text:
    Mary Virginia GRAHAM, Appellant, v. Constance R. UPHOLD and Barmarrae Books, Inc., Appellees.
    No. 1D17-2666
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, for Appellant.
    Eric A. Dibert of Bogin, Munns & Munns, P.A., Gainesville, for Appellee Constance R. Uphold.
   Per Curiam.

Dr. Mary Virginia Graham challenges an order appointing a custodian to manage a small business she owns together with Dr. Constance R. Uphold. The business is subject to a judicial dissolution proceeding initiated by Dr. Uphold. Dr. Graham argues that the appointment of the custodian violated the statutory stay of the dissolution proceedings in effect when Dr. Graham elected to purchase Dr. Uphold's shares and requested a fair value determination from the court. For the reasons below, we agree with Dr. Graham and reverse.

Facts

The story of Barmarrae Books, Inc. (BBI) is one of a business relationship gone wrong. Drs. Graham and Uphold each own fifty percent of the shares in BBI, a small corporation they formed to sell a medical textbook they co-wrote. In recent years, multiple conflicts between the two shareholders have destroyed what used to be a functional business relationship.

Dr. Uphold initiated these proceedings by filing a complaint for involuntary dissolution of BBI pursuant to section 607.1430(2), Florida Statutes (2016), as a result of continuing deadlock among the parties regarding BBI's operations and management. The complaint also included a claim for an equitable accounting regarding the copyright of the textbook.

Shortly after the dissolution action was initiated, Dr. Graham filed a notice under section 607.1436, Florida Statutes, electing to purchase all of Dr. Uphold's corporate shares in lieu of the dissolution. After the parties failed to agree on the fair value of Dr. Uphold's shares, Dr. Graham asked the court to make the determination pursuant to section 607.1436(4), which triggered a stay of the dissolution proceedings.

Approximately nine months later, Dr. Uphold moved under sections 607.1431(3) and 607.1432, Florida Statutes, for the court to appoint a custodian pendente lite "to preserve BBI's assets and to carry on and manage its business and affairs." Dr. Uphold alleged a series of improprieties and breaches of fiduciary duty by Dr. Graham that "jeopardize[ ] the current and ongoing value of BBI, and Dr. Uphold's equity interest in it." For example, Dr. Uphold alleged that Dr. Graham and her son had taken control of nearly all BBI's operations-preventing Dr. Uphold from carrying out her responsibilities as a corporate officer-and Dr. Uphold feared Dr. Graham would waste BBI's assets. Dr. Uphold also alleged that Dr. Graham had refused to participate in discovery, preventing Dr. Uphold from obtaining the information needed to argue her case at a hearing to determine the fair value of her shares.

Dr. Graham categorically denied Dr. Uphold's allegations of misconduct and also argued that the court lacked authority to appoint a custodian during the statutory stay of the dissolution proceedings in effect once the fair value determination was requested.

After an evidentiary hearing, the court entered an order granting Dr. Uphold's motion for a custodian. The court did not make any findings of misconduct, waste, or risk of future waste due to Dr. Graham's actions. Rather, the court found that Dr. Graham had refused to allow Dr. Uphold access to corporate records. The court explained,

Given the lack of transparency and the withholding of information between the members of the corporation, it is virtually impossible for the Court to determine whether a custodian is necessary to manage the business and affairs of the corporation. However, the Court has both statutory and inherent authority to exercise its discretion to appoint a custodian, if appropriate. In this case, the Court finds it appropriate and to be in the best interest of the corporation and its members.

The court appointed a custodian "to serve as a neutral overseer for the company and to insure that the corporation has its legal obligations met." The court further provided that the custodian "shall exercise all powers of the corporation and shall have exclusive authority to manage the affairs of the corporation in the best interests of the corporation's shareholders and creditors." The order recognized that the dissolution proceedings were stayed under section 607.1436(4) but rejected the stay as precluding a custodian's appointment, stating that "other causes/actions of the case are not stayed and proceed as usual."

This appeal followed.

Analysis

Whether the trial court could appoint a custodian during the statutory stay is a pure question of law. Questions of law are reviewed de novo. Jackson-Shaw Co. v. Jacksonville Aviation Auth. , 8 So.3d 1076, 1085 (Fla. 2008). Whether the court otherwise properly entered the custodianship order is reviewed for an abuse of discretion. See Plaza v. Plaza , 78 So.3d 4, 6 (Fla. 3d DCA 2011).

A corporate shareholder may petition for judicial dissolution of a corporation based on the limited grounds set forth in section 607.1430, Florida Statutes. As an alternative to the so-called "corporate divorce," one or more shareholders may elect to purchase the shares of the complaining shareholder at the fair value of the shares. § 607.1436(1), Fla. Stat. Once made, the buyout election is "irrevocable unless the court determines that it is equitable to set aside or modify the election." Id. The buyout election also prevents the petitioning shareholder from discontinuing or settling the dissolution action, or selling or otherwise disposing of his or her shares, unless the court determines that it would be equitable for the corporation and the other shareholders to do so. § 607.1436(2), Fla. Stat.

After a buyout election, the parties have sixty days to reach an agreement on the fair value of the petitioning shareholder's shares and the terms of purchase. § 607.1436(3), Fla. Stat. If the parties are able to reach an agreement within that time period, the court must direct the purchase of the shares consistent with the parties' agreement. Id. If the parties are unable to agree,

the court, upon application of any party, shall stay the s. 607.1430 proceedings and determine the fair value of the petitioner's shares as of the day before the date on which the petition under s. 607.1430 was filed or as of such other date as the court deems appropriate under the circumstances.

§ 607.1436(4), Fla. Stat. After the court determines the fair value of the shares, the court must direct the sale of the shares to the shareholder(s) electing to purchase the petitioning shareholder's shares and dismiss the petition to dissolve the corporation. § 607.1436(5) - (6), Fla. Stat.

In this case, the parties do not dispute that a statutory stay of the dissolution proceedings was triggered upon Dr. Graham's request for the court to determine the fair value of Dr. Uphold's shares. And rightly so, as the language of section 607.1436(4) clearly provides that a stay of the " s. 607.1430 proceedings" is mandatory in that situation. See State v. Burris , 875 So.2d 408, 410 (Fla. 2004) ("When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.").

The parties disagree on whether the court could nonetheless appoint a custodian pendente lite with the stay in effect. Dr. Uphold contends the statutory stay does not operate to halt all proceedings brought to dissolve a corporation because the court is required to take further action in the same proceedings to achieve the alternative end of a buyout on terms to be determined by the court. Yet Dr. Uphold sought a custodianship "to preserve BBI's assets and to carry on and manage its business and affairs" under sections 607.1431(3) and 607.1432. Similarly, the trial court relied on its authority under section 607.1432 to appoint the custodian. While these sections allow a court to appoint a custodian to take possession of a corporation and manage it under the court's authority, they do so only in the context of judicial dissolution proceedings. Because the dissolution proceedings were required by statute to be stayed at the time Dr. Uphold moved for the appointment of a custodian, the court did not have the authority under either section 607.1431(3) or section 607.1432 to make the appointment.

Dr. Uphold also contends that even if the court did not have statutory authority to appoint a custodian during the stay, it had inherent authority to do so in connection with the fair value determination or "any other pending counts." Analogizing the appointment of a custodian to the appointment of a receiver, Dr. Uphold relies on cases involving equitable receiverships and argues that, generally, a receiver is appropriate to protect interested parties against a risk of loss. See Apalachicola N. R. Co. v. Sommers , 79 Fla. 816, 85 So. 361, 362 (1920) ("The cases in which receivers will be appointed are ordinarily limited to those in which it appears that the appointment is necessary, either to prevent fraud or to save the property from injury or threatened loss or destruction.").

The appointment of a receiver "is a rare and extraordinary remedy." Plaza , 78 So.3d at 6 ; see also Electro Mech. Prods., Inc. v. Borona , 324 So.2d 638, 639 (Fla. 3d DCA 1976) ("The appointment of a receiver is a drastic matter in that it constitutes a taking of property and, therefore, should not be used by the courts except in cases of necessity."). A trial court abuses its discretion when it "appoint[s] a receiver in the absence of a showing that property is subject to a serious loss." Plaza , 78 So.3d at 6.

To the extent that any such inherent authority exists in this case, the court made no finding of waste or serious risk of loss. Indeed, based on the language of the court's ruling, it appears that the court itself was uncertain about the need for a custodian to manage the business and affairs of BBI. In any event, because the statute allows the trial court to value Dr. Uphold's shares as of the day before Dr. Uphold filed the dissolution action, Dr. Uphold is already protected against the risk of loss. The appointment of the custodian is both unauthorized by statute and unnecessary.

Accordingly, the custodianship order is REVERSED .

Ray, Bilbrey, and Winokur, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Steve NORTON, an individual, Husk Signs, Inc., an Indiana corporation, and Husk Companies, Inc., an Indiana corporation, Appellants, v. AMERICAN LED TECHNOLOGY, INC., a Florida corporation, Appellee.
    No. 1D17-4113
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Colleen Coffield Sachs, Robert Lee Kauffman, and Michael J. Henry of Dunlap & Shipman, P.A., Santa Rosa, for Appellants.
    A. Benjamin Gordon and Darian Zamora of Keefe, Anchors & Gordon, P.A., Fort Walton Beach, for Appellee.
   Per Curiam.

