text:
    James J. GIBSON and Lori G. Gibson, Appellants, v. WELLS FARGO BANK, N.A., as successor by merger to Wachovia Bank, Appellee.
    Case No. 2D16-5632
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018 Rehearing Denied October 16, 2018
    Jennifer E. Jones of McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, P.A., Tampa; and Shyamie Dixit and Robert L. Vessel of the Dixit Law Firm, P.A., Tampa, for Appellant Lori Gibson.
    Amy J. Winarksy of Marcadis Singer, P.A., Tampa, for Appellant James J. Gibson.
    Ryan W. Owen of Adams and Reese, LLP, Sarasota, for Appellee.
   LaROSE, Chief Judge.

Dr. Lori and James Gibson appeal the final summary judgment entered in favor of judgment creditor, Wells Fargo Bank, N.A, in proceedings supplementary. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We must determine whether, under Florida law, a creditor may satisfy a debt incurred by one spouse by garnishing a federal tax refund issued in both spouses' names and deposited in their joint checking account. Florida law compels us to conclude that the joint tax refund is tenancy by the entirety (TBE) property not subject to garnishment. Thus, we reverse.

Background

In December 2009, Wachovia Bank sued Mr. Gibson for breach of a promissory note that he, alone, executed in March 2008. The parties stipulated to the entry of a final judgment in favor of Wachovia for over one million dollars.

Following entry of final judgment, the Gibsons filed amended joint federal tax returns for tax years 2003 through 2006, seeking retroactive reduction in their tax burden. See American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, at § 1211, 123 Stat. 115 (2009) (amending section 172(b)(1)(H) of the Internal Revenue Code to extend the carryback period to up to five years for 2008 net operating losses incurred by an eligible small business). Based upon these returns, the Internal Revenue Service issued two tax refund checks; one in June 2011 and the other in April 2014. Each check was payable to both Mr. Gibson and his wife, Dr. Gibson. The refund checks totaled over two million dollars. The Gibsons deposited both checks into their joint account at SunTrust Bank. The parties agree that the Gibsons held the SunTrust account as TBE property.

In October 2014, Wells Fargo Bank, as successor by merger to Wachovia, moved to garnish the SunTrust account. Wells Fargo sought proceedings supplementary under section 56.29, Florida Statutes (2014), and moved to implead Dr. Gibson as a party. Wells Fargo alleged that it could execute on the federal tax refunds in the account to satisfy Mr. Gibson's outstanding judgment.

The trial court granted Wells Fargo's motions for proceedings supplementary and impleader. Thereafter, Wells Fargo moved for summary judgment. The Gibsons opposed the motion and filed their own summary judgment motion, arguing that they held the joint federal tax refunds as TBE. They also maintained that the refunds related to tax years prior to execution of the 2008 promissory note.

The trial court granted Wells Fargo's motion and denied the Gibsons' motion. The trial court found that the refunds "were attributable solely to [Mr. Gibson]'s economic activities." Further, the trial court was persuaded by Wells Fargo's argument that, because the IRS has the ability to apportion tax refunds to each individual spouse, issuance of the joint tax refund checks did not establish TBE property. The trial court entered a final summary judgment providing that Wells Fargo could recover from Dr. and Mr. Gibson "jointly and severally and as tenants by the entireties, the sum of $1,310,491.78" from the SunTrust Account.

Analysis

On appeal, the Gibsons argue that the joint tax refunds, issued in both of their names and deposited in their joint bank account, are TBE property. Therefore, Wells Fargo, a creditor to only Mr. Gibson, cannot reach those funds to satisfy his individual debt. Although they acknowledge that the IRS has statutory authority to attach TBE property in certain circumstances, the Gibsons contend that third-party creditors, such as Wells Fargo, lack such authority. The trial court, in their view, erred in ruling for Wells Fargo.

A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c) ). The parties agree that there are no material facts in dispute. Thus, we review the trial court's entry of summary judgment as a pure question of law. Our review is de novo. See Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007) ("The general 'standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo.' " (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001) ) ).

