author: Bilbrey, J. Kelsey, J., dissenting.

text:
    Edward A. CRAPO, as Alachua County Property Appraiser, and John Power, as Alachua County Tax Collector, Appellants, v. GAINESVILLE AREA CHAMBER OF COMMERCE, INC., a Florida Not for Profit Corporation, Appellee.
    No. 1D17-0452
    District Court of Appeal of Florida, First District.
    May 2, 2019 Rehearing Denied June 17, 2019
    John C. Dent, Jr., and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellant Edward A. Crapo, and Robert C. Swain, Senior Assistant County Attorney, Gainesville, for Appellant John Power.
    Paul A. Donnelly and Jung Yoon of Donnelly & Gross, Gainesville, for Appellee.
   Bilbrey, J.

The Property Appraiser and Tax Collector for Alachua County (hereafter, Alachua County) challenge a final summary judgment holding real property owned by the Gainesville Area Chamber of Commerce to be exempt from ad valorem taxation. We affirm.

Prior to 2014, the Gainesville Area Chamber of Commerce was granted an exemption from ad valorem taxation. However, in 2014, the Chamber was denied that exemption. It challenged that denial before the Value Adjustment Board, but the Board denied relief. The Chamber then sought relief in the circuit court. Finding the activities of the Chamber to serve a "charitable purpose," the circuit court held the Chamber was entitled to an exemption. Alachua County now challenges that holding.

Unless expressly exempted, all real property in the state is subject to taxation. See § 196.001(1), Fla. Stat. (2014). However, Article VII, section 3(a), of the Florida Constitution provides:

Such portions of property as are used predominantly for educational, literary, scientific, religious or charitable purposes may be exempted by general law from taxation.

(Emphasis added).

The term "charitable purposes" is not defined in the Constitution. But the term is defined in section 196.012(7), Florida Statutes (2014), as providing

a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service. It is not necessary that public funds be allocated for such function or service but only that any such allocation would be legal.

This statute is clear and unambiguous, and therefore, we do not engage in any statutory construction. See State v. Jett , 626 So.2d 691, 693 (Fla. 1993) ("It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language."). The question presented in this appeal is therefore a simple one: do the activities of the Gainesville Chamber of Commerce qualify as "charitable purposes" as the Florida Legislature has defined that term in section 196.012(7) ?

Alachua County has not challenged the findings of fact made by the circuit court that

[t]he Chamber is the delegated local provider of economic development and related functions and services which grow the tax base, create jobs and promote the prosperity and general welfare of the Gainesville-Alachua County are. It was established in Alachua County for the express purpose of improving the quality of life in Alachua County through the creation of jobs, increased capital investment, increased local competitiveness for business development, and general economic activity.

(Internal quotation marks omitted).

The trial court also found that the "Chamber does not use its property for a profit-making purpose. All income generated by the Chamber is used for charitable purpose."

Given these activities, the Chamber performs a community service such that a discontinuance of such service "could legally result in the allocation of public funds for the continuance of the function or service." § 196.012(7). As the trial court further found, "there is no doubt that economic development serves a public purpose for which public funds can be allocated." The Department of Economic Opportunity, created by section 20.60, Florida Statutes, is but one example of such a public service. The purpose of this publically-funded department is to "create, expand, and retain business in this state, to recruit business from around the world, and to facilitate other job-creating efforts." § 20.60(4)(a).

While not challenging the constitutionality of section 196.012(7), Alachua County argues that despite its unambiguous language, a tax exemption for "charitable purposes" should be limited to "benevolent" purposes, such as providing material assistance to the needy. As the promotion of business and economic development is not traditionally understood as a charitable activity, property used for business and economic development should not be entitled to a tax exemption under the charitable purposes provision of the state constitution, Alachua County argues.

The dissent agrees with Alachua County, but in its analysis, undertakes judicial construction of an unambiguous statute. See Mendenhall v. State , 48 So.3d 740 (Fla. 2010) (holding courts should not construct an unambiguous statute). Further, the dissent has overlooked the plain meaning of section 196.012(7) to impose what it believes should be the meaning of "charitable purposes" under the statute: to provide relief to the needy. While relief to the needy is a laudable charitable purpose, the statute is not so limited. Creating an ambiguity where one did not previously exist would exceed our authority. As the Florida Supreme Court explained in Velez v. Miami-Dade County Police Department , 934 So.2d 1162, 1164-65 (Fla. 2006) :

[W]e are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.

(Quotation marks and citations omitted).

The dissent relies on the Florida Constitution explaining that the "plain meaning of the word 'charitable' as used in the Florida Constitution is controlling, and the statute must be construed as limited to that meaning." (Dissent at pp. 460-61). As noted, Article VII, section 3(a) of the Florida Constitution does indeed provide that the Legislature is to enact laws exempting from taxation property used "predominantly for education, literary, scientific, religious or charitable purposes ...." However, as also noted, the Constitution does not define the term "charitable." Therefore, the "plain meaning" on which the dissent relies is not actually provided by our Constitution. Instead, the dissent tries to invoke a well-established canon of construction to reach its conclusion.

The dissent asserts that the Chamber, which argues for affirmance of the lower court's ruling under review, improperly equates "charitable purposes" with "public purposes." But this ignores the fact that it was the Legislature which first equated charitable purpose, for determining tax exemption, with public purpose. The Legislature plainly stated in section 196.012(7) that a charitable purpose is an activity for which "public funds" could be legally allocated.

In conclusion, the function of the Chamber mirrors some of the functions already undertaken by the State, and thus, the Chamber performs a function the discontinuance of which could result in the legal allocation of public funds. Therefore, the Chamber is entitled to an exemption from ad valorem taxation pursuant to the application of the unambiguous terms of section 196.012(7). The trial court's judgment granting such an exemption is AFFIRMED .

Roberts, J., concurs; Kelsey, J., dissents with opinion.

Kelsey, J., dissenting.

The Alachua County Property Appraiser challenges the lower tribunal's decision granting the Gainesville Area Chamber of Commerce a charitable exemption from ad valorem property tax under section 196.012(7), Florida Statutes (2014), which provides as follows:

"Charitable purpose" means a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service. It is not necessary that public funds be allocated for such function or service but only that any such allocation would be legal.

Id.

Although the majority holds that this statute requires no interpretation, the operative phrase is ambiguous: "of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service." As the Chamber's argument illustrates, it is possible to interpret this language so broadly that every legal expenditure of public funds would become a "charitable" purpose. To equate "public" purpose with "charitable" purpose is to ignore the limited constitutional grant of exemption authority. Further, such an interpretation would eliminate any separate charitable exemption, contrary to well-settled rules of construction requiring us to give effect to every statute and portion thereof. See Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003) ("It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage."). Because the Chamber's and the majority's interpretation of the statute renders the existence of a charitable exemption superfluous, and exceeds the Florida Constitution's limited grant of authority to enact tax exemptions, we must reverse.

I. Governing Rules of Construction.

We construe the Florida Constitution and Florida Statutes de novo. Garcia v. Andonie , 101 So.3d 339, 343 (Fla. 2012). All property is subject to taxation unless expressly exempted. § 196.001(1), Fla. Stat.; Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla. 1993). The constitution's limited grant of tax exemption authority is "the touchstone against which the Legislature's enactments are to be judicially measured." Sebring Airport Auth. v. McIntyre, 783 So.2d 238, 244 (Fla. 2001). "The legislature is without authority to grant an exemption from taxes where the exemption does not have a constitutional basis." Tucker , 613 So.2d at 451 ; see also Archer v. Marshall , 355 So.2d 781, 783-84 (Fla. 1978) (noting the legislature has no power to create a tax exemption that the Florida Constitution does not authorize) (citing Presbyterian Homes of the Synod of Fla. v. Wood , 297 So.2d 556 (Fla. 1974) ). Courts are obligated to construe legislation to effect a constitutional outcome whenever possible. Fla. Dep't of Rev. v. Howard, 916 So.2d 640, 642 (Fla. 2005). Tax exemptions must be strictly construed against taxpayers. Tucker , 613 So.2d at 452 ; see also Nat. Ctr. For Constr. Educ. & Research Ltd. v. Crapo , 248 So.3d 1256, 1257-58 (Fla. 1st DCA 2018) (emphasizing strict construction against tax exemptions).

II. The Chamber's Exemption Claim.

To qualify for a tax exemption, the applicant has the burden of proving first that it is a nonprofit organization. § 196.195(2), (4), Fla. Stat. In addition, "[e]ach applicant must affirmatively show that no part of the subject property, or the proceeds of the sale, lease, or other disposition thereof, will inure to the benefit of its members, directors, or officers or any person or firm operating for profit or for a nonexempt purpose." § 196.195(3), Fla. Stat. The applicant also must satisfy the substantive requirements of the exemption under the Florida Constitution and Florida Statutes.

Before 2014, the Chamber had received the charitable exemption; but beginning in that year, the Property Appraiser denied the exemption. The Chamber challenged the denial before the Value Adjustment Board, which affirmed the Property Appraiser's denial of the exemption. The Chamber then challenged the denial de novo in circuit court, resulting in the order now on appeal, which interpreted "charitable purpose" in section 196.012(7) as eliminating any requirement of a traditional charitable purpose under the plain meaning of "charitable."