American LED Technology, Inc. ("American") brought suit against former employee Steve Norton, Husk Signs, Inc., and Husk Companies, Inc., making a number of allegations concerning Norton's departure from American. American moved for a temporary injunction against Norton based on two grounds: 1) violation of chapter 688, Florida Statutes (the "Uniform Trade Secrets Act" or "UTSA") and 2) violation of a valid non-compete agreement. Following a hearing, the trial court entered an order granting American's motion based on UTSA, noting that its findings were "separate and independent from any breach of contract claim" and omitting any other reference to the non-compete agreement. The temporary injunction imposed certain requirements as to the trade secrets then under Norton's control and prohibited Norton from competing with American. We affirm the entry of a temporary injunction without further comment, but reverse the portion of the order enjoining Norton from competing in the industry, as UTSA does not authorize such relief.

UTSA requires courts to take reasonable steps to preserve the secrecy of trade secrets. § 688.006, Fla. Stat. These steps can include injunctive relief due to actual or threatened misappropriation, and even compelling parties to perform affirmative acts. § 688.003, Fla. Stat. But UTSA may not be used as a vehicle to restrict competition. See Hatfield v. AutoNation, Inc. , 939 So.2d 155, 157 (Fla. 4th DCA 2006) ("The statute deals not with restrictive covenants and employment by a business' competition, but with misappropriation.").

In East v. Aqua Gaming, Inc. , 805 So.2d 932, 935 (Fla. 2d DCA 2001), the trial court granted injunctive relief, prohibiting the defendant from using confidential information he improperly obtained and from competing with the plaintiff within the plaintiff's operating territory. The Second District Court of Appeal noted that the latter restriction went "beyond enjoining the use of misappropriated trade secrets" and held that, absent a valid non-compete agreement, the defendant "is free to engage in a competing business." Id.

American contends that Hatfield , 939 So.2d at 155, demonstrates that courts do have discretion to restrain competition when granting injunctive relief under UTSA. In Hatfield , the Fourth District Court of Appeal affirmed an order granting a temporary injunction that "included a brief respite from employment as part of the court's fashioning a remedy that would aid [the plaintiff] in minimizing the potential damage by disclosure of time sensitive trade secrets." Id. at 157-58.

Here, the trial court's order prohibited Norton from engaging "in any business in direct competition with American" for the earlier of one year or the conclusion of litigation and contained no geographical limitations on this prohibition. We do not find one year to be a "brief respite," like the time period in Hatfield . Further, there was no argument, and we see no evidence, that any trade secrets here are particularly time sensitive. In sum, American may not prohibit Norton from direct competition through the UTSA, and we reverse this portion of the order.

AFFIRMED in part, REVERSED in part and REMANDED.

Ray, Bilbrey, and Winokur, JJ., concur.


author: B.L. Thomas, C.J.

text:
    John G. SCHANCK, Appellant, v. William M. GAYHART and Debra L. Buchanan, as Co-Personal Representatives of the Estate of Myong-He Gayhart, Appellees.
    No. 1D17-1327
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Stephanie A. Sussman of Bledsoe, Jacobson, Schmidt, Wright & Sussman, Jacksonville; Gideon I. Alper and Jonathan B. Alper of Alper Law, PLLC, Oviedo, for Appellant.
    Paul J. Battista, William Barry Blum and Heather L. Harmon of Genovese Joblove & Battista, P.A., Miami, for Appellees.
   B.L. Thomas, C.J.

Appellant argues that the trial court exceeded its authority and improperly exercised jurisdiction over assets located outside of Florida. The court ordered Appellant to cancel, reissue, and turn over to his former wife's estate stock and membership certificates in Stellar Recovery, Inc., and DataSignals, LLC, Florida business entities owned solely by Appellant. Because we conclude the trial court was within its legal and equitable authority to aid the Estate in executing a monetary judgment against Appellant, we affirm.

I. BACKGROUND

In 2015, the marriage between Appellant and his late wife Myong-He Gayhart was dissolved by Consent Final Judgment. Gayhart waived alimony and claims to her share of certain assets, including any interest in Stellar Recovery, Inc., in exchange for an equalizing payment of $2.5 million, to be paid by Appellant in monthly installments. Thus, Appellant was able to retain 100% interest in Stellar.

As Gayhart was terminally ill, the settlement agreement specifically provided that the payments would survive her death and could be enforced by her estate. But following Gayhart's death, Appellant failed to make payments to the Estate. A judgment for $207,862.64, covering five consecutive missed payments, was entered December 20, 2016. Appellant paid this judgment on February 9, 2017, but by that time had failed to make payments due in January and February 2017, and a second judgment for $74,475.81 was entered on February 27, 2017.

At his deposition in February 2017, Appellant testified that he did not know where the stock certificates were located. The Estate then filed a motion seeking a court order to aid in executing the judgment against Appellant. The motion requested that the court order Appellant to turn over the stock and membership certificates in Stellar Recovery, Inc. and DataSignals, LLC, and that if the certificates had been lost or were unable to be located, to order Appellant to reissue the certificates and turn them over to the Estate.

Appellant did not appear at the hearing on the Estate's motion, but the parties stipulated to his affidavit his testimony. Appellant asserted that in December 2016 or January 2017, the Stellar and DataSignals certificates had been transported to his new wife's residence in Canada. Although this change in location occurred only weeks before Appellant's deposition, where he testified that he did not know where the certificates were located, he provided no explanation for his change in testimony. Appellant's counsel stated that she had only recently learned the certificates were in Canada and that the location was "a surprise to all of us."

Appellant's counsel conceded that the law permitted a creditor to take a debtor's interests in a single-member LLC or a corporation fully owned by the debtor, but contended that, because the certificates were located outside Florida, the court lacked jurisdiction. Appellant further argued that because the certificates were in a foreign jurisdiction, the Estate was required to seek relief in the foreign jurisdiction. The Estate argued that, while the court did not have in rem jurisdiction over the certificates, it had in personam jurisdiction over Appellant and could order him to take action with respect to the certificates. The Estate relied on section 678.1121(5), Florida Statutes, which broadly authorizes the court to give aid to a creditor to reach a certificated security interest.

The court, concluding that the certificates "could not be located," and disagreeing with Appellant that a "loophole in the law" required the Estate to pursue the certificates in other jurisdictions, ordered Appellant to cancel the existing stock and membership certificates in Stellar and DataSignals, reissue them in his name, and deliver them to counsel for the Estate. In his motion for rehearing and reconsideration, Appellant argued that Stellar and DataSignals were necessary parties to effectuate the court's order and that there was insufficient evidence that he had the authority or ability to personally cancel and reissue the certificates. The court denied the motion and this appeal follows.

II. ANALYSIS

Appellant first argues the relief granted violates due process because it was not requested in the Estate's motion. Second, he argues that the court lacked jurisdiction to take action affecting the certificates and that section 678.1121, Florida Statutes, does not authorize the reissuance of stock and membership certificates. Finally, Appellant argues that he cannot personally effectuate the court's order, and that Stellar and DataSignals were necessary parties.

A. Due Process

It is well-settled that where a particular form of relief is not requested by the parties and the matter is not tried by consent, the granting of such relief violates due process. See, e.g. , Wachovia Mortg. Corp. v. Posti , 166 So.3d 944, 945 (Fla. 4th DCA 2015). In its motion, the Estate requested that if the certificates "have been lost or cannot be located," such that Appellant could not be compelled to turn them over, the court order their reissuance. Appellant contends that, because he disclosed the location of the certificates before the hearing, and the Estate had not specifically requested reissuance of certificates at a known location outside the court's jurisdiction, he was not on notice that the relief of cancellation and reissuance could be granted.

The Estate requested cancellation and reissuance as an alternative remedy if its primary request that the court order Appellant to turn over the certificates could not be effected. Appellant then changed his testimony to reveal the supposed location of the certificates, and argued this deprived the court of jurisdiction to order him to turn them over. Appellant cannot legitimately contend that he was without notice of this possible remedy. See Cruz v. Domenech , 905 So.2d 938, 940 (Fla. 3d DCA 2005) (explaining that the issue of whether a particular form of relief has been properly invoked "must be guided by whether the pleadings provided the parties with sufficient notice that matters related to such relief would be at issue, and by the breadth and context of the hearing which grows out of those pleadings"). We hold that the order complied with due process.

B. Jurisdiction and Statutory Authority

Appellant's substantive argument is that the court lacked jurisdiction to take action with respect to the certificates located in Canada, and that even if it had jurisdiction, it lacked authority under section 678.1121 to order their reissuance.

Appellant relied below on Sargeant v. Al-Saleh , 137 So.3d 432 (Fla. 4th DCA 2014), for the proposition that, despite having personal jurisdiction over a debtor, the court cannot order the debtor to turn over assets located outside the state. In Sargeant , the Fourth District reversed a judgment compelling the turnover of stock certificates located in foreign countries, concluding that the lower court lacked in rem jurisdiction over the certificates, and that the in personam jurisdiction over the debtors did not confer upon the court the power to enter an order affecting the certificates. Id. at 434-35.

Although the Estate argued that a court may use its personal jurisdiction to order a defendant to act on foreign property, the trial court was persuaded by Sargeant and believed it could not direct Appellant to return the certificates to Florida and turn them over to the Estate. Instead, the court determined it could grant the alternative relief of cancellation and reissuance. Appellant argues that, under Sargeant , the court lacked jurisdiction to order action affecting the certificates in this alternative manner for the same reason it could not order him to return them, i.e., the court lacked in rem jurisdiction.

