text:
    Farris MCELREATH, Appellant, v. Anna Almeida GONZALEZ, Appellee.
    Case No. 2D18-303
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Benigno CALVILLO DOC #H51507, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-793
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Patrick Larrimore HALLQUIST, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1391
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    James D. SAFFORE, DOC #488495, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1717
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Charles A. POINDEXTER, II, DOC #R767273, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1857
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Anton JOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2647
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Liston T. GUMBS Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3107
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Joshua DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3457
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Aron LUNA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2584
    District Court of Appeal of Florida, Fourth District.
    February 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Anthony CLARKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3337
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Eddie T. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-138
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Dean DELGUIDICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3317
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Timothy KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2722
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Quintin ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2938
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Marcel WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3498
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Theodore PULLIAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3716
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Renee MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2751
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Don KOZICH, Appellant, v. Victoria LAZARUS, Appellee.
    No. 4D18-2159
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Daryl MYERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-109
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Tequan Raheem FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3300
    District Court of Appeal of Florida, Fourth District.
    March 7, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    ABOVE ALL BAIL BONDS and Timothy Kozlowski, Appellants, v. STATE of Florida and The St. Lucie Clerk of the Circuit Court, Appellees.
    No. 4D18-2266
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    D.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2603
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Mathew MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2803
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Margaret A. DONAHUE, Appellant, v. Stephen A. DONAHUE, Appellee.
    No. 4D18-3039
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    D.J., the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-3353
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Donna WHITESIDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3667
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Tauric GRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3751
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Terry STURGEON, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3583
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Christopher Rudolph BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3714
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Moniqua BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-107
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Emelia NAPOLI, Appellant, v. ESTATE OF Patricia JOHNSON, Patricia Johnson, Lucille Cricchio, Housevilla, LLC, Gelm, Inc., and Cove Club Investors, Ltd., Appellees.
    No. 4D18-3386
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Imad CHERIF, Appellant, v. Ghizlane HOUARY, Appellee.
    No. 4D18-2798
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Rufus MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-0023
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    B.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D18-3349
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Jason MARCELLUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-305
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Kens METELLUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D19-189
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Angel Luis DIAZ-CURET, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3161
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2019]
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Cortney L. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-3722
    District Court of Appeal of Florida, Fourth District.
    March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Shawn Derek SLATER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3878
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Hudes Ricky FREDERICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3324
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Lloyd Anthony DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2497
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Jonathan Lee GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-50
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Jeremy STOKESBERRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3288
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    William Clay TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-990
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Arthur WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-209
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Michael C. DEMARCO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-58
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Terrell EVANS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-4010
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Misael PARES-VARGAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3316
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Harry L. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3221
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Walter PENDARVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3048
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Robert James BURR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3031
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Michael D. NORTHCUTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2487
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Gabriel BOWEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2202
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Gregory WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2125
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Maynor MURILLO-ARGUETA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1069
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Kayla Breann Evelyn Lucille COLLINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-794
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Robert A. WEST, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-786
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Thomas JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-439
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Cedrick A. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3231
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Leonard LUCKEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-118
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Alex Robin MORENO FAJARDO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2012
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Larry SLADE, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1447
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Randall Keith KEARSE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3973
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kenny MORENO MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1974
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David Wayne DOWNS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3625
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    S.G., Mother of G.O., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3434
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Melvin C. LEWIS, Appellant, v. STATE of Florida, Office of the State Attorney, Ninth Judicial Circuit, Orange County, Florida, Aramis D. Ayala, Oakland, Florida, Angela D. Campbell and Elias DeJesus, Appellees.
    Case No. 5D18-2730
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jason Todd KALAPP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2039
    District Court of Appeal of Florida, Fifth District.
    Decision filed March 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Fernandez, Associate Judge.

text:
    Robert GINDEL, Kevin Humphrey, Xioadan Song, Weijing Li, Patricia Jacobs, Craig Handwerker, John Woods, Michelle Charbonneau, Annie Brousseau, Claude Racine, Roland Skerget, Anne Smart, Anthony D'Acunto, Gregg Lutz, Eric Nemeth, Judith Grasso, Lori Bryan, Brian Streicher, and Grace Mackey, Appellants, v. CENTEX HOMES, Centex Real Estate Corporation, 2728 Holding Corporation, Pulte Home Corporation, and Pulte Corporation, Appellees.
    No. 4D17-2149
    District Court of Appeal of Florida, Fourth District.
    [September 12, 2018]
    Scott C. Harris of Whitfield Bryson & Mason, LLP, Raleigh, NC, for appellants.
    Luis E. Ordonez and Gabriel A. Alfonso of Quintairos, Prieto, Wood & Boyer, P.A., Miami, John H. Dannecker, Derrick M. Valkenburg, and Jennifer P. Sommerville of Shutts & Bowen, LLP, Orlando, and Jason B. Gonzalez of Shutts & Bowen, LLP, Tallahassee, for appellees.
   Fernandez, Associate Judge.

Robert Gindel, et al., (collectively, "Homeowners") appeal the Final Judgment entered by the trial court granting summary judgment in favor of Centex Homes and its subcontractor, Reliable Roofing and Gutters, Inc., (collectively, "Centex"). Upon consideration of the statute of repose for actions founded upon the improvement of real property, we find that Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004, Florida Statutes (2014). Accordingly, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The underlying case is a construction defect case for damages arising from allegedly improperly constructed townhomes. On March 31, 2004, Homeowners closed on and took possession of their townhomes constructed by Centex. From this date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. The Homeowners discovered the alleged construction defect and, on February 6, 2014, provided the requisite pre-suit notice of defect to Centex, pursuant to Chapter 558. At the completion of the mandatory pre-suit procedure, Centex notified Homeowners that it would not cure the alleged defect. On May 2, 2014, Homeowners filed suit.

The trial court found that Homeowners commenced an action upon filing suit and, therefore, concluded that the action originated after the expiration of the ten-year period of the statute of repose. In response, Homeowners argued that the action commenced upon filing the requisite pre-suit notice of Chapter 558, which was in fact filed before the 10 year period lapsed. The trial court rejected Homeowners' argument and granted summary judgment in favor of Centex. Homeowners appealed.

II. RELEVANT STATUTES

The outcome of this appeal hinges on whether the pre-suit notice required by Chapter 558 qualifies as "an action," as the term is defined in the statute of repose, sections 95.011 and 95.11(3)(c).

Chapter 95 - Statute of Repose

The applicable language limiting actions founded upon the improvement of real property is provided as follows:

95.011A civil action or proceeding , called "action" in this chapter, [...] shall be barred unless begun within the time prescribed in this chapter [...].
95.11(3)(c)An action founded on the design, planning, or construction of an improvement to real property [...] must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

§§ 95.011, 95.11(3)(c), Fla. Stat. (2014) (emphasis added).

Chapter 558 - Pre-suit Notice Requirement

Chapter 558 required Homeowners to provide pre-suit notice of defect to Centex to allow the contractor an opportunity to cure, as an alternative to litigation. The relevant portion of the statute reads:

558.002(1)"Action" means any civil action or arbitration proceeding for damages or indemnity asserting a claim for damage to or loss of real or personal property caused by an alleged construction defect, but does not include any administrative action or any civil action or arbitration proceeding asserting a claim for alleged personal injuries arising out of an alleged construction defect.
558.003 A claimant may not file an action subject to this chapter without first complying with the requirements of this chapter . If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action , without prejudice, and the action may not proceed until the claimant has complied with such requirements.
558.004(1)(a) In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action , or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor , subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter.

§§ 558.002(1), 558.003, 558.004(1)(a), Fla. Stat. (2014) (emphasis added).