Finding its origins in paternalistic ideas of property ownership, see First Nat'l Bank of Leesburg v. Hector Supply Co., 254 So.2d 777, 779 (Fla. 1971) ("The historic basis for the [TBE] was the assumed incapacity of married women to hold property individually."), TBE's theoretical underpinnings suit a contemporary ethos. Indeed, "the distinctive feature of a tenancy by the entireties, that husband and wife hold property as an indivisible unit, renders this form of ownership equally well-suited to the concept of modern-day marriage as a partnership between equals." See Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 52 n.7 (Fla. 2001).

In Beal Bank, the Florida Supreme Court answered the following rephrased certified question in the affirmative:

In an action by the creditor of one spouse seeking to garnish a joint bank account titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, should a presumption arise that shifts the burden to the creditor to prove that the subject account was not held as a tenancy by the entireties?

Id. at 48. In so doing, the court eliminated any lingering distinctions between real property and personal property held jointly by wife and husband. See Cacciatore v. Fisherman's Wharf Realty Ltd. P'ship, 821 So.2d 1251, 1253 (Fla. 4th DCA 2002) ("[ Beal Bank ] indicated that the time had come to eliminate that disparity and to accord to personal property in general (not just bank accounts) the same presumption of tenancy by the entireties when jointly owned by husband and wife as that accorded real property jointly owned by husband and wife."). And, the court adopted a presumption "shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created." Beal Bank, 780 So.2d at 58-59 (footnote omitted). Significantly, Beal Bank affirmed that "property held by husband and wife as tenants by the entireties belongs to neither spouse individually, but each spouse is seized of the whole." Id. at 53.

The court spoke broadly, finding strong policy considerations supporting a tenancy-by-the-entireties presumption when "a married couple jointly owns personal property." Id. at 57 ; see also In re Daniels, 309 B.R. 54, 59 (Bankr. M.D. Fla. 2004) ("[W]hile the court in Beal Bank explicitly addressed an issue involving only marital bank accounts, the court also discussed in detail ownership issues surrounding marital personal property in general and expressly concluded that strong policy reasons exist for extending the tenancy by the entireties presumption to jointly owned marital personal property, not just to financial accounts.").

Beal Bank noted that TBE property enjoys six unities:

(1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

780 So.2d at 52 (footnote omitted). The unity of marriage is the unique quality of TBE property. Id. ("Because of the sixth characteristic-unity of marriage-a tenancy by the entireties is a form of ownership unique to married couples."); In re Franzese, 383 B.R. 197, 201 (Bankr. M.D. Fla. 2008) ("Tenancy by the entireties, as defined by applicable Florida law, is a unique form of property ownership only married couples may enjoy.").

State law creates and defines property interests. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Federal tax law, on the other hand, "creates no property rights but merely attaches consequences, federally defined, to rights created under state law." United States v. Nat'l Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985) (quoting United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958) ). Under Florida law, special protections assigned to TBE property which are not afforded to other forms of property ownership underscore the distinctiveness of TBE property. For example, and particularly relevant for us, "[f]unds owned by a husband and wife as tenants by the entireties are 'beyond the reach of a creditor of either one of the tenants. Such funds are immune from garnishment except where the debt was incurred by both spouses.' " Branch Banking & Tr. Co. v. Ark Dev./Oceanview, LLC, 150 So.3d 817, 821 (Fla. 4th DCA 2014) (quoting Antuna v. Dawson, 459 So.2d 1114, 1116-17 (Fla. 4th DCA 1984) ).

[I]f property is held as a joint tenancy with right of survivorship, a creditor of one of the joint tenants may attach the joint tenant's portion of the property to recover that joint tenant's individual debt. However, when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse.

Beal Bank, 780 So.2d at 53 (emphasis added) (citation omitted); accord In re Benzaquen, 555 B.R. 63, 66 (Bankr. S.D. Fla. 2016) ("[P]roperty held as TBE can only be attached by joint creditors of both a husband and wife." (citing Beal Bank, 780 So.2d at 45 ) ).

The Gibsons filed their tax returns jointly as husband and wife. They argue that "once the check was issued, both Dr. Gibson and her husband [possessed the six unities of TBE property]." We agree. It is important, however, to focus on the antecedent act of filing joint returns. We assess, initially, whether TBE status can attach to the anticipated receipt of a tax refund.

