text:
    Harvey Lee DAVIS and Eric McCabe, Appellants, v. Kenneth I. BAILYNSON, Stephen M. Cohen, and Law Offices of Stephen M. Cohen, P.A., Appellees.
    No. 4D18-1040
    District Court of Appeal of Florida, Fourth District.
    [January 30, 2019]
    William H. Pincus and Melanie L. Campbell of Pincus & Currier LLP, West Palm Beach, for appellants.
    Stephen M. Cohen of Law Offices of Stephen M. Cohen, P.A., Palm Beach Gardens, for appellees.
   Conner, J.

Appellants, Harvey Lee Davis and Eric McCabe, appeal the trial court's order denying their motion for attorney's fees pursuant to section 57.105(1), Florida Statutes (2017), seeking fees against Appellees, Stephen M. Cohen and the Law Offices of Stephen M. Cohen, P.A. (collectively, "Cohen"). In this appeal, we address whether: (1) a section 57.105(1) fee motion can be brought solely against an attorney; and (2) a section 57.105(1) fee motion can properly seek an award where a single cause of action asserts more than one factual scenario for liability, and the fee motion attacks only one of those factual scenarios as unsupported by law. We reverse, concluding the trial court erred in denying fees based on both issues.

Background

Appellants collectively own four units in a residential condominium complex. Appellants brought an injunction action against the condominium association and its board of directors. Appellee Kenneth I. Bailynson ("Bailynson") was a board member who owned thirty-eight units in the condominium. In the injunction action, Appellants sought an injunction to: (1) prohibit the association from spending, using, lending, committing or otherwise disposing of the proceeds of a $1.5 million loan that the association took out from a company managed and indirectly owned by Bailynson; (2) prohibit the association from making any material alterations or substantial additions to the property or common area of the condominium without proper approval; and (3) invalidate a special assessment and roll monthly assessments back to the 2014 level. After a hearing, a temporary injunction was entered which "prohibited the [association] from imposing any special assessments and from increasing the 'regular monthly assessments to the unit owners until further Court order or agreement of the parties.' "

Subsequently, Bailynson filed suit appeal against Appellants, for breach of fiduciary duty, which is the subject of this appeal. Suit was filed and Bailynson was represented by Cohen. Cohen alleged that Appellants brought the injunction suit as a derivative action on behalf of the condominium association, and as the derivative plaintiffs, they "are representatives of the Association ... and must act in the Association's best interest." Paragraph 18 of the complaint contains the allegations which frame the issues in this appeal:

18. Despite having a fiduciary duty to the Association and its members, the Defendants [ (Appellants) ] have, individually and collectively, taken action that has directly harmed the Association and its members. Specifically, the Defendants [ (Appellants) ] have each:
a. failed and/or refused to pay their regular maintenance assessments in the amounts established prior to any increases suspended by the Court in Case No. 502015CA002803XXXXMB; and
b. failed and/or refused to allow for a modification of the Temporary Injunction obtained by the Defendants [ (Appellants) ] in Case No. 502015CA002803XXXXMB to allow the Association to increase assessments in an amount sufficient to pay for regular operating expenses of the Association, including but not limited to the payment of the water bills due to the City of West Palm Beach.

Cohen also alleged that Appellants' conduct in bringing the injunction action resulted in the association's inability to pay its water bill, that the water was subsequently turned off to the condominium, and that the City of West Palm Beach posted notices on the unit doors advising the occupants to vacate due to unsafe conditions.

Appellants sent a safe harbor notice to Cohen, attaching a motion for attorney's fees, specifically citing to sections 57.105(1)(b) and (3)(c), Florida Statutes, seeking attorney's fees from Cohen, but not Bailynson. Appellants asserted in the fee motion that the breach of fiduciary duty action "is untenable as a matter of law," and therefore, they sought sanctions against Cohen. They specifically argued that Bailynson's claim in Paragraph 18(b), as alleged by Cohen, wholly lacked merit because: (1) there can be no tortious liability for pursuing one's legal rights; and (2) actions taken within judicial proceedings are protected by the litigation privilege. Notably, the fee motion made no allegations regarding Paragraph 18(a).

Cohen moved to strike or dismiss the fee motion, arguing that: (1) he did not receive a copy of the fee motion until the day it was filed, in violation of the requisite safe harbor period; (2) it was improper for Appellants to seek attorney's fees solely from him and not also Bailynson; and (3) the "complaint was not without legal support."

A hearing was held on the fee motion. The parties made the same arguments asserted in the fee motion and the responsive motion to strike or dismiss, however, notably, Cohen conceded that the claim in Paragraph 18(b) was improper. Cohen then further argued that because "[t]here is no attack that my theory that their failure to pay their maintenance fees was a breach of fiduciary duty [asserted in Paragraph 18(a) ]," Bailynson had "a colorful claim ... [and] sanctions should not be imposed." At the end of the hearing, the trial court indicated it would take the issue under advisement, but then asked Cohen, "where did you get any authority that one of the owners of a condo has the right to sue another owner of a condo because they haven't paid their fees?" Cohen responded that the suit was filed against Appellants not as individuals, but as the "representatives" of the association, based on their status as derivative plaintiffs in the injunction action.

The trial court entered an order denying Appellants' motion for attorney's fees citing two reasons: (1) simply citing to Sexton v. Ferguson , 79 So.3d 51 (Fla. 4th DCA 2011) ; and (2) it did "not find that the action was so frivolous or devoid of merit as to be completely apprehensible," citing to Trust Mortgage, LLC v. Ferlanti , 193 So.3d 997 (Fla. 4th DCA 2016). Thereafter, Appellants gave notice of appeal.

Appellate Analysis

"In determining whether to award attorney's fees under section 57.105, Florida Statutes (2001), the trial court applies an abuse of discretion standard." Yakavonis v. Dolphin Petroleum, Inc. , 934 So.2d 615, 618 (Fla. 4th DCA 2006). "The trial court's finding must be based upon substantial competent evidence presented to the court at the hearing on attorney's fees or otherwise before the court and in the trial court record." Id. (quoting Weatherby Assocs., Inc. v. Ballack , 783 So.2d 1138, 1141 (Fla. 4th DCA 2001) ). However, "[t]o the extent the trial court's determination on a motion for attorney's fees is based on an issue of law, our standard of review is de novo." Paul v. Avrahami , 216 So.3d 647, 649 (Fla. 4th DCA 2017).

Appellants challenge the trial court's reasons for denying their fee motion after it determined that: (1) a 57.105(1) fee motion cannot be brought solely against an attorney; and (2) the breach of fiduciary duty count was not devoid of merit. We address the trial court's reasons separately.

57.105 Fee Motion Solely Against Attorney

The trial court's first reason for denying the fee motion simply cited our opinion in Sexton . We presume that the trial court read our prior opinion to hold that categorically a 57.105(1) fee motion cannot be brought solely against an attorney and not the client, where the attorney is not a "party."

In Sexton , the appellants, pursuant to a settlement agreement, withdrew their fee motion against the client, but argued that the fee motion still applied to the client's prior attorney. Sexton , 79 So.3d at 53. The lower tribunal denied the fee motion after determining that withdrawing the fee motion against the client meant the appellants no longer had a claim against the attorney. Id. at 54. On appeal, we said that "[t]he plain language of section 57.105(1) is clear and unambiguous; it does not authorize attorney's fees to be awarded solely against a party's attorney." Id. We also distinguished our prior opinion in Avemco Insurance Co. v. Tobin , 711 So.2d 128 (Fla. 4th DCA 1998), where we held that a lawyer can be held liable for attorney's fees under section 57.105 even if the lawyer's client is not also held liable for such fees. Sexton , 79 So.3d at 54. We reasoned that

[b]ecause the lawyers in Avemco sought proceeds in a court registry for compensation allegedly due to them from the client, the lawyers "[h]aving so made themselves parties ... came under the statutory term 'party' in section 57.105(b) by their own conduct and were thus properly liable for fees even though their nominal client in the litigation was not liable for such fees."

Id. at 55 (alteration in original) (quoting Avemco , 711 So.2d at 130-31 ). However, in Sexton , we concluded that the attorney did not "[make] himself a party in this proceeding or act[ ] in a manner that would have raised his status to a 'party' as did the lawyer in Avemco ." Id. at 55.

Sexton is inapposite for resolution of the fee motion in this case for two reasons. First, Sexton relies largely on waiver analysis. Second, and more importantly, in 2010, section 57.105 was amended, adding, among other things, section 57.105(3)(c). See 2010 Fla. Sess. Law Serv. Ch. 2010-129. Therefore, because subsection (3)(c) was not part of the applicable statute in Sexton , the holding there does not apply to the instant case, where the statute has now been amended to include the subsection.

The applicable version of section 57.105 provides:

(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
....
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
....
(c) Under paragraph (1)(b) against a represented party .

§ 57.105(1) and (3), Fla. Stat. (2017) (emphases added). Appellants argue that because their motion was filed under subsection (1)(b) asserting the action was not supported by law , the applicable version of the statute makes clear that sanctions cannot be awarded against a represented party for such a claim, pursuant to subsection (3)(c) of the statute. We agree with the argument.

"A 'statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts' and is not to be read in isolation, but in the context of the entire section." Charles v. Sn. Baptist Hosp. of Fla., Inc. , 209 So.3d 1199, 1207 (Fla. 2017) (quoting Jones v. ETS of New Orleans, Inc. , 793 So.2d 912, 914-15 (Fla. 2001) ). Although section 57.105(1) states that the award of fees must be awarded "in equal amount by the losing party and the losing party's attorney," this is limited by section 57.105(3)(c). Section 57.105(3)(c) clearly states that attorney's fees cannot be levied upon a party , where the basis for attorney's fees pursuant to section 57.105 is subsection (1)(b) and the claim or defense is not supported by the application of then-existing law to the material facts.

