author: LINDSEY, J.

text:
    Luis A. RUIZ, and Ivett Corvaia and Premium Medical Group, Inc., Appellants, v. POLICLINICA METROPOLITANA, C.A., Appellee.
    Nos. 3D17-1535 3D17-1523
    District Court of Appeal of Florida, Third District.
    Opinion filed September 26, 2018
    Piedra & Associates, P.A., Jorge L. Piedra, Miami, and Jeremy A. Koss, Sunrise, for appellants.
    Holland & Knight LLP, and Rebecca M. Plasencia, Alex M. Gonzalez, and Israel J. Encinosa, Miami, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   LINDSEY, J.

Appellants/defendants below appeal the trial court's orders denying their respective motions for determination of entitlement to attorney's fees against the Appellee/plaintiff below pursuant to section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.442. Because: (1) all three of the $3,500 offers of judgment, respectively, complied with both the statute and the rule; (2) a final judgment of no liability was entered in favor of one defendant; (3) the plaintiff was awarded zero damages as to the other defendants; and, (4) the trial court made no finding that the defendants' offers of judgment were not made in good faith, we reverse and remand with instructions to hold an evidentiary hearing to determine reasonable attorney's fees.

I. BACKGROUND

Medex Trading, LLC ("Medex") filed the underlying lawsuit on July 15, 2011. The operative complaint is the fourth amended complaint, filed by Medex and Policlinica Metropolitana, C.A. ("Policlinica"). Policlinica, Premium Medical Group, Inc. ("Premium"), Ivett Corvaia ("Corvaia"), and Luis A. Ruiz ("Ruiz") were not parties to the initial lawsuit. However, the trial court entered an order on the motions to dismiss the second amended complaint, wherein the court determined that Policlinica is an indispensable party and should be joined in the controversy. As such, Medex added Policlinica as an additional plaintiff and also added Premium and Corvaia as additional defendants in the pleading that became the third amended complaint. Medex and Policlinica subsequently added Ruiz as a defendant in the fourth amended complaint.

Prior to trial, Ruiz, Corvaia, and Premium had each presented Policlinica with separate offers of judgment/proposals for settlement in the amount of $3,500 (the "offers"). Policlinica did not accept any of the offers. Following a multi-day bench trial, the trial court entered a final judgment wherein it found in favor of Ruiz and against Medex and Policlinica. The trial court also entered judgment for damages in favor of Medex and Policlinica and against Corvaia and Premium. However, the trial court awarded all of the damages to Medex and none to Policlinica.

A. Ruiz's Entitlement Order - 3D17-1535

Thereafter, Ruiz filed the following: (i) a motion for determination of entitlement to attorney's fees against Policlinica pursuant to section 768.69 and rule 1.442, and predicated upon Ruiz's offer; (ii) a motion for determination of entitlement to attorney's fees against Medex; and (iii) a motion to tax costs against Medex and Policlinica. The trial court granted Ruiz's motion for attorney's fees against Medex and his motion to tax costs against Medex and Policlinica. However, the trial court denied Ruiz's motion for attorney's fees against Policlinica.

In its order denying Ruiz's motion for attorney's fees against Policlinica, the trial court found Ruiz's proposal was not ambiguous and properly stated that it included attorney's fees, that it was a nominal offer, and that Policlinica did not accept it and is thereby deemed to have rejected it. In addition, the trial court expressly found that Ruiz's offer "was made in good faith."

The trial court further found that the "judgment was entered in favor of Ruiz and against Policlinica and therefore Policlinica did not obtain a judgment that was at least 25 percent less than the amount of the offer." Nonetheless, the trial court denied Ruiz's motion for determination of entitlement to attorney's fees against Policlinica, reasoning that:

awarding attorneys' fees and costs would lead to an absurd result, including because Policlinica was forced into this litigation against its will based on the Court's finding that it was an indispensable party and that ... Policlinica ... did not assert any claims separate or beyond those pleaded by Plaintiff Medex and did not ask for damages in addition to or beyond those sought by Medex, and under the circumstances of this case, it was not unreasonable for Policlinica to reject the offer.

The trial court further found that:

the purposes of the offer of judgment statute would not be furthered by enforcing the Offer against Policlinica given that settling Policlinica's claims would not have resulted in eliminating any of the claims to be considered by the Court and therefore would not have resulted in any of the efficiencies the offer of judgment statutes are designed to promote.

And, the trial court ruled in the alternative that:

even had this Court determined that Ruiz was entitled to an award of attorneys' fees and costs pursuant to his Offer, the Court would nonetheless have reduced any award of attorneys' fees and costs to zero because, consistent with [the trial court's other findings in Ruiz's Entitlement Order] and pursuant to [ rule] 1.442(h)(2), including because the Court finds that Policlinica's rejection of the Offer did not cause additional delay cost and expense, did not prolong the litigation, and it was not unreasonable under the circumstances of this case for Policlinica to reject the Offer.

Ruiz's timely appeal follows.

B. Premium and Corvaia's Entitlement Order - 3D17-1523

Similarly, Premium and Corvaia filed their separate motions for determination of entitlement to attorney's fees against Policlinica pursuant to section 768.69 and rule 1.442, and predicated upon their respective offers. The trial court found that Premium's and Corvaia's respective offers were not ambiguous and properly stated they included attorney's fees, they were nominal offers, and that Policlinica did not accept them and was thereby deemed to have rejected them. The trial court made no finding with respect to the faith of the offers, whether made in bad faith or not in good faith. Rather, the trial court found that the only reason the final judgment, "as a technical matter, does not award damages to Policlinica is to avoid a double recovery and because the [predecessor judge] found that as between the two of them, Medex suffered the damages more directly."

The trial court concluded that "[a]bsent Medex, however, Policlinica would have been awarded all of the damages awarded to Medex." In addition, the trial court, despite awarding zero damages to Policlinica, expressly stated in its order that Policlinica suffered damages and that it disagreed with Premium and Corvaia's argument that Policlinica did not obtain a judgment that was at least 25 percent less than the amount of the offers. As such the trial court declined to award attorney's fees to Premium and Corvaia. The trial court based this decision on its finding that:

awarding attorneys' fees and costs would lead to an absurd result, including because Policlinica was forced into this litigation against its will based on the Court's finding that it was an indispensable party and that when Policlinica was added as an indispensable party it did not assert any claims separate or beyond those pleaded by Plaintiff Medex and did not ask for any damages in addition to or beyond those sought by Medex, and under the circumstances of this case, it was not unreasonable for Policlinica to reject the Offer[s].

The trial court ruled in the alternative:

even had this Court determined that [Premium and Corvaia] were entitled to an award of attorneys' fees and costs pursuant to their offers, the Court would nonetheless have reduced any award of attorneys' fees and costs to zero because, consistent with [the trial court's other findings in Premium and Corvaia's Entitlement Order] and pursuant to [ rule] 1.442(h)(2), including because the Court finds that Policlinica's rejection of the offers did not cause any additional delay cost and expense, did not prolong the litigation, and it was not unreasonable under the circumstances of this case for Policlinica to reject the offers.

Premium and Corvaia's timely appeal follows.

II. JURISDICTION

Ruiz's Entitlement Order and Premium and Corvaia's Entitlement Order are final orders denying post-judgment motions for attorney's fees. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

III. STANDARD OF REVIEW

"This Court reviews de novo a trial court's ruling on a motion to award attorney's fees and costs pursuant to the offer of judgment statute and rule." Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So.3d 718, 720 n.1 (Fla. 3d DCA 2015) (citations omitted); see also Anderson v. Hilton Hotels Corp., 202 So.3d 846, 852 (Fla. 2016) ; Kuhajda v. Borden Dairy Co., 202 So.3d 391, 394 (Fla. 2016) (citation omitted).

IV. ANALYSIS

The issue before us is whether the trial court erred in denying the motions of Ruiz, Corvaia, and Premium for attorney's fees pursuant to section 768.79 and rule 1.442. In applying the statute and rule to the offers Ruiz, Corvaia, and Premium made to Policlinica and the judgment entered by the trial court in the underlying action, we are compelled to find that it did.

A. Section 768.79 and Rule 1.442

Section 768.79 governs offers of judgment and demands for judgment, and provides in relevant part:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him ... from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.
....
[ (6) ](a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served....

§ 768.79 (1), (6)(a) (emphasis added).

Rule 1.442(a) provides that "[t]his rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule." Fla. R. Civ. P. 1.442(a). This rule sets forth the requirements for a proposal including content, timing and conditions of acceptance or rejection.

The law in Florida requires section 768.79 and rule 1.442 to be strictly construed because they are in derogation of the common law rule that each party should pay its own fees. Kuhajda, 202 So.3d at 394 (citations omitted). The Florida Supreme Court has recently reaffirmed that the offer of judgment statute creates an entitlement to attorney's fees when the statutory and procedural requirements have been satisfied.

Anderson, 202 So.3d at 856 (citation omitted). When an offer of judgment is made and the requisites of both section 768.79 and rule 1.442 have been satisfied, entitlement to attorney's fees is mandatory. See TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla. 1995) (citation omitted); Anderson, 202 So.3d at 856 (citations omitted); Key West Seaside, 208 So.3d at 721 (citation omitted).

In TGI Friday's, the Florida Supreme Court approved the decision in Dvorak v. TGI Friday's, Inc., 639 So.2d 58 (Fla. 4th DCA 1994), which held that section 768.79 provides for the award of attorney's fees regardless of the reasonableness of an offeree's rejection of an offer of judgment. 663 So.2d at 606-07. The Florida Supreme Court further adopted the Fourth District's analysis in Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993) :

Turning to the substance of section 768.79 itself, we conclude that the legislature has created a mandatory right to attorney's fees, if the statutory prerequisites have been met. The statute begins by creating an "entitlement" to fees. That entitlement may then lead to an "award" of fees. That award may then be lost by a finding that the entitlement was created "not in good faith," or the amount of the award may be adjusted upward or downward by a consideration of statutory factors. That, in outline form, is how we read this statute.

