author: Bilbrey, J.

text:
    Cynthia Proctor BEDELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1252
    District Court of Appeal of Florida, First District.
    May 31, 2018
    Dustin Dewrell, Shalimar, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Appellant challenges the denials of her two dispositive motions to suppress evidence of her blood alcohol level. Following the denials of her motions Appellant pleaded no contest to the charge of driving under the influence of alcohol third conviction within ten years, reserving her right to appeal the denials. See § 316.193(2)(b) 1, Fla. Stat. (2016). Because we find that the trial court applied the correct law and that the court's findings of fact were supported by competent substantial evidence, the denials of the motions to suppress are affirmed.

We review orders denying motions to suppress under a mixed standard. As we stated in State v. Gandy , 766 So.2d 1234, 1235 (Fla. 1st DCA 2000) :

A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness, and we must interpret the evidence and reasonable inferences and deductions in a manner most favorable to sustaining that ruling. Johnson v. State, 608 So.2d 4, 9 (Fla.1992), cert. denied, 508 U. S. 919, 113 S.Ct. 2366, 124 L.Ed. 2d 273 (1993).

Because a motion to suppress presents mixed questions of law and fact, "an appellate court must determine whether competent, substantial evidence supports the lower court's factual findings, but the trial court's application of the law to the facts is reviewed de novo." State v. Murray , 51 So.3d 593, 594 (Fla. 5th DCA 2011).

The facts adduced at the suppression hearings were consistent and generally undisputed. According to the Okaloosa County Sheriff's deputy who responded to the single-vehicle crash, he found Appellant in the driver's seat of her vehicle with a cup of vodka in the cup holder and a partially filled bottle of vodka in the front passenger seat. The deputy described Appellant's demeanor and the condition of her vehicle, which had left the roadway and collided with a sign post. He stated that his observations led him to immediately suspect that Appellant had been driving under the influence of alcohol. Video from the deputy's body camera recorded at the crash site was admitted into evidence and was consistent with his description of his encounter with Appellant.

Appellant was not arrested at the scene of the accident, but the deputy encouraged her to accept transportation to a medical facility by ambulance. The deputy testified that Appellant agreed to be transported but her condition required physical assistance to enter the ambulance. The deputy explained that he did not administer a breath test at the scene because he had no equipment to do so with him. He did not collect a urine sample at the scene because it was not the Sheriff's office practice to do so in the field.

The deputy proceeded to the medical facility and located Appellant in a treatment room. He observed that Appellant was conscious but lying in a bed with an IV inserted in her arm. According to his testimony, the deputy read Appellant her Miranda rights at the medical facility and thereafter, he presented her with the voluntary consent form used by the Okaloosa Sheriff's office for purposes of obtaining a blood sample for alcohol testing. The deputy read the consent form to Appellant and she signed it. The deputy did not offer Appellant a breath test at the hospital because he had no equipment to do so. He did not request that she provide a urine sample either, because Appellant's condition convinced him that she could not safely stand and walk to the bathroom to provide a sample without falling.

Both the deputy and the medical facility's "patient care technician" testified about their actions in collecting and handling the blood samples as Appellant lay in the hospital bed. Each testified that they consulted the instructions on the kit for each step and marked and sealed the vials according to the instructions. After the blood vials were sealed, both witnesses testified that the sealed vials were tipped during the process as the technician checked her watch, placed horizontally beside Appellant on her bed, and moved from the bed to the collection box. The testimony regarding the chain of custody of the vials as they moved from the hospital to the Sheriff's Office to the FDLE lab and back was undisputed.

Four months after the date of the accident, the blood test results showing a .194 blood alcohol level led to Appellant's arrest and criminal charges. The parties agreed that the motions to suppress the results of Appellant's blood test were dispositive in the case.

Appellant's first motion sought to exclude the test results because the samples were not "inverted several times to mix the blood with the preservative and coagulant" as required by rule 11D-8.012(3), Florida Administrative Code. After the evidentiary hearing, the trial court denied this motion based on its finding that the collection and handling of the blood samples "substantially complied" with the requirements of rule 11D-8.012(1)-(6) and that there was no evidence of a substantial adverse effect from failing to strictly follow subsection (3) of the rule.

On appeal, Appellant argues that the trial court's application of a substantial compliance test was legal error and that strict compliance with rule 11D-8.012(3) was required. However, we find that the trial court applied the correct standard and law to the facts in evidence.

Unquestionably, blood alcohol tests must be conducted in conformity with the rules governing collection and handling of the samples. Gargone v. State , 503 So.2d 421 (Fla. 3d DCA 1987). Where there is "virtually no adherence" to the applicable rules-for instance, where only the labeling requirement is met but none of the other procedures are followed-suppression is required. Id. at 423. But the standard is "substantial compliance" with the rules, so as to produce reliable scientific evidence. Id. ; State v. Burke , 599 So.2d 1339, 1342 (Fla. 1st DCA 1992) ("The admissibility of the result of such blood alcohol tests shall also be judged by a determination of whether substantial compliance with the rules and regulations has taken place.").

"[M]inor deviations from the rules will not prohibit the test results from being presented, as long as 'there is evidence from which the fact finder can conclude that the [test] itself remained accurate.' " State v. Kleiber , 175 So.3d 319, 321 (Fla. 5th DCA 2015), quoting State v. Donaldson , 579 So.2d 728, 729 (Fla. 1991). In Kleiber , the defendant's arm was swabbed with dry gauze rather than an alcohol-free antiseptic as prescribed by rule 11D-8.012(1). Kleiber, 175 So.3d at 320. The appellate court reversed the trial court's suppression of the test results under a strict compliance standard and held that substantial compliance was the correct standard. Id. at 321-322 ; see § 316.1932(1)(f), Fla. Stat. (2016) (blood and breath tests "shall be administered at the request of a law enforcement officer substantially in accordance with the rules" governing approved method).

Accordingly, in denying Appellant's first motion to suppress, the trial court's finding of substantial compliance with the procedures set out in rule 11D-8.012 applied the proper standard to the evidence presented. The court's finding that Appellant "presented no evidence of a substantial adverse effect" from the handling of the vials, which were incidentally tipped and moved immediately after the blood was drawn, but not "inverted several times" as rule 11D-8.012(3) requires, was not an improper shift of the burden of proof to Appellant. Once the State showed substantial compliance with the rule, Appellant was free to present any evidence that the deviation affected the accuracy of the test. The court's statement merely noted that Appellant did not present any such evidence.

In her second motion to suppress, Appellant asserted that the blood samples were illegally obtained because she was not offered a breath test or a urine test prior to the law enforcement officer's request that she consent to a blood draw. She relied on section 316.1932(1)(c) for her position that without a prior offer of these less-intrusive testing methods, her consent could not be implied and her actual consent was involuntary. The trial court denied suppression on this ground, finding that "a urine test was impractical" based on the deputy's testimony that Appellant's condition caused him to believe that Appellant was at risk of falling on the way to the bathroom.

On appeal of this order, Appellant argues that the trial court's denial of her motion was unsupported by any evidence that a urine test was impractical. Section 316.1932(1)(c) establishes the conditions under which a driver is "deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood." The statutory conditions are:

(1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible.

State v. Serrago , 875 So.2d 815, 819 (Fla. 2d DCA 2004).

Conditions (1) and (2) above were not contested at the motion hearing and are not challenged on appeal. For condition (3), the trial court's determination whether the administration of a breath or urine test is impractical or impossible is a finding of fact. See State v. Polak , 598 So.2d 150 (Fla. 1st DCA 1992). A trial court's "determinations of factual questions must be accepted by the appellate court if the record supports that finding." Id. at 152.

The record supports the trial court's finding that it was impractical to administer a urine test to Appellant under the circumstances. The court specifically relied on the deputy's testimony and considered his medical training and background. Our review of the record testimony at the motion hearing confirms that the deputy proceeded with the blood test because he believed Appellant was not in a condition to safely provide a urine sample at the time. The fact that medical personnel could have been called in to assist Appellant to the bathroom, as suggested by defense counsel on cross-examination, is inapposite. Even if a urine test was not "impossible" due to the availability of hospital personnel to assist, the trial court's finding that a urine test was "impractical" is an alternative statutory basis upon which Appellant may be deemed to have consented to submit to an approved blood test under section 316.1932(1)(c).

Appellant fails to establish that the trial court applied the incorrect legal standard to the compliance of the blood draw procedure with rule 11D-8.012, Florida Administrative Code. Appellant also fails to show any deficiency in the evidence supporting the trial court's finding of fact that a urine test was "impractical" for purposes of implied consent under section 316.1932(1)(c), Florida Statutes. The orders on appeal denying the motions to suppress are therefore AFFIRMED .

Ray and Winokur, JJ., concur.

      There was no testimony or argument below as to whether it was impractical to use a bedpan or catheter to obtain a urine sample from Appellant. Furthermore, no such argument is made on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cedric Raynard STUBBS and Dechanta Catrecia Stubbs, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; Multibank 2009-1 RES-ADC Venture LLC; and Woodland Estates Home and Property Owners Association, Inc., Appellees.
    Case No. 2D17-1929
    District Court of Appeal of Florida, Second District.
    Opinion filed June 13, 2018
    Cedric Raynard Stubbs and Dechanta Catrecia Stubbs, pro se.
    Kathleen Angione of Kahane & Associates, P.A., Plantation, for Appellee Federal National Mortgage Association.
    No appearance for Appellees Multibank 2009-1 RES-ADC Ventures LLC and Woodland Estates Home and Property Owner's Association, Inc.
   PER CURIAM.

Cedric and Dechanta Stubbs appeal the trial court's "Final order denying defendant's motion to vacate and defendant's notice of objection," rendered May 2, 2017. The motion sought to vacate the "Final order granting second motion for writ of possession," rendered March 1, 2017. Because we are without jurisdiction, we dismiss the appeal.

