text:
    In the INTEREST OF C.E., a Child.
    K.E., Appellant, v. Department of Children and Families and Gardian Ad Litem Program, Appellees.
    Case No. 2D18-1501
    District Court of Appeal of Florida, Second District.
    Opinion filed January 4, 2019
    Scott L. Robbins of Scott L. Robbins, Attorney at Law, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary A. Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
    J. Logan Murphy of Hill, Ward, Henderson, Tampa and Thomasina Moore and Laura Lee, Statewide Guardian Ad Litem Office, Tallahassee, for Appellee Guardian Ad Litem Program.
   PER CURIAM.

K.E. (the Mother) appeals from the trial court's final judgment terminating her parental rights to her child, C.E. (the Child), under sections 39.806(1)(c) and 39.806(1)(f), Florida Statutes (2017). Because the evidence before the trial court was insufficient to support termination of the Mother's parental rights, we reverse.

The Child came into child protective services of the Department of Children and Families (the Department) when he was five weeks old. The Mother brought the Child to the emergency room on Saturday, July 15, 2017, after noticing limited movement of the Child's left arm. Further examination of the Child revealed that he had a nondisplaced, oblique fracture of his left humerus bone, the upper arm bone.

On July 17, 2017, the Department filed an emergency shelter petition, alleging that the five-week-old Child had a fractured arm and that the Mother was unable to provide an appropriate explanation for the cause of the Child's injury. Upon his release from the hospital, the Child was placed in the temporary custody of the Department. On August 17, 2017, the Department filed an expedited petition to terminate the Mother's parental rights. An amended expedited petition was filed on December 22, 2017, alleging that the Mother engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatened the life, safety, or physical, mental, or emotional health of the Child under section 39.806(1)(f) and that the Mother's continued involvement with the Child threatened the Child's life, safety, well-being, or health, irrespective of the provision of services under section 39.806(1)(c). Because the Department sought termination under subsections 39.806(1)(c) and (f), the Department did not, and was not required to, make "[r]easonable efforts to preserve and reunify" the family. See § 39.806(2), Fla. Stat. (2017).

The Mother testified that on the night of July 14, 2017, she and the Child were sleeping in the bedroom that the Mother shared with her boyfriend. At some point, the Child started crying, and the Mother took the baby into the living room to nurse. Around 9:00 a.m., the boyfriend woke the Mother up on the couch; she had fallen asleep in a semi-upright position with the baby between her and the back of the couch. The Mother did not think that the Child had been injured, and the Child was not displaying any signs of pain.

The Mother nursed the Child before traveling with the Child to the maternal grandmother's house, arriving around 10:00 a.m. The grandmother fed the baby and put him in a swing. The Child was acting normally and was not displaying any signs of pain or distress. The Mother, the Child, and the grandmother later went to a friend's house to use the pool where the Child remained in his car seat and slept under a covered lanai. The Mother and the Child went back to their house around 3:00 p.m.

The Child was still sleeping in his car seat when they arrived home. When the baby woke up, the Mother fed him and changed his diaper. At that point, the Mother noticed that the Child was not raising his left hand up with his right hand as he usually did when she changed his diaper. Instead, the Child was keeping his left arm straight down by his side. The Mother testified that she did not have reason to believe that something had happened to the Child's arm. The Child was behaving normally and was not acting like he was in pain: he was not crying inconsolably, and the Mother did not notice any redness, abrasions, swelling, or bruising on his arm.

Initially, the Mother called the pediatrician's office for advice, but the office was closed. She then searched the internet for possible reasons why an infant would be favoring one arm. According to her internet search, she determined that the Child may be suffering from "nursemaid's elbow," which is a partial dislocation of the elbow and is common in children ages one to five years old. The Mother's online research revealed that the symptoms associated with nursemaid's elbow include favoring one arm over the other and that nursemaid's elbow is easily remedied by performing a nursemaid's elbow reduction. The Mother attempted to perform the nursemaid's elbow reduction procedure herself on the Child at approximately 4:00 p.m.

The Mother demonstrated the procedure she performed on the Child at the adjudicatory hearing. She held the Child's arm just above the elbow with her thumb on the Child's bicep and her fingers around his triceps; she put her other hand around the Child's wrist and turned the Child's wrist from left to right and back again at a 180-degree angle. The Mother heard a faint "pop," but she did not know whether the noise came from the Child or from her own wrist.

At first, the Mother thought that the maneuver had worked. While the Child did not immediately start moving his arm, she had read online that it could take several hours after the procedure for the Child to start moving his arm normally. The Mother testified that after she performed the procedure, the Child did not appear to be in pain and was not crying. Thereafter, she took the Child to Walmart.

After returning from Walmart, the Mother noticed that the Child was still not moving his arm normally. At that point, she took the Child to the hospital between 7:30 p.m. to 8:00 p.m. The Mother testified that she waited to take the Child to the hospital because she thought that she had fixed his arm. At the hospital, X-rays were performed, and it was determined that the Child had a nondisplaced oblique fracture of his left humerus.

The Mother testified that she does not know how the Child's arm was fractured. She admitted that she did not tell anyone at the hospital about performing the nursemaid's elbow reduction because she did not, and does not, believe that she caused the fracture by performing the nursemaid's elbow reduction; however, she admitted that she could not say for sure whether the maneuver caused the fracture.

The Mother testified that when the Child was five days old, she fell asleep while she was sitting on her bed breastfeeding the Child. The Child fell approximately two feet onto the carpeted floor. The Mother immediately took the Child to the pediatrician, who performed an exam on the Child and reassured the Mother that the Child was fine. No X-rays were taken at that time, and the Mother was counseled as to the dangers of co-sleeping. The Mother testified at the adjudicatory hearing that she thought the Child may have sustained the arm fracture as a result of this fall.

The grandmother testified to a timeline substantially similar to the timeline the Mother provided for July 15, 2017. However, the grandmother testified that after leaving the pool, she next heard from the Mother between 3:00 p.m. and 4:00 p.m. when the Mother texted her that the Child was holding his arm funny and that she was concerned. About thirty minutes later, the Mother texted the grandmother again, saying that she thought she had fixed the Child's arm.

The deposition testimony of Dr. de Brigard, the Child's pediatrician, was read into the record at the adjudicatory hearing. Dr. de Brigard first saw the Child for a newborn exam on June 12, 2017, when he was four days old. There were no concerns regarding the Child after the newborn exam. He saw the Child again two days later on June 14, 2017, after the Child fell off the bed. After examining the Child, he determined that the Child was not injured; there was no bruising or any other signs of injury. Dr. de Brigard advised the Mother that she should not breastfeed on the bed and suggested getting help to feed the baby because if she falls asleep, she may suffocate the Child. The doctor discussed newborn safety issues with the Mother, which included smoking and breastfeeding. Dr. de Brigard saw the Child for a third time on July 12, 2017, three days before the incident, for his one-month exam. The doctor saw no injuries on the baby and had no concerns regarding the Child.

Sandra Shulman is a registered nurse practitioner with the child protection team. After the Child was referred to the child protection team on July 16, 2017, she performed a medical records review and a physical examination of the Child. Ms. Shulman testified that the Child had a nondisplaced, oblique fracture of his humerus. Ms. Shulman explained that an oblique fracture is a fracture that is at an angle and torsion to the arm, or a twisting motion, is required to cause this type of fracture, which is different than a fracture that is caused by a direct blow.

Ms. Shulman testified that she was familiar with nursemaid's elbow and the nursemaid's elbow reduction. She demonstrated how a nursemaid's elbow reduction procedure is performed. Her demonstration was substantially similar to the Mother's earlier demonstration. Ms. Shulman testified that one might hear a pop when the bone goes back into joint. Ms. Shulman testified that the reduction should be done by a trained medical professional because an untrained person could cause or worsen an injury due to the twisting motion involved. However, she acknowledged that if a layperson is taught how to do the reduction by a medical professional, or if it happens repeatedly, which it sometimes will, a layperson could perform the reduction.

Ms. Shulman testified that during her examination of the Child, the only outward manifestation the Child was showing was that he was favoring his left arm, which is consistent with symptoms of nursemaid's elbow. She testified that there was no swelling, bruising, or redness on the Child. The Child was not "overwhelmingly crying" during her exam. Ms. Shulman acknowledged that if she did not have the X-ray of the Child's arm, she would not know that he had a fractured arm just by looking at the Child. Ms. Shulman acknowledged that it was possible that pulling, yanking, or grabbing the Child by the arm or hand could cause nursemaid's elbow.

Ms. Shulman testified that at the conclusion of her examination the only thing she was able to determine with a reasonable degree of medical certainty was that the five-week-old Child had a fracture, oblique in nature, of the left humerus. Ms. Shulman's impression of this case was that the Child was inflicted with a nonaccidental injury based on what was known at the time. Ms. Shulman explained that an "inflicted" injury means that something caused the injury. It did not mean that someone intended to cause the injury.

Ms. Shulman testified that she did not know the cause of the fracture but concluded that something must have happened to the Child to cause the injury because a one-month-old baby does not roll over and does not spontaneously get fractures. Ms. Shulman testified that any number of the Mother's actions could have caused this injury. Ms. Shulman acknowledged that if the Mother had, in fact, performed the reduction, it was possible that the reduction could have caused the injury. It was also possible that the Mother co-sleeping with the Child could have caused the injury. It was also possible that something else happened to the Child. Ms. Shulman could not say with any degree of medical certainty whether the Child's injury was accidental or intentionally inflicted or whether the Mother caused the injury. Ms. Shulman acknowledged that she did not know whether any other people had been around the Child during the time the injury could have occurred or whether someone else could have caused the injury to the Child. She also acknowledged that there were no other injuries to the Child-no other broken bones, no healing fractures, no bruises on the head, and no signs of shaken baby syndrome.