The field of bankruptcy law provides the key. "While a debtor may not obtain a refund until the tax year closes, the predicates for receiving the refund may occur prior to filing the bankruptcy petition." In re Uttermohlen, 506 B.R. 142, 148 (Bankr. M.D. Fla. 2012) (citing In re Witko, 374 F.3d 1040, 1043 (11th Cir. 2004) ). "Thus, a debtor possesses 'an existing interest [in the refund] at the time of filing even though his enjoyment of that interest was postponed.' " Id. (alteration in original) (quoting In re Witko, 374 F.3d at 1043 ). Naturally, therefore, by filing jointly, the Gibsons had an expectation of a refund that satisfied the requisite unities of TBE property. See id. ("The Court finds that the Uttermohlens had an interest in the prospective refund at the time of filing and the law presumes that they intended to possess that interest as TBE. They evinced that intent by filing a joint tax refund making them jointly and severally responsible for any tax liability, and received a refund check in both their names."). And once the checks were issued, because either party could have deposited them, the unity of survivorship was satisfied. Cf. § 735.302(1)(a), Fla. Stat. (2014) (providing for the disposition of a federal income tax refund by a surviving spouse).

We are not persuaded by Wells Fargo's efforts to draw the line between the issuance of the refund checks, in the first instance, and their subsequent deposits in the Gibsons' joint account. This temporal legerdemain is insufficient to undermine our determination that the refunds were TBE property. When TBE property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Grp. Sec., Inc., 886 So.2d 295, 297 (Fla. 4th DCA 2004) ("Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession, where the parties clearly intended their property to be held as a tenancy by the entireties by exercising beneficial ownership of the property and controlling the property's disposition."). The Gibsons possessed an interest in their prospective refunds as TBE property at the time they filed their amended joint returns. That interest continued intact following issuance of the checks and their deposits into their joint back account.

Wells Fargo argued to the trial court that the tax code's treatment of refunds, and the IRS's statutory authority to impose tax liens, control any determination of whether the tax refunds are TBE property. See 26 U.S.C.§§ 6321 ("If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person."), 6402(a) (2012) ("In the case of any overpayment, the Secretary ... may credit the amount of such overpayment, including any interest allowed thereon, against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and shall ... refund any balance to such person."). Wells Fargo claimed that because the IRS may apportion tax refunds to each spouse, the joint tax refund checks issued to the Gibsons were not TBE property.

The argument is unavailing. Whatever rules apply to the IRS do not necessarily apply to a creditor such as Wells Fargo. "[W]e are, of course, not bound by the [Middle District]'s decisions on questions of Florida law." Liberty Am. Ins. Co. v. Kennedy, 890 So.2d 539, 541 (Fla. 2d DCA 2005) (citing Int'l Ass'n of Bridge, Structural & Ornamental Iron workers v. Blount Int'l, Ltd., 519 So.2d 1009, 1012 (Fla. 2d DCA 1987), for the "holding that state courts, in construing and interpreting state law, are not bound by the decisions of federal courts"). However, we find Judge Covington's cogent analysis in Uttermohlen, which presents a similar factual scenario as that presented in our case, compelling.

Uttermohlen filed for bankruptcy protection. Uttermohlen, 506 B.R. at 144. He later amended his petition to claim a tax refund of over $10,000, issued to him and his wife jointly, as exempt property. Id. The bankruptcy trustee unsuccessfully objected to the exemption. Id. The district court affirmed the bankruptcy court's order on appeal. Id.; see also 28 U.S.C. § 158(a)(1) (2006) (conferring appellate jurisdiction upon district courts of a bankruptcy court's "final judgments, orders, and decrees").