TGI Friday's, 663 So.2d at 611 (quoting Schmidt, 629 So.2d at 1040 ); see also Key West Seaside, 208 So. 3d at 721 ("Under both the statute and rule, therefore, entitlement to fees and costs to a qualifying offeror is mandatory, if the statutory prerequisites have been met." (citing Schmidt, 629 So.2d at 1040 ) ); Obregon v. Rosana Corp., 232 So. 3d 1100, 1104 (Fla. 3d DCA 2017) (" Section 768.79 provides that a party has the right to recover reasonable attorney's fees if all dictates of the statute and rule 1.442 have been followed."); DFC Tamarac, Inc. v. Jackson, 151 So.3d 64, 66 (Fla. 4th DCA 2014) ("[P]ursuant to [ section 768.79 ], once an offer of judgment has been made and rejected and a judgment of no liability has been entered, the defendant has a right to an award of attorney's fees unless the offer was found to have been made in bad faith." (quoting Fla. Gas Transmission Co. v. Lauderdale Sand & Fill, Inc., 813 So.2d 1013, 1014 (Fla. 4th DCA 2002) ) ); Suttles, 190 So.3d at 674 ("[S]ection 768.79 creates a mandatory right to a fee award where a party has served a demand or offer of judgment and that party has recovered a judgment in its favor at least 25 percent more or less than the demand or offer[.]" (citing TGI Friday's, 663 So.2d at 611 ) ); Respiratory Care Servs. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998) ("Under section 768.79, an award of attorney's fees is mandatory if the statutory requirements in subsections (6)(a) or (b) are satisfied and if the offer of judgment was made in good faith." (citing TGI Friday's, 663 So.2d at 611 ) ); Jordan v. Food Lion, Inc., 670 So.2d 138, 140 (Fla. 1st DCA 1996) ("The statute creates a mandatory right to attorney's fees when the statutory 'prerequisites have been fulfilled: i.e., (1) when a party has served a demand or offer for judgment, and (2) that party has recovered a judgment at least 25 percent more or less than the demand or offer.' " (quoting TGI Friday's, 663 So.2d 606, approving Schmidt, 629 So.2d at 1040 ) ).

"[A] no liability judgment activates the offer of judgment statute because a verdict awarding ... nothing is certainly 25 percent less than the offer." Jackson, 151 So.3d at 66 (citation omitted). "Further, it is clear that this entitlement to attorneys' fees hinges on the 'judgment obtained,' as opposed to a verdict form returned by the jury." Anderson, 202 So.3d at 856 (citations omitted). Thus, the right to a fee award turns on the difference between the amount of the rejected offer and the amount of the later "judgment obtained." Section 768.79(6) explains that "[f]or the purposes of the determination required by paragraph (a), the term 'judgment obtained' means the amount of the net judgment entered ...." § 768.79(6).

B. The Offers Made by Ruiz, Premium and Corvaia

Here, the final judgment was one of no liability as to Ruiz. Therefore, as the trial court correctly found in Ruiz's Entitlement Order, the judgment obtained by Policlinica was, on its face, at least 25 percent less than the amount of Ruiz's offer. In the same final judgment, the trial court entered judgment in favor of Policlinica and against Premium and Corvaia, but awarded Policlinica no damages and ordered that Medex would recover all damages. Because Policlinica was awarded no damages, on its face, the judgment obtained was at least 25 percent less than the amount of Premium's and Corvaia's offers. The Florida Supreme Court's reasoning in Anderson, as set forth above, that "entitlement to attorneys' fees hinges on the 'judgment obtained,' as opposed to a verdict form returned by the jury" is equally applicable to a situation such as here where a trial court finds in a bench trial that the plaintiff suffered damages yet enters a judgment for that plaintiff in the amount of zero dollars. 202 So.3d at 856 (citations omitted). Similarly, Policlinica recovered zero dollars from Ruiz.

C. The Not in Good Faith/Bad Faith Exception

There is an exception to the requirement that entitlement to attorney's fees is mandatory where an offer that otherwise meets all of the requirements of section 768.79 and rule 1.442 was not made in good faith or was made in bad faith. Section 768.79 further provides in relevant part:

(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.

§ 768.79(7)(a) (emphasis added). Rule 1.442(h)(1) similarly provides that "[i]f a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such case, the court may disallow an award of costs and attorneys' fees." Fla. R. Civ. P. 1.442(h)(1) (emphasis added).

The offeree bears the burden of proving the offeror's proposal was not made in good faith. Schmidt, 629 So.2d at 1041 n.6. And, it is not an appellate court's task to make a finding of bad faith for the first time on appeal. See Mateo v. Rubiales, 717 So.2d 133, 135 (Fla. 4th DCA 1998) (reversing the trial court's order denying entitlement to attorney's fees under section 768.79 where the record does not reflect that the court ever made a specific finding of bad faith).

Thus, "absent a finding that a party's offer of judgment was not made in good faith, the trial court cannot disallow an entitlement to an award of fees." Downs v. Coastal Sys. Int'l, Inc., 972 So.2d 258, 261-62 (Fla. 3d DCA 2008) (citing Vines v. Mathis, 867 So.2d 548 (Fla. 1st DCA 2004) ); see also Key West Seaside, 208 So.3d at 722 (reversing the trial court's order denying entitlement to attorney's fees where the court did not find that the offer of judgment was made in bad faith and the offer of judgment met the statutory requirement for entitlement to fees); Kuhajda, 202 So.3d 391 ; Anderson, 202 So.3d 846 ; TGI Friday's, 663 So.2d 606.

Here, because all of the requirements of section 768.79 and rule 1.442 were met, Ruiz, Premium, and Corvaia were entitled to an award of attorney's fees unless the trial court made an affirmative finding that their offers were not made in good faith or that they were made in bad faith. It did neither. Rather, the trial court expressly found in Ruiz's Entitlement Order that Ruiz's offer was made in good faith. Additionally, at the hearing on entitlement, the trial court stated that the basis for Ruiz's Entitlement Order "is the basis that was asserted by him, which is, [the predecessor judge] forced Policlinica to be in this case. They [Medex and Policlinica] are pled as plaintiffs both in every single wherefore clause they were alleged for damages. I do not find that there were no damages as against [Policlinica]." The trial court further found that "it was not unreasonable for Policlinica to reject the offer."

Similarly, the trial court found that "it was not unreasonable for Policlinica to reject the offer[s] made by Premium and Corvaia." However, in Premium and Corvaia's Entitlement Order, the trial court did not make a finding as to the faith of either Premium's offer or Corvaia's offer, whether good or bad. Instead, the trial court provided several other reasons in support of its ruling in Premium and Corvaia's Entitlement Order including that sanctioning Policlinica by awarding fees "would lead to an absurd result and not further the purposes of the offer of judgment statute." The trial court further concluded that "the purposes of the offer of judgment statute would not be furthered by enforcing the Offer against Policlinica" and "would not have resulted in any of the efficiencies the offer of judgment statutes are designed to promote."

Because Florida law requires strict construction of section 768.79 and rule 1.442, it is the plain language of the statute and the rule that must be applied in determining whether a party is entitled to an award of fees thereunder. See Kuhajda, 202 So.3d at 394 (citations omitted). Moreover, "[t]he mandatory language of section 768.79 reinforces the notion that a proper offer automatically creates that entitlement, unless the offer is made in bad faith." Anderson, 202 So.3d at 856 (citations omitted); see also TGI Friday's, 663 So.2d at 612 (explaining that a trial court may, in its discretion, disallow an award of attorney's fees, but only if it determines that a qualifying offer was not made in good faith). Further, even nominal offers may be made in good faith. Downs, 972 So.2d at 262.

Here, all of the requirements of both the statute and the rule governing proposals for settlement were met. The only basis for denying entitlement to attorney's fees is a finding by the trial court that Ruiz, Premium, or Corvaia did not make their offers in good faith or that they made them in bad faith. Because the trial court made neither a finding of bad faith nor a finding that the offers were not made in good faith, its denial of attorney's fees to Ruiz, Premium, and Corvaia was error. See Key West Seaside, 208 So.3d at 721-22; Mateo, 717 So.2d at 135.

In declining to find Ruiz, Premium, and Corvaia entitled to fees, the trial court relied on Central Motor Co. v. Shaw, 3 So.3d 367 (Fla. 3d DCA 2009), Segundo v. Reid, 20 So.3d 933 (Fla. 3d DCA 2009), and Florida Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So.3d 240 (Fla. 3d DCA 2013). However, none of those cases is procedurally on point with the instant case.

First, in Shaw, the plaintiff, Shaw, sued two defendants, Central Motor Company and Hyundai Motor Finance Company. 3 So.3d at 368. Shaw rejected Central Motor Company's $1,000 offer and later accepted Hyundai Finance Company's $10,000 offer in exchange for voluntarily dismissing the lawsuit with prejudice against both defendants. Id. This Court affirmed the trial court's order denying Central Motor Company's motion for attorney's fees under section 768.79. Id. at 370. The majority focused on section 768.79(7)(b), applicable to amount, not entitlement, and held that because Shaw agreed to the dismissal with prejudice against both defendants as part of the terms of the settlement, and since Central Motor Company knowingly benefitted from the $10,000 payment on its behalf to secure both of their releases from litigation, the dismissal with prejudice was not a basis for awarding it attorney's fees. Id. In Segundo, this Court found that "the trial court correctly determined that the proposal for settlement was made in good faith," but reversed the trial court's award of $29,023 in attorney's fees based on 768.79(7)(b), applicable to amount, not entitlement. 20 So.3d at 937-38. Lastly, in Florida Diversified Films, this Court concluded that under the circumstances of the case, the trial court did not abuse its discretion by determining that the plaintiff was not entitled to $770,000 for trial attorney's fees because such award "would result in a manifest injustice." 118 So.3d at 245. Inasmuch, we do not find Shaw, Segundo or Florida Diversified Films controlling as to the instant case.