III. ANALYSIS

Throughout the order on appeal, the trial court conflated the separate and distinct definitions of the term "action" provided in Chapter 95 and Chapter 558. In Chapter 558, given the definition and the context in which the term is used, it is evident that the term "action" indeed does not include the mandatory pre-suit procedure set forth in the chapter. This is especially apparent when, in section 558.004, the chapter instructs that a written notice of claim shall be served on the contractor before an action is brought. However, in Chapter 95, "action" is defined more broadly and without much context to limit the meaning of the term. Chapter 95 is a statute of repose specific to construction claims but does not appear to rely on Chapter 558 or reference it in any way. Therefore, this Court concludes that the interpretation of the term "action" in Chapter 95 is distinct from and without reliance on the term as it is defined and used in Chapter 558.

Focusing on the Chapter 95 term, Homeowners argue that the definition of "action" is broad in scope as it is simply defined as, "A civil action or proceeding." Homeowners focus on the "proceeding" portion of the definition and contend that the mandatory pre-suit notice and procedure set forth in Chapter 558 is a "proceeding" and is thus an "action." Homeowners' reasoning is logical and practical. The trial court interpreted "action" exclusively as a "civil action," that is commenced solely by filing a complaint. The trial court's interpretation ignores the full definition of Chapter 95, rendering the rest of the definition, "or proceeding," as meaningless surplusage.

Homeowners cite to Raymond James Financial Services, Inc. v. Phillips , 126 So.3d 186 (Fla. 2013), for the proposition that the Florida Supreme Court has already recognized that civil actions and proceedings are distinct concepts and therefore must be interpreted separately. The trial court had found, and the Second District agreed, that the definition "civil action or proceeding," pursuant to section 95.011, only applies to judicial actions and does not include arbitration proceedings. Raymond James Fin. Servs., Inc. v. Phillips , 110 So.3d 908, 912 (Fla. 2d DCA 2011), decision quashed , 126 So.3d 186 (Fla. 2013). Upon certification to the Florida Supreme Court, the Supreme Court found that if the legislature wanted to limit proceedings to judicial proceedings, it would have added "judicial" before "proceeding" in the definition. Raymond , 126 So.3d at 191. For the plain meaning of the term, the Supreme Court cited to dictionary definitions, including Merriam-Webster's Dictionary of Law defining "proceeding" as "a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations." Id. at 191 n. 4. Homeowners claim in their brief,

If Chapter 558 did not have mandatory procedures that must be followed in order to recover damages for construction defects, then the Homeowners would have filed the class action complaint on February 6, 2014. [...] By impacting the entire process of a construction defect claim, Chapter 558 imposes mandatory steps that are on a continuum of a larger proceeding.

We agree with Homeowners that Chapter 558 lays out a series of mandatory steps that must be complied with before judicial action is to be taken, and therefore, the pre-suit notice constitutes an "action" for purposes of the statute of repose.

Up until this decision, Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice of Chapter 558 qualifies as an "action," pursuant to Chapter 95. However, in Musculoskeletal Institute Chartered v. Parham, 745 So.2d 946 (Fla. 1999), the Florida Supreme Court held that, in the context of medical malpractice, compliance with the statutory pre-suit notice and investigation requirements of sections 766.104(1) and 766.106(4), Florida Statutes (1989), constituted commencement of an "action" for purposes of the statute of repose. The Supreme Court found that "commencing an action in the circuit court is inextricably linked to [...] [the] provisions of chapter 766." Id. at 951. And, "[I]t would be an unconstitutional impediment to access to the courts if compliance with the statutory requirements in chapter 766 resulted in a potential claimant's suit being forever barred by the associated statute of repose." Id. at 952. We find the same to be true in the construction context.

In the order on appeal, the trial court extensively cited to a singular footnote in Busch v. Lennar Homes, LLC , 219 So.3d 93 (Fla. 5th DCA 2017), for support as to why Florida courts cannot apply Parham to a construction case. In this singular footnote, the Busch court stated that in the construction context, there is no infringement upon a construction defect claimant's right to access the courts as is present in the medical malpractice context. Id. at 96 n. 2. This assertion is based on the stay provision provided in Chapter 558 that allows a party, who has already filed suit before complying with the pre-suit requirement, to stay the suit until compliance with the statute, while the pre-suit notice requirement of the medical malpractice chapter does not include a stay provision. Id.

Aside from this footnote being dicta, as Busch was decided on the insufficiency of the complaint and not on the issue at hand, the trial court is using the stay provision as a sword against the Homeowners. In the order on appeal, the trial court argues that Homeowners should have availed themselves of the stay provision that would have allowed the Homeowners to file suit for the purpose of commencing an action before the expiration of the statute of repose. Chapter 558 makes clear that the pre-suit notice requirement is a mandatory procedure that must be complied with before filing suit. Homeowners should not be penalized for rightly complying with the mandates of the statute.

Though Homeowners could have taken advantage of the Chapter 558 stay provision, this provision has no bearing on whether an action was commenced before the statute of repose period lapsed. The statute of repose clearly defines an action as a civil suit or a proceeding . Thus, on the basis of Florida Supreme Court precedent set forth in Raymond and Parham , this Court concludes that compliance with the pre-suit notice requirement of Chapter 558 constitutes an "action" for purposes of the statute of repose in the context of the improvement of real property. Chapter 558 was not intended as a stalling device in order to bar claims.

IV. CONCLUSION

Therefore, because the Homeowners commenced an action by providing the requisite pre-suit notice to Centex within the ten-year statute of repose period, we reverse the Final Judgment entered by the trial court granting summary judgment in favor of Centex and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Suarez and Scales, Associate Judges, concur.

      The Supreme Court also referred to Black's Law Dictionary for guidance:
      Black's Law Dictionary defines "civil action" as "[a]n action brought to enforce, redress, or protect a private or civil right; a noncriminal litigation." Black's Law Dictionary 34 (9th ed. 2009). It defines "proceeding" as "[a]ny procedural means for seeking redress from a tribunal or agency." Id. at 1324.... As Black's Law Dictionary notes, a tribunal is '[a] court or other adjudicatory body." Black's Law Dictionary 1646 (emphasis added).
      Raymond , 126 So.3d at 190-91. Though Black's Law states that the purpose of a proceeding is to seek redress from "a tribunal or agency," ultimately. Homeowners are striving to seek redress from the judicial courts, if necessary, and in order to reach the courts, Homeowners must first pass through the "procedural means" of compliance with the mandatory pre-suite notification procedure of Chapter 558.


author: Kuntz, J.

text:
    STATE of Florida, Appellant, v. Madcene SERFRERE, Appellee.
    No. 4D17-1374
    District Court of Appeal of Florida, Fourth District.
    [January 9, 2019]
    Ashley Brooke Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellee.
   Kuntz, J.

A jury found Defendant Madcene Serfrere guilty of trafficking in cocaine and possession of cocaine. After sentencing, the court granted Serfrere's motion for new trial based on an alleged Brady issue. The State argues that the evidence at issue was not material, precluding Serfrere from establishing prejudice. Because we agree with the State that the evidence at issue was neither material nor prejudicial to Serfrere, we reverse the court's order granting a new trial and remand with instructions to reinstate the jury's verdict.

Background

The issue in this appeal relates to a detective, Detective D.J., under investigation while this case was pending. Detective D.J. and his partner, Detective J.R., worked together during the investigation of Serfrere. The State listed Detective D.J. on a discovery witness list, but the State did not identify him as a potential witness during voir dire.

While the jury was deliberating, Serfrere's counsel brought to the court's attention that the State had not called Detective D.J. during trial. Counsel informed the court that he contacted the clerk of court during a recess and learned that Detective D.J. was the subject of a Brady notice and "[was] under investigation by the State Attorney's Office and the SPU Unit for Grand Theft."

Serfrere's counsel acknowledged that Detective D.J. was on the State's discovery list, but told the court that the State did not advise him of any Brady information. He also told the court that he found no information on the docket related to the Brady notice, and he did not receive the Brady notice.