We, as well as our sister courts, have consistently held that under 57.105(1)(b), only a party's attorney may be ordered to pay attorney's fees under section 57.105(3)(c). See Paul , 216 So.3d at 651 n.3 (stating that, "Appellee's counsel, and not Appellee, must pay the attorney's fees," citing to section 57.105(3)(c) ); Wells v. Halmac Dev., Inc. , 189 So.3d 1015, 1021 (Fla. 3d DCA 2016) ("The fee award shall be taxed solely against counsel representing Castro at that time."); Santiago v. Sunset Cove Invs., Inc. , 198 So.3d 658, 661 (Fla. 2d DCA 2015) ("[B]ecause we base the award of appellate attorneys' fees on section 57.105(1)(b), the fees may only be awarded as against [appellant]'s counsel."); Robbins v. Rayonier Forest Res., L.P. , 102 So.3d 737, 738 (Fla. 1st DCA 2012) ("Attorneys [sic] fees awarded under [ section 57.105(1)(b) ] may be assessed against only the losing partys [sic] attorney."); Fla. Houndsmen Ass'n, Inc. v. State , 134 So.3d 999, 1001 (Fla. 1st DCA 2012) ("Because our decision is based on the lack of legal, rather than factual, merit, only Appellants' attorneys shall be responsible for paying this award."); Waddington v. Baptist Med. Ctr. of Beaches, Inc. , 78 So.3d 114, 117 (Fla. 1st DCA 2012) ("Finding that this appeal satisfies section 57.105(1)(b), we award Appellee its reasonable appellate attorney's fees to be paid in full amount by Appellant's counsel.").

Cohen argues Sexton does apply to the post-2010 version of section 57.105, because we cited to the "2010" version of section 57.105 in the opinion. However, this argument is incorrect. As Appellants correctly argue, since the statute was amended in 2010, there were two separate versions of the statute during that year. The amended, and current version, went into effect on July 1, 2010. See § 11.2421, Fla. Stat. (2018). As Appellants point out, our Sexton opinion indicates that the fee motion in that case was filed prior to July 1, 2010. See Sexton , 79 So.3d at 53. Therefore, the version of the statute prior to the 2010 amendment would have been the applicable statute in Sexton .

We conclude that the trial court erred in denying the fee motion based on the fact that it sought attorney's fees solely against the law firm and not the client, where the fee claim is limited by section 57.105(3)(c). Thus, we reverse the trial court on this issue.

Whether the Action Was Supported by Law

The trial court's second reason for denying the fee motion was that it found "that the action was [not] so frivolous or so devoid of merit as to be completely apprehensible," citing to Ferlanti , 193 So.3d at 1000. In attacking the trial court's second reason, Appellants' arguments encompass three sub-issues: (1) whether the trial court relied upon an incorrect standard; (2) whether the trial court could award fees for one factual scenario of liability asserted in a count asserting two separate factual scenarios for liability; and (3) whether Paragraph 18(b) was supported by law. We address the three sub-issues sequentially.

Wrong Standard

Appellants argue that the trial court relied upon the wrong standard because the order denying the fee motion stated that the trial court did "not find that the action was so frivolous or so devoid of merit as to be completely apprehensible." More specifically, Appellants argue that "completely apprehensible" is not the applicable standard.

Section 57.105(1) provides for attorney's fees for the prevailing party on a claim or defense in a civil proceeding if the court determines that the losing party or the losing party's attorney knew or should have known that the claim or defense was not supported by the material facts or the application of the law.

Blinn v. Fla. Power & Light Co. , 189 So.3d 227, 229 (Fla. 2d DCA 2016). As the First District discussed in Wendy's of N.E. Florida, Inc. v. Vandergriff , 865 So.2d 520 (Fla. 1st DCA 2003) :

[The] statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings.

Id. at 523 (internal citations omitted).

In denying fees in this case, the trial court cited to Ferlanti , which relied upon a correct statement of the standard. Although we agree "completely apprehensible" is not articulated in section 57.105(1) or the case law, we are satisfied that the trial court simply misspoke in its finding that Bailynson's breach of fiduciary action against Appellants was not "so devoid of merit ... as to be completely untenable ." Id. at 1000 (emphasis added) (quoting Wapnick v. Veterans Council of Indian River Cty., Inc. , 123 So.3d 622, 624 (Fla. 4th DCA 2013) ). Therefore, we conclude the trial court relied upon the correct standard.

Fees for One Factual Scenario of Liability Where the Action Alleges Two Factual Scenarios

A unique aspect of application of section 57.105(1) to this case is that Bailynson brought only one count alleging breach of fiduciary duty, but asserted two different factual scenarios to support the count: Paragraph 18(a), alleging a failure to pay maintenance assessments, and Paragraph 18(b), alleging a failure or refusal to allow a modification of the temporary injunction. Because it was not referred to in the safe harbor notice, Paragraph 18(a) could not be a basis for awarding fees. Thus, this appeal raises the issue of whether 57.105(1) fees can be awarded for "part" of an action. Cohen argues that there was one claim asserting separate bases, and because one part of the claim was not asserted in the safe harbor notice, fees cannot be awarded for the other part of the claim. Appellants on the other hand, argue that after section 57.105(1) was amended in 1999, the new "version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law , but instead allows recovery of fees for any claims or defenses that are unsupported." Yakavonis , 934 So.2d at 619 (emphases added) (quoting Vandergriff , 865 So.2d at 523 ).

We agree with Appellants that if an action asserts a theory of liability using more than one, but separate, factual scenarios in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is not supported by law, the sanction must be ordered. Our conclusion is based on the change in the statute, and how courts have interpreted the language of the amended statute. Under the previous version of the statute, "[e]ven if a portion of the complaint is frivolous, an award of attorney's fees is not appropriate so long as the complaint alleges some justiciable issues." Langford v. Ferrera , 823 So.2d 795, 796 (Fla. 1st DCA 2001). However, "the revised statute expanded the number of circumstances in which fees should be awarded." Read v. Taylor , 832 So.2d 219, 222 (Fla. 4th DCA 2002) (emphasis added). "Unlike the prior version [of section 57.105 ], the current version of the statute does not apply only to an entire action, but now applies to any claim or defense ." Id. (emphasis added). "Because the statute refers to 'any claim or defense,' it does not require that the entire action be unsupported by material facts or the application of then-existing case law." Santiago , 198 So.3d at 661.

"The central purpose of section 57.105 is, and always has been, to deter meritless filings and thus streamline the administration and procedure of the courts." Mullins v. Kennelly , 847 So.2d 1151, 1154 (Fla. 5th DCA 2003). Thus, the post-1999 version of section 57.105 has expanded the circumstances where fees should be awarded and the purpose is to deter meritless filings . Our supreme court has also stated that section 57.105"creates an opportunity to avoid the sanction of attorney's fees by creating a safe period for withdrawal or amendment of meritless allegations and claims." Bionetics Corp. v. Kenniasty , 69 So.3d 943, 948 (Fla. 2011) (emphasis added) (quoting Walker v. Cash Register Auto Ins. of Leon Cty., Inc. , 946 So.2d 66, 71 (Fla. 1st DCA 2006) ). Therefore, it appears that our supreme court has viewed even individual allegations as part of what section 57.105(1) seeks to deter. By "individual allegations," we are referring to a series of allegations framing a theory of liability based on a factual scenario that is not supported by law.

Our view of the statute also makes sense practically. If it were the case that a party could assert multiple factual scenarios of liability pled as part of "one count," and such pleading practice could shield the party from section 57.105(1) fees because at least one scenario was supported in law and fact, then it would elevate form over substance with creative pleading. Additionally, whereas here the factual scenarios in Paragraph 18(a) and Paragraph 18(b) are distinct, they could have been asserted in two separate counts. To define a "claim" under section 57.105(1) as an entire count, would mean that Cohen in this case would avoid fees because the complaint contained only one count, as opposed to bringing two separate counts for Paragraph 18(a) and Paragraph 18(b). We conclude that such an interpretation would defeat the purpose of section 57.105(1).

Paragraph 18(b) as Grounds for Fee Sanction

Paragraph 18(b) essentially alleged that Appellants would not agree to modify a court order. Appellants argue that Paragraph 18(b) was not supported by then-existing law because there can be no tortious liability for assertion of a legal right, due to the litigation privilege.

Appellants are correct that there is no tortious liability for assertion of a legal right because "[a] privilege exists as a matter of law to engage in reckless or even outrageous conduct if there is sufficient evidence that shows the defendant did no more than assert legal rights in a legally permissible way."

Rivers v. Dillards Dep't. Store, Inc. , 698 So.2d 1328, 1332 (Fla. 1st DCA 1997) (quoting Canto v. J.B. Ivey & Co. , 595 So.2d 1025, 1028 (Fla. 1st DCA 1992) ). "The litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin." Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole , 950 So.2d 380, 384 (Fla. 2007). "[A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co. , 639 So.2d 606, 608 (Fla. 1994). Because the decision of whether to agree to a modification of the injunction in this case was clearly related to the injunction action, we agree that the litigation privilege applied to Appellants' refusal to agree to a modification of the injunction, and Cohen should have known it applied.

Even more telling here, however, is that Cohen conceded that there was no basis in law for his allegations in Paragraph 18(b). At the fee hearing, he stated that "the case law is clear as to that point," referring to the propriety of the allegation that Appellants "failed and refused to allow for [a] modification." Cohen also later admitted that "the case law is clear as to the one area of law," again referring to the lack of a legal basis to support Paragraph 18(b). The trial court then asked why Cohen "thr[e]w that in there," and Cohen said he "didn't recognize it at the time," and cited case law for the standard for section 57.105 fees. Cohen continued to then argue: (1) that there was no attack on the allegations in Paragraph 18(a), and therefore, there was "nothing presented ... that that part of the claim was without merit"; and (2) there had been no action in the case between the safe harbor letter and dismissal of the case.