This Court has recognized that it is permissible for a trial court to direct a defendant over whom it has personal jurisdiction to act on property located outside its jurisdiction, if the title to the property is not directly affected while the property remains in the foreign jurisdiction. See, e.g. , Ciungu v. Bulea , 162 So.3d 290, 294 (Fla. 1st DCA 2015). In Ciungu , this Court held that a probate court had authority to direct a party to effect distribution of property located in Romania by virtue of its personal jurisdiction over the party:

'It has long been established ... that a court which has obtained in personam jurisdiction over a defendant may order that defendant to act on property that is outside of the court's jurisdiction, provided that the court does not directly affect the title to the property while it remains in the foreign jurisdiction.'

Id. (quoting Gen. Elec. Capital Corp. v. Advance Petroleum, Inc. , 660 So.2d 1139, 1142 (Fla. 3d DCA 1995) ) (emphasis in original).

In General Electric , the Third District affirmed an order requiring a lien debtor to return an aircraft to Florida based on the court's personal jurisdiction over the debtor. 660 So.2d at 1142-43. The Third District explained that "the trial court's proper assertion of in personam jurisdiction over GECC entitles the court to act on GECC's possessory interest over the aircraft without directly acting on the aircraft itself." Id.

In reaching the opposite conclusion in Sargeant , the Fourth District recognized the holding of the Third District in General Electric , but attempted to distinguish General Electric on grounds that the creditor there had a perfected lien on the property at issue. 137 So.3d at 434-35. But this Court made no such distinction when relying on General Electric in Ciungu , nor do we see a basis to do so here. Rather, as in General Electric and Ciungu , the action directed here, to a party over whom the court had undisputed personal jurisdiction, did not directly affect title to the assets while they remained outside the court's jurisdiction. See Ciungu , 162 So.3d at 294. Accordingly, while the only issue before us is whether the court properly ordered the alternative relief of reissuance, we observe that the court had jurisdiction to either order Appellant to return or reissue the certificates, as neither remedy would directly affect title to the certificates while they remained in Canada. See id.

Appellant contends, however, that even if the certificates were within the court's jurisdiction, there is no express authority in section 678.1121, Florida Statutes, whereby the court can order the cancellation and reissuance of stock and membership certificates. Section 678.1121 outlines the procedure by which a creditor may reach a debtor's security interests:

(1) The interest of a debtor in a certificated security may be reached by a creditor only by actual seizure of the security certificate by the officer making the attachment or levy, except as otherwise provided in subsection (4)....
...
(4) The interest of a debtor in a certificated security for which the certificate is in the possession of a secured party ... may be reached by a creditor by legal process upon the secured party.
(5) A creditor whose debtor is the owner of a certificated security ... is entitled to aid from a court of competent jurisdiction, by injunction or otherwise , in reaching the certificated security ... or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by other legal process.

(Emphasis added.)

Appellant argues that section 678.1121 requires actual seizure of the certificates and does not authorize a court to order cancellation and reissuance. As Appellant notes, the Fourth District found no statutory basis for reissuance of a certificate taken outside the court's jurisdiction by a judgment debtor. Florida Boca Raton Hous. Ass'n, Inc. v. Malone , 325 So.2d 22, 23 (Fla. 4th DCA 1976). The Malone court concluded that, although the securities were wrongfully taken outside the court's jurisdiction, "in an attempt to circumvent the rights of the judgment creditor, there is no legal or decisional basis for the court to order the reissue of a new stock certificate." Id.

However, the Fifth District later disagreed with the Malone decision, concluding that where one debtor refused to respond to discovery and the other indicated she did not know where the stock was, the trial court could order the corporation to reissue the stock certificate. House v. Williams , 573 So.2d 1012, 1012 (Fla. 5th DCA 1991). The Fifth District concluded that the broad statutory language allowing a creditor to seek aid from the court "by injunction or otherwise, in reaching the security or in satisfying the claim by means allowed by law or in equity in regard to property that cannot readily be reached by ordinary legal process," authorized the court to require reissuance of the certificates. Id. at 1012-13.

Appellant attempts to distinguish House based on the fact that the location of the certificates was unknown in that case, while here their location had been disclosed, albeit in contradiction to Appellant's sworn deposition testimony. We decline to distinguish House on that basis. As in House , the securities here could not "readily be reached by ordinary legal process,"-that is, by seizure of the certificates. We hold that section 678.1121(5) authorizes a court to aid the creditor "in reaching the security or in satisfying the claim by means allowed by law or in equity," including by ordering their reissuance, regardless of whether securities cannot be seized because their location is unknown or because the debtor has attempted to move them outside the court's reach.

C. Impleader of the Business Entities

Finally, Appellant argues that because stock and membership certificates are issued by a corporation or limited liability company, not by shareholders or members, see sections 607.0603(1) and 605.0502(4), Florida Statutes, the court was required to direct its order to Stellar and DataSignals rather than to him, and these entities needed to be made parties to the case. We disagree.

The issuer of a certificated security must reissue a certificate upon request from the owner of the certificate. See § 678.4051, Fla. Stat. (providing procedure for reissuance of a lost, destroyed, or wrongfully taken security certificate). Appellant undisputedly owns and controls 100% of both Stellar and DataSignals. Notably, when Gayhart sought to add Stellar as a party during the dissolution proceedings, Appellant represented that he would-and thus could-provide discovery on Stellar's behalf "as if Stellar were a party" to the action. As such, we reject Appellant's contention he lacks the ability to comply with the court's order, both on statutory and equitable grounds.

III. CONCLUSION

The trial court properly exercised its personal jurisdiction over Appellant to order relief authorized under the broad language of section 678.1121(5), Florida Statutes. Appellant is capable of complying with the court's order and had sufficient notice that reissuance of the certificates was a potential remedy.

AFFIRMED .

Bilbrey and Jay, JJ., concur.

      As discussed further below, the court did have personal jurisdiction over Appellant to order him to turn over the certificates, notwithstanding their location in Canada, but it also had authority to order the alternative remedy of cancellation and reissuance.


author: PER CURIAM.

text:
    Erick GONZALEZ, Appellant, v. ALL HILL PLUMBING CORPORATION, etc., Appellee.
    No. 3D17-1596
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Law Offices of Ruben V. Chavez, P.A., and Ruben V. Chavez, for appellant.
    Kubicki Draper, and G. William Bissett, Jr., Miami, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. Moradiellos v. Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3d DCA 2015).


text:
    John F. WOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1537
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    John F. Wood, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Gethers v. State, 838 So.2d 504, 505 (Fla. 2003) ("[A]bsent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.").


text:
    LINE LOUSKY, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D17-1458
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Wasson & Associates, Chartered, and Roy D. Wasson, for appellant.
    Greenspoon Marder, P.A., and Dariel Abrahamy (Boca Raton), for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Snowden v. Wells Fargo Bank, 172 So.3d 506 (Fla. 1st DCA 2015).


text:
    Douglas Hernando DURAN and Alba Mery Salazar, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Appellee.
    No. 3D17-1406
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Carlos A. Ziegenhirt, P.A., and Carlos A. Ziegenhirt, for appellants.
    Pearson Bitman LLP, and Allison Morat and Teris A. McGovern (Maitland), for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See PNC Bank, N. A. v. Clark, 211 So.3d 265 (Fla. 3d DCA 2017) ; Ortiz v. PNC Bank, N. A., 188 So.3d 923 (Fla. 4th DCA 2016) ; Clay Cty. Land Tr. v. JPMorgan Chase Bank, N.A., 152 So.3d 83 (Fla. 1st DCA 2014). See also Rincon v. Bank of America, N.A., 206 So.3d 793 (Fla. 3d DCA 2016).


text:
    Lidia VAZQUEZ, Appellant, v. WAL-MART STORES, INC., Appellee.
    No. 3D17-1181
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Wasson & Associates, Chartered and Annabel C. Majewski, Miami; Calil Law and Jorge A. Calil, for appellant.
    Simon, Reed & Salazar and Gregory A. Reed and Julian M. Smothers, Miami, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275 (Fla. 3d DCA 2017) ; Wilson-Greene v. City of Miami, 208 So.3d 1271 (Fla. 3d DCA 2017) ; § 768.0755, Fla. Stat. (2014).


text:
    Diviel POMA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-737
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Dan Hallenberg (Fort Lauderdale), for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Diviel Poma, the defendant, appeals the trial court's denial of the defendant's 3.800(a) motion to correct illegal sentence. The defendant argues several points, one of which was the failure of the trial court to have the defendant present for resentencing after it vacated two of the five counts upon which the defendant had been previously sentenced. The trial court determined that resentencing with the defendant present was not necessary because it was simply vacating the sentences on two of his counts. However, because the sentences imposed on the remaining counts were discretionary, the trial court was required to have the defendant present for resentencing with a corrected scoresheet. See Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) ; Fernandez v. State, 199 So.3d 500 (Fla. 2d DCA 2016) ; Brown v. State, 219 So.3d 866 (Fla. 4th DCA 2017). On remand, the trial court is free to impose the same sentence or any legal sentence. See State v. Davis, 133 So.3d 1101, 1107 n.9 (Fla. 3d DCA 2014) (Emas, J.) ("At the new sentencing proceeding, the trial court is free to impose the same sentences it previously imposed on counts three and four."); Sconiers v. State, 734 So.2d 427, 428 (Fla. 3d DCA 1999) ("On remand, the trial court is free to impose the same sentence."). We affirm in all other respects.

Affirmed in part, reversed in part, and remanded for resentencing with the defendant present before the trial court.


author: LUCK, J.

text:
    Michael MUCHNICK and Valerie Muchnick, Appellants, v. Richard GOIHMAN, Appellee.
    No. 3D17-122
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    International Law Partners LLP and Zahra Khan (Hollywood), for appellants.
    Nexterra Law, Steven M. Liberty, and Eric A. Jacobs, for appellee.
    Before LAGOA, EMAS and LUCK, JJ.
   LUCK, J.