The State responded that the Brady notice was filed by the prior prosecutor and scanned with a bar code. But the trial prosecutor admitted she had not verified that the notice was docketed.

Serfrere's counsel maintained that Detective D.J. and his partner, Detective J.R., were the only people who could confirm whether a purported confidential informant was documented with the police department, an issue relevant to Serfrere's objective entrapment defense. He also brought attention to Serfrere's missing cell phone, which was in Serfrere's possession at the time of the arrest but was lost and never logged as evidence.

After discussions with counsel about the confidential informant, the court stated: "I mean you are moving for a mistrial, [and] the jury is back there deliberating." In response, Serfrere's counsel stated: "Well, depending on what the jury does, Judge, then - I am being candid with the court, depending on what the jury does I might ask for a mistrial."

The next day, Serfrere's counsel informed the court that he "looked into" Detective D.J. and found "some theft allegations about him stealing stuff from Defendants, ... and it goes right to this case of where my client cell phone is missing." But he also stated: "Judge, I don't think this Court can grant me a mistrial. If they come back guilty I am going to ask for a mistrial."

The jury returned from deliberations and found Serfrere guilty of possessing a trafficking amount of cocaine and guilty of the lesser-included offense of possession with intent. After discharging the jury, the court asked counsel: "Where do we -- well, it wouldn't be for a mistrial we already have a verdict. You didn't want to do a mistrial during trial. At this point we have a verdict so the question is now where do we go from here?"

In response, Serfrere's counsel moved for a new trial and argued that, had he known about the investigation into Detective D.J., his defense strategy would have changed: he would have cross-examined Detective J.R. about Detective D.J., which would have been relevant to Detective J.R.'s credibility. Defense counsel asserted that knowing about the investigation into Detective D.J. "would have changed our defense in reference to how I would have attacked that particular witness which was his partner."

He also argued that Serfrere's missing cell phone never went into evidence, which may have related to whether Detective D.J., who was under investigation for theft, took the phone.

After argument, the court denied the motion for new trial. But Serfrere moved for reconsideration, focusing on the missing cell phone. He argued he "would have subpoenaed [Detective D.J.] to question him on the whereabouts of the missing cell phone. The cell phone is key evidence in this case, because it would have proved who the Defendant was texting on the date of the incident; the police officer or the confidential informant."

At the hearing, the court reasoned the allegation that the confidential informant was working with Detective D.J. "would have been established if they had the cell phone records or had the cell phone to show the text from the cell phone." The court concluded "[defense counsel] has established that he would have done something different had [Detective D.J.] been called to come in, the evidence would have come in that he was under investigation, because it would have been for impeachment." The State argued that the investigation would not be admissible to impeach Detective D.J. because it was not a conviction, and the court clarified that it would be relevant to impeachment for bias.

The court granted Serfrere's motion for reconsideration and motion for new trial based on the purported Brady violation.

Analysis

We review an order granting a new trial for abuse of discretion. State v. Dunnaway , 778 So.2d 378, 378 (Fla. 4th DCA 2001) (citation omitted).

"In order to demonstrate a Brady violation, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced." Hayward v. State , 183 So.3d 286, 311 (Fla. 2015) (citations omitted).

The focus of our inquiry here, and the only prong in dispute, is whether the evidence was material. Materiality requires the defendant to establish "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (quoting Youngblood v. West Virginia , 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) ). If the evidence was not material, Serfrere will be unable to establish prejudice. We find that the evidence was not material and that, as a result, Serfrere cannot establish prejudice.

Detective D.J. was being investigated for an incident that allegedly occurred in Atlanta, Georgia. Our supreme court has explained that "[i]f a state witness is merely under investigation ... the ability to cross-examine on such investigation is not absolute. Instead, any criminal investigation must not be too remote in time and must be related to the case at hand to be relevant." Breedlove v. State , 580 So.2d 605, 608 (Fla. 1991) ; see also Reed v. State , 875 So.2d 415, 431 (Fla. 2004) (applying Breedlove prongs); Ferguson v. Sec'y for Dep't of Corr. , 580 F.3d 1183, 1206-07 (11th Cir. 2009) (discussing materiality of evidence that detectives were under investigation). There is nothing in the record connecting the investigation into Detective D.J. to Serfrere's missing cell phone. So Breedlove precluded Serfrere from impeaching the detective with evidence of the pending investigation.

Serfrere correctly points out that by creating a Brady notice of the investigation into Detective D.J., the State acknowledged that the evidence could have been material and prejudicial under Brady . But, since voir dire, Serfrere was on notice that the State did not intend to call Detective D.J. as a witness. As such, this is not a case of an undisclosed material witness. Instead, it involves a witness the State disclosed and later stated would not be called to testify.

Beyond that, generally, a defendant cannot call a witness mainly to impeach him. See Morton v. State , 689 So.2d 259, 264 (Fla. 1997), receded from on other grounds , Rodriguez v. State , 753 So.2d 29 (Fla. 2000) ("Generally, however, if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony."). Because the State did not intend to call Detective D.J. as a witness, there could have never been an opportunity for Serfrere to impeach him.

Serfrere failed to establish he was prejudiced by the State's inadvertent failure to provide a proper Brady notice. As a result, the court erred in granting the motion for new trial.

Conclusion

We reverse the court's order granting Serfrere's motion for new trial and remand with instructions to reinstate Serfrere's convictions and sentences.

Reversed and remanded.

Taylor and Conner, JJ., concur.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      Serfrere questioned Detective J.R. about the location of the cell phone and the text messages sent from the phone.


author: Forst, J.

text:
    LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. PIN-PON CORPORATION, Appellee.
    Nos. 4D18-339 4D18-846
    District Court of Appeal of Florida, Fourth District.
    [February 13, 2019]
    Hinda Klein of Conroy Simberg, Hollywood, and Lauren Levy of Levy Law Group, Coral Gables, for appellant.
    Curtis B. Miner of Colson Hicks Eidson, P.A., Coral Gables and Stephen A. Marino, Jr. and Arya Attari of Ver Ploeg & Lumpkin P.A., Miami, for appellee.
   Forst, J.

Landmark American Insurance Company appeals a final judgment awarding Pin-Pon Corporation, its insured, $5,644,668.79 for expenses Pin-Pon incurred bringing its Palm Court Resort Hotel property up to code while repairing the extensive damage caused by Hurricanes Frances and Jeanne in September 2004. Landmark raises four issues. We reverse and remand on two, holding the trial court erred by: (1) permitting Pin-Pon to withdraw from its pretrial stipulation that Landmark could be liable for no more than $2.5 million in code upgrade costs per hurricane, and (2) finding Landmark paid Pin-Pon $651,278.16 for code upgrades before trial, after the parties stipulated to $698,774.31.

Background

This is the second appearance of this case before this court. Before the first trial, the parties entered into a pretrial stipulation in which Pin-Pon agreed that the Landmark policy was limited in coverage to $2.5 million for code upgrade costs per hurricane. In accordance with the stipulation, Pin-Pon agreed to seek $2.5 million for each hurricane. The jury awarded Pin-Pon $1.5 million in code upgrade costs for Hurricane Frances and found that no additional code upgrade costs were incurred from the subsequent hurricane, Jeanne. Landmark appealed the Frances judgment, and this Court reversed and remanded for a new trial on code upgrade costs resulting from Frances. Landmark Am. Ins. Co. v. Pin-Pon Corp. , 155 So.3d 432, 442 (Fla. 4th DCA 2015). Following our remand, and before the new trial, Pin-Pon moved to withdraw its earlier stipulation, arguing it had misinterpreted the insurance policy. The trial court apparently accepted the withdrawal, as it awarded Pin-Pon $6,295,946.95 in code upgrade costs to be paid by Landmark, minus the $651,278.16 it found Landmark had already paid, resulting in a $5,644,668.79 judgment.