We conclude that the trial court was persuaded by Cohen's argument that because Paragraph 18(a) was not attacked for sanctions and Paragraph 18(b) was part of the same count, the count for breach of fiduciary duty was not "so devoid of merit ... as to be completely untenable," and it was appropriate to deny fees on that basis, despite Cohen's concession at the fee hearing that there was no legal basis for asserting liability under Paragraph 18(b). However, Cohen should have known the litigation privilege applied to Paragraph 18(b) and his concession establishes there was no competent substantial evidence supporting the denial of 57.105(1) fees.

Conclusion

Although we are satisfied the trial court used the correct standard in applying section 57.105(1), we conclude the trial court erred by ignoring the application of section 57.105(3)(c) to section 57.105(1)(b). We hold that under proper circumstances, section 57.105(3)(c) permits the filing of a section 57.105(1)(b) fee motion solely against an attorney, and not the client. We further hold that under the current version of section 57.105(1), if an action asserts separate factual scenarios for liability and one of the scenarios meets the criteria for a 57.105(1) fee sanction because it is not supported by law, the sanction must be ordered. Because the record establishes that Appellants are entitled to a fee award and the trial court erred in denying their fee motion, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

Taylor and Ciklin, JJ., concur.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. James M. HARVEY, Appellee.
    No. 4D15-4724
    District Court of Appeal of Florida, Fourth District.
    [January 30, 2019]
    B. Richard Young, Adam A. Duke, Lindsay M. Mark, Courtney F. Smith, and Cody S. Pflueger of Young, Bill, Boles, Palmer & Duke, P.A., Miami, for appellant.
    Philip M. Burlington, Bard D. Rockenbach and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Kimberly L. Boldt, Jeffrey D. Mueller, and Mario R. Giommoni of Boldt Law Firm, P.A., Boca Raton, and Fred Cunningham, Sean Domnick, and Greg Yaffa of Domnick Cunningham & Whalen, Palm Beach Gardens, for appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Levine, J.

This matter is before us on remand from the Florida Supreme Court following its decision in Harvey v. GEICO General Insurance Co. , 259 So.3d 1 (Fla. 2018), which quashed GEICO General Insurance Co. v. Harvey , 208 So.3d 810, 812 (Fla. 4th DCA 2017). In accordance with the supreme court's mandate, we remand and direct the trial court to reinstate the jury verdict and final judgment.

Affirmed and remanded with instructions.

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


author: Per Curiam.

text:
    Jose BERROCALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-476
    District Court of Appeal of Florida, Fourth District.
    [January 30, 2019]
    Brion Ross and Karl A. Forrest of Brion Ross Law Group, LLC, Fort Lauderdale and Michael A. Catalano of Michael A. Catalano, P.A., Miami, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Jose Berrocales appeals the trial court's denial of his post-sentencing motion to withdraw his plea without holding an evidentiary hearing. Appellant contended, among other things, that his plea was involuntary because neither the trial court nor his counsel informed him that the plea would result in a mandatory driver's license revocation. Because the record does not conclusively refute the allegation that he was not informed of the mandatory license revocation before his plea, we reverse and remand for an evidentiary hearing.

In 2015, appellant rear-ended another person's car, and that person became paralyzed. The state charged appellant with alcohol-related driving offenses arising from the accident. During a change of plea colloquy, the trial court informed appellant that his driver's license may be suspended "for additional periods" if he was pleading to a drug offense. The court said nothing about any other type of revocation.

After appellant pled guilty, the prosecutor requested the court to permanently revoke appellant's license and noted that the statutory minimum revocation was for three years. The court sentenced appellant to sixty months in prison and to twelve months of consecutive probation, and it revoked his license for twenty years. Appellant later moved to withdraw his plea. He argued that neither his attorney nor the court informed him that a conviction of DUI involving serious bodily injury to another under section 316.193(3)(c)2., Florida Statutes (2015), required the court to revoke his driver's license for a minimum of three years under section 322.28(4)(a), Florida Statutes.

We review a trial court's denial of a motion to withdraw plea for an abuse of discretion. See Woodly v. State , 937 So.2d 193, 196 (Fla. 4th DCA 2006). "Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations." Id. When a defendant's motion is post-sentencing, he or she "must demonstrate a manifest injustice requiring correction in order to withdraw a plea." Griffin v. State , 114 So.3d 890, 897 (Fla. 2013).

Under Florida Rule of Criminal Procedure 3.172(c)(10) (2017), when a trial court is determining whether a defendant is voluntarily pleading guilty to an offense which requires an "automatic, mandatory driver license suspension or revocation ... to be imposed," the court must "provide the basis for the suspension or revocation of the defendant's driver license." The state relies on Bolware v. State , 995 So.2d 268, 272-73 (Fla. 2008), but that case does not control because it was decided prior to the amendment to rule 3.172(c) to add subsection (10). The amendment was added at the direction of the supreme court in Bolware because a license revocation "is such a serious consequence that a defendant should be informed of it." Id. at 276. As amended, rule 3.172(c)(10) requires a trial court to inform a defendant about a mandatory license suspension to ensure that the plea is voluntarily entered.

Although the prosecutor made reference after the plea colloquy to a mandatory license revocation, appellant might well argue that he was misled by the judge's reference to a drug offense and the advice, or lack of it, from his attorney. He might be able to prove that the revocation issue was crucial to his decision to enter a plea. These issues need to be fleshed out at an evidentiary hearing. We therefore, reverse and remand for an evidentiary hearing on appellant's motion to withdraw his plea. See State v. Aiden , 118 So.3d 264, 265-66 (Fla. 3d DCA 2013).

Gross, Levine and Forst, JJ., concur.


author: Gross, J.

text:
    Steven B. KATZ and Law Office of Steven B. Katz, P.A., a Florida Professional Corporation, Appellants, v. FRANK, WEINBERG & BLACK, P.L., a Florida Professional Limited Liability Company, and Anthony C. Vitale, P.A., a Florida Professional Corporation, Appellees.
    No. 4D18-1215
    District Court of Appeal of Florida, Fourth District.
    [January 30, 2019]
    Jeffrey C. Schneider, P.A. and Victor Petrescu of Levine Kellogg Lehman Schneider & Grossman LLP, Miami, and David C. Silver and Jason S. Miller of Silver Miller, Coral Springs, for appellants.
    Steven M. Katzman and Charles J. Bennardini of Katzman Wasserman Bennardini & Rubinstein, P.A., Boca Raton, for appellee Frank, Weinberg & Black, P.L.
   Gross, J.

This appeal concerns the claims of lawyers to a participation fee where none of them complied with the Rules Regulating the Florida Bar. After oral argument, and while this opinion was circulating in this court, the parties filed a stipulation of dismissal of appeal. By a separate order, we dismiss the appeal, but nonetheless issue this opinion because the situation here (1) is capable of repetition yet evading review and (2) is of great public importance.

"It is well settled that mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur." Holly v. Auld , 450 So.2d 217, 218, n.1 (Fla. 1984) . In addition, we elect to proceed "because the problem that the instant action presents is capable of repetition yet evading review." State v. Matthews , 891 So.2d 479, 484 (Fla. 2004) ; see also Caproc Third Ave., LLC v. Donisi Ins. Inc., 67 So.3d 312, 314 (Fla. 4th DCA 2011). The conduct here at issue-the failure to follow rules mandated by the Supreme Court for participation fees-typically occurs in the shadows and rarely emerges in the light of day.

Original Panel Opinion

We reverse the award of a participation fee to a law firm because the firm wholly failed to comply with Rule 4-1.5 of the Rules Regulating the Florida Bar.

At the summary judgment hearing below, the parties told the judge that there were no material issues of disputed fact. From that record, the following story emerges.

Steven Katz was employed as an associate at the law firm of Frank, Weinberg & Black ("the law firm") from August 2007 until November 2013. During his employment, he was contacted by Tammie Taylor, a friend of his wife. She asked Katz to represent her in a potential qui tam/whistleblower action against her former employer concerning false claims for Medicare services.

The managing partner of the law firm told Katz that the firm could not take on the case because it lacked expertise in the area. An attorney who shared space with the law firm directed Katz to attorney Anthony Vitale.

Katz and Taylor met with Vitale. Later, Taylor entered into a retainer agreement with Vitale. This retainer agreement makes no reference to Katz or the law firm. Neither Katz nor the law firm signed any retainer agreement with Taylor. On June 2, 2008, Vitale e-mailed Katz and stated "your participation fee is 25% of all attorney's fees, including percentage of attorney portion of the settlement award realized" in the Taylor case.

Vitale filed the Taylor qui tam action in June, 2008. Katz was terminated from the law firm in November 2013, without a written separation agreement. According to Katz, he reached an oral agreement with the law firm that he could take with him all clients he originated that were not homeowners or condominium association clients. The law firm had a different view of the separation.

After leaving the law firm, Katz called Taylor and Vitale about once a year concerning the Taylor case. He continued this limited communication with Taylor and Vitale after he formed his own firm.

In October 2016 the Taylor case settled. On November 15, 2016, Vitale contacted Katz to arrange for transfer of the participation fee. The installment settlement statement for the first settlement disbursal listed Katz's firm as the sole recipient of payment. Vitale asked Katz to provide an invoice from the Katz P.A. for the $500,200.14 participation fee. Vitale also asked Katz to obtain a release from the law firm confirming that it waived any interest in the participation fee.

Katz asked the law firm to execute Vitale's requested release. The law firm refused and sent Vitale a letter in November, 2016 claiming entitlement to the participation fee.