The trial court entered a foreclosure judgment against the Stubbses. We dismissed their subsequent appeal. See Stubbs v. Fed. Nat'l Mortg. Ass'n., 210 So.3d 1286 (Fla. 2d DCA 2016) (table decision). Federal National Mortgage Association (Fannie Mae) purchased the property at a judicial sale and obtained a certificate of title in August 2016. Then, in January and, again, on March 1, 2017, the trial court entered separate orders granting Fannie Mae's petitions seeking issuance of a writ of possession. Shortly after the entry of each order, the Stubbses filed motions to vacate and objections to issuance of the writ under Florida Rule of Civil Procedure 1.540. In response, the trial court issued the May 2 order that is now before us.

The March 1, 2017, order granting a writ of possession is an appealable, nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See Speedway SuperAmerica, LLC v. Tropic Enters., Inc., 966 So.2d 1, 2 (Fla. 2d DCA 2007) ("[A]n order directing the issuance of a writ of possession ... is subject to interlocutory review as an order that determines 'the right to immediate possession of property.' " (quoting Fla. R. App. P. 9.130(a)(3)(C)(ii) ) ).

Instead of appealing that order, the Stubbses sought relief under rule 1.540. But, "rule [1.540(b) ] does not ... authorize a trial court to grant relief from a nonfinal order." Garcia v. Navy Fed. Credit Union, 224 So.3d 339, 341 (Fla. 5th DCA 2017). And although Florida Rule of Appellate Procedure 9.130(a)(5) provides that "[o]rders entered on an authorized and timely motion [under Florida Rule of Civil Procedure 1.540 ] are reviewable by the method prescribed by this rule," "[a]n order entered on a motion to vacate a non-final order ... is not reviewable under [ rule] 9.130(a)(5)." Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003). Simply put, "a motion to vacate pursuant to [Florida Rule of Civil Procedure] 1.540(b) cannot be directed toward non-final orders such as the writ of possession." Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927, 930 (Fla. 3d DCA 2016) ; see also Hollifield v. Renew & Co., Inc., 18 So.3d 616, 617 (Fla. 1st DCA 2009) (" Rule 1.540 authorizes a trial court to grant relief 'from a final judgment, decree, order, or proceeding'-not from a non-final order ...."). Consequently, a rule 1.540 motion directed to a non-final order is improper and leaves us without jurisdiction to review the denial of the motion to vacate. Bryant, 182 So.3d at 930 ("[E]ven if the motion to vacate had been the proper procedural vehicle below, we are without jurisdiction to review the trial court's denial of that motion because it does not fall within the purview of appealable, non-final orders set forth in Rule 9.130(a)(3).").

Furthermore, to invoke our jurisdiction to review a nonfinal order, an appellant must file a notice of appeal "within 30 days of rendition of the order to be reviewed." Fla. R. App. P. 9.130(b). This was not done. The Stubbses filed their notice of appeal more than sixty days after rendition of the "Final order granting second motion for writ of possession." Their rule 1.540(b) motion did not toll the time for taking an appeal, because "[a] motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation." Fla. R. Civ. P. 1.540(b) ; see, e.g., In re Guardianship of Schiavo, 792 So.2d 551, 560 (Fla. 2d DCA 2001) (stating that a motion under rule 1.540(b)"does not operate to stay a judgment"); Hatton v. Palm Beach County, 550 So.2d 65, 66 (Fla. 2d DCA 1989) (stating that motions filed under rule 1.540"do not suspend rendition of the final judgment (and therefore do not toll the time for filing an appeal)"); cf. Richardson v. Watson, 611 So.2d 1254, 1255 (Fla. 2d DCA 1992) ("Unlike an authorized and timely motion directed to a final order, a motion for reconsideration or rehearing of a nonfinal order does not toll the time for filing a notice of appeal ...."). As a result, the "[f]ailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.' " First Nat'l Bank in Fort Myers v. Fla. Unemployment Appeals Comm'n, 461 So.2d 208, 208 (Fla. 1st DCA 1984).

Based upon the foregoing, we dismiss the Stubbses' appeal.

Dismissed.

LaROSE, C.J., and SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: SALTER, J.

text:
    IN RE: The Name Change of Maria Fernanda BENITEZ, Appellant.
    No. 3D17-1502
    District Court of Appeal of Florida, Third District.
    Opinion filed June 13, 2018.
    Sandy T. Fox ; Cynthia L. Greene, for appellant.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   SALTER, J.

Maria Fernanda Benitez ("Ms. Benitez"), as the mother of a three-year-old child ("W.M.B."), appeals a circuit court order denying her petition to change W.M.B.'s first name. The issue presented apparently is one of first impression in Florida: may the court dispense with the statutory requirement that process be served on (or constructive notice given to, in the case of a nonresident) a father, whose identity is known to the mother but whose name is not on the child's birth certificate, and who has not been adjudicated to be the father? We affirm in part, and reverse in part, the trial court's resolution of this issue.

The trial court concluded that it lacked the authority to grant the petition in this case because of Ms. Benitez's failure or refusal to obtain the father's consent and to serve him, or to provide constructive notice to him if the father is a nonresident. Though Ms. Benitez and her counsel make a persuasive argument, we are constrained to agree that the trial court's application of the law was correct in all but one minor respect. We affirm the denial of the amended petition for name change, but with a copy of this opinion to the Chief of Legislative Affairs, Office of the State Courts Administrator, for consideration during the annual statutory clarification cycle.

The Petition, Amended Petition, and Procedural History

The verified petition and amended verified petition to change W.M.B.'s name referred to the controlling statute ( section 68.07, Florida Statutes (2016) ) and, for the most part, tracked the allegations specified in the statute. Information responsive to two subsections of the statute, however, was not provided by Ms. Benitez:

(3) Each petition shall be verified and show:
* * *
(b) If known, the date and place of birth of the petitioner, the petitioner's father's name, the petitioner's mother's maiden name, and where the petitioner has resided since birth.
* * *
(8) When only one parent petitions for a change of name of a minor child, process shall be served on the other parent and proof of such service shall be filed in the cause; however, if the other parent is a nonresident, constructive notice of the petition may be given pursuant to chapter 49, and proof of publication shall be filed in the cause without the necessity of recordation.

§ 68.07(3), (8), Fla. Stat. (2017).

A copy of W.M.B.'s birth certificate was filed, substantiating the child's date of birth and Ms. Benitez's allegations that, "The minor child's mother has never been married. The minor child's father is not listed on the minor child's birth certificate." For purposes of "date and place of birth," as required in subsection 68.07(3)(b), the amended petition treated W.M.B. as the "petitioner" seeking the name change. The "petitioner's father's name," also required by that subsection ("if known") was not supplied, however, either as to W.M.B. or Ms. Benitez.

As to subsection 68.07(8), there was and is nothing in the record establishing service on the "other parent" or, alternatively, "constructive notice" of the petition to the father pursuant to Chapter 49, Florida Statutes (2016), together with a sworn allegation that he is a nonresident.

The amended petition was heard by the trial court with Ms. Benitez and her counsel present. At that hearing, Ms. Benitez testified that she knew the identity of the father of W.M.B., and that paternity had not been sought or established. The trial court deferred ruling on the petition, determining that:

The Biological Father's ["known to the Mother"] name is not listed on the minor child's birth certificate and paternity has not been established as a matter of law. Consent of the Father shall be obtained in accordance with Florida law, or he can be served with process [and] the Court will conduct further proceedings.

Ms. Benitez moved for reconsideration, contending that subsection 744.301(1), Florida Statutes (2016), confers exclusive and sole authority on her as "natural guardian of the child," to obtain the name change adjudication without serving, notifying, or otherwise involving the biological father in the proceeding. That subsubsection provides, in pertinent part:

(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents' parental rights have been terminated pursuant to chapter 39.... The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

Ms. Benitez also relied on several appellate decisions addressing the lack of standing, including denial of status as a guardian of the child, of an unmarried biological father who has neither admitted to paternity nor demonstrated the "settled purpose to be a father," or that "he has maintained a substantial concern for the welfare of his illegitimate child."

These arguments and authorities proved unpersuasive to the trial court, which entered a final order denying the amended petition for name change, based on the fact that Ms. Benitez "testified in open court that she knows who the father is and refuses to attempt to find and serve him in accordance with Florida law." The final order "finds that the consent of the known biological father is required as a matter of law and the Mother is required to serve the known biological father with process in accordance with Florida law." (Emphasis provided). This appeal followed.

Analysis

The "interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review." Kasischke v. State, 991 So.2d 803, 807 (Fla. 2008). "A facially sufficient petition for name change should be granted in the absence of evidence of a wrongful or fraudulent purpose." In re Name Change Petition of Mullin, 892 So.2d 1214, 1214 (Fla. 2d DCA 2005) (internal citation omitted).

The problem in the present case is obvious-the identity of W.M.B.'s father is known to Ms. Benitez, but she has not complied with the unambiguous requirements of section 68.07. It was not for the trial court, and is not for this Court, to speculate regarding her reasons for wanting to avoid serving or constructively notifying the father of W.M.B., or for not revealing his name as specified in subsection 68.07(3)(b).

W.M.B.'s known father may or may not have provided support or otherwise demonstrated a substantial concern for the welfare of his child, but he has not been afforded any opportunity to be heard on that question. He may not have been adjudicated to be the father, but on this record it is also clear that he has not been adjudicated not to be the father. The father's, Ms. Benitez's, and W.M.B.'s rights to commence a paternity action are not limited by statute until four years have elapsed from W.M.B.'s attainment of her majority. § 95.11(3)(b), Fla Stat. (2018) ; see also, Rose v. Sonson, 208 So.3d 136 (Fla. 3d DCA 2016).

For these reasons, we affirm the trial court's denial of the amended petition for name change. We reverse the final order to the extent that it concluded the known father's consent and service of the petition or constructive notice would be required; the trial court's first ruling was correct that either consent or compliance with section 68.07(8) service (or constructive notice, if the father is a nonresident) is required by the statute.