Analysis

We review decisions on motions to withdraw stipulations for abuse of discretion, unless the decision is purely one of law which would entail de novo review. See Eagle FL VI SPE, LLC v. T & A Family P'ship, Ltd. , 177 So.3d 1277, 1282 (Fla. 2d DCA 2015).

"[G]enerally ... stipulations as to questions of law are not binding ...." Marion Cty. v. Dep't of Juvenile Justice , 215 So.3d 621, 626 (Fla. 1st DCA 2017). However, "when a case is tried upon stipulated facts the stipulation is binding not only upon the parties but also upon the trial and appellate courts and further that no other or different facts will be presumed to exist." Troup v. Bird , 53 So.2d 717, 721 (Fla. 1951). As the First District recently reiterated: "Long ago, the Florida Supreme Court announced the enduring principle concerning [factual] pretrial stipulations: 'A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.' " Delgado v. Agency for Health Care Admin. , 237 So.3d 432, 436-37 (Fla. 1st DCA 2018) (quoting Gunn Plumbing, Inc. v. Dania , 252 So.2d 1, 4 (Fla. 1971) ).

"In order to obtain relief from a [factual] stipulation, a party must make a reasonable motion to withdraw the stipulation supported by an affidavit showing good cause." Eagle FL VI SPE, LLC , 177 So.3d at 1280 (quoting Henrion v. New Era Realty IV, Inc. , 586 So.2d 1295, 1298 (Fla. 4th DCA 1991) ). "Relief is not warranted 'where it appears that the stipulation was voluntarily undertaken and there is no indication that the agreement was obtained by fraud, misrepresentation, or mistake of fact.' " Id. (quoting Henrion , 586 So.2d at 1298 ); see also Limehouse v. Smith , 797 So.2d 15, 17 (Fla. 4th DCA 2001) ("[A] party's performance under a contract is not excused on the basis of unilateral mistake when the mistake is the result of the party's own negligence and lack of foresight ...."). "[T]he fact that [a party] subsequently change[s] its interpretation of the law [is] not a valid basis for it to unilaterally reject the Joint Stipulation[ ]." Marion Cty. , 215 So.3d at 627.

Here, based on its interpretation of the Landmark insurance policy, Pin-Pon made a legal stipulation that the policy was limited to $2.5 million in code upgrade costs per hurricane. Also included in the parties' first pretrial stipulation, was Pin-Pon's factual stipulation that it was seeking $2.5 million in code upgrades necessitated by Frances. While the trial court was not bound by the legal stipulation, Pin-Pon's purported mistake of law (or subsequent change in its interpretation of the policy) is not good cause for withdrawal from its factual stipulation. See Marion Cty. , 215 So.3d at 626-27. Therefore, it should have remained bound to the factual stipulation.

Moreover, Landmark was arguably prejudiced by the erroneous withdrawal. It may not have appealed the $1.5 million Frances award had it known it could be liable for the full $6.3 million in claimed damages, rather than the agreed upon $2.5 million limit. See Limehouse , 797 So.2d at 17 ("[A] party's performance under a contract is not excused on the basis of unilateral mistake when ... the other party has relied upon his performance so that rescission would be inequitable.").

Landmark also argues it paid Pin-Pon $906,470.31 in code upgrade costs before Pin-Pon sued, yet the trial court credited it with only $651,278.16, based on the testimony of a Pin-Pon witness. However, the second pretrial stipulation states that Landmark had paid Pin-Pon $698,774.31. Neither party withdrew from this stipulation, so the court was bound by the agreed-upon amount.

Conclusion

For the reasons set forth above, we reverse and remand for a reduction in Landmark's code upgrade liability to $2.5 million, minus the $698,774.31 it has already paid, and a recalculation of pre- and post-judgment interest.

Reversed and Remanded.

Gerber, C.J., and Klingensmith, J., concur.

      Neither party has challenged the jury's determination that the Landmark insurance policy was not implicated with respect to code upgrade damages attributable to Hurricane Jeanne.


text:
    D.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-516
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Kuntz, J.

A juvenile appeals the circuit court's amended disposition order adjudicating him delinquent for violating probation for the charge of lewd or lascivious molestation of a victim under twelve years old. The juvenile argues the court erred by imposing a sexual offender registration requirement based on factual findings the original sentencing judge did not make. We affirm but remand for the court to issue a written order revoking the juvenile's post-commitment probation and, based on D.S.'s admission, specifying which probation conditions he violated.

Under the sexual offender registration statute, an individual is defined as a "sexual offender" if:

d. On or after July 1, 2007, [he] has been adjudicated delinquent for committing ... any of the criminal offenses proscribed in the following statutes in this state ... when the juvenile was 14 years of age or older at the time of the offense:
...
(III) Section 800.04(5)(c) 1. where the court finds molestation involving unclothed genitals[.]

§ 943.0435(1)(a)1.d.(III), Fla. Stat. (2014).

Here, the juvenile qualifies as a sexual offender under the plain language of the statute because he was fifteen years old at the time of the offense, was adjudicated delinquent in 2014, and the court found the molestation involved unclothed genitals.

Because the juvenile violated section 800.04(5)(c)1., Florida Statutes (2014), the registration statute required the court to make written findings of "the age of the offender at the time of the offense"; "the age of the victim at the time of the offense"; whether the offense "did or did not involve unclothed genitals or genital area"; and whether the offense "did or did not involve the use of force or coercion." § 943.0435(1)(a)2., Fla. Stat. (2014).

The statute states that the "the court shall make a written finding" about the listed items. § 943.0435(1)(a)2., Fla. Stat. (2014). Both the judge who presided over the original disposition hearing and the judge who presided over the violation of probation hearing are the court.

Nothing in the plain language of section 934.0435 limited the requirement or authority to make the statutory findings to the original sentencing judge. See State v. Burris , 875 So.2d 408, 410 (Fla. 2004) ("[T]he statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." (citation omitted) ).

The language of section 934.0435 is different than the language of the sexual predator statute, which specifically requires that the court make findings at the time of sentencing. See § 775.21(5)(a)1., Fla. Stat. (2014) (stating that "the court shall make a written finding at the time such offender is determined to be a sexually violent predator ..."). That statute states that if the court did not make the required findings at the time of sentencing, the State must remove the offender from the registry. § 775.21(4)(c)1.-2., Fla. Stat. (2014). But if the findings are not made, the state attorney must be notified and "shall bring the matter to the court's attention in order to establish that the offender meets the criteria for designation as a sexual predator." § 775.21(4)(c)2., Fla. Stat. (2014). The court is provided authority to make written findings at that time. Id. ; see also § 775.21(5)(a)3., Fla. Stat. (2014).

Section 943.0435(1)(a)2. requires that the court make certain findings. Here, the court made the required findings at the violation of probation disposition hearing. At that time, the juvenile admitted to violating probation and the court had the authority to "impose any sanction [it] could have imposed at the original disposition hearing." § 985.439(4), Fla. Stat. (2014).

Despite our affirmance of the court's imposition of the sexual offender registration requirement, we remand the case for the entry of a written order revoking the juvenile's post-commitment probation and specifying which conditions he violated. We have held that there are "no exceptions" to the rule that "[i]f a trial court revokes a defendant's probation, the court is required to render a written order noting the specific conditions of probation that were violated." M.A.L. v. State , 110 So.3d 493, 498 (Fla. 4th DCA 2013) (quoting Robinson v. State , 74 So.3d 570, 572 (Fla. 4th DCA 2011) ); see also § 985.439(4), Fla. Stat. (2014) ("Upon the child's admission, ... the court shall enter an order revoking, modifying, or continuing probation or postcommitment probation."). When the record does not contain such an order, "it is appropriate to remand for entry of a proper order." M.A.L. , 110 So.3d at 498 (quoting Robinson , 74 So.3d at 572 ); see also K.M.A. v. State , 125 So.3d 1000, 1001 (Fla. 2d DCA 2013).