Maria Torres was assigned as the Child's guardian. Ms. Torres testified that she visited the Child twice a month and that she observed the Mother visiting the Child twice. Ms. Torres testified that the Mother's interaction with the Child was good; the Mother is loving and nurturing toward the Child, handles the Child appropriately, and loves the Child. Ms. Torres testified that the Mother visits the Child four times per week for two hours per visit, which is the maximum amount of the time the Mother is allowed to visit the Child per court order. Despite this testimony, Ms. Torres opined that the Mother would not be able to provide a safe and stable home if the Child were returned to her because he was sheltered because of the unexplained fractured arm, because the Mother co-slept with the Child after being advised against co-sleeping, and because the Mother continued to smoke and breastfeed after being told to stop smoking.

Tangila Roberson is the case manager assigned to the Child. She observed the visits between the Mother and the Child and testified that the Mother visits the Child four times a week and has not missed a visit. Ms. Roberson testified that the Mother is good with the Child, loves the Child, is nurturing toward the Child, and handles the Child appropriately. There is a bond between the Mother and the Child. Ms. Roberson has never seen the Mother become angry with the Child. Ms. Roberson testified that after she spoke with the Mother about smoking, the Mother indicated that she would quit smoking. Since that time, Ms. Roberson has not seen the Mother smoking.

The Mother presented three witnesses at the adjudicatory hearing. Carmen Mays testified that she is a therapist at Northside Behavioral Health Center and that she facilitates a group for parents of children ages one to four, which is a court-approved parenting class used in child-dependency cases. Ms. Mays testified that the Mother enrolled in her parenting class and obtained a certification of completion after attending six group therapy classes and completing all homework assignments. Ms. Mays testified that she believed that the Mother understood the concepts taught in the class.

Eric Brotherton, a licensed mental health therapist at Northside Behavioral Health Center, testified that he had three individual therapy sessions with the Mother. The Mother's sessions focused on situational stress and anxiety related to the removal of her Child. Mr. Brotherton testified that the Mother acted appropriately during their sessions and that she was able to communicate well. Mr. Brotherton testified that the Mother would be amenable to continuing with therapy. Mr. Brotherton testified that he did not see any inconsistencies in the Mother's presentation, he did not perceive any issues with self-harm or harm to other people, and he did not perceive any anger issues, any cognitive disabilities, or any mental health issues other than the adjustment disorder, which was a result of her anxiety related to the removal of her Child.

Finally, Dr. Hamid Latif testified as the Mother's final witness. Dr. Latif was the pediatrician who admitted the Child at the hospital. Dr. Latif testified that the Child suffered a nondisplaced fracture, which he referred to as a "hairline fracture." Dr. Latif explained that when he sees something like a bone fracture in a very young child, he orders a CT scan of the brain, an eye exam, and a skeletal survey to make sure there is no concurrent or hidden injury and to make sure everything is intact. An eye exam is performed to make sure there are no retinal hemorrhages or anything that may indicate that the child has shaken baby syndrome. Dr. Latif testified that the Child's CT scan was normal, the eye exam was normal, and the skeletal survey showed no other fractures and no healing fractures.

Dr. Latif testified that he was familiar with nursemaid's elbow and with the procedure to remedy nursemaid's elbow. He explained that you "just kind of shake hands with the person, hold onto the elbow and twist it one way, and the other way" and it "just pops back in." Dr. Latif explained that the nursemaid's elbow is usually seen in toddlers and children that are walking; if you lift them up by the arm, the bones come out of the socket, which can cause swelling and pain. He acknowledged that it would be unusual for a five-week-old child to have nursemaid's elbow but noted that it would not require a lot of force to cause nursemaid's elbow in an infant and stated that lifting a five-week-old child by the wrist could cause nursemaid's elbow. According to Dr. Latif, it could take an hour or two for the child to start using his arm again after the reduction because it takes time for the swelling to go down. Dr. Latif testified that it would not be abnormal to wait an hour or two to see if the procedure worked.

Dr. Latif testified that he did not notice any signs of trauma, bruising, or swelling on the Child. The Child was not crying when Dr. Latif examined him. Without the X-ray, Dr. Latif would not have known that the Child's arm was fractured, as the Child was not exhibiting any obvious signs of pain during the examination. Dr. Latif testified that it would be possible that if a person did not know that there was a fracture, any expression of pain or discomfort could be misinterpreted as fussiness or colic. Dr. Latif testified that he could not tell what caused the fracture just by looking at the X-ray. He testified that the fracture could have been caused by a fall or by someone mishandling the baby.

The Final Judgment Terminating the Mother's Parental Rights

The trial court entered its final judgment terminating the Mother's parental rights to the Child pursuant to sections 39.806(1)(c) and (f). The trial court found that there was clear and convincing evidence to terminate the Mother's parental rights pursuant to section 3.806(1)(f), finding that the Child was a victim of an egregious act that occurred on Saturday, July 15, 2017, and that the Mother "either inflicted the injury or knows who did, and is covering for that person."

The trial court also found that there was clear and convincing evidence to support the termination of the Mother's parental rights under section 39.806(1)(c), finding that the Mother's continued involvement with the Child threatens the life, safety, well-being, or physical, mental, or emotional health of the Child, irrespective of the provision of services. The trial court noted that the Mother engaged in some services on her own, including attending parenting classes and individual therapy, but found that the provision of services to this Mother would be futile because the Mother lacked credibility with the trial court, was not honest about what happened to the Child, and demonstrated an inability to follow the most basic safety instructions.

The trial court additionally found that it was in the Child's manifest best interest to terminate the Mother's parental rights and that because the Mother subjected the Child to an egregious act and behaved recklessly and dangerously, without regard for the Child's safety and well-being, termination of her parental rights was the least restrictive means to protect the Child from harm.

After a thorough examination of the record, we find that it does not contain the clear and convincing evidence necessary to terminate the Mother's parental rights. See R.P. v. Dep't of Children & Family Servs., 975 So.2d 435, 436 (Fla. 2d DCA 2007) (holding that a trial court's determination that clear and convincing evidence supports the termination of parental rights will not be overturned unless found to be clearly erroneous or lacking in evidentiary support);

T.V. v. Dep't of Children & Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005) (holding that the standard of review where a trial court terminates parental rights is whether the order is supported by competent, substantial evidence). In order to grant a petition for termination of parental rights, a trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination exists and that termination is in the manifest best interests of the child. See § 39.802(4)(a), (c); Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991) (holding that before a parent's rights can be terminated, the Department must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child). Further, because parental rights constitute a fundamental liberty interest, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from serious harm. Id. at 571.

Termination under Section 39.806(1)(f)

Section 39.806(1)(f) provides for the termination of parental rights when a parent has "engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child." § 39.806(1)(f). Egregious conduct is defined as "abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct." § 39.806(1)(f)(2). "Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child." Id.

The trial court found that the Mother engaged in egregious conduct that threatened the life, safety, or physical, mental or emotional health of the Child, reasoning that "[t]here has been no logical explanation for the [C]hild's injury offered, and five-week-old children are not capable of injuring themselves without the knowledge of an adult, thus someone inflicted the injury." The trial court found the Mother's testimony regarding the Child having nursemaid's elbow to be "preposterous" and relied upon the testimony from Ms. Shulman and Dr. Latif to support the finding that there are no normal, nonabusive circumstances by which a five-week-old could sustain nursemaid's elbow. The trial court found it incredible that the Mother would believe that the Child had nursemaid's elbow and further found that even if the Mother had attempted to correct the issue, which the trial court expressly rejected, the Mother's actions would have been reckless and negligent. The trial court found that the Child was injured sometime during the day on Saturday, July 15, 2017, at a time when the Child was in the exclusive care of the Mother. Therefore, the court found, "without hesitation," that the Child was the victim of an egregious act and that the Mother either inflicted the injury or "knows who did and is covering for that person."

Other than the Mother's explanation of having performed the nursemaid's elbow reduction, which the trial court rejected as preposterous and incredible, there was no evidence as to how the Child's injury occurred or who or what caused the injury. From this dearth of knowledge, the trial court speculated that, whatever it was, it must have been egregious.

Ms. Shulman testified that she could not say to a medical certainty whether the Child's injury was accidental or intentionally inflicted; she could not say whether the Mother caused the injury or whether the injury was caused by someone else who had access to the Child. Ms. Shulman acknowledged that the fracture could have been caused by the Mother's attempt at the nursemaid's elbow reduction or when the Mother fell asleep with the Child on the couch. Dr. Latif testified that the injury could have been caused by a fall or by someone mishandling the Child.

This uncertainty as to the Mother's role in the Child's injury is reflected in the trial court's oral findings, wherein the judge stated:

I think she [the Mother] does know [how the Child's arm got fractured] and because she's not telling us what happened, I think it's worse - - the worst case scenario and the scenario that makes me really fear for the infant, because this was a defenseless little newborn, five weeks old, who probably was fussy because he may have needed more to eat than he was eating, or whatever, and I think somebody got angry. I don't know who did, but somebody did and that's the only thing that has a reasonable explanation.

