author: HARRIS, J.

text:
    Jesse Graham BERBEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1428
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, J.

Jesse Berben appeals his conviction and sentence on twenty counts of possession of child pornography. We affirm Berben's convictions without comment. With respect to his sentence, Berben argues only that the disproportionality of his 100-year sentence (five year sentences on each of the twenty counts to run consecutively) violated constitutional prohibitions against cruel and unusual punishment. We find that claim lacks merit. See Rogers v. State, 96 So.3d 922, 923 (Fla. 5th DCA 2012) (holding composite sentence of 75 years in prison resulting from defendant's conviction on 125 counts of possession of child pornography did not constitute cruel and unusual punishment under state or federal constitutions, even though all 125 images were on single compact disc read-only memory (CD-ROM) and defendant had no prior felony convictions). However, a review of Berben's Eighth Amendment claim revealed a different violation of Berben's constitutional due process rights-the trial court based Berben's lengthy sentence on improper considerations and findings.

Berben was charged with and ultimately found guilty of twenty counts of knowingly possessing, controlling, or intentionally viewing images depicting child pornography under section 827.071(5)(a), Florida Statutes (2015). Significantly, he was not charged under the preceding subsection with promoting (which includes procuring, distributing, and disseminating) or possessing with the intent to promote, any of the images found on his computer. § 827.071(4), Fla. Stat. (2015). Despite no evidence that Berben intentionally or actively distributed or shared those images with anyone, the trial court considered this uncharged crime in sentencing Berben and made the following comments:

This was a quite troubling case to me. The images that we saw at trial of children being sexually abused, very young children being sexually abused that were on your computer, not just for you to look at, which is bad enough, but for you to share with others or anybody else out there on the internet , was most disturbing and warrants a lengthy prison sentence. I see little difference, and I agree with the State, I see little difference in culpability between those who actually sexually abuse and exploit children and those who encourage and promote conduct by downloading and sharing videos of such, which I think warrants a significant sentence.

(emphasis added). The trial court then imposed twenty consecutive five-year sentences.

"Generally, the trial court's imposition of a sentence that is within the minimum and maximum limits set by the legislature 'is a matter for the trial [c]ourt in the exercise of its discretion, which cannot be inquired into upon the appellate level.' " Nusspickel v. State, 966 So.2d 441, 444 (Fla. 2d DCA 2007) (quoting Shellman v. State, 222 So.2d 789, 790 (Fla. 2d DCA 1969) ). However, an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence. See Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016). One such constitutionally impermissible sentencing factor would be a crime with which the defendant was never charged. See Hernandez v. State, 145 So.3d 902, 905 (Fla. 2d DCA 2014). "[W]hen a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant's due process rights," committing fundamental error. N.D.W. v. State, 235 So.3d 1001, 1002 (Fla. 2d DCA 2017) (quoting Charles v. State, 204 So.3d 63, 66 (Fla. 4th DCA 2016) ); see also McGill v. State, 148 So.3d 531, 531 (Fla. 5th DCA 2014) (holding that trial court erred where it "improperly relied on unsubstantiated allegations" that defendant committed other, uncharged crimes); Epprecht v. State, 488 So.2d 129, 130-31 (Fla. 3d DCA 1986) (reversing a life sentence because, at sentencing, trial court remarked that defendant has not "hurt anyone that we know about," and "[u]sually with people such as yourself ... who have been found guilty in so many cases, there are probably many other charges that we don't even know about").

Here, when imposing the sentence, the trial court made specific and unsubstantiated comments, concluding that Berben had actually distributed the pornographic images and further equating such conduct to actual, physical or sexual abuse of a minor. These comments make clear that the assumption that Berben distributed pornographic images is what the trial court felt "warrant[ed] a significant sentence." Further, the trial court saw "little difference in the culpability between those who actually sexually abuse and exploit children and those who encourage and promote conduct by downloading and sharing videos of such," neither of which Berben was charged with.

It is true, as the dissent points out, that the sentencing error upon which we reverse Berben's sentence was neither preserved below nor specifically briefed on appeal. Generally, an appellate court will not consider a sentencing error if the issue was not preserved for review by an objection at the time of sentencing or by a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So.2d 452 (Fla. 2003). However, even the opinion relied upon by the dissent recognizes that "there are instances where errors are so glaring or fundamental that a court will adjudicate them on its own initiative in its original opinion." Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). In these rare cases, an appellate court may sua sponte address such an error if it is determined to be fundamental and is apparent on the face of the record. Bell v. State, 289 So.2d 388, 391 (Fla. 1973) ("It is the long standing rule of this Court that when assignments of error are not argued in the briefs they will be deemed abandoned unless jurisdictional or fundamental error appears in the record."); see also Mordenti v. State, 630 So.2d 1080, 1084 (Fla. 1994) (holding that fundamental error must be "equivalent to a denial of due process"); Randall v. Griffin, 204 So.3d 965, 967 (Fla. 5th DCA 2016) ("Appellate courts may not address an issue not raised in the briefs unless the issue amounts to fundamental error."); Hendricks v. State, 34 So.3d 819, 828 (Fla. 1st DCA 2010) (holding that it is appellate court's "unrenunciable judicial duty" to correct fundamental error even if not raised).

We find from the face of the record before us that Berben's sentence was based on the trial court's consideration of, and reliance upon, constitutionally impermissible factors. Accordingly, we affirm the conviction, but remand for resentencing before another judge. See Kenner, 208 So.3d at 278.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED with instructions.

COHEN, J., concurs and concurs specially, with opinion.

GROSSHANS, J., dissents, with opinion.

COHEN, J., concurs and concurs specially, with opinion.

I agree that at sentencing, the trial judge improperly considered conduct for which Berben was never charged and in doing so, committed fundamental error. As a result, Berben, a veteran with no criminal history, was effectively sentenced to life in prison. Just as we do not punish an individual who possesses illegal drugs the same as one who manufactures or sells drugs, so too do we distinguish punishment for one who possesses child pornography from one who sexually assaults children or manufactures or distributes child pornography. Berben was not convicted of distributing child pornography and should not have been sentenced as if he had. Make no mistake, those who possess child pornography face lengthy prison sentences. However, they are not generally sentenced to life in prison.

While the dissent correctly asserts that we have no duty to undertake a fundamental error analysis, we do, however, have a duty to ensure that justice is applied fairly and evenly. E.g., Smith v. State, 521 So.2d 106, 108 (Fla. 1988) (explaining that fundamental error should apply "where the interests of justice present a compelling demand for its application" (citing Ray v. State, 403 So.2d 956 (Fla. 1981) ). It is also a well-established practice of this Court to remedy fundamental errors on the face of the record. E.g., Honaker v. State, 199 So.3d 1068, 1070 (Fla. 5th DCA 2016) ; Johnson v. State, 574 So.2d 222, 224 (Fla. 5th DCA 1991) ; Goss v. State, 398 So.2d 998, 999 (Fla. 5th DCA 1981). I agree that a finding of reversible error that was neither preserved at the trial level nor argued on appeal should be a rare circumstance; this is that rare case. We cannot simply ignore the fundamental sentencing error under the guise of "judicial restraint."

Further, lawyers for both the State and defendants often lead trial courts into committing reversible error when advocating for their clients. Here, at the sentencing hearing, the prosecutor encouraged the trial court to consider conduct that the same prosecutor elected not to charge. The dissent's attempt to justify the trial court's statements by reference to an improper argument is unpersuasive.

The reprehensible nature of the images introduced as evidence is not in dispute. Rather, the issue is whether the trial court fundamentally erred by considering uncharged conduct when it imposed a life sentence for a non-violent felony on a first-time offender. In this case, it is evident on the face of the record that the trial court relied on constitutionally impermissible factors in sentencing Berben and thus, reversal is warranted.

GROSSHANS, J., dissents.

The majority opinion finds no basis to reverse Berben's judgment and sentence based upon the issues briefed and argued before this court. However, after reaching into the record and questioning statements made by the trial judge during sentencing, it reverses the defendant's sentence, holding that it is apparent on the face of the record that the trial court committed fundamental error by relying on impermissible factors. I disagree for two reasons.

First, in my view, the majority should not sua sponte raise this issue. The defendant's briefs did not challenge the trial court's statements at sentencing. Yet, the majority reverses based on them. As an appellate court, our role is not to act as counsel for a party by raising issues that were not briefed. Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). "[I]t is not the function of the Court to rebrief an appeal" and thereby "become an advocate." Id.; see also Flores v. State, 211 So.3d 68, 70 (Fla. 4th DCA 2017). Moreover, when we do so, we deprive the State of any opportunity to brief and argue the issue. See I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007) (recognizing that a party should not be required to foresee and respond to the limitless potential issues for reversal advanced by a reviewing court).

Consistent with this principle of appellate restraint, this court has no duty to undertake a fundamental error analysis when the defendant fails to raise the issue. See Wheeler v. State, 87 So.3d 5, 6 (Fla. 5th DCA 2012) (en banc); see also Ferguson v. State, 200 So.3d 106, 110-11 (Fla. 5th DCA 2015) (declining to consider whether improper testimony rose to the level of fundamental error where the defendant first raised the issue in the reply brief); Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009) (noting that the burden is on the appellant to demonstrate fundamental error).

Second, I disagree with the majority's conclusion that it is apparent from the face of the record that the trial court impermissibly considered uncharged, unsubstantiated crimes, resulting in a denial of the defendant's due process rights. "The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Smith v. State, 521 So.2d 106, 108 (Fla. 1988).

The legislature has recognized trial testimony and evidence as appropriate sentencing considerations. See Cabriano v. State, 211 So.3d 147, 149 (Fla. 4th DCA 2017) ; see also § 921.231, Fla. Stat. (2017). The evidence at trial involved extensive testimony related to the use of file sharing software in downloading and sharing child pornography. Contrary to the majority's assertions, there was evidence that the defendant used file sharing software, which, based on the settings of the software, allowed the videos on his laptop to be shared on the internet and encouraged the easy circulation and distribution of this illegal material. In fact, law enforcement freely downloaded a number of child pornography videos through the defendant's file sharing software in order to obtain evidence for the warrant. The majority assumes that any consideration of this properly admitted evidence by the sentencing judge amounts to an egregious due process violation, empowering this court to reverse the sentence based on its own determination absent any preservation or briefing.