Michael and Valerie Muchnick, former tenants in a Williams Island apartment, appeal the trial court's summary judgment in favor of their former rental agent, Richard Goihman, on their claims that Goihman fraudulently induced the couple to rent the apartment, and negligently repaired the water intrusion and mold problems with the apartment. We affirm the summary judgment on the fraud in the inducement claim, but reverse on the negligence claim and remand for further proceedings.

Factual Background and Procedural History

Goihman was a real estate agent working for Fortune International Realty. He knew the Muchnicks because they lived in the same apartment building in Aventura. When Goihman learned the Muchnicks needed to move from their current apartment because it was being sold, he approached them about renting a different unit in the same building. In April 2012, the Muchnicks entered into a two-year lease agreement to rent the new apartment for $7,500 a month. They paid their rent in six-month installments. Fortune International Reality was listed as the broker on the transaction.

During a walk-through of the apartment with Goihman, the Muchnicks pointed out cosmetic issues with the unit-scuffed floors; paint touch ups-which Goihman assured them would be addressed prior to them moving in. But the issues were not resolved, and when the Muchnicks moved in, they discovered that the problems were greater and more serious than they first realized. Most significantly, leaks in the bathroom resulted in water damage and mold in the ventilation system. The mold, according to the Muchnicks, affected their children's health and required that they be put on medication. The Muchnicks communicated primarily with Goihman regarding issues with the unit because the owner lived abroad. Due to the mounting repairs and Goihman's failure to quickly resolve the issues, the Muchnicks terminated the lease about six months early and, in February 2014, filed suit against Goihman and the owner of the apartment.

The complaint alleged the following against Goihman: fraud in the inducement; breach of covenant of quiet enjoyment of the premises; breach of covenant of good faith and fair dealing; unjust enrichment; and negligence. Goihman moved for summary judgment on all counts, which the trial court granted. The Muchnicks appeal only the trial court's summary judgment on their fraud in the inducement and negligence claims.

Standard of Review

"The determination of duty, as an element of negligence, is a question of law, and is therefore subject to de novo review. We also review de novo a trial court's granting of summary judgment." Chirillo v. Granicz, 199 So.3d 246, 248-49 (Fla. 2016) (citations omitted).

Discussion

We affirm without discussion the summary judgment on the fraud claim, but reverse summary judgment and remand for further proceedings on the negligence claim. In their complaint, the Muchnicks alleged that Goihman "owed a duty ... to maintain a secure and mold free home, and when necessary, to repair or replace areas of the home to ensure the quiet enjoyment by the Muchnicks." Goihman breached this duty, they alleged, by: "failing to protect their home from damaging water intrusion"; "failing to repair the corrosion with the plumbing throughout the apartment"; "failing to take quick measures to remedy"; "failing to remedy the long term effects of water intrusion into the home and throughout the common elements creating an environment conducive to the spread of harmful algae, spores and mold"; and "failing to provide a habitable home for the Muchnicks and maintain the home in a manner conducive to healthy living."

Goihman moved for summary judgment on the negligence claim because: (1) he was acting in the scope of his employment with Fortune International Realty, and thus, was not a proper party; and (2) Goihman owed no duty to the Muchnicks. Not knowing from the trial court's unelaborated order on what basis it granted summary judgment, we will address both summary judgment arguments.

Proper Party

Goihman argued that he was not liable for negligence, and not a proper party, because he was acting in the scope of his employment, and not in his individual capacity, in his dealings with the Muchnicks. But just because Goihman was acting in the scope of his employment when he rented the apartment, promised to fix it, and managed the repairs, doesn't mean that he was shielded from personal liability under all circumstances. "[O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. All that needs to be alleged is that the agent or officer personally participated in the tort, even if the complained of action was because of and entirely within the scope of his or her employment." Vesta Const. & Design, L.L.C. v. Lotspeich & Assocs., Inc., 974 So.2d 1176, 1180 (Fla. 5th DCA 2008) (Lawson, J.) (citations and quotations omitted).

Here, the summary judgment evidence showed that Goihman personally participated in the negligence. Mr. Muchnick testified in his deposition that Goihman promised the problems in the apartment would be taken care of before the Muchnicks moved in. Mr. Muchnick testified that after his family moved into the apartment, and there were continued problems, Goihman again promised to fix them. Mr. Muchnick testified that Goihman made some arrangements to fix the mold and water intrusion issues, but the issues were not resolved. This precludes summary judgment on whether Goihman was the proper party.

Duty

Goihman contends that because he was not the owner or landlord of the apartment, he owed no duty of reasonable care to the Muchnicks. But once Goihman made the promise to fix the problems in the apartment, and managed the repairs, he had a duty through the undertaker's doctrine to exercise reasonable care in making the repairs.

The Florida Supreme Court has described the "undertaker's doctrine" this way: "Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service-i.e., the 'undertaker'-thereby assumes a duty to act carefully and to not put others at an undue risk of harm." Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003). "The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result." Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 388 n.3 (Fla. 2015).

Goihman had a duty of reasonable care to the Muchnicks when he voluntarily undertook to fix the problems with the apartment. In Mr. Muchnick's deposition, he testified that "[Goihman] promised that he would take care of the issues while we were living there" and that he "made it very clear that since [ ] [they] lived in the building together that if there were any issues, to let him know, and he would be on top of it." Mr. Muchnick testified that Goihman was the "go-to guy" for purposes of addressing issues with the apartment both before and after his family moved in. According to Muchnick, Goihman repeatedly told him that he would take care of the repairs and yet Goihman never resolved the issues. By undertaking the responsibility for the repairs throughout the time the Muchnicks lived in the apartment, Goihman "assume[d] a specific, legally recognized duty to act with reasonable care." Pascual v. Fla. Power & Light Co., 911 So.2d 152, 154 (Fla. 3d DCA 2005).

Mootness

Goihman finally argues that the case is moot because the Muchnicks agreed to a final judgment against the codefendant for $82,000, and filed a satisfaction as to the codefendant. According to Goihman, because the claims and damages against him are the same, the satisfaction also released him from liability.

Goihman assumes one important fact: that the settlement amount covered the entire amount of the Muchnicks' damages. There is nothing in the record to indicate that the $82,000 paid by the codefendant covered all of their repair costs, the replacement costs of a new apartment, moving expenses, and medical bills for their children, among other expenses. Mid-litigation monetary settlements are often less than the total amount of damages that the plaintiff was claiming. Each side gives up something when they settle, including some of the plaintiff's potential monetary damages award.

The final judgment against the codefendant appears to be that kind of settlement. It provided that the $82,000 is for "partial" rent reimbursement and out-of-pocket expenses. The final judgment did not say it was in full satisfaction of the Muchnicks' damages, and it didn't mention the other expenses the family had as a result of Goihman's alleged negligence.

Ultimately, we don't know at this point of the litigation what the Muchnicks total damages will be. Damages were not an issue in Goihman's summary judgment motion. Without evidence of the amount of the Muchnicks' damages, we cannot say that the settlement with the codefendant extinguished or mooted the claim against Goihman.

Conclusion

We, therefore, affirm the summary judgment in favor of Goihman on the Muchnicks' fraud in the inducement claim, and reverse on the negligence claim. We remand for further proceedings on the negligence claim only.

Affirmed in part, reversed in part, and remanded for further proceedings.

      In addition to his proper party and duty arguments, Goihman says we must affirm because there is no transcript of the summary judgment hearing in the appellate record. We rejected the same contention in Seal Products v. Mansfield, 705 So.2d 973 (Fla. 3d DCA 1998), explaining:
      Where the appeal is from a summary judgment, the appellant must bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on the motion for summary judgment consists of the legal argument of counsel, not the taking of evidence. Consequently, it is not necessary to procure a transcript of the summary judgment hearing, although it is permissible and often helpful to do so.
      Id. at 975 (citation omitted). Here, as in Mansfield, we have Goihman's motion for summary judgment, the Muchnicks' response, and the evidence they relied on. While a transcript would have been helpful, it is not necessary for our de novo review of whether there's a genuine issue of material fact on the Muchnicks' negligence claim.


author: SCALES, J.

text:
    Dennis GILMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-13
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
    ON MOTION FOR REHEARING
   SCALES, J.

Upon consideration of the State's motion for rehearing, we grant rehearing, withdraw our previous opinion and substitute the following in its place.

Dennis Gilman appeals an order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Because Gilman did not affirmatively demonstrate entitlement to relief on the face of the record, we affirm. Gomez v. State, 137 So.3d 1037, 1038 (Fla. 3d DCA 2014).

On March 28, 2012, in case number F11-5978, Gilman pled guilty to one count of attempted sexual battery on a child less than twelve by an adult and one count of armed kidnapping of a child under thirteen years of age with a sexual battery. Gilman committed the offenses on April 4, 1989. Pursuant to the parties' Probation Plea Agreement, in exchange for his plea, Gilman agreed to be sentenced to thirty years in prison with all credit for time served, followed by ten years of reporting probation. Gilman also agreed to be sentenced as a habitual felony offender pursuant to section 775.084 of the Florida Statutes.

The trial court accepted Gilman's plea and sentenced him pursuant to the Probation Plea Agreement. The trial court designated Gilman a habitual felony offender under section 775.084 by relying upon Gilman's prior felony convictions for burglary of a structure (case number F78-17842) and grand theft (case number F79-9766), and upon case number F87-38796, wherein Gilman entered a plea of nolo contendere to cocaine possession.