There was absolutely no evidence presented that the Child was underfed or that anyone displayed any anger toward the Child. In fact, Ms. Roberson, the case manager, testified that she never saw the Mother become angry with the Child; the maternal grandmother testified that the Mother was not an angry person; and Mr. Brotherton, the Mother's therapist, testified that the Mother did not have any anger issues. The trial court's finding that the Mother "either inflicted the injury, or knows who did and is covering for that person" is not based on competent, substantial record evidence, but rather on the trial court's speculation-which cannot constitute clear and convincing evidence and cannot serve as a valid basis for terminating the Mother's parental rights. See M.C. v. Dep't of Children & Families, 186 So.3d 74, 80 (Fla. 3d DCA 2016) ; K.R.L. v. Dep't of Children & Family Servs., 83 So.3d 936, 939 (Fla. 3d DCA 2012) (citing R.W.W. v. Dep't of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001) ).

Moreover, the trial court's finding that the Child was in the Mother's exclusive care during the afternoon of July 15, 2017, is not supported by the record. The record clearly reflects that both the maternal grandmother and the Mother's boyfriend had access to the Child on July 15, 2017. Because no one was able to opine as to who or what injured the Child, there was no competent, substantial evidence to support the trial court's finding that the Mother engaged in egregious conduct. See M.C., 186 So.3d at 80.

In M.C., the mother took her child to the hospital with second-degree burns over the back side of his body. Id. at 76. The mother stated that she believed that her older child had inflicted the burns; however, she was not able to provide a "cohesive explanation" as to how the burns occurred. Id. The trial court found that the mother's testimony was not credible and that what happened to the child was intentional, malicious, and calculating, concluding that the injuries suffered by the child were either inflicted by the mother or inflicted by someone else while under the mother's care. Id. The Third District reversed the trial court's finding of egregious conduct, reasoning that it was based upon pure speculation, as there was no evidence as to how the injury occurred or who or what caused it. Id. at 80. Likewise here, the dearth of evidence regarding the cause of the Child's injury undermines the trial court's speculative conclusion that it was the result of egregious conduct.

Additionally, the trial court identified, and the Department presented evidence of, only one instance of purportedly egregious conduct. And the record in this case reveals that this was a one-time occurrence; there was no evidence of any prior injuries or continued abuse. Both Dr. Latif and Ms. Shulman testified that they did not see any bruises or adhesions on the Child and that the Child did not have any other broken or fractured bones. His hospital scans showed no sign of healing fractures, and there were no signs of shaken baby syndrome. Dr. de Brigard testified that he saw the Child on three separate occasions and never noticed any bruising or adhesions on the Child. For a single occurrence to constitute "egregious conduct," it must have been of such intensity, magnitude, or severity as to endanger the life of the child. § 39.806(1)(f) 2. While the Child suffered from a fractured arm, there was no evidence of any prior abuse, and while the Mother's actions in performing the nursemaid's elbow reduction may not have been the most prudent course of action, it does not rise to the level of deplorable, flagrant, or outrageous. And there was certainly no evidence that her actions threatened the life of the Child.

Therefore, based on the record before this court, the trial court's finding that the Department established by clear and convincing evidence that the Mother engaged in egregious conduct is not supported by competent, substantial evidence.

Termination under Section 39.806(1)(c)

In order to terminate parental rights under section 39.806(1)(c), the trial court must find that the child's life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. § 39.806(1)(c). "In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent." R.W.W., 788 So.2d at 1023.

In this case, the trial court found that any provision of services to the Mother would be futile. First, the trial court found that the Mother lacked credibility and that she was not honest about what happened to the Child to cause the fractured arm, surmising that the Mother "must certainly know what happened to her [C]hild, whether she inflicted the injury or someone else did." The trial court noted that the Mother had been counseled regarding the risk of co-sleeping with the Child and, despite these warnings and an acknowledgment from the Mother that she knew co-sleeping was unsafe, the Mother chose to continue to endanger the Child by co-sleeping with him. Therefore, the trial court found that the Mother could not be honest and had "demonstrated an inability to follow the most basic of safety instructions and the provision of services would be futile."

The trial court's finding that the provision of services to the Mother would be futile is not supported by competent, substantial evidence. The Department presented no evidence that the Mother is not amenable to services. In fact, the only evidence presented was that the Mother has quit smoking and voluntarily completed a parenting class and individual therapy sessions, despite not being offered any services from the Department. Contrary to the trial court's findings, the evidence supports the Mother's contention that she is amenable to treatment and that the provision of services would not be futile. The Mother is healthy, has a job, has adequate housing, provided pre- and post-natal medical care to her Child, and provided clothing, food, and love for her Child while he was in her care. The trial court erred in terminating the Mother's parental rights "based on its own speculation and the Department's unproven assertions." See R.W.W., 788 So.2d at 1024 (citing F.C. v. Dep't of Children & Families, 780 So.2d 159, 162 (Fla. 2d DCA 2001) (holding that while the father appeared to lack the ability to properly care for his children, it was error to terminate his parental rights without giving him the opportunity to try) ).

Manifest Interest and Least Restrictive Means

The Department is required to prove all of the elements listed in section 39.810 in order for the trial court to determine whether terminating the parent's rights is in the manifest best interests of the child. I.R. v. Dep't of Children & Family Servs., 904 So.2d 583, 588 (Fla. 3d DCA 2005). In this case, the Department failed to prove that terminating the Mother's parental rights was in the manifest best interest of the Child. The evidence did not support a finding that the Mother engaged in egregious, or even abusive, behavior, and the Department failed to make reasonable efforts to reunify the Mother with the Child and failed to offer the Mother appropriate services that would allow for a safe reunification.

The Department also failed to show by clear and convincing evidence that terminating the Mother's parental rights was the least restrictive means of protecting the Child from serious harm. Ordinarily, to prove that termination of parental rights is the least restrictive means of protecting the child, the Department must show that it has made a good-faith effort to rehabilitate the parent and reunite the family, such as through the provision of a case plan. In re T.M., 641 So.2d 410, 413 (Fla. 1994) (citing Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991) ). However, in cases involving egregious conduct by a parent, "the termination of parental rights without the use of plans or agreements is the least restrictive means." Id.

Here, the Department failed to prove that the Mother was involved in egregious conduct or that the Child's life, safety, or health would be threatened by continued interaction with the Mother, and the evidence failed to support a finding that termination was the least restrictive means to protect the Child. The Department did not offer any evidence that the Child would be harmed by continued custody with the foster parent while the Mother worked on a case plan (or even that leaving the Child in the custody of the Mother would lead to abuse, abandonment, or neglect), nor did the Department prove that termination was the only option to protect the Child. The Mother was never given the opportunity to establish that she could safely maintain a relationship with her Child. The record reveals that the Mother voluntarily enrolled in parenting classes and attended therapy sessions. The Mother has visited the Child at every possible opportunity, and the testimony revealed that the Mother is nothing but appropriate and loving toward the Child. There was absolutely no evidence presented that would support the trial court's finding that termination of the Mother's parental rights was the least restrictive means to protect the Child from serious harm. See K.M.B. v. Dep't of Children & Families, 793 So.2d 39, 40 (Fla. 2d DCA 2001) (citing J.L.C. v. Dep't of Children & Family Servs., 750 So.2d 38 (Fla. 2d DCA 1999) ).

Accordingly, we reverse the trial court's order terminating the Mother's parental rights, and we remand for further proceedings pursuant to section 39.811.

KELLY, MORRIS, and ATKINSON, JJ., Concur.

      The Father was never involved with the Child and voluntarily executed written surrenders for the Child. The Father's parental rights were also terminated. He has not appealed from the final judgment.

      Whether the second incident-involving the mother falling asleep on the couch while nursing the Child-constitutes "co-sleeping" is not crucial to this court's opinion.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    M.W., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-400
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SALTER, SCALES and LUCK, JJ.
   SCALES, J.

After finding M.W., a juvenile, guilty of petit theft, the trial court withheld adjudication and issued a judicial warning. M.W. appeals on the lone ground that the trial judge "entered the fray" during the trial and sacrificed trial court neutrality. Because we conclude that the trial judge did not overstep his obligation to remain neutral and impartial, we affirm the order on appeal.

The State charged M.W. in a one-count petition for delinquency after M.W. was arrested for shoplifting headphones at an Apple Store. According to statute, "if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft in the first degree." § 812.014(2)(e), Fla. Stat. (2017). At trial, the State was examining the store security officer who arrested M.W. when the following exchange occurred:

WITNESS: We basically, because he is a juvenile we have [to] call the parent. And the fact that the amount was 299.95 -DEFENSE: Objection, hearsay.
JUDGE: Establish how he knows.
STATE: Your Honor, he has personal knowledge.
JUDGE: Establish.

Thereafter, the State asked the appropriate set of questions to establish the value of the headphones at $299.95. On appeal, M.W. argues that this exchange shows the trial judge entering the fray to an impermissible degree in order to establish a key fact of the proceeding. Conceding that the defense at trial lodged no objection to the trial court's participation in this exchange, M.W. further argues fundamental error.

A trial court owes a duty of neutrality to the parties and may not favor one side or the other. J.L.D. v. State, 4 So.3d 24, 26 (Fla. 2d DCA 2009). In J.L.D., a juvenile was adjudicated delinquent for grand theft of a motor vehicle. During the restitution phase of the trial, the trial judge took over the questioning of witnesses in an effort to establish the amount of damages. The Second District concluded that the trial judge "departed from a position of neutrality in an attempt to elicit testimony in support of the restitution award." Id. at 26. The Second District, however, determined that the error was harmless because the trial court's conduct did not increase the restitution award. Id.

In Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999), the Second District determined that a trial judge, in a probation revocation proceeding, "committed fundamental error by sua sponte ordering Lyles' fingerprints for the purpose of identification and bifurcating the hearing to allow additional testimony." Id. at 843. The extent to which the trial judge intruded in the proceeding led the Second District to conclude that the defendant was deprived of an impartial judge. Id.; see also Sparks v. State, 740 So.2d 33, 36 (Fla. 1st DCA 1999).