At the sentencing hearing, the prosecutor relied on the facts brought forth during trial to argue for a lengthy sentence, i.e., that the defendant "had the [child pornography videos] on a software program that made them ... accessible to anybody else with that program who wanted to search for them and share them." He further noted that the defendant's possession of the child pornography enhances the market for this contraband. These were facts in evidence, not unsubstantiated claims or speculation.

The sentencing court's statement about promoting and sharing child pornography should be viewed in the context of the prosecutor's argument at sentencing. Viewing the comments in this light, I cannot agree that it is apparent on the face of the record that the trial court considered impermissible factors in sentencing the defendant. Stated differently, the judge's comments could reflect that it considered trial testimony, which revealed that the defendant's actions contributed to the market for this illegal activity as a whole. Such a consideration would not undermine the severe, but statutorily-authorized sentence, particularly given the heinous nature of the videos.

Thus, for the two reasons given above, I respectfully dissent from the majority opinion and would affirm the judgment and sentence.

      According to statistics provided by the Florida Department of Corrections, the average sentence length for the roughly 600 inmates serving time for violating section 827.071(5)(a), Florida Statutes, is 12.3 years.

      Where a defendant files an Anders brief, we commonly look for fundamental error by thoroughly examining the record and addressing issues not raised. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles E. SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3528
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Charles E. Smith, Malone, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Charles E. Smith appeals the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.801. We reverse.

On May 18, 2017, Smith was arrested in Lake County on a Sumter County warrant charging fraudulent use of personal identification information. According to the trial court, he bonded out the same day. Four months later, on September 25, 2017, he was arrested in Lake County for failure to appear in the Sumter County case. On December 23, 2017, he bonded out of jail. Several months later, on May 24, 2018, he was again arrested for failure to appear. On June 20, 2018, Smith entered a plea and was sentenced to eighteen months in the Department of Corrections with credit for time served. He received 119 days' credit.

On September 24, 2018, Smith filed an unsworn Rule 3.801 motion seeking an additional 258 days' credit. He alleged that while incarcerated on a separate Lake County case, a hold was placed on him for this case on March 27, 2017. Smith claims he posted bond in the other case on May 18, 2017, but could not be released due to a detainer.

The trial court denied the motion finding that Smith failed to demonstrate he would have been released from the Lake County Jail on March 27, 2017, but for the hold by Sumter County. The trial court's conclusion, however, did not take into account that Rule 3.801(e) incorporates the procedures outlined in Florida Rule of Criminal Procedure 3.850(f). See Fla. R. Crim. P. 3.801(e) ; Brown v. State, 127 So.3d 825, 826 (Fla. 2d DCA 2013) ("Upon receipt of a rule 3.801 motion, the court must follow the procedure outlined in rule 3.850(f).").

Rule 3.850(f) requires a trial court to give a defendant who files a timely but insufficient motion sixty days to file an amended motion. Fla. R. Crim. P. 3.850(f)(2). Here, because Smith's timely motion was legally insufficient, the trial court was required to provide him an opportunity to amend. See id. Failing to do so was error. Accordingly, we reverse the order summarily denying Smith's motion and remand with directions that the trial court provide Smith sixty days to amend his motion pursuant to Rule 3.801(e) and Rule 3.850(f)(2).

REVERSED and REMANDED.

ORFINGER, BERGER and WALLIS, JJ., concur.

      Pursuant to Rule 3.801(c), the motion shall be filed under oath.

      Smith also identified periods of time that he was back and forth between the two county jails, but did not provide sufficient dates to establish set times.

      We note that Rule 3.850(f)(5) also allows for summary denial if the motion is legally sufficient and the records that conclusively refute the defendant's claim are attached to the final order.


author: LAMBERT, J.

text:
    STATE of Florida, Appellant, v. Richard C. SCHULER, Appellee.
    Case No. 5D18-3086
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellee.
   LAMBERT, J.

The State of Florida timely appeals the trial court's imposition of a downward departure "time served" jail sentence following the defendant's open plea. Because the sole basis for which the defendant sought a downward departure sentence is not supported by competent substantial evidence, we reverse and remand for further proceedings.

The defendant was charged with possession of cocaine with intent to sell or deliver, resisting an officer with violence, battery on a law enforcement officer, and possession of drug paraphernalia. Based upon these charges and the defendant's extensive prior criminal record of eighteen misdemeanors and fifteen felonies, he scored 125.4 sentence points on his Criminal Punishment Code Scoresheet, which calculated to a lowest permissible prison sentence of 73.05 months. Over the State's objection, the trial court imposed concurrent downward departure sentences of 184 days in the Orange County Jail with 184 days of jail credit on all counts.

Section 921.0026(1), Florida Statutes (2018), specifically prohibits a trial court from imposing a sentence below the lowest permissible sentence on a defendant's scoresheet "unless there are circumstances or factors that reasonably justify the downward departure." A defendant seeking a downward departure has the burden of presenting competent substantial evidence at the sentencing hearing of at least one of the non-exclusive mitigating factors under section 921.0026(2), Florida Statutes (2018), in support of the requested downward departure sentence. See State v. Lackey , 248 So.3d 1222, 1224 (Fla. 2d DCA 2018) (citing State v. Carlson , 911 So.2d 234, 236 (Fla. 2d DCA 2005) ).

Appellate courts apply a two-step analysis when reviewing a downward departure sentence. State v. Milici , 219 So.3d 117, 121 (Fla. 5th DCA 2017). The first step is determining whether the correct rule of law was applied by the trial court and if there is competent substantial evidence presented at the hearing that supports the court's basis for the downward departure. Id. (quoting State v. Browne , 187 So.3d 377, 378 (Fla. 5th DCA 2016) ). If so, the second step is to assess whether the downward departure sentence was the best sentencing option for the defendant under the totality of the circumstances. Lackey , 248 So.3d at 1224.

The present case involves the first step of this analysis. The defendant sought a downward departure under section 921.0026(2)(d), Florida Statutes (2018), which allows for a departure sentence if "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." Here, the defendant's claim was based on physical disability to his left knee that he testified resulted from his encounter with law enforcement that led to his present charges. The defendant submitted to the trial court his medical records from the jail beginning the day after his arrest. These records showed normal findings on the various x-rays but some swelling in the defendant's left knee. No diagnosed injury or disability was contained within these records. The defendant testified to having knee pain and some swelling and to being given acetaminophen and a knee brace at the jail, plus the use of a wheelchair as needed. The defendant presented no testimony from a medical doctor or other health care professional explaining or diagnosing his injury, opining whether he had a disability, or suggesting a treatment plan for his alleged disability.

The trial court determined that based on the defendant's medical records, his consistent complaints of left knee pain, and the defendant's appearance in court in a wheelchair on all but one occasion, plus his use of a walker at home, that it would "downward depart on medical necessity or condition that needs ongoing treatment." The State objected, noting a lack of competent substantial evidence that the defendant actually requires any specialized medical treatment, the nature of his disability, if any, or that he is amenable to treatment as there was no evidence provided of a treatment plan or that the defendant would be amenable to the plan, as required under section 921.0026(2)(d).

We agree with the State. The defendant's medical records generated while at the jail show, at best, that he had some swelling in his left knee and was given over-the-counter acetaminophen, a knee brace, and access to a wheelchair. Further, the defendant's own testimony was that he had not been taken to the hospital while in custody, no doctor saw him regularly while at the jail, and that after his first x-ray, he was told by the doctor who examined him that he would "be all right."

Simply put, there was no competent testimony or evidence of the nature or diagnosis of the defendant's injury or disability, or that he required some type of specialized treatment. And, without any evidence of specialized treatment, the defendant also failed to prove that he was amenable to such treatment. See Green v. State , 257 So.3d 474, 475 (Fla. 4th DCA 2018) ("For a trial court to find that a defendant is amenable to treatment, '[t]here must be evidence that there is a reasonable possibility that such treatment will be successful.' " (quoting State v. Hillhouse , 708 So.2d 326, 327 (Fla. 2d DCA 1998) ) ). Under these circumstances, the downward departure sentence imposed here under section 921.0026(2)(d) was not appropriate. See State v. McElroy , 145 So.3d 866, 869 (Fla. 2d DCA 2014) (concluding that a downward departure sentence pursuant to section 921.0026(2)(d) was not supported by competent substantial evidence when there was no evidence of an official diagnosis, whether the defendant required specialized treatment, or whether he would even be amenable to such treatment). Lastly, the trial court's personal observations that the defendant complained of pain and generally used a wheelchair while in court were not legally sufficient evidence to justify the departure sentence in this case.

Accordingly, we reverse the defendant's downward departure sentence and remand for further proceedings. Because the record indicates that the defendant's no contest pleas may have been induced by the trial court's indication that it would impose a downward departure sentence, on remand, the defendant should be allowed to withdraw his plea and proceed to trial. See State v. Reith , 43 So.3d 909, 910 (Fla. 2d DCA 2010) (reversing downward departure sentence with directions that the trial court allow the defendant to withdraw his plea as it was induced by the court's representation that the defendant would received a downward departure sentence). Alternatively, the defendant may elect to be resentenced, and the trial court may again impose a downward departure sentence, if such a departure is supported by valid grounds. See Jackson v. State , 64 So.3d 90, 92-93 (Fla. 2011) (holding that when an appellate court reverses a downward departure sentence and remands for resentencing, a trial court is not precluded from resentencing the defendant to a downward departure if it comports with the principles and criteria established by the Criminal Punishment Code). If no valid grounds for departure exist, then under the facts of this case, the court must sentence the defendant within the sentencing guidelines consistent with the Criminal Punishment Code, which provides a sentencing range from the lowest permissible sentence established in the scoresheet up to the statutory maximum for each offense.

REVERSED and REMANDED for further proceedings consistent with this opinion.

EVANDER, C.J., and BERGER, J., concur.

