child is filed and served and an objection to the relocation is not timely filed, it is presumed that the relocation is in the best interest of the child and the trial court may enter an order allowing relocation. Section 61.13001(8), Florida Statutes (2017), provides that if there is an evidentiary hearing to determine whether relocation is in the best interest of the child, the person requesting relocation has the burden of proving by a preponderance of the evidence that the relocation is in the best interest. The specific question raised in this appeal is whether where a timely objection was not filed but where the trial court found there was good cause for the failure to file and ordered an evidentiary hearing to determine whether the relocation is in the best interest of the child, does the statutory presumption found in section 61.13001(3)(d) that relocation is in the best interest carry over to the evidentiary hearing and shift the burden of proof from the party requesting the relocation to the objecting party to first prove by a preponderance of evidence that the relocation is not in the best interest of the child. As explained more fully below, based on these facts, we find it does not.

II. FACTUAL AND PROCEDURAL HISTORY

The mother and father were married on December 3, 2005, and had two children during the marriage. On May 30, 2013, the mother and father entered into a marital settlement agreement providing for shared parental responsibility and timesharing with the children. The marital settlement agreement was ratified by the trial court in the final judgment of dissolution of marriage entered on June 13, 2013.

On April 17, 2017, the mother filed a Petition to Relocate (the "Petition") with the parties' two children from Miami to Huntsville, Alabama. The mother sought to relocate because her current husband, who lives in California, had accepted a job offer in Huntsville, and is was her desire to move to Huntsville with the children to live with her husband. In accordance with section 61.13001(3)(a)(7), Florida Statutes (2017), the Petition included the following statement:

A RESPONSE TO THIS PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILDREN, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

The father was personally served with the Petition on April 18, 2017, and retained counsel ten days later. On May 8, 2017, the father's counsel filed a Motion for Additional Time to File a Responsive Pleading. On May 11, 2017, the mother filed a Motion for Entry of Order Allowing Relocation Due to Former Husband's Failure to File an Objection to Relocation Pursuant to Section 61.13001, Florida Statutes ("Motion for Entry of Order Allowing Relocation"). The mother argued that the order should be entered as the father was required by the statute to timely file an objection and did not do so. The father subsequently filed a Response to Petition to Relocate and Request for Temporary Order on May 16, 2017, and an Amended Answer and Objection to Petition to Relocate on June 2, 2017.

On June 19, 2017, the trial court conducted a hearing on the mother's Motion for Entry of Order Allowing Relocation. At the hearing, the trial court found that the father's failure to file a response objecting to the Petition within twenty days as required by section 61.13001(3)(a)(7) was caused by his attorney's failure to file the required objection and instead filing a motion for additional time and was not due to the fault of the father. As a result, the trial court found good cause was shown pursuant to section 61.13001(3)(d), Florida Statutes (2017), for the trial court not to enter an order allowing relocation. The trial court stated that the matter would proceed to a hearing on the merits. That same day, the trial court entered an order denying the mother's Motion for Entry of Order Allowing Relocation, stating that it "has taken notice that an objection and answer was not timely filed, however, the matter (the Petition to Relocate) will be heard on the merits." The court specifically found good cause, finding that the counsel for the father did not file the proper pleadings, on time, inadvertently, by filing a motion for extension of time and that such was "in no fault, the client's [,i.e, the father's] error."

A hearing on the merits of the mother's Petition took place on June 26, 2017. At the start of the hearing, the mother argued that pursuant to section 61.13001(3)(d), the father's failure to timely file a response objecting to the Petition established a presumption that the relocation was in the best interests of the children and that as a result, the burden of proof shifted from the mother, as the parent seeking to relocate, to the father to overcome the presumption. The trial court agreed, stating that "I am ... interpreting the statute to mean that the burden now shifts to her [father's counsel] and that there is a presumption that it is in the child's best interest to move and you have to overcome that presumption." The father presented his case and the trial court heard closing argument. The trial court reconvened on July 13, 2017, and affirmed its ruling that once a response objecting to the Petition was not timely filed, the burden of proof shifted to the father to prove by a preponderance of the evidence that the relocation is not in the best interests of the children. The trial court further stated that in conducting the hearing it was "relying on a Petition and not evidence. And then I am weighing the testimony of the [father] first." The trial court orally pronounced its decision to grant the Petition.