On August 24, 2016, Gilman filed the instant rule 3.800(a) motion, claiming that he was improperly designated a habitual felony offender. Specifically, Gilman argued that case number F87-38796 could not be used as a predicate for habitualization under section 775.084 because: (i) he had been placed on probation with adjudication of guilt withheld in case number F87-38796; and (ii) he was no longer on probation in case number F87-38796 when, on April 4, 1989, he committed the offenses charged in case number F11-5978. The State responded to Gilman's motion, claiming that Gilman had been convicted of cocaine possession in case number F87-38976.

Because there is a discrepancy in the record as to whether Gilman had been convicted, or adjudication of guilt had been withheld, in case number F87-38796, and because a transcript of the sentencing hearing in case number F87-38796 had not been provided below, the trial court denied Gilman's motion without prejudice because Gilman had failed to demonstrate entitlement to relief on the face of the record. Finding no error, we affirm. , See Gomez, 137 So.3d at 1038 ("Although such a claim is cognizable under rule 3.800(a) if the sentencing error may be resolved as a matter of law by merely examining the face of the record, the defendant has not provided us with a record to review.... Because the defendant has failed to attach a transcript of the sentencing hearing or other irrefutable evidence to support his claim, his motion was legally insufficient, and it was therefore properly denied by the trial court.") (citation omitted).

Affirmed.

      Gilman was properly designated a habitual felony offender if, in case number F87-38796, either: (i) Gilman was convicted of cocaine possession; or (ii) Gilman was placed on probation without an adjudication of guilt for cocaine possession, and Gilman was still on probation in that case when, on April 4, 1989, he committed the offenses charged in case number F11-5978. This is because the applicable version of the habitual felony offender statute provides, in pertinent part:
      (1) As used in this act:
      (a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has previously been convicted of two or more felonies in this state;
      2. The felony for which the defendant is to be sentenced was committed within 5 years of the conviction of the last prior felony or other qualified offense of which he was convicted.... ;
      3. The defendant has not received any pardon for any felony or other qualified offense that is necessary for the operation of this section; and
      4. A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
      ....
      (2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.
      § 775.084(1)(a), (2), Fla. Stat. (1988).

      We affirm without further discussion of the second claim raised by Gilman.

      Our affirmance is without prejudice to Gilman filing a proper post-conviction motion below seeking any relief to which he may demonstrate entitlement. At the Public Defender's request, we direct the trial court to appoint the counsel who represented Gilman in the instant appeal to represent Gilman in the preparation of any such motion.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Idalys R. TORRES, Appellee.
    No. 3D16-1088
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Lapin & Leichtling, LLP, and Benjamin B. Carter, for appellant.
    Dennis A. Donet, P.A., and Dennis A. Donet, for appellee.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Deutsche Bank National Trust Company appeals from a final judgment dismissing its foreclosure action against Idalys Torres. The trial court determined that, because the complaint was filed more than five years after the alleged initial default date, the action was barred by the applicable five-year statute of limitations. See § 95.11(2)(c), Fla. Stat. (2014). Finding this conclusion contrary to the current law, we reverse.

Deutsche Bank filed the subject complaint in August 2014, and alleged an initial default date of May 1, 2008. However, the complaint also alleges that the borrower defaulted "by failing to pay the payment due 5/01/2008 and all other subsequent payments." (Emphasis added.)

At the time the trial court entered its final judgment of dismissal in March 2016, the case law in this area was arguably in a state of flux, but that is no longer the situation. Shortly after the final judgment was entered in this case, the Florida Supreme Court issued its opinion in Bartram v. U.S. Bank, N.A., 211 So.3d 1009, 1019 (Fla. 2016) (holding that "with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage"). See also Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938, 945 (Fla. 3d DCA 2016) (en banc) (holding that, even if the alleged initial default date was more than five years before the complaint was filed, the action was not barred by the statute of limitations where "the bank alleged the failure to pay the October 1, 2006 installment payment 'and all subsequent payments' ").

While Deutsche Bank may be barred from seeking certain defaulted payments under the note (those falling outside the five-year statute of limitations), it may still seek to foreclose and to collect on all defaulted payments not otherwise barred by the statute of limitations. We have followed the principles established in Bartram and Beauvais in several decisions indistinguishable in all material respects from the instant case. See Wells Fargo Bank, N.A. v. Rendon, No. 3D17-408, 245 So.3d 917, 2018 WL 1832582 (Fla. 3d DCA April 18, 2018) ; Nationstar Mortg., LLC v. Silva, 43 Fla. L. Weekly D548, 239 So.3d 782, 2018 WL 1177360 (Fla. 3d DCA March 7, 2018) ; Bank of New York Mellon v. Anton, 230 So.3d 502 (Fla. 3d DCA 2017) ; Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825 (Fla. 3d DCA 2016).

We reverse the final judgment of dismissal and remand for further proceedings consistent with this opinion.

      Generally, an appellate court must apply decisional law as it exists at the time of the appeal. See, e.g., Lowe v. Price, 437 So.2d 142, 144 (Fla. 1983) (holding: "Decisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since time of trial."); Bank of New York Mellon Corp. v. Anton, 230 So.3d 502, 503 n.1 (Fla. 3d DCA 2017).


text:
    Kathryn ELLISON and James Ellison, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D16-2723
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Ice Appellate, and Thomas Erskine Ice (Lake Worth), for appellants.
    Albertelli Law, and Brandon S. Vesely (Tampa), for appellee.
    Before SUAREZ, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See U.S. Bank Nat'l Ass'n v. Clarke, 192 So.3d 620, 622 (Fla. 4th DCA 2016) (quoting Ortiz v. PNC Bank, Nat'l Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016) ) ("Where a copy of a note is attached to a complaint and the plaintiff later files with the court the original note in the same condition as the copy attached to the complaint, 'the combination of such evidence is sufficient to establish that the [plaintiff] had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.' "); Deutsche Bank Nat'l Tr. Co. v. de Brito, 235 So.3d 972, 975 (Fla. 3d DCA 2017) ("The foundation for admission of a business record may be established by a records custodian or other qualified witness, and that witness authenticating the records need not be the person who actually prepared the business records.").


text:
    GLOBAL HOOKAH DISTRIBUTORS, INC., Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 1D16-5200
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Gerald J. Donnini, II, Jospeh C. Moffa, and James F. McAuley of Moffa, Sutton, & Donnini, P.A., Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, and Elizabeth Teegen, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Global Hookah Distributors, Inc., appeals from a final order of the Florida Department of Business and Professional Regulation, which adopted an administrative law judge's recommended order addressing wholesale tax assessments on what are called "other tobacco products," or "OTP." The order denied relief on Global Hookah's challenge to the Department's policy statement concerning the use of a "best available information" process as applied to OTP, which is not challenged on appeal. Global Hookah, however, challenges its alternative claim, which is that the Department's inclusion of federal excise taxes, shipping costs, and other related items was an unpromulgated rule for which they are entitled to relief. The administrative law judge refused to consider this claim, effectively ruling against Global Hookah, despite the fact the claim had been successful in a parallel case before the same administrative law judge. See Fla. Dep't of Bus. & Prof'l Reg. v. Fla. Bee Distribution, Inc. , 205 So.3d 593 (Fla. 1st DCA 2016) (per curiam affirmance in favor of Florida Bee).

Global Hookah claims it has the right to assert a Florida Bee theory as well; it says that the refusal to hear its claim-because a stay had been entered in Florida Bee pending appeal-was improper. Under the circumstances presented, we agree that Global Hookah should have been allowed to have its similar claim adjudicated on the merits. The refusal to adjudicate Global Hookah's claim amounts to a denial of due process because it precludes Global Hookah from potentially prevailing on a valid theory of liability upon which a similarly-situated litigant (Florida Bee) prevailed. To the extent that Global Hookah can show injury arising from the application of an agency policy to its operations, enforced via an invalid agency rule, it should be entitled to do so. We therefore reverse and remand with directions that Global Hookah's claim based on that in Florida Bee be reinstated.

REVERSED and REMANDED .

Lewis, Makar, and Osterhaus, JJ., concur.


text:
    Dexter KEMP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0523
    District Court of Appeal of Florida, Third District.
    Opinion filed May 2, 2018
    Ana M. Davide, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS, and LINDSEY, JJ.
   PER CURIAM.

We affirm the trial court's order summarily denying Appellant's petition for writ of error coram nobis. The trial court properly treated the petition as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which has supplanted the need for the writ of error coram nobis. See Wood v. State, 750 So.2d 592, 594-95 (Fla. 1999). Accordingly, Appellant's postconviction motion is untimely pursuant to Rule 3.850(b) as it was filed more than nine years after his guilty plea and sentence were entered on August 15, 2008. See Medina v. State, 919 So.2d 566, 568 (Fla. 3d DCA 2006) (quoting Wood, 750 So.2d at 594 ) ("[A] petition for writ of error coram nobis must satisfy the two-year limitation of rule 3.850."). Moreover, Appellant's claim that his counsel was ineffective in failing to advise him that a guilty plea could be used against him in the future is misplaced. See Major v. State, 790 So.2d 550 (Fla. 3d DCA 2001), approved, 814 So.2d 424, 431 (Fla. 2002) ("[W]e hold that neither the trial court nor counsel has a duty to advise a defendant that the defendant's plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future.").