      We are puzzled by the court's observation in support of its downward departure sentence that the defendant uses a walker at home. The defendant testified that he injured his left knee during the criminal episode that resulted in his arrest and that he had been continuously in custody up to his change of plea and sentencing hearing.

      The trial court was not offered any medical testimony interpreting these records, nor did it make any distinct factual findings regarding them. Had it done so based on such testimony, we would have deferred to its credibility determinations. See Porter v. State , 788 So.2d 917, 923 (Fla. 2001). Here, however, we have reviewed the same medical records that the trial court did; and under such circumstances, when the trial court's conclusions are "based on evidence other than live testimony" and the "documents reviewed by the trial court ... are presented in essentially the same form to the appellate court," those conclusions are not entitled to that same level of deference. See Parker v. State , 873 So.2d 270, 279 (Fla. 2004) (quoting Thompson v. State , 548 So.2d 198, 204 n.5 (Fla. 1989) ).


author: BERGER, J.

text:
    Mario VITELLI and Carol Bartholomew, Individually and as Trustees of the Mario Vitelli and Carol Bartholomew Revocable Trust, Under Trust Dated November 5, 1997, Appellants, v. Emil HAGGER and Caroline Hagger, Appellees.
    Case No. 5D18-2159
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 12, 2019
    Jean Benoit Roth, of Roth Law Firm PL, Jacksonville, for Appellants.
    Lawrence C. Callaway, III, of Klein & Klein, LLC, Ocala, for Appellees.
   BERGER, J.

Appellants, Mario Vitelli and Carol Bartholomew, individually and as Trustees of the Mario Vitelli and Carol Bartholomew Revocable Trust, Under Trust Dated November 5, 1997, appeal the final summary judgment granting Emil Hagger and Caroline Hagger, husband and wife, a statutory way of necessity over their property. We reverse.

The facts are relatively simple. The Haggers filed a verified complaint asking the trial court to declare a statutory way of necessity over Appellants' property. They alleged that they own Parcel A and Parcel B and that Parcels A and B are separated by Parcel C, which is owned by Appellants. The Haggers further alleged that Parcel A is "either being used, or is desired to be used, for residential, agricultural, timber raising or cutting, or stock raising purposes," and that "[i]n conjunction with those uses, or desired uses, [the Haggers] intend to obtain, or continue, utility services, including, but not limited to, electricity, water, and telephone for Parcel A." They also asserted that "Parcel A is shut off or hemmed in by the properties of others so that no practicable route of ingress or egress is available therefrom to SE 141st Avenue Road, the dedicated right-of-way," that "[t]he closest practicable route between Parcel A and SE 141st Avenue Road would be across the 60' wide portion of Parcel C that separates Parcel A from Parcel B and then across Parcel B, which fronts on SE 141st Avenue Road," and that Appellants have refused to allow them access over the 60' wide portion of Parcel C.

In their answer, Appellants denied that Parcel A is shut off or hemmed in by the properties of others and denied that the closest practicable route between Parcel A and SE 141st Avenue Road runs across Parcel C. While Appellants admitted that they had denied the Haggers access over their property, they asserted that they were not obligated to do so, that their refusal was not unreasonable, and that they had not been compensated. Appellants alleged as an affirmative defense that the Haggers' lands were "not shut-off or hemmed-in in that there exists an implied easement over adjacent lands owned by persons or entities not joined in this action."

The Haggers moved for summary judgment, relying on their verified complaint as evidence and attaching affidavits to support their request for attorney's fees and costs and the market value of the easement. No evidence was admitted in opposition to the Haggers' summary judgment motion.

The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Penton Bus. Media Holdings, LLC v. Orange Cty., 236 So.3d 495, 497 (Fla. 5th DCA 2018) (citing Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC, 209 So.3d 622, 624 (Fla. 5th DCA 2017) ). The movant can rely on the "pleadings, depositions, answers to interrogatories, and admissions on file, [in conjunction with] affidavits, if any, [to] conclusively show that there is no genuine issue [of] material fact and that the moving party is entitled to judgment as a matter of law." Helping Hand Private Found., Inc. v. Ocean Palms Beach Club, Inc., 77 So.3d 896, 897 (Fla. 5th DCA 2012) (citing Fla. R. Civ. P. 1.510(c) ; Alejandre v. Deutsche Bank Tr. Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) ). The trial court must consider the summary judgment evidence "in the light most favorable to the nonmoving party." Penton Bus. Media Holdings, 236 So.3d at 497 (citing Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) ). "[I]f the record raises the possibility of any genuine issue of material fact or 'even the slightest doubt that an issue might exist,' summary judgment is improper." Id. (quoting Lin v. Demings, 219 So.3d 124, 125 (Fla. 5th DCA 2017) ).

The burden to present evidence of a genuine issue of material fact does not shift to the opposing party until the moving party has initially shown that there is no genuine issue of material fact. Gay Bros. Constr. Co. v. Fla. Power & Light Co., 427 So.2d 318, 320 n.1 (Fla. 5th DCA 1983) (citing Landers v. Milton, 370 So.2d 368 (Fla. 1979) ); Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 198 (Fla. 5th DCA 2015) (reiterating that moving party must demonstrate nonexistence of genuine issue of material fact before opposing party is required to prove existence of a genuine issue of material fact (citing Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st DCA 2014) ) ). Conclusory and self-serving testimony will not shift the burden to the opposing party. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006) (citing Heitmeyer v. Sasser, 664 So.2d 358 (Fla. 4th DCA 1995) ).

Here, we conclude it was error to grant summary judgment based on the conclusory allegations in the verified complaint. While a verified complaint may be regarded as an affidavit in summary judgment proceedings, Colon, 162 So.3d at 199, the Haggers' verified complaint was insufficient for summary judgment purposes because it did nothing more than track the language of the statute. It did not articulate the planned use for Parcel A, did not describe how Parcel A was "hemmed in," nor did it offer evidence in the form of photographs, maps, or surveys to substantiate its claim that the closest practical route between Parcel A and SE 141st Avenue Road was across Appellants' property. The verified complaint and accompanying affidavits also failed to negate Appellants' affirmative defense. See First Nat'l Entm't Corp. v. Brumlik, 531 So.2d 403, 405 (Fla. 5th DCA 1988) (concluding movant for summary judgment had burden to present evidence sufficient to negate or disprove any affirmative defense).

Although the Haggers assert that Appellants had the burden of bringing forward evidence to support their affirmative defense, "[a] party opposing a motion for summary judgment has no initial obligation to submit affidavits or proof to establish its affirmative defense[ ]." Colon, 162 So.3d at 198 (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5th DCA 2003) ). The obligation to do so occurs once the movant has properly met its burden of demonstrating the nonexistence of a genuine issue of material fact. Id. Because the Haggers failed to meet their initial burden, Appellants were not compelled to produce anything in opposition.

Based on the foregoing, we reverse the order granting final summary judgment and remand for further proceedings.

REVERSED and REMANDED.

EDWARDS and HARRIS, JJ., concur.

      Mario Vitelli died while this appeal was pending.

      § 704.01(2), Fla. Stat. (2017).

      Dr. Bartholomew was allowed to read into the record the six genuine issues she had filed untimely, but the trial court stated it would not accept the document. Dr. Bartholomew also advised the trial court that she had photographs that would show ruts created by heavy trucks that entered and exited the Haggers' property using a road located on a third party's property. Again, this evidence was not considered.

      At oral argument, for the first time, counsel for the Haggers indicated that Parcel A was used as a horse farm.

      It was also improper for the trial court to award attorney's fees and costs because the Haggers failed to plead or prove that Appellants acted unreasonably by refusing to allow them access to the right of way across their property. See § 704.04, Fla. Stat. (2017) (providing for award of attorney's fees to either party for the "unreasonable refusal to comply with the provisions of s[ection] 704.01(2)").


author: CASANUEVA, Judge.

text:
    Sherri DIAMOND, Petitioner, v. ELVIS TOWING, INC., Respondent.
    Case No. 2D18-2953
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019
    Felipe B. Fulgencio, Megan N. Daniel, and Courtney A. Umberger of Fulgencio Law, PLLC, Tampa, for Petitioner.
    Charles E. Lykes, Jr., Clearwater, for Respondent.
   CASANUEVA, Judge.

Sherri Diamond petitions this court for writ of certiorari seeking to quash an order of the circuit court that transferred her class action lawsuit against Elvis Towing, Inc. to the county court. We grant her petition because the circuit court erred in transferring jurisdiction to the county court when the alleged amount in controversy was more than $ 15,000.

Procedural History

Ms. Diamond's first amended complaint was filed as a class action against Elvis Towing pursuant to Florida Rule of Civil Procedure 1.220(c), and it alleges that damages are in excess of $ 15,000. The amended complaint was filed in county court on April 3, 2017, and Ms. Diamond successfully moved to have the case transferred to circuit court on July 12, 2017. Elvis Towing thereafter filed a motion to dismiss the complaint, in part challenging Ms. Diamond's ability to bring a class action. The motion to dismiss was denied on February 9, 2018.

Elvis Towing also filed a supplemental motion to dismiss the complaint based on a lack of subject matter jurisdiction. This motion alleged that the circuit court did not have jurisdiction over the case because the action is based on an ordinance violation. The motion did not allege that the amount in controversy was below the jurisdictional threshold. On June 25, 2018, the circuit court denied the supplemental motion to dismiss. However, on the same day, the court entered an order transferring the case to county court "until such time as both the action may be certified as a class-action and that sufficient evidence or cause is given to establish that the jurisdictional amount of Circuit Court jurisdiction may be established." This ruling is contrary to clearly established principles of law.

Amount in Controversy

"[T]he jurisdiction of such Circuit Court depends not upon the amount of damages which is actually recoverable as a matter of law, but rather by the sum in good faith demanded or actually put in controversy." Rocco, 163 So.2d at 23 (citing Knudsen v. Green, 116 Fla. 47, 156 So. 240, 242 (1934) ). As stated by the Third District in Norris v. Southern Bell Telephone & Telegraph Co., 324 So.2d 108, 109 (Fla. 3d DCA 1975) :

There may be a basis in this record for a belief that the plaintiff exaggerated her claim but it cannot be said that such a conclusion appears without issue. It is not our purpose to preclude by this opinion a transfer if later developments in this case substantiate the trial judge's conclusion in the order appealed.