The Chamber is a typical chamber of commerce as defined in section 501.973(1)(b) of the Florida Statutes. The Chamber is not a tax-exempt charity under the Internal Revenue Code-i.e., not a 501(c)(3) organization. Instead, it is registered under Internal Revenue Code section 501(c)(6), which covers business leagues, chambers of commerce, boards of trade, and the like. The Chamber did not show that "no part" of its property "will inure to the benefit of ... any person or firm operating for profit or for a nonexempt purpose," nor even address that specific statutory requirement. See § 196.195(3), Fla. Stat. The contrary is obvious from the nature and specifics of the Chamber's extensive evidence. That failure alone is sufficient to disqualify the Chamber from receiving a tax exemption, because it makes it impossible for the Chamber to satisfy the statutory definition of a nonprofit applicant. See § 196.195(4), Fla. Stat.

The Chamber nevertheless relies on its economic development activities, because it interprets the statutory definition of "charitable purpose" in section 196.012(7) as eliminating any need for a traditional "charitable" purpose. The Chamber presented extensive record evidence of its functions, which it describes as being to "grow the tax base, create jobs, and promote economic development." The lower tribunal found that the Chamber works through "the creation of jobs, increased capital investment, increased local competitiveness for business development, and general economic activity." The Chamber develops and implements strategic planning for economic development, brings local leaders into marketing and business-development efforts, tries to attract and then help new businesses coming to the area, helps local businesses expand their reach and activities, hosts and promotes job fairs and networking activities, and numerous other activities along the same lines. To repeat, the Chamber's argument is that all of these activities satisfy the definition of "charitable" in section 196.012(7) because the statute refers to activities for which government could legally pay (whether government actually pays for them or not), which the Chamber interprets as eliminating any requirement that such activities be "charitable" within the traditional plain meaning of that word.

III. The Statute Cannot, and Does Not, Eliminate "Charitable."

A. The Plain Constitutional Meaning Controls.

We must begin with the plain language of the Florida Constitution, authorizing the Florida Legislature to enact "charitable" exemptions from ad valorem taxation, among other exempt categories. Art. VII, § 3(a), Fla. Const. In the context of institutions, "charitable" means "liberal in benefactions to the needy; of or relating to charity; 'charitable institutions.' " "Charity" means "an institution engaged in relief of the poor; public provision for the relief of the needy." Merriam-Webster Online Dictionary, Charitable, Charity (last visited October 29, 2018).

The statute implementing the charitable exemption, now section 196.012(7), originally consisted only of what is now its first sentence, without the word "legally" in it, thus: " 'Charitable purpose' means a function or service which is of such a community service that its discontinuance could result in the allocation of public funds for the continuance of the function or service." The Legislature inserted the word "legally" into this sentence in 1976, producing this statute: " 'Charitable purpose' means a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service." Ch. 76-234, § 13, Laws of Fla. The final amendment occurred in 1991, when the Legislature added what is now the last sentence in the statute: "It is not necessary that public funds be allocated for such function or service but only that any such allocation would be legal." Ch. 91-196, § 1, Laws of Fla.

Under both the 1885 and 1968 Florida Constitutions, and with or without the statute's two amendments, Florida court decisions for decades have treated cases arising under the statute as if the statute contemplates a "charitable" purpose consistent with the plain meaning of the word. The supreme court in Miami Battlecreek v. Lummus , 140 Fla. 718, 192 So. 211 (1939), addressed a request for a combination exemption as a scientific, educational, and charitable institution operating as a "medical institution, hospital, and sanitarium" with a health-education component. The institution accepted paying patients as well as the indigent; the paying patients outnumbered and subsidized the indigent. Id. at 213-14. In discussing the charitable aspect of the combined exemption request, the court described it as being "for the promotion of the general welfare," approved the lower tribunal's definition of a charity as "a gift or dedication of real or personal property ... for the public benefit," and held that a charitable institution is characterized by "the benefit conferred upon the public ... and the consequent relief, to some extent, of the burden upon the state to care for and advance the interests of its citizens." Id. at 216-18. The court noted that the institution was a tax-exempt charity under federal law, and that no one directly or indirectly profited from the institution's activities. Id. at 218. These factors parallel the ordinary meaning of the word "charitable."

Relying in part on Miami Battlecreek , the Second District in a case involving a home for the elderly, virtually all of whom paid full freight, held that the charitable tax exemption "cannot be granted under Florida Law ... absent demonstration that the applicant is committed to a purpose which is charitable, in a true definitive sense , and that the property is being used for such purpose." Haines v. St. Petersburg Methodist Home, Inc. , 173 So.2d 176, 180 (Fla. 2d DCA 1965) (emphasis added). The court went on to construe both "charitable" and "benevolent" in this context in their "objective sense of providing relief to those unable to help themselves," with an emphasis on gifts to the poor and helpless:

"Charity" is sometimes used interchangeably with "benevolence" or "beneficence" in describing good-will, or a helpful attitude or kindly acts, but "charity" is commonly understood more objectively as denoting gifts to the poor or positive steps taken to relieve distress and suffering of those unable to help themselves. It is the latter concept, and not the former, that is consistent with the constitutional and statutory terminology relative to the present case. In context with "charitable" the word "benevolent" is used in the statute, though not in the Constitution, and it has been observed that although every charitable purpose is benevolent the converse is not always true .... In the case here, in view of the facts and the ground on which the exemption is sought, we ascribe to the word "benevolent" the same meaning as "charitable" used in its objective sense of providing relief to those unable to help themselves.

Id. at 181 (footnote omitted). The court further noted that if it accepted the plaintiff's expansive definition of the charitable tax exemption rather than adhering to the narrow constitutional intent, the resulting flood of exemptions would require legislative remedy: "If our courts should adopt and adhere to the loosely subjective concept of a charitable institution with respect to tax exemption, it would be an enlargement of constitutional meaning presaging further inequity and deterioration of an ad valorem system that could be redeemed only by ultimate reform through legislative channels." Id. at 181 n.6.

After adoption of the Florida Constitution of 1968 and the Tax Reform Act of 1971, the courts continued to interpret the charitable tax exemption consistent with the plain meaning of "charitable." Presbyterian Homes was representative of a spate of litigation surrounding the tax-exempt status of housing "provided by church or charitably oriented organizations" for the elderly where some residents were not poverty-stricken. 297 So.2d at 558. The narrow issue presented was the construction of the "predominant" use test, which replaced the earlier "exclusive" use test. Id. The Florida Supreme Court continued to apply the plain meaning of "charitable." The court rejected a statutory income test as being too narrow to conform to the controlling exemption provisions of the Florida Constitution, which it construed as focused on the charitable nature of the institution providing the service. It noted that the charitable use was the provision of homes for the aged by "modern charitable and religious" institutions, in response to the "drawbacks and hardships [of age] which require special care and attention that are aggravated by indigency." Id. at 559. The court cited several earlier cases utilizing that plain meaning of "charitable," and affirmed that such homes, otherwise qualified, would satisfy the charitable tax exemption.

The District Courts of Appeal likewise continued to require a traditional charitable purpose to qualify for a charitable exemption. See Public Hous. Assistance, Inc. v. Havill , 571 So.2d 45 (Fla. 5th DCA 1990) (affirming charitable exemption for low-income housing project created through government grants and producing no income); Southlake Comty. Found., Inc. v. Havill , 707 So.2d 361 (Fla. 5th DCA 1998) (rejecting application of exemption for merely "affordable" housing project as contrasted with that involved in Public Housing ); Mikos v. Plymouth Harbor, Inc. , 316 So.2d 627, 634-35 (Fla. 2d DCA 1974) (On Petition for Rehearing) (reversing grant of charitable tax exemption to home for the aged that was "the equivalent of a high priced condominium providing luxury living" that catered to high-income residents, and remanding for the owner to attempt to show that if the home stopped operating, government would need to provide those residents with housing).

In 1957, the Attorney General squarely rejected the proposition that chambers of commerce and builders exchanges qualified for the charitable exemption from ad valorem taxation. Op. Att'y Gen. Fla. 57-149 (1957). The reasoning was the same as is employed in the cases cited above and in this opinion: to begin with the language of the constitution, to construe it narrowly, and to reject application of the charitable exemption to such organizations. The Attorney General reasoned that the primary purpose of a chamber of commerce is to promote business, and therefore it has been denied the exemption in jurisdictions addressing the issue; and that cultivating business relations, bringing together competitors in business, and other such purposes does not qualify for a charitable exemption.

The common theme of these and similar authorities is that the reviewing courts either expressly held that a traditional charitable purpose was required, or implicitly required such a traditional charitable purpose. Most cases involved hospitals serving predominantly indigent patients, and organizations providing housing to the indigent, whether elderly or not. The plain meaning of the word "charitable" as used in the Florida Constitution is controlling, and the statute must be construed as limited to that meaning. Sebring, 783 So.2d at 244. We must either construe the statute consistent with its constitutional underpinnings, or declare it unconstitutional. When the statute is properly construed, it becomes clear that the Chamber is not qualified for a charitable tax exemption.

B. Merging "Public" and "Charitable" Purposes Is Improper.

The Chamber's interpretation of the charitable-exemption statute, extending it to any activity for which a governmental entity could legally expend funds, improperly broadens the "charitable" purpose to become synonymous with any "public" purpose. This violates the rule that tax exemptions must be strictly construed. See Tucker , 613 So.2d at 452. Interpreting the statute without reference to its underlying constitutional limitations would create vast if not limitless exemptions.

Further, contrary to the Chamber's interpretation, the charitable and public purpose exemptions emanate from separate provisions of the Florida Constitution and separate provisions of the Florida Statutes. The municipal or public purpose exemption is a direct creation of the constitution, while the constitution merely authorizes the other categories of tax exemption; and the two categories of exemption are defined separately in light of their constitutional underpinnings. Compare Art. VII, § 3(a), Fla. Const. ("All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation."); § 196.012(6), Fla. Stat. (separately defining and regulating "[g]overnmental, municipal, or public purpose or function") with Art. VII, § 3(a), Fla. Const. ("Such portions of property as are used predominantly for educational, literary, scientific, religious or charitable purposes may be exempted by general law from taxation."); § 196.012(7), Fla. Stat. (defining "charitable purpose" as "such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service"). If the two sets of provisions meant the same thing, there would be no need for both. Well-settled rules of construction require us to give separate effect to the separate provisions. Fla. Dep't of Rev. v. New Sea Escape Cruises, Ltd. , 894 So.2d 954, 957 (Fla. 2005).