Vitale filed an interpleader complaint. The law firm filed an answer and cross-claimed against Katz seeking entitlement to the fees. Katz cross-claimed against the firm asserting his entitlement to the fees.

Both Katz and the law firm moved for summary judgment. The trial judge denied Katz's motion and granted the law firm's motion. The court reasoned that Katz was an associate of the law firm when he referred the Taylor case to Vitale, and that the law firm was entitled to the participation fees under an agency theory.

On appeal, Katz and the law firm argue contract and agency law, sprinkling in some procedural points, as if this were a garden variety commercial dispute. It is not. Katz and the law firm seek to enforce a contract that is void because it violates the Rules Regulating the Florida Bar.

At oral argument, counsel for the law firm asserted that we should not concern ourselves with the legality of the underlying fee contract because neither party to this appeal had raised it. Just as the parties cannot by stipulation confer subject matter jurisdiction on a court, the parties to this appeal, by agreeing not to challenge the validity of a void contract violative of public policy, cannot magically elevate that contract into one that a court will enforce. When a contract is void as against public policy, "no alleged right founded upon the contract or agreement can be enforced in a court of justice." Local No. 234 v. Henley & Beckwith, Inc. , 66 So.2d 818, 821 (Fla. 1953). "Where the parties to such an agreement are in pari delicto the law will leave them where it finds them; relief will be refused in the courts because of the public interest." Id. ; see Harris v. Gonzalez , 789 So.2d 405, 409 (Fla. 4th DCA 2001). "The cases are legion that a contract against public policy may not be made the basis of any action either in law or equity." Local No. 234 , 66 So.2d at 823.

Rule Regulating the Florida Bar 4-1.5(f)(2) sets forth the requirements imposed upon every lawyer who seeks to share in a contingent fee:

Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer's compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.

In Chandris v. Yanakakis , 668 So.2d 180 (Fla. 1995), the Supreme Court was clear about the impact of the rule it had authorized, writing that the rule "commands that a contingent fee agreement meet the following requirements:"

(1) the agreement must be reduced to a written contract; (2) each participating attorney or law firm shall sign the contract or agree in writing to be bound by the terms of the contract with the client; (3) each attorney shall agree to assume the same legal responsibility to the client for the performance of the services in question; and (4) the client shall be furnished with a copy of the signed contract.

Id. at 185 (quoting In re Florida Bar-Amendment to the Code of Professional Responsibility (Contingent Fees) , 349 So.2d 630, 632 (Fla. 1977) ).

Chandris also leaves no doubt that a lawyer's failure to comply with Rule 4-1.5(f)(2) precludes the lawyer from enforcing a contingent fee agreement, including a participation agreement, because such a failure violates public policy:

Florida contingent fee agreements entered into by attorneys subject to our regulations but which do not comply with the regulations are ... void as against the public interest .
* * *
[W]e hold that a contingent fee contract entered into by a member of The Florida Bar must comply with the rule governing contingent fees in order to be enforceable. We have determined that the requirements for contingent fee contracts are necessary to protect the public interest. Thus, a contract that fails to adhere to these requirements is against public policy and is not enforceable by the member of The Florida Bar who has violated the rule. Moreover, enforcing contingent fee agreements that are not in compliance with the rule would be unfair as well as constitute a competitive disadvantage to members of The Florida Bar who do comply with the rule.

Chandris , 668 So.2d at 181, 181-86 (Italics supplied, internal footnote omitted).

Neither Katz nor the law firm entered into a written contract called for by the rule. Neither may enforce the 25% contingent participation fee agreement contained in Vitale's email. The agreement is void. Period. Id. ; see also The Florida Bar v. Carson , 737 So.2d 1069, 1072 (Fla. 1999) ; Noris v. Silver , 701 So.2d 1238, 1240 (Fla. 3d DCA 1997).

We reject Katz's argument that the settlement statement Taylor signed in 2016, upon receiving a distribution from Vitale, cures the earlier failure to comply with the ethical rules. The rules contemplate that the client's consent be secured at the outset of the case, not when the case is 99.9% over. For example, the requirement that "each attorney shall agree to assume the same legal responsibility to the client for the performance of the services in question" would be empty if a referring attorney were to do so a nanosecond before receiving a participation fee.

The only possibility of recovery Chandris leaves open to the law firm and Katz is on the basis of quantum meruit . Chandris , 668 So.2d at 186, n.4. We reverse the final judgment adopting the summary judgment rulings. On remand, the parties to this appeal shall be given the opportunity to present evidence addressed to the quantum meruit issue. From this record, it appears that such recoveries will be negligible, leaving open the issue as to who is entitled to the bulk of the $500,200.14 participation fee. None of the attorneys involved-Vitale, Katz, and the law firm-are without sin. "Interpleader is a long-recognized equitable remedy governed by equitable principles used to determine the rights of parties each of whom claim the right to distribution of the same fund[.]"

Zimmerman v. Cade Enterprises, Inc. , 34 So.3d 199, 201 (Fla. 1st DCA 2010). We leave the resolution of this thorny issue to another day.

Levine, J., concurs.

Forst, J., concurs specially with opinion.

Forst, J., concurring specially.

I fully concur in the panel's opinion. In this case the parties are contesting which one is entitled to a "participation fee" of half-a-million dollars. In one corner is Appellant Katz, who brought the client, Tammy Taylor, to the attention of his firm and then to the attention of attorney Vitale, and thereafter spent a few hours each year checking in on the progress of Ms. Taylor's qui tam action. In the other corner stands Appellee, Katz's former employer, the law firm FWB. Its "participation" was through its employment of Katz at the onset of Ms. Taylor's legal journey. Both parties claim full entitlement to the prize purse-twenty-five percent of the attorney's fees paid to attorney Vitale.

Rule 4-1.5(g) of the Rules Regulating the Florida Bar sets forth the restriction with respect to "a division of fee between lawyers who are not in the same firm." In pertinent part, the fee can be divided only if one of two scenarios exist. Fee division is acceptable if "(1) the division is in proportion to the services performed by each lawyer." That is not the case here. Attorney Vitale sent Katz an email in 2007 promising to share one-quarter of his attorney's fees; this promise was not conditioned on either Katz or his law firm performing twenty-five percent of the legal services on Ms. Taylor's claim. Cf. Joseph Saveri Law Firm, Inc. v. Michael E. Criden, P.A. , No. 14-CV-01740-EDL, 2015 WL1029364 (N.D. Cal. Mar. 9, 2015) (applying the Rules Regulating the Florida Bar to find a "referral agreement ... of 12.5% is per se a violation of Rule 4-1.5(G)(1) because it provides a fixed percentage of compensation," regardless of work performed).

Alternatively, fee sharing is permitted if, "(2) by written agreement with the client: (A) each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client; and (B) the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made." There is no such "written agreement with the client" in this case, other than an agreement prepared after Ms. Taylor's claim had been resolved. That agreement was reactive; the Rule requires a prospective ("to be available"; "will be made") agreement, prepared at the commencement of the engagement.

Appellant Katz accepts that the Rules Regulating the Florida Bar apply to the instant case and his reply brief acknowledges that the Rules state, absent several exceptions that Katz concedes are not applicable here, that "a lawyer may not give anything of value to a person for recommending the lawyer's services." R. Regulating Fla. Bar 4-7.17(b). In essence, Katz argues that FWB cannot share in the "participation fee" because it didn't "participate," but Katz himself is entitled to partake of the entire $500,000 because he and Vitale had agreed on this cut at the commencement of Vitale's engagement with Ms. Taylor and he had actually "participated." Putting aside the fact that Katz's argument overlooks the strict requirements of Rule 4-1.5(g), checking in once a year is hardly material participation.

In Patterson v. Law Office of Lauri J. Goldstein , 980 So.2d 1234 (Fla. 4th DCA 2008), we opined that "the doctrine that a contract offensive to public policy is void and unenforceable is based upon the principle that '[w]here the parties to such an agreement are in pari delicto the law will leave them where it finds them; relief will be refused in the courts because of public interest.' " Id. at 1237 (citations omitted).

This begs the question-what public interest is advanced by prohibiting the referring attorney and his firm from a referral fee, coming from the fee of the attorney to whom the case was referred, not the client (who has not asserted any claim to the contested funds)? I surmise that the public interest is to prevent attorneys referring clients to other attorneys based on the referral fee, rather than the client's best interests. That is particularly so when the client is not properly put on notice of any joint participation (as was the case here-no written agreement signed by the client) and the "participation" agreement is a sham, guaranteeing a set twenty-five percent of the attorney's fee to the referring attorney without regard for the extent of that attorney's actual participation in the case.

Compliance with Rule 4-1.5(g) prevents "participation fees" from becoming "kickbacks." As such, it operates similarly to Florida's Patient Self-Referral Act, section 456.053, Florida Statutes, which governs referral of a patient by a health care provider to another provider in which the referring provider has a financial interest. Such referrals are not totally prohibited, "as long as certain safeguards are present in the arrangement." § 456.053 (2), Fla. Stat.

In this case, both parties ask us to essentially take on the role of potted plants and disregard the safeguards set forth in the Rules Regulating the Florida Bar, since the client is not complaining. For the reasons set forth in the majority opinion and this brief concurrence, I join my colleagues in rejecting both parties' claims to a twenty-five percent participation fee.

      Holly v. Auld , 450 So.2d 217 (Fla. 1984) is applicable to the situation presented here. There, the plaintiff doctor sued another for defamation after the plaintiff was denied hospital staff privileges. The jury found for the defendant. The plaintiff appealed to this court which reversed, holding that certain discovery should have been allowed because it was not barred by a statutory privilege. The plaintiff petitioned the Supreme Court for review, but settled the case while the appeal was pending. The Supreme Court rejected the plaintiff's suggestion of mootness and decided the appeal, observing that "mootness does not destroy an appellate court's jurisdiction ... when the questions raised are of great public importance or are likely to recur." Id. at 218 n.1.