See also Ross v. Barnett, 436 So.2d 1040, 1041 (Fla. 3d DCA 1983) (quashing order transferring case to county court where it could not be concluded from the record on appeal that the amount in controversy was unquestionably less than the jurisdictional threshold or that the allegations asserting the amount in controversy were not made in good faith).

In the present case, Ms. Diamond's complaint alleges that Elvis Towing improperly towed her vehicle as well as the vehicles of the other class members and that the resulting damages are in excess of $ 15,000, and the evidence before the circuit court did not establish that the amount in controversy was unquestionably less than that amount. In fact, the evidence suggests that damages may exceed $ 15,000. The deposition of Stephanie Sue Watson-Johnson, Elvis Towing's corporate representative, reflects that the company tows between 200 and 300 vehicles without the owners' consent in a four-year period. The company charges a base rate of $ 100 for the tow and $ 3 for every mile the vehicle is towed. Multiplying the base rate of a tow, without considering the mileage and cost thereof, by the minimum number of vehicles admitted by Ms. Watson-Johnson, 200 vehicles, totals $ 20,000, well above the threshold amount required for circuit court jurisdiction. See §§ 26.012(2)(a), 34.01(1)(c), Fla. Stat. (2017). Therefore, the circuit court could not conclude from this record that the amount in controversy was unquestionably less than $ 15,000. See Ross, 436 So.2d at 1041.

Class Action Determination

It was also improper for the circuit court to rule that the action had to be certified as a class action before it could proceed in the circuit court. Rule 1.220(d)(1) provides for the following procedure when a class action complaint has been filed:

As soon as practicable after service of any pleading alleging the existence of a class under this rule and before service of an order for pretrial conference or a notice for trial, after hearing the court shall enter an order determining whether the claim or defense is maintainable on behalf of a class on the application of any party or on the court's initiative. Irrespective of whether the court determines that the claim or defense is maintainable on behalf of a class, the order shall separately state the findings of fact and conclusions of law upon which the determination is based.

"A decision on class certification should be made promptly, but only after the parties have had an adequate opportunity to discover facts necessary to support all of the requirements of a class action." Whigum v. Heilig-Meyers Furniture Inc., 682 So.2d 643, 645 (Fla. 1st DCA 1996). In the present case, the circuit court failed to hold a hearing on whether the requirements of a class action had been met and failed to enter an order determining if the claim was maintainable on behalf of a class. Therefore, it was premature to enter an order transferring the action to the county court based on the fact that it had not been certified as a class action.

Further, we note that the Florida Supreme Court has held that the circuit court should have jurisdiction of a class action lawsuit "when the aggregated claims of the class meet the monetary jurisdictional requirement even though an individual claim of a class member does not reach that threshold." Johnson v. Plantation Gen. Hosp. Ltd. P'ship, 641 So.2d 58, 60 (Fla. 1994) ; see also Galencare, Inc. v. Blanton, 636 So.2d 547, 547 (Fla. 2d DCA 1994) ("[T]he circuit court's dollar jurisdiction may be satisfied by aggregating the value of each plaintiff's claim."), approved, 650 So.2d 42 (Fla. 1995) ; Galen of Fla., Inc. v. Arscott, 629 So.2d 856, 857 (Fla. 5th DCA 1993) ("[T]he amount of the claim of the entire class determines the dollar amount jurisdiction.").

Conclusion

Both of the trial court's rulings were contrary to the essential requirements of law and result "in irreparable harm for which the remedy of appeal would be inadequate." Phillips v. Cutler, 388 So.2d 48, 49 (Fla. 2d DCA 1980). The circuit court erred in finding that the amount in controversy was less than $ 15,000 where Ms. Diamond's complaint alleged that damages are in excess of $ 15,000 and the evidence did not show that the amount in controversy was unquestionably less than that amount. It was also improper for the circuit court to transfer the case to the county court before making a determination that the requirements of a class action had not been met. Accordingly, we grant the petition for writ of certiorari, quash the order of the circuit court transferring the action to the county court, and remand for proceedings consistent with this opinion.

Petition for writ of certiorari granted; order quashed.

LaROSE, C.J., and MORRIS, JJ., Concur.

      As noted by this court in Rocco v. Coffey, 163 So.2d 21, 22 (Fla. 2d DCA 1964) (citing Tantillo v. Miliman, 87 So.2d 413 (Fla. 1956) ), an order of the circuit court transferring a case to the county court for lack of jurisdiction due to the amount involved is properly reviewable by petition for writ of certiorari.


author: SLEET, Judge.

text:
    Jeremy LIVINGSTONE, DOC #Y29795, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1695
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Jeremy Livingstone challenges the trial court's order revoking his probation. We reverse only the portion of the order finding that Livingstone violated condition four of his probation by possessing ammunition. We affirm the revocation order in all other respects.

Standard condition four of the probation order states: "You will not possess, carry[,] or own any firearm. You will not possess, carry, or own any weapon without first procuring the consent of your officer." This language tracks the language of section 948.03(1)(m), Florida Statutes (2015). Although chapter 948 does not define "firearm" or "weapon," chapter 790, entitled "Weapons and Firearms," defines both terms, see § 790.001(6), (13), Fla. Stat. (2015), and neither definition includes ammunition. In fact, a separate definition for "ammunition" is found in section 790.001(19).

Additionally, although section 948.03(1)(m) only includes firearms and weapons in its prohibition of what probationers and offenders on community control may possess, section 790.23(1) is more restrictive as to what a convicted felon may possess, specifically making it unlawful for a felon to possess ammunition. As such, the legislature is aware of the difference between ammunition and a firearm or weapon, and it is presumed that it knew how to include ammunition in its list of what a probationer or person on community control may not possess if it had so intended. See Cason v. Fla. Dep't of Mgmt. Servs., 944 So.2d 306, 315 (Fla. 2006) ("[W]e have pointed to language in other statutes to show that the [l]egislature 'knows how to' accomplish what it has omitted in the statute in question."); see also State v. Lewars, 259 So.3d 793, 800 (Fla. 2018) (holding that alternative definitions of "prison releasee reoffender" included in section 775.082(9)(a)(1) and (9)(a)(2) "show[ ] that the [l]egislature knew how to make the prison sentence, as opposed to the facility, the focus of the definitional inquiry, if the [l]egislature intended to do so" (citing Cason, 944 So.2d at 315 ) ).

Accordingly, the possession of ammunition is not enough to establish a violation of standard probation condition four, and the trial court erred here in finding that Livingstone committed this alleged violation of probation. However, because the record reflects that the trial court would have revoked Livingstone's probation based on his other violations, we reverse only the portion of the revocation order finding Livingstone in violation of condition four and remand with instructions to strike that violation; we affirm the revocation order in all other aspects. See King v. State, 915 So.2d 764, 765 (Fla. 2d DCA 2005) ("[W]e reverse that portion of the trial court's order finding a violation of condition 27 and remand to strike the finding. We affirm the trial court's revocation of King's [supervision] because it is clear from the record that the trial court would have revoked King's [supervision] based on his violations of conditions 3, 5, 9, and 12.").

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

NORTHCUTT and SILBERMAN, JJ., Concur.

      We note that this argument was not preserved below. But "revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error." Odom v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009).


author: KELLY, Judge.

text:
    STATE of Florida, Petitioner, v. Kenyatta BETHLEY, Respondent.
    Case No. 2D18-4143
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019
    Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Petitioner.
    Julianne M. Holt, Public Defender, Tampa, for Respondent.
   KELLY, Judge.

The State petitions for a writ of certiorari to review an order granting Kenyatta Bethley's motion in limine to exclude from his trial statistical testimony regarding DNA evidence. We grant the petition and quash the order.

An expert need not be a statistician to testify regarding the statistical significance of a DNA match. Darling v. State, 808 So.2d 145, 158 (Fla. 2002). However, the expert must "demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources." Id. (quoting Murray v. State, 692 So.2d 157, 164 (Fla. 1997) ); see also Butler v. State, 842 So.2d 817, 828 (Fla. 2003) ("[A] sufficient knowledge of the authorities pertinent to the database is an adequate basis on which to render an opinion."). We conclude the State's expert satisfied this requirement and therefore, the trial court departed from the essential requirements of the law in excluding her testimony. See State v. Pettis, 520 So.2d 250, 253 (Fla. 1988) (stating that certiorari is the appropriate remedy to review nonfinal pretrial orders in criminal cases which negatively affect the State's ability to prosecute).

Petition granted.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    David L. DOOD, Appellant, v. Lori L. DOOD, Appellee.
    Case No. 2D18-1046
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019
    Anthony M. Candela of Candela Law, P.A., Riverview, for Appellant.
    Bradley G. Johnson of Bradley G. Johnson, P.A., Milton, for Appellee.
   PER CURIAM.

David Dood, the former husband, appeals the final judgment dissolving his marriage to Lori Dood, the former wife. He challenges the alimony, child support, and attorney fee award on appeal. Because he has not provided this court with a transcript, we are precluded from reviewing the sufficiency of the evidence to support the alimony and child support awards or the former wife's entitlement to attorney fees. See Esaw v. Esaw, 965 So.2d 1261, 1264-65 (Fla. 2d DCA 2007) (explaining that a failure to provide a transcript or an adequate substitute is "usually fatal" to the appellant's claim that the trial court failed to make adequate findings under section 61.08); see also Frezza v. Frezza, 216 So.3d 758, 760 (Fla. 2d DCA 2017) ("While an award of attorney's fees in a dissolution proceeding pursuant to section 61.16 and Rosen [v. Rosen, 696 So.2d 697 (Fla. 1997) ] requires specific findings of fact to support the trial court's entitlement determination, such findings may be made in the written final judgment or at the hearing. In the absence of a hearing transcript, we cannot say that the trial court erred in this regard." (citations omitted) ).