D. The "tipsy coachman" rule

Under the tipsy coachman rule, "if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support judgment in the record."

Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999). However, this doctrine is inapplicable "where a lower court has not made factual findings on an issue." Harris v. State, 238 So.3d 396, 403 (Fla. 3d DCA 2018) (quoting Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) ).

The trial court's finding in both orders on appeal that it was not unreasonable for Policlinica to reject the offers "is irrelevant to the question of entitlement." TGI Friday's, 663 So.2d at 613. In TGI Friday's, the Florida Supreme Court disagreed with the proposition that "award and entitlement amount to the same thing, and thus the judge could properly use the enumerated factors of subsection (7)(b) as the basis for denying all fees to an otherwise qualifying offeror." Id. at 612. The Florida Supreme Court found it is clear that these enumerated factors are intended to be considered in the determination of the amount of the fee to be awarded. Id. (emphasis added). The factors enumerated in section 768.79(7)(b), which the court shall consider, "along with all other relevant criteria," are:

1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

§ 768.79(7)(b) (emphasis added).

The trial court ruled in the alternative that, even in the event its ruling on entitlement as to all three offers was erroneous, and even if it were to consider amount, the amount of fees awarded would be zero. However, the issue of amount was not before the trial court. The orders on appeal pertain to Ruiz's, Premium's, and Corvaia's entitlement to attorney's fees and were issued after a hearing on entitlement only. Pursuant to the trial court's standing order, the trial court would determine the amount of attorney's fees, if any, at a later hearing. In addition, although the trial court addressed additional delay cost and expense and the prolonging of litigation, it does not appear to have considered all of the factors enumerated in section 768.79(7)(b) and rule 1.442(h)(2) as required in determining the amount of an award. Therefore, it would be inappropriate for this Court, on first impression, to make factual findings on the issue of the amount of an award of attorney's fees.

V. CONCLUSION

Because all of the legal requirements were met and because the trial court did not find that the offers were not made in good faith, we reverse the trial court's orders denying the motions filed by Ruiz, Premium, and Corvaia for a determination of entitlement to attorney's fees and remand with instructions to enter orders awarding entitlement to attorney's fees in favor of Ruiz, Corvaia, and Premium and against Policlinica and to conduct an evidentiary hearing to determine the amount.

Reversed and Remanded.

      It appears the trial court meant to write "25 percent more."

      On February 1, 2018, this Court consolidated Case No. 3D17-1735, the appeal of Ruiz's Entitlement Order, and Case No. 3D17-1523, the appeal of Premium and Corvaia's Entitlement Order, for oral argument. The two cases are likewise consolidated for purposes of this opinion.

      Throughout the case law and, thus, in this opinion, the terms "offer of judgment" and "proposal for settlement" are used interchangeably. See Auto-Owners Ins. v. Se. Floating Docks, Inc., 632 F.3d 1195, 1198 n.2 (11th Cir. 2011) ("We use the terms offer of judgment, proposal for settlement, demand for settlement, and shortened versions thereof interchangeably, as these terms are used interchangeably in § 768.79 and Rule 1.442."). This mixing of the terms is the result of the different language used in the statute and rule. Furthermore, the 1996 Amendment in the Committee Notes of rule 1.442 explains: "This rule was amended to reconcile, where possible, section[ ]768.79, Florida Statutes, and the decisions of the Florida Supreme Court in Knealing v. Puleo, 675 So.2d 593 (Fla. 1996), TGI Friday's, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995), and Timmons v. Combs, 608 So.2d 1 (Fla. 1992). This rule replaces former rule 1.442, which was repealed by the Timmons decision, and supersedes those sections of the Florida Statutes and the prior decisions of the court, where reconciliation is impossible, in order to provide a workable structure for proposing settlements in civil actions...." See In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 125-26 (Fla. 1996).

      This Court has cited with approval the Florida Supreme Court's adoption of the Fourth District's analysis in Schmidt, 629 So.2d at 1040-42. See Vanguard Car Rental USA, LLC v. Suttles, 190 So.3d 672, 674-75 (Fla. 3d DCA 2016) (citing TGI Friday's, 663 So.2d at 611-13 ).

      We note that Ruiz, Premium and Corvaia cited only to TGI Friday's, 663 So.2d 606, in their motions for determination of entitlement to attorney's fees and thus, perhaps, the trial judge did not have the benefit of the recent decisions in this Court applying TGI Friday's, cited herein, or the very recent Florida Supreme Court decisions in Kuhadja, 202 So.3d 391, decided just 19 days before the motions for entitlement were filed and Anderson, 202 So.3d 846, a mere 5 days before.

      Although section 768.79(7)(a) and rule 1.442(h)(1) use the phrase "not in good faith" to describe an offer, the case law interchangeably also uses the phrase "in bad faith."

      "Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal's recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525." Fla. R. Civ. P. 1.442(h). Rule 1.525 provides that "[a]ny party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party." Fla. R. Civ. P. 1.525. The Court Commentary to Rule 1.525 explains that it "establishes time requirements for serving motions for costs, attorneys' fees, or both, and in no way affects or overrules the pleading requirements outlined by this Court in Stockman v. Downs, 573 So.2d 835 (Fla. 1991)." Amendments to the Fla. Rules of Civil Procedure, 773 So.2d 1098, 1098-99 (Fla. 2000).

      We are unpersuaded by Policlinica's argument on appeal that the trial court's finding that Ruiz's offer was made in good faith, which was not raised by way of a cross-appeal, is not supported by competent substantial evidence and that the trial court erred in so finding. The amount of the offer was $3500. The trial court entered a judgment in favor of Ruiz on Policlinica's claims against him and awarded zero damages to Policlinica and costs in favor of Ruiz. We find no error. Similarly, with respect to Premium's and Corvaia's $3500 offers, while the trial court found that Policlinica suffered damages, it awarded Policlinca zero dollars for those damages.

      On January 5, 2017, the trial court entered the standing order, which provided that the trial court would hear argument and decide entitlement to fees before scheduling a hearing to resolve any issues as to the proper amount of any fees or costs. Pursuant thereto, the trial court set forth its timeline of procedures for determining amount "[w]ithin ten (20) [sic] days of the order determining entitlement or from the entry of [the standing order], whichever is later ...." (emphasis in original). The hearing on entitlement was set for February 13, 2017. The trial court's orders on the motions of Ruiz, Premium, and Corvaia for were entered on June 4, 2017.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    K.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1467
    District Court of Appeal of Florida, Third District.
    Opinion filed October 3, 2018
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee.
    Before SUAREZ, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

K.N., a juvenile, appeals the trial court's June 14, 2017 Order adjudicating him delinquent on various grounds for offences he committed at school on May 13, 2013, when he was eleven years old. The court withheld adjudication and placed K.N. on probation. K.N. contends the trial court lost jurisdiction of this matter under section 985.19, Florida Statutes. We agree.

Section 985.19 deals with incompetency in juvenile proceedings. Among other things, it recognizes that a juvenile may be incompetent to proceed to adjudication based on "age or immaturity." § 985.19(2), Fla. Stat. Pertinent to this case, it also provides for a limitation of the trial court's jurisdiction when a child has been determined incompetent.

Regarding the trial court's jurisdiction over a child adjudicated incompetent, the statute provides:

(5)(a) If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency.
....
(c) If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition. If, at the end of the 2-year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition. If appropriate, the court may order that proceedings under chapter 393 or chapter 394 be instituted. Such proceedings must be instituted not less than 60 days prior to the dismissal of the delinquency petition.

§ 985.19(5), Fla. Stat. (emphasis added).

Before the trial in this matter, upon motion of the defense, the trial court appointed two experts to examine K.N. to determine if he lacked competence to proceed to adjudication due to "age or immaturity". See § 985.19(2), Fla. Stat. Both court-appointed experts opined that K.N. was incompetent. On September 6, 2013, the court adjudicated K.N. incompetent to proceed to trial.

As required by the statute, K.N. was re-evaluated every six months thereafter; the experts opined that K.N. remained incompetent; and the court adjudicated him incompetent. On November 14, 2016, however, more than three years after the trial court first adjudicated K.N. incompetent, the trial court adjudicated K.N. competent. The matter proceeded to a final hearing and the trial court adjudicated K.N. as described above. K.N. timely appealed.

K.N. argues that the trial court lost jurisdiction over him on or around September 7, 2015, which was the two-year mark from the date that K.N. was originally adjudicated incompetent. In so arguing, K.N. first notes that the statute provides "the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency." § 985.19(5)(a), Fla. Stat. But K.N. observes that jurisdiction in this case is ultimately controlled by the second sentence of section 985.19(5)(c) (emphasis added) which provides if "at the end of the 2-year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition." Here, K.N. asserts, there was no evidence "at the end of the 2-year period" that the child would "attain competency within a year" and therefore "the court must dismiss."

The State makes two responses. First, it contends that at the two-year mark, there was evidence that the child would obtain competency. This evidence was purportedly contained in the September 18, 2015 Report of Dr. Jose J. Dergan, who, while concluding K.N. was "not competent to proceed [to trial] at this time," also opined that K.N. was "still in need for weekly counseling, in order to learn appropriate behavioral and cognitive management to avoid social wrongful behavior." The opinion that K.N. is still in need of counseling, however, falls far short of stating K.N. will become competent to go to trial at any time, much less within a year.