M.W. cites to both J.L.D. and Lyles to establish that a trial judge's decision to enter the fray may rise to the level of fundamental error. M.W. supports these cases with several, other non-fundamental error cases that confirm the proposition that a trial court may not breach neutrality. See Seago v. State, 23 So.3d 1269, 1272 (Fla. 2d DCA 2010) (holding that it was improper for the trial judge to suggest to a witness that her testimony must be identical to that of her pretrial deposition); Evans v. State, 831 So.2d 808, 811 (Fla. 4th DCA 2002) (holding that the trial judge impermissibly suggested during cross-examination that the prosecution inquire into defendant's immigration status); Asbury v. State, 765 So.2d 965, 965 (Fla. 4th DCA 2000) (holding that, at a suppression hearing, the trial judge impermissibly prompted the State to present evidence and recall witnesses).

In the instant case, the trial judge did not enter the fray to an extent or a magnitude close to the intrusions of the trial judges in M.W.'s cited cases. In this instance, the trial judge merely told counsel for the State to lay a proper predicate for the evidence the State knew it was required to present. The trial judge neither asked a question of the witness nor told the State which question to ask of the witness. In other words, the trial judge did not cross a line and assume the role of the prosecutor. Here, the judge's conduct fell within a trial court's latitude to regulate the course of a trial in his courtroom. Hahn v. State, 58 So.2d 188, 191 (Fla. 1952) ; R.W. v. Dep't of Children & Families, 189 So.3d 978, 980 (Fla. 3d DCA 2016). It also fell within the right of a trial judge to "exercise reasonable control" over the interrogation of witnesses. See § 90.612(1), Fla. Stat. (2017).

Because we find that the trial judge did not sacrifice neutrality or impartiality during the trial below, we affirm.

Affirmed.


author: Wolf, J.

text:
    Suzanne M. BOLDEN, Appellant, v. Donzaleigh BOLDEN, Appellee.
    No. 1D18-0576
    District Court of Appeal of Florida, First District.
    January 10, 2019
    Corrine A. Bylund, Jacksonville, for Appellant.
    Otto D. Rafuse of Law Office of Otto D. Rafuse, LLC, Jacksonville, for Appellee.
   Wolf, J.

Appellant, the former wife, challenges a final judgment of dissolution of marriage. She raises four issues on appeal. We find the trial court erred in calculating the marital portion of retirement pay for the purposes of equitable distribution. We affirm as to the other issues without comment.

ENTITLEMENT TO RETIREMENT PAY

Appellant argues the trial court erred when it incorrectly calculated the amount of appellee's retirement pay appellant was entitled to receive as part of the equitable distribution of property. We agree.

To determine the amount of a retirement fund a party has accumulated during a marriage, a trial court must " 'creat[e] a fraction where the numerator is the amount of time the employee was married while participating in the plan, and the denominator is the total time the employee has in the plan.' The trial court then multiplies the plan's present value by the coverture fraction to calculate the total present value of the retirement fund which accrued during the marriage." Fritz v. Fritz , 161 So.3d 425, 428-29 (Fla. 2d DCA 2014) (quoting Trant v. Trant , 545 So.2d 428, 429 (Fla. 2d DCA 1989) ).

Here, the trial court's order is internally inconsistent in several regards, which requires reversal for a recalculation of the portion of the retirement fund that may be equitably distributed. First, the trial court found that appellee's retirement base pay was $4,378 per month and that appellee had 24 years and 7 months of service. In a separate paragraph, the trial court also found that appellee's retirement base pay was $4,078 per month and he had 24.5 years of service. The trial court utilized the $4,078 figure to calculate the amount of the equitable distribution. If this figure was incorrect, appellant has been shortchanged. These discrepancies need to be reconciled.

Additionally, the trial court deducted $817 per month from appellee's asserted retirement base pay of $4,078 per month because that is the portion of appellee's retirement appellee's first wife is entitled to receive. However, elsewhere in the order the trial court calculated appellee's first wife's portion of his retirement as $579.96 per month and found the $817 per month was child support appellee was required to pay for children from his previous marriage. Thus, it appears the trial court deducted the wrong amount from appellee's asserted retirement base pay, potentially skewing the calculations in appellee's favor. The trial court must also correct this discrepancy.

Lastly, the trial court erred in calculating the percentage of appellee's retirement pay that appellant was entitled to receive when it miscalculated the length of the parties' marriage. The trial court divided the total number of months of the marriage during which appellee was in the military by the total number of months appellee was in the military and then divided that number in half to ascertain the percentage of appellee's retirement that appellant was entitled to receive. Thus, the court calculated that appellee was married to appellant for 23 months of the 295 months he served in the Navy, and appellant was entitled to 3.9% of appellee's retirement pay.

Appellee's total term of military service constituted 295 months, from July 1987 when he enlisted, to February 2012 when he retired, as the trial court indicated. However, the trial court's findings that the parties were married in March 2009, and appellee retired in February 2012, indicate the parties were married for roughly 35 months during which appellee was accruing pension benefits, not the 23 months the court used in its calculations.

The trial court's finding that appellant is entitled to 3.9% of appellee's retirement pay is thus inaccurate. The calculation should have been 35 months divided by 295 months (divided by 2), which would have yielded an entitlement of roughly 5.9%-6.0% of appellee's retirement pay.

Appellant also contends that it was error for the trial court to deduct the portion of appellee's retirement going to appellee's first wife when it calculated appellee's monthly retirement pay. We disagree. Appellant is only entitled to the portion of appellee's retirement benefits that appellee accumulated during the parties' marriage. See Richardson v. Richardson , 900 So.2d 656, 660 (Fla. 2d DCA 2005). Since appellee's first wife was already entitled to a portion of appellee's retirement benefits via court order when the first marriage was dissolved, appellant cannot make a claim to the portion of the funds that were already allocated to appellee's first wife.

Based on the trial court's error related to equitable distribution, we reverse that part of the trial court's order dealing with the financial responsibilities of the parties and remand to the trial court to readdress these issues in accordance with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED .

Lewis and Rowe, JJ., concur.


author: PER CURIAM.

text:
    Roque Esteban CALAFELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2350
    District Court of Appeal of Florida, Third District.
    Opinion filed January 9, 2019.
    Roque Esteban Calafell, in proper person.
    Ashley Brooke Moody, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

We affirm the trial court's order, which denied appellant's motion seeking additional credit for time spent in custody in an Argentine jail awaiting extradition to Florida to face charges in the instant case. See § 921.161(1), Fla. Stat. (2006) (providing: "A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence"); Kronz v. State, 462 So.2d 450, 451 (Fla. 1985) (holding that section 921.161(1), Florida Statutes, requires a trial judge to give credit for time served in Florida county jails pending disposition of criminal charges, but does not require awarding such credit for time spent in jails in other jurisdictions; further noting that "[t]he trial judge does, however, have the inherent discretionary authority to award credit for time served in other jurisdictions while awaiting transfer to Florida. In this latter circumstance, the trial judge should consider the appropriateness of an award of credit for time served when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced") (emphasis added).

The order on appeal expressly provides that the trial court considered the facts and circumstances surrounding appellant's request, and exercised its discretion in denying same. We find no abuse of that discretion. Howey v. State, 813 So.2d 1030 (Fla. 3d DCA 2002) ; Gomez v. State, 984 So.2d 577 (Fla. 4th DCA 2008).

Affirmed.


author: Per Curiam.

text:
    Martin L. MCCRAY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-5015
    District Court of Appeal of Florida, First District.
    January 10, 2019 Rehearing Denied March 7, 2019
    Martin L. McCray, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Wolf, Lewis, and Wetherell, JJ., concur.


author: EVANDER, C.J.

text:
    Erin GRIFFITTS, Appellant, v. Robert GRIFFITTS, Appellee.
    Case No. 5D17-2509
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 11, 2019
    John N. Bogdanoff and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Appellant.
    Margaret E. Kozan, of Margaret E. Kozan, P.A., Winter Park, for Appellee.
   EVANDER, C.J.

Erin Griffitts ("Former Wife") appeals a final judgment dissolving her long-term marriage to Robert Griffitts ("Former Husband"). We find some of the issues that she raises on appeal to have merit.

The trial court awarded three years of durational alimony in the amount of $1800 per month. Former Wife correctly argues that the trial court abused its discretion in failing to award her permanent periodic alimony. The evidence reflected that this was a long-term marriage, in which Former Wife sacrificed a career to be the primary caregiver for the parties' four children. Even after imputation of income to Former Wife, the parties will have a significant income disparity.

There is a rebuttable presumption that permanent periodic alimony is appropriate after a long-term marriage. Motie v. Motie , 132 So.3d 1210, 1213 (Fla. 5th DCA 2014). Although the Legislature has authorized the use of durational alimony following a marriage of long duration, it is not to be awarded where permanent alimony is appropriate. See § 61.08(7), Fla. Stat. (2015) ("Durational alimony may be awarded when permanent periodic alimony is inappropriate."); see also Hedden v. Hedden , 240 So.3d 148, 151 (Fla. 5th DCA 2018).

In denying Former Wife's request for permanent periodic alimony, the trial court relied primarily on the grounds that it had awarded a greater amount of the parties' marital assets to Former Wife and that because of the "investment" made by Former Wife's parents, she would be able to remain in the marital home indefinitely without having to make mortgage payments. While these factors support the trial court's decision not to award a greater monthly alimony amount, they fall far short of justifying its decision to deny an award of permanent periodic alimony. Here, even assuming Former Wife earns the income imputed to her by the trial court, the evidence reflects that Former Wife will still have the need for periodic alimony beyond three years. On remand, the trial court shall enter an amended final judgment that classifies Former Husband's $1800/month alimony obligation as permanent periodic, not durational. See Hedden , 240 So.3d at 153 ; see also Stark v. Stark , 192 So.3d 632, 633 (Fla. 5th DCA 2016).