However, we reverse the portion of the final judgment awarding attorney fees because the trial court did not include any findings justifying the amount of the award. See Macarty v. Macarty, 29 So.3d 434, 435 (Fla. 2d DCA 2010) ("[A]n award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings." (alteration in original) (emphasis added) (quoting Esaw, 965 So.2d at 1265 ) ); see also Ivanovich v. Valladarez, 190 So.3d 1144, 1148 (Fla. 2d DCA 2016) ("The lack of findings supporting the award of attorney's fees is reversible error despite the [appellant's] failure to provide an adequate record of the hearing."); R.M.F. v. D.C., 55 So.3d 684 (Fla. 2d DCA 2011) (same). Accordingly, we remand for the trial court to make the necessary findings required under Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985).

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

SLEET, ROTHSTEIN-YOUAKIM, and ATKINSON, JJ., Concur.


author: Per Curiam.

text:
    IN RE: ESTATE OF Larry BUNDA, Petitioner.
    No. 1D17-5291
    District Court of Appeal of Florida, First District.
    April 16, 2019
    Michael Farrar, Aventura, for Amelia Bunda.
    Josephine A. Schultz, Senior Attorney, and Janine B. Myrick, Senior Attorney, Department of Financial Services, Tallahassee, for Department of Financial Services; James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, for Ocwen Loan Servicing, Inc.
   Per Curiam.

Petitioner Amelia Bunda challenges the trial court's decision to vacate sua sponte its Order for Summary Administration in the probate case involving her father, Larry Bunda. We grant the petition.

I.

This case involves competing claims to the same property: a $ 273,100 insurance check made payable to the estate of Larry Bunda (hereinafter "Bunda") and HomeQ Servicing Corporation as a loss payee on the decedent's home insurance policy. In 2013, the check was transmitted to the Division of Unclaimed Property within the Department of Financial Services (DFS). HomeQ subsequently transferred its right under the policy to Ocwen Loan Servicing. In 2016, Bunda's three children filed a Petition for Summary Administration requesting one-half of the insurance check proceeds. The trial court then issued an Order for Summary Administration authorizing the requested distribution. Global Discoveries Ltd. (Global) then filed a claim for the proceeds with DFS on behalf of Bunda's children.

Not long after, Ocwen filed a competing claim for the proceeds with DFS. In August 2017, DFS issued a Notice of Intent stating that it was going to enter a Final Order approving Ocwen's claim to the funds. In October 2017, DFS sent a letter to the trial court that had entered the order authorizing the distribution of insurance proceeds to Bunda's heirs, regarding its own decision to award the insurance proceeds to Ocwen. DFS expressed concern over the conflict between its decision and the trial court's Order for Summary Administration and suggested that Florida Rule of Civil Procedure 1.540 provided a possible solution. DFS attached a copy of its Notice of Intent to the letter and copied Global's counsel.

In November 2017, the trial court issued an order setting aside the Order for Summary Administration noting that "[a]bnormalities [had] been identified in the estate file" and that the "matter may be set for hearing should the parties wish to be heard."

II.

In order to qualify for certiorari relief, a petitioner must demonstrate that the order at issue caused material injury that cannot be corrected on appeal and departed from the essential requirements of the law. Nader v. Fla. Dep't of Highway Safety & Motor Vehicles , 87 So.3d 712, 721 (Fla. 2012).

The material injury element requires a showing of "irreparable harm." See Fla. Gas Transmission Co., LLC v. City of Tallahassee , 230 So.3d 912, 914 (Fla. 1st DCA 2017). Bunda's heirs argue that without the Order for Summary Administration, they will lose their inheritance. Specifically, they point to the requirement that any individual claiming entitlement to a decedent's unclaimed property must submit to DFS "[a] certified copy of a probate court order, certified by the clerk of court identifying the beneficiaries and the proportional entitlement of each to the estate." Fla. Admin. Code R. 69G-20.0022(3)(a)2. We agree. By vacating sua sponte its Order for Summary Administration, the trial court took away the heirs' ability to make a claim for the proceeds under this rule in pending administrative proceedings, causing irreparable harm.

Bunda's heirs argue that the trial court departed from the essential requirements of the law when it vacated the Order for Summary Administration without any legal basis and without adequate notice to be heard. Florida Rule of Civil Procedure 1.540 allows a trial court to grant relief from final judgments, decrees, or orders under certain circumstances. Rule 1.540, however, only permits a trial court to sua sponte set aside a final order in cases of clerical mistake. Fla. R. Civ. P. 1.540(a). There was no clerical mistake here. Thus, the trial court's order must fall within the ambit of Rule 1.540(b). Rule 1.540(b), however, requires that the trial court act on a motion from a party. Here, no party moved the trial court to exercise its authority under Rule 1.540(b). DFS conceded that it was not a party to the trial court's probate proceedings, so its letter could not provide the basis for the order.

Rule 1.540(b), in most cases, limits a trial court's ability to set aside a final order to no more than one year after the final order has been entered. The Order for Summary Administration was entered on September 26, 2016. The trial court set aside the order on November 15, 2017, more than a year later. Therefore, even if there had been a motion from a party, the trial court had no authority to sua sponte set aside the Order for Summary Administration more than a year after it was entered.

Additionally, Bunda's heirs were not given any notification from the trial court that it was considering setting aside the Order for Summary Administration. The requirement that a final order can be vacated only on the motion of a party gives other parties notice and the opportunity to be heard. See Bayview Loan Servicing v. Dzidzovic , 249 So.3d 1265, 1267 (Fla. 2d DCA 2018) (reversing an order that vacated a final judgment pursuant to Rule 1.540(b) without hearing, and noting that "[d]ue process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard" (quoting E.I. DuPont De Nemours & Co. v. Lambert , 654 So.2d 226, 228 (Fla. 2d DCA 1995) ). See also Austin v. Austin , 120 So.3d 669, 674-75 (Fla. 1st DCA 2013) (holding that the same due process requirements are necessary before a party is "divested of his or her property"). Bunda's heirs were deprived of this right. We find that this constitutes a departure from the essential elements of the law.

III.

Under these circumstances, the Order To Set Aside Order For Summary Administration departed from the essential requirements of the law causing irreparable harm. Accordingly, we grant the petition for writ of certiorari and quash the order under review.

GRANTED .

Bilbrey and Winokur, JJ., concur; Jay, J., dissents without opinion.

      We have jurisdiction to grant certiorari relief. Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(3).

      The order vacating summary administration simply stated that the "cause came before the Court on its own motion [and that] [a]bnormalities [were] identified in the estate file," without identifying authority for the action. However, the unsolicited letter from DFS stated that Rule 1.540"provides a possible to [sic] remedy."

      A final order may be vacated beyond one year when it is void or has already been discharged, released, or satisfied. Fla. R. Civ. P. 1.540(b). This exception does not apply here.


text:
    STATE of Florida, Appellant, v. Christopher Jonathan TORO, Appellee.
    Case No. 5D18-1138
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 16, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert Jackson Pearce, III, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed. See State v. McCartney, 1 So.3d 326 (Fla. 4th DCA 2009).

BERGER, GROSSHANS and SASSO, JJ., concur.


text:
    Freddie W. COGER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3952
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 16, 2019
    Freddie W. Coger, South Bay, pro se.
    Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nielson v. State , 984 So.2d 587 (Fla. 2d DCA 2008).

EDWARDS, HARRIS and GROSSHANS, JJ., concur.


author: MORRIS, Judge.

text:
    MARCO MARINE CONSTRUCTION, INC., Appellant, v. Rebecca KOPRAS, Appellee.
    Case No. 2D17-1734
    District Court of Appeal of Florida, Second District.
    Opinion filed April 17, 2019.
    Esther E. Galicia and James N. Hurley of Fowler White Burnett, P.A., Miami, for Appellant.
    Rachael S. Loukonen, Jason Hunter Korn, and Marshall P. Bender of Cohen & Grigsby, P.C., Naples; and Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellee.
    EN BANC
   MORRIS, Judge.

Marco Marine Construction, Inc., appeals from a final judgment awarding Rebecca Kopras her attorneys' fees that were incurred in her negligence action against Marco. After Kopras prevailed in her negligence action, she filed a motion for fees pursuant to section 768.79, Florida Statutes (2012), because she had served settlement proposals to Marco, which Marco rejected, during the pendency of the action. Citing Juneau Tanker Corp. v. Sims, 627 So.2d 1230, 1232 (Fla. 2d DCA 1993), the trial court granted the motion. Because this case is governed by federal maritime law which holds generally that attorneys' fees may not be awarded pursuant to a state fee-shifting statute in an admiralty case, our decision in Juneau Tanker is in conflict with federal maritime law as it pertains to this issue. Accordingly, we hereby recede from Juneau Tanker and, in doing so, reverse the decision of the trial court.

BACKGROUND

The underlying negligence action arose after Kopras's boat suffered damage which she alleged was the result of negligent design and/or installation of the boatlift that Marco installed for her. In her suit, Kopras sought a judgment not only for damages to her vessel but also for loss of its use and diminution in value. In response, Marco asserted that Kopras was not entitled to damages for loss of use or diminution in value because the action was governed by federal maritime law which does not recognize such damages.

While the underlying action was pending, Kopras served Marco with three proposals for settlement pursuant to section 768.79. Marco did not accept any of the three proposals. Also during that time, the trial court ruled that federal maritime law applied to the action, and as a result, Kopras was limited to solely seeking damages for the cost of repairing her vessel.

Following a jury trial, the jury returned a verdict in Kopras's favor, and she was awarded damages for the repair costs.

She subsequently moved for an award of attorneys' fees based on her rejected settlement proposals.

Marco objected to the motion, arguing that fees should be denied because federal maritime law applies and it follows the American Rule which requires each party to pay its own attorneys' fees. While acknowledging that our Juneau Tanker decision stood for the proposition that parties can recover attorneys' fees in maritime cases, Marco noted that this court had relied on another case, Royal Caribbean Corp. v. Modesto, 614 So.2d 517 (Fla. 3d DCA 1992), which had since been receded from in Royal Caribbean Cruises, Ltd. v. Cox, 137 So.3d 1157 (Fla. 3d DCA 2014). Thus, Marco contended that because Modesto-the case that Juneau Tanker relied upon-was no longer good law, the trial court should decline to award fees pursuant to section 768.79.