The Florida Supreme Court in Sebring set out the same principles of constitutional and statutory interpretation on which I rely here, with a special emphasis on principles governing tax exemptions. 783 So.2d at 244-45. The court invalidated a provision of section 196.012(6) that purported to extend a public purpose tax exemption to lessees of public property when the lessees used the property in profit-making enterprises-in that case a raceway and related activities being operated on property leased from a local airport authority. Id. at 247-53. The supreme court's analytical process was identical to our reasoning here. The court re-emphasized the primacy of the constitutional grant or limitation of authority to create tax exemptions. 783 So.2d at 244 ("[I]t is the constitution itself, rather than 'common usage,' which is the touchstone against which the Legislature's enactments are to be judicially measured ....") (footnote omitted).

The Sebring court rejected the lessee's attempt to import into the tax-exemption statutes authorized under article VII the broader authority for the issuance of bonds for public-private partnerships under article VII, section 10, dealing with pledging credit. 783 So.2d at 241, 251 ; see also Fla. Dep't of Rev. v. City of Gainesville, 918 So.2d 250, 263-64 (Fla. 2005) (refusing to construe "municipal purposes" for use and spending under article VIII as synonymous with "municipal or public purposes" under article VII's exemption provisions). Yet the Chamber's interpretation of the statutory definition of "charitable purpose" in section 196.012(7) as being co-extensive with any "public purpose" under separate provisions partakes of the same analytical error. Although the taxpayer in Sebring , like the Chamber here, relied on the argument that its activities provided benefits to the public in the form of entertainment opportunities, community and business competitiveness, and economic development, the court soundly rejected the argument: "[A]s long as the people of Florida maintain the constitution in the form we are required to apply today, neither we nor the Legislature may expand the permissible exemptions [from taxation] based on this type of argument .... It is not for this Court or the Legislature to grant ad valorem taxation exemptions not provided for in the present constitutional provisions." 783 So.2d at 253.

This Court in City of Gainesville v. Crapo, 953 So.2d 557, 563 (Fla. 1st DCA 2007), likewise held that municipal purposes in Article VIII are "distinct from and broader than the definition of public purposes in Article VII." Accordingly, the Court held that "an activity may serve valid municipal purposes under article VIII, section 2(b) and constitute a permissible municipal function but still not serve a municipal or public purpose under article VII, section 3(a)." Id.

In support of its argument that "charitable" means "public," the Chamber misplaces its reliance on Turner v. Trust for Pub. Land , 445 So.2d 1124 (Fla. 5th DCA 1984). The court there did not address the constitutional limitation to "charitable" functions. This case involved the sale of a large parcel of land in Volusia County owned by the Trust for Public Land. Id. at 1124-25. The Trust was a non-profit organization, and was a charitable organization under Internal Revenue Code section 501(c)(3). 445 So.2d at 1125. The land was given to the Trust, which later sold it to a water management district substantially below appraised value. Id. The property appraiser denied an exemption on the property because the Trust had received it for free and then made a profit on it. The circuit court rejected the property appraiser's argument, and he appealed. On appeal, the court reasoned that the mere fact that the Trust received money from the sale was not controlling; but rather that the Trust's subsequent and typical use of such funds to further its environmental purposes exclusively for public benefit constituted a charitable purpose. Id. at 1126. The court did not address the public/charitable dichotomy, but rather focused solely on the Trust's receipt of money following a gift, and whether simply holding vacant land constituted a "use" of the land. Id. The court relied on out-of-state cases involving municipal purposes. Id. Thus, while the Chamber argues that the Turner court implicitly equated charitable and municipal purposes, the argument raised here was not raised there, and we cannot properly conclude that the court intended to create precedent on an issue not expressly argued and decided. Even if Turner could validly be read as an express holding on that issue, that interpretation of section 196.012(7) exceeds the Florida Constitution's grant of exemption-making authority.

C. The Statute Was Not Intended To Exceed The Constitution.

Given that the Legislature is not at liberty to expand tax exemptions beyond what the Constitution authorizes, we must adopt a constitutionally-valid construction of the statute, or invalidate it outright. In this case, if the statute is interpreted in light of its constitutional underpinning and precedent, it is unnecessary to invalidate it. The language of the statute is not ambiguous:

"Charitable purpose" means a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service. It is not necessary that public funds be allocated for such function or service but only that any such allocation would be legal.

§ 196.012(7), Fla. Stat. (2014). It is not the statute that goes too far, but rather the overbroad interpretation being placed upon it. The problem with the Chamber's argument is that it ignores the constitution's limited grant of exemption authority. The statute's threshold reference to a "community service" must be construed within the boundary of that limited charitable exemption authority. That is the interpretation given to the charitable exemption continuously in court decisions and an attorney general opinion. The Chamber's argument also improperly presupposes that the Legislature intended to overrule all earlier precedent construing the charitable exemption as embodying the plain meaning of the word "charitable." To the contrary, the Legislature is presumed to know, and to incorporate into its enactments, relevant case law existing prior to an amendment. Williams v. Jones , 326 So.2d 425, 435 (Fla. 1975). The charitable exemption must be limited to charitable services within the plain meaning of the word "charitable"-services for the needy and those otherwise unable to help themselves.

The two amendments to the statute, referencing legal expenditure of public funds, are not properly read as expanding the exemption beyond the constitutional expectation of such a traditionally charitable function. Rather than expanding the exemption, it appears that the language was intended to restrict it by precluding application of the charitable exemption to purposes for which government could not lawfully expend public funds. Private individuals and entities can make charitable expenditures that government cannot. The statute recognizes that limitation.

The Chamber's broad interpretation of the statute is also not supported by the Legislature's description of the 1991 amendment adding the last sentence to the law. Nothing in the legislative history supports the Chamber's interpretation. To the contrary, the public policy rationale for the statutory amendment was described as a way to ensure that "important public services are continued" and that "such services could be provided at no or minimal cost to those that could not afford such services from private, for-profit organizations." Fla. S. Comm. on Fin., Taxation and Claims, S.B. 1226, Staff Analysis 2 (Apr. 3, 1991). That is what the Legislature intended to do in implementing the charitable exemption-adhere to the plain-meaning definition of "charitable" used in the constitution's limited grant of exemption authority.

IV. Conclusion.

Section 196.012(7) is not properly severed from its constitutional mooring. The fundamental, constitution-imposed requirement of a "charitable" purpose, in light of the plain meaning and historic usage of that word, controls the interpretation and application of the statute. The lower tribunal erred in ruling otherwise, and we must reverse.

      Each property appraiser is a constitutional officer charged with determining whether real property is subject to ad valorem tax; and if so, valuing the property and assessing tax on it. Art. VIII, § 1(d), Fla. Const. Because tax appraisers are constitutional officers, their decisions are clothed with a presumption of correctness. Straughn v. Tuck, 354 So.2d 368, 371 (Fla. 1977). The state's 67 property appraisers as a group make up a class of constitutional or state officers for purposes of the Florida Supreme Court's review jurisdiction. Art. V, § 3(b)(3). Each property appraiser is entitled to exercise professional judgment in applying the tax laws and regulations to specific factual contexts, and is equally entitled to a change of mind. Each tax year stands alone. The Chamber does not argue that the Property Appraiser had no authority to change his mind about the exemption.

      A value adjustment board "is a quasi-judicial body established for the primary purpose of hearing taxpayer petitions and complaints against decisions of the appraiser." Redford v. Dep't of Rev. , 478 So.2d 808, 810 (Fla. 1985). A taxpayer has the option to contest an assessment before the VAB or directly in circuit court. § 194.171, Fla. Stat. A party that is unsuccessful before the VAB may file suit in circuit court. §§ 194.036(2), 194.171, Fla. Stat. Proceedings in circuit court are de novo, not appeals or reviews of VAB decisions. § 194.036(3), Fla. Stat.

      Tax-exempt status under the Internal Revenue Code is potentially relevant but not determinative of entitlement to a Florida charitable exemption. A Florida chamber of commerce is permitted to be organized under either section 501(c)(3) or 501(c)(6) of the Internal Revenue Code. § 501.973(1)(b)1., Fla. Stat.

      The Attorney General opined that this amendment, adding "legally" to the first sentence of the statute, was merely a clarifying amendment that did not change the law's meaning. Op. Att'y Gen. Fla. 77-64 (1977).


source: Caselaw Access Project

author: Winsor, J.

license: Public Domain

text:
    PHILIP MORRIS USA INC., Appellant, v. Veda BRYANT, Personal Representative of the Estate of Johnny Lee Bryant; R.J. Reynolds Tobacco Company, Appellees.
    No. 1D18-1053
    District Court of Appeal of Florida, First District.
    May 6, 2019 Rehearing Denied June 17, 2019
    Rosemary Szanyi, Geoffrey J. Michael, and David M. Menichetti of Arnold & Porter Kaye Scholer LLP, Washington D.C.; Laura Whitmore of Shook, Hardy & Bacon LLP, Tampa; and Connor J. Sears or Shook, Hardy & Bacon LLP, Kansas City, Missouri, for Appellant.
    Douglas Eaton of Eaton & Wolk, PL, Miami, for Appellee Bryant.
   Winsor, J.