We also conclude that the trial court erred in failing to require Former Husband's alimony payments to be made through the state depository and by income deduction order, see §§ 61.08(10), 61.1301(1)(a), Fla. Stat. (2015), and by failing to make Former Husband's child support obligation retroactive from the date of Former Wife's request for an increase in temporary support (March 15, 2017) to the date of the final judgment. See Warner v. Warner , 692 So.2d 266, 269-70 (Fla. 5th DCA 1997). The final judgment is otherwise affirmed.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

ORFINGER and EISNAUGLE, JJ., concur.

      If and when Former Wife sells the marital home, Former Wife's parents would be paid the balance of their "investment" plus accrued interest-an amount that, at the time of trial, exceeded the property's fair market value.
      We further observe that although Former Wife's parents provided significant financial assistance to the parties throughout their marriage, the evidence would not support findings that: 1) Former Wife received continuing and ongoing, not sporadic gifts from her parents, and/or 2) the gifts would continue in the future. See Rogers v. Rogers , 824 So.2d 902, 903 (Fla. 3d DCA 2002) ("When determining a party's ability to pay and a party's need for attorney's fees and costs, the general rule is that the trial court may only consider the financial resources of the parties and not the financial assistance of family or friends. An exception to this general rule is that income can be imputed based on gifts if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future." (internal quotations and citations omitted) ).

      In setting the $1800 per month alimony amount, the trial court imputed $506.40 per week of gross income to Former Wife.


text:
    Andria PARDES, Petitioner, v. Michael PARDES, et al., Respondents.
    No. 3D18-2161
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    Weissman & Dervishi, P.A., and Jeffrey M. Weissman (Fort Lauderdale), for petitioner.
    Law Offices of Paul Morris, P.A., and Paul Morris ; Law Offices of Kornreich & Associates, and Gerald I. Kornreich and Amber Kornreich, for respondent Michael Pardes.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

In this dissolution of marriage case, Petitioner Andria Pardes seeks certiorari review of a trial court order denying her motion to disqualify the attorney of Respondent Michael Pardes. The factual findings in the trial court's order are supported by competent substantial evidence in the record, and the trial court's legal conclusions do not depart from the essential requirements of law. We therefore deny the petition.

Petition denied.


author: EMAS, C.J.

text:
    SAFEPOINT INSURANCE COMPANY, Appellant, v. Eduardo GOMEZ, et al., Appellees.
    No. 3D18-1366
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    Butler, Weihmuller, Katz, Craig, LLP, and Anthony J. Russo (Tampa) and Mihaela Cabulea (Tampa), for appellant.
    Greenspoon Marder, LLP, and John H. Pelzer (Fort Lauderdale); Geyer Fuxa Tyler, PLLC, and W. Wyndham Geyer, Jr. (Sunrise) and Jeremy F. Tyler (Sunrise), for appellees.
    Before EMAS, C.J., and LOGUE and LINDSEY, JJ.
   EMAS, C.J.

Appellant Safepoint Insurance Company appeals from the trial court's order compelling appraisal which, more accurately, compelled the parties to complete a presuit appraisal already begun pursuant to the terms of the insurance policy between Safepoint, the insurer, and Eduardo and Mayra Gomez, the insureds ("Gomez"). We affirm.

Gomez filed an insurance claim for a loss caused to the home by a toilet overflowing. Safepoint investigated the claim, acknowledged coverage, and sent two checks to Gomez in payment for the covered loss. Gomez disputed the amount of the covered loss and demanded additional payment.

In response, Safepoint sent a letter to Gomez invoking appraisal under the policy. Gomez agreed to the appraisal. The appraisal process commenced and, when the parties could not reach an agreement on the amount of loss, an umpire was selected by the appraisers. At the same time, the parties attempted to negotiate a settlement on the amount of the loss. These negotiations proved unsuccessful, and the appraisal process continued with the mutually-selected umpire scheduled to conduct an inspection of the Gomez home.

It was at this point that Safepoint sent correspondence to Gomez: (1) requesting Gomez produce sworn proofs of loss; (2) purporting to schedule examinations under oath of Gomez and other individuals regarding 25 areas of inquiry; and (3) requesting Gomez to produce 24 different categories of documentation (all characterized by Safepoint as part of Gomez's post-loss obligations under the policy). When Gomez did not comply with these requests, Safepoint terminated the appraisal process and denied the claim upon an assertion that Gomez failed to comply with post-loss obligations.

Gomez subsequently filed the instant action for breach of contract, and moved to compel Safepoint to complete the appraisal process. Following a hearing, the trial court, over Safepoint's objection, granted the motion and entered the order on appeal compelling the parties to complete the appraisal process.

We affirm the trial court's order. Safepoint investigated the claim, acknowledged coverage, and sent payment to Gomez. When Gomez contested Safepoint's determination of the amount of the loss, Safepoint requested (and Gomez agreed to) appraisal. That appraisal process had already commenced and was nearing completion when Safepoint demanded Gomez comply with certain post-loss obligations. There is nothing in the record to indicate that the appraisers or the umpire lacked the necessary information or documentation to appraise the amount of the loss. Indeed, in its letter invoking appraisal, Safepoint advised Gomez: "If there is any additional documentation which has not been previously presented to the carrier, pursuant to the terms of your insurance policy, it must be submitted prior to commencement of appraisal." (Emphasis added.)

"Appraisal exists for a limited purpose-the determination of 'the amount of loss.' " Citizens Prop. Ins. Corp. v. Mango Hill #6 Condo. Ass'n, Inc., 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). By invoking appraisal pursuant to the terms of the insurance policy, Safepoint waived the requirement of compliance with post-loss obligations as a condition precedent to that appraisal. See Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding "an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused") (emphasis added).

Affirmed.

      The appraisal provision in the insurance policy provided in pertinent part:
      If you and we fail to agree on the amount of loss, either may request an appraisal of the loss. However, both parties must agree to the appraisal. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other.... If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of the loss.

      We note that our holding is strictly limited to a determination that, under the circumstances presented, Gomez was not required to comply with post-loss obligations as a condition precedent to proceeding with appraisal invoked by Safepoint.


text:
    Lesley NICOLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2584
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    Rier Jordan, P.A., and Andrew F. Rier, Miami, and Jonathan E. Jordan, for appellant.
    Ashley Brooke Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SALTER, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Ferrell v. State, 29 So.3d 959, 976 (Fla. 2010) ("Trial counsel cannot be deemed ineffective for failing to raise a meritless argument.")


text:
    Javier FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1965
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    The Law Office of Adam K. Goodman, PLLC, and Adam K. Goodman, for appellant.
    Ashley Brooke Moody, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Bouters v. State, 659 So.2d 235 (Fla. 1995) (holding that the "substantial emotional distress" element of stalking requires application of an objective, reasonable-person standard); Pallas v. State, 636 So.2d 1358 (Fla. 3d DCA 1994) ; T.B. v. State, 990 So.2d 651 (Fla. 4th DCA 2008) ; D.L.D. v. State, 815 So.2d 746 (Fla. 5th DCA 2002) ; McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001). See also McKinnon v. State, 712 So.2d 1259, 1260-61 (Fla. 1st DCA 1998) (holding that the "harassment" element of crime of stalking requires State to prove defendant's acts caused substantial emotional distress, not that defendant intended to cause substantial emotional distress); Seese v. State, 955 So.2d 1145 (Fla. 4th DCA 2007) (noting distinction between "legal malice" (wrongfully, intentionally, without legal justification or excuse) and "actual malice" (ill will, hatred, spite, or evil intent), and holding that section 784.08(4) requires proof of legal malice); Fla. Std. J. Inst. 8.7(b) (Crim.) (providing: " 'Maliciously' means wrongfully, intentionally, and without legal justification or excuse").


text:
    Johnathan PROENZA, Appellant, v. SUNTRUST BANKS, N.A., Appellee.
    No. 3D18-687
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    Law Offices of Joseph R. Dawson, P.A., and Joseph R. Dawson (Ft. Lauderdale), for appellant.
    Klein Glasser Park & Lowe, P.L., and Gregory Glasser, Joseph H. Lowe, and Andrew M. Feldman, Miami, for appellee.
    Before LINDSEY, J., and LAGOA and LUCK, Associate Judges.
   PER CURIAM.

Affirmed. See B. C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981) (There exists a long standing policy of liberality toward vacating of defaults and that a showing of gross abuse of a trial court's discretion is necessary on appeal to justify reversal of the lower court's ruling on a motion to vacate a default.); M.W. v. SPCP Group V, LLC, 163 So.3d 518 (Fla. 3d DCA 2015) ("Indeed, the Florida Supreme Court has emphasized that if there is any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.") (citing N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852 (Fla. 1962) (reversing a district court's holding that a mere abuse of the trial judge's discretion is a sufficient basis for reversal of his ruling on the motion to vacate) ); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83 (Fla. 3d DCA 1987) (reversing trial court's order denying appellant corporation's motion to vacate a default, because appellant's delay in answering appellee retailer's complaint constituted excusable neglect, and appellant acted with due diligence after discovering the default.)


text:
    Sean Jessie FLEMON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4975
    District Court of Appeal of Florida, First District.
    January 16, 2019
    Sean Jessie Flemon, pro se, Petitioner.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Willis Alphonso REDDICK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3945
    District Court of Appeal of Florida, First District.
    January 16, 2019
    Willis Alphonso Reddick, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Jeffrey F. NYLAND, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-1976
    District Court of Appeal of Florida, First District.
    January 16, 2019
    Jeffrey F. Nyland, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Kyle FALES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4857
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Andy Thomas, Public Defender, and Joanna Aurica Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

A jury found Appellant guilty of multiple offenses arising out of a physical altercation between Appellant and his girlfriend's son. Appellant filed a motion for new trial arguing that the trial court erred in denying his motions for judgment of acquittal and that the jury's verdict was contrary to the law and the weight of the evidence. The trial court denied the motion, stating: "It was a good clean trial. I didn't see any error in the trial."