Second, the State argues that the statute requires affirmative evidence at the two-year mark that the child will not attain competency in the next year. But this argument runs contrary to the plain text of the statute which directs that "the court must dismiss the delinquency petition" if "there is no evidence that the child will attain competency within a year." § 985.19(5)(c), Fla. Stat. Here there was no such evidence and therefore the trial court lost jurisdiction and should have dismissed the case. Contrary to the State's argument, we do not see any conflict between this conclusion and State v. J.L.M., III, 926 So.2d 457, 461 (Fla. 1st DCA 2006) (holding the trial court had to retain jurisdiction for two years where neither of the two experts opined that the child would never become competent).

Reversed.

      We do not reach K.N.'s alternative argument that section 985.19(5) creates an absolute bar of the trial court continuing jurisdiction after three years under any circumstances.


author: EMAS, J.

text:
    M.G., Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1556
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    Weil, Gotshal & Manges LLP, and Edward Soto and Lauren Alexander, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano and Marlon J. Weiss, Assistant Attorneys General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   EMAS, J.

M.G., a human trafficking victim, appeals from an order denying a petition to expunge her criminal history record, filed pursuant to section 943.0583, Florida Statutes (2017) ("the Human Trafficking Victim Expunction Statute"). We affirm because, while that statute generally permits the trial court to exercise its discretion in ordering the expunction of criminal history records of human trafficking victims, the trial court correctly determined that the plain language of the statute excludes expunction of criminal history records related to the offense of kidnapping.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts appear to be undisputed for our purposes: For several years, M.G. lived under the control of a human trafficker, Alexander Valdes ("Valdes"). While under his control, M.G. was arrested on three separate occasions for offenses committed as part of a human trafficking scheme. The last occasion was in 2010, when M.G. was arrested and formally charged with inter alia , kidnapping, sex trafficking, and deriving support from the proceeds of prostitution.

M.G. later entered into a negotiated plea agreement, which included her cooperation with the State and her agreement to testify against Valdes. M.G. pleaded guilty to sex trafficking, conspiracy to commit sex trafficking, and deriving support from the proceeds of prostitution. As a part of the negotiated plea, the State nolle prossed the kidnapping charge. After serving her sentence, M.G. petitioned the trial court to vacate and expunge all criminal history records pursuant to the Human Trafficking Victim Expunction Statute, which permits a trial court in its discretion to expunge the criminal history records of human trafficking victims under certain circumstances.

The evidence at the hearing revealed that M.G. became a victim of human trafficking in 2007. M.G.'s abusive and controlling boyfriend at the time, Francisco Cruz ("Cruz"), convinced her to make adult films in order to earn more money, as they were both financially unstable. After Cruz started working for Valdes as a driver for his escort business, Cruz made M.G. join him while driving to pick up women and take them to calls with men, allegedly as part of the scheme to get M.G. accustomed to the business and "groomed" into being sold. Valdes subsequently convinced M.G. that she could make a lot of money working for him-a technique referred to as the "honeymoon" phase-where, as M.G. described it, Valdes sold her "a dream, which was really a nightmare consisting of violence, beatings, abuse, humiliation, and victimization."

M.G. became Valdes' "bottom bitch." She was required-among other things-to always praise him in front of other women, to recruit other women to work for Valdes, and to give all of her money from her forced sexual encounters to him. M.G. was forbidden to look at other men in the eye, could not have any friends, and all of her activities and interactions were controlled. If she broke any of these rules, Valdes would beat her in front of the other women. He also forced M.G. to take drugs and medications "in order to remain compliant with his demands." "He drugged [M.G.] into submission in order to sell [her] to make money." M.G. was required to have sex with five to ten men per day in order to meet Valdes' daily quota of earning him $1000.

In early 2010, M.G. went in the car with Valdes to purchase marijuana at a shoe repair shop in North Miami Beach. When he returned to the car after making his purchase, he had another woman with him, K.D., who he found in an alley next to the store. Valdes forced M.G. to befriend K.D. and to convince K.D. to work with Valdes. If M.G. did not comply, she would be beaten. M.G. complied, and K.D. ultimately worked for Valdes for about a month.

During her time working for Valdes, K.D.'s father put out missing person flyers. One night, K.D. escaped from the hotel where she was working, returned to her father, and told him that Valdes and M.G. kidnapped her and forced her into prostitution. When Valdes and M.G. went out looking for K.D., they were arrested and charged with several offenses, including sex trafficking and kidnapping.

After their arrest, Valdes was still manipulating M.G. from jail, and convinced her to not provide the authorities any information about their activities. It was not until Valdes forged a letter to M.G.'s attorney, firing her attorney, that M.G. started speaking to the State Attorney's Office. She was still afraid to give specific details for fear of Valdes' vengeance, but over time she was able to share more and more information about her victimization.

Further, although M.G. did work in the restaurant industry following her victimization, when she applied to school to obtain a degree in culinary arts, she was not able to enroll because of her felony record.

Following the hearing, the trial court granted M.G.'s petition with one exception:

the trial court denied the petition to expunge those criminal history records related to the kidnapping charge. In the order, the trial court reasoned that it was without discretion to order the expunction of those records, as the offense of kidnapping is excluded from expunction under the Human Trafficking Victim Expunction Statute. This appeal followed.

STANDARD OF REVIEW

The decision to grant or deny a petition to expunge criminal history records is generally reviewed for an abuse of discretion. See § 943.0583(2), Fla. Stat. (2017). However, to the extent such decisions are based upon questions of statutory interpretation, our standard of review is de novo. Kasischke v. State, 991 So.2d 803, 807 (Fla. 2008).

DISCUSSION

The Human Trafficking Victim Expunction Statute, section 943.0583(3), provides:

A person who is a victim of human trafficking may petition for the expunction of a criminal history record resulting from the arrest or filing of charges for an offense committed or reported to have been committed while the person was a victim of human trafficking, which offense was committed or reported to have been committed as a part of the human trafficking scheme of which the person was a victim or at the direction of an operator of the scheme, including, but not limited to, violations under chapters 796 and 847, without regard to the disposition of the arrest or of any charges. However, this section does not apply to any offense listed in s. 775.084(1)(b)1. Determination of the petition under this section should be by a preponderance of the evidence. A conviction expunged under this section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.

(Emphasis added.)

Subsection 775.084(1)(b)1., Florida Statutes (2017), provides for an extended term of imprisonment for a defendant who qualifies as a habitual violent felony offender:

(b) "Habitual violent felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in paragraph (4)(b), if it finds that:
1. The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:
a. Arson:
b. Sexual battery;
c. Robbery;
d. Kidnapping;
e. Aggravated child abuse;
f. Aggravated abuse of an elderly person or disabled adult;
g. Aggravated assault with a deadly weapon;
h. Murder;
i. Manslaughter;
j. Aggravated manslaughter of an elderly person or disabled adult;
k. Aggravated manslaughter of a child;
l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
m. Armed burglary;
n. Aggravated battery; or
o. Aggravated stalking.

(Emphasis added). It is this list of enumerated offenses which the legislature relied upon in creating the exclusion provision in section 943.0583(3) of the Human Trafficking Victim Expunction Statute.

We agree with the trial court's conclusion that section 943.0583(3) admits of no ambiguity, and its plain language precluded the trial court from exercising its discretion to grant expunction of M.G.'s criminal history records related to the offense of kidnapping. "The cardinal rule of statutory construction is 'that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as expressed in the statute.' " City of Tampa v. Thatcher Glass Corp., 445 So.2d 578, 579 (Fla. 1984) (quoting Deltona Corp. v. Florida Public Service Comm'n, 220 So.2d 905 (Fla. 1969) ). "Legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute." State v. Webb, 398 So.2d 820, 824 (Fla. 1981).

In construing a statutory provision, a court must "first look to the actual language used in the statute." Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla. 2005). "It is a fundamental principle of statutory construction that where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation." Pardo v. State, 596 So.2d 665, 667 (Fla. 1992).

M.G. contends that the exclusion set forth in section 943.0583(3) applies only if the petitioner was convicted of an offense listed in section 775.084(1)(b)1., and, because M.G. was charged but never convicted of a kidnapping offense, the exclusion is inapplicable and the trial court had the discretion to grant expunction of those criminal history records. We do not agree. The plain language of section 943.0583(3) provides that "this section does not apply to any offense listed in s. 775.084(1)(b)1." (Emphasis added). We hold that this language unambiguously refers to the list of offenses set forth in section 775.084(1)(b)1., and does not require that the petitioner be convicted of such offense. It is true that, in defining whether a defendant qualifies as a "habitual violent felony offender," that subsection requires that a defendant be convicted of one of the listed offenses. However, the requirement of a conviction in section 775.084(1)(b)1. is relevant only to determining whether a defendant qualifies as a habitual violent felony offender, and is wholly inapplicable to the Human Trafficking Victim Expunction Statute and the incorporated list of offenses.

This is further supported by considering the remaining portions of section 943.0583(3) :

A person who is a victim of human trafficking may petition for the expunction of a criminal history record resulting from the arrest or filing of charges for an offense committed or reported to have been committed while the person was a victim of human trafficking, which offense was committed or reported to have been committed as a part of the human trafficking scheme of which the person was a victim or at the direction of an operator of the scheme, including, but not limited to, violations under chapters 796 and 847, without regard to the disposition of the arrest or of any charges.
(Emphasis added.)