Affirmed in part, and reversed only to the extent noted above. The Clerk of this Court is directed to serve a copy of this opinion on the Office of Legislative Affairs, Office of State Courts Administrator, Tallahassee.

      For reasons which will become obvious, there is no appellee in this case.

      Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th DCA 2009).

      Kendrick v. Everheart, 390 So.2d 53, 60 (Fla. 1980). We note in passing the increasingly-disfavored use of the term "illegitimate child." See Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children , 63 FLA. L. REV. 345 (2011).

      Ms. Benitez properly provided other information required by the statute as though W.M.B. is the "petitioner," and of course it is W.M.B.'s name that is sought to be changed. It seems apparent that the requirement in subsection 68.07(3)(b), requiring that the petition show, "if known," the petitioner's father's name, would apply to W.M.B.'s father's name. In one sense, Ms. Benitez was the "petitioner" on behalf of her child, yet it makes little sense for her to be required to provide her father's name when she is not petitioning to change her own name. As the trial court and Ms. Benitez did not specifically address this point, however, we only raise it so that the Office of Legislative Affairs can consider that provision as well as the service/constructive notice requirement.

      An unmarried father's objections to the name change might, for example, be overruled by the trial court on the basis of particular evidence presented (and not now before us).


text:
    Richard J. DIAZ, et al., Appellants, v. David KOSCH, et al., Appellees.
    Nos. 3D17-1498 & 3D17-621
    District Court of Appeal of Florida, Third District.
    Opinion filed June 13, 2018
    Eaton & Wolk, PL, and Douglas F. Eaton ; Steven Kellough ; Miami, Ramón A. Abadin, for appellants.
    Duane Morris, LLP, and Scott D. Kravetz ; Kluger Kaplan, and Alan J. Kluger ; Russomanno & Borrello, and Herman J. Russomanno, III, Miami, for appellees.
    Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.
   SALTER, J.

Richard Diaz and Ana Santisteban-Diaz ("Buyers") appeal a final summary judgment regarding claims and counterclaims in a failed residential real estate transaction (Case No. 3D17-621 here), and a final judgment against them for $850,000.00 for attorney's fees and costs incurred in the litigation by the appellees, David and Tiffany Kosch ("Sellers") (Case No. 3D17-1498). The cases were consolidated for oral argument and decision. We affirm the final judgments in each case.

The cases turn on strict, but enforceable, provisions in a contract governing a residential real estate transaction. The application of particular terms specifying the parties' paths toward closing or termination, and controlling the legal status of claims for damages in the aftermath of termination, presented proper issues for final summary judgment.

I. Facts and Procedural History

A. Disclosure Agreement and "As Is" Purchase Contract

The Sellers owned a home in Coral Gables. In March 2012, they listed the home for sale through Esslinger-Wooten-Maxwell, Inc. ("EWM"), an area real estate broker and sales company. As they did so, the Sellers also completed EWM's printed form of "Owner's Property Disclosure Statement," signed by them March 21, 2012 (the "March 2012 Disclosure Statement"). That form prominently discloses that the information provided is "to the best of the Owner's knowledge," that "it is not a warranty of any kind by the Owner," and that "it is not a substitute for any inspections or warranties the parties may wish to obtain."

The March 2012 Disclosure Statement included handwritten entries describing damage to a wall, the existence of a homeowners' association for an included backyard lot, and responses regarding a total of 16 different topics. Pertinent here, the Sellers marked "No" to any awareness of improvements constructed in violation of applicable building codes, without necessary permits, or with any open permits on the property not closed with a final inspection. They also marked "No" to any awareness of any toxic substances in the residence, including "accumulated radon." On the fourth page of disclosures, and above signature lines indicated for any prospective buyer or tenant receiving a copy of the completed form, bold-print terms include:

INSTRUCTIONS TO THE BUYER/TENANT: Buyer/Tenant is encouraged to thoroughly inspect the property personally and/or have it inspected by a third party, and to inquire about any specific areas of concern. NOTE: If Owner answers "NO" to any of the pervious [sic] questions listed above, Owner does not necessarily mean that the matter in question does not exist on the property. "NO" may mean that the Owner is unaware that the matter in question exists on the property.
RECEIPT AND ACKNOWLEDGEMENT OF BUYER/TENANT Owner is using this form to disclose Owner's knowledge of the condition of the property and improvements located on the property as of the date signed by Owner. This disclosure form is not a warranty of any kind. The information contained in the disclosure is limited to information which the Owner has knowledge. It is not intended to be a substitute for any inspection or professional advice the Buyer/Tenant may wish to obtain. An independent professional inspection is encouraged and may be helpful to verify the condition of the property and to determine the costs of repairs, if any.

During the spring of 2012, the Buyers learned that the home was for sale and walked through it with the broker. Both of the Buyers were attorneys with substantial experience with real estate transactions and title matters. After various negotiations, the Buyers and Sellers entered into a printed form " 'As Is' Residential Contract for Sale and Purchase" (the "Contract"), effective September 2, 2012, for a purchase price of $2,850,000.00.

The Buyers made a $50,000.00 deposit with the Buyer's broker serving as escrow agent. A further deposit of $235,000.00 was payable to the escrow agent by September 12, 2012, the date at which a ten-day right of inspection and right to cancel was to expire absent Buyer termination.

The Contract included a handful of terms that governed the subsequent actions of the Buyers and Sellers. First, time was specified to be "of the essence." Second, the Contract included an integration and modification provision:

INTEGRATION; MODIFICATION: This Contract contains the full and complete understanding and agreement of Buyer and Seller with respect to the transaction contemplated by this Contract and no prior agreements or representations shall be binding upon Buyer or Seller unless included in this Contract. No modification to or change in this Contract shall be valid or binding upon Buyer or Seller unless in writing and executed by the parties intended to be bound by it.

Third, regarding disclosures, the Contract provisions included these terms:

RADON GAS: Radon is a naturally occurring radioactive gas that, when it is accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.
PERMITS DISCLOSURE: Except as may have been disclosed by Seller to Buyer in a written disclosure, Seller does not know of any improvements made to the Property which were made without required permits or made pursuant to permits which have not been properly closed.
...
SELLER DISCLOSURE: Seller knows of no facts materially affecting the value of the Real Property which are not readily observable and have not been disclosed to Buyer. Except as stated in the preceding sentence or otherwise disclosed in writing; (1) Seller has received no written or verbal notice from any governmental entity or agency as to a currently uncorrected building, environmental or safety code violation; and (2) Seller extends and intends no warranty and makes no representation of any type, either express or implied, as to the physical condition or history of the Property.

Fourth, and of particular importance here, the pertinent provisions regarding inspections of the property and the Buyers' right to cancel the transaction and terminate the Contract, in Paragraph 12, were:

(a) PROPERTY INSPECTIONS AND RIGHT TO CANCEL : Buyer shall have [10] days from Effective Date ("Inspection Period") within which to have such Inspections of the Property performed as Buyer shall desire during the Inspection Period. If Buyer determines, in Buyer's sole discretion, that the Property is not acceptable to Buyer, Buyer may terminate this Contract by delivering written notice of such election to Seller prior to expiration of Inspection Period. If Buyer timely terminates this Contract, the Deposit paid shall be immediately returned to Buyer, thereupon, Buyer and Seller shall be released of all further obligations under this Contract ... Unless Buyer exercises the right to terminate granted herein, Buyer accepts the physical condition of the Property and any violation of governmental, building, environmental, and safety codes, restrictions, or requirements, but subject to Seller's continuing AS IS Maintenance Requirement, and Buyer shall be responsible for any and all repairs and improvements required by Buyer's lender.
(b) WALK-THROUGH INSPECTION/RE-INSPECTION : On the day prior to Closing Date, or on Closing Date prior to time of Closing, as specified by Buyer, Buyer or Buyer's representative may perform a walk-through (and follow-up walk-through, if necessary) inspection of the Property solely to confirm that all items of Personal Property are on the Property and to verify that Seller has maintained the Property as required by the AS IS Maintenance Requirement and has met all other contractual obligations.
(c) SELLER ASSISTANCE AND COOPERATION IN CLOSE-OUT OF BUILDING PERMITS : If Buyer's Inspection of the Property identifies open or needed building permits, then Seller shall promptly deliver to Buyer all plans, written documentation or other information in Seller's possession, knowledge, or control relating to improvements to the Property which are the subject of such open or needed Permits, and shall promptly cooperate in good faith with Buyer's efforts to obtain estimates of repairs or other work necessary to resolve such Permit issues. Seller's obligation to cooperate shall include Seller's execution of necessary authorizations, consents, or other documents necessary for Buyer to conduct inspections and have estimates of such repairs or work prepared, but in fulfilling such obligation, Seller shall not be required to expend, or become obligated to expend, any money.
(d) ASSIGNMENT OF REPAIR AND TREATMENT CONTRACTS AND WARRANTIES : At Buyer's option and cost, Seller will, at Closing, assign all assignable repair, treatment and maintenance contracts and warranties to Buyer.

B. The Inspection Period

During the ten-day inspection period, the Buyers learned that there were open building permits and that unpermitted work might have been performed as part of the Sellers' extensive renovations in 2009 and 2010. The Buyers did not obtain independent legal advice at that point, but instead relied upon their own real estate and litigation experience.

The day before the inspection period was to expire, the Buyers notified their broker by email that they had reviewed the permit history for the home and were very concerned that their visual inspection of the property "does not coincide with the permit history." They advised that they were obtaining copies of the plans filed in the City and were conferring with a builder and an architect. They also reported that they might need to come back to the property with a City inspector. This communication neither requested an extension of the inspection period nor served as a termination of the Contract.

The following day, the Buyers emailed these concerns to the Sellers and their broker. In the late afternoon of the last day of the inspection period, September 12, 2012, the Buyers emailed to the Sellers a signed message with a legend, "This communication is sent for settlement purposes only," accusing the Sellers of affirmative misrepresentations "actionable under Florida law" and claiming that the property "has a significant diminished value than what we offered to pay for it." The email also contended (presciently, as it turned out) that "Legal fees in litigation with the facts presented here could easily be in the hundreds of thousands of dollars and of course during litigation, the property will not be marketable."