Kopras responded by asserting that the doctrine of stare decisis required the trial court to adhere to Juneau Tanker and that it was binding on the trial court unless and until it was either receded from by this court or overruled by the Florida Supreme Court.

Ultimately, the trial court agreed with Kopras that the doctrine of stare decisis required it to apply Juneau Tanker and to award fees pursuant to section 768.79. But, in doing so, the trial court acknowledged cases from other state and federal courts that declined to award fees in maritime cases. The trial court explained:

While this Court determined on April 18, 2016 that this matter is governed by federal maritime law, ... this court is nonetheless compelled to follow the holding of Juneau... wherein the Second District Court of Appeals [sic] reversed the denial of attorney's fees and costs in a maritime case based on Fla. Stat., § 768.79 and F. R. C. P., Rule 1.442. This Court is, however, cognizant of the rulings in Royal Caribbean Cruises, Ltd. v. Cox, 137 So.3d 1157, 1161 (Fla. 3d DCA 2014), Nicoll v. Magical Cruise Co., 110 So.3d 98, 99 (Fla. 5th DCA 2013), and Garan, Inc. v. M/V Aivik, 907 F.Supp. 397 (S.D. Fla. 1995), which were decided subsequent to, and contrary to, the decision in Juneau. Notwithstanding, the Court must follow the holding of Juneau.

(Footnote omitted).

ANALYSIS

The issue of whether federal maritime law applies to this case has already been resolved. Thus our focus is determining whether our decision in Juneau Tanker is in conflict with federal maritime law. We conclude that it is.

In Juneau Tanker, an appeal arising from a maritime personal injury action, we summarily reversed the trial court's denial of the appellee's motion for attorneys' fees. 627 So.2d at 1232. Beyond citing to Modesto, however, we did not provide any further explanation. Id.

Modesto, in turn, only briefly addressed the issue of awarding attorneys' fees pursuant to section 768.79 in a maritime case. 614 So.2d at 520. Noting that attorneys' fees awards "made pursuant to Florida law regarding offers of judgment are intended to deter unnecessary litigation and encourage the timely settlement of claims," the Third District concluded that there was "no conflict between Florida's rules of law regarding offers of judgment and federal maritime law." Id. On that basis, the court reversed the order denying the appellee's motion for attorneys' fees. Id.

However, in 2014, the Third District revisited Modesto. In Cox, 137 So.3d at 1159, the court receded from Modesto, holding "that the application of the offer of judgment statute conflicts with and interferes with federal maritime law." The court explained that "[f]ederal maritime law follows the American Rule regarding attorney's fees" and that that rule "provides that ordinarily each party must pay its own attorney's fees, absent an exception such as a federal statute, an enforceable contractual provision providing for fees, or a finding that the non-prevailing [sic] party engaged in bad-faith conduct." Id. None of those exceptions applied in that case.

While noting that state courts were entitled to apply state law to supplement federal maritime law where state law did not conflict or interfere with uniformity, the court was also careful to note that state law was inapplicable where: "(1) the state law is found to conflict with substantive maritime law, or (2) the state law affects remedies peculiar to maritime law." Id. at 1160 (quoting Norwegian Cruise Lines, Ltd. v. Zareno, 712 So.2d 791, 793 (Fla. 3d DCA 1998) ). After citing a plethora of federal case law for the proposition that application of state fee-shifting statutes, including section 768.79, "conflicts with maritime law and violates the important maritime principle of uniformity," the court concluded that "Florida's offer of judgment statute conflicts with the general rule of federal maritime law that parties pay their own fees absent an exception." Cox, 137 So.3d at 1160-61. In doing so, the court recognized that it was not bound by lower federal court decisions, but it also acknowledged the Florida Supreme Court's admonition to "adhere to the federal principles of harmony and uniformity when applying federal maritime law." Id. at 1161 (quoting Carnival Corp. v. Carlisle, 953 So.2d 461, 470 (Fla. 2007) ). Thus, the decision to recede from Modesto was rooted "in the interests of conformity in exercising [maritime] jurisdiction." Id.

The Third District is not the only Florida appellate court that bars the recovery of section 768.79 attorneys' fees in maritime cases. The Fifth District Court of Appeal holds similarly. See Nicoll v. Magical Cruise Co., 110 So.3d 98, 99 (Fla. 5th DCA 2013) ("Under federal admiralty law, the prevailing party is not entitled to attorneys' fees absent circumstances not applicable here, even when a state statute establishes an entitlement to fees." (citations omitted) ). And, as noted by the Third District, numerous federal courts have rejected the application of various state fee-shifting statutes as conflicting with federal maritime law and/or violating principles of uniformity. See, e.g., Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 841 (11th Cir. 2010) (holding that Georgia statute that established entitlement to prevailing party attorneys' fees in construction contract disputes directly conflicted with the American Rule which is a "principle of substantive maritime law" and that appellee's request for attorneys' fees in maritime case was thus properly denied); Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 405-06 (5th Cir. 2003) (concluding that adherence to the American Rule, in conjunction with the need for uniformity in federal maritime law, precluded application of Texas statute that permitted award of attorneys' fees to party seeking to recover for breach of contract in a maritime contract dispute); Southworth Machinery Co. v. F/V COREY PRIDE, 994 F.2d 37, 41 (1st Cir. 1993) (rejecting application of Massachusetts statute that permitted award of attorneys' fees where it was inconsistent with maritime law); Sosebee v. Rath, 893 F.2d 54, 56-57 (3d Cir. 1990)

(explaining that "[t]here is a strong interest in maintaining uniformity in maritime law" and holding that Virgin Islands statute that permitted award of prevailing party attorneys' fees could not be applied in federal maritime case because it conflicted with general prohibition of fee awards in maritime cases); Garan, Inc. v. M/V Aivik, 907 F.Supp. 397, 400-01 (S.D. Fla. 1995) (rejecting Modesto and holding that section 768.79 conflicts with the American Rule and that application of it "would frustrate the need for uniformity in the admiralty jurisdiction and is preempted by federal maritime common law"); see also Tai-Pan, Inc. v. Keith Marine, Inc., No. 95-338-CIV-J-20, 1997 WL 714898 at *10 (M.D. Fla. 1997) (agreeing with Garan that section 768.79 conflicts with the American Rule).

Here, as in Cox, none of the exceptions to the American Rule apply. Thus because the American Rule generally bars an award of attorneys' fees in a maritime case absent one of those exceptions, an award of attorneys' fees pursuant to section 768.79 in such a case "violates the important maritime principle of uniformity." Cox, 137 So.3d at 1160. Juneau Tanker was based on case law that has since been receded from, and we are now convinced that the underlying premise of Juneau Tanker is no longer good law. Consequently, we align ourselves with the federal and other Florida appellate courts that hold that absent certain exceptions, a state fee-shifting statute-such as section 768.79-may not be applied where it conflicts with federal maritime law. For these reasons, we hereby recede from Juneau and reverse the award of attorneys' fees to Kopras.

Reversed.

LaROSE, C.J., and NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, KHOUZAM, BLACK, SLEET, LUCAS, SALARIO, BADALAMENTI, ROTHSTEIN-YOUAKIM, ATKINSON, and SMITH, JJ., Concur.

      Kopras also sought and was awarded costs as the prevailing party in accordance with section 57.041, Florida Statutes (2012). Marco is not challenging Kopras's entitlement to costs or the amount of costs awarded under that statute.

      Kopras appealed the final judgment, specifically challenging the trial court's ruling limiting her damages to the cost of repair. On September 1, 2017, this court affirmed. See Kopras v. Marco Marine Constr., Inc., 237 So.3d 302 (Fla. 2d DCA 2017) (table decision).

      We are not persuaded by Kopras's argument that the offering and rejecting of proposals for settlement are peripheral actions to the underlying maritime case for which maritime law is inapplicable, and we will not address this argument further. We similarly reject Kopras's other arguments, including the argument that, at the very least, she is entitled to an award for fees incurred prior to the trial court's determination that the case was governed by federal maritime law.


text:
    STATE of Florida, Appellant, v. Jamie Lin NELSON, Appellee.
    Case No. 5D18-1364
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 16, 2019
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert Jackson Pearce, III, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed. See State v. McCartney, 1 So.3d 326 (Fla. 4th DCA 2009).

BERGER, GROSSHANS and SASSO, JJ., concur.


text:
    Christopher VIDAL, Athletes USA Group, LLC, a Florida limited liability company, and Athletes USA Limited [UK], a foreign entity, Appellants, v. ATHLETES USA, LLC, a Florida limited liability company, and on behalf of its licensees Oscar Gonzalez Albo, individually, David Rueda, individually, Atletas USA SL, a Spanish corporation, Narlan Investments, SL, a Spanish corporation, Warubi Sports, LLC, a Florida limited liability company, Herbert Biste, Chris Griesbch, Maria Candelas Sanchez, Alexandor Mazon, Silvie Espelt, individually, Beatriz Indurain, individually, and Oscar Gonzalez Albo, individually, Appellees.
    No. 4D18-2911
    District Court of Appeal of Florida, Fourth District.
    April 17, 2019
    Michael J. Pike, Daniel Lustig, Dominique Torsiello and Robert Johnson of Pike & Lustig, LLP,West Palm Beach, for appellants.
    Mark R. Osherow of Osherow, PLLC, Boca Raton, for appellees.
   Per Curiam.

Christopher Vidal, Athletes USA Group, LLC and Athletes USA Limited [UK] appeal a circuit court order that granted a motion for preliminary injunction against them in a commercial dispute. We have reviewed the detailed order and affirm without discussion on all issues raised. However, we remand for the circuit court to clarify its order on one point only. The court shall omit the word "or" as it appears in its disposition section A (4), pages 55 and 56, to reflect its intention to restrict acts of competition only through use of the Athletes USA brand, mark or logo.