On July 25, 2018, the trial court entered its Order Granting Former Wife's Petition to Relocate. The Order stated:

[T]he Court is affirming the prior ruling that the burden of proof shifted to the [father] once an objection was not timely filed. This Court affirms its ruling made at the June 26, 2017, hearing that it is presumed that the relocation is in the best interests of the parties' children and that the relocation should be allowed, and that the burden of proof shifted to [father] as the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interests of the parties' children. Though the statute provides for the Court to rule in favor of the [mother] without hearing from [father], the Court held a hearing and weighed the Petition to Relocate and the evidence presented by [father].

The trial court considered the factors set forth in paragraphs (a) - (i) of section 61.13001(7), Florida Statutes (2017), specifically finding with regard to factors (b), (c), (e), and (f) that the father failed to show by a preponderance of the evidence that the relocation is not in the best interest of the children, and as to factor (h), that the father failed to show that the relocation is not sought in good faith. The trial court ordered the relocation effective immediately.

The father appeals from the Order Granting Former Wife's Petition to Relocate.

III. STANDARD OF REVIEW

"An order on a petition for relocation is reviewed for an abuse of discretion, and the appellate court considers whether competent, substantial evidence supports the court's findings under section 61.13001(7), Florida Statutes." Ness v. Martinez, 249 So.3d 754, 757 (Fla. 1st DCA 2018). "[H]owever, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo." Milton v. Milton, 113 So.3d 1040, 1041 (Fla. 1st DCA 2013) ; accord Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla. 2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.").

IV. ANALYSIS

The father raises several issues on appeal. We address only one-whether the trial court erred in applying the presumption set forth in section 61.13001(3)(d), Florida Statutes (2017), and in shifting the burden of proof to the father despite finding good cause to not enter an order allowing relocation and proceeding to a hearing on the merits of the mother's Petition. Based on the plain language of the statute, we conclude that the trial court was incorrect in applying the presumption and shifting the burden of proof to the father in the evidentiary hearing.

This case concerns a parent's petition to relocate with a child filed under section 61.13001, Florida Statutes (2017). Section 61.13001(3), Florida Statutes, sets forth the requirements for petitions to relocate, and provides in relevant part:

(3) Petition to relocate.--Unless an agreement has been entered as described in subsection (2), a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must be in accordance with this section:
(a) The petition to relocate must be signed under oath or affirmation under penalty of perjury and include:
....
7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:
A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
....
(d) If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate.

Section 61.13001(8), Florida Statutes (2017), governs the burden of proof for petitions to relocate and provides as follows:

(8) Burden of proof.-- The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

The issue of whether the legislature intended the presumption set forth in section 61.13001(3)(d) to operate at a hearing on the merits conducted after the trial court finds good cause not to enter an order allowing relocation is a matter of statutory construction. " 'The polestar of a statutory construction analysis is legislative intent.' " Edwards v. Thomas, 229 So.3d 277, 283 (Fla. 2017) (quoting W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012) ); accord Larimore v. State, 2 So.3d 101, 106 (Fla. 2008), as revised on denial of reh'g, (Jan. 29, 2009) ("A court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction."). To determine legislative intent, a proper analysis begins with the language of the statute at issue. Id. at 106 ("To discern legislative intent, a court must look first and foremost at the actual language used in the statute."); Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla. 2004) ("As in all cases of statutory construction, we first look to the language of the statute."). "Normally, '[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 5 (Fla. 2004) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ); accord Blanton, 887 So.2d at 1230. Moreover, in discerning legislative intent, a court must also "give effect to all statutory provisions, and construe related provisions in harmony with one another." Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003).