The email also accused the Sellers of a total lack of good faith and asserted that "we also have independent tort remedies against you for the fraudulent concealment in not disclosing to us everything you know, and did, regarding the condition of the property which could lead to several years of litigation including a claim for punitive damages and of course a lis pendens on the property as well." The email closed with the statement that "If we do not receive written assurances from you by 5:30 pm today, rest assured this matter will go to full scale litigation."

So instead of simply invoking paragraph 12(a), giving written notice of their absolute right to cancel the Contract for any reason and receive their $50,000.00 deposited to that point, the Buyers made their legal threats, argued for a significant price reduction, and notified the Sellers that they were invoking paragraph 12(c), to require the Sellers to promptly deliver "all plans, written documentation, or other information" relating to open permits and to cooperate with Buyer's efforts-at Buyer's expense-to conduct inspections and have estimates of such repairs or work prepared. The email asserted that Paragraph 12(c) "invariably requires that you agree to extend the inspection/due diligence period by a reasonable period of time" for the Sellers to comply with the Buyers' demands.

And less than an hour later, at 5:30 p.m. on the last day of the inspection period, the Buyers emailed a second communication:

This email will confirm that we are tendering the second deposit under the contract in good faith and as a display our [sic] ability to perform our end of the bargain under the contract. The tender of the additional deposit is made with full rights reserved, including but not limited to the terms detailed in the various emails sent by [the Buyers].
Please be governed accordingly.

C. Notice of Cancellation; Offers to Return the Escrowed Deposit

At this point, the Sellers and Buyers consulted independent real estate transactional lawyers to advise them. The Sellers retained a permit consultant to review the permitting and meet with the Buyers to discuss the costs and process for addressing their concerns, and the parties' transactional attorneys discussed earlier radon inspection reports with elevated readings in an upstairs bedroom. As part of those discussions, which lasted some 12 days after the expiration of the inspection/cancellation period (but with no written or unwritten extension of that period), the Buyers were also invited to schedule their own radon test. The Buyers did not do so.

On September 24, 2012, with no resolution of the parties' disagreements, and before any financing commitment was due to be provided by the Buyers to the Sellers, counsel for the Buyers notified the Sellers' attorney by emailed letter that the Buyers were terminating the Contract, and instructed the escrow agent to return the entire $285,000.00 to the Buyers. The notice of termination does not claim a breach by the Sellers, nor does it report an inability by the Buyers to close the transaction based on their ability to procure a financing commitment.

Two days after the Buyers' attorney delivered the notice of termination of the Contract, that attorney emailed a letter to the Sellers' attorney reporting his understanding "that the Sellers will not consent to release of the earnest money deposit by [the escrow agent] to the Buyers unless mutual releases are exchanged." The letter further states that the Contract "is 'as is' in nature and possesses a unilateral, unconditional cancellation right in favor of the Buyers. In no way does the contract require the exchange of releases as a pre-condition to return of the earnest money deposit."

Later that same day, the Sellers' attorney responded: "I imposed no conditions to the release of the earnest money deposit by the escrow agent. Pursuant to the contract, the escrow agent is free to act in accordance with its terms without the consent of either party and neither party may unilaterally impose any conditions to the release of the deposit by the escrow agent."

On October 2, 2012, one of the Buyers (litigation attorney Richard Diaz) emailed a letter to the Sellers' broker advising that (1) the Buyers believed "a significant amount of unpermitted work was done to the property which clearly has a material affect [sic] to its value;" (2) "there is a presence of mold and radon gas in the home that requires significant remediation;" (3) "an 'as is' contract will not save a seller (and potentially its listing agent) against a claim for fraud and/or fraudulent concealment," and (4) it was the broker's obligation, as well as the Sellers' "to inform any prospective buyer of everything you know," including "[sharing] the contents of this letter and its attachments with any and all prospective buyers.

On October 4, 2012, an emailed exchange between attorneys for the Sellers and the Buyers unequivocally established that the Sellers had not made a claim to the deposit at that point and would not object to the release of the deposit to the Buyers. Nonetheless, and apparently due to demands for a release by the Buyers' own broker (who served as the escrow agent), the deposit was not returned by the escrow agent.

D. The Lawsuit

On October 18, 2012, the Buyers commenced their circuit court lawsuit against the Sellers and their brokers. The transactional attorney for the Sellers responded that the lawsuit "is a real game changer" making it "likely there will be a claim filed on behalf of the seller for forfeiture of the deposit as well as other possibly other [sic] claims and defenses in the pending lawsuit." Ultimately, a fourth amended complaint filed by the Buyers in April 2015 asserted claims for breach of contract, conversion, fraud in inducement, fraud in concealment, negligent misrepresentation, and conspiratorial fraud, with a claim for punitive damages asserted as well. The Sellers counterclaimed for the Buyers' breach and for the deposit as damages for the Buyer's default. Extensive and highly contentious discovery was undertaken, but by 2016 the Sellers and other defendants moved for summary judgment.

The trial court granted summary judgment for the brokers and then for the Sellers (as to the Buyers' claims and the Sellers' counterclaim for the still-escrowed deposit), with a final summary judgment entered in March 2017. The Sellers' motions for attorney's fees and costs were heard (the Sellers were awarded $850,000.00) and reduced to an amended final judgment in June 2017. These consolidated appeals followed.

II. Standard of Review

We review summary judgments de novo. We consider the evidence in the light most favorable to the nonmoving party and must draw all competing inferences in favor of the nonmoving party. Piedra v. City of North Bay Village, 193 So.3d 48, 51 (Fla. 3d DCA 2016). Matters of contract interpretation are also reviewed de novo, construing the terms according to their plain language. Dirico v. Redland Estates, Inc., 154 So.3d 355, 357 (Fla. 3d DCA 2014).

Regarding the Buyers' appeal from the award of prevailing party attorney's fees to the Buyers, "The standard of review for an award of prevailing party attorney fees is abuse of discretion." Shands Teaching Hosp. v. Mercury Ins. Co., 97 So.3d 204, 213 (Fla. 2012) ; Jaffe v. Jaffe, 147 So.3d 578, 581 (Fla. 3d DCA 2014). The factors to be considered and included in findings of fact by the trial court regarding a fee award are set forth in Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).

III. Analysis

A. Buyers' Claims

The Buyers raise four arguments; each is alleged to present one or more genuine issues of material fact, such that the final summary judgment against the Buyers must be reversed:

(1) the Buyers' payment of the second deposit (despite their failure to terminate the Contract during the Inspection Period pursuant to Paragraph 12(a) above) did not constitute a waiver of their right to terminate the Contract without penalty (as opposed to pursuing a claim for breach and money damages);

(2) the Sellers' alleged non-disclosure of radon issues was not waived by the Buyers;

(3) following the Buyers' written termination of the Contract on September 24, 2012 (before the then-applicable closing date of October 2, 2012, and before the then-applicable deadline for securing a written loan commitment under Paragraph 8(b) of the Contract, September 27, 2012), the Sellers' conduct constituted a waiver of their right to receive the escrowed deposit; and

(4) Buyers were entitled to summary judgment on their own breach of contract claim against the Sellers and their claim for the return of the escrowed deposit.

We agree with the trial court's determination that each of these issues was addressed in, and controlled by, the plain language of the Contract. We treat the Buyers' arguments (1) through (3) above in this section, III.A, and address the Sellers' entitlement to the deposit, argument (4), in section III.B. of this opinion.

The Buyers also allege error by the trial court in denying the Buyers' motion to amend the fourth amended complaint to add a claim for punitive damages. We affirm on this point without additional discussion, based on our disposition of the other issues raised by the Buyers.

1. Right to Terminate Without Penalty

Paragraph 12(a) of the Contract is unambiguous. By the end of the Inspection Period, there were two choices available to the Buyers: to issue a timely written notice of cancellation prior to the expiration of the Inspection Period, whereupon "the Deposit paid shall be immediately returned to the Buyer;" or to allow the Inspection Period to expire without issuing such a timely written notice, whereupon the Buyers were deemed to accept the "as is" condition of the Property. In the event of that second of the two choices, the Buyers were required to make the second payment of $235,000.00 to the escrowed deposit, as specified in Paragraph 2(b) of the Contract.

That provision does not include what the Buyers attempted to create: a "conditional tender" of that second deposit while ostensibly preserving both (a) the Buyers' purported right to compel the Sellers to perform and pay for repairs, permitting issues, or other circumstances (i.e., to ignore the "as is" nature of the sale), and (b) the Buyers' purported right "to stay in the deal and close."

Paragraphs 12(b) and 12(c) of the Contract establish a path to closing the transaction. Paragraph 12(b) addresses the walk-through inspection to be conducted "on the day prior to Closing Date," and Paragraph 12(c) addresses the Sellers' duty to provide documents and information between the end of the inspection/cancellation period and closing for the "close-out of building permits." The Buyers argue that this sequence of events should be altered, with Paragraph 12(c) made applicable even before the cancellation period has ended. The plain language of the provision and the "as-is" language of the Contract contradict such a reading.

Nothing in Paragraph 12(c) states that the Buyers' right to cancel the Contract pursuant to Paragraph 12(a) becomes subject to an open-ended extension if the public records reveal an open or needed permit. Such a reading ignores the "time is of the essence provision" in the Contract. See Garcia v. Alfonso, 490 So.2d 130 (Fla. 3d DCA 1986). Any such extension, had one been agreed upon by the parties, would have been negotiated by the parties and reduced to a signed writing as required by Paragraph 18.P., the integration/modification provision within the Contract.

Instead, Paragraph 12(c) imposes a duty to assist the Buyers in the Buyers' resolution of any open or needed permits-but without any agreement by the Sellers to pay any expenses or extend the time for closing-after the inspection period expired without cancellation, and after the posting of the second deposit. Moreover, the Buyers admitted that the Sellers gave them access to the Residence and to their permitting consultant in order to evaluate the cost to remedy any perceived shortcomings.