Affirmed and Remanded .

Warner, Taylor and Conner, JJ., concur.


text:
    Joachim D. EMILE, Appellant, v. Dania EXCELLENT, Appellee.
    No. 4D18-2052
    District Court of Appeal of Florida, Fourth District.
    April 17, 2019
    Jordan H. Jordan of the Law Office of Jordan Howard Jordan, Coral Springs, for appellant.
    No appearance for appellee.
   Per Curiam.

Appellee filed a petition against appellant for protection against stalking. During a hearing, the parties verbally agreed to an injunction for no contact for one year. Appellant also agreed to surrender his gun and ammunition. The trial court entered a written final judgment, but included a finding that appellee was a victim of stalking, which was not a part of the agreement. Appellant moved to vacate the injunction, and the trial court denied the motion. We affirm the final judgment. However, because of the discrepancies between the face of the written order and the parties' verbal agreement, we remand for the trial court to strike the second paragraph of Section II of the judgment, in which the trial court found that appellee was a victim of stalking, as well as all conditions not verbally agreed to by the parties, including the enforcement provisions in Section V that were never discussed. See Glick v. Glick , 874 So.2d 1238, 1241 (Fla. 4th DCA 2004) ("A trial court's oral pronouncement must control over a later written order."). Pursuant to the parties' verbal agreement, the following provisions of the final judgment remain in force: Section III 1 (prohibited actions), 2a., b., and c. (no contact), and 3b. and c. (firearms and ammunition).

Affirmed and remanded with instructions.

WARNER, GROSS and LEVINE, JJ., concur.


text:
    CALATLANTIC GROUP, INC., Appellant, v. William S. DAU, Veronica L. Dau and Mark Feeser, Appellees.
    Case No. 5D18-1281
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Theodore D. Estes and Justin A. Green, of Divine & Estes, P.A., Orlando, for Appellant.
    Adam M. Trumbly and Derek A. Schroth, of Bowen/Schroth, Eustis, for Appellees.
   PER CURIAM.

CalAtlantic Group, Inc. ("CalAtlantic") appeals the final order denying its motion for attorney's fees filed after the voluntary dismissal of the lawsuit initiated by William S. Dau, Veronica L. Dau, and Mark Feeser, individually and as representatives of all similarly situated others ("Appellees"). We reverse.

CalAtlantic is the developer for Waterside Pointe, a residential community in Lake County, Florida. Appellees are residents of Waterside Pointe and class representatives of similarly situated residents of the community. The original developer of Waterside Pointe, The Ryland Group, sold the community properties subject to the Second Amended and Restated Declaration of Covenants, Conditions, and Restrictions of Waterside Pointe ("the Declaration"), which it drafted. Pursuant to the terms of the Declaration, the word "Declarant" refers to The Ryland Group and "its successors and assigns."

The Declaration contains two provisions providing for attorney's fees:

ARTICLE IX
USE RESTRICTIONS
....
Section 1. Violation. If any person claiming by, through or under Declarant, or its successors or assigns, or any other person, shall violate or attempt to violate any of the covenants herein, it shall be lawful for the Declarant or any person or persons owning real estate subject to these covenants to bring any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant including action to enjoin or prevent him or them from so doing, or to cause the violation to be remedied and to recover damages or other dues for such violation. If the party or parties bringing any such action prevail, they shall be entitled to recover from the person or persons violating the restrictions the costs incurred by such prevailing party, including reasonable attorney's fees and disbursements incurred through all appellate levels. Invalidation of any of these covenants by judgment of court order shall in no way affect any of the other covenants and provisions, contained herein, which shall remain in full force and effect.
....
ARTICLE XII
ENFORCEMENT OF NON-MONETARY DEFAULTS
....
Section 7. Enforcement By or Against Persons. In addition to the foregoing, the Declaration may be enforced by the Declarant, the Association, or any Member by any procedure at law or in equity against any Person violating or attempting to violate any provisions herein, to restrain any violation, to require compliance with the provisions contained herein, to recover damages, or to enforce any lien created herein. The expense of any litigation to enforce this Declaration shall be borne by the Person against whom enforcement is sought, provided such proceeding results in a finding that such Person was in violation of the Declaration. The prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees, costs and disbursements through the appellate level.

Appellees filed a complaint against CalAtlantic as "successor by merger to The Ryland Group." They sought specific performance of an alleged oral contract they entered into with CalAtlantic and a declaratory judgment finding that CalAtlantic breached the Declaration by failing to adequately maintain the Waterside Pointe common areas and amenities. After CalAtlantic filed a motion to dismiss but before it answered Appellees' amended complaint, Appellees voluntarily dismissed the lawsuit.

CalAtlantic filed a motion for entitlement of costs and attorney's fees, alleging in part that it was entitled to such pursuant to the Declaration and section 57.105(7), Florida Statutes (2017). The trial court denied CalAtlantic's motion on the bases that: it did not bring an action to prevent, remedy, or recover damages by a party "violating or attempting to violate" the Declaration; there was no finding of a violation of the Declaration; and there was no order adjudicating the case on the merits.

On appeal, CalAtlantic argues that the trial court erred in its interpretation of the attorney's fees provisions of the Declaration and in its finding that section 57.105(7) did not apply. We agree.

Section 57.105(7), Florida Statutes (2017), provides:

If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

The purpose of section 57.105(7) is "simply to ensure that each party gets what it gives." Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893, 895 (Fla. 4th DCA 2010) (quoting Inland Dredging Co. v. Pan. City Port Auth., 406 F.Supp.2d 1277 (N.D. Fla. 2005) ). However, "[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement." Id. Appellees rely on Subway Restaurants, Inc. v. Thomas, 860 So.2d 462 (Fla. 4th DCA 2003), and maintain that awarding CalAtlantic attorney's fees would impermissibly expand the scope of the attorney's fees provisions of the Declaration because a breach is required to trigger the entitlement to fees, and here, a breach did not occur. We find that Subway is distinguishable.

In Subway, the plaintiff sued a franchisee for eviction, and the franchisee counter-sued for wrongful eviction, a civil rights violation, and breach of contract. Id. at 462. The franchisee prevailed and sought attorney's fees pursuant to a fee provision in the parties' agreement. Id. at 462-63. The trial court awarded the franchisee attorney's fees, and the plaintiff appealed, arguing that the franchisee was not entitled to the award under section 57.105(6), Florida Statutes (2002). Id. at 463. The Fourth District agreed and reversed the award because the parties' agreement only provided for attorney's fees in actions for collecting unpaid rent; the eviction claim and counterclaims never triggered the plaintiff's limited entitlement to attorney's fees, and thus, the franchisee could not collect such fees pursuant to section 57.105(6). Id. at 464.

Like in Subway, here, the trial court denied CalAtlantic's motion for attorney's fees partially on the basis that CalAtlantic "did not bring an action as described." However, we find that Appellees brought an action as described in the Declaration. The attorney's fees provisions in the Declaration applied to lawsuits for violations of the Declaration or to enjoin or enforce duties therein. Accordingly, Appellees' lawsuit-seeking a declaratory judgment that CalAtlantic breached the Declaration-fell within the scope of both attorney's fees provisions. Had Appellees prevailed, they would have been entitled to recover attorney's fees.

The attorney's fees provisions in the Declaration are similar to the fee provision in GEMB Lending, Inc. v. RV Sales of Broward, Inc., No. 09-61670-CIV, 2010 WL 5313482 (S.D. Fla. Dec. 20, 2010). In GEMB, the plaintiff unsuccessfully sued the defendants to collect delinquent payments on a loan. Id. at *1-2. The defendants sought attorney's fees pursuant to the provision in the loan, which stated, "If you default, you agree to pay our costs for collecting amounts owing, including court costs, reasonable attorneys' fees." Id. at *2. The plaintiff argued that the defendants did not trigger section 57.105(7) because they did not seek to enforce a contract provision against them or allege a breach, default, or misconduct. Id. at *3. The Southern District rejected the plaintiff's argument and explained:

The present case is clearly distinguishable from Subway. Florida Statute § 57.105(7) allows a party to invoke mutuality even if they are a "defendant." Thus, [the plaintiff] need not have defaulted on anything to trigger the statute and fee provision. Rather, it is [the plaintiff's] unsuccessful attempt to sue the [defendants] for default and collection which resulted in the [defendants] incurring attorney's fees. Florida law allows them to recoup these fees from [the plaintiff] under the terms of the parties' agreement.

Id. at *4.

As in GEMB, here, we hold that the availability of attorney's fees was determined by the cause of action asserted in Appellees' complaint, not the disposition of the case. Provided that the contract is not found to be unenforceable between the parties, if a claim is within the scope of an attorney's fees provision, the party defending against that claim is entitled to attorney's fees pursuant to section 57.105(7) if the party prevails. "It is well-settled that when a plaintiff takes a voluntary dismissal the defendant is deemed the prevailing party and therefore is entitled to attorney's fees if the contract authorizes an award of attorney's fees." Casarella, Inc. v. Zaremba Coconut Creek Parkway Corp., 595 So.2d 162, 163 (Fla. 4th DCA 1992) (citing Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin Cty., 493 So.2d 1136 (Fla. 4th DCA 1986) ). Thus, because Appellees' claim was within the scope of the attorney's fees provisions of the Declaration, pursuant to section 57.105(7), CalAtlantic was entitled to attorney's fees for prevailing against Appellees' claim.

Limiting a party's entitlement to attorney's fees on the outcome of a dispute rather than the cause of action asserted in the pleadings is contrary to the purpose of section 57.105(7). To hold otherwise would enable a drafting party to construct attorney's fees provisions around the ambit of section 57.105(7), resulting in an uneven playing field and thereby defeating the protection afforded by the statute. Accordingly, we reverse the order denying CalAtlantic's motion for attorney's fees and remand with instructions to grant CalAtlantic's motion for costs and attorney's fees.

REVERSED and REMANDED with instructions.

ORFINGER, COHEN and HARRIS, JJ., concur.