As can be seen, the Human Trafficking Victim Expunction Statute addresses expunction "of a criminal history record resulting from the arrest or filing of charges ... without regard to the disposition of the arrest or of any charges." Surely, if the legislature intended to limit the exclusion to convictions for "any offense listed in s. 775.084(1)(b)1.," it could have and would have said so. See State v. Chubbuck, 141 So.3d 1163, 1171 (Fla. 2014) ; Hopkins v. State, 105 So.3d 470, 474 (Fla. 2012) ; Gering v. State, 252 So.3d 334 (Fla. 3d DCA 2018).

Finally, M.G. contends that her proposed construction of the exclusionary language of section 943.0583(3) is consistent with the underlying intent of the legislature-to afford victims of human trafficking as much relief as the law allows. See H.B. 1327, 2013 Leg., Reg. Sess. (Fla. 2013)("Persons who are victims of human trafficking and who have been convicted of crimes committed at the behest of their traffickers ... face barriers to ... life opportunities as long as these criminal convictions remain on their record .... [They should] have the chance to rebuild their lives and reenter society.")

We cannot deny that permitting expunction of all of M.G.'s criminal history records in this case would be consistent with the above-described legislative intent. However, given the clear and unambiguous language of the statute, resort to legislative intent is neither necessary nor permissible. See, e.g., Daniels v. Florida Dep't of Health, 898 So.2d 61, 64 (Fla. 2005) (observing: "When the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.") Under the present circumstances, "courts have no occasion to resort to rules of construction-they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power." Nicoll v. Baker, 668 So.2d 989, 990-91 (Fla. 1996). While we can certainly sympathize with M.G.'s tragic circumstances and admire her determination in overcoming them, we cannot substitute our judgment for that of the legislature. The construction of the statute as urged by M.G. must be the result of legislative amendment, not judicial pronouncement.

CONCLUSION

We agree with the trial court's determination that no ambiguity exists, and that expunction of criminal history records related to the offense of kidnapping is precluded by the plain language of the statute. We find no merit in the other argument raised by appellant.

Affirmed.

      M.G. was required to wear a necklace that said "bottom bitch." In her testimony, M.G. described a "bottom bitch" as "the woman that is with the pimp the longest and it appears that ["bottom bitches"] have more privileges but really there is more rules and we have to uphold his image and make sure that he's seen well in front of other women."

      Further, the Human Trafficking Victim Expunction Statute "does not confer any right to the expunction of a criminal history record, and any request for expunction of a criminal history record may be denied at the discretion of the court." § 943.0583(2), Fla. Stat. (2017).

      Indeed, accepting M.G.'s proposed construction of the statute would require engrafting not only the "conviction" requirement, but that entire phrase in section 775.084(1)(b)1.-meaning that the exclusion would apply (and expunction not permitted) only if the "defendant has previously been convicted" of one of the listed offenses.

      See State v. Ford, 626 So.2d 1338, 1345 (Fla. 1993) (observing: "All courts in Florida possess the inherent powers to do all things that are reasonable and necessary for the administration of justice within the scope of their jurisdiction, subject to valid existing laws and constitutional provisions")(emphasis added and additional citations omitted).


author: Per Curiam.

text:
    AL PRINCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1994
    District Court of Appeal of Florida, First District.
    October 18, 2018 Rehearing Denied January 7, 2019
    Al Prince, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition filed on May 14, 2018, is treated as a petition for writ of habeas corpus, and is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Petitioner is cautioned that abusive, repetitive, malicious, or frivolous filings will result in sanctions such as a bar on pro se filing in this Court or referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; § 944.279(1), Fla. Stat.

Wolf, Lewis, and Rowe, JJ., concur.


author: PER CURIAM.

text:
    Victor MAY, Appellant, v. Sandra NOVOA, et al., Appellees.
    No. 3D18-1818
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    Victor May, in proper person.
    Weiss Serota Helfman Cole & Bierman, P.L., and Laura K. Wendell, Eric P. Hockman, Coral Gables, and Richard B. Rosengarten ; Abigail Price-Williams, County Attorney, and Oren Rosenthal, Assistant County Attorney, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

Upon consideration of the initial brief, and finding no preliminary basis for reversal has been demonstrated, the order below is summarily affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a). See Soro v. Soro, 145 So.3d 183 (Fla. 3d DCA 2014) ; Fla. Detroit Diesel v. Nathai, 28 So.3d 182 (Fla. 1st DCA 2010) ("We conclude that the appellants' initial brief fails to demonstrate a preliminary basis for reversal and we therefore summarily affirm the order without the need for an answer brief.").

Affirmed.


text:
    A.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0741
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Jules v. State, 178 So.3d 475 (Fla. 4th DCA 2015).


text:
    Daniel MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2217
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before LOGUE, LUCK, and LINDSEY, JJ.
   PER CURIAM.

We affirm without prejudice to the appellant raising a claim of ineffective assistance of trial counsel in an appropriate Rule 3.850 motion. See Reid v. State, 237 So.3d 1083 (Fla. 3d DCA 2017) ; Adderly v. State, 132 So.3d 1234 (Fla. 3d DCA 2014) ;

Davis v. State, 25 So.3d 1282 (Fla. 3d DCA 2010) ; Taylor v. State, 848 So.2d 435 (Fla. 3d DCA 2003).


author: SCALES, J.

text:
    Deven BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1787
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph and Marlon J. Weiss, Assistant Attorneys General, for appellee.
    Before SCALES, LUCK and LINDSEY, JJ.
   SCALES, J.

Deven Brown appeals the trial court's July 13, 2016 order revoking Brown's juvenile sanctions and sentencing Brown, as an adult, to a term of twenty-five years in prison. We reverse the order and remand for new proceedings because, in revoking Brown's juvenile sanctions, the trial court: (i) made findings outside of the scope of the charging document, thereby depriving Brown of a proper notice of the basis for revoking his juvenile sanctions; and (ii) relied exclusively upon inadmissible hearsay.

I. Relevant Facts and Procedural History

A. Early background

Brown was born on September 5, 1994. His busy criminal activities began with a trespass in 2008. By the age of fifteen he was having multiple run-ins with the law. The record indicates that in 2009 and 2010, alone, Brown was arrested seven times. The charges included aggravated assault with a deadly weapon, battery, and possession of a weapon on school property and aggravated assault. Brown's eventual plea agreement, described below, incorporated the disposition of two of these early charges, from cases J09-5114A and J10-1212.

B. Plea agreement in the instant case

Brown's criminal activities escalated and, on December 22, 2011, the seventeen-year-old Brown used a firearm in his attempt to kill Trey Eddie. Brown was charged as an adult (in the instant case, F12-1352) with attempted first degree murder with a firearm, which is a life felony pursuant to section 775.087 of the Florida Statutes. Despite Brown's ineligibility to receive juvenile sanctions, in August of 2012, the State and Brown entered into a plea agreement that allowed Brown to avoid the prosecution of him as an adult. Brown pleaded guilty to attempted first degree murder with a deadly weapon and was committed to a Department of Juvenile Justice ("DJJ") Maximum Risk Juvenile Correctional facility for three years, followed by conditional release until Brown turned twenty-two. This sentence was to run concurrently with adjudications on J09-5114A and J10-1212.

Citing to section 985.565(4)(c) of the Florida Statutes, the written plea agreement expressly states that, if Brown proves not to be suitable for juvenile sanctions, Brown would be subject to any adult sanction that may lawfully be imposed for attempted first degree murder with a deadly weapon. At Brown's plea colloquy, the trial court admonished Brown as follows: "[I]f you violate the program, ... then you come back here, and if ... I find that you willfully and substantially violated the conditions of your commitment, then you're looking at ... life in prison with a 25-year minimum mandatory."

C. Post-plea agreement juvenile arrests and Brown's release from DJJ custody

Shortly after entering the plea deal, Brown was charged on August 28, 2012, with aggravated battery on a fellow inmate at a juvenile detention center (case J12-3539B). The arrest affidavit recounts that, after a verbal altercation, Brown (and others) "jumped" the victim who sustained facial injuries in the attack. Then, on September 3, 2012, Brown again was charged with battery for attacking a fellow inmate, punching the victim after another verbal altercation (case J12-3636B).

While these charges were pending, Brown's three-year commitment expired, and, per the plea agreement, the twenty-year-old Brown was released from DJJ custody, but remained on conditional release under DJJ's supervision.

D. The February 2015 felony arrest (F15-4110A) and the State's request for disposition hearing and revocation of juvenile sanctions

On February 25, 2015, shortly after his release from DJJ custody, but while still on conditional release under DJJ's supervision, Brown was charged with another new offense: an attempted second-degree murder with a firearm that allegedly had occurred on February 21, 2015 (case F15-4110A). Months later, in December of 2015, the State, pursuant to section 985.565(4)(c), filed a request in case F12-1352 (the instant case that resulted in the plea bargain) asking the trial court to set a disposition hearing to consider revoking Brown's juvenile sanctions. The State's motion relied exclusively on the February 2015 arrest as support for its general allegation that Brown was not suitable for a DJJ program. The State's motion was accompanied by an affidavit from Brown's case manager that simply recounted facts from the arrest affidavit associated with Brown's February 2015 arrest, and concluded with a statement that Brown "has proved himself not to be suitable for the treatment program of DJJ."

Prior to the disposition hearing, the State filed a motion and accompanying memorandum of law arguing that Brown's juvenile sanctions should be revoked, and that, consistent with the express provisions of the plea agreement, the trial court should sentence Brown to adult sanctions for the December 2011 crime of attempted first-degree murder with a deadly weapon. While this March 2016 filing extensively documented Brown's arrest history, the State's allegation that Brown was not suitable for a DJJ program was again based exclusively on Brown's February 2015 arrest.