The Buyers' attorney's affidavit stated that, on September 19, 2012 (a week after the expiration of the inspection/cancellation period, and two weeks before the scheduled closing), the Buyers' attorney spoke to the Sellers' attorney and said that the Buyers were not satisfied with the possible cost involved in correcting unpermitted work. The Buyers' pleadings submitted with the affidavit stated that the Buyers cancelled the Contract because the Sellers would not give them credits at closing equal to the amount the Buyers contemplated any remedial work would cost.

Finally, in their written notice of September 24, 2012, terminating the Contract, the Buyers did not allege a default by the Sellers under Paragraph 15(b) of the Contract. By including a demand in the notice of termination for the escrow agent "to return the entirety of the earnest money deposit to the Buyer," the Buyers were memorializing their claim that the inspection/cancellation period had been extended, but without a signed writing or on the basis of additional consideration by the Buyers. Coral Reef Land Dev., LLC v. Duke Realty Ltd. P'ship, 45 So.3d 897, 901-02 (Fla. 3d DCA 2010) (oral modifications permitted, despite written contract requiring modifications to be in writing, "when one party provides additional consideration for the modification accepted by the other party.").

The Buyers did not obtain a written agreement extending the cancellation period, nor did they furnish additional consideration beyond that required by the existing agreement. Based on the Buyers' threats of litigation and lis pendens before the end of the cancellation period, the Sellers correctly characterized any discussions regarding a contract extension or purchase price adjustment as "settlement negotiations," rather than definitive terms. No proposed written modification acceptable to the Buyers was ever even tendered to the Sellers or their counsel.

2. Radon

The Buyers' arguments regarding radon disclosure and "waiver by conduct" also fail because of the controlling provisions of the Contract and the undisputed facts relating to the Buyers' knowledge and written communications. Regarding radon, it is first appropriate to observe that all residential buyers in 2012 were required to be placed on notice by statute (as they are now and have been for some 30 years), that:

RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.

§ 404.056(5), Fla. Stat. (2012). As already noted, the Contract included the statutory disclosure. Although the Buyers attempt to parlay an elevated radon level in one test into a claim of fraud, the summary judgment evidence discloses that: both Buyers were experienced real estate attorneys familiar with radon tests; the Buyers' own expert witness on the topic testified that home buyers in Florida should do a radon test during their due diligence period; radon levels fluctuate naturally; radon tests are never exact; and "you could test in a certain room one week and then come back two weeks later and get a different result."

The Buyers did not obtain a radon test during the due diligence period. The Sellers' attorney obtained information regarding an elevated radon reading and disclosed it to the Buyers' attorney, noting in an email, "please let [Sellers' broker] know if your clients wants [sic] to schedule a radon test." The Buyers did not schedule such a test before terminating the Contract. In granting summary judgment on the issue in February 2017, the trial court stated, "there was information provided to the [Buyers] that radon did exist and he was on notice if he wanted to go ahead and test for it. He chose not to."

Just as the Buyers were aware that the accessible public records showed open permits and that the Sellers' contractor might not have obtained a permit for some part of the renovations three years earlier, the Buyers were aware that radon can be easily and inexpensively tested during the inspection period. The Buyers rely on Johnson v. Davis, 480 So.2d 625, 629 (Fla. 1985), for the duty to disclose "facts materially affecting the value of the property which are not readily observable and are not known to the buyer." But in this case, the Contract terms disclaimed any such rights by apprising the Buyers that they could and should conduct their own inspections, and the Buyers never established that the permitting and radon matters were not observable, were actually known to the Sellers at the time of entering into the Contract (as opposed to the Sellers' contractor or broker), and materially affected the value of the Property.

Though aware of the permitting questions, the Buyers did not cancel the Contract at the close of the inspection period, nor did they prepare and furnish a written request for an extension of the inspection period. Though aware that radon is an issue in all Florida residential contracts, the Buyers neither tested nor accepted the offer to test after learning that part of the home had an elevated radon level in a test taken months after the Sellers had moved to Houston. As this Court held in Pressman v. Wolf, 732 So.2d 356, 362 (Fla. 3d DCA 1999), Johnson v. Davis does not extend to conditions that "were readily observable and/or within the buyer's ability to know or easily discover."

3. "Sellers' Waiver by Conduct"

The Buyers argue that, by providing access to their permitting consultant and discussing the costs of closing permits, the Sellers waived any right to claim the escrowed deposit. This argument fails because the discussions in question occurred after the Buyers' written accusations and claims of fraud on the part of the Sellers, reiterated here, in the Buyers' email on the last day to cancel without penalty:

we also have independent tort remedies against you for the fraudulent concealment in not disclosing to us everything you knew, and did, regarding the condition of the property which could lead to several years of litigation including a claim for punitive damages and of course a lis pendens on the property as well.
...
If we do not receive written assurances from you by 5:30 pm today, rest assured this matter will go to full scale litigation.

This Court has repeatedly held that, following accusations of fraud, the accuser may not then "justifiably rely" on the representations of the accused in subsequent negotiations aimed at resolving the dispute. See Sugar v. Estate of Stern, 201 So.3d 103, 108 (Fla. 3d DCA 2015) ; Moriber v. Dreiling, 194 So.3d 369, 375 (Fla. 3d DCA 2016).

B. Sellers' Claim to the Deposit

Finally, the Buyers contend that the Sellers waived their right to claim a default by the Buyers and resultant entitlement to the escrowed deposit. This issue is squarely addressed by Paragraph 15(a) of the Contract, appearing under the heading "DEFAULT AND DISPUTE RESOLUTION:"

15. DEFAULT:
(a) BUYER DEFAULT: If Buyer fails, neglects or refuses to perform Buyer's obligations under this Contract, including payment of the Deposit, within the time(s) specified, Seller may elect to recover and retain the Deposit for the account of Seller as agreed upon liquidated damages, consideration for execution of this Contract, and in full settlement of any claims, whereupon Buyer and Seller shall be relieved from all further obligations under this Contract, or Seller, at Seller's option, may, pursuant to Paragraph 16, proceed in equity to enforce Seller's rights under this Contract.

Of these two options, and after being sued by the Buyers, the Sellers elected the first of the two options, retention of the deposit (as opposed to specific performance, the second option). The Sellers were excused from setting a closing location and demonstrating that they were ready, willing, and able to close, by virtue of the Buyers' anticipatory repudiation of any obligation to close issued in their letter of September 24, 2012. See Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181 (Fla. 1982).

C. Attorney's Fees

There is no question that the Sellers prevailed, the Buyers did not, and the Contract contained a fee-shifting provision. The amount of attorney's fees in the context of a failed residential real estate transaction may seem shocking, but a review of the 6,000 page record is sufficient to persuade the patient reader that this was no ordinary lawsuit relating to a buyer-seller dispute.

Early in the litigation-and this relates to mitigation of damages and fees-the Sellers offered to exchange releases, allow the Buyers to receive the $285,000.00 deposit, and pay the Buyers a further $40,000.00 simply to end the matter. The offer was not accepted.

The trial court conducted an evidentiary hearing, considered expert testimony, reviewed the hours and hourly rates claimed, and reduced the fees by over $90,000.00. The trial court heard, considered, and ruled upon the factors specified in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).

In light of the number of depositions taken by the Buyers; the number of non-party witnesses subpoenaed for testimony and records; the eleven sets of interrogatories and nine requests for production of records served on the Sellers; the dead-end allegations pertaining to improper record destruction and computer forensics; and hearings on a wide array of motions, including unsuccessful claims by the Buyers for punitive damages; we cannot and do not conclude that the trial court abused its discretion in awarding the attorney's fees to the Sellers or in determining the amount of that award.

IV. Conclusion

The "as is" residential real estate contract developed jointly by the Florida Realtors and The Florida Bar reflects a middle-of-the-road form intended to reduce the legal fees that could be incurred if purchase contracts started from scratch for each transaction. The form reflects a wealth of experience with both successful and failed transactions among professional realtors and real estate attorneys.

The Buyers sought to transform an "as is" form of contract into a continuously-negotiable-price transaction by attempting their "conditional tender" of the second deposit payment and allowing the due diligence/cancellation period to expire without issuing a termination notice. The summary judgment evidence showed that they did this in order to avoid losing the Property to a backup buyer, while simultaneously attempting to preserve a claim to a reduction in the purchase price.

Once bound by the Contract after the expiration of the cancellation period, the Buyers further exacerbated their position by doing two things. First, they unilaterally terminated the Contract before the expiration of the financing contingency and before the closing date. Second, in an effort to enhance their leverage and obtain tort damages beyond a contractual remedy (return of the escrowed deposit, offered by the Sellers though under no obligation to do so following the Buyers' default), the Buyers launched a bitter and "no holds barred" lawsuit against the Sellers.

Finding no reversible error in the final judgments entered by the trial court, we affirm the judgments in all respects.

      The Contract form carried a legend indicating approval by The Florida Realtors and The Florida Bar.

      The summary judgment evidence established that the renovations included work for which no permits were required (flooring, painting, interior doors and mirrors, and home theater equipment), work for which a permit was required and obtained, and other work performed by licensed contractors but with a permit unexpired as of September 2012. In the course of the lawsuit, extensive discovery by the Buyers into the City of Miami and Sellers' records did not produce open notices of violation or citations for unpermitted work.

      The Buyers were aware that the Sellers had already moved out of the home for their new home and work in Houston, Texas. The marketability point and threatened lis pendens clearly suggested years of carrying the burdens of two homes for the Sellers.

      Paragraph 12 in its entirety, and paragraph 12(c) in particular, contain no provision for an extension of the ten-day inspection period and right to cancel, and the "time is of the essence" provision of the Contract remained effective.

      The Contract specified that the Buyer's written loan commitment was to be obtained, and the Sellers notified, on or before September 27, 2012.