We affirm the court's imposition of the sexual offender registration requirement but remand for the entry of a written order revoking D.S.'s post-commitment probation and, based on his admission, specifying which probation conditions he violated. See, e.g. , Mills v. State , 150 So.3d 272, 273 (Fla. 2d DCA 2014) ; R.B. v. State , 805 So.2d 75, 75 (Fla. 4th DCA 2002).

Affirmed and remanded with instructions.

Gerber, C.J., and Ciklin, J., concur.


author: Per Curiam.

text:
    Amy B. SCHWARTZ and Jay F. Schwartz, Appellants, v. BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, L.P., Briar Bay Community Association, Inc., and Waters Edge At Briar Bay Association, Inc., Appellees.
    No. 4D17-3457
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Bruce Jacobs of Jacobs Legal, PLLC, Miami, for appellants.
    Adam J. Wick of Liebler Gonzalez & Portuondo, Miami, for appellee Bank of America, N.A.
   Per Curiam.

We affirm the final summary judgment of foreclosure. The appellants contend that discovery was outstanding and material issues of fact remained on their claim of fraud on behalf of the appellee's predecessor, Bank of America, in the fixation of an endorsement to the promissory note. They contended that the endorsement was added after the original holder of the note, Countrywide Home Loans, Inc., was dissolved; thus, the appellee lacked standing to enforce the note. The appellee relied on section 673.3081, Florida Statutes (2012), to establish its standing, which provides for presumption of authenticity and authority of signatures on secured instruments, shifting to the party opposing the validity of the note the burden to offer some showing to negate the presumption. See Bennett v. Deutsche Bank Nat'l Tr. Co ., 124 So.3d 320 (Fla. 4th DCA 2013). No affidavits or any other type of evidence was timely submitted to counter the appellee's motion for summary judgment. Therefore, the presumption was never rebutted, and summary judgment was properly entered.

Additionally, appellants also claim that the court erred in entering judgment when appellee had repeatedly violated discovery orders, and because discovery was not complete. First, the trial court made no findings that appellee violated any discovery orders. To the contrary, the court found that appellants had failed to comply with discovery. Secondly, the discovery about which appellants complained was still outstanding at the summary judgment hearing, but it had been propounded only days prior to the hearing. The hearing had been pending for several months in the case, which had been filed in 2012. The court determined that the appellants had not diligently conducted discovery, and it denied a motion for continuance. No abuse of discretion has been shown.

Affirmed as to all issues raised.

Warner, Damoorgian and Levine, JJ., concur.


author: May, J.

text:
    Isaiah BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3448
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Philip J. Massa of Philip J. Massa, P.A., West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Kimberly T. Acuna, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and sentence for first-degree murder with a firearm and robbery with a firearm. He argues the evidence was insufficient to establish he was the shooter, and the court should have granted his motion for judgment of acquittal. He also argues the trial court erred in admitting testimony from a detective that shifted the burden of proof. We disagree and affirm.

The State charged the defendant and co-defendants with: (1) first-degree murder with a firearm; (2) robbery with a firearm; (3) grand theft auto; and (4) grand theft. The amended information alleged the defendant arranged a fake drug transaction during which he robbed and shot the victim. Four individuals were involved in the commission of the crime: the defendant and three co-defendants. Two of the co-defendants, Jerry and Robinson, testified at trial.

Robinson testified that he, the defendant, the victim, and a fourth man traveled in the victim's rental car to conduct a drug transaction. The defendant drove, the victim occupied the front passenger seat, and the co-defendant and fourth man sat in the back seat. When the victim and the fourth man went inside a gas station, the defendant talked about robbing the victim and then called another man from his phone. Robinson heard the defendant ask the other person if he was already there.

When all four men were back in the car, they drove to a parking lot where co-defendant Jerry was waiting in his truck. When they got out of the car to meet Jerry, the defendant held the victim at gunpoint while Jerry went through the victim's pockets and possessions. They took $ 100 and a cell phone from the victim.

After the robbery, Robinson and Jerry returned to the truck when Robinson heard a gunshot. He did not see who shot the gun, but testified that Jerry was on the truck's driver's side. The defendant was the last person Robinson saw with the gun. Robinson and Jerry left and later met up with the defendant. They all returned to the Days Inn, where the defendant, his girlfriend, and her uncle were staying.

Robinson went to his sister's house the next day. When Robinson learned the police were investigating the shooting, his sister encouraged him to tell the police what happened. He gave a statement to the police and identified a photograph of the victim at the crime scene. Robinson identified Jerry, the defendant, and others present during the crime.

Jerry testified the defendant called and asked to meet him. The defendant told him he had a "lick," meaning getting money from someone, on a "white guy" and asked Jerry to feign a drug sale. Jerry drove the truck to a dead end as instructed.

The victim and defendant walked towards Jerry's truck, at which point the victim asked Jerry for pills. Jerry testified the defendant approached the victim from behind and hit him in the back of the head with a gun. When the victim asked what was happening, the defendant pointed the gun at the victim and told him to "give it up." The victim reached into his pockets, taking out a cell phone and some money.

The defendant walked back towards the victim's rental car. Jerry heard the victim say, "just don't shoot," at which point, the defendant shot the victim.

The defendant got in the victim's rental car. Robinson and Jerry left in the truck. The defendant called Jerry later and arranged to meet at an apartment building where Jerry picked up the defendant. They all returned to the hotel.

There, Jerry asked the defendant why he shot the victim. The defendant did not respond. Jerry repeatedly told the defendant that "he should never have shot the white guy" and the defendant told him to be quiet, not worry, and say nothing. Jerry stayed the night at the hotel. In the morning, the defendant gave him $ 50. The defendant gave the cellphone to his girlfriend to sell.

Jerry met with the police; he agreed to talk to them and to make a controlled call the same day. During the controlled call, the defendant asked Jerry what the police were saying when they came to Jerry's house and whether they had a warrant. Jerry told the defendant that he "shouldn't have never even did that sh__," and identified the defendant as responding: "don't even start with that little whoe sh__," "stop acting like a B_____," and "get some ba___." The controlled call was admitted into evidence.

During the detective's testimony, the following occurred:

[PROSECUTOR]: [W]hen you met with ... Jerry and you heard that controlled phone call, ... was there any doubt in your mind that [the defendant] was involved?
[DETECTIVE]: Yes -- I'm sorry, no, there was no doubt in my mind.
....
[PROSECUTOR]: Okay. And were those responses that you heard coming from [the defendant], were they responses that would indicate he didn't know what the heck ... Jerry was talking about?
[DETECTIVE]: No, not at all; he knew what he was saying.
[PROSECUTOR]: Did you ever hear him say on that controlled phone call, man I, don't even know what you are talking about?
[DETECTIVE]: No, I did not.
[PROSECUTOR]: Did you ever hear him say, look, I was there, but I didn't shoot the man; you shot the man...? Did you ever him hear him say that?
[DETECTIVE]: No, I did not.
[PROSECUTOR]: Did you hear him use language that was consistent with trying to shut [Jerry] up?
[DETECTIVE]: Yes.
[DEFENSE COUNSEL]: Objection, Judge. Speculation. Move to strike. The jury heard the tape; her opinion doesn't count.
THE COURT: I will sustain your objection as to the officer's interpretation.
[DEFENSE COUNSEL]: Move to strike it.
THE COURT: Granted.
....
[PROSECUTOR]: All right. And based on what was being said ... during that phone call, did this man ever respond by saying he didn't know what he was talking about?
[DETECTIVE]: No.
[PROSECUTOR]: So at that point in your mind, is he responding like someone who had no involvement and didn't know what he was talking about?
[DETECTIVE]: No.
[PROSECUTOR]: So in your mind, is that statement for you, incriminating enough?
[DETECTIVE]: Yes.