On appeal, Appellant argues that the trial court did not use the correct standard when ruling on his motion for new trial. We agree. "No error in the trial" is not the correct standard to use when ruling on a motion for new trial because the motion requires the trial court to "evaluate whether a jury's verdict is contrary to the weight of the evidence and to act, in effect, as an additional juror." Jordan v. State , 244 So.3d 1178, 1179 (Fla. 1st DCA 2018) ; see also Tibbs v. State , 397 So.2d 1120, 1123 (Fla. 1981) (explaining that, when ruling on a motion for new trial, the trial court is required to evaluate the weight of the evidence and determine whether "a greater amount of credible evidence supports one side of an issue or cause than the other").

This conclusion is not undercut by our recent decisions in Bell v. State , 248 So.3d 208 (Fla. 1st DCA 2018), and Moreland v. State , 253 So.3d 1245 (Fla. 1st DCA 2018), because those cases are distinguishable. There was no indication that the trial courts in those cases used the wrong standard when ruling on the defendants' motions for new trial because the courts essentially denied the motions without explanation. See Bell , 248 So.3d at 210 ("Bell raised both sufficiency-of-the-evidence and weight-of-the-evidence arguments in his new-trial motions. While the judges' oral rulings only addressed the standard for the sufficiency arguments, it does not follow that the judges applied the sufficiency standard to the weight-of-the-evidence arguments."); Moreland , 253 So.3d at 1247 (explaining that the trial court's ruling on the motion for new trial included two independent clauses that directly corresponded with the motion's arguments and noting that the clause addressing the arguments that the verdict was contrary to the law and the weight of the evidence "simply denied the ... motion without any comment"). Here, by contrast, the trial court explained why it denied Appellant's motion for new trial and that explanation cannot be squared with the standard that is to be applied when ruling on a motion for new trial. Accord Baker v. State , 2018 WL 6803700 (Fla. 1st DCA Dec. 27, 2018) (distinguishing Bell and Moreland because the trial court's "explicit reference to its rulings during trial" indicated that the court did not use the correct standard when ruling on the defendant's motion for new trial).

Accordingly, we reverse and remand for reconsideration of the motion for new trial under the correct standard.

REVERSED and REMANDED for further proceedings.

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


author: LaROSE, Chief Judge.

text:
    In the INTEREST OF T.S.(1), T.S.(2), and T.S.(3), Children.
    I.U., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-2192
    District Court of Appeal of Florida, Second District.
    Opinion filed January 18, 2019
    Kellye I. Hayashi of Hayashi Legal PLLC, Tampa, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
    Thomasina Moore and Laura J. Lee, Tallahassee; and Margaret D. Mathews of Akerman, LLP, Tampa, for Appellee Guardian ad Litem Program.
   LaROSE, Chief Judge.

I.U. (the Mother) appeals an "Order of Dependency Adjudication and Disposition with Findings as to the Mother, [I.U.], and Order Accepting Case Plan, and Termination of Protective Supervision and Jurisdiction." The trial court entered the order after a dependency disposition hearing. Among other things, the order terminated the trial court's jurisdiction and the Department of Children and Families' protective supervision.

The Mother asserts that she received no notice for the hearing; thus, she contends, the trial court erred by terminating protective supervision and jurisdiction. The Mother relies on K.M. v. Department of Children & Families, 201 So.3d 1242 (Fla. 2d DCA 2016). There we reversed the trial court's order terminating protective supervision and the court's jurisdiction after a judicial review hearing because the parent had received no notice that the Department's motion would be heard and ruled upon at that hearing. Id. at 1242.

The Mother also asserts that the trial court lacked statutory authority to terminate its jurisdiction under the facts of the case. The Department and the Guardian ad Litem Program properly concede error on this point. They have expressly declined to address the Mother's first argument about notice. Accordingly, we reverse the order to the extent that it terminates supervision and jurisdiction, and we remand for further proceedings. In all other respects, we affirm the order.

Affirmed in part, reversed in part, and remanded.

VILLANTI and BADALAMENTI, JJ., Concur.


text:
    Quinnteris D. BUSSIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1803
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting sentence, but remand for the trial court to enter a corrected written order specifying that the Appellant only admitted violating the conditions of probation as alleged in the affidavit of violation of probation. See Altman v. State , 252 So.3d 426, 426 (Fla. 1st DCA 2018) (citing to Margolis v. State , 148 So.3d 532, 532 (Fla. 2d DCA 2014) (affirming revocation of probation and resulting sentence, but remanding for entry of corrected revocation order of listing only the conditions of probation to which the defendant admitted); Narvaez v. State , 674 So.2d 868, 869 (Fla. 2d DCA 1996) (noting that written order of revocation must comport with oral pronouncement, and remanding with instructions to strike from the order violations neither admitted to nor found by the court). Appellant need not be present for this correction.

AFFIRMED , but REMANDED for correction.

Wolf, Lewis, and Wetherell, JJ., concur.


text:
    Robert SAGER, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-5454
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Robert Sager, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Demetrius Dwayne BROOKINS, Petitioner, v. Mark S. INCH, Secretary of the Florida Department of Corrections, Respondent.
    No. 1D18-1170
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Demetrius Dwayne Brookins, pro se, Petitioner.
    Ashley B. Moody, Attorney General, and Leslie A. Healer, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


text:
    Steve T. ALLEN, Petitioner, v. Mark S. INCH, Secretary Florida Department of Corrections, and Melinda N. Coonrod, Commissioner, Florida Commission on Offender Review, Respondents.
    No. 1D18-0116
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Steve T. Allen, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Eric Salvatore Giunta, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondents.
   Per Curiam.

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

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


author: LAGOA, Associate Judge.

text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Esperanza GARCIA, Appellee.
    No. 3D18-742
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    White & Case, and Raoul G. Cantero and Ryan A. Ulloa ; Brett R. Frankel and Jonathan Sabghir (Deerfield Beach), for appellant.
    Mintz Truppman, P.A., and Timothy H. Crutchfield ; Marin, Eljaiek, Lopez & Martinez, P.L., and Anthony M. Lopez and David F. Garcia, for appellee.
    Before LOGUE and SCALES, JJ., and LAGOA, Associate Judge.
   LAGOA, Associate Judge.

People's Trust Insurance Company ("People's Trust") appeals from a non-final order denying its motion to compel appraisal. Because People's Trust did not wholly deny coverage, the issue of causation is an amount-of-loss question subject to appraisal. We therefore conclude that the trial court erred by not compelling appraisal, and we reverse and remand with directions to the trial court to compel appraisal.

I. FACTUAL AND PROCEDURAL HISTORY

Garcia owns property located in Miami-Dade County (the "property"). The property was insured under a homeowner's insurance policy issued by People's Trust that included a Preferred Contractor Endorsement (the "endorsement"). Under the endorsement, Garcia agreed that in the event of a covered loss, People's Trust may, at its option, repair the property. The endorsement's appraisal provision further stated that where People's Trust elected to repair the property, "[i]f [Garcia] and [People's Trust] fail to agree on the amount of loss, which includes the scope of repairs, either may demand an appraisal as to the amount of loss and the scope of repairs." Under the appraisal provision, once the appraisers set the amount of loss and scope of repairs, "[t]he scope of repairs shall establish the work to be performed and completed by Rapid Response Team, LLC™."

The property suffered water damage as a result of a roof leak on October 1, 2016, and Garcia reported the claim to People's Trust. In its December 30, 2016, letter, People's Trust informed Garcia as follows:

THERE IS COVERAGE UNDER THE POLICY FOR THIS LOSS AS A WHOLE; HOWEVER, THE SCOPE OF DAMAGES COVERED BY YOUR POLICY INCLUDES ONLY THE INTERIOR DAMAGES BUT DOES NOT INCLUDE YOUR ROOF
We have completed our investigation of your claim, and based upon what we were provided and what you reported, and additionally, based upon our claim investigation, there is generally coverage for your loss as a whole. However, and more specifically, our investigation revealed that the roof leak you reported stemmed from age-related wear and tear and deterioration; general mechanical breakdown or latent defect; and/or faulty, inadequate or defective maintenance of the roofing system-none of which are covered causes of loss. Therefore, in our opinion, the scope of covered damages would not include your roofing system because those damages were caused by uncovered or excluded causes, but would provide coverage for resulting ensuing damages to the interior of your home. Therefore, we believe our obligation is to repair only those damages to the interior of the home. If you are not in agreement with that assessment, the question of whether the scope of repairs should include the roof, can be resolved in appraisal ....

The December 30 letter stated that People's Trust was exercising its election to repair the property and that People's Trust would "repair your property to its pre-loss condition by making repairs to all covered damages, once there is a determination of what those damages are, either by agreement or by submitting the matter to an appraisal panel as set forth in the policy."