      "Conditional tender" and "our ultimate election to stay in the deal and close" were the terms used by Buyer Richard J. Diaz to describe his written transmittal of the second deposit on September 12, 2012, in paragraph 14 of his affidavit filed in opposition to the Sellers' motion for summary judgment in 2016.

      It is undisputed that the Sellers paid the permitting consultant over $32,000.00 to meet with the Sellers' contractor, to assess any open or required permits, and to meet with the Buyers to go over that information.

      Janice Russell Aff. ¶ 10, Aug. 1, 2013.

      As the radon disclosure statute indicates, radon is a naturally occurring gas that can accumulate in buildings. The short-term measurements obtained by ARS Environmental, Inc., a month before the Contract was signed-and provided to a non-party previously interested in buying the home-disclosed that "Fluctuations in radon levels occur naturally. Many factors, including the weather, can affect the readings."

      The Buyers argue that the Florida Supreme Court "expressly disapproved" this Court's decision in Pressman, in M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91 (Fla. 2002). The Sellers have correctly countered, however, that the Supreme Court only disapproved a broad statement in Pressman that "Statements concerning public record cannot form the basis for a claim of actionable fraud." 813 So.2d at 96. The decision did not address on-line municipal permit records.

      One of the Buyers, Richard Diaz, signed his own 57-page motion for leave to amend their fourth amended complaint to claim punitive damages in 2016; co-counsel then representing him did not sign it. The tone is illustrated by these excerpts: (1) "Before analyzing [Sellers'] specific acts of evilness, outrageousness, conscious and reckless disregard for [Buyers'] rights, we must first spotlight what the evidence shows they knew and when ." (2) "There was no reason on God's green earth for [the brokers and Sellers] to have hidden what they knew from [Buyers] about the radon gas issue except to satisfy their greed for [Buyers'] money."


author: Klingensmith, J.

text:
    Frederic BOUIN, Appellant, v. Gina DISABATINO, Appellee.
    No. 4D17-2250
    District Court of Appeal of Florida, Fourth District.
    June 13, 2018
    Anthony Brown of Lavalle, Brown & Ronan, P.A., Boca Raton, for appellant.
    Ronald P. Ponzoli, Jr., of GrayRobinson, P.A., West Palm Beach, for appellee.
   Klingensmith, J.

Frederic Bouin appeals the trial court's dismissal of his seven-count complaint against his wife, Gina DiSabatino. Bouin filed his complaint while a separate dissolution of marriage proceeding was pending before another judge. For the reasons set forth below, we find that it was error for the trial court to dismiss Bouin's complaint with prejudice without allowing for leave to amend. Therefore, we reverse.

Among the many allegations in his complaint, Bouin claimed DiSabatino had forged checks from his bank account, stolen his credit cards out of the mail, and transferred money to herself and her mother from Bouin's bank account without his permission. He also asserted that DiSabatino's actions caused him to be rejected for a $2,500,000 mortgage he sought for purchasing a house. The trial court ruled that all counts of the complaint were not only barred by the applicable statutes of limitations, but also failed to state a cause of action. Additionally, the court found that since the claims arose from acts that occurred during the parties' marriage, they were under the exclusive jurisdiction of the family court handling the dissolution proceeding. Consequently, it dismissed the complaint with prejudice pursuant to Beers v. Beers , 724 So.2d 109 (Fla. 5th DCA 1998).

" 'The standard of review of orders granting motions to dismiss with prejudice is de novo .' " Preudhomme v. Bailey , 211 So.3d 127, 130 (Fla. 4th DCA 2017) (quoting Garnac Grain Co. v. Mejia , 962 So.2d 408, 410 (Fla. 4th DCA 2007) ).

"The purpose of a motion to dismiss is 'to test the legal sufficiency of the complaint, not to determine factual issues.' " Rolle v. Cold Stone Creamery, Inc. , 212 So.3d 1073, 1076 (Fla. 3d DCA 2017) (quoting The Fla. Bar v. Greene , 926 So.2d 1195, 1199 (Fla. 2006) ). "When determining the merits of a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true, with all reasonable inferences drawn in favor of the pleader." Regis Ins. Co. v. Miami Mgmt., Inc. , 902 So.2d 966, 968 (Fla. 4th DCA 2005).

During argument by counsel on the motion, the trial court recognized that if it were to dismiss the complaint based solely on the statute of limitations, it should be without prejudice. Specifically, the court commented at the hearing that Bouin could likely "clean up his counts and maneuver ... differently" to comply with them. Ultimately, the trial court dismissed the complaint with prejudice, but the court correctly noted in its order that the failure to state a cause of action generally does not result in a dismissal with prejudice. Therefore, the trial court's dismissal with prejudice appears to be based solely on the court's application of Beers regarding the nonviability of maintaining a separate interspousal action outside of the dissolution proceedings.

"In general, there are two aspects to a court's subject matter jurisdiction. The first concept 'concerns the power of the trial court to deal with the class of cases to which a particular case belongs.' " Garcia v. Stewart , 906 So.2d 1117, 1122 (Fla. 4th DCA 2005) (quoting Paulucci v. Gen. Dynamics Corp. , 842 So.2d 797, 801 n.3 (Fla. 2003) ). "The second aspect requires that a court's jurisdiction be lawfully invoked by the filing of a proper pleading." Id. "Whether a court has subject matter jurisdiction is a question of law reviewed de novo." Sanchez v. Fernandez , 915 So.2d 192, 192 (Fla. 4th DCA 2005).

As to whether separate interspousal actions may be brought outside of the dissolution case in a collateral proceeding, this court has observed:

In Waite v. Waite , 618 So.2d 1360 (Fla. 1993), the court abrogated the doctrine of interspousal immunity for all torts, thereby allowing spouses to sue one another for damages from tortious acts. The opened door raises an issue as to when such a suit may be brought. In Snedaker v. Snedaker , 660 So.2d 1070 (Fla. 4th DCA 1995), we allowed the tort claim to be brought within the dissolution of marriage action. In Hogan v. Tavzel , 660 So.2d 350 (Fla. 5th DCA 1995), the Fifth District allowed the claim to be brought three years after the marriage had been dissolved. In short, under Florida law an interspousal tort claim may be brought in the dissolution of marriage action, or it may be brought in a separate action not associated with a dissolution of marriage action.

San Pedro v. San Pedro , 910 So.2d 426, 428 (Fla. 4th DCA 2005).

However, "[w]here no specific transaction or agreement exists between the spouses, the dissolution of marriage statute, specifically, subsection 61.075(1), provides the exclusive remedy where one's spouse has intentionally dissipated marital property during the marriage." Beers , 724 So.2d at 117 (emphasis added); accord Doctor Rooter Supply & Serv. v. McVay , 226 So.3d 1068, 1073 (Fla. 5th DCA 2017). As it relates to claims brought in a collateral proceeding involving one spouse's misappropriation of the other's nonmarital assets, the Fifth District in Beers stated:

We do not address the propriety of the joinder of a separate count for conversion or fraudulent dissipation of nonmarital assets. See, e.g., Delahunty v. Massachusetts Mut. Life Ins. Co. , 236 Conn. 582, 674 A.2d 1290 (Conn. 1996), a decision cited by the former wife. Our decision also does not conflict with Snedaker v. Snedaker , 660 So.2d 1070 (Fla. 4th DCA 1995), which approved the pleading of a battery claim as a separate count in a dissolution action.

Beers , 724 So.2d at 117 n.6.

We understand the trial court's concerns regarding the prospect that maintaining a separate suit in a collateral proceeding might be considered judge shopping. Pursuing such an action for interspousal claims outside of the dissolution proceeding would provide an additional forum, and perhaps an even more contentious environment, to those spouses or ex-spouses eager to prolong their conflict. Nonetheless, whether Bouin's complaint could be brought separately, or was exclusively within the jurisdiction of the dissolution case, depended on the trial court making findings of fact as to whether the claims involved marital or nonmarital property. See Demont v. Demont , 67 So.3d 1096, 1104 (Fla. 1st DCA 2011) ("The initial determination as to whether an asset is marital or non-marital is a fact-finding process.").

While it is true that the remedy for dissipation of marital assets lies via section 61.075(1), see Beers , 724 So.2d at 117, there were no allegations within the "four corners" of the complaint, or attached thereto, that indisputably classified the property, monies, or assets in question as marital. A motion to dismiss analyzes questions of law to test the legal sufficiency of a complaint, not the facts. See Rolle , 212 So.3d at 1076. The trial court's determination that this case dealt with assets of the marital estate was fundamentally a fact-finding endeavor. See § 61.075(6)(a), (b)(1); Demont , 67 So.3d at 1104. This was improper at the motion to dismiss stage.

Moreover, Bouin should have been provided the opportunity to amend his complaint at least once as a matter of course since no responsive pleading had been filed. See Fla. R. Civ. P. 1.190(a) ("A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.... Leave of court shall be given freely when justice so requires."); Boca Burger, Inc. v. Forum , 912 So.2d 561, 567 (Fla. 2005) ("[T]he first sentence of the rule grants plaintiffs an automatic right to amend the complaint once before a responsive pleading is served."). We find that the trial court erred when it dismissed Bouin's complaint with prejudice.

Reversed and remanded.

Damoorgian and Forst, JJ., concur.

      The complaint contained the following separate counts: Intentional Infliction of Emotional Distress; Tortious Interference with a Business Relationship; Breach of Contract; Conversion; Civil Theft; Violation of the Civil Remedies for Criminal Practices Act; and Defamation by Implication.


author: Osterhaus, J.

text:
    Joseph ANDREWS, Connie Benham, Dr. Juan P. Gray, Lynne Price, and Rev. Levy Wilcox, Appellants, v. The CITY OF JACKSONVILLE, a consolidated political subdivision of the State of Florida, and Mike Hogan, as Duval County Supervisor of Elections, Appellees.
    No. 1D17-2291
    District Court of Appeal of Florida, First District.
    June 18, 2018 Rehearing Denied August 3, 2018
    John S. Winkler, Jacksonville, for Appellants.
    Jason R. Gabriel, General Counsel, Jason R. Teal, Deputy General Counsel, and Craig D. Feiser, Assistant General Counsel, Jacksonville; Lauren V. Purdy and Simone Marstiller of Gunster, Yoakley & Stewart, P.A., Jacksonville, for Appellees.
   Osterhaus, J.