      In deposition, Vitale said that when he wrote "your participation fee" he was referring to Katz. Later, in an affidavit, he said that he was referring to Katz as an associate of the law firm.

      We reject the argument that this case falls outside of Rule 4-1.5(f)(4) & (g). Taylor's underlying suit was one involving fraudulent appropriation of federal funds, which involved "property damages" within the meaning of Rule 4-1.5(f)(4). Money is often characterized as "intangible personal property." See , e.g. , § 192.001(11)(b), Fla. Stat. (2017) ; Bush v. State ex rel. Dade County , 140 Fla. 277, 191 So. 515, 524 (1939).

      We distinguish Patterson v. Law Office of Lauri J. Goldstein , 980 So.2d 1234 (Fla. 4th DCA 2008). That case involved an agreement between an attorney and her paralegal to share fees, notwithstanding The Florida Bar Rules of Professional Conduct prohibiting fee-sharing with non-attorneys. Id. at 1237 (citing R. Regulating Fla. Bar 4-5.4(a)(4) ). We concluded that the agreement was enforceable by the paralegal, as she was not in pari delicto because she was not an attorney. Id.


text:
    CRANE CO., R.J. Reynolds Tobacco Co., and Hollingsworth & Vose Co., Appellants, v. Richard DELISLE and Aline Delisle, His Wife, Appellees.
    Nos. 4D13-4351 4D14-146
    District Court of Appeal of Florida, Fourth District.
    [February 6, 2019]
    Rebecca C. Kibbe of K & L Gates LLP, Miami, for appellant Crane Co.
    Elliot H. Scherker, Sabrina R. Gallo, Julissa Rodriguez, Brigid F. Cech Samole, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, for appellants R.J. Reynolds Tobacco Company and Hollingsworth & Vose Co.
    Gary M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort Lauderdale, and David A. Jagolinzer of The Ferraro Law Firm, Miami, for appellees.
    ON REMAND FROM THE SUPREME COURT
   Per Curiam.

In accordance with the mandate of the supreme court, this case is remanded to the trial court to reinstate the final judgment.

Warner, Ciklin, and Klingensmith, JJ., concur.


author: Gerber, C.J.

text:
    Dexter F. GEORGE, Appellant, v. Nathaniel GILBERT and Sujittar Singh, Appellees.
    No. 4D17-3485
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Dexter F. George of Law Office of Dexter F. George, Plantation, pro se.
    Ellen S. Morris of Elder Law Associates, Boca Raton, for appellees.
   Gerber, C.J.

The former counsel to a spouse, whose marriage to an incapacitated person was annulled, appeals from the circuit court's order directing the former counsel to pay 50% of the incapacitated person's attorney's fees incurred in obtaining the annulment. The spouse's former counsel primarily argues that he was not afforded due process, because after he had withdrawn from the case, he was not provided notice and an opportunity to be heard regarding the court's decision to impose attorney's fees against him. We agree with the former counsel's argument. Therefore, we reverse the order and remand for a new hearing providing due process.

Procedural History

The former attorney filed an answer and affirmative defenses on behalf of the spouse, whose marriage to an incapacitated person became the subject of an annulment petition. The former attorney then withdrew from representing the spouse, nineteen days before the trial on the petition.

At the trial on the petition, a new attorney represented the spouse. At the end of the trial, the circuit court not only granted the annulment, but also found that "the attorney" (unspecified) and the spouse should have to pay the incapacitated person's attorney's fees, because the spouse's opposition to the annulment was disingenuous:

[N]ot only am I going to grant this annulment, but I'm going to find that [the spouse] is going to have to pay all [the incapacitated person's] attorney's fees for these proceedings. And here's why: [The spouse] has engaged in a disingenuous argument by [having filed before the marriage] a petition to appoint an emergency temporary guardian [for the] incapacitated person.
And then there was an actual finding by the courts saying that he was an incapacitated person and he needed an emergency guardian appointed. Then [the spouse] absolutely disingenuously and probably illegally ran out and married him regardless of the fact that she asked for him to be declared incapacitated. And the courts said, yes, he is incapacitated and then she went out and married him. There's no way I'm not going to award attorney's fees in this case ... This is ... some of the most malicious and intentionally and wantonly reckless litigation I've ever seen. I'm granting the entitlement to attorney's fees.
[To the incapacitated person's counsel] Put together your billing statement. I'm going to award [attorney's fees] and we'll take a look at it because I'm awarding it as a sanction ... I'm going to consider awarding against both the attorney and [the spouse ] ...

(emphasis added).

Following the trial, the circuit court entered a written order granting the petition for annulment. Consistent with the circuit court's oral pronouncement, the written order also indicated that the circuit court would be directing the spouse and the spouse's "counsel" (unspecified) to pay the incapacitated person's attorney's fees:

[The spouse] has engaged in a disingenuous defense of these annulment proceedings and maliciously and wantonly reckless litigation as she (a) was the initial petitioner in [the incapacitated person's] mental health and guardianship proceedings alleging [he] was fully incapacitated; (b) petitioned to have an emergency temporary guardian appointed for [the incapacitated person]; (c) knew [he] was determined to be fully incapacitated by Court Order [before the marriage]; [and (d) ] disingenuously and illegally obtained a license to marry [the incapacitated person] and married [the incapacitated person].
It is therefore ORDERED AND ADJUDGED:
1. The Petition for Annulment of the marriage between [the incapacitated person] and [the spouse] is hereby GRANTED, and the marriage between [the incapacitated person] and [the spouse] ... is void ab initio.
2. Attorney's fees and costs are hereby awarded in favor of [the incapacitated person].
3. By separate Order following an additional hearing, the Court shall determine the amount(s) to be paid to [the incapacitated person] by [the spouse] and/or [the spouse's] counsel.

Significantly, the written order did not indicate that a copy of the order was furnished to the spouse's former counsel. Rather, the written order indicated that copies of the order were furnished to only the incapacitated person's counsel and the spouse's trial counsel. The written order also did not indicate which of the spouse's "counsel" was the subject of the Order, or the legal basis upon which the circuit court had awarded attorney's fees and costs in favor of the incapacitated person.

Approximately a month after trial, the incapacitated person's counsel filed a "Notice of Special Set Hearing," set to occur approximately three months after the notice, for "Determination and Assessment of [the Incapacitated Person's] Attorney's Fees and Costs Against [the Spouse] and/or Her Counsel." The notice of hearing contained a certificate indicating that the notice was being served on both the spouse's trial counsel and the spouse's former counsel. However, like the written order, the notice of hearing did not indicate which of the spouse's "counsel" was the subject of the hearing, or the legal basis for determination and assessment of the incapacitated person's attorney's fees and costs against the spouse and her "counsel."

The hearing occurred on the date it was noticed. The incapacitated person's counsel and the spouse's trial counsel appeared. The spouse's former counsel did not appear. The incapacitated person's counsel told the court: "To refresh your recollection ... [the spouse] was [earlier] represented by [former counsel], who you also directed to be here today. The hearing was coordinated with him and noticed to him, although he's not here this morning." (emphasis added). Although the record supports that the hearing was noticed to the spouse's former counsel, nothing in the record indicates that the court specifically directed the spouse's former counsel to attend, or that the hearing was coordinated with the spouse's former counsel.

The hearing then proceeded. The spouse's trial counsel convinced the circuit court to enter an order dismissing the sanctions against her because she appeared on the spouse's behalf just days before the trial. The circuit court excused the spouse's trial counsel from the courtroom.

The circuit court then received the incapacitated person's counsel's sworn testimony regarding the hours expended, hourly rate charged, and costs. The circuit court stated it was granting the incapacitated person's counsel's attorney's fees and costs in full as requested.

The circuit court later entered a written order to that effect. The written order apportioned 50% of the attorney's fees and costs upon the spouse, and the other 50% upon the spouse's former counsel. The written order did not state the legal basis upon which the circuit court had awarded the incapacitated person's attorney's fees and costs against the spouse and the spouse's former counsel. The written order also did not indicate that copies of the order were being furnished to the spouse and the spouse's former counsel.

In any event, ten days after the hearing, the incapacitated person's counsel e-mailed the order on attorney's fees and costs, plus the transcript of the hearing on the attorney's fees and costs, to the spouse's former counsel.

This Appeal

This appeal followed. The spouse's former counsel argues that he was not afforded due process, because after he had withdrawn from the case, he was not provided notice and opportunity to be heard regarding the circuit court's decision to impose attorney's fees against him.

We agree with the spouse's former counsel's argument. "[T]o allow a court to rule on a matter without proper pleadings and notice is violative of a party's due process rights." Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC , 986 So.2d 1244, 1252 (Fla. 2008). "[W]hen a court considers issues not noticed for hearing, the court denies the litigant due process, and any ensuing order or judgment must be reversed." In re Assimakopoulos , 228 So.3d 709, 715 (Fla. 2d DCA 2017). "Entry of judgment on a motion never made, never served upon the opposing party, and never noticed for hearing patently violates due process." Id. at 716.

Here, nothing in the record indicates that the spouse's former counsel had been given notice and an opportunity to be heard before the circuit court orally announced it was ordering the spouse's unspecified "attorney" to pay the incapacitated person's attorney's fees and costs. Furthering that denial of due process, the written order directing the spouse's unspecified "counsel" to pay the incapacitated person's attorney's fees and costs apparently was never furnished to the spouse's former counsel.

The answer brief argues that the spouse's former counsel was provided due process, because the spouse's former counsel later was served with the "Notice of Special Set Hearing" for determination and assessment of the amount of the incapacitated person's attorney's fees and costs. We disagree with this argument, because due process already had been denied to the spouse's former counsel. The circuit court already had orally announced, and by written order confirmed, its decision to order the spouse's unspecified "counsel" to pay the incapacitated person's attorney's fees and costs. The only decision left for the special set hearing was the amount of the attorney's fees being awarded.