E. The April 8, 2016 disposition hearing and resulting sentence

On April 8, 2016, the trial court conducted the disposition hearing to determine whether Brown's juvenile sanctions should be revoked. The parties, though, hotly contested the precise issue the trial court would be deciding, and thus, the evidence the trial court could consider.

Brown argued that the scope of the hearing was limited exclusively by the allegations of the "charging document," that is, the DJJ case manager's affidavit that had been filed in conjunction with the December 2015 request for a disposition hearing. As mentioned above, this affidavit alleged only the facts associated with Brown's February 2015 arrest. Brown argued that, because the affidavit's sole allegation was that Brown was not suitable for DJJ supervision due to this arrest, the State, in order to prevail, must prove that Brown, in fact, had committed the crime for which he was arrested. Brown argued that, because the charging affidavit was limited, Brown's criminal history - not referenced in the affidavit - was irrelevant.

The State's view of the disposition hearing was far less constrained. The State argued (as it does on appeal) that once a trial court sets a disposition hearing to consider revocation of juvenile sanctions, the trial court may consider any evidence relevant to whether a juvenile is suitable for DJJ supervision, irrespective of the allegations in the charging document.

The trial court adopted the State's view of the disposition hearing's scope and, over Brown's objection, admitted the arrest affidavits in cases J12-3539B, J12-3636D, and F15-4110A. Based on these arrest affidavits, the trial court determined that Brown was not suitable for DJJ supervision. The trial court revoked Brown's juvenile sanctions and sentenced Brown to a prison term of twenty-five years, the minimum mandatory sentence for a first degree felony with the use of a firearm.

Brown timely appealed the trial court's sentence.

II. Issue on Appeal and Standard of Review

In this case of first impression, we are asked to determine whether, at a hearing to revoke juvenile sanctions, a trial court may consider grounds for revocation not asserted in the DJJ charging document. While generally we would review an order revoking juvenile sanctions for an abuse of discretion, see Harris v. State, 898 So.2d 1126, 1127 (Fla. 3d DCA 2005), in this instance, our review is de novo as we undertake an analysis of a question of law. Norvil v. State, 191 So.3d 406, 408 (Fla. 2016).

III. Analysis

While Brown challenges his sentence on two grounds, we reverse on the due process ground and find no merit in Brown's other challenge to the order.

A. The relevant statute - section 985.565(4)(c)

The Florida Legislature has provided a specific statutory mechanism for an adult sentencing court to revoke previously imposed juvenile sanctions, so that adult sanctions may be imposed by the sentencing court. § 985.565(4)(c), Fla. Stat. (2016).

Pursuant to this statute, if a child "proves not to be suitable" for juvenile sanctions previously imposed by the court (a commitment program, juvenile probation program or treatment program supervised by DJJ), then DJJ can provide the court "with a written report outlining the basis for its objections to the juvenile sanction" (i.e., the charging document) and schedule a disposition hearing before the court. Id. After conducting the disposition hearing, the court, if it finds that the child is not suitable for the previously imposed juvenile sanctions, may revoke the previous adjudication and impose any lawful sentence. Id.

In this statute, the Legislature specifically defines what conduct renders a juvenile not suitable for juvenile sanctions:

(i) when a child commits a new violation of law while under juvenile sanction;

(ii) when a child commits any other violation of the conditions of juvenile sanction; or

(iii) when the child's actions are otherwise determined by the court to demonstrate a failure of juvenile sanction. Id.

B. Due process requirements for both the charging document and the resulting disposition hearing

While we have some general guidance from the Florida Supreme Court instructing that proceedings to revoke juvenile sanctions are analogous to probation revocation proceedings, see Jones v. State, 336 So.2d 1172, 1174-75 (Fla. 1976), there is little case law regarding the scope, parameters and due process requirements of either: (i) DJJ's "written report outlining the basis for its objections to the juvenile sanction," or (ii) the resulting disposition hearing to determine whether juvenile sanctions are suitable, both of which are specifically prescribed by the statute. We do have the benefit, though, of extensive case law in the probation revocation arena, providing that when the State seeks to revoke a defendant's probation, due process requires that notice to the defendant provide a proper and specific basis for the violation. Gray v. State, 170 So.3d 890, 892 (Fla. 3d DCA 2015). Florida's appellate courts have reversed trial court probation revocation orders when the State's notice of violation has failed to provide the requisite specificity. Burton v. State, 651 So.2d 793, 794-95 (Fla. 1st DCA 1995) (holding that both affidavit and order of revocation fail to identify with specificity defendant's probation violation); see also DeJesus v. State, 848 So.2d 1276, 1278 (Fla. 2d DCA 2003) (holding that grounds for probation revocation must be in writing to satisfy due process).

Similarly, Florida's appellate courts have routinely held that a trial court commits reversible error in a probation revocation setting when it admits evidence of crimes not charged in the violation notice. Gray, 170 So.3d at 892 (holding error for trial court to revoke probation upon finding that sexual battery occurred when sexual battery not alleged in affidavit); Thomas v. State, 159 So.3d 937, 937-38 (Fla. 3d DCA 2015) (holding error for trial court to base probation revocation on failure to complete community service when not alleged in affidavit).

Because we recognize that juvenile sanction revocation proceedings conducted under section 985.565(4)(c) set forth statutory procedures that are analogous to probation revocation procedures under section 948.06 of the Florida Statutes, we see no sound basis for creating and developing a disparate body of due process law for juvenile revocation proceedings. This is true especially in light of the Florida Supreme Court's observation that the revocation of juvenile sanctions is an "identical" situation to that of probation revocation. Jones, 336 So.2d at 1175.

C. The instant case

Against this backdrop, we first look to the charging document in the instant case - DJJ's December 2015 affidavit that represents the statutorily mandated "written report" of DJJ "outlining the basis" for revocation of Brown's juvenile sanctions - to determine what exactly DJJ alleged as the basis for seeking revocation of Brown's juvenile sanctions.

DJJ's conclusion that Brown was not suitable for DJJ supervision was supported exclusively by allegations related to Brown's 2015 arrest. Hence, DJJ asserted in its charging document merely that Brown had committed "a new violation of law," which is the first of the listed grounds for finding a juvenile not suitable for juvenile sanctions. § 985.565(4)(c), Fla. Stat. (2016). There was no factual allegation in the affidavit suggesting that either of the two other grounds outlined in the statute were implicated: (i) DJJ's affidavit does not suggest that Brown violated some other condition associated with his juvenile sanction, and (ii) the juvenile sanctions imposed on Brown were not "otherwise" determined to have failed. Id.

Notwithstanding the limited subject matter in the charging document, the trial court, at the State's urging, viewed the scope of the disposition hearing as being far broader. The trial court decoupled the disposition hearing from the charging document, considering the entire panoply of evidence probative to the question of whether juvenile sanctions were appropriate for Brown in light of Brown's unprofitable experience under DJJ supervision. Thus the trial court focused not on the actual charges in the DJJ affidavit, but rather, on Brown's history of conduct while under DJJ supervision. In this regard, the trial court considered the arrest affidavits associated not only with Brown's February 2015 arrest, but also his arrest affidavits associated with two incidents in 2012. In revoking Brown's juvenile sanctions, the trial court concluded that, based on the assertions in the arrest affidavits presented to him, Brown was not suited for juvenile sanctions. The charging document, though, provided no notice to Brown that the grounds for revocation were this broad, encompassing conduct beyond his February 2015 arrest.

Had DJJ's charging document adequately alleged that Brown's pattern of conduct - evidenced by his several arrests - demonstrated a failure of juvenile sanctions, then the evidence considered by the trial court at the disposition hearing would have been within the scope of the charging document, thus properly considered by the trial court and sufficient to revoke juvenile sanctions. The conspicuous fact remains, however, that DJJ's charging document did not provide Brown any notice that the basis for revocation of juvenile sanctions would encompass more than his February 2015 arrest. Given the one-dimensional allegation within DJJ's charging document, due process required that the disposition hearing, and evidence admitted at that hearing, should have been limited to whether Brown, by a preponderance of the evidence, committed the violation of law alleged in the charging document.

Finally, there is little doubt that the trial court could have revoked Brown's juvenile sanctions and imposed adult sanctions if the State proved that Brown had committed the offense in DJJ's charging document. We note, though, that the only evidence adduced by the State that Brown had committed this violation was the associated arrest affidavit. Standing alone, this hearsay evidence is not sufficient to establish a violation of law so as to justify revocation. Lewis v. State, 995 So.2d 1123, 1125 (Fla. 4th DCA 2008) (holding that probation revocation cannot be based solely on hearsay evidence); Azadi v. Spears, 826 So.2d 1020, 1020 (Fla 3d DCA 2001) (holding that arrest affidavit, as hearsay, does not support pretrial detention order).

IV. Conclusion

Because the disposition hearing, and the trial court's resulting revocation of Brown's juvenile sanctions, were based on grounds not alleged in DJJ's charging document, we reverse the order on appeal and remand for proceedings consistent with this opinion. On remand, DJJ, if it chooses to do so, may amend its charging document; the resulting disposition hearing shall proceed accordingly.

Reversed and remanded with instructions.

      Because Brown previously had been adjudicated delinquent for a felony (aggravated assault), Brown was not eligible for juvenile proceedings. § 985.565(4)(a)3., Fla. Stat. (2016).