Judge Covington began her analysis by noting that, under Beal Bank, policy considerations favored the presumption that personal property owned jointly by a married couple is TBE property. Uttermohlen, 506 B.R. at 146. She then discussed In re Sinnreich, 391 F.3d 1295 (11th Cir. 2004), and United States v. Craft, 535 U.S. 274, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), in a manner that undermines Wells Fargo's position:

[In Sinnreich ], a creditor sought to reach assets owned by the debtor and his non-filing spouse as TBE, applying the rationale of United States v. Craft, 535 U.S. 274, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002). In Craft, the Supreme Court held that because each spouse had certain individual rights in TBE property that fell within the meaning of property defined by the Internal Revenue Code, the IRS may attach a lien to TBE property. Id. at 282, 122 S.Ct. 1414. In Sinnreich, the Eleventh Circuit declined to extend the holding in Craft to other creditors, finding that the IRS had 'unique powers' to attach a lien to TBE property. 391 F.3d at 1297. Otherwise, the TBE protection afforded by the Bankruptcy Code would be rendered superfluous. Id. at 1298.

Uttermohlen, 506 B.R. at 147 ; see also Sinnreich, 391 F.3d at 1298 ("Simply stated, the Craft Court announced the rule that the IRS's federal statutory powers to tax and attach liens to property trumped any state property rights afforded to a taxpayer who holds property by the entireties with her spouse. The Craft Court gave no indication that its holding could be extended beyond a tax collection context ...."). Judge Covington then observed that other courts, too, had found that federal law "create[d] a narrow exception allowing only the IRS to defeat the unity of interest that is presumed to exist under Beal Bank." Uttermohlen, 506 B.R. at 147 (quoting In re Newcomb, 483 B.R. 554, 558 (Bankr. M.D. Fla. 2012) (unpublished memorandum opinion) ). Other creditors enjoy no such special status.

Some Florida bankruptcy court decisions are not in accord with Uttermohlen.See, e.g., In re Morine, 391 B.R. 480, 482 (Bankr. M.D. Fla. 2008) ("Because the refund is attributable solely to the Debtor's income and not to his nondebtor spouse, the interest in the refund check only belongs to the Debtor."); In re Kant, 21 Fla. L. Weekly Fed. B59, 2006 WL 4919043 (Bankr. M.D. Fla. Apr. 12, 2006) ("[A] husband and wife may not have the unity of interest in a tax refund that is necessary for a tenancy by the entireties."); accord In re Ascuntar, 487 B.R. 319, 322-23 (Bankr. S.D. Fla. 2013) (reasoning that the debtor could not establish TBE ownership of the refund because there was no unity of interest and concluding that, unless the tax refund is received prepetition and deposited into a TBE account, the expected future income existing on the filing of the individual's bankruptcy petition is not owned as TBE with his or her spouse); In re Rice, 442 B.R. 140, 143-44 (Bankr. M.D. Fla. 2010). Contra In re Smith, 26 Fla. L. Weekly Fed. B111, 2016 WL 675806 (Bankr. M.D. Fla. Feb. 18, 2016) (finding Ascuntar's"holding inconsistent with the fact that there is a presumption in favor of ownership of a joint tax refund as TBE when owned by a married couple, as well as, the decision ... in In re Sinnreich, 391 F.3d 1295 (11th Cir. 2004)" and "[i]nstead, ... adopt[ing] the reasoning and holding ... of In re Newcomb, 483 B.R. 554, 558 (Bankr. M.D. Fla. 2012)... find[ing] the refund is presumably held as TBE by the Debtors and the Trustee has failed to rebut this presumption").

As explained in Newcomb, however, the reasoning behind Morine and Kant and their progeny is questionable:

If creditors other than the IRS were permitted to rely on the IRS's authority to allocate a portion of a joint tax refund to individual spouses as the basis for rebutting the tenancy by the entirety presumption, then a debtor could never establish a tenancy by the entirety in a joint tax refund. Whether a debtor contributed all (as in Kant and Morine ), none, or a portion of the overpayment, the joint tax refund would always be subject to attack by any creditor of just one of the spouses, with the allocation based on 26 U.S.C. § 6402(a). Such a result runs contrary to the limitations imposed by Sinnreich and to the presumption of entirety property afforded by Beal Bank.

Newcomb, 483 B.R. at 558.