The fact that the spouse's former counsel did not attend the special set hearing does not change our decision. While the proper and professional action would have been for the spouse's former counsel to have inquired about the notice's contents and attended the hearing, we must repeat that due process already had been denied to the spouse's former counsel. The court already had orally announced, and by written order confirmed, its decision to order the spouse's unspecified "counsel" to pay the incapacitated person's attorney's fees and costs, without first giving the spouse's former counsel notice and an opportunity to be heard.

The answer brief also argues that the circuit court was permitted to order the spouse's former counsel to pay the incapacitated person's attorney's fees without prior notice, because the circuit court's order was issued upon the court's own motion under section 57.105, Florida Statutes (2017). In support of that argument, the answer brief relies on our decision in Watson v. Stewart Tilghman Fox & Bianchi, P.A. , 195 So.3d 1163 (Fla. 4th DCA 2016), for the proposition that, in the answer brief's words, "procedurally deficient proceedings are not enough to quash sanctions on a court's own motion."

We disagree with the answer brief's argument, and its reliance on Watson , for two reasons.

First, from a technical standpoint, while it is reasonable to assume that the circuit court's order was initiated on its own motion under section 57.105, at no point did the circuit court indicate that its order was being initiated on its own motion under section 57.105 (which the spouse's former counsel argues is a secondary due process violation).

Second, Watson does not stand for the general proposition that "procedurally deficient proceedings are not enough to quash sanctions on a court's own motion." Watson 's holding was more specific than that.

In Watson , after final judgment was entered in the defendants' favor, the defendants filed a motion for attorney's fees under section 57.105. 195 So.3d at 1165. However, the defendants did not comply with section 57.105(4)'s safe harbor provision. Id. The defendants argued it did not matter that they did not comply with the safe harbor provision, because the trial court could grant attorney's fees on its own motion. Id. The plaintiffs responded that because the defendants' motion was insufficient, the trial court could not grant attorney's fees on its own motion. Id. at 1166. Ultimately, the trial court, on its own motion, granted attorney's fees to the defendants, explaining "I am not simply adopting a failed 57.105 attempt by the Defendants," but was making its own finding that the plaintiffs' action was frivolous. Id.

On appeal, the plaintiffs contended that the trial court circumvented section 57.105's safe harbor provision by adopting the defendants' motion as the trial court's own motion. Id. at 1167. We disagreed with the plaintiffs' argument, reasoning:

[A] bright-line rule that prevents a trial court from imposing sanctions on its own if a motion filed by the moving party is procedurally deficient would not only be inconsistent with the plain meaning of the statute, but would also obtrusively infringe on the trial court's power to sanction a party which it determines is deserving of such a sanction.
...
[W ]e now expressly hold that a trial court does not abuse its discretion in ordering a party to pay attorney's fees pursuant to section 57.105(1) on its own initiative, even if a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of the rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party's motion.

Id. at 1167-68 (emphasis added). As can be seen from the quote above, our reference in Watson to excusing a section 57.105 procedural deficiency was limited to the situation in which the trial court's motion did not adopt the moving party's non-compliant motion. We did not hold, and Watson should not be read to hold, that any section 57.105 procedural deficiency, including a due process violation, may be excused without consequence.

Based on the foregoing, we reverse the circuit court's order directing the spouse's former counsel to pay 50% of the incapacitated person's attorney's fees incurred in obtaining the annulment. We remand for the circuit court to give notice of its intent to entertain a motion for attorney's fees on its own initiative to the spouse's former counsel (including stating the basis for the circuit court's motion), and to give the spouse's former counsel an opportunity to be heard on the motion before the circuit court decides whether to order the payment of attorney's fees.

Reversed and remanded for proceedings consistent with this opinion.

Ciklin and Kuntz, JJ., concur.

      The answer brief's reliance on Watson has caused us to reconsider the soundness of dicta from that opinion. That dicta provided, in pertinent part:
      We ... do not construe [section 57.105 ] to require the trial court to give a separate notice of its intent to entertain a section 57.105 motion on its own initiative, when a motion for such fees is filed by a party and notice of hearing on the party's motion is given. Such a construction would ... give the appearance of impropriety, suggesting in advance that the motion will be granted.
      We consider that paragraph to be dicta, because no issue existed in Watson regarding whether the trial court was required to give a separate notice of its intent to entertain a section 57.105 motion on its own initiative. Nevertheless, based on our holding in this case, we use this opportunity to clarify that a court must give notice of its intent to entertain a section 57.105 motion on its own initiative. As in this case, failure to provide such notice and an opportunity to be heard before ordering the payment of attorney's fees under section 57.105, or any other basis, results in a deprivation of due process. The need to provide due process outweighs any perceived departure of neutrality resulting from a court's initiation of its own section 57.105 motion.


author: Levine, J. Warner, J., concurring in part and dissenting in part.

text:
    VOLVO AERO LEASING, LLC, Appellant, v. VAS AERO SERVICES, LLC f/k/a Volvo Aero Services Corp., a Delaware Limited Liability Company, and H.I.G. Capital, LLC, a Delaware Limited Liability Company, Appellees.
    Nos. 4D17-2618 4D17-3531
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Alec H. Schultz, Derek E. León, and Jennifer R. Zinn of León Cosgrove LLP, Coral Gables, for appellant.
    Ceci C. Berman and Joseph T. Eagleton of Brannock & Humphries, Tampa, Kenneth J. Ronan of Lavalle, Brown & Ronan, P.A., Boca Raton, and Charles Wender of Charles Wender Attorney at Law, Chartered, Boca Raton, for appellees Vas Aero Services, LLC, and H.I.G. Capital, LLC.
   Levine, J.

Appellant claims that the trial court erred in denying several claims against the appellees, including its claim of tortious interference with a business relationship. We find that appellee H.I.G. Capital was not a "stranger to the business relationship" and thus could not be held liable for tortious interference. We further find that the other issues on direct appeal are without merit and affirm those issues without further discussion.

As to the cross-appeal, we also find that the trial court did not err in granting partial summary judgment on the breach of contract claim as to the issue of damages. All parties agreed there was a breach of contract. Only the amount of damages remained to be determined. The cross-appellant did not produce any evidence to counter the affidavit and supporting documents filed in support of the motion for summary judgment. The law is clear that to defeat a motion for summary judgment supported by competent evidence, the opposing party must present evidence-not merely argument-to create an issue of material fact. Cross-appellant merely asserted there was an issue as to the amount of damages. That is not enough. We also affirm the remaining issues raised on cross-appeal.

Volvo Aero Leasing ("VAL") leased aviation products, while VAS Aero Services, formerly known as Volvo Aero Services ("VAS"), sold aviation products. VAS originally established VAL in 2000 to provide leasing services. Subsequently, VAL was transferred to Volvo Financial Services, while VAS remained a Volvo Group company until 2010 when AB Volvo, the parent company of Volvo Group, decided to get out of the aviation business.

In 2010, VAL and VAS entered into a transaction support agreement ("TSA") to facilitate the purchase of equipment by VAS from VAL when the equipment was returned at the end of a lease by third parties. VAL would provide VAS advanced notice when equipment was coming off lease. VAS then would inspect the equipment to determine the condition of each item. If the equipment was returned in the required condition, VAS would then purchase the equipment for a pre-negotiated residual value. An exhibit to the TSA included an agreed residual value that was "calculated on a per item basis" and subject to casualty loss, early termination, or term extension. The TSA required VAS to remit the purchase price for each item within thirty days of receiving an invoice or the equipment.

On the same date as the TSA, a purchase agreement ("PA") memorialized the sale of VAS by Aero Holdings to Vas Aero Holdings. The PA provided that when VAS purchased assets leased by SR Technics ("SRT") pursuant to the TSA, the fair market value of the assets would be determined by either mutual agreement or by an appraisal process as set forth in the PA. If the fair market value was less than the agreed residual value, then VAL had to compensate VAS for the difference.

Three months after the creation of the TSA and PA, VAS entered into a management service agreement ("MSA") with H.I.G. Capital. Pursuant to the MSA, H.I.G. was to provide management, consulting, and financial advisory services to VAS for a yearly fee of $ 600,000.

In 2014, VAL filed a complaint against VAS and later added H.I.G. as a defendant. VAL alleged that VAS failed to purchase certain equipment under the TSA: a Boeing 737 airplane, two reverse thrusters, and two sets of equipment coming off lease from SRT in 2012 and 2013. VAL raised claims for breach of contract against VAS (count I), conversion by VAS (count II), civil theft by VAS (count III), accounting as to VAS (count IV), tortious interference with business relationship as to H.I.G. (count V), civil conspiracy as to H.I.G. and VAS (count VI), and replevin as to VAS (count VII).

As to the tortious interference claim, VAL claimed that H.I.G. used its control over VAS to prevent VAS from satisfying its contractual obligations. In its amended answer and affirmative defenses, VAS denied VAL's allegations that H.I.G. refused to allow VAS to make any payments to VAL to satisfy VAS's contractual obligations.

VAL moved for summary judgment on the breach of contract claim, alleging it was undisputed that VAS breached the TSA. VAL alleged that the principal amount owed for the 2012 and 2013 SRT returns and the reverse thrusters was $ 4,786,786. In support, VAL submitted an affidavit from its president setting forth the amount of principal and interest for each claim. In further support of summary judgment, VAL submitted copies of invoices and documents containing residual values. VAL also submitted a deposition from VAS's CFO and COO authenticating invoices and documents containing residual value amounts.

VAS opposed summary judgment, arguing that VAL's summary judgment evidence was insufficient and that the amount of damages remained in dispute. VAS argued that under the TSA, VAS had the ability to dispute the amount due and owing, to pay less depending upon the condition in which the equipment was returned, and to have a different set of rules apply for items returned before the expiration of the lease.