In a subsequent letter dated February 1, 2017, People's Trust acknowledged receipt of Garcia's Sworn Proof of Loss and stated that "[b]ased upon our ... inspection of the damages, [People's Trust] disputes the scope of loss and/or the amount of damages identified in your Sworn Proof of Loss. Specifically, your Sworn Proof of Loss is predicated upon a repair estimate which includes repairs that fall outside the scope of your loss." People's Trust demanded appraisal "of the amount of loss and scope of repairs in accordance with" the Endorsement.

On March 16, 2017, Garcia filed a complaint for breach of contract (Count I) and declaratory judgment (Count II) against People's Trust. On November 28, 2017, People's Trust filed a motion to dismiss Count II of the complaint and a motion to compel appraisal and stay the current lawsuit. The trial court sua sponte set the motion for a January 19, 2018, hearing. Garcia's counsel did not appear at this hearing. After the hearing, the trial court entered an order denying People's Trust's motion to dismiss Count II, but granting its motion to compel appraisal and staying the action. Garcia moved for reconsideration, arguing that her counsel's failure to appear at the hearing was due to a clerical error. On March 14, 2018, the trial court granted Garcia's motion for reconsideration, vacated its January 19 order, and denied People's Trust motion to compel appraisal. The trial court's order states that "[t]he Court finds the issue is one of coverage, not amount-of-loss."

People's Trust appeals from the March 14 non-final order denying its motion to compel appraisal.

II. STANDARD OF REVIEW

In reviewing a trial court's order denying a motion to compel appraisal, "factual findings are reviewed for competent, substantial evidence, and the application of the law to the facts is reviewed de novo." Fla. Ins. Guar. Ass'n v. Waters, 157 So.3d 437, 439-40 (Fla. 2d DCA 2015) ; accord Fla. Ins. Guar. Ass'n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009) (applying the same standard of review for a denial of a motion to compel arbitration to a motion to compel appraisal and holding that a trial court's factual findings are reviewed under a competent, substantial evidence standard and its application of the law to those findings is reviewed de novo).

Where the facts are undisputed, a de novo standard of review applies. See Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 33-34 (Fla. 2d DCA 2005) (stating that a trial court's ruling on a motion to compel arbitration when the facts are undisputed is reviewed de novo); see also People's Trust Ins. Co. v. Tracey, 251 So.3d 931, 933 (Fla. 4th DCA 2018) (applying a de novo standard of review to trial court's order denying insurer's motion to compel appraisal "as the issue is a legal one").

III. ANALYSIS

On appeal, People's Trust argues that the trial court erred in refusing to compel appraisal. We agree.

It is undisputed that the issue of coverage is one for the court, State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1287 (Fla. 1996) (" 'A challenge of coverage is exclusively a judicial question ....' " (emphasis in original) (quoting Midwest Mut. Ins. Co. v. Santiesteban, 287 So. 2d 665, 667 (Fla. 1974) ) ); Fla. Ins. Guar. Ass'n, Inc. v. Olympus Ass'n, Inc., 34 So.3d 791, 794 (Fla. 4th DCA 2010) ("Issues relating to coverage challenges are questions exclusively for the judiciary."), while the issue of the amount of loss is one for appraisers. As such,

The division of responsibility between the appraisers and court is therefore clear. The appraisers determine the amount of the loss, which includes calculating the cost of repair or replacement of property damaged, and ascertaining how much of the damage was caused by a covered peril .... [and] [t]he court decides whether the policy provides coverage for the peril which inflicted the damage, and for the particular property at issue; in other words, all coverage matters.

Citizens Prop. Ins. Corp. v. River Manor Condo. Ass'n, Inc., 125 So.3d 846, 854 (Fla. 4th DCA 2013) (citations omitted); see also State Farm Fla. Ins. Co. v. Cardelles, 159 So.3d 239, 241 (Fla. 3d DCA 2015) (" 'A challenge to coverage is, as the Florida Supreme Court has confirmed, a matter for determination by a court; whereas, a challenge to the amount of a covered loss is for determination by an appraisal panel.' " (quoting Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass'n 12 Inc., 54 So.3d 578, 581 (Fla. 3d DCA 2011) ) ).

The issue of causation, however, may be either one of coverage for the court or one of the amount of loss for the appraisers. In Johnson v. Nationwide Mutual Insurance Co., 828 So.2d 1021 (Fla. 2002), the Florida Supreme Court held that where an insurer has not wholly denied coverage, causation is an amount of loss issue for appraisal. In Johnson, the Supreme Court resolved the conflict between this Court's decision in Gonzalez v. State Farm Fire & Insurance Co., 805 So.2d 814 (Fla. 3d DCA 2000), and the Second District's decision in Nationwide Mutual Insurance Co. v. Johnson, 774 So.2d 779 (Fla. 2d DCA 2000).

In Gonzalez, the homeowners claimed that cracks in the walls and tiles of their home were caused by blasting, for which the relevant insurance policy provided coverage. 828 So.2d at 1023. Their insurer, State Farm, denied coverage, asserting that the cracks were caused by settlement of the foundation, which fell within a policy exclusion. Id. The trial court ruled that the " '[a]ppraiser[s] should give an opinion as to causation and damages.' " Id. at 1024 (quoting Gonzalez, 805 So.2d at 815 ). This Court reversed, concluding "that the appraisers impermissibly decided whether the entire claim was within the coverage of the insurance policy." 805 So.2d at 815. In reaching its conclusion, this Court reasoned that "[s]ince State Farm's position is that this entire loss falls within a policy exclusion, this defense is a judicial question and not a question for the appraisers." 805 So.2d at 816.

In Nationwide Mutual, the Johnsons reported damage to their home to their insurer, Nationwide, contending that the loss was caused by a sinkhole, a covered peril. Johnson, 828 So.2d at 1023. Nationwide determined that the loss was caused by earth movement, which was not a covered cause of loss. Id. The trial court concluded that it would determine the issue of whether there was a covered loss and then have the appraisal panel determine the amount of the loss. The Second District reversed, holding that " 'causation is an amount of loss issue for the appraisal panel.' " Id. (quoting Nationwide Mut., 774 So.2d at 781 ).

In resolving the conflict between Gonzalez and Nationwide Insurance, the Supreme Court adopted the analysis in Gonzalez:

Very simply, the Licea court was saying that when the insurer admits that there is a covered loss, but there is a disagreement on the amount of loss, it is for the appraisers to arrive at the amount to be paid. In that circumstance, the appraisers are to inspect the property and sort out how much is to be paid on account of a covered peril. In doing so, they are to exclude payment for "a cause not covered, such as normal wear and tear, dry rot, or various other designated, excluded causes."

828 So.2d at 1025 (emphasis in original) (citations omitted) (quoting Gonzalez, 805 So.2d at 816 ). The Supreme Court further explained:

Therefore, the issue in Johnson and Gonzalez was not appraising the amount of a loss which the insurer admitted was covered. Rather, the issue was one of whether the policies covered the losses for the claims that were made. [T]hese coverage issues were to be judicially determined by the court and were not subject to a determination by appraisers. Therefore, in Johnson, the determination as to whether the loss was covered by a sinkhole or earth movement is an issue of coverage for the whole loss and is an issue for judicial determination by a court.

Id. at 1025-26. The Supreme Court quashed Johnson and approved Gonzalez, holding that "causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed." Id. at 1022.

This Court has applied the rule set forth in Johnson where the insurer acknowledges coverage for the loss as whole yet the parties dispute causation for part of the damage. In Kendall Lakes Townhomes Developers, Inc. v. Agricultural Excess and Surplus Lines Insurance Co., 916 So.2d 12 (Fla. 3d DCA 2005), the insured was the owner of a townhouse complex insured under a windstorm policy issued by the insurer. Id. at 13. The insured filed a claim with the insurer, alleging that as a result of Hurricane Irene, several units "sustained interior damage due to water seepage," and that tiles were blown off the roof and cracked or loosened. Id. After an inspection, the insurer determined that the interior damage was not covered by the policy because there was no break in the covered structure, and that with regard to the tiles that had blown off the roof, although they were covered under the policy, the cost to replace them was less than the policy's deductible. As a result, the insurer denied the claim. Id. at 14. "The parties ... [therefore] disagreed as to whether windstorm caused all of the claimed damage or just part of it ...." Id.

The insured then demanded appraisal. The insured's appraiser estimated a covered loss of $716,000 while the insurer's appraiser estimated damage in an amount of less than $1,000, below the policy's deductible. Id. The trial court confirmed the umpire's report, which included determinations as to causation. Id. On appeal, the insured argued, among other things, that pursuant to Johnson, 828 So.2d at 1021, "causation of the damage is a coverage issue reserved for the trial court, not the appraisal panel." Id. at 15.

This Court disagreed, reasoning that:

In the case at hand, the insurance carrier agrees that there is a covered loss, but disagrees as to the amount of loss. Therefore, based on Johnson, although there is a large discrepancy between the insured's and insurance carrier's estimate of the loss, because the insurer has not wholly denied that there is a covered loss, causation is "an amount-of-loss question for the appraisal panel," not a coverage question that can only be decided by the trial court. Accordingly, we agree with the insurance carrier that pursuant to Johnson, it is permissible for an appraisal panel to decide causation issues when causation is not a coverage question, but rather an amount-of-loss question.

Id. at 16.

Similarly here, People's Trust admits that there is coverage for water damage to Garcia's property as a result of a roof leak. The damage to the property include both damage to the interior of the property and damage to the roofing system. Whether the damage to the roofing system was caused by wear and tear and deterioration, general mechanical breakdown or latent defect, and/or faulty, inadequate or defective maintenance of the roofing system, all of which People's Trust claims are excluded causes under the policy, is an amount of loss question for the appraisers. As in Kendall Lakes, People's Trust has not wholly denied coverage, and thus "causation is 'an amount-of-loss question for the appraisal panel,' not a coverage question that can only be decided by the trial court." 916 So.2d at 16.