We agree. Under Florida law, the Gibsons were entitled to a rebuttable presumption that the tax refunds were TBE property. See Beal Bank, 780 So.2d at 57 (recognizing that "strong[ ] policy considerations favor allowing [a] presumption in favor of a tenancy by the entireties when a married couple jointly owns personal property"). They demonstrated their intent to receive the refunds as TBE property by filing amended joint tax returns and receiving joint refund checks. Whether the refunds were related to Mr. Gibson's economic activity, alone, is irrelevant. See Newcomb, 483 B.R. at 558. They then deposited the checks into their joint bank account. In our view, their actions created the rebuttable presumption. See § 655.79(1), Fla. Stat. (2014) ; see also Beal Bank, 780 So.2d at 58 ("[W]e hold that as between the debtor and a third-party creditor (other than the financial institution into which the deposits have been made), if the signature card of the account does not expressly disclaim the tenancy by the entireties form of ownership, a presumption arises that a bank account titled in the names of both spouses is held as a tenancy by the entireties as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship."). Wells Fargo failed to rebut the presumption.

Wells Fargo urges us to hew to the decision in Hundley v. Marsh, 459 Mass. 78, 944 N.E.2d 127 (2011). Wells Fargo's reliance on that case is misplaced. In Hundley, the United States Court of Appeals for the First Circuit certified to the Supreme Judicial Court of Massachusetts the question of how an income tax refund was to be apportioned between a debtor in bankruptcy and his nondebtor wife with whom he had filed a joint tax return. Id. at 129. " Hundley dealt with the appropriate formula under state law for allocating the ownership of an income tax refund between spouses when the applicable state statute was silent on the issue." In re Provencal, 09-42728-MSH, 2011 WL 2470614, at *1 (Bankr. D. Mass. June 21, 2011).

Beal Bank is not silent, as was the status of Massachusetts law in Hundley. Thus, Wells Fargo's reliance upon Hundley underscores the trial court's error. Despite the TBE presumption established in Beal Bank, the trial court mistakenly allowed Wells Fargo, a creditor to only Mr. Gibson, to seek execution on TBE assets by claiming an authority reserved exclusively to the IRS. See Sinnreich, 391 F.3d at 1298. Hundley's analysis began with the observation that "[a]s a matter of Federal law, the right to a refund resulting from loss-carryback of prepetition losses constitutes property of the estate. Accordingly, any interest that the husband in this case may have in the joint refund is properly in the trustee's possession." 944 N.E.2d at 130 (citations omitted). Wells Fargo is not the IRS and lacks the IRS's special authority under the Internal Revenue Code. To allow otherwise would be to countenance the evisceration of the protections afforded TBE property discussed in Uttermohlen. Thus, Hundley is inapposite.

Conclusion

We reverse the trial court's entry of summary judgment in favor of Wells Fargo and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and SALARIO, JJ., Concur.

      As underscored by Florida law, "[a]ny deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing." § 655.79(1), Fla. Stat. (2014). Our record is devoid of a writing specifying otherwise.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    Hemant N. SHAH and Mayur J. Mehta, Appellants, v. REGIONS BANK, an Alabama state chartered bank, as successor in interest to AmSouth Bank; Big Bend Investment Group of Florida, LLC, a Florida limited liability company; Gautham Sampath; Care Multispecialty Group, P.A., a Florida professional association; Care Dentistry Group, LLC, a Florida limited liability company; and Nigasoft, Inc., a Florida corporation, Appellees.
    Case No. 2D17-1225
    District Court of Appeal of Florida, Second District.
    Opinion filed July 20, 2018 Rehearing Denied October 9, 2018
    Lindsay A. Wickham, Daniel A. Nicholas, and Angela M. Swenka of Litchfield Cavo LLP, Tampa, for Appellant Hemant N. Shah.
    Katie Brinson Hinton of McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, P.A., Tampa, for Appellant Mayur J. Mehta.
    Dominic A. Isgro, John A. Anthony, and Stephenie Biernacki of Anthony & Partners, LLC, Tampa, for Appellee Regions Bank.
    No appearance for remaining Appellees.
   BLACK, Judge.