Veda Bryant won a $ 681,000 judgment against Philip Morris USA Inc. based on her late husband's addiction to-and injuries from-smoking cigarettes. Philip Morris now appeals, arguing that it is entitled to a new trial because plaintiff's counsel asked an improper question and made an improper comment during closing argument. Philip Morris also argues, in the alternative, that a 2001 stipulation in the original Engle litigation requires a reduction of the punitive damages award.

First, we agree with Philip Morris and the trial court that Bryant's counsel asked an improper question in front of the jury. As Bryant's counsel was presenting expert testimony about the history of tobacco production and consumption, counsel asked the expert to translate the slogan "veni, vidi, vici," which had appeared on packages of Marlboro cigarettes. The expert testified that "[i]t's Latin. I came, I saw, I conquered." Counsel then followed with this question: "[B]ased on the market sales that we've seen in terms of Philip Morris' earnings over the years, and the 40-some year conspiracy, did Marlboro come, see and conquer?" The court promptly sustained Philip Morris's objection before the expert could respond.

The trial court recognized that counsel's question was an improper one, and it would be hard to argue otherwise. But the question we face was whether the trial court was obligated to grant Philip Morris's motion for mistrial. We review the court's ruling only for an abuse of discretion, Anderson v. State , 841 So. 2d 390, 403 (Fla. 2003), and we conclude the trial court acted within its broad discretion. Improper as the question was, we cannot conclude that in the overall context of the entire trial, the unanswered question was "so prejudicial as to vitiate the entire trial." Id. Similarly, we conclude the trial court did not abuse its discretion in denying Philip Morris's separate motion for mistrial relating to Bryant's closing argument, and we affirm the trial court's related denial of Philip Morris's motion for new trial.

Next, we must decide whether a stipulation in the Engle case required a reduction of the punitive damage award in this case. Consistent with holdings from the Second and Third Districts, we conclude that it does not.

In 1994, a group of plaintiffs initiated a class-action case against Philip Morris and others. See Hess v. Philip Morris USA, Inc. , 175 So. 3d 687, 693 (Fla. 2015) (explaining Engle history). The trial court certified a class, the matter went to trial, and the jury awarded some $ 145 billion in punitive damages. Id. (Philip Morris's share of the punitive damages was roughly $ 74 billion.) The Florida Supreme Court later decertified the class, concluding that "individualized issues such as legal causation, comparative fault, and damages predominate[d]," but it allowed members of the decertified class to initiate individual cases, id. (quoting Engle ), which Bryant did.

Long before the supreme court issued its Engle decision, the Engle class and defendants (including Philip Morris) entered into a stipulation staying execution of the $ 145 billion judgment pending appeal. The stipulation, which the Engle trial court approved, required the defendants to place approximately $ 2 billion in escrow to secure payment of at least that much of the judgment. The parties agreed that a portion ($ 500 million) of the funds Philip Morris contributed would be paid to the class even if the award was reversed on appeal. The parties further agreed that this amount, known as the "guaranteed sum," would "constitute a dollar-for-dollar credit against, and [would] not be construed to be a payment obligation in addition to, payment of the punitive damages component of the Judgment against Participating Defendant in the event such component of such Judgment (or any portion thereof) is affirmed or required to be paid." It is that provision that Philip Morris contends entitles it to a credit in this case. The stipulation defined the "Judgment" as "the judgment ... that was entered in this [ Engle ] action on November 3, 2000." Thus, the question we face is whether the punitive damages award in Bryant's case constitutes a "punitive damages component of" the original Engle judgment. Or, as Philip Morris framed it below: "the textual question for the court is this: May the Participating Defendants be deprived of the dollar-for-dollar credit provided by the Stipulation on the theory that punitive awards in Engle progeny cases are independent of the Engle judgment?"

We conclude that no portion of Bryant's judgment constitutes "the punitive damages component of" the Engle judgment. It is true that certain findings from the original Engle trial have res judicata effect in individual actions like this one. See Hess , 175 So. 3d at 694 ; see also Philip Morris USA, Inc. v. Douglas , 110 So. 3d 419, 432 (Fla. 2013). And it may well be that without those findings, Bryant would not have successfully established liability below. But that does not mean this judgment is a "punitive damages component" of the 2000 Engle judgment. "The doctrine of res judicata bars relitigation [of certain matters] in a subsequent cause of action," Topps v. State , 865 So. 2d 1253, 1255 (Fla. 2004), but it does not make a later judgment a component of the earlier one. There are still separate judgments. Here, Bryant's judgment was an independent judgment, separate and apart from the Engle judgment. We therefore agree with the Second and Third Districts, which have held that the 2001 Engle stipulation does not require a credit against judgments in individual Engle -progeny cases. See Philip Morris USA, Inc. v. Ledoux , 230 So. 3d 530, 541 n.6 (Fla. 3d DCA 2017) (rejecting claim "that Defendants were entitled to a credit against the punitive damages judgment, based on the Guaranteed Sum Stipulation arising out of the original Engle litigation"); Philip Morris USA Inc. v. Boatright , 217 So. 3d 166, 173 (Fla. 2d DCA 2017) ("[T]he Guaranteed Sum Stipulation specifically applied to the judgment in Engle and is not applicable to the judgment in this case.").

AFFIRMED .

Lewis and M.K. Thomas, JJ., concur.

      See Engle v. Liggett Group, Inc. , 945 So. 2d 1246 (Fla. 2006) (Per curiam opinion with two Justices joining and four Justices joining opinions concurring in part).

      The well-known phrase is, of course, attributed to Julius Caesar. See Veni, vidi, vici, Wikipedia , available at https://en.wikipedia.org/wiki/Veni,_vidi,_vici, last visited May 5, 2019.


author: Per Curiam.

text:
    Benjamin CUMMINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2515
    District Court of Appeal of Florida, First District.
    May 15, 2019 Rehearing Denied June 17, 2019
    Benjamin Cummings, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Kerry E. CUMMINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4189
    District Court of Appeal of Florida, First District.
    May 10, 2019 Rehearing Denied June 17, 2019
    Kerry E. Cummings, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Ray, and Winsor, JJ., concur.


text:
    Betty Caitlin Nicole SMITH, Petitioner, v. Zachary Taylor DANIEL, Respondent.
    No. 1D19-1390
    District Court of Appeal of Florida, First District.
    May 6, 2019 Rehearing Denied June 14, 2019
    Betty Caitlin Nicole Smith, pro se, Petitioner.
    Zachary Taylor Daniel, pro se, Respondent.
   Per Curiam.

Petitioner's Motion to Vacate Order for Fraud Upon the Court on Grounds of Rule 60 Federal Rules of Civil Procedure, and Emergency Time Sensitive Motion for Stay of Fraudulent Order, filed on April 4, 2019, and transferred to this Court for consideration on April 15, 2019, are denied. All other requests for relief are denied.

Wolf, Kelsey, and Winokur, JJ., concur.


author: Rowe, J. Bilbrey, J., concurring.

text:
    Lester SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-191
    District Court of Appeal of Florida, First District.
    May 16, 2019 Rehearing Denied June 14, 2019
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Rowe, J.

In 1967, Lester Simmons was convicted for the rape of an adult woman. He was fifteen years old when he committed the offense. Simmons pleaded guilty in exchange for the prosecutor's agreement not to recommend a sentence of death. The victim testified at the sentencing hearing that Simmons surreptitiously entered her home and raped her. The trial court sentenced Simmons to life with the possibility of parole.

For Simmons, the possibility of parole was realized-he was granted parole twice and spent nearly eighteen years on parole, before his parole was revoked for a second time. Then, in 2016, almost fifty years after his sentence became final, Simmons moved for postconviction relief under Florida Rule of Criminal Procedure 3.800(a). Simmons argued that his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment, relying on Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Atwell v. State , 197 So.3d 1040 (Fla. 2016). In Graham , the United States Supreme Court held that it was a violation of the Eighth Amendment to sentence a juvenile to life imprisonment without the possibility of parole for a nonhomicide offense because juveniles were entitled to a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham , 560 U.S. at 75, 130 S.Ct. 2011. The Supreme Court extended this reasoning to juveniles sentenced to a mandatory term of life imprisonment for a homicide offense. Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Atwell , the Florida Supreme Court relied on Graham and Miller to hold that a juvenile homicide offender's sentence of mandatory life imprisonment with the possibility of parole was unconstitutional because Florida's parole system did not provide for the individualized consideration of a juvenile's demonstrated maturity and rehabilitation. Atwell , 197 So.3d at 1048-50.

Simmons argued that his sentence of life with the possibility of parole did not afford him a meaningful opportunity for release based on a demonstration of his maturity and rehabilitation. The postconviction court ordered the State to respond to Simmons' motion. The State responded, conceding that Atwell entitled Simmons to resentencing. The court granted Simmons' motion and ordered resentencing under the juvenile sentencing provisions enacted in chapter 2014-220, Laws of Florida, which have been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes.

But before resentencing occurred, the court learned of changes in the law casting doubt on whether Simmons should be resentenced. In Currie v. State , this Court held that a sentence of life with the possibility of parole, like the one Simmons received, was not the functional equivalent of a life sentence without the possibility of parole when the defendant was in fact released on parole. 219 So.3d 960, 960 (Fla. 1st DCA 2017). We concluded that Currie was not entitled to resentencing under Atwell . Currie , 219 So.3d at 960.

After being advised of Currie , the postconviction court directed the parties to address whether Simmons' sentence was lawful. The court heard arguments from the parties and determined that Simmons' sentence of life with the possibility of parole was permissible under Currie and similar intervening decisions by other district courts. Seven months after granting Simmons' postconviction motion, the court entered an order rescinding its original order and denying the motion. Simmons appealed the second order, arguing that he was entitled to resentencing. We agree.