Affirmed.


text:
    Elisia D. PREUDHOMME, Former Wife, Appellant, v. Kenneth PREUDHOMME, Former Husband, Appellee.
    No. 1D17-1615
    District Court of Appeal of Florida, First District.
    May 3, 2018
    Stephen A. Pitre of Clark Partington, Pensacola, for Appellant.
    Jill W. Warren, Pensacola, for Appellee.
   B.L. Thomas, C.J.

Appellant raises two issues challenging the lower court's timesharing determination in the final order of dissolution of marriage. We reject Appellant's argument that the trial court erred in its custody determination under section 61.13, Florida Statutes, because the court's findings were supported by competent, substantial evidence. See Miller v. Miller , 842 So.2d 168, 169 (Fla. 1st DCA 2003) (noting that a trial court has broad discretion in child custody matters, and the appellate court must affirm if competent, substantial evidence supports the court's findings, even if there is conflicting evidence). But we agree with Appellant's argument that the lower court engaged in a prohibited prospective-based analysis when it set a timesharing plan with respect to the parties' child.

Appellant lives in Pensacola, and Appellee lives in Mobile, Alabama. While the dissolution was pending, the parties met halfway between the two cities on a weekly basis to allow each party to have custody of the child. Thus, the child attended two preschools, one in each city.

At the final hearing, Appellant requested that the court award her majority timesharing, with alternating weekends and holidays for Appellee and weekly rotating timesharing during the summer. Appellee requested that the court order the parties to continue the weekly rotating timesharing, until the child entered kindergarten approximately twenty months later, and then award majority timesharing to him during the school year with Appellant to receive alternating weekends, holidays, and the majority of the summer. The court adopted Appellee's plan in full.

Appellant argues that the court engaged in a prohibited prospective-based analysis when it made its timesharing plan. She relies on Arthur v. Arthur , 54 So.3d 454 (Fla. 2010), and J.P. v. D.P. , 196 So.3d 1274 (Fla. 1st DCA 2016), for the proposition that a court is prohibited from determining what the best interests of a child will be in the future. In Arthur , the supreme court addressed whether a court could determine if a future relocation would be in a child's best interests. 54 So.3d at 458-59. The court concluded that a petition for relocation must be determined based on the present best interests of the child, because "a trial court is not equipped with a 'crystal ball' that enables it to prophetically determine" whether any changes would occur in the parties' lives in the interim. Id. at 459 ; see also Horn v. Horn , 225 So.3d 292, 292 (Fla. 1st DCA 2017) (reversing a determination that future relocation would be in the child's best interests).

In J.P. , this Court disapproved the use of a prospective-based analysis, where the trial court found that it was in the first-grade child's best interest to be with the father during the school year, but then ruled that the child should move over 300 miles away five years later to live with the mother. 196 So.3d at 1275-78. This Court reversed for several reasons, including the reason that under Arthur , the trial court lacked the ability to determine whether it would be in the child's best interest to relocate five years in the future. Id. at 1277.

Here, in ruling that it was in the best interest of the child for the parties to continue to rotate weekly timesharing until the child entered kindergarten, when it would be in the child's best interest to begin majority timesharing with Appellee, the court engaged in the type of prospective-based analysis prohibited under Arthur and J.P. On remand, the trial court must delete the portion of its order addressing timesharing and custody matters related to future events.

AFFIRMED in part, REVERSED in part, and REMANDED .

Wetherell and Winsor, JJ., concur.


text:
    David F. PETRANO, an individual, Mary Katherine Day-Petrano, an individual, Unknown Tenant I, Unknown Tenant II, and Other Unknown Persons or Unknown Spouses claiming by, through and under any of the above named defendants, Petitioners, v. Darlene P. BAYLOR, Respondent.
    No. 1D18-1360
    District Court of Appeal of Florida, First District.
    May 7, 2018 Rehearing Denied June 29, 2018
    David F. Petrano and Mary Katherine Day-Petrano, pro se, Petitioners.
    No appearance for Respondent.
   Per Curiam.

The petition for writ of prohibition and writ of mandamus is denied on the merits.

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    FLORIDA KALANIT 770, LLC, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D16-0842
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Anya Freeman, P.A. and Anya Freeman, for appellant.
    McGuireWoods LLP, Sara F. Holladay-Tobias, Emily Y. Rottmann and Brittney Lauren Bell (Jacksonville), for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Bank of N.Y. Mellon Corp. v. Anton, 230 So.3d 502, 504 (Fla. 3d DCA 2017) ("BONYM's allegation in the second complaint-that Anton defaulted by failing to make payment on August 1, 2008 'and all subsequent payments'-satisfies Bartram's [v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016) ] pleading requirement that the second 'foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.' Given the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (i.e., August 1, 2008), is of no moment: by alleging that Anton failed to make the payment due on August 1, 2008 'and all subsequent payments,' the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014."), review denied, No. SC17-2072, 2018 WL 1136567 (Fla. Mar. 2, 2018).


text:
    Justis MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-560
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and LUCK, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

After a revocation of probation hearing, the trial court found that the state did not prove that defendant Justis Martin violated his probation by making no efforts to complete his high school equivalency diploma (GED). The written order of revocation of probation, however, included this as one of the grounds for revoking Martin's probation. We agree with the state's confession of error and remand for correction of the order of revocation of probation. See Jones v. State, 686 So.2d 701 (Fla. 3d DCA 1996) ("The trial court's written order revoking appellant's probation does not conform to the court's oral pronouncements. At the revocation hearing the court orally dismissed the allegations of paragraphs two, four, and five of the affidavit of probation violation. The written revocation order, however, finds appellant guilty of the probation violations alleged in those paragraphs. We remand this case so that the order may be corrected to conform to the trial court's oral pronouncements."). Martin need not be present for this purpose. Id. ("Appellant need not be present for this purpose."). We affirm the order of revocation of probation in all other respects.

Reversed and remanded with instructions.


text:
    Ernst ANICET, Petitioner, v. Julie JONES, etc., et al., Respondents.
    No. 3D18-0047
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Ernst Anicet, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for respondent The State of Florida.
    Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
   PER CURIAM.

Denied. See Barnard v. State, 949 So.2d 250, 251 (Fla. 3d DCA 2007) ("Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850." (citing Baker v. State, 878 So.2d 1236, 1245-46 (Fla. 2004) ) ); see also Hernandez v. State, 990 So.2d 1116, 1118 (Fla. 3d DCA 2008) ("However, even if we were to address the petition on the merits, it would be denied as the ground raised is refuted by the record.").


text:
    Maritza MASTRAPA, Appellant, v. 8221 STAR LLC, Appellee.
    No. 3D17-2591
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Maritza Mastrapa, in proper person.
    Bill Ullman and Rosenny Burgos, for appellee.
    Before FERNANDEZ, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Fla. R. App. P. 9.315(a) ("After service of the initial brief ... the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.").


text:
    A.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0514
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 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 LAGOA, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Lopez v. State, 225 So.3d 330, 333 (Fla. 3d DCA 2017) (affirming convictions for possession of cocaine, tampering with evidence, and resisting an officer without violence, and denial of suppression motion, because "a police officer, consistent with the reasonableness requirement of the Fourth Amendment, may order a passenger to exit a lawfully stopped vehicle and may detain the passenger at the scene during the completion of the traffic stop"), review denied, No. SC17-1563, 2018 WL 1037697 (Fla. Feb. 23, 2018).


text:
    Andres MONTOYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1685
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER and LUCK, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

Based on the state's confession of error, with which we agree, we reverse special condition twelve - "You will have no contact (direct or indirect) with the ... victim's family during the period of probation" - in the community control and probation portion of defendant Andres Montoya's sentence, and remand for the entry of a corrected order of probation that does not contain this condition. See Scott v. State, 109 So.3d 866 (Fla. 3d DCA 2013) ("The State properly conceded that the trial court erred in imposing a written sentence that conflicts with the oral pronouncement. The written sentence designated the defendant both a prison releasee reoffender and a habitual felony offender. The oral pronouncement, however, reflects that the trial court designated the defendant a prison releasee reoffender only. The oral pronouncement of sentence prevails over a subsequent and conflicting written sentencing order."). Montoya's sentence is affirmed in all other respects.

Reversed and remanded with instructions.


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Curtis MAXWELL, Appellee.
    No. 3D17-1597
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Pamela Jo Bondi, Attorney General and David Llanes, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender and Howard K. Blumberg, Special Assistant Public Defender, and Yamila Lorenzo and Shannon McGee, Certified Legal Interns, for appellee.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   SALTER, J.

The State of Florida appeals a circuit court order (the "Suppression Order") granting a motion to suppress physical evidence on the basis of an unlawful pat-down search of the appellee, Curtis Maxwell. We reverse.

I. The Record-Detention, Pat-Down Search, and Arrest

On December 26, 2016, at around midnight, officers Lee Clair and Kraig Bryan of the Miami Beach Police Department responded, within twenty to thirty seconds, to a dispatch call regarding a large fight at the TGI Fridays at 500 Ocean Drive. The dispatch call had advised "that it was a very large fight involving many people with tables and chairs being thrown."

Upon arrival to the scene, the officers were flagged down by a TGI Fridays waiter, who pointed to a nearby group of people who were walking northbound on Ocean Drive. The waiter said that the group was involved in the fight, but did not tell the officers whether the group was involved as perpetrators or victims. The group consisted of eight to ten people, including Mr. Maxwell, at least three young men, and four or five young women. There were no other persons between the waiter and the group.

Responding to the tip, officers Clair and Bryan approached the group on their Department all-terrain vehicles (ATVs). Both officers were in uniform. Neither had activated their Department-issued body cameras at that time.