      Appellees' counsel filed a notice informing this Court that Appellee, Mark Feeser, passed away on March 7, 2019. At the time of Mr. Feeser's death, this cause was ready for decision, and his death does not affect the disposition of this appeal. See Lowenstein v. U.S. Bank Nat'l Ass'n, 253 So.3d 86, 87 n.1 (Fla. 2d DCA 2018) (citations omitted); Colucci v. Colucci, 309 So.2d 67, 67 (Fla. 2d DCA 1975).

      Appellees also make what is essentially a tipsy coachman argument and ask this Court to affirm the denial of attorney's fees because the record does not demonstrate that The Ryland Group vested its rights to CalAtlantic. "A trial court's ruling should be upheld if there is any legal basis in the record which supports the judgment. ... [and] the appellee should be permitted to explicate any legal basis supporting the trial court's judgment." State v. Hankerson, 65 So.3d 502, 505 (Fla. 2011), as revised on denial of reh'g (June 30, 2011). However, this Court "cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so." Foley v. Azam, 257 So.3d 1134, 1139 n.3 (Fla. 5th DCA 2018) (citing Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009), review denied, No. SC18-2120, 2019 WL 1349273 (Fla. Mar. 26, 2019) ). Throughout the proceedings, Appellees and CalAtlantic repeatedly referred to CalAtlantic as The Ryland Group's successor by merger; the record does not reflect that this was in dispute, and the trial court's order contains no factual findings regarding the issue. "Inasmuch as the trial court did not consider that issue, we decline to do so as well." Id.

      Appellees cite multiple cases for the same proposition, all of which are distinguishable for the same reason as Subway. See Placida Prof'l Ctr., LLC v. F.D.I.C., 512 F. App'x 938 (11th Cir. 2013) ; Pastina, 43 So.3d at 895 ; Anderson Columbia Co. v. Fla. Dep't of Transp., 744 So.2d 1206, 1207 (Fla. 1st DCA 1999) ; Indem. Ins. Co. of N. Am. v. Chambers, 732 So.2d 1141, 1143 (Fla. 4th DCA 1999).

      The language of section 57.105(6), Florida Statutes (2002), is identical to the statute at issue.


text:
    J.T., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-952
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Robert Wesley, Public Defender, Orlando, and Amelia Edwards, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 22, 2019, judgment and sentence rendered in Case No. CJ17-3275-O, in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, WALLIS and SASSO, JJ., concur.


author: GROSSHANS, J.

text:
    Shawn RESTAL, Appellant, v. Bridget A. NOCERA, et al., Appellees.
    Case No. 5D17-2 5D17-1635
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2019
    Angela C. Flowers and Bretton C. Albrecht, of Kubicki Draper, P.A., Ocala, for Appellant.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, and O. John Alpizar, of Alpizar Law, LLC, Palm Bay, for Appellee, Bridget Nocera.
    No Appearance for Other Appellee.
    ON MOTION FOR CLARIFICATION
   GROSSHANS, J.

We grant the motion for clarification, withdraw our previous opinion, and substitute the following in its place.

In this negligence case, Appellant, Shawn Restal, appeals a final judgment entered by the trial court following a jury verdict for damages in favor of Appellee, Bridget Nocera. Appellant argues that the trial court erred in granting partial summary judgment on the issues of liability and causation. We agree in part, finding that there were issues of material fact that overcame the presumption that Appellant was solely at fault for the vehicle collision at issue in this case. Therefore, we affirm the summary judgment as to Appellant's negligence but reverse on the issue of Appellee's comparative negligence and remand for a new trial.

I. BACKGROUND INFORMATION

The parties were involved in a collision in which Appellant's vehicle struck the rear of Appellee's vehicle. Subsequently, Appellee filed a negligence lawsuit against Appellant alleging permanent bodily injury and various other related damages. The parties were deposed prior to the hearing on summary judgment, and their accounts differed as to how the collision occurred.

According to Appellee's deposition testimony, she was attempting to make a U-turn on an unfamiliar road and began to move toward the median before realizing that she could not make a U-turn at that particular location. She stated that she slowed down somewhat as she was in heavy traffic but maintained a speed of around thirty-three miles per hour. Appellee testified that she did not use her brakes at all or move into the turn lane. Shortly thereafter, she was hit from behind by Appellant.

Contrary to this testimony, Appellant gave the following account:

[Attorney:] ... Do you know whether my client made any type of a lane change?
[Appellant:] She stopped at the U-turn for the median to the U-turn, and that's when I collided with her.
....
[Attorney:] When you first saw my client's vehicle, what did you observe?
[Appellant:] I observed her slamming on her brakes to try to turn into the median, the no U-turn median, and that's when I hit her. She wasn't fully into the median. She was veering into the median, and that's when I ran into the back of her vehicle.
[Attorney:] So, did you see my client's brake lights on?
[Appellant:] Yes.
[Attorney:] Did you see my client's vehicle before the brake lights were on?
[Appellant:] Yes.
....
[Attorney:] How far was your vehicle behind my client's vehicle before the brake lights came on?
[Appellant:] Approximately a little bit more than a half a car behind her.
[Attorney:] Just so I'm clear, when you first saw my client's vehicle, it did not have the brake lights on, correct?
[Appellant:] Yes.
[Attorney:] And my client's vehicle was traveling forward at approximately 34 to 35 miles an hour, right?
[Appellant:] In front, yes.
[Attorney:] At that point in time, your vehicle was approximately one half of a car length behind my client's car, correct?
[Appellant:] A car and a little bit more than a half a car behind her. Not a whole car, but just a little bit more than half.
[Attorney:] And then you saw my client's brake lights come on, correct?
[Appellant:] Yes.
[Attorney:] Can you give me an idea from the time you saw the brake lights go on in my client's vehicle to the point of the crash, how much time elapsed?
[Appellant:] Three seconds.
[Attorney:] At the time of impact, was my client's vehicle still moving forward or had it stopped?
[Appellant:] It stopped.
[Attorney:] It was at a complete stop?
[Appellant:] It was at a complete stop while she was trying to veer off to make a turn in the median. It was at a complete stop, rolling a little bit, I would say, not a complete stop.
[Attorney:] Can you give me an idea of where the front nose of my client's car was relative to a straight line going down Emerson versus that median, that break in the median?
[Appellant:] The front, where she was turning into, the left headlight, the left tire, was probably a little bit over the dotted median line when I hit her.

In his sworn testimony, Appellant also admitted that he could have avoided the collision had he left more room between his vehicle and Appellee's vehicle.

Following the depositions, Appellee moved for partial summary judgment on the issues of liability and causation. Ultimately, the trial court ruled that Appellee was entitled to partial summary judgment pursuant to the presumption of negligence that attaches to rear-end collisions, noting with particularity that Appellant admitted he failed to remain a proper distance behind Appellee.

Subsequently, the case proceeded to trial solely on the issue of damages, and the jury rendered a verdict in favor of Appellee. The trial court entered a final judgment consistent with the verdict and later awarded attorney's fees to Appellee. This appeal follows.

II. ANALYSIS

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999) ). Accordingly, we review de novo the trial court's decision to grant partial summary judgment. Id.

In a rear-end collision, a rebuttable presumption of negligence attaches to the driver of the rear vehicle. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla. 2001). However, the presumption that the rear driver's negligence is the sole cause of the collision can be rebutted if there is evidence from which a jury could infer that the front driver was also negligent. See Birge v. Charron, 107 So.3d 350, 360 (Fla. 2012). "The rear-end presumption is not a substantive rule of law that supersedes Florida's comparative negligence system of tort recovery." Id. at 359.

Further, the rear-end presumption does not completely insulate a negligent lead driver from liability for any comparative negligence, and issues of disputed fact regarding negligence and causation should be submitted to the jury. See Servello & Sons Inc. v. Sims, 922 So.2d 234, 236 (Fla. 5th DCA 2005) ; see also Birge, 107 So.3d at 361.

In ruling on a motion for summary judgment, the court must take all facts in the light most favorable to the non-moving party. Vander Voort v. Universal Prop. & Cas. Ins., 127 So.3d 536, 538 (Fla. 4th DCA 2012). Constrained by this principle, we find that there were conflicts in the material facts from which a jury could conclude that Appellee was comparatively at fault for the collision.

The parties' deposition testimony differs significantly in regard to whether Appellee suddenly engaged her brakes and veered in and out of the turn lane. Further, Appellant's assertion that Appellee came to a rolling stop conflicts with Appellee's statement that she only slowed down slightly. When viewing those facts in the light most favorable to Appellant, there was evidence from which a jury could have inferred that Appellee was also partially liable for the collision. Thus, the trial court erred in finding Appellant solely liable for the collision as a matter of law.

Undisputed evidence established that Appellant struck Appellee from the rear and was following Appellee too closely just prior to the collision. These undisputed facts entitled Appellee to a partial summary judgment finding that Appellant was negligent as a matter of law. However, consistent with our analysis above, this finding does not completely shield Appellee from liability under Florida's comparative negligence system.

Accordingly, we affirm the partial summary judgment to the extent that it found Appellant negligent as a matter of law but reverse to the extent it found Appellant was solely at fault. We remand for a new trial at which the issue of Appellee's comparative negligence should be considered by the jury. Because we reverse the final judgment and order a new trial, we also reverse the order of attorney's fees and costs. On remand, the trial court may consider the issue of attorney's fees at the conclusion of the case.

AFFIRMED in part; REVERSED in part; and REMANDED.

EVANDER, C.J., and BERGER, J., concur.

      We affirm, without discussion, the jury instruction issue raised by Appellant. Further, based on our holding as to the partial summary judgment, we need not address the merits of Appellant's arguments that the trial court improperly awarded attorney's fees pursuant to the offer-of-judgment statute. See § 768.79, Fla. Stat. (2012) ; see also Fla. R. Civ. P. 1.442.

      The sole issue for the new trial shall be whether Appellee was comparatively negligent and, if so, the percentage of fault attributable to Appellee.

      See Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney's fees. Consequently, an award of attorney's fees and costs predicated on a reversed or vacated final judgment also must be reversed.").