The trial court granted summary judgment as to liability and damages for the 2012 and 2013 SRT returns and the reverse thrusters. The court found damages in the amount of $ 4,786,786, representing the "undisputed" amount of principal payments due to VAL pursuant to the terms of the contract.

During a bench trial on the remaining claims, VAS presented evidence that H.I.G. and VAS were both within the "H.I.G. family tree." The two individuals at the top of the VAS "ownership chain" owned 100% of the voting shares of H.I.G., and an H.I.G. affiliate owned 88% of the holding company that owned VAS. H.I.G. and VAS had a "common economic interest" and had the "same ultimate shareholders." In addition to receiving yearly compensation, H.I.G. would be entitled to additional compensation if VAS were sold. H.I.G. had also assisted in drafting the TSA, which provided that H.I.G. was entitled to a copy of any notice VAL sent to VAS. VAS also introduced evidence that it did not have sufficient funds to pay all of its obligations, so it had to prioritize which payments to make. The board of directors collectively decided not to pay VAL. Although some members of the board were affiliated with H.I.G., others were not.

The trial court rejected VAL's tortious interference claim, finding that H.I.G. was not a stranger to the business relationship between VAL and VAS. H.I.G. indirectly owned and directly controlled VAS. Additionally, H.I.G. had a significant financial interest in VAS. The court concluded that H.I.G. acted with a supervisory interest in how the relationship between VAS and VAL was conducted when it caused VAS to stop payments to VAL.

The court awarded VAL $ 4,786,786 for breach of contract regarding the 2012 and 2013 SRT returns and the reverse thrusters. The court further awarded VAL $ 1,362,521, which was the difference between the residual amount of $ 4,462,521 and the $ 3.1 million resale price for the Boeing 737 aircraft. This appeal ensued.

"When a decision in a non-jury trial is based on findings of fact from disputed evidence, [we review it] for competent, substantial evidence." Acoustic Innovations, Inc. v. Schafer , 976 So.2d 1139, 1143 (Fla. 4th DCA 2008). "However, where a trial court's conclusions following a non-jury trial are based upon legal error, the standard of review is de novo ." Id.

VAL argues that the trial court erred in finding H.I.G. not liable for tortious interference with the TSA between VAL and VAS. According to VAL, H.I.G. admitted in its amended answer that it told VAS not to pay VAL.

In order to establish tortious interference with a business relationship, the plaintiff must prove: "(1) the existence of a business relationship, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights; (2) the defendant's knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the interference." Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A. , 742 So.2d 381, 385 (Fla. 4th DCA 1999). Critically to this claim, "[f]or the interference to be unjustified, the interfering defendant must be a third party, a stranger to the business relationship." Id. at 386.

The evidence did not show an "intentional and unjustified interference" with a business relationship. See id. at 385. Rather, the evidence showed that VAS did not have sufficient funds to pay all of its bills, so VAS had to prioritize what payments it should make. VAS's board of directors collectively decided not to pay VAL.

Even if H.I.G. had caused the non-payment, "a defendant is not a stranger to a business relationship, and thus cannot be held liable for tortious interference, when it has a supervisory interest in how the relationship is conducted or a potential financial interest in how a contract is performed." Palm Beach Cty. Health Care Dist. v. Prof'l Med. Educ., Inc. , 13 So.3d 1090, 1094 (Fla. 4th DCA 2009).

Clearly, H.I.G. had both a supervisory and financial interest in VAS. The trial court determined, and the record showed, that H.I.G. indirectly owned VAS and directly controlled VAS. H.I.G. also had a significant financial interest in VAS. H.I.G. provided management, consulting, and financial advisory services to VAS. H.I.G. received yearly compensation for its services and would be entitled to additional compensation if VAS were sold. H.I.G. assisted in drafting the TSA and was also to receive a copy of any notice VAL sent to VAS. Further, VAS and H.I.G. had common economic interests and shared the "same ultimate shareholders." Two of the owners of VAS also owned 100% of the voting shares of H.I.G., and an H.I.G. affiliate owned 88% of the holding company that also owned VAS. See Babson Bros. Co. v. Allison , 337 So.2d 848, 850 (Fla. 1st DCA 1976) (holding that corporation that did not own stock in another corporation had privilege to interfere with contract where the stockholders of the first corporation owned the stock of the second corporation and "all of the stock of the two corporations was held by two families").

Suffice it to say that there was competent substantial evidence showing that the relationship between H.I.G. and VAS gave rise to the privilege for H.I.G. to involve itself in the business relationship between VAS and VAL. Clearly, there was competent substantial evidence to demonstrate that H.I.G. was not a stranger to the business relationship.

As to the cross-appeal, we find that the trial court did not err. We affirm on all the issues raised, but we write to discuss why the trial court did not err in granting partial summary judgment as to the amount of damages for the breach of contract claim made by VAL.

We review this order granting a summary judgment utilizing the de novo standard of review. Eco-Tradition, LLC v. Pennzoil-Quaker State Co. , 137 So.3d 495, 496 (Fla. 4th DCA 2014).

In this case, the only contested issue was the amount of damages. Both sides conceded there was a breach of contract and that VAS owed money to VAL. The only question that remained was the amount of damages.

The party moving for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. Landers v. Milton , 370 So.2d 368, 370 (Fla. 1979). Once the movant tenders competent evidence, "the opposing party must come forward with counterevidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist." Id.

VAL met its burden by submitting (1) a sworn affidavit from its president listing the amount of all its "claims" or damages; (2) invoices and documents listing the residual value of the SRT 2012 and 2013 returns as well as the reverse thrusters; and (3) the deposition of VAS's CFO and COO which reflected that the invoices and documents containing the residual value amounts were authenticated.

VAS, on the other hand, did not submit any affidavits or other counterevidence on the question of damages. Instead, it merely asserted that an issue existed as to the amount of damages and made only a generic reference to the terms of the TSA which allowed for an adjustment of the pre-negotiated residual values. However, the TSA also required VAS to remit the purchase price for each item within thirty days of receiving an invoice or the equipment. VAS did not challenge the residual price upon receiving any invoices or equipment, nor did VAS specifically contest the residual price and subsequent damages with evidence at the time of summary judgment. VAS did not present any evidence that it sought to challenge the amount due on the ground that the equipment was returned before the lease expired or that the equipment was not returned in the required condition. Simply put, VAS never presented evidence of attempting to adjust the pre-negotiated residual value as agreed to in the TSA. Thus, VAS neither disputed the amount due either according to the terms of the TSA, nor later by counterevidence at summary judgment.

One cannot defeat a motion for summary judgment by merely stating there is a material issue of fact or by generically referencing the existence of a contract. See Landers , 370 So.2d at 370. Rather, the opposing party must show, with counterevidence, that there is a material issue of fact. See BK Marine Constr., Inc. v. Skyline Steel, LLC , 231 So.3d 469, 472 (Fla. 4th DCA 2017) (finding issues of material fact remained as to the amount of damages where moving party submitted invoices and opposing party filed deposition transcript stating that it was unclear which invoices corresponded to contract); R. Plants, Inc. v. Dome Enters., Inc. , 221 So.3d 752, 754 (Fla. 3d DCA 2017) (affirming summary judgment where motion included affidavit with the damages plaintiff suffered and defendant did not produce counterevidence on the amount of damages); Ins. Co. of N. Am. v. Julien P. Benjamin Equip. Co. , 481 So.2d 511 (Fla. 1st DCA 1985) (finding no genuine issue of material fact as to damages where opposing party did not file any countervailing affidavits or otherwise controvert the assertions in the affidavit filed in support of the motion for summary judgment and the attached invoices).

The obligation to present specific counterevidence is especially important here, where there was no dispute that there was a breach of contract, and the contract contained pre-negotiated residual values. VAS cannot complain where it conceded it breached a contract with pre-set remedies, but it did not present any evidence contesting the affidavits and other documents submitted in support of the motion for summary judgment.

The dissent relies on a deposition excerpt wherein VAS's CFO referred to a range of $ 2 to $ 3 million dollars in damages, excluding the Boeing 737. The dissent argues that this figure is "considerably less" than the $ 4,786,786 judgment granted. Initially, VAS never relied on this deposition testimony as counterevidence to establish a specific amount owed. See Pensacola Beach Pier, Inc. v. King , 66 So.3d 321, 326 (Fla. 1st DCA 2011) (finding argument not raised in response to motion for summary judgment or in motion for rehearing was not preserved for appeal). Further, the deposition testimony was not sufficient to reveal a genuine issue of material fact. The dissent neglects to include that the CFO gave this estimate in response to a question asking for the amount due "without pinning you down to a precise dollar amount." Additionally, during same line of questioning, the CFO also estimated damages in the range of $ 6 to $ 8 million, minus approximately $ 4 million for the aircraft. So even within the same deposition relied upon by the dissent, the CFO testified to a damage figure close to the amount granted by the summary judgment.

In conclusion, we find the trial court was correct in this case on the appeal as well as on the cross-appeal. As such, we affirm on all issues.

Affirmed .

Damoorgian, J., concurs.

Warner, J., concurs in part and dissents in part with opinion.

Warner, J., concurring in part and dissenting in part.