Appellants challenge the action of the Jacksonville City Council in putting a one-half-cent sales surtax referendum before voters in the August 2016 election. Before voters passed the underfunded pension liability surtax, a group of citizens challenged the ballot's title and summary, among other things, in court. They made various arguments against the measure, all of which the trial court rejected. Now on appeal, Appellants ask us to declare the election null and void "for one, several, or all" of seven different reasons. We decline to do so and affirm.

I.

On May 17, 2016, the Jacksonville City Council adopted an ordinance setting a referendum on whether to adopt a sales surtax to address the City of Jacksonville's problem of underfunded pension liability. The Council took this action in response to a state law enacted in March 2016, which authorized counties to pass ordinances allowing for the levy of a one-half-cent pension liability sales surtax. See ch. 2016-146, § 2, Laws of Fla. The Governor approved the law on March 25, 2016, and it took effect on July 1, 2016. See §§ 212.055(9), 112.64(6), Fla. Stat. (2016). The Jacksonville City Council set the referendum for August 30, 2016. In late July, five weeks before the election, Appellants filed a challenge to the ordinance. The case wasn't decided before the election. And in the election, voters approved the surtax. After the election, the parties filed cross motions for summary judgment and the trial court held a hearing. Ultimately, the trial court decided the case by granting summary judgment in favor of the City.

II.

The circuit court's order granting summary judgment involves a pure question of law that we review de novo. Hill v. Suwannee River Water Mgmt. Dist. , 217 So.3d 1100, 1102 (Fla. 1st DCA 2017).

A.

Appellants make seven arguments for reversing the trial court's judgment. The strongest of these arguments is that the ballot title and summary misled voters to the point of requiring the election to be voided. Florida law requires that whenever a public measure is submitted to a vote of the people, a ballot summary must be printed in clear and unambiguous language on the ballot, which "shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure." § 101.161(1), Fla. Stat. In construing § 101.161, the "[Florida Supreme Court] has explained 'that the ballot [must] be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.' " Roberts v. Doyle , 43 So.3d 654, 659 (Fla. 2010) (quoting Askew v. Firestone , 421 So.2d 151, 155 (Fla. 1982) ). When challenged, courts will review ballot titles and summaries by asking two questions: "first, whether the ballot title and summary 'fairly inform the voter of the chief purpose of the amendment,' and second, 'whether the language of the title and summary, as written, misleads the public.' " Roberts , 43 So.3d at 659 (quoting Fla. Dep't of State v. Slough , 992 So.2d 142, 147 (Fla. 2008) ). Ballot summaries need not explain every ramification of a proposal, but must make sure that the chief purpose is clear and unhidden. Fla. Hometown Democracy, Inc. v. Cobb , 953 So.2d 666, 673 (Fla. 1st DCA 2007). Courts will invalidate a ballot title and summary if the record shows that they are "clearly and conclusively defective." Askew , 421 So.2d at 154-55 ; City of Riviera Beach v. Riviera Beach Citizens Task Force , 87 So.3d 18, 22 (Fla. 4th DCA 2012). But they will be upheld if they state the chief purpose and are not "affirmatively misleading."

Fla. Educ. Ass'n v. Fla. Dep't of State , 48 So.3d 694, 704 (Fla. 2010) ; see also City of Riviera Beach , 87 So.3d at 16 (instructing that "[a] ballot title and summary cannot either 'fly under false colors' or 'hide the ball' as to the amendment's true effect"). Fair notice to voters is evaluated presuming that "the voter [will] acquaint himself with the details of a proposed ordinance on a referendum ... If he does not, it is not the function of the ballot question to provide him with that needed education." Miami Heat Ltd. P'ship v. Leahy , 682 So.2d 198, 203 (Fla. 3d DCA 1996) (quoting Metro. Dade Cty. v. Shiver , 365 So.2d 210, 213 (Fla. 3d DCA 1978) ).

Appellants' challenge focuses ostensibly on the summary, which they claim to be misleading on its face. The ballot title and summary language read as follows:

PENSION LIABILITY 1/2-CENT SALES TAX PLAN
AUGUST 30, 2016
Permanently closing up to three of the City's underfunded defined benefit retirement plans, increasing the employee contribution for those plans to a minimum of 10%, and ending the Better Jacksonville 1/2-cent sales tax are all required to adopt a 1/2-cent sales tax solely dedicated to reducing the City's unfunded pension liability. Shall such pension liability sales tax, which ends upon elimination of the unfunded pension liability or in 30 years maximum, be adopted?
_______ YES _______ NO

The trial court found that the summary clearly articulated the chief purpose to "reduce or eliminate the City's unfunded pension liability through the use of a dedicated 1/2-cent sales tax to be adopted for not more than 30 years once the Better Jacksonville 1/2-cent sales tax ends."

We see no problem with this conclusion. Read at face value, the summary first declares what Florida law will require of the City if it wants to levy a surtax to address unfunded pension liabilities. Then, it asks whether the voters want to go forward with adopting such a surtax. More specifically, the summary presents to voters the primary question of whether "to adopt a 1/2-cent sales tax solely dedicated to reducing the City's unfunded pension liability." In doing so, it identifies three statutory preconditions the City must meet to move forward with such a surtax. It says that to adopt a surtax dedicated solely to reducing unfunded pension liabilities, the City must (1) permanently close up to three underfunded defined benefit retirement plans, see § 212.055(9)(a) 1.; (2) increase the employee contribution for those closed plans, see § 212.055(9)(a) 2.; and (3) end the existing Better Jacksonville half-cent sales tax, see § 212.055(9)(a) 4-5. Each of these preconditions comports with requirements set forth in § 212.055(9), which is the statute authorizing all such sales surtaxes. See § 212.055, Fla. Stat. (requiring "any authorization for imposition of a discretionary sales surtax shall be published in the Florida Statutes as a subsection of this section"). By providing these preconditions, the summary comports with the "unifying principle" recognized in ballot title and summary cases of allowing voters "to comprehend the sweep" of a measure. Fla. Educ. Ass'n , 48 So.3d at 701 (quoting Smathers v. Smith , 338 So.2d 825, 829 (Fla. 1976) ).

The second sentence of the summary follows with a question. It asks voters to decide whether "such pension liability sales tax" should be adopted. The "such"

refers voters back to the description of the tax included in the first sentence: "a 1/2-cent sales tax solely dedicated to reducing the City's unfunded pension liability." The second sentence also provides timing information related to the surtax proposal. It informs voters that the tax would end "upon the elimination of the unfunded pension liability or in 30 years maximum." This timing-related fact is partly drawn from § 212.055(9)(f), which provides for the termination of pension liability sales surtaxes when a county reaches or exceeds an actuarial funding level at 100% for the plans or systems funded by the surtax, "or December 31, 2060, whichever occurs first." According to the arguments here and below, the new surtax couldn't be levied by the City until the currently levied Better Jacksonville sales tax expires, which is expected in 2030. Accordingly, the new surtax could only be levied beginning on January 1, 2031, and extend only until the statutorily prescribed termination date on December 31, 2060. The facts thus validate the term provided in the summary of a "30 year maximum"; or, in the very least, convince us that the summary is not affirmatively misleading regarding its chief purpose or the timing of the surtax. See City of Riviera Beach , 87 So.3d at 22.

None of Appellants' various arguments demonstrate that the ballot title and summary are clearly and conclusively defective, or affirmatively misleading. First, Appellants claim that the summary failed to state the chief purpose of the measure. But we are satisfied that the ballot summary did so by asking voters: "Shall such [a 1/2-cent sales tax solely dedicated to reducing the City's unfunded pension liability] ... be adopted?" Along with the chief purpose, the measure also alerted voters to the sweep of the statutory preconditions the City must meet before levying the surtax. The ballot summary didn't have to contain every detail or ramification of the proposed surtax to provide its chief purpose. Fla. Educ. Ass'n , 48 So.3d at 700. Indeed, it couldn't have. Florida law limits the length of ballot summaries to just 75 words. § 101.161(1), Fla. Stat.; see also Leahy , 682 So.2d at 203 (recognizing that the omission of some details or ramifications of an ordinance is not the legal test).

Appellants' second objection is that the ballot summary misled voters by stating that existing underfunded retirement plans would "permanently clos[e]." Their concern is that the "permanently closing" language might have misguided voters into thinking that existing underfunded pension plans would be completely eliminated and closed altogether to current and new participants alike. In reality, adopting the surtax only required existing underfunded plans to be closed to new hires and not to existing plan participants. And the very next clause of the summary supplies some clarity on this point. It informs voters that if the surtax is adopted, then "those plans" will continue operating with an increased employee contribution requirement-up to a minimum 10% contribution. So the summary uses "[p]ermanently closing" in a way analogous with a situation where an investment vehicle becomes closed to new investors-the investment keeps operating for existing investors, but bars entry to new investors. Cf. , Pfeiffer v. Integrated Fund Servs., Inc. , 371 F.Supp.2d 502, 503 (S.D.N.Y. 2005) (describing a mutual fund that was "closed to new investors" in 2003). We are satisfied here that the summary doesn't hide the ball and isn't clearly and conclusively defective.

Appellants' third objection to the ballot summary is that the voters couldn't know the meaning of the 10% contribution increase: "By not defining what it is that is being contributed or how much is currently contributed, the voter could not determine if this potential 'increase' would have been meaningful." But, here again, we are satisfied that the 10% language did not mislead voters, or obscure the chief purpose of the measure. Irrespective of whether some underfunded plan-participants already contribute 10%, as Appellants argue, it is not affirmatively misleading to inform voters, in accordance with one of the statutory preconditions, that minimum contributions will generally increase under the measure to a fixed 10%-or-more minimum contribution for employees in these plans. See § 212.055(9)(a) 2., Fla. Stat. (requiring plan members "to make an employee retirement contribution of at least 10 percent ... beginning with the first pay period after the plan or system is closed").