Hemant N. Shah and Mayur J. Mahta challenge the order denying their motions to vacate the final summary judgment entered in favor of Regions Bank. In their motions, filed pursuant to Florida Rule of Civil Procedure 1.540, Mr. Shah and Mr. Mahta contended that the final judgment is void because the trial court deprived them of their due process rights by entering summary judgment in favor of Regions Bank while affirmative defenses remained pending and in violation of their right to be heard and to present evidence at the hearing. The trial court denied the motions to vacate, finding that it lacked jurisdiction to entertain them. Although they filed the motions jointly below, Mr. Shah and Mr. Mahta filed separate briefs on appeal. In his brief, Mr. Shah contends that the trial court erred in denying the rule 1.540 motions, arguing only the substantive issue of whether the judgment is void. Mr. Mahta raises the substantive issue as well, but he also contends that the trial court incorrectly determined that it lacked jurisdiction to consider the motions. We reverse the denial of the motions to vacate the judgment as to Mr. Mahta; however, we affirm the denial of the motions as to Mr. Shah.

We first address Mr. Mahta's argument that the trial court improperly determined that it lacked jurisdiction to consider the motions. Generally, once a final judgment is rendered "the trial court loses jurisdiction over the case except to enforce the judgment."

Bank One, Nat'l Ass'n v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004). "[T]he one exception to the rule of absolute finality is rule 1.540, 'which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.' " Bane v. Bane, 775 So.2d 938, 941 (Fla. 2000) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986) ). A motion pursuant to subsections (1), (2), or (3) of rule 1.540(b) must be filed within the jurisdictional time limit of the rule: one year from the date of final judgment. Fla. R. Civ. P. 1.540(b) ; see Batronie, 884 So.2d at 349. However, a motion pursuant to rule 1.540(b)(4), alleging that the judgment is void, must be filed "within a reasonable time." Fla. R. Civ. P. 1.540(b). "While it is true that [r]ule 1.540(b)(4) states that a motion for relief from a void judgment must be made within a 'reasonable time,' most courts have felt constrained to interpret the 'reasonable time' requirement of the rule to mean no time limit when the judgment attacked is void." M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000). And this court has expressly stated that "[t]here is no time limitation on setting aside a void judgment." Wiggins v. Tigrent, Inc., 147 So.3d 76, 81 (Fla. 2d DCA 2014).

Based on the allegation that the final judgment is void, it is clear that the court did not lose jurisdiction by the passage of time. Thus, the trial court erred in denying the motions on the basis that it lacked jurisdiction to consider them. However, only Mr. Mahta is entitled to relief on this basis. Mr. Shah is not entitled to relief despite the erroneous ruling of the trial court because Mr. Shah has not raised the issue for which reversal is warranted.

Given that no evidence was presented at the hearing-for reasons that appear to be based on the court's initial statement that it did not have jurisdiction-we cannot determine if denial of the motion would otherwise have been appropriate. We note that where a rule 1.540 motion is facially sufficient and alleges a colorable entitlement to relief, a formal evidentiary hearing should be held. See Minda v. Minda, 190 So.3d 1126, 1128 (Fla. 2d DCA 2016) ; see also Pallai v. Dep't of Revenue, 955 So.2d 1205, 1206 (Fla. 2d DCA 2007) ("The trial court should have conducted an evidentiary hearing to consider the merits of the [motion].").

Affirmed in part, reversed in part, and remanded.

VILLANTI and CRENSHAW, JJ., Concur.

      Mr. Shah and Mr. Mahta, defendants in the action below, filed a joint "Motion for Relief from Judgment" in 2011 and a joint "Amended Motion for Relief from Final Judgment" in 2016, followed by an "Emergency Amended Motion for Emergency Relief from Final Judgment." Throughout this opinion, we will refer to the motions collectively.

      We note because the court did not reach the merits of the motions for relief from judgment, a second motion would not be barred as successive. See Minda v. Minda, 190 So.3d 1126, 1127 (Fla. 2d DCA 2016) ("A second motion for relief from judgment is improper if it attempts to relitigate issues decided by a previous order. However, because the first motion was denied as facially insufficient, none of the former wife's claims were adjudicated on the merits. Accordingly, the second motion was not successive ...." (citation omitted) ).


author: KHOUZAM, Judge.

text:
    Trumaine MOODY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5533
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018 Rehearing Denied September 18, 2018
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrew Tetreault, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Following the denial of his dispositive motion to suppress and his entry of a no contest plea, Trumaine Moody appeals his judgment and sentence for possession of cocaine in case 16-CF-81. He also challenges the revocations of his probation and sentences in cases 12-CF-516, 12-CF-518, and 12-CF-520. We affirm without comment the revocations and resulting sentences in those three cases. However, because the State failed to show by clear and convincing evidence that there was an unequivocal break between the initial illegal stop and Mr. Moody's alleged consent to search, we reverse and vacate Mr. Moody's conviction and sentence for possession of cocaine in case 16-CF-81.