Here, the trial court relied on section 61.13001(3)(d) when it "presumed that the relocation is in the best interests of the parties' children and that the relocation should be allowed, and that the burden of proof shifted to [father]." Specifically, the trial court relied upon the first sentence of the statute, which states as follows:

If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time- sharing schedule and transportation arrangements contained in the petition.

Id. The trial court's application of the presumption that the "relocation is in the best interests of the child and that the relocation should be allowed" at a hearing conducted after finding good cause not to enter an order allowing relocation is not supported by the clear language of section 61.13001(3)(d). Pursuant to the statute, the presumption applies when "the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate." Id. The statute, however, provides for an exception when "good cause" exists. Id.; see also Ryan v. Ryan, 252 So.3d 272, 273 (Fla. 4th DCA 2018) (" Section 61.13001(3)(d) provides that where a parent fails to timely file a response objecting to a petition to relocate, the court shall enter an order granting the petition 'absent good cause.' "). The statute thus instructs that where an objection is filed, or good cause exists, "the parent or other person may not relocate, and must proceed to a temporary hearing or trial and obtain court permission to relocate." Id. In other words, the presumption set forth in section 61.13001(3)(d) applies in the absence of good cause. Where, as here, good cause is found to exist, the presumption does not apply and the matter proceeds to a hearing on the merits of the petition to relocate. As such, we find that the trial court erred when it "presumed that the relocation is in the best interests of the parties' children and that the relocation should be allowed" at the hearing on the mother's Petition.

The trial court then impermissibly shifted to the father what was properly the mother's burden of proof. As the proponent of the move, it was the mother's burden to prove by a preponderance of the evidence that the relocation to Huntsville was in the best interest of the parties' children. Once the trial court found good cause for the failure of the objection to be timely filed and determined that the matter would proceed to a hearing on the merits of the mother's Petition, the burden of proof as set forth in section 61.13001(8) applied. That statute provides that "[t]he parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child." Id. Only once that burden is met does the burden of proof shift "to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child." Id. Section 61.13001(8) does not contain an exception for hearings conducted after the trial court finds good cause not to enter an order allowing relocation, nor does it provide that the presumption set forth in section 61.13001(3)(d) carries forth to a hearing on the merits. Accordingly, we find that the trial court erred in placing the burden of proof on the father, as the non-relocating parent, at the hearing on the mother's Petition.

Because the trial court improperly shifted the burden of proof to the father, the Order Granting Former Wife's Petition to Relocate is not supported by competent substantial evidence. At the start of the hearing, the mother argued that because the father had failed to timely file a response objecting to the Petition, the presumption that the relocation is in the best interests of the children and that the relocation should be allowed applied at the hearing. The trial court agreed, and ruled that the burden of proof shifted to the father and directed him to proceed first, with the assumption that the mother had proven that the relocation was in the best interests of the children. The father presented his case, and the trial court then heard closing arguments. The trial court reconvened to orally pronounce its ruling on the Petition, and stated that in making its decision, it was "relying on a Petition and not evidence," as the mother was not required to present evidence. Thus, as a result of the trial court's erroneous application of the presumption and burden-shifting, the trial court's order is not supported by competent substantial evidence that the mother's relocation with the children is in the best interest of the children. See Arthur v. Arthur, 54 So.3d 454, 459 (Fla. 2010) ("[A] best interests determination in petitions for relocation ... must be supported by competent, substantial evidence.").

V. CONCLUSION

Based on the forgoing, we conclude the trial court erred in applying the presumption set forth in section 61.13001(3)(d) and shifting the burden of proof to the father. We therefore reverse the Order Granting Former Wife's Petition to Relocate, treat the Order as a non-final order granting temporary relocation, see Ryan, 252 So.3d at 273 ; Vaelizadeh v. Hossaini, 174 So.3d 579, 584 (Fla. 4th DCA 2015), and remand for a hearing in accordance with the proper burden of proof as set forth in section 61.13001(8).

Reversed and remanded.