      This section reads in its entirety as follows:
      Adult sanctions upon failure of juvenile sanctions . - If a child proves not to be suitable to a commitment program, juvenile probation program, or treatment program under paragraph (b), the department shall provide the sentencing court with a written report outlining the basis for its objections to the juvenile sanction and shall simultaneously provide a copy of the report to the state attorney and the defense counsel. The department shall schedule a hearing within 30 days. Upon hearing, the court may revoke the previous adjudication, impose an adjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for all time spent by the child in the department. The court may also classify the child as a youthful offender under s. 958.04, if appropriate. For purposes of this paragraph, a child may be found not suitable to a commitment program, community control program, or treatment program under paragraph (b) if the child commits a new violation of law while under juvenile sanctions, if the child commits any other violation of the conditions of juvenile sanctions, or if the child's actions are otherwise determined by the court to demonstrate a failure of juvenile sanctions.
      § 985.565(4)(c), Fla. Stat. (2016).

      The record is unclear as to why the charges in cases J12-3539B and J12-3636B were not adjudicated sooner.

      While Judge William Thomas accepted the August 2012 plea agreement, Judge Richard Hersch conducted the subsequent disposition hearing.

      The trial court also admitted into evidence, over Brown's hearsay objection, Brown's "Face Sheet," a document that provides a juvenile's history in the legal system. Among other things, the Face Sheet lists Brown's transgressions dating back to a 2008 trespassing charge and includes references to cases J12-3539B and J12-3636D.

      Brown also asserted that, based on his interpretation of language in the plea agreement, the State waived any minimum mandatory sentencing requirements.

      This Court has provided guidance related to sentencing after a trial court has revoked juvenile sanctions. Mirutil v. State, 30 So.3d 588, 590 (Fla. 3d DCA 2010) (standing for the unremarkable proposition that, in sentencing a defendant whose juvenile sanctions have been revoked already, the sentencing court may not consider new crimes a defendant might have committed notwithstanding that those new crimes might have constituted the basis for the revocation). As the State commendably conceded at oral argument, it appears that, below, the State might have misperceived Mirutil and its lack of applicability to the procedural posture of the instant case.


text:
    Roberto RODRIGUEZ a/k/a Orlando Rodriguez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1582
    District Court of Appeal of Florida, Third District.
    Opinion filed November 6, 2018
    Roberto Rodriguez a/k/a Orlando Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

Roberto Rodriguez ("Orlando Rodriguez") appeals an order summarily denying, without a response from the State, and without attaching any documents in support of denial, his "petition for correction of name." He seeks to correct record documents relating to his criminal conviction and sentence which show his name as "Roberto Rodriguez" when he is, in fact, Orlando Rodriguez.

In its response filed in this appeal, the State concedes that the trial court's summary order of denial should be reversed and the case remanded for a ruling on the merits of Mr. Rodriguez' petition. We agree. See Howard v. State, 139 So.3d 975 (Fla. 4th DCA 2014) (reversing trial court's summary order of denial of defendant's motion to correct record and remanding for consideration of motion on the merits). Accordingly, we hereby reverse and remand for an evidentiary hearing to occur, within ten days and pursuant to Florida Rule of Civil Procedure 1.540(a) and Howard, on the merits of Mr. Rodriguez' petition for correction of name.

Reversed and remanded with instructions.


author: BADALAMENTI, Judge.

text:
    H. Ray BADEN, Petitioner, v. Steven Christopher BADEN, Individually and as Cotrustee of the Baden Irrevocable Trust 2012; Virginia Baden, Individually and as Cotrustee of the Baden Irrevocable Trust 2012; Joanna Baden, Individually and as Cotrustee of the Baden Irrevocable Trust 2012; Anne-Marie Grooms; Cory Ray Baden; Elizabeth Baden Knowles; James Albert Knowles; Matthew Baden Ruggerio and Saray, Inc., a Florida Corporation, Respondents.
    Case No. 2D18-1726
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018
    Gregory J. Porges and Mary R. Hawk of Porges, Hamlin, Knowles & Hawk, P.A., Bradenton, for Petitioner.
    Heather A. Degrave of Walters, Levine & Lozano, Tampa, for Respondents Virginia and Joanna Baden.
    No appearance for remaining Respondents.
   BADALAMENTI, Judge.

H. Ray Baden seeks a writ of prohibition to prevent the trial court from further acting without jurisdiction in a lawsuit he filed involving the Baden Irrevocable Trust-2012 (the Trust), an irrevocable trust he settled with his now deceased wife. The trial court struck as a nullity his notice of voluntary dismissal filed pursuant to Florida Rule of Civil Procedure 1.420(a)(1). We grant the petition and quash the trial court's order striking his notice of voluntary dismissal because Mr. Baden's filing of the notice of voluntary dismissal divested the trial court of jurisdiction to issue orders or otherwise proceed with the underlying case initiated by Mr. Baden.

Mr. Baden and his late wife were settlors of the Trust. Under the terms of the original Trust, each of their three adult children was a thirty percent beneficiary and cotrustee. Mr. Baden's grandchildren were also beneficiaries, making up the remaining ten percent. Since the establishment of the Trust, two of Mr. Baden's children ("the daughters"), respondents here, have been disputing with Mr. Baden and their brother over the handling of the Trust's assets.

Two years after settling the Trust, Mr. Baden filed a seven-count amended complaint. All counts relating to the Trust in Mr. Baden's operative complaint were resolved by the parties by a stipulated agreement reached in late 2014. The remaining three counts were unrelated to the Trust. Those remaining counts alleged that each of Mr. Baden's three children had neglected to repay him for various monies he had loaned to them.

As part of the parties' stipulated agreement to resolve Mr. Baden's Trust-related claims, Mr. Baden's three children agreed to be replaced by a successor trustee. That successor trustee has since been replaced by a second successor trustee. In all events, on December 12, 2014, the trial court accepted the parties' stipulation in its entirety and rendered an order titled "Partial Final Judgment for Judicial Modification of the Baden Irrevocable Trust-2012." The trial court concluded the partial final judgment with this statement: "The [c]ourt shall retain continuing jurisdiction to supervise the [Trust] pursuant to [section] 736.0201[, Florida Statutes, 2017 ]." The only counts remaining from Mr. Baden's operative complaint were those related to loans his three children allegedly failed to repay him.

But this stipulation disposing of all Trust-related counts in Mr. Baden's operative complaint did not put a stop to the Trust-related litigation. Rather than initiating a new case in the trial court, the successor trustee filed several motions in the underlying case initiated by Mr. Baden. Since the establishment of the 2012 Trust, the assets have steadily depleted. Based on the limited record before us, the Trust has cash assets of somewhere between $269,000 and $400,000, all of which were deposited into a bank account by the second successor trustee. Most recently, the daughters have urged the second successor trustee to bring an action against Mr. Baden-again, within the still-open case he initiated-concerning certain intellectual property of which the status as a trust asset is disputed by the parties. But the second successor trustee has been reluctant to do so. Consequently, the daughters instead asked the trial court to order the second successor trustee to do something the second successor trustee already advised them he would not do.

In what seems to have been an attempt to extricate himself from further litigation in the case he initiated and is currently before us, Mr. Baden filed a notice of voluntary dismissal of the operative complaint's remaining three counts (for the debts his three children had not yet repaid him) pursuant to Florida Rule of Civil Procedure 1.420(a)(1). But his attempt to voluntarily dismiss what was left in the case he initiated was to no avail. Specifically, the trial court entered a sua sponte order rejecting Mr. Baden's notice of voluntary dismissal, ruling that it was a "legal nullity." In rejecting Mr. Baden's notice of voluntarily dismissal, the trial court first noted that it had retained jurisdiction pursuant to section 736.0201 to supervise the Trust in the partial final judgment it entered on December 12, 2014, where the parties agreed to dismiss all of the Trust-related counts set forth in Mr. Baden's operative complaint. The trial court further ruled that it maintained jurisdiction over the Trust pursuant to Florida Rule of Civil Procedure 1.420(a)(1) because the second successor trustee of the Trust is "under [its] direction, supervision and control," and the funds deposited by the second successor trustee in a bank account are therefore "in the custody of the Court." Mr. Baden's petition for writ of prohibition followed.

We start with a determination of our jurisdiction in this original proceeding. "Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction." Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla. 1992). As explained by the Fourth District, prohibition is the appropriate vehicle for challenging, as was done here, the trial court's jurisdiction to continue to exercise jurisdiction over a case after the plaintiff has filed a notice of voluntary dismissal pursuant to rule 1.420(a)(1) :

[T]he issue is whether the trial judge, after the voluntary dismissal in this case, still has the power to preside over this particular dispute between the parties.... [T]he word "jurisdiction" ordinarily refers to "subject matter" or "personal" jurisdiction, but there is a third meaning ("case" jurisdiction) which involves the power of the court over a particular case that is within its subject matter jurisdiction. "Case" jurisdiction is involved here because the trial court clearly has jurisdiction over the subject matter. A writ of prohibition is the proper claim for relief in this case.

Tobkin v. State, 777 So.2d 1160, 1163 (Fla. 4th DCA 2001) (citation omitted).

Having established our prohibition jurisdiction, we now turn to the applicability of the Florida Rules of Civil Procedure in judicial proceedings concerning trusts. Subject to exceptions not relevant here, "judicial proceedings concerning trusts" are governed by the Florida Rules of Civil Procedure. § 736.0201(1). Florida Rule of Civil Procedure 1.420(a)(1) authorizes a plaintiff to voluntarily dismiss his action or claim without order of the court at any time before a hearing on motion for summary judgment "[e]xcept in actions in which property has been seized or is in the custody of the court" as follows:

Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision ....

(Emphasis added.)