Because the order granting resentencing became final when neither party moved for rehearing or appealed the order, the trial court had no authority to enter a second order rescinding the original order. This Court has twice held that an order on a motion for postconviction relief is final and appealable even when resentencing has not occurred. See Slocum v. State , 95 So.3d 911 (Fla. 1st DCA 2012) ; Jordan v. State , 81 So.3d 595 (Fla. 1st DCA 2012). And the supreme court has agreed. See Taylor v. State , 140 So.3d 526 (Fla. 2014).

In Jordan , we addressed for the first time whether a postconviction order granting resentencing is final when resentencing has not yet occurred. There, the postconviction court granted Jordan's rule 3.800(a) motion and ordered resentencing. Jordan , 81 So.3d at 596. But the judge passed away before resentencing the defendant. Id. Seventy-seven days after the order granting relief was entered, the State moved for reconsideration of the order. Id. A successor judge reconsidered the order and denied the motion. Id. On appeal, because the motion for reconsideration was untimely, this Court held that the order granting resentencing was final and the successor judge lacked jurisdiction to reconsider it. Id.

We next considered the finality of a postconviction order in Slocum . There, the court denied Slocum's postconviction challenge to his convictions while granting resentencing. Slocum , 95 So.3d at 912. The court appointed counsel to represent Slocum at a resentencing hearing that occurred more than thirty days after the court granted Slocum's postconviction motion. Id. After resentencing, a timely notice of appeal was filed. Id. Slocum's pro se notice reflected that he was appealing the portion of the court's order that denied the challenges to his convictions. Id. In conformity with his notice of appeal, the initial brief challenged only the summary denial of a claim for postconviction relief, not the resentencing. Id. Relying on Jordan , we determined that the court's order on the postconviction motion became final when neither party moved for rehearing. Id. at 913. Because Slocum did not appeal within thirty days of the date the postconviction order was entered and because the initial brief did not challenge the resentencing, this Court dismissed the appeal for lack for jurisdiction. Id.

More recently, the supreme court, in Taylor , accepted review of a case from the Fifth District that conflicted with Slocum . Taylor , 140 So.3d at 527. The question presented was "whether an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, when the relief granted requires subsequent action in the underlying case, such as resentencing." Id. The supreme court answered the question in the affirmative, holding that unlike an order denying a claim in a postconviction motion and granting an evidentiary hearing on a different claim, an order denying relief in part and granting it in part is a final, appealable order because it marks the end of judicial labor on the postconviction motion. Id. at 528-29. The court rejected the State's argument that "permitting a postconviction appeal to proceed separately from a resentencing appeal will encourage piecemeal litigation because, as we have previously explained in other cases, postconviction proceedings and resentencing proceedings are separate, legally discrete proceedings." Id. at 529. The supreme court held that an "order partially denying and partially granting a motion for postconviction relief was a final appealable order, even though resentencing remained to be completed in the underlying case." Id.

Simmons argues that the postconviction court lacked jurisdiction to rescind its order granting Simmons' postconviction motion. The State concedes that the original order was a final, appealable order. But the State contends that the lower court could still revisit its ruling on the postconviction motion because Florida Rule of Criminal Procedure 3.192 provides: "Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case." This reading of the rule overlooks the preceding sentence that expressly provides that the rule does not apply to rule 3.800(a) proceedings. Fla. R. Crim. P. 3.192. Because Simmons sought postconviction relief under rule 3.800(a), rule 3.192 did not authorize the postconviction court to reconsider its earlier ruling.

The order granting Simmons' postconviction motion was a final, appealable order because it brought an end to the judicial labor on the motion. Taylor , 140 So.3d at 528-29 ; Slocum , 95 So.3d at 912 ; Jordan , 81 So.3d at 596. The finality of the order was not delayed because neither party moved for rehearing or reconsideration of the order. See Fla. R. Crim. P. 3.800(b)(1)(B) (authorizing either party to file a motion for rehearing within fifteen days of the service of a signed, written order entered under rule 3.800(a) ). Nor did either party appeal the order. Because the original order was final, the trial court lacked jurisdiction to enter a second order rescinding the original order and denying resentencing. We thus quash the order on appeal and remand with directions that the trial court reinstate the order granting Simmons' rule 3.800(a) motion. The trial court should then resentence Simmons to a lawful sentence. Simmons urgues us to direct the court on remand to conduct a de novo resentencing under chapter 2014-220, Laws of Florida. Because the postconviction court did not previously rule on the proper sentence to be imposed at resentencing, we decide only the jurisdictional issue before us.

QUASHED and REMANDED with directions.

Kelsey, J., concurs; Bilbrey, J., concurring with opinion.

Bilbrey, J., concurring.

I agree with the majority that the order on appeal must be reversed. Under existing case law, as discussed by the majority opinion, the trial court was unable to rescind the March 2017 resentencing order once the order became final. The fact that the December 2017 order appears to me to be a correct statement of the law does not change the consideration.

I write separately to note that when Simmons is resentenced, "the decisional law effective at the time of the resentencing applies." State v. Fleming , 61 So.3d 399, 400 (Fla. 2011). Unless the law changes before resentencing, the current decisional law is that the Eighth Amendment is not violated when a defendant sentenced for a nonhomicide offense committed as a juvenile has an opportunity for parole. See Franklin v. State , 258 So.3d 1239, 1241 (Fla. 2018). This is especially so where an offender, like Simmons, "was afforded a meaningful opportunity to obtain release and, in fact, was released on parole." Currie v. State , 219 So.3d 960, 960 (Fla. 1st DCA 2017). I therefore believe that the trial court can, if it chooses, legally reimpose the same sentence.

      At the time, the death penalty could be imposed for the offense. Ten years later, the United States Supreme Court held that a sentence of death for rape of an adult woman was unconstitutional. Coker v. Georgia , 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Then in 2005, the Court held unconstitutional the imposition of the death penalty on an offender who was under the age of eighteen when he committed the offense. Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

      A year later, a plurality of Florida's supreme court reached the same conclusion. State v. Michel , 257 So.3d 3 (Fla. 2018) (holding that a juvenile's life sentence with the possibility of parole after twenty-five years' imprisonment was not cruel and unusual punishment).

      Vennisee v. State , 235 So.3d 947 (Fla. 3d DCA 2017) ; Wright v. State , 225 So.3d 360 (Fla. 1st DCA 2017) ; Rooks v. State , 224 So.3d 272 (Fla. 3d DCA 2017) ; Rogers v. State , 223 So.3d 281 (Fla. 4th DCA 2017).

      The jurisdictional defect here is procedural in nature, not one affecting the court's subject matter jurisdiction. See 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd. , 92 So.3d 320, 321 (Fla. 1st DCA 2012) (Ray, J. concurring) (discussing the distinctions among subject matter jurisdiction, case jurisdiction, continuing jurisdiction, and procedural jurisdiction).


text:
    Ian TULLOCH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-3004
    District Court of Appeal of Florida, First District.
    May 15, 2019 Rehearing Denied July 9, 2019
    Ian Tulloch, pro se, Petitioner.
    Ashley Moody, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Osterhaus, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    Gilbert BERNARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1890
    District Court of Appeal of Florida, Third District.
    Opinion filed May 15, 2019.
    McLain Law, P.A., and Matthew R. McLain (Longwood), for appellant.
    Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Hurst v. State, 257 So.3d 1202, 1203-05 (Fla. 1st DCA 2018) (affirming imposition of a sentence with review after 25 years for attempted first-degree murder conviction under § 775.082(3)(a)5, Fla. Stat.).


text:
    Barbara Ann KELLY, Appellant, v. SUNTRUST BANK, Appellee.
    No. 1D17-5182
    District Court of Appeal of Florida, First District.
    May 16, 2019 Rehearing Denied July 9, 2019
    Barbara Ann Kelly, pro se, Appellant.
    Amelia Hallenberg Beard of McCalla, Raymer, Leibert, Pierce, LLC, Orlando, for Appellee.
   Per Curiam.

Barbara Kelly appeals an order denying her "emergency motion for injunction"-which sought a "moratorium" in her foreclosure case prohibiting the trial court from acting-even though final judgment had been granted in favor of SunTrust Bank over a year earlier. Because Kelly's "emergency motion for injunction" did not actually seek injunctive relief, the order denying it is not appealable. See Loidl v. I & E Group, Inc. , 927 So. 2d 1016, 1018 (Fla. 2d DCA 2006) ("[I]t is not an order which directs or precludes the party from taking a certain action outside of the lawsuit. Therefore, it is not properly appealed under rule 9.130(a)(3)(B)."); cf. Stanfield v. Florida Dep't of Children & Families , 698 So. 2d 321, 322 (Fla. 3d DCA 1997) ("[T]his order is an Injunction entered by the trial court because the effect and purpose of the order is to enjoin [the opposing party] from doing those acts enumerated in the order."). We DISMISS Kelly's appeal.

Wolf, Kelsey, and Winokur, JJ., concur.


author: LINDSEY, J.

text:
    SEA VAULT PARTNERS, LLC, & Homero Meruelo, Appellants, v. BERMELLO, AJAMIL & PARTNERS, INC, Appellee.
    No. 3D17-2443
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019
    Capote Grandal, P.L., and Susan Capote, for appellants.
    Daniels, Rodriguez, Berkeley, Daniels & Cruz, P.A., and Daniel A. Pelz, Coral Gables, for appellee.
    Before SALTER, SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Sea Vault Partners, LLC and Homero Meruelo (collectively, "Sea Vault") appeal a final judgment awarding Bermello, Ajamil & Partners, Inc. ("BAP") monetary sanctions against Sea Vault for bad-faith failure to arbitrate. Despite the lengthy and complicated procedural history of this case, the resolution of this appeal turns on whether the trial court erred by awarding monetary sanctions against Sea Vault for failing to pay a $ 5,000 fee in an arbitration proceeding pending before the American Arbitration Association. For the reasons set forth below, we find that it did, and reverse.