The defendant's girlfriend testified that she checked into the hotel with the defendant, Robinson, and her uncle. The defendant told her he was taking the victim to get pills and drove off. The men were gone for approximately forty-five minutes. When they returned, the victim was not with them.

She testified that they seemed nervous and frequently checked the window. Jerry gave her an iPhone to sell. She received $ 200 for the phone. When she saw a news story on TV about the murder, she recognized the victim as the man in the car with the defendant.

Without objection, she testified that she asked the defendant about what happened and all he said was that he didn't do anything. He subsequently admitted to the robbery. He told her he did not intend to shoot the victim, but when the victim reached into the car, he thought he was reaching for a weapon and shot him.

The defendant moved for judgment of acquittal both at the close of the State's case-in-chief and at the close of the evidence. The trial court denied the motions. The jury found the defendant guilty on both counts. The court sentenced the defendant to life in prison with a 25-year minimum mandatory sentences on both counts to run concurrently.

The defendant first argues there was no direct evidence to prove that he shot and killed the victim. He insists the witnesses' testimony was circumstantial, and not credible because they agreed to testify against him for lesser sentences. He suggests the trial court erred in denying his motions for judgment of acquittal.

The State responds there was direct evidence in the form of eyewitness testimony, the controlled call, and a confession. We agree with the State. The trial court correctly denied the motions for judgment of acquittal.

We have de novo review of a trial court's ruling on a motion for judgment of acquittal. State v. Konegen , 18 So.3d 697, 698 (Fla. 4th DCA 2009).

The defendant is simply wrong when he suggests there was no direct evidence in this case. Our supreme court has held that eyewitness testimony can constitute direct evidence. See Smith v. State , 139 So.3d 839, 844 (Fla. 2014). Here, there was direct evidence in the form of eyewitness testimony, the defendant's confession, and his incriminating statements on the controlled call. The trial court correctly denied the defendant's motions for judgment of acquittal.

The defendant next argues the court erred in admitting the detective's testimony concerning the defendant's failure to respond to Jerry's statements during the controlled call. He suggests the State's direct examination of the detective shifted the burden of proof to the defendant. The State responds that the defendant failed to preserve the issue because defense counsel failed to make a contemporaneous objection, and refutes the contention that the comments were burden shifting.

"It is well settled that due process requires the state to prove every element of a crime beyond a reasonable doubt ...." Jackson v. State , 575 So.2d 181, 188 (Fla. 1991). "For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Gore v. State , 719 So.2d 1197, 1200 (Fla. 1998).

As the State argues, the detective's testimony about the controlled call was admissible and did not shift the burden of proof for two reasons. First, the defendant's silence was an adoptive admission. And second, the detective's testimony was relevant to rebut the defendant's position that a co-defendant shot the victim.

To establish the defendant's silence as an admission by acquiescence, the court should consider the following factors:

1. The statement must have been heard by the party claimed to have acquiesced.
2. The statement must have been understood by him.
3. The subject matter of the statement is within the knowledge of the person.
4. There were no physical or emotional impediments to the person responding.
5. The personal make-up of the speaker or his relationship to the party or event are not such as to make it unreasonable to expect a denial.
6. The statement itself must be such as would, if untrue, call for a denial under the circumstances.

Nelson v. State , 748 So.2d 237, 242-43 (Fla. 1999) (quoting Privett v. State , 417 So.2d 805, 806 (Fla. 5th DCA 1982) ). "The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances." Id. at 243 (citation omitted).

The State argues the requirements for admission by acquiescence are met because the statement was: (1) heard by the defendant; (2) understood by the defendant; (3) the subject matter was within the defendant's knowledge; (4) there were no known physical or emotional impediments to the defendant responding; (5) the relationship between and the defendant would not make it unreasonable to expect a denial; and (6) the question "why did you do that" would prompt a denial under the circumstances-a phone call with the defendant's friend. See id. at 242-43.

The defendant argues, however, that this case is akin to Warmington v. State , 149 So.3d 648 (Fla. 2014). There, the detective's testimony was considered a commentary on the defendant's inability to produce evidence to support his position that the money was taken as a loan rather than theft. Id. at 656. We disagree.

Pre-arrest silence does not carry the same protection as post-arrest silence .... Moreover, the prosecutor was not commenting on [the defendant's] silence but on what [the defendant] actually said in the recorded conversation, i.e., his exhortation to [the detective] (posing as [defendant's friend] ) not to talk, to get out of town, etc. The prosecutor's comments were no more than a suggestion to the jury that [the defendant's] statements were not the comments of an innocent man.

Rao v. State , 52 So.3d 40, 44 (Fla. 4th DCA 2010) (emphasis added) (citations omitted).

Here, the State elicited testimony from the detective about the controlled call, but the call took place pre-arrest while the defendant was speaking with his friend. The admission of this testimony did not shift the burden of proof. The State also correctly argues the statements were admissible to refute the defense theory that the co-defendant was the shooter.

As in Rao , "the prosecutor's remarks on the [detective's] telephone call made months before the arrest were not comments on silence but were used to contradict [the defendant's] theory that he was not guilty and never admitted committing the murder. The comment was not error, let alone fundamental error." Id. Here, even if the testimony constituted error, it did not "go[ ] to the foundation of the case or the merits of the cause of action ...." F.B. v. State , 852 So.2d 226, 229 (Fla. 2003) (citation omitted).

The court correctly denied the defendant's motions for judgment of acquittal and did not err in admitting the detective's testimony. Even if the admission of the detective's testimony had been error, that error was not fundamental. We therefore affirm.

Affirmed.

Gross and Damoorgian, JJ., concur.


author: Gerber, C.J.

text:
    Mark J. DEDOMINICIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-596
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his conviction for lewd or lascivious exhibition in the presence of a victim who is less than sixteen years of age, in violation of section 800.04(7)(b), Florida Statutes (2016). The defendant argues the trial court erred in denying his motion for judgment of acquittal for two reasons: (1) the state failed to present competent substantial evidence of lewd and lascivious exhibition; and (2) the state failed to present competent substantial evidence that the defendant was eighteen years of age or older when the offense occurred.

We affirm on the first argument without discussion. We also affirm on the second argument, and write to explain our reasoning.

Our opinion is presented in four parts:

1. The trial evidence;
2. The defendant's motion for judgment of acquittal;
3. Closing arguments; and
4. Our review.

1. The Trial Evidence

The ten-year-old child victim was with her mother, shopping at a large retail store. The defendant, standing ten to twelve feet away, exposed his penis to the child. The child told her mother. The mother yelled at the defendant. The defendant began walking away, but briefly turned his face back towards the mother. The mother was able to see the defendant's face. The mother lost sight of the defendant, but she assumed he was going toward the exit. The mother's assumption was correct, as she saw the defendant exiting the store. After the defendant got in his car and began driving away, the mother took down the defendant's license plate number.

The defendant was arrested and brought to trial. In the jury's presence, the state and the mother briefly discussed the defendant's age. The state asked, "Did you form an opinion as to whether [the defendant] was over 18 years of age?" The mother responded that the defendant "was an older man." The state followed up, "And that he was a little over 18 or much over 18?" The mother responded, "Much over 18."

The state introduced into evidence the photo lineup from which the mother had identified the defendant during the investigation. The state then had the mother identify the defendant in the store's video surveillance already admitted into evidence. The state lastly had the mother identify the defendant sitting in the courtroom.

2. The Defendant's Motion for Judgment of Acquittal

After the state rested, the defendant moved for a judgment of acquittal. One of the grounds raised was insufficient evidence that the defendant was eighteen years of age or older when the offense occurred. See § 800.04(7)(b), Florida Statutes (2016) ("An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree ...."). The defendant argued: "[The defendant's age] could have easily been proved by the submission of a driver's license.... We only have evidence that the person appeared to be over the age of 18."