Our supreme court has determined that the effect of a plaintiff's notice of voluntary dismissal "under rule 1.420(a) is jurisdictional," Pino v. Bank of N.Y., 121 So.3d 23, 32 (Fla. 2013), and that the right to dismiss is "almost absolute," Tobkin, 777 So.2d at 1163. The Pino court reasoned that a "voluntary dismissal serves to terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action." 121 So.3d at 32. Thus, if we determine that the Florida Rules of Civil Procedure apply here, we would next need to decide whether the trial court erred by rejecting Mr. Baden's notice of voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(a)(1). In their reply to Mr. Baden's petition, the daughters defend the trial court's reasoning and argue that they can defeat Mr. Baden's "almost absolute" ability to dismiss his own lawsuit for multiple reasons.

We construe the language of a statute or rule in accord with its plain and ordinary meaning. See Brown v. State, 715 So.2d 241, 243 (Fla. 1998) ("Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules. Thus, when the language to be construed is unambiguous, it must be accorded its plain and ordinary meaning." (citations omitted) ). "Legal text 'should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.' " Boatright v. Philip Morris USA Inc., 218 So.3d 962, 967 (Fla. 2d DCA 2017) (quoting Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) ). If a "statutory provision appears to have a clear meaning in isolation, 'but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the [c]ourt will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.' " Id. (alteration in original) (quoting Fla. State Racing Comm'n v. McLaughlin, 102 So.2d 574, 575-76 (Fla. 1958) ). Indeed, "[w]henever possible, we must avoid construing legal text as 'mere surplusage.' " Id. (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003) ).

Against this backdrop, we first address the daughters' argument that section 736.0201 affords the trial court discretion to maintain ongoing jurisdiction of the action their father brought and attempted to voluntarily dismiss.

The plain and unambiguous language of section 736.0201(1) mandates that, with three exceptions not relevant here, judicial proceedings concerning trusts shall be governed by Florida Rules of Civil Procedure as follows: "Except as provided in subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure." § 736.0201(1) (emphasis added). Thus, the legislature has set forth in no uncertain terms that, absent the exceptions found in subsections (5) and (6) and section 736.0206, the judicial proceedings shall be bound by the Florida Rules of Civil Procedure.

The trial court, however, set forth an additional exception, separate from those enumerated by the legislature, to the mandatory application of the Florida Rules of Civil Procedure pursuant to section 736.0201. That is, the trial court ruled that it maintained jurisdiction over Mr. Baden's operative complaint pursuant to subsection 736.0201(3), which states that "[a] trust is not subject to continuing judicial supervision unless ordered by the court." (Emphasis added.) Relying on that provision, the trial court reasoned that Mr. Baden's notice of voluntarily dismissal of the operative complaint was a nullity because it had retained jurisdiction over the trust in its December 2014 partial final judgment resolving the trust-related counts in Mr. Baden's operative complaint. We reject the notion that subsection (3) somehow renders inapplicable the legislature's mandate that the Florida Rules of Civil Procedure "shall" apply in this context. The exceptions, set forth by the legislature in subsections 736.0201(5) and (6) and section 736.0206, are wholly irrelevant to what we have here. It would render subsection (1), where the legislature explicitly identifies the three exceptions, wholly superfluous if we interpret subsection (3) in isolation, as the daughters suggest.

Subsection (3) merely provides the trial court the discretion to continue supervision of a trust. It does not, and cannot, nullify subsection (1)'s mandate as to the applicability of the Florida Rules of Civil Procedure. This would make little sense. As we explained earlier, if a statutory provision "appears to have a clear meaning in isolation, 'but when given that meaning is inconsistent with other parts of the same statute or others in pari materia,' " we must examine "the entire act and those in pari materia in order to ascertain the overall legislative intent." Boatright, 218 So.3d at 967 (alteration in original) (quoting McLaughlin, 102 So.2d at 575-76 ). Reading these subsections of the same statute together so as to not render subsection (1)'s enumerated exceptions as superfluous, as we must, yields the conclusion that section 736.0201(3) does not provide a means for the trial court to sidestep section 736.0201(1)'s mandate that the Florida Rules of Civil Procedure section "shall" apply. See id. ("Whenever possible, we must avoid construing legal text as 'mere surplusage.' " (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003) ) ). And section 736.0201(3) certainly does not permit the daughters or the trustee to keep Mr. Baden's lawsuit pending so that the trustee may file claims, motions for guidance, and so on. Of course, the legislature has provided an avenue for a party to the trust to file his or her own separate action consistent with the Florida Trust Code. See generally § 736.0201(4). But that is not the case before us.

We next address the daughters' argument that the exception identified in the opening clause of rule 1.420(a)(1) prevented Mr. Baden from voluntarily dismissing his own lawsuit. The rule provides that the plaintiff may dismiss a lawsuit without an order of the court "[e]xcept in actions in which property has been seized or is in the custody of the court." Fla. R. Civ. P. 1.420(a)(1). In its sua sponte order striking Mr. Baden's notice of voluntary dismissal, the trial court ruled that "[t]he successor trustee of the [trust] is under this [c]ourt's direction, supervision and control and therefore the funds being held by the successor trustee are in the custody of this [c]ourt" such that the court "continues to retain jurisdiction to supervise the [trust] and the successor trustee."

The basis for this conclusion was the daughters' contention that the phrase "custody of the court" should be taken to encompass the control of the court, as opposed to merely the court's custody over funds deposited in the court registry. The daughters rely on Black's Law Dictionary, where "custody" is defined as "[t]he care and control of a thing or person for inspection, preservation, or security." Custody, Black's Law Dictionary (8th ed. 2004). The daughters contend that because the trial court had previously issued orders granting or denying the trustee's motions for authorization to engage in transactions with trust assets, as well as orders providing direction to and placing limitations on the trustee beyond the trustee's powers and limitations defined in the trust instrument, the trust assets are in the "custody" of the court.

Other than Black's Law Dictionary, the daughters identify no authority to support their contention that this expansive view of "custody of the court" applies in the context of rule 1.420(a)(1). They cite to Ginsburg v. Carney, 514 So.2d 1153, 1154 (Fla. 2d DCA 1987), which restates the rule: "The exception contained in the rule precludes the effective taking of a voluntary dismissal, where, as here, funds are in the custody of the court." Ginsburg, however, is readily distinguishable from what we have here. The funds in Ginsburg had been deposited in the court registry. Id. Here, the value of the cash owned by Trust, based on the limited record before us, is between $269,000 and $400,000 and is deposited in a bank account.

We conclude that the most natural reading of the term "property ... in the custody of the court" in rule 1.420(a)(1) is money or other property in the actual custody of the court, such as funds deposited in the court registry. Those are funds that are in the actual custody of the court, not trust property on the transactions of which the court has issued orders. Cf. Our Gang, Inc. v. Commvest Sec., Inc., 608 So.2d 542, 544-45 (Fla. 4th DCA 1992) (noting that where the court had issued an order directing that funds be deposited into the court registry but where no such deposit had been accomplished, rule 1.420(a)(1) did not apply).

Mr. Baden has successfully demonstrated that his voluntary dismissal divested the trial court of jurisdiction over his lawsuit. Accordingly, we grant his petition for writ of prohibition and quash the trial court's April 24, 2018, order that declared the voluntary dismissal a nullity.

Petition granted.

NORTHCUTT and CRENSHAW, JJ., Concur.

      Certiorari has also been used in the context of the trial court's rejection of a voluntary dismissal filed pursuant to rule 1.420(a)(1). See Sun First Nat'l Bank of Delray Beach v. Green Crane & Concrete Servs., Inc., 371 So.2d 492 (Fla. 4th DCA 1979) (using certiorari to quash an order reinstating a lawsuit after the plaintiffs had filed a notice of voluntary dismissal pursuant to rule 1.420(a)(1) ). Because we are acting to prevent further action by the trial court rather than to correct action taken by the court, see English v. McCrary, 348 So.2d 293, 296-97 (Fla. 1977), we decide this case in prohibition, as set forth in Mr. Baden's petition.

      Chapter 736, Florida Statutes, is the Florida Trust Code. § 736.0101.

      Subsections 736.0201(5) and (6) are inapplicable here. Subsection 736.0201(5) relates to the construction of testamentary trusts, which are governed by the Florida Probate Rules. See § 736.0201(5). Subsection (6) relates to the application of a particular Florida Rule of Civil Procedure, rule 1.525, in certain circumstances. See § 736.0201(6). The legislature set forth a third exception to the mandatory application of the Florida Rules of Civil Procedure in section 736.0201(1). But section 736.0206 is also inapplicable here, as it relates to proceedings initiated to review the employment of agents and compensation of trustees and employees of a trust.

      One scenario in which a trust case would presumably be permitted to remain open, assuming court approval, would be when a trustee initially seeks instruction of the court pursuant to section 736.0201(4)(e) ("A judicial proceeding involving a trust may relate to the validity, administration, or distribution of trust, including proceedings to ... (e) ... instruct trustees ....") and also requests that the case remain open in anticipation of issues likely to arise in the short or medium term.

      For example, in its April 20, 2015, "order setting forth trustee's powers and authority and procedure," the court, in addition to reciting verbatim the provisions of the Trust Code and trust instrument delineating the trustee's authority, directed that the trustee must communicate to the parties any plans to engage in trust-related transactions involving more than $5000 or any activity involving a land use application.

      Lastly, the daughters contend that Mr. Baden failed to file his notice of voluntary dismissal "before a hearing on motion for summary judgment." See Fla. R. Civ. P. 1.420(a)(1)(A). Specifically, they equate a hearing on a motion for summary judgment to the proceedings leading to the court's December 2014 partial final judgment resolving the trust-related counts in Mr. Baden's complaint. We reject this argument. No motion for summary judgment was ever filed in the first instance, let alone one filed with the requisite particularity requirements set forth in the rule governing motions for summary judgment. See Fla. R. Civ. P. 1.510(c).