I. BACKGROUND

In December 2014, BAP and Sea Vault entered into an agreement (the "Agreement") whereby BAP would provide architectural services for a development project located at 1583 NW 24th Ave, Miami, FL 33125 (the "Real Property"). Things did not work out as BAP and Sea Vault originally planned, and in October 2015, BAP recorded a claim of lien on the Real Property, alleging that Sea Vault had failed to pay BAP for services rendered under the Agreement. After recording its claim of lien, BAP requested mediation pursuant to the Agreement.

In November 2015, Brisas Del Rio, Inc. ("Brisas"), a non-party to the Agreement, filed an action in the trial court against BAP seeking to discharge BAP's claim of lien (the "Trial Court Action") on the basis that BAP had improperly recorded the claim of lien. Brisas claimed to be the actual owner of the Real Property and asserted the Agreement was only between BAP and Sea Vault.

In December 2015, BAP filed its answer, affirmative defenses, and counterclaim against Brisas in the Trial Court Action. In January of 2016, though mediation was not yet complete, BAP voluntarily initiated an arbitration proceeding with the AAA alleging Sea Vault had failed to compensate BAP for services rendered under the Agreement (the "Arbitration"). The Arbitration was stayed pending the outcome of mediation. Mediation between BAP and Sea Vault ended in an impasse in May 2016.

Shortly thereafter, BAP filed an amended counterclaim, in the parallel Trial Court Action, adding Sea Vault as counter-defendants. BAP's amended counterclaim added fraudulent misrepresentation claims against Sea Vault. A few months later, Sea Vault filed their answer in the Arbitration. The Arbitrator set a final hearing date for March 22-24, 2017. In December of 2016, Sea Vault filed a motion for injunctive relief in the Trial Court Action (the "Injunction Motion"), requesting that the parties be required to litigate the issues in the Trial Court Action instead of in the Arbitration.

On February 13, 2017, the trial court held a hearing on Sea Vault's Injunction Motion and entered a hand-written order denying the Injunction Motion ("Injunction Order"), which simply stated "Denied." On February 24, 2017, Sea Vault appealed the Injunction Order to this Court. Meruelo v. Bermello, Ajamil & Partners, Inc., 232 So.3d 354 (Fla. 3d DCA 2017). On February 27, 2017, Sea Vault moved the Arbitrator to stay the Arbitration while the appeal was pending. The Arbitrator denied Sea Vault's motion in an order entered March 2, 2017.

Also, on March 2, 2017, the Arbitrator notified both parties that Sea Vault had not yet paid the required $ 5,000 deposit for the Arbitrator's compensation. A few days later, BAP filed a motion in the Arbitration asking the Arbitrator to sanction Sea Vault for its failure to pay the $ 5,000 deposit by precluding Sea Vault from presenting a defense and by limiting Sea Vault's participation to cross-examination of BAP's witnesses. The Arbitrator entered an order denying BAP's motion on the basis that the relief sought was not available under the Arbitration Rules of the AAA.

On March 17, 2017, BAP filed an emergency motion in the Trial Court Action asking the trial court to award monetary sanctions against Sea Vault for bad faith failure to arbitrate ("Sanctions Motion"). The trial court held a hearing on the Sanctions Motion less than two weeks later. On April 21, 2017, the trial court entered an order granting BAP's motion for sanctions and finding BAP was entitled to an award of all its reasonable attorney's fees and costs incurred in the Arbitration. In so doing, the trial court concluded it had jurisdiction pursuant to sections 682.015 and 682.031, Florida Statutes (2017), as well as under the court's inherent authority to impose sanctions for bad-faith conduct.

The trial court then conducted an evidentiary hearing on May 30; August 14; and August 16, 2017, to determine the amount of fees and costs to which BAP was entitled. On October 12, 2017, the trial court entered an 18-page Final Judgment (the "Final Judgment") awarding sanctions in favor of BAP and against Sea Vault in the amount of $ 302,848.03. After the trial court denied Sea Vault's motion for rehearing on October 31, 2017, this timely appeal ensued.

II. STANDARD OF REVIEW

Pure questions of law are subject to a de novo review. Pino v. Bank of New York, 121 So.3d 23, 31 (Fla. 2013) (observing that de novo review applied to its determination whether the trial court had inherent authority to strike a notice of voluntary dismissal); see also Wells v. Halmac Dev., Inc., 189 So.3d 1015, 1019 (Fla. 3d DCA 2016) ("[T]o the extent the trial court's determination on a motion for attorney's fees is based on an issue of law, our standard of review is de novo."). Accordingly, this Court's determination whether the trial court was authorized to sanction Sea Vault for their conduct in the Arbitration Proceeding, a separate proceeding, which was not court-ordered, must be reviewed de novo.

III. ANALYSIS

The sole basis for the trial court's award of sanctions was Sea Vault's failure to pay a $ 5,000 deposit for fees and costs in March 2017. The trial court premised its decision to award sanctions for this failure to pay on its February 13, 2017 Injunction Order. Specifically, the trial court stated:

[Sea Vault] had repeatedly sought to avoid arbitration, however, this Court ordered them to proceed with the arbitration on February 13, 2017, when this Court entered its Order denying [Sea Vault's] Motion for Injunctive Relief ... The Injunction Order required the parties to proceed to the arbitration trial that was scheduled for March 22, 2017 through March 24, 2017.

However, despite the trial court's mistaken characterization of its Injunction Order, the Order does not require the parties to proceed with the Arbitration. The only relief requested in Sea Vault's Injunction Motion was for the trial court to require BAP to litigate the issues in the Trial Court Action. The only ruling rendered by the trial court was a denial of that request. The Injunction Order simply stated "Denied." As such, the trial court never affirmatively ordered the parties to arbitrate, neither on the face of the Injunction Order nor anywhere in the transcript of the hearing from which it sprung.

Further, the trial court erred in sanctioning Sea Vault for its failure to pay the $ 5,000 deposit because this issue was not before it. See Fla. Fish & Wildlife Conservation Comm'n v. Wakulla Fishermen's Ass'n, 141 So.3d 723, 729 (Fla. 1st DCA 2014) ("In ... civil matters, courts are not authorized to award relief not requested in the pleadings." (quoting Worthington v. Worthington, 123 So.3d 1189, 1190 (Fla. 2d DCA 2013) )); Antoniadis v. Earca, N.V., 442 So.2d 1001, 1001 (Fla. 3d DCA 1983) (holding that the trial court lacked the authority to fashion a remedy that was not raised by any of the pleadings and not tried by consent)); see also Gold v. M & G Servs., Inc., 491 So.2d 1297, 1299 (Fla. 3d DCA 1986) ("The trial court erred in awarding damages to a party not seeking the relief granted." (citing Antoniadis, 442 So. 2d at 1001 )).

At the time of the Injunction Order, there existed two parallel proceedings: the Arbitration and the Trial Court Action. There was no pending request to compel Sea Vault to pay the $ 5,000 deposit in either proceeding nor had such request ever been made. Accordingly, it was error to for the trial court to award sanctions against Sea Vault for failing to do something no party had asked that Sea Vault be compelled to do.

Moreover, a trial court's inherent authority does not extend to a party's conduct in arbitration. Once a matter has been voluntarily submitted to arbitration, a trial court lacks authority to become involved in the arbitration. See John B. Goodman Ltd. P'ship v. THF Constr., Inc., 321 F.3d 1094, 1098 (11th Cir. 2003) ("[O]nce the district court was satisfied the parties assented to the arbitration clause, it was for the arbitration panel, not the district court, to determine whether the construction contracts generally were enforceable under Florida law."); Mogler v. Franzen, 669 So. 2d 269, 271 (Fla. 4th DCA 1995) (concluding that the trial court lacked jurisdiction to consider a party's recoverable damages where the parties gave the arbitrator sole authority to determine issue by agreeing to binding arbitration).

Accordingly, the Arbitrator, not the trial court, was authorized to decide procedural questions in the arbitral dispute, such as the payment of fees and questions of timeliness. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (" '[P]rocedural questions which grow out of the dispute and bear on its final disposition' are presumptively not for the judge, but for an arbitrator, to decide"); Dealer Comput. Servs., Inc. v. Old Colony Motors, Inc., 588 F.3d 884, 887 (5th Cir. 2009) ("Payment of fees is a procedural condition precedent that the trial court should not review."). Thus, the trial court was without authority to sanction Sea Vault for failing to pay the Arbitrator's fee.

Finally, the trial court's reliance on sections 682.015 and 682.031 was misplaced. Neither grants the trial court authority to sanction Sea Vault. Chapter 682, Florida Statutes, is known as the "Revised Florida Arbitration Code." Section 682.015, irrelevant to the issue before us, governs the procedure for serving petitions and motions in the trial court.

Section 682.031 is entitled "Provisional remedies" and provides as follows:

(1) Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitration proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitration proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.
(2) After an arbitrator is appointed and is authorized and able to act:
(a) The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action.
(b) A party to an arbitration proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

Subsection (1) is inapplicable because an arbitrator had already been appointed at the time of filing the Sanctions Motion. Subsection (2), applicable here, authorizes the Arbitrator to issue orders for provisional remedies and specifies that a party may move the court for a provisional remedy only "if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy." § 682.031(2)(b), Fla. Stat. (2019). Here, BAP filed its motion for sanctions in the Arbitration on March 6, 2017. The Arbitrator denied the motion one week later. Hence, no argument can be made that the Arbitrator was not able to act timely or that the Arbitrator could not provide an adequate remedy.