The state, in response to the defendant's motion, argued:

With regard to [the element that] the defendant was 18 years of age or older at the time of the offense, I'm citing State v. Surin ... 920 So.2d 1162 [ (Fla. 3d DCA 2006) ] ... which holds that age, like any other issue in a case, can be proven by circumstantial evidence. In [the instant] case, the defendant, who was actually born in 1953, is clearly seen on the video. The jurors can look at that video and ... through the circumstantial evidence of his appearance may conclude reasonably that he was over the age of 18.
In addition, lay opinions are admissible in Florida, and the lay opinion of the victim's mother was that she had an opportunity to view the defendant on that date and in her opinion she believed that he was well over the age of 18.

The trial court, reflecting on the parties' arguments, commented that Surin had been distinguished by our opinion in White v. State , 183 So.3d 1168 (Fla. 4th DCA 2016). The following discussion then occurred:

STATE: I do recall that the issue [in White ] was whether or not the State could prove by circumstantial evidence whether the defendant was in fact over 18 years of age. And the Fourth DCA noted that the defendant was 20 years of age at the time of the offense. I think the State had relied upon the jury's ability to view the defendant during the trial and argued that they could make that decision as to whether or not he was over 20 years of age. The [Fourth DCA] found that because it was such a close call because [the defendant] was 20 and [the jury] was trying to decide [whether the defendant was] 18 that the evidence did not disprove the defendant's ... reasonable hypothesis of innocence that the defendant was under 18 and [the Fourth DCA] reversed the case. I would distinguish [ White ] by saying in this case, the defendant is not 20 years old. He's very far beyond that. I believe he's in his 60's.
COURT: Any evidence of that?
STATE: No, but there wasn't evidence in [ White ] either. The evidence I have for the record is, I would ask the Court to take judicial notice of the contents of the court file, which includes-
COURT: Well, wait, before I do that ... I can only base a ruling on this motion based on what this jury heard, not what's in the court file.
STATE: Okay ... I make that point because that's what the Fourth DCA did [in White ] ...
The Fourth DCA looked at the contents of the court file to determine that he was in fact 20 [years old] ...
And then ... they reversed the case because the jury looking at the 20-year-old did not disprove [the defendant's] reasonable hypothesis of innocence.
...
DEFENSE: Your Honor ... I think [you] already picked it up, but [the State] had indicated that the defendant was born in 1953 and I don't think there was any evidence in the record as to any of that ...
COURT: Well, to the extent that I'm able to note what the court record reflects, the court record reflects a date of birth of November 27, 1953.
...
[T]here's a difference between White and what we have here and Surin . Here we have ... a situation where the State is asking to look at evidence in the court file to substantiate the burden of proof. In the White case, the court looked to it to show why there was an issue in lack of proof. Now, if the only testimony here was the opinion that he was over the age of 18, I'd be inclined to agree with [the defense]. I don't know [if that testimony] would rise to the level of proof beyond a reasonable doubt ultimately ... but there is other testimony volunteered in response to that question in which [the victim's mother] said he was an older man, much over 18. So I think we have more than simply an opinion that he was over 18 ... So the motion at this juncture is denied....

3. Closing Arguments

During the state's closing argument, the prosecutor's only comment on the state's burden to prove that the defendant was eighteen years of age or older when the offense occurred was: "You can look at him. You can see him on the video. Use your common sense, good judgment; he's not [under eighteen years old]."

During the defendant's closing argument, defense counsel did not comment on the state's burden to prove that the defendant was eighteen years of age or older when the offense occurred.

The jury convicted the defendant as charged.

4. Our Review

This appeal followed. The defendant argues the trial court erred in denying his motion for judgment of acquittal because the state failed to present competent substantial evidence that he was eighteen years of age or older when the offense occurred. Relying on our opinion in White v. State , 183 So.3d 1168 (Fla. 4th DCA 2016), the defendant argues that the jury's ability to observe him during trial, combined with the mother's testimony that he appeared to be much older than eighteen years of age, was insufficient evidence to prove his age.

The state responds that the trial court properly denied the defendant's motion for judgment of acquittal. According to the state, the jury's ability to observe the defendant during trial, combined with the mother's testimony that he appeared to be much older than eighteen years of age, was sufficient evidence to survive a motion for judgment of acquittal.

The state also argues that White is distinguishable for two reasons. First, the state argues, in White , no additional circumstantial evidence existed regarding the defendant's age, whereas in this case, the mother testified that the defendant appeared to be much older than eighteen. Second, the state argues, in White , the defendant was only twenty years old when the offense occurred, whereas in this case, the defendant was in his sixties when the offense occurred.

Our supreme court, in Pagan v. State , 830 So.2d 792 (Fla. 2002), set forth our standard of review:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted).

Here, we agree with the state that competent substantial evidence supports the required finding that the defendant was eighteen years of age or older when the offense occurred. Viewed in the light most favorable to the state, the mother's testimony that the defendant "was an older man" and "[m]uch over 18," plus the jury's opportunity to observe the defendant not just in court, but also in the photo lineup and video surveillance which the mother identified, was sufficient to allow the jury to find beyond a reasonable doubt that the defendant was eighteen years of age or older when the offense occurred.

We also agree with the state that White is distinguishable. In White , the defendant was convicted of two counts of sexual battery of a minor. 183 So.3d at 1169. That crime, like the crime here, required the state to prove that the defendant was "18 years of age or older." § 794.011(2)(a), Fla. Stat. (2013).

We reversed the defendant's convictions and remanded for entry of judgments of conviction for a lesser included offense which did not require proof of the defendant's age. Id. at 1169. We reasoned that the state failed to present any evidence of the defendant's age other than the jury's ability to observe him during the trial. Id. at 1170.

Here, in contrast, the jury had more to consider beyond its own ability to observe the defendant during the trial. The jury also was able to consider the mother's testimony that the defendant "was an older man" and "[m]uch over 18," as well as the photo lineup and video surveillance showing the defendant's appearance when the offense occurred.

We recognize that in White , we noted our observation from the probable cause affidavit, which was not introduced at trial, that the defendant was twenty years old when the offense occurred. Id. However, we noted that observation merely to point out the possibility that the jury's ability to determine the defendant's age beyond a reasonable doubt may have been challenging, given the possible lack of disparity in appearance between a twenty-year-old person (who would be eligible for conviction of the charged crime) and a person under eighteen years old (who would not be eligible for conviction of the charged crime). Id. at 1171.

We contrasted that possible lack of disparity in age appearance with the greater disparity existing in State v. Surin , 920 So.2d 1162 (Fla. 3d DCA 2006). There, the defendant was twenty-nine years old when the offense occurred, id. at 1165 n.1, and the state had to prove he was eighteen years of age or older when the offense occurred, id. at 1164. That disparity, along with more extensive evidence that the defendant was eighteen years of age or older when the offense occurred, led our sister court to conclude sufficient evidence existed for a jury to find that the defendant was eighteen years of age or older when the offense occurred. Id. at 1165.

Here, the disparity in age appearance, which a reasonable juror likely would have observed between this defendant in his sixties and a person under eighteen, is much, much greater - by decades - than the disparity which the jury would have observed in Surin . That disparity, along with the mother's testimony that the defendant "was an older man" and "[m]uch over 18," as well as the photo lineup and video surveillance showing the defendant's appearance when the offense occurred, leads us to conclude sufficient evidence existed for the instant jury to have found that the defendant was eighteen years of age or older when the offense occurred.

Affirmed.