I agree with the majority opinion except as to the affirmance of the partial summary judgment on damages, which was the subject of VAS's cross-appeal. There were disputed issues of fact as to the amount of the damages, revealed in VAL's filings in support of summary judgment. For instance, the contract itself provides an extensive process to determine the amounts due to VAL, after the lease expiration or termination on the equipment. The invoices from VAL to VAS do not establish that this process was followed. And VAL submitted the deposition of the Chief Financial Officer of VAS, in which he testified that what VAS owed to VAL, minus the amount for the Boeing 737, was more in the range of $ 2 to $ 3 million, considerably less than the $ 4,786,786 the court awarded. The CFO stated that, in addition to VAS's cash problems, the invoices from VAL were not paid because there was an ongoing disagreement as to what was due. Because VAL's own submissions showed that the amount of payment was disputed, summary judgment as to the amount of damages should not have been granted.


text:
    Jerry WARREN, Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR the STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., Bear Stearns Mortgage Funding Trust 2007-AR1, Mortgage Pass Through Certificates, Series 2007-AR1, Appellee.
    No. 4D18-739
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Michael Jay Wrubel of Michael Jay Wrubel, P.A., Davie, for appellant.
    Jan Timothy Williams of Lapin & Leichtling, LLP, Winter Park, for appellee.
   Per Curiam.

Affirmed . See Bank of New York Mellon Trust Co. N.A. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017).

Ciklin, Levine and Forst, JJ., concur.


author: Conner, J.

text:
    Terry MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3462
    District Court of Appeal of Florida, Fourth District.
    [March 13, 2019]
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Conner, J.

Appellant, Terry Moore, appeals the trial court's order revoking his probation and imposing sentence, contending the trial court erred by: (1) finding that the State's discovery violation was not prejudicial to the defense; (2) considering his alleged lack of remorse when sentencing; and (3) imposing a sentence based on an erroneous scoresheet and an improper determination that he qualified for sentencing as a violent felony offender of special concern ("VFOSC"), where the statutory provisions applicable for sentencing such offenders were not followed. We affirm the trial court's decision about the discovery violation without discussion. We also affirm the sentencing issue regarding Appellant's alleged lack of remorse without discussion. See Peters v. State , 128 So.3d 832, 848 (Fla. 4th DCA 2013) (determining that consideration of remorse is appropriate when the defendant injects the issue of rehabilitation into the case by arguing that after years in prison he has been rehabilitated).

As discussed below, the State concedes error regarding the scoresheet and Appellant's entitlement to resentencing, but disagrees with Appellant's argument that the trial court cannot resentence him as a VFOSC on remand. The State further argues that the trial court's written order determining that Appellant violated probation does not comport with the trial court's oral pronouncement at the conclusion of the violation of probation hearing. We agree with the State's arguments and reverse the trial court's written order determining a violation of probation and the sentence imposed thereafter. We remand the case for entry of a written order revoking probation that conforms to the oral pronouncement and for resentencing using a corrected scoresheet. We further direct the trial court to comply with the statutory provisions for sentencing Appellant as a VFOSC.

Background

Appellant was convicted of second degree murder and sentenced to six years in prison, followed by five years of probation. While Appellant was on probation, an affidavit of violation of probation was filed, alleging Appellant violated probation by traveling to another county without procuring the consent of his probation officer and by committing a criminal trespass in Leon County. After a violation hearing, the trial court orally pronounced its finding that Appellant willfully and substantially violated probation as alleged in the violation affidavit. The trial court sentenced Appellant to 279.45 months in prison, the lowest permissible sentence according to his scoresheet, followed by five years of probation. Appellant gave notice of appeal.

While the appeal was pending, Appellant filed a rule 3.800(b)(2) motion, arguing that his "scoresheet included 12 points, rather than 6 points" because he was listed as a VFOSC, but the trial court failed to hold a hearing or make written findings regarding Appellant's status as a VFOSC. The State responded, arguing that the motion should be denied because: (1) the argument raised "is not cognizable under" rule 3.800(b)(2); and (2) on the merits, Appellant qualified as a VFOSC regardless of any findings. The trial court denied Appellant's motion, citing to the reasons in the State's response.

Appellant filed a subsequent rule 3.800(b)(2) motion, arguing that the record did not contain a written order revoking Appellant's probation. After Appellant filed his initial brief, the State responded, agreeing that there was no such written order in the record. However, after Appellant filed his initial brief, the trial court entered an order granting Appellant's motion, stating its finding that Appellant willfully and substantially violated his probation by leaving the county without his probation officer's consent. The written order did not conform to the oral pronouncement at the conclusion of the violation hearing where the trial court additionally found Appellant violated probation by committing a trespass.

Appellate Analysis

Appellant argues that the trial court erred in imposing a sentence based on an improper scoresheet. "Because Appellant's argument concerning his scoresheet presents a pure issue of law, we apply the de novo standard of review." Somps v. State , 183 So.3d 1090, 1092 (Fla. 4th DCA 2015).

Appellant argues that the trial court did not follow the statutory procedure in sentencing him as a VFOSC, where the State did not request a VFOSC designation and the trial court did not orally pronounce a finding that he qualified for the designation. Additionally, Appellant points out that the trial court did not conduct a danger hearing pursuant to section 948.06(8), Florida Statutes (2009), or make any written findings that Appellant is or is not a danger to the community. Appellant argues that the scoresheet used for sentencing improperly included twelve points for a community sanction violation by a VFOSC. Appellant asks us to reverse and remand for a new sentencing hearing where he cannot be designated as a VFOSC. Although no objection to the scoresheet was made during the sentencing hearing, the issue was preserved by Appellant's Florida Rule of Criminal Procedure 3.800(b)(2) motion. See Arnone v. State , 204 So.3d 556, 557 (Fla. 4th DCA 2016) (finding the defendant preserved his arguments on appeal as to the VFOSC finding by filing a rule 3.800(b)(2) motion).

As discussed more fully below, the State concedes that the scoresheet used by the trial court assessed too many total points and that Appellant is entitled to a new sentencing hearing with a corrected scoresheet. However, the State contends that upon resentencing, the trial court is not foreclosed from treating Appellant as a VFOSC.

The scoresheet used at sentencing calculated that Appellant scored 400.6 points. It contained subsection VI, a community sanction violation section, filled out as follows:

(arrows added). As the State concedes, the "box" for 12 points for VFOSC is checked (left arrow), but argues that there were no additional points actually added for subsection VI (right arrow). The State concedes error though, because the calculation of the total scoresheet points is incorrect. The scoresheet states that the total points add up to 400.6 points, but the numbered subsections of the scoresheet list the following subtotal of points: (1) 116, (2) 0, (3) 240, (4) 30.6, (5) 4, and (6) 0. These subtotals add up to a total of 390.6 points, not 400.6 points as stated on the scoresheet.

We agree with the State that Appellant is entitled to a new sentencing hearing with a corrected scoresheet. As the State concedes, because the trial court sentenced Appellant to the lowest permissible sentence, he is entitled to resentencing as it cannot be said that the same sentence would have been imposed despite the scoresheet error. State v. Anderson , 905 So.2d 111, 118 (Fla. 2005) (explaining the "would-have-been-imposed" test to determine whether a scoresheet error affected sentencing and if the record does not conclusively establish that the trial court would have imposed the same sentence despite the scoresheet error, remand for sentencing is required).

We also agree with the State that the trial court is not foreclosed from resentencing Appellant as a VFOSC. Appellant's arguments on appeal conflate his status as a VFOSC with the ability of the State to demand mandatory revocation of his probation by having him declared a danger to the community as a VFOSC. Appellant's arguments in this case are similar to the defendant's arguments in Whittaker v. State , 223 So.3d 270 (Fla. 4th DCA 2017). There, the defendant argued that he should have been given six points on his scoresheet instead of twelve as a VFOSC because the trial court did not follow the statutory procedure under section 948.06(8), Florida Statutes, and also argued this Court should "reverse his sentence and remand for a new sentencing hearing where he cannot be designated as a VFOSC." Id. at 272-73. Similar to this case, the State agreed the defendant was entitled to a new sentencing hearing, but disagreed with the relief on remand. Id. at 273. In Whittaker we said:

[B]ecause a defendant's designation as a VFOSC does not depend on a finding that the defendant poses a danger to the community, a trial court's failure to make written findings under section 948.06(8)(e) as to whether a defendant poses a danger to the community does not entitle the defendant to have the VFOSC designation stricken.

Id. at 274. Additionally, we stated:

A trial court's finding under section 948.06(8)(e) as to whether a defendant who qualifies as a VFOSC poses a danger to the community is significant because it determines whether revocation of probation is mandatory or discretionary. § 948.06(8)(e) 2., Fla. Stat. (2015). However, because a guidelines sentence "would be legal irrespective of the findings made pursuant to section 948.06(8)(e)," a trial court's failure to make the mandated written findings under section 948.06(8)(e) does not necessitate reinstatement of the defendant's probation. See Barber [v.State , 207 So. 3d 379, 383-85 (Fla. 5th DCA 2016) ]. Rather, "the proper remedy is to reverse the sentencing order and remand for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e) when imposing its sentence." Id. at 385.

Id. at 274-75.

The same principles apply to this case. It is clear that Appellant qualifies as a VFOSC. Section 948.06(8) defines a VFOSC, in part, as "a person who is on ... [f]elony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act." § 948.06(8)(b) 1., Fla. Stat. (2009). Under the list of enumerated "qualifying offenses" is murder. § 948.06(8)(c) 2., Fla. Stat. (2009). Since Appellant was on probation for murder, he therefore meets the statutory requirements.

We reverse the sentence imposed in this case and remand for resentencing with a properly calculated scoresheet. On resentencing the trial court shall comply with the provisions of section 948.06(8). Additionally, the written order revoking probation and stating the conditions of probation the trial court found Appellant violated did not match the oral pronouncement made during the violation hearing. We direct the trial court to vacate the order revoking probation and enter a new written order that conforms to the oral pronouncement of which conditions of probation it found Appellant violated. See Hernandez v. State , 254 So.3d 1091, 1092 (Fla. 3d DCA 2018) (remanding to the trial court "for correction of the written order for revocation so that it conforms to the trial court's oral pronouncement").

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

Gross and Forst, JJ., concur.