Appellants raise other objections to the ballot title and summary, including that ending the Better Jacksonville tax wasn't the measure's chief purpose; that plan administrators weren't required to apply surtax funds toward unfunded pensions; that "City" is ambiguous; and that the summary fails to identify how surtax proceeds will be used. With these other arguments, we agree with the trial court's decision to uphold the ballot title and summary. We reject these additional arguments without discussion either on their merits, or because they weren't preserved below.

B.

One of Appellants' other main arguments against the surtax referendum involves the timing of the Jacksonville City Council's ordinance that put the referendum on the ballot. In May 2016, after the Legislature and Governor passed the law authorizing counties to adopt the surtax, see ch. 2016-146, § 2, Laws of Fla., the Council passed an ordinance setting the August 30th referendum. Appellants argue that the Council's action in May, which preceded the July effective date of the statute authorizing counties to levy the surtax, was beyond the Council's legal authority and rendered the referendum void ab initio. But we see no law or case supporting Appellants' argument. The new law itself didn't prescribe the date that counties could pass an ordinance setting a referendum on the surtax. Nor did the ordinance itself attempt to levy a premature surtax; it only authorized an August vote on whether Duval County voters wished to adopt the surtax. Several preconditions still had to be met (and presumably still must be met even now) before the surtax can go into effect. The ordinance recognized the requirement to meet these preconditions, providing for future "separate legislative action" before actually levying the surtax. Ordinance 2016-300-E, § 8. It also specified that the pension liability surtax wouldn't begin until the ending of the Better Jacksonville 1/2-cent sales tax, which isn't until 2030. Id. at § 2. We therefore disagree with Appellants' arguments that the ordinance was unlawful and that the referendum was void from the outset.

Finally, we affirm the order below without additional discussion after having reviewed and rejected Appellants' various other arguments in support of nullifying the referendum results.

III.

For these reasons, the trial court's order granting summary judgment for Appellees is AFFIRMED.

B.L. Thomas, C.J., and M.K. Thomas, J., concur.

      The governments of the City of Jacksonville and Duval County merged into one consolidated government in 1968.

      The parties agreed below that there were no disputed facts and neither party relied on witnesses to make their case.

      Regarding the new surtax's timing, we accept both parties' assurances that there are no material facts at issue.


author: Per Curiam.

text:
    Jon Paul HOGLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4375
    District Court of Appeal of Florida, First District.
    June 18, 2018 Rehearing Denied August 1, 2018
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jon Hogle exposed himself to a thirteen-year-old girl on a panhandle beach. He was convicted of lewd or lascivious exhibition, and he was sentenced to five years in prison and ten years of sex-offender probation. On appeal, he argues that the trial court erred in denying a motion in limine and that fundamental error occurred during the prosecutor's closing statement. We reject these arguments and affirm Hogle's convictions. Hogle also argues that the court erred in imposing various fines and costs during sentencing. We agree that several fines were improper, so we reverse certain aspects of his sentence.

I.

At trial, the victim testified that she was jogging on the beach when she heard Hogle yell to her from a nearby condo. She turned to look and saw Hogle, pants down, touching his erect penis while making eye contact with her. The victim immediately called police and then ran down the beach toward her sister. She pointed out Hogle to her sister, and then she and her sister went inside their condo. The victim told her mother what happened, and everyone waited for police to arrive. The victim and her sister then saw Hogle drive by in a truck two or three times. Police had arrived by the last time Hogle drove by, and an officer took off after Hogle, ultimately stopping and arresting him.

When questioned by officers, Hogle denied exposing himself. But testifying at trial, Hogle admitted pulling his pants down that afternoon. He insisted it was all a misunderstood joke though, and that he neither touched himself nor saw any children around. Instead, he testified, an adult friend had just flashed her breasts, and he responded by momentarily flashing his genitals.

After hearing these competing versions of events, the jury voted to convict.

II.

Hogle first challenges an evidentiary ruling. He contends the trial court should not have allowed testimony that he drove by the victim's condo after the incident. Hogle argues this testimony was irrelevant or, alternatively, that any probative value was substantially outweighed by the risk of unfair prejudice. We review this claim for an abuse of discretion. See Heath v. State , 648 So.2d 660, 664 (Fla. 1994) ("The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion." (citation omitted) ).

As to relevance, Hogle argues that there was no question of identity; after all, he admitted at trial that he was the one on the balcony with his pants down. Where he drove afterward, he argues, is completely irrelevant to whether his behavior on the balcony was criminal. The problem with this argument is that until he testified in his own defense, his identity was in question. The State had to prove that he was the one on the balcony, and the sisters' testimony that they saw the man from the balcony repeatedly drive by their condo-coupled with the officer's testimony that the man they pointed out turned out to be Hogle-was relevant as to whether Hogle was the perpetrator. See Carter v. State , 23 So.3d 1238, 1243 (Fla. 4th DCA 2009) (finding testimony about defendant's companions on the day of carjacking relevant because it tended to prove the material fact of the identity of the assailant). The evidence was relevant, and we do not find the trial court abused its discretion in concluding that the risk of unfair prejudice (if any) did not substantially outweigh the probative value. See § 90.403, Fla. Stat. (2016).

III.

Hogle next argues that the prosecutor's closing argument misstated the law and shifted the burden of proof, warranting a new trial. Because Hogle offered no objection below, we review only for fundamental error. See Rimmer v. State , 825 So.2d 304, 323 (Fla. 2002).

During closing, Hogle's attorney argued that Hogle briefly flashed a friend at the beach and that the victim was mistaken in thinking Hogle had an erection. In rebuttal, the prosecutor responded:

The Judge is going to tell you that a reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence. The defendant took the stand today and he said, I was out there and my friend flashed me and I flashed her back in a joking manner. But the only evidence that we have to support that is Mr. Hogle's testimony. The only evidence to support that claim. And Mr. Hogle himself said that he has been dishonest in the course of this investigation.
So you have to determine whether or not you can believe what he's telling you. Whether or not that testimony is credible. Or whether or not the testimony of [the victim] that's supported by the evidence in this case, that is supported by other testimony[,] whether or not her testimony is credible.... The State has to prove that he exposed himself in a lewd or lascivious manner. And the testimony from [the victim] is that he did.

This argument did not improperly shift the burden of proof. Although the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, Jackson v. State , 575 So.2d 181, 188 (Fla. 1991) (noting that "doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence"), here the prosecutor was instead noting the lack of credible evidence to support Hogle's theory. Defense counsel had challenged the credibility of the victim's testimony during its closing argument, and the prosecutor was permitted to respond. See Bell v. State , 108 So.3d 639, 648 (Fla. 2013) (rejecting burden-shifting argument: "When considered in context, the prosecutor's comment is properly understood as a statement on the jury's duty to analyze the evidence presented at trial followed by the prosecutor's argument regarding what conclusion the jury should reach from the evidence."). We also reject Hogle's argument that the prosecutor misstated the law in such a way as to produce fundamental error.

IV.

Finally, Hogle challenges various fines and costs imposed by the trial court. At sentencing, the court orally imposed a lump sum of $775 in fines and costs, as well as $2,524.79 for the cost of prosecution. The written judgment imposed $3,850.79 in fines and costs based on various statutes. While this appeal was pending, Hogle filed a rule 3.800(b)(2) motion to correct sentence, arguing the lower court erred in imposing seven fines or costs. The court denied the motion, and Hogle now challenges the same seven fees on appeal. We conclude that five of the fees must be stricken, but we affirm the court's imposition of the remaining two.

In the written judgment, the court imposed $225 for felony court costs and an additional $100 for misdemeanor court costs pursuant to section 938.05(1), Florida Statutes. However, because Hogle was not convicted of any misdemeanors, the court should not have included the $100. Additionally, the court imposed a $342.86 fine pursuant to section 775.083, as well as a related $17.14 surcharge pursuant to section 938.04. Because the court imposed these as part of the $775 lump sum, the court erred. See Nix v. State , 84 So.3d 424, 426 (Fla. 1st DCA 2012) ("The fine authorized by section 775.083(1) is discretionary and, thus, it was error for the trial court to impose the $1,050 fine under this statute without specifically pronouncing the fine at the sentencing hearing.... Because this fine was erroneously imposed, the surcharge under section 938.04, which is based on the amount of fine, must also be reversed."). The State concedes these charges must be stricken.

The trial court also imposed a $250 public defender representation fee pursuant to section 938.29(1)(a), as well as $2,5247.79 for prosecution costs pursuant to section 938.27(8). The public defender fee must be stricken because the court did not make findings to support the higher-than-minimum amount permitted by the statute. See Chambers v. State , 217 So.3d 210, 214 (Fla. 4th DCA 2017). The prosecution costs must also be stricken, as the State concedes, because the court imposed the costs without sufficient evidence of actual costs. See § 938.27(8), Fla. Stat. (2016) (requiring state attorney costs to be set at no less than $100 per felony case but permitting the court to set a higher amount "upon a showing of sufficient proof of higher costs incurred"); Brown v. State , 189 So.3d 837, 840 (Fla. 4th DCA 2015) ("[T]he state failed to provide competent substantial evidence of these costs. Although the state attached a 'costs compilation' invoice to its motion for costs of prosecution and proffered testimony from one of its employees, the document never was admitted into evidence and the testimony never was taken. We therefore reverse for a new hearing on costs."). On remand, the court may reimpose these costs after following the proper procedure. We find no error with respect to the remaining aspects of the sentence.

V.

Because there was no reversible error related to the motion in limine or the prosecutor's closing arguments, we affirm Hogle's conviction. But we reverse and remand for resentencing consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED .

Lewis, Kelsey, and Winsor, JJ., concur.