Officer Clair testified Mr. Maxwell and a woman accompanying him made eye contact with the officers and one of the women in the group grabbed Maxwell in an attempt to run northbound on Ocean Drive. Officer Bryan, however, testified only that the persons in the group were walking fast when the officers approached; he told them to stop, and they did.

Officer Clair testified that his attention was quickly drawn to Mr. Maxwell, because he was one of the two persons in the group "trying to move quick at the time just prior to being stopped," and after that because he "began to act nervous. He was looking around, avoiding eye contact, and then he began to touch his jacket pocket." Officer Clair said that Mr. Maxwell was dressed in a "big heavy jacket" and he touched it with his right hand and then he would touch the same side with his left hand, "which is across his body which seemed out of context."

After observing Mr. Maxwell repeat these touches to his jacket, Officer Clair suspected that Mr. Maxwell was carrying a weapon and "had him walk over so I could conduct a pat down for weapons." Officer Clair testified that his suspicions were raised because Mr. Maxwell's repeated touches to his jacket were "not a natural behavior that people do," and because he had been trained "when people carry a firearm they subconsciously touch the firearm whether it be with their arm or their hands."

Officer Clair asked Mr. Maxwell to step over to his ATV, "and he hesitated he kept his arms at his side" when asked three times to put his arms on the officer's ATV so his hands would be on it. Officer Clair finally placed Mr. Maxwell's hands on the ATV and conducted the pat search. When he touched the right side of Mr. Maxwell's jacket, "I immediately felt the firearm."

Officer Bryan then came over to remove the firearm from Mr. Maxwell's jacket. During a further pat down of Mr. Maxwell, a bag of marijuana was recovered. Mr. Maxwell was arrested and ultimately charged with carrying a concealed firearm and unlawful possession of cannabis.

II. The Suppression Order

The defense filed a motion to suppress the firearm and marijuana. The trial court heard the testimony of the two officers, heard argument of counsel, and considered legal memoranda on the issues.

In the detailed ten-page Suppression Order, the trial court granted the motion to suppress as to both the firearm and the marijuana, though acknowledging (appropriately) that Mr. Maxwell's detention "was in conformity with the requirements of law," based on information reported to the officers that a "melee had broken out" at TGI Fridays. The trial court found "a sufficient basis for the officers to detain the group and make brief, reasonable inquiries," and "nothing objectionable about the detention itself."

The trial court's assessment of the pat-down search, and its application of law to the historical facts, however, led it to conclude that the officers lacked an "articulable reasonable suspicion" or "probable cause" to support the pat-down search in conformance with applicable law. The trial court's rejection of case law provided by the State appears to have been grounded on several considerations:

• Neither Mr. Maxwell nor any of the members of his group "bore any indications of recent combat," and the initial report by the waiter did not mention any use of firearms or shots fired. The officers did not see "bruises, flowing blood, or fresh wounds."
• Although Mr. Maxwell did not testify, his repeated movements of both hands to his jacket may have reflected "his own apprehension," because "he was a very young black man confronted by two armed and uniformed police officers. His hand movements might have been nothing more than a nervous habit. He might have been feeling for his wallet, to assure himself that if the police demanded identification he could produce it."
• The trial court's concern on this point was reiterated several paragraphs later in the Suppression Order as a basis for distinguishing the present case from one cited by the State: "[N]ervousness on the part of a citizen confronted by uniformed and armed police officers is commonplace. Mr. Maxwell is a young black man. Reports of recent events in Ferguson, Missouri; or in Baltimore, Maryland; may weigh heavily on his mind and, rightly or wrongly, color his perception of police-citizen encounters."
• The trial court concluded that the pat-down search "was not justified by a suspicion based on more than speculation that Mr. Maxwell was armed and presently dangerous." (Emphasis provided).

The trial court granted the motion to suppress the firearm and a bag of marijuana, and this appeal followed.

III. Analysis

A. Standard of Review

We review the Suppression Order to determine whether competent substantial evidence supports the trial court's findings of historical fact. State v. Roman, 983 So.2d 731, 734 (Fla. 3d DCA 2008). We review that evidence and any inferences from it in favor of supporting the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla. 2002).

But we must "independently review mixed questions of law and fact that ultimately determine constitutional issues." Schoenwetter v. State, 931 So.2d 857, 866 (Fla. 2006). The trial court's application of law to the facts in finding reasonable suspicion is subject to de novo review. State v. Cruse, 121 So.3d 91, 95 (Fla. 3d DCA 2013) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ).

B. "Reasonable, Articulable Suspicion" and "Probable Cause"

Under the Fourth Amendment of the U.S. Constitution and Florida law, an officer may conduct an investigatory stop or temporary stop when there is a reasonable, articulable suspicion that an individual has committed, is committing, or is about to commit a crime. Mackey v. State, 124 So.3d 176, 183 (Fla. 2013) ; see also § 901.151(2), Fla. Stat. (2017) (the "Florida Stop and Frisk Law").

In addition to a lawful detention, a police officer may conduct a "pat-down of the suspect if the officer has a reasonable belief that the suspect 'is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person....' " D.H. v. State, 121 So.3d 76, 80 (Fla. 3d DCA 2013) (quoting § 901.151(5) ). More specifically, Florida's "Stop and Frisk Law" provides:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

§ 901.151(5).

In the context of a stop and frisk, the term "probable cause" "has been construed to mean 'articulable suspicion,' 'reasonable belief,' or 'founded suspicion.' " Cole v. State, 190 So.3d 185, 188 (Fla. 3d DCA 2016). In the present case, Mr. Maxwell does not contest whether the stop was lawful, and as noted, the trial court found that Mr. Maxwell's detention was "in conformity with the requirements of law."

It is also worth noting that the pat-down or "frisk" was limited at its outset to Mr. Maxwell's jacket, where Officer Clair's training and observations of Mr. Maxwell's unusual hand movements had focused the officer's attention. The search, in short, was "only to the extent necessary to disclose, and for the purpose of disclosing" the presence of a dangerous weapon, as authorized by section 901.151(5).

The sole question, then, is whether the trial court followed applicable law in evaluating whether Officer Clair had probable cause to believe that Mr. Maxwell was armed with a dangerous weapon and offered a threat to the safety of the officer or any other person. We conclude that the trial court failed to follow the statute and applicable precedent for the three reasons which follow.

1. Credible Report of Violent Crime

The probable cause supporting the detention of the group outside TGI Fridays was based on the reliability of an identifiable, on-scene TGI Fridays waiter who told the nearby and promptly-dispatched officers that "a very large fight involving many people with tables and chairs being thrown" had just occurred. "[I]t would be foolhardy for an officer to encounter an individual suspected of a serious and violent felony without taking the most basic safeguard for his personal safety." Russell v. State, 415 So.2d 797, 798 (Fla. 3d DCA 1982).

In this case, the trial court discounted such a concern because there was no evidence "that shots were fired, or that the fight involved the use of firearms." But no such evidence is required-a report of robbery, for example, with no evidence of shots fired or a firearm, was a substantial part of the evidence sustaining a stop and frisk in State v. Hunter, 615 So.2d 727 (Fla. 5th DCA 1993).

2. Nervousness and Unusual Hand Movements

Officer Clair's testimony was uncontradicted on two points regarding Mr. Maxwell's behavior and repeated, unusual hand movements-with one hand and then the other-touching the pocket of his "big heavy jacket." First, Officer Clair described the movements and testified that Mr. Maxwell's nervousness and failure to make eye contact immediately drew the officer's attention to Mr. Maxwell rather than the other members of the group. Second, he described his law enforcement training: "when people carry a firearm they subconsciously touch the firearm whether it be with their arm or their hands." "A pat-down for weapons is justified when a police officer, in light of his experience , has a reasonable suspicion that the detainee is armed and dangerous." Enich v. State, 838 So.2d 1216, 1218 (Fla. 3d DCA 2003) (emphasis provided).

Nervous gestures by a detained individual are one of the indicia described in pat-down cases as a basis for heightened officer concern that the individual may be concealing a weapon. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion."); Brown v. State, 863 So.2d 459, 460 (Fla. 5th DCA 2004) (passenger "fidgeting as though he were trying to conceal something"); Johnson v. State, 785 So.2d 1224, 1227 (Fla. 4th DCA 2001) (defendant "acting very nervous" and "looking around constantly").

It is not for the trial court to speculate regarding Mr. Maxwell's apprehension and the possible reasons for his hand movements when there is no such evidence in the record (for example, any evidence regarding Mr. Maxwell's perception of recent events in Ferguson Missouri, or Baltimore, Maryland).

3. The Warren Case Is Distinguishable

The Massachusetts appellate opinion noted by the trial court in the present case, Commonwealth v. Warren, 475 Mass. 530, 58 N.E.3d 333 (2016), addressed a completely different record, a detention which was challenged (as well as the subsequent pat-down search), "mere conjecture" regarding the perpetrator's direction and path of flight, and lack of detail regarding the persons who were stopped. We further observe that in Warren the appellate court relied in part on "the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston." Id. at 342. No such report or evidence appears in the case before us.

IV. Conclusion

Upon the application of applicable federal and Florida cases to the record evidence regarding the stop and limited pat-down search in this case, the motion to suppress should have been denied. We reverse and vacate the Suppression Order and instruct the trial court to enter an order denying the motion.

Reversed and remanded with directions.