In response, Garcia argues that because she suffered two losses-the original loss when the roof was damaged and a subsequent ensuing loss consisting of water damage to the interior of her home -the rule set forth in Johnson and Gonzalez does not apply here. Specifically, Garcia argues that the rule that "causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed,"

Johnson, 828 So.2d at 1022, does not apply where there are multiple separate losses and the insurer acknowledges coverage for only one. We are not convinced by Garcia's argument for two reasons.

First, Garcia's argument that she suffered two losses relies upon a discussion of "ensuing loss" set forth in three cases. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 167 (Fla. 2003) ("[A]n ensuing loss is one that occurs subsequent to the excluded loss; if original loss was also considered an ensuing loss, the exception would swallow the exclusion." (citing Vt. Elec. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F.Supp.2d 441, 445 (D. Vt. 1999) ); Liberty Mut. Fire Ins. Co. v. Martinez, 157 So.3d 486, 488 (Fla. 5th DCA 2015) ("An ensuing loss is a loss that occurs separate from but as a result of an excluded loss."); Peek v. Am. Integrity Ins. Co. of Fla., 181 So.3d 508, 512 (Fla. 2d DCA 2015) ("An ensuing loss follows as a consequence of an excluded loss, and the crux of the ensuing loss provision is that there must be a covered cause of loss that ensues from the excluded cause of loss."). Notably, none of these cases are factually analogous to the case at hand. Each addressed whether an ensuing loss exception to a policy exclusion applied, see Swire Pac. Holdings, 845 So.2d at 161 (holding that insured's expenses in effectuating repairs were not excepted from design defect policy exclusion as an ensuing loss); Martinez, 157 So.3d at 486 (holding that damage to insured's pool deck, rock garden, and waterfall was not an ensuing loss); Peek, 181 So.3d at 508 (holding that where Chinese drywall was an excluded peril, sulfuric gasses emanating from the drywall that caused odor and corrosion represented a "single discrete loss from a single discrete injury" and thus were not ensuing losses), and none considered an "ensuing loss" within the context of an appraisal provision.

Second, the Fourth District has held that the issue of causation is to be determined by appraisal in a factually analogous scenario where the insurer agreed to repair ensuing damages to the interior of a home. In People's Trust Insurance Co. v. Tracey, 251 So.3d 931 (Fla. 4th DCA 2018), the insureds filed a claim with their insurer for damage caused by wind from a tornado, specifically, damage to the roof and interior of their home. Id. at 932. In a letter virtually identical to the one in the instant case, the insurer admitted that "there is generally coverage for your loss as a whole," however, stated:

in our opinion, the scope of covered damages would not include your roofing system because those damages were caused by uncovered or excluded causes, but would provide coverage for resulting ensuing damages to the interior of your home. Therefore, we believe our obligation is to repair only those damages to the interior of the home. If you are not in agreement with that assessment, the question of whether the scope of repairs should include the roof, can be resolved in appraisal ....

Id. at 932. The insureds did not agree with the insurer's conclusion and submitted a proof of loss. The insurer then "demanded an appraisal to determine whether the roof damage was caused by wind (a covered cause) or wear and tear (an uncovered cause)." Id. After the insureds filed suit, the insurer moved to compel appraisal. The trial court determined that the matter could not be submitted to appraisal "because the insurer made a 'predetermination' that the roof was not covered." Id.

Relying on Johnson and Kendall Lakes, the Fourth District found that because "the insurer admitted coverage for the interior damage, but declined to repair the roof[,] ... the insurer did not 'wholly deny'

coverage," and reversed and remanded for the trial court to compel an appraisal. Id. at 933-34. In reaching its conclusion, the court noted that "[t]here is only one claim, and it includes both the roof and the interior of the same home." Id. at 933. We find our sister court's analysis in Tracey persuasive and likewise conclude the issue is one for the appraisal process.

IV. CONCLUSION

Because People's Trust has not wholly denied coverage, causation is an amount-of-loss question for the appraisal panel, not a coverage question that can only be decided by a court. Accordingly, we conclude that the trial court erred in denying People's Trust's motion to compel appraisal and reverse and remand with directions to compel an appraisal.

Reversed and remanded with directions.

      Specifically, the endorsement provided: " 'You' agree that in the event of a covered loss to 'your' dwelling or other structures on the 'residence premises,' ... 'we' at our option may select Rapid Response Team, LLC™ to repair 'your' damaged property as provided by the policy and its endorsements."

      The trial court subsequently stayed the case pending appeal.

      As a threshold issue, Garcia contends that People's Trust has failed to present a sufficient record for our review and that we should affirm on this basis alone. Garcia, however, does not explain-nor can we discern-to what extent the trial court's determination was based upon findings of fact. Under these circumstances, the trial court considered a pure legal question-whether the dispute over the cause of water damage to Garcia's property was a question of coverage or a question of the amount of loss-and the absence of a transcript of the March 14 hearing is not fatal to our review. See Rollet v. de Bizemont, 159 So.3d 351, 357 (Fla. 3d DCA 2015) (explaining that "[w]here the hearing at issue is non-evidentiary and consists only of legal argument, the failure to provide a transcript is not necessarily fatal to appellate review" and holding that "[a]s there were no disputed issues of fact for the trial court to resolve, and only legal argument to be presented at the hearing, our de novo review is unimpeded by the absence of the hearing transcript"); Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344, 348 (Fla. 4th DCA 1992) ("The rule of Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), applies only where the trial court's decision turns on its resolution of contested facts.").

      The Court ultimately reversed the final judgment confirming the award because the umpire exceeded the authority granted to it by the trial court. 916 So.2d at 16.

      People's Trust states in its December 30 letter that the damage to the interior of Garcia's property is covered as "resulting ensuing damage[ ]."


author: LOGUE, J.

text:
    Anna M. CHARRY, Appellant, v. In re: Mariana TORRES v. Alexis Gonzalez, Appellee.
    No. 3D18-1014
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Todd Ostegard, for appellant.
    Kula & Associates, P.A., and Elliot B. Kula and Ashley P. Singrossi, for appellee Mariana Torres.
    Before LOGUE and SCALES, JJ., and LUCK, Associate Judge.
   LOGUE, J.

Appellant seeks review of the trial court's order denying her motion to intervene following a hearing. We review the denial of the motion to intervene for an abuse of discretion. See Abujasen v. Dreke, 118 So.3d 235, 235 n.1 (Fla. 3d DCA 2013) (citing Barnhill v. Fla. Microsoft Anti-Trust Litig., 905 So.2d 195, 199 (Fla. 3d DCA 2005) ("The standard of review of an order on a motion to intervene is abuse of discretion.") ). Although a hearing was held on Appellant's motion, there is no transcript of the hearing. Under the circumstances of this case, in the absence of a transcript, we cannot reasonably conclude that the trial court abused its discretion, and therefore, we affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ; Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140, 1141-42 (Fla. 3d DCA 2008).

Affirmed.


text:
    Luis RODRIGUEZ, Appellant, v. Esteban Leslie BROWN, Appellee.
    No. 3D18-288
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019.
    Crabtree & Auslander, Charles M. Auslander, John G. Crabtree and Brian C. Tackenberg ; Rodriguez Law Firm, PLLC and Jorge Rodriguez (New York, NY), for appellant.
    Kula & Associates, P.A., Elliot B. Kula, W. Aaron Daniel and William D. Mueller, for appellee.
    Before EMAS, C.J., and SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Concluding that the trial court did not grossly abuse its discretion when it vacated the default and default final judgment, we affirm. See Kathleen G. Kozinski, P.A. v. Phillips, 126 So.3d 1264, 1267 (Fla. 4th DCA 2013) (citation omitted) ("An order granting a motion to vacate a default final judgment is reviewed under a 'gross abuse of discretion' standard.").


text:
    C.Y., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1364
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SCALES, and LINDSEY, JJ., and LUCK, Associate Judge.
   PER CURIAM.

C.Y., a juvenile, appeals from the trial court's adjudicatory order, which found him delinquent of battery and of the lesser-included offense of misdemeanor assault. The order lists the assault count as a first-degree misdemeanor. C.Y. argues that the order is incorrect because assault is a second degree misdemeanor. The State agrees. See § 784.011(2), Fla. Stat. (2018) ("Whoever commits an assault shall be guilty of a misdemeanor of the second degree ...."). Because simple assault is a second-degree misdemeanor and not a first-degree misdemeanor, we affirm but remand for correction of the adjudicatory order. See Malone v. State, 225 So.3d 335 (Fla. 3d DCA 2017) (affirming but remanding solely to correct the degree of the offense); Carrillo v. State, 865 So.2d 528 (Fla. 3d DCA 2003) (same).

Affirmed with instructions.


text:
    J.S., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1103
    District Court of Appeal of Florida, Third District.
    Opinion filed January 23, 2019
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. I.B. v. State, 239 So.3d 773, 774 (Fla. 3d DCA 2018) ("We review de novo the trial court's denial of a judgment of dismissal, ... and consider the evidence presented, and the reasonable inferences therefrom, in a light most favorable to the State, to determine whether substantial competent evidence supports the trial court's determinations.") (citation omitted) ; R.I. v. State, 561 So.2d 26, 26 (Fla. 3d DCA 1990) ("We find that the trial court was in a better position to evaluate the conduct and credibility of the witnesses, and that the record demonstrates competent substantial evidence to support the adjudication of delinquency.").