Taylor and Kuntz, JJ., concur.


author: Warner, J.

text:
    K.O., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2546
    District Court of Appeal of Florida, Fourth District.
    [March 20, 2019]
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant, a juvenile, challenges a judgment of delinquency, in which the court found him guilty of unlawful use of a false name and resisting without violence. He contends that the court erred in denying his motion for judgment of dismissal because he was not lawfully detained at the time that he gave a false name to the officers, nor were the officers engaged in the lawful execution of a legal duty when he resisted arrest without violence. We agree that he was not guilty of using a false name, but conclude that the officers were in the execution of a legal duty and had reasonable suspicion to stop him under the totality of the circumstances. Thus, we reverse the adjudication of giving a false name, but we affirm the adjudication of resisting arrest.

K.O. was charged with violation of section 901.36(1), Florida Statutes (2018), for giving a false name to police, and violation of section 843.02, Florida Statutes (2018), for resisting arrest without violence. About 10:42 p.m. on March 14, 2018, three Fort Lauderdale police officers were dispatched to a church to respond to a call about trespassers. When they arrived, they observed seven juveniles hanging out at the church. There was a posted yellow "no trespassing" sign on the church. The officers exited their vehicles, and one of the officers asked the group of individuals for their names and an explanation of what they were doing there. The juveniles identified themselves accurately, except for K.O., who gave a false name and birthdate. When the officer could not confirm his name and birthdate, another officer went to his vehicle to obtain a fingerprint scanner. At that point, K.O. ran away. The officers called for him to stop, but he continued to run. After a chase, K.O. was detained and eventually gave his real name and date of birth.

The officer who asked for K.O.'s name admitted that she did not know if the owner of the property had given K.O. an order to leave the property, nor did she know whether the police had been authorized to issue a trespass warning. The officers thought that their authority arose from the "no trespassing" sign on the church.

After the conclusion of the evidence, K.O. moved for a judgment of dismissal, arguing that the officers were not in the lawful execution of a legal duty. The trial court rejected the argument, noting that the issue was whether, based upon the posted signs, the officer had the authority to ask K.O. his name. Ultimately, the court entered a disposition, finding K.O. guilty of both unlawful use of a false name and resisting without violence. K.O. appeals this disposition.

K.O. was charged with the violation of two statutes. Section 901.36(1), Florida Statutes, provides that "[i]t is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name ...." (emphasis added). Section 843.02 provides:

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) ... in the lawful execution of any legal duty , without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree ....

(emphasis added). Because K.O. was neither arrested nor lawfully detained by the officer when he gave the officer the false name, he cannot be guilty of a violation of section 901.36(1). The officers were, however, in the lawful execution of a legal duty when they ordered him to stop. Therefore, he is guilty of resisting an officer without violence under section 843.02.

This case is controlled by D.T. v. State , 87 So.3d 1235 (Fla. 4th DCA 2012), as to the violation of section 901.36(1). The opinion in D.T. addressed two consolidated cases, and this case is factually similar to one of those cases, number 4D10-2760. There, an officer was driving in a commercial plaza, which included a pizza restaurant, around 9:30 p.m. Id. at 1237. A "no trespassing" sign was posted on the front of the building and on the eastern side of the building. Id. The officer saw four individuals, including D.T., at the east end of the building next to the sidewalk. Id. Approaching the group, the officer identified himself as a police officer and asked the juveniles for their names and why they were loitering. Id. at 1237-38. D.T. gave a name to the officer. Id. at 1238. While awaiting confirmation of the name with dispatch, another officer arrived who was familiar with appellant and knew his name. Id. The second officer attempted to arrest and handcuff appellant, who began swinging his arms. Id. Based on this encounter, D.T. was charged with giving a false name to the police and resisting without violence. Id. at 1237.

As to the charge of giving a false name, we noted that the statute requires that a person be arrested or lawfully detained at the time the false name is given. Id. at 1238. We determined that the encounter between D.T. and the police when he gave the false name was a consensual encounter, and thus, it did not violate the statute.

"A detention does not occur simply because an officer approaches and asks questions, or requests to examine identification." Brevick v. State , 965 So.2d 1246, 1249 (Fla. 5th DCA 2007). Contact with police rises to the level of a detention "when, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " ... Factors that might indicate a seizure include "the 'threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.' " State v. Dixon , 976 So.2d 1206, 1209 (Fla. 4th DCA 2008) (quoting P.W. v. State , 965 So.2d 1197, 1199 (Fla. 4th DCA 2007) ).

Id. The juveniles in D.T. were approached by a single officer who saw them at a building marked with a "no trespassing" sign. The officer asked for the juveniles' names and identification. There was no show of authority or indication that the juveniles were not free to leave. The juveniles were not detained. Thus, we held:

[A]t the time appellant provided the false name, the officer and appellant were engaged in a consensual encounter. See State v. Page , 73 So.3d 351 (Fla. 4th DCA 2011) (holding contact was consensual encounter where officers approached appellant, who was standing on side of building, asked for name and date of birth and did warrants check based on information provided) ....

Id. at 1238. Accord Slydell v. State , 792 So.2d 667, 672-73 (Fla. 4th DCA 2001) (noting officers were engaged in a consensual encounter when they approached an individual on a property with "no trespassing" signs to ascertain his identity).

Similarly, K.O. was not detained at the time that he gave the officers the false name. Although there were more officers involved, they did not make any show of authority, touch K.O., or use language which would suggest that K.O. was not free to leave. Thus, because K.O. and the officer were engaged in a consensual encounter when he gave the false name, he cannot be guilty of violating section 901.36(1).

The court, however, did not err in denying the motion for judgment of dismissal as to the charge of resisting arrest without violence. The officer was investigating a call regarding trespassers on the church property. By responding to the call, the officers were engaged in the lawful execution of a legal duty. See Francis v. State , 736 So.2d 97, 99 n.1 (Fla. 4th DCA 1999) (noting that an investigation following a 911 call was a lawful execution of a legal duty); Brandful v. State , 858 So.2d 367, 370 (Fla. 3d DCA 2003) (finding that the trial court properly instructed the jury that the investigation of a complaint constituted lawful execution of a legal duty); P.B.P. v. State , 955 So.2d 618, 623-24 (Fla. 2d DCA 2007) (concluding that police officers investigating an anonymous call, in which the caller complained about juveniles running through backyards of homes in the middle of the night, constituted the lawful execution of a legal duty). At least two of the officers testified to seeing a "No Trespassing" sign on the building, although no one testified as to the size and location of the sign. The officers suspected that K.O. was trespassing. See Ward v. State , 21 So.3d 896, 899-900 (Fla. 5th DCA 2009) (finding that although the fact that the "no trespassing" sign did not comply with the statute may mean that the defendant did not actually commit a crime, an officer is not required to conclusively determine that a crime has been committed in order to detain an individual). When asked for his name, appellant gave the officer a name which the officer could not confirm. Then the appellant fled. Flight is a relevant factor in determining reasonable suspicion. See Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; C.E.L. v. State , 24 So.3d 1181, 1186 (Fla. 2009) ; Parker v. State , 18 So.3d 555, 558-59 (Fla. 1st DCA 2008) ("[U]nprovoked flight may give rise to a reasonable suspicion of criminal activity even when the flight does not take place in a high-crime area, depending on the remaining circumstances of the case."). Although the encounter began as a consensual one, by the time that the officer ordered K.O. to stop, considering the totality of the circumstances, she had reasonable suspicion of criminal activity, and K.O. resisted by continuing to run away.

For the foregoing reasons, we reverse the adjudication of giving a false name, but affirm the adjudication of resisting arrest and remand for resentencing on the resisting arrest charge.

Damoorgian and Levine, JJ., concur.

      The D.T. opinion states in one place that D.T. was adjudicated for the crimes of providing a false name to police and resisting an officer without violence. Id. at 1237. Later on in the facts, the opinion states that he was charged with trespassing and providing a false name. Id. at 1238. However, the legal discussion involves providing a false name and resisting without violence. Therefore, we consider the reference to the trespassing charge as a mistake.