      The "Motion to Suppress Physical Evidence and Notice of Hearing" filed on behalf of Mr. Maxwell focused on the detention without a warrant, not on the probable cause for the subsequent pat-down search on grounds of officer safety. The motion claimed that the officers' suspicion directed to the group that included Mr. Maxwell "does not provide a lawful basis to seize each individual in that group." The trial court properly rejected that argument and found that the investigative stop was lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Mr. Maxwell's objection to the pat-down search as a separate issue was raised orally during a hearing on the motion.

      This quotation from the Suppression Order was followed by a footnote to "Commonwealth v. Warren, 475 Mass. 530, 539, 58 N.E.3d 333 (2016)," and the trial court's observation with approval that "the Supreme Judicial Court of Massachusetts, taking cognizance of just such recent events, concluded that for a young man of color to run from police-particularly in a 'high crime area' and in the dark of night-does not contribute to the calculus of articulable reasonable suspicion and may simply be evidence of a prudent sense of self-preservation." The opinion in Warren is addressed further below.


author: TAYLOR, J.

text:
    Stacy BELLOWS, Appellant, v. Sean BELLOWS, Appellee.
    No. 4D16-3745
    District Court of Appeal of Florida, Fourth District.
    May 9, 2018
    Ralph T. White, West Palm Beach, for appellant.
    John T. Christiansen, Jr. of the Law Offices of John T. Christiansen, P.L., West Palm Beach, for appellee.
   TAYLOR, J.

The wife, Stacy Bellows, appeals an Amended Final Judgment of Dissolution of Marriage. We affirm in part and reverse in part.

First, we reverse the durational alimony award of $1,000 per month for five years because the trial court failed to make findings of fact as to all of the statutory factors under section 61.08(2), Florida Statutes. See , e.g, Kelley v. Kelley , 177 So.3d 292, 294 (Fla. 4th DCA 2015) ; Julia v. Julia , 146 So.3d 516, 522 (Fla. 4th DCA 2014) ; Ondrejack v. Ondrejack , 839 So.2d 867, 870 (Fla. 4th DCA 2003). The appropriate remedy is to remand for the trial court to make the required factual findings "as to all of the statutory factors based upon the evidence in the record." Ondrejack , 839 So.2d at 871.

Second, we reverse the trial court's distribution of the valueless Charles Schwab # 9592 account to the wife. We have repeatedly held that it is error to include in the equitable distribution scheme assets that have been depleted during the dissolution proceedings unless the trial court makes a specific finding that the dissipation resulted from intentional misconduct. See , e.g. , Zvida v. Zvida , 103 So.3d 1052, 1055 (Fla. 4th DCA 2013) ; Weymouth v. Weymouth , 87 So.3d 30, 36 (Fla. 4th DCA 2012) ; Tillman v. Altunay , 44 So.3d 1201, 1203 (Fla. 4th DCA 2010). Where a spouse depletes an asset for attorney's fees or reasonable living expenses and there is no finding of misconduct, the asset should not be assigned to that spouse as part of the equitable distribution plan. Levy v. Levy , 900 So.2d 737, 746 (Fla. 2d DCA 2005).

Here, the trial court erred in distributing the valueless Charles Schwab # 9592 account to the wife. As the case law makes clear, depleting an asset to pay attorney's fees in the divorce case is insufficient, without a finding of misconduct, to warrant assigning the depleted asset as part of the equitable distribution plan. In this case, the account at issue had a marital value of $7,145 as of the date of the petition for dissolution, but the wife used this asset on attorney's fees and living expenses during the pendency of the case. There was no evidence or finding of misconduct. Accordingly, we reverse on this issue and direct the trial court to omit this asset from the equitable distribution plan and adjust the distribution accordingly.

We affirm on all other issues raised. Most notably, we conclude that the trial court properly rejected the wife's commingling argument, and therefore affirm the trial court's finding that the entire value of the husband's $1.8 million brokerage account was the husband's nonmarital property.

Finally, we note that although the equitable distribution schedule and parenting plan were attached to the original final judgment, they were not attached to the Amended Final Judgment. Because these exhibits were incorporated by reference in the Amended Final Judgment, our review was not hampered. Nonetheless, the trial court should attach the equitable distribution schedule and parenting plan to any subsequent dissolution judgment entered on remand.

Affirmed in part, Reversed in part, and Remanded.

May and Kuntz, JJ., concur.

      However, if a spouse depletes a marital asset to pay for attorney's fees in the dissolution case, it follows that a trial court may take this factor into account in determining whether the spouse has a need for an award attorney's fees and, if so, the amount of the spouse's need for attorney's fees.


text:
    R.C., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1976
    District Court of Appeal of Florida, Second District.
    Opinion filed May 16, 2018
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We reverse the adjudication of delinquency for two counts of possession of drug paraphernalia and remand for entry of a judgment of dismissal. The evidence presented at the adjudicatory hearing failed to establish that the residue on the alleged paraphernalia was a controlled substance. Therefore, the State failed to establish a prima facie case of use or possession with intent to use paraphernalia pursuant to section 893.147(1), Florida Statutes (2016), and the motion for judgment of dismissal should have been granted. See M.M. v. State, 152 So.3d 121, 123-24 (Fla. 3d DCA 2014).

Reversed and remanded.

VILLANTI, BLACK, and SALARIO, JJ., Concur.


text:
    Daniel GARNICKI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1998
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Daniel Garnicki, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So.2d 517 (Fla. 2007) and Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005).


text:
    Terrod PERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-799
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Stephen J. Weinbaum, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. G.E.G. v. State, 417 So.2d 975 (Fla. 1982) (holding a defendant convicted of possession of a controlled substance cannot complain on appeal that the state failed to introduce the substance into evidence unless the defendant preserved this claim by objecting at trial to its non-introduction); McHolder v. State, 917 So.2d 1043, 1045 (Fla. 5th DCA 2006) (stating "McHolder argues that his due process rights were violated by his conviction of possession of cocaine with intent to sell because the State never introduced the cocaine evidence at trial. Because this argument was not made to the trial court, it was not preserved for appellate review"). See also Trinidad v. State, 615 So.2d 806 (Fla. 3d DCA 1993) ; Priestly v. State, 450 So.2d 289 (Fla. 4th DCA 1984).


text:
    Daniel MEANA, Appellant, v. U.S. BANK, N.A., as trustee, etc., Appellee.
    No. 3D17-2191
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Dennis A. Donet, P.A., and Dennis A. Donet, for appellant.
    Pearson Bitman LLP, and Allison Morat (Maitland), for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
    CONFESSION OF ERROR
   PER CURIAM.

Based upon Appellee's concession of error solely as to the issue that a hearing was required before entry of final judgment, we dismiss the appeal and remand with instructions to vacate the final judgment of foreclosure rendered on September 28, 2017 and to conduct a hearing consistent with our holding in Chiu v. Wells Fargo Bank, N.A., 43 Florida Law Weekly D672, 242 So.3d 461, 2018 WL 1516829 (Fla. 3d DCA March 28, 2018) (finding that the trial court committed fundamental error in entering final summary judgment before conducting a hearing on Wells Fargo's motion for summary judgment).


text:
    U.S. BANK, N.A., etc., Appellant, v. LEASE CAPITAL, LLC, Appellee.
    No. 3D17-369
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Weitz & Schwartz, P.A. and Sarah T. Weitz (Fort Lauderdale), for appellant.
    Law Offices of Evan M. Rosen, P.A. and Evan M. Rosen (Fort Lauderdale), for appellee.
    Before SUAREZ, SCALES and LUCK, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

In March 2016, the trial court-correctly, based on our precedent at the time, Deutsche Bank Tr. Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961, at *1 (Fla. 3d DCA Dec. 17, 2014), opinion withdrawn and superseded on reh'g en banc, 188 So.3d 938 (Fla. 3d DCA 2016) -granted summary judgment in favor of Lease Capital, LLC on its statute of limitations affirmative defense. Now that our en banc court decided Beauvais, and the Florida Supreme Court ruled as it did in Bartram v. U.S. Bank Nat'l Ass'n, 211 So.3d 1009 (Fla. 2016), Lease Capital commendably confesses that the trial court's summary judgment must be reversed and the case remanded for further proceedings. We agree, and do so now.

Reversed and remanded for further proceedings.


text:
    K.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2697
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018.
    K.T., a juvenile, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See Fla. Stat. § 810.07(2) (2016) ; Irvin v. State, 590 So.2d 9 (Fla. 3d DCA 1991).


text:
    Colby Allen SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3478
    District Court of Appeal of Florida, First District.
    May 18, 2018 Rehearing Denied June 25, 2018
    Rocco Joseph Carbone, III, of Rocco Joseph Carbone, III, PLLC, St. Augustine, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Steven Edward Woods, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Roberts, and Wetherell, JJ., concur.


text:
    Juan F. PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1273
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 29, 2018 Rehearing Denied June 8, 2018
    Juan F. Perez, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Martinez v. State , 211 So.3d 989 (Fla. 2017).

COHEN, C.J., BERGER and LAMBERT, JJ., concur.


text:
    Marv A. HUBBARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-555
    District Court of Appeal of Florida, Third District.
    Opinion filed May 23, 2018.
    Marv A. Hubbard, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Defendant filed this appeal of the trial court's denial of his petition for writ of Habeas Corpus. As the trial court correctly noted, the petition is actually a motion to vacate judgment, which was denied by the trial court. We treat the petition the same and affirm the trial court's denial.

Affirmed.


text:
    Micah LAMB, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0198
    District Court of Appeal of Florida, First District.
    May 23, 2018 Rehearing Denied June 25, 2018
    Micah Lamb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied. See Fla. R. App. P. 9.141(c)(5)(A).

Wetherell, Ray, and Osterhaus, JJ., concur.