Three days later, BAP filed the Sanctions Motion in the Trial Court Action on March 17, 2017, seeking a second bite at the sanctions apple. Based on a plain reading of the statute, section 682.031(2)(b) does not confer jurisdiction on the trial court to award sanctions simply because the Arbitrator declined to do so.

IV. CONCLUSION

Accordingly, for the reasons set forth above, we reverse and remand for proceeding consistent herewith.

Reversed and remanded.

      We do not reach the issue of whether the amount of sanctions awarded was error because it is not necessary to do so given our decision. See Menendez v. W. Gables Rehab. Hosp., LLC, 123 So.3d 1178, 1181 n.2 (Fla. 3d DCA 2013) ("[I]f it is not necessary to decide more, it is necessary not to decide more." (alteration in original) (quoting PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J. concurring) (recognizing the cardinal principle of judicial restraint))); Pintado v. Miami-Dade Cty. Hous. Agency, 20 So.3d 929, 933 (Fla. 3d DCA 2009) (Shepherd, J., concurring) ("Because '[t]his is a sufficient ground for deciding this case, ... the cardinal principle of judicial restraint-if it is not necessary to decide more, it is necessary not to decide more-counsels us to go no further." (quoting PDK Labs., 362 F.3d at 799 )); Mann v. State, 937 So.2d 722, 730 (Fla. 3d DCA 2006) (Shepherd, J., concurring) (citing N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 640 (Fla. 2003) ("Pursuant to the doctrine of judicial restraint, we decline to address petitioners' remaining constitutional claims because resolution of those claims is unnecessary for the disposition of this case.")).

      The Agreement required BAP and Sea Vault to mediate disputes arising thereunder before the American Arbitration Association (the "AAA"). If issues remained unresolved after mediation, the Agreement provided that the parties would then proceed to arbitrate before the AAA. More specifically, the Agreement provided as follows:
      § 4.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to binding dispute resolution.
      ....
      § 4.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 4.2, the method of binding dispute resolution shall be ... [a]rbitration pursuant to Section 4.3 of this Agreement[.]
      Section 4.3 of the Agreement provides that the agreement to arbitrate "shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof."

      Brisas is not a party to the instant appeal.

      On December 22, 2016, Sea Vault filed a motion to stay the proceedings in the Arbitration pending resolution of their Injunction Motion, filed the day before in the Trial Court Action. On January 3, 2017, the Arbitrator denied Sea Vault's motion to stay, concluding that the Arbitration would continue absent an order from the trial court enjoining the matter.

      On May 11, 2017, this Court recognized Sea Vault's notice of voluntary dismissal and dismissed the appeal.

      The Arbitrator informed the parties that its options for non-payment included proceeding with the Arbitration and continuing collection efforts or suspending or terminating the case.

      BAP did not request monetary sanctions or an order compelling Sea Vault to pay the deposit in this motion.

      On March 20, 2017, the Arbitration was suspended, and on April 24, 2017, the Arbitration was terminated due to Sea Vault's failure to make the required payment.

      If the trial court were authorized to sanction Sea Vault, its decision to impose sanctions for bad-faith conduct would be reviewed for an abuse of discretion. See, e.g., Goldman v. Estate of Goldman, 166 So.3d 927, 929 (Fla. 3d DCA 2015) ("We review a trial court's decision to impose sanctions for bad faith conduct for abuse of discretion.").


author: EMAS, C.J.

text:
    Richard WADE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2078
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019 Rehearing Denied June 20, 2019
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOBREE, JJ.
   EMAS, C.J.

ON PARTIAL CONFESSION OF ERROR

Richard Wade was charged with one count of burglary of a structure during a declared state of emergency and one count of grand theft in the third degree, a third-degree felony. Following trial, Wade was convicted of the burglary as charged, and petit theft in the first degree, a first-degree misdemeanor, with the jury finding that the value of the property stolen was more than $ 100 but less than $ 300.

Wade appeals from these judgments and sentences, contending that the trial court erred (1) in permitting the State's peremptory strike of a prospective juror; and (2) in denying Wade's motion, made at the conclusion of the State's case, to reduce the grand theft to petit theft, second degree (a second-degree misdemeanor) because the State failed to introduce any evidence of the value of the items stolen in the burglary. We find no merit in Wade's first argument and affirm on that claim without further discussion.

As to Wade's second claim, however, the State concedes that it failed to present any evidence of the value of the liquor that was stolen in the course of the burglary. To sustain the conviction for petit theft in the first degree, the State was required to present evidence that the value of the liquor stolen during the burglary was $ 100 or more. See § 812.014(2)(e), Fla. Stat. (2017) (providing that "if the property stolen is valued at $ 100 or more, but less than $ 300, the offender commits petit theft of the first degree"); Contes v. State, 190 So. 3d 198 (Fla. 3d DCA 2016) ; A.D. v. State, 30 So. 3d 676 (Fla. 3d DCA 2010).

Upon our review of the record, we agree with the State's proper and commendable confession of error. In the absence of any evidence of value, the trial court should have granted Wade's motion and reduced the third-degree grand theft charge to petit theft in the second degree, a second-degree misdemeanor. See § 812.014(3)(a), Fla. Stat. 2017 (providing in pertinent part: "Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree ..."); Fla. R. Crim. P. 3.620 (providing: "When the offense is divided into degrees or necessarily includes lesser offenses and the court, on a motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.")

We affirm the judgment and sentence for burglary. We reverse the judgment and sentence for first-degree petit theft and remand for the trial court to enter judgment and sentence for second-degree petit theft, a second-degree misdemeanor.

      See § 810.02(4), Fla. Stat. (2017) (enhancing burglary of an unoccupied structure from a third-degree felony to a second-degree felony "if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency.")


text:
    BENEFIT ADMINISTRATIVE SYSTEMS, LLC, Appellant, v. WEST KENDALL BAPTIST HOSPITAL, INC., et al., Appellees.
    No. 3D18-1277
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Phelps Dunbar LLP, and Michael S. Hooker and Guy P. McConnell (Tampa), for appellant.
    Isicoff Ragatz, and Matthew L. Lines and Eric D. Isicoff, Miami, for appellees.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   EMAS, C.J.

INTRODUCTION

Benefit Administrative Systems, LLC (BAS) appeals the trial court's denial of its motion to set aside a default judgment on the basis of excusable neglect. Because the trial court did not abuse its discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

West Kendall Hospital and South Miami Hospital (the Hospitals) sued BAS to recover for underpaid claims in the amount of $ 327,114.16. The summons and complaint were served on BAS's registered agent, Corporation Service Company (CSC), "a national provider of registered agent services." When BAS did not file an answer, the Hospitals sought, and the trial court entered, a default final judgment against BAS for $ 327,114.16. The Hospitals maintained (and provided evidence below) that their attorney mailed a copy of the default judgment, regular mail, to BAS's Illinois headquarters on October 16, 2017-the same day the trial court entered the default judgment. BAS denied that it received the summons and complaint or the default judgment.

On February 23, 2018, the Hospitals sought to domesticate the default judgment in an Illinois court, and to freeze BAS's assets through issuance of a "Third Party to Discover Assets" to BAS's bank. BAS contends that its "receipt of these documents was the first time [ ] it became aware of the Hospital's lawsuit and the default judgment." These documents were mailed to BAS's corporate headquarters in Illinois-the same location to which counsel had mailed a copy of the default judgment four months earlier.

On March 7 (nearly five months after the default judgment was entered), BAS filed the underlying motion to quash service and set aside judgment, alleging: (1) that it was not served; and (2) if it was served, the failure to respond was due to excusable neglect, i.e., misfiling of the served documents. During an evidentiary hearing, BAS's CEO (James Connell) testified that BAS was never served with the summons and complaint in this case. The Hospitals presented evidence that BAS was properly served (including testimony from the process server), and evidence that counsel for the Hospitals mailed the judgment to BAS's corporate office the same day default was entered.

Following the evidentiary hearing, the trial court denied the motion, finding the return of service was proper on its face and presumptively valid, and that (1) BAS "failed to offer evidence from which the Court [could] find excusable neglect"; and (2) BAS failed to act with due diligence where it filed its motion nearly five months after the Hospitals mailed (and BAS received) a copy of the default judgment. This appeal followed.

DISCUSSION

Florida Rule of Civil Procedure 1.540(b)(1) authorizes a trial court to relieve a party from a final judgment on the basis of, inter alia , excusable neglect. A trial court is accorded broad discretion in determining whether to grant such relief, and we review the trial court's order for an abuse of that broad discretion. Tikhomirov v. Bank of New York Mellon, 223 So.3d 1112, 1116 (Fla. 3d DCA 2017). However, "in case of doubt, discretion is to be exercised in favor of vacating the default." Miami-Dade Cty. v. Coral Bay Section C Homeowners Ass'n, Inc., 979 So.2d 318, 323 (Fla. 3d DCA 2008) (quotation omitted). Because the circumstances constituting excusable neglect are not precisely defined, "the facts of each case are of singular importance in determining whether relief should be granted." Id. at 322. A court has discretion to set aside a default judgment if the moving party establishes: "(1) excusable neglect in failing to timely file a response; (2) a meritorious defense; and (3) due diligence in seeking relief after discovery of the default." Santiago v. Mauna Loa Invs., LLC, 189 So.3d 752, 758 (Fla. 2016). Failure to satisfy any one of these elements will result in denial of the motion to vacate. Id.

1. Excusable Neglect

We hold that the trial court did not abuse its discretion in denying BAS's motion. While clerical errors and "failure to follow established policy" may constitute excusable neglect, Coral Bay, 979 So. 2d at 324, the only position advanced by BAS and supported by evidence was its assertion that the summons and complaint were never served upon BAS. Nevertheless, BAS's evidence was contradicted by the Hospitals' evidence, as well as the presumption of valid service arising from the return of service that was regular on its face. See Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177 (Fla. 3d DCA 2011). The trial court weighed the evidence, made credibility determinations, and concluded that BAS failed to show it was never served with the summons and complaint.

Alternatively, BAS sought to advance a second, inconsistent position: if the trial court concluded that the summons and complaint were served upon BAS, the "only explanation" was that the summons and complaint were misfiled, and thus the failure to respond was the result of excusable neglect. This second position was advanced based solely upon counsel's argument and without any supporting evidence for the claim that BAS in fact misfiled the summons and complaint. There is probably good reason for this failure of proof by BAS: any evidence it presented to establish that BAS misfiled the summons and complaint would presumably weaken (if not fully undermine) its primary argument that it was never served with the summons and complaint.

Given BAS's failure to present evidence to support its position that the summons and complaint were "misfiled," the trial court properly rejected this argument. Rivera v. Dep't of Revenue ex rel. Rivera, 899 So.2d 1265 (Fla. 2d DCA 2005) (holding that excusable neglect under rule 1.540(b) cannot be established without evidence to support a finding of a legal excuse for defendant's failure to comply with the rules of civil procedure). The trial court did not abuse its discretion in finding that BAS failed to establish excusable neglect.

2. Due Diligence

We likewise conclude that the trial court did not abuse its discretion in finding that BAS failed to act with due diligence upon learning of the default judgment. While BAS contended it never received a copy of the default judgment, this contention was challenged by the Hospitals' introduction of evidence that, on the day default was entered, counsel's office mailed the judgment to BAS's corporate headquarters-the same address where the Hospitals mailed the motion to domesticate and freeze BAS's assets (motions which BAS concedes it received). This evidence also included a certificate of service indicating that the Hospitals served BAS with a copy of the judgment by mail on October 16, 2017. See Fla. R. J. Admin. 2.516(f) (providing that a "certificate is taken as prima facie proof of such service in compliance with this rule"); JPMorgan Chase Bank, Nat'l Ass'n v. Bigley, 120 So.3d 1265, 1267 (Fla. 3d DCA 2013) (holding that "the date set forth by counsel in the certificate of service 'creates a rebuttable presumption which may be overcome by competent evidence to the contrary' ") (quoting Migliore v. Migliore, 717 So.2d 1077, 1079 (Fla. 4th DCA 1998) ).

The competing evidence introduced by the parties simply created an issue of fact for the trial court to resolve at the evidentiary hearing. Depelisi v. Wishner, 15 So.3d 808, 811 (Fla. 4th DCA 2009). The trial court rejected BAS's evidence on this issue in favor of the Hospitals' evidence (and the accompanying presumption), and concluded that BAS did receive a copy of the default judgment near the date it was mailed by the Hospitals (October 16, 2017). Based on these factual determinations, the trial court did not abuse its discretion in concluding that BAS failed to act with due diligence in filing its motion to set aside the judgment nearly five months after the Hospitals mailed (and BAS received) a copy of the default judgment. See e.g., Techvend, Inc. v. Phoenix Network, Inc., 564 So.2d 1145, 1146 (Fla. 3d DCA 1990) (finding a lack of due diligence where moving party did not seek relief until "more than three months after" it became aware of the default).

Affirmed.

      Because BAS failed to satisfy the excusable neglect and due diligence prongs, we do not address whether BAS established a meritorious defense.


text:
    EAST COAST CAPITAL INVESTMENT, LLC, et al., Appellants, v. NAIMA GROUP, LLC, Appellee.
    No. 3D18-535
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Dieppa Law Firm, P.A., and Eduardo E. Dieppa, III, Hialeah, for appellants.
    Escalante Yormack Law, PLLC, and Francisco J. Escalante and Adam J. Yormack, for appellee.
    Before EMAS, C.J., and FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding that the appellate court should affirm the trial court's judgment where "the record brought forward by the appellant is inadequate to demonstrate reversible error"); Dabas v. Boston Invr's. Grp., Inc., 231 So.3d 542, 546 (Fla. 3d DCA 2017) (concluding that the borrower's due process rights were not violated where the borrower's counsel received notice of, and participated fully at, a non-evidentiary hearing without objection and without seeking a continuance of the hearing).


author: HENDON, J.

text:
    Rolando DELLANO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D19-939
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Rolando Dellano, in proper person.
    Ashley Moody, Attorney General, for respondent.
    Before LOGUE, SCALES, and HENDON, JJ.
   HENDON, J.

The petitioner, Rolando Dellano, filed a Petition for Writ of Mandamus, seeking issuance of a writ compelling the circuit court judge to rule on his "Motion to Withdraw Plea After Resentencing," which the petitioner dated on June 27, 2018. Following our review of the lower tribunal docket and the information provided by the petitioner, we deny the Petition for Writ of Mandamus as it appears that the petitioner has not actually filed the Motion to Withdraw Plea After Sentencing as a separate docket entry.

Denied.

      The lower tribunal docket indicates that the petitioner has filed several motions seeking to withdraw/vacate his plea, but none are titled "Motion to Withdraw Plea After Resentencing" or were filed on or after June 27, 2018. Further, the copy of the Motion to Withdraw Plea After Sentencing that the petitioner has attached to his Petition for Writ of Mandamus was actually included as an exhibit in other filings, not as a separate docket entry.


text:
    T.F., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D19-77
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Thomas J. Butler, Miami Beach, for appellant.
    Karla Perkins, Miami, for appellee Department of Children and Families; Craig Robert Lewis ; Thomasina Moore (Tallahassee), for appellee the Guardian ad Litem Program.
    Before SALTER, MILLER and LOBREE, JJ.
   PER CURIAM.

Affirmed. See R.J. v. Dep't of Children & Families, 230 So. 3d 510, 511 (Fla. 3d DCA 2017) ; A.M. v. Dep't of Children & Families, 223 So. 3d 312 (Fla. 4th DCA 2017).


text:
    Miguel Angel RAMIREZ, Appellant, v. HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D18-1107
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellant.
    Alisha N. Wilson and Pedro M. Ortiz (Sunrise); Link & Rockenbach, PA, and Kara Berard Rockenbach and Daniel M. Schwarz (West Palm Beach), for appellee.
    Before LOGUE, SCALES, and HENDON, JJ.
   PER CURIAM.

Affirmed. See Gonzalez v. Citizens Prop. Ins. Corp., No. 3D17-2609, 273 So.3d 1031, ----, 2019 WL 1141236, at *3 (Fla. 3d DCA Mar. 13, 2019) ("In short, the affidavits opposing summary judgment must identify admissible evidence that creates a genuine issue of material fact.") (citations and quotations omitted).


author: LOGUE, J.

text:
    SOUTH SHORE CONDOMINIUM VENTURE, LLC, Appellant, v. The 20 CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D18-928
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Jeffrey M. Berman (Hollywood), for appellant.
    Lavin Law Group, P.A., and Andrew T. Lavin, Fort Lauderdale and Daniel E.I. Lavin, for appellee.
    Before LOGUE, SCALES, and HENDON, JJ.
   LOGUE, J.

Although labeled a final summary judgment, the order under review did not complete the judicial labor in the case below. In Appellant's cause of action to intervene in a pending lawsuit, the order under review granted summary judgment for Appellee on the basis that Appellant lacked standing because the purchase of his unit violated the declaration of condominium. Still pending before the trial court, however, is the Appellee's cause of action against the Appellant for a declaratory judgment that the Appellant's deed for purchase of the unit was void due, at least in part, to the same defects. Because these matters are not factually or legally independent from each other, the order under review does not qualify as a partial final judgment. We therefore dismiss this case for lack of jurisdiction. Fla. R. App. P. 9.110(k).

Dismissed.


text:
    INSPIRATO LLC, Appellant, v. John CIAFONE and Gina Argento, Appellees.
    No. 3D18-355
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Bryan Cave Leighton Paisner LLP, and David Axelman, Miami, for appellant.
    L.E. Burgess, P.A., and Laura E. Burgess, Miami, for appellees.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Biscayne Inv. Group, Ltd. v. Guar. Mgmt. Servs., 903 So.2d 251, 254 (Fla. 3d DCA 2005) (holding: "A cause of action for breach of contract brought by a third party beneficiary must include the following allegations: (1) the existence of a contract; (2) the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party; (3) breach of the contract by a contracting party; and (4) damages to the third-party resulting from the breach;" further holding: "A non-party is the specifically intended beneficiary only if the contract clearly expresses an intent to primarily and directly benefit the third party or a class of persons to which that party belongs") (citing Security Mut. Cas. Co. v. Pacura, 402 So.2d 1266 (Fla. 3d DCA 1981) and Aetna Cas. & Sur. Co. v. Jelac Corp., 505 So.2d 37 (Fla. 4th DCA 1987) ). See also Hollywood Lakes Country Club, Inc. v. Community Ass'n Servs., Inc., 770 So.2d 716, 719 (Fla. 4th DCA 2000) (affirming trial court's dismissal of cause of action under third-party beneficiary theory, where the contract attached to the complaint failed to establish an intent to directly and substantially benefit the developer asserting third-party beneficiary status).