An anonymous tipster flagged down a deputy of the Hendry County Sheriff's Office to tell him that a black male wearing a red, yellow, and black jacket was carrying a gun and standing outside a convenience store. The deputy called another deputy, and they met in front of the convenience store, where they observed Mr. Moody, a black male fitting the tipster's description. Upon noticing the patrol cars, Mr. Moody stuck his hands in his pockets and walked hunched over into the store. The deputy followed Mr. Moody into the store, where he stopped and patted him down in search of a weapon. After not finding a weapon, the deputy explained to Mr. Moody why he had stopped him. The deputy then asked Mr. Moody if he had anything in his pockets that he "shouldn't have." When Mr. Moody said "no," the deputy asked if he could search Mr. Moody's pockets. Mr. Moody replied, "I ain't got nothing, yeah, go ahead." The deputy searched Moody's pockets and found cocaine. The deputy testified that "maybe a minute" elapsed between the first stop and frisk and the subsequent search of the pockets.

Mr. Moody moved to suppress the cocaine. He argued that because the initial stop was unlawful, he did not voluntarily consent but rather acquiesced to the deputy's request to search his pockets. The trial court, however, denied Mr. Moody's motion. The trial court found that even though the first stop and frisk was illegal as there was "nothing ... that would support any kind of search at that point," the trial court concluded that Mr. Moody's consent to search was voluntary and was not "fruit of the poisonous tree." The trial court reasoned that Mr. Moody's consent to the second search was voluntary because the deputy's conversation with Mr. Moody was sufficient to dispel Mr. Moody's "initial fear [of] the officer." We disagree.

In reviewing a trial court's ruling on a motion to suppress, "this court uses a dual standard." Young v. State, 207 So.3d 267, 269 (Fla. 2d DCA 2016). That is, while we defer to the trial court's findings of fact that are supported by competent substantial evidence, we review de novo the trial court's "application of the law to the facts." Id. (citing Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003) ).

The voluntariness of a defendant's consent is determined from the totality of circumstances.

Hardin v. State, 18 So.3d 1246, 1248 (Fla. 2d DCA 2009) (citing Kutzorik v. State, 891 So.2d 645, 647 (Fla. 2d DCA 2005) ). "[W]hen consent is obtained after illegal police activity ... the unlawful police action presumptively taints and renders involuntary any consent to search." Ingraham v. State, 811 So.2d 770, 774 (Fla. 2d DCA 2002) (alteration in original) (quoting Connor v. State, 803 So.2d 598, 609 (Fla. 2001) ). The State may rebut this presumption of involuntariness "only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action." Norman v. State, 379 So.2d 643, 647 (Fla. 1980). "[T]he taint may be dissipated by advice to the defendant of his right to refuse to consent so as to render the subsequent consent free and voluntary." State v. Boyd, 615 So.2d 786, 790 (Fla. 2d DCA 1993). To determine whether the evidence was obtained by exploitation of the illegal stop or instead by means sufficiently distinguishable so as to purge the evidence of the primary taint, we take into account three factors: "(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." State v. H.D., 113 So.3d 917, 918 (Fla. 2d DCA 2013) (quoting State v. Frierson, 926 So.2d 1139, 1143 (Fla. 2006) ).

This court previously ruled on a case involving the denial of a motion to suppress with a nearly indistinguishable fact pattern. In Reed v. State, 577 So.2d 1362 (Fla. 2d DCA 1991), police officers stopped two black men based on a radio dispatch that two black males involved in drug activity were believed to be carrying firearms in the area. Id. at 1363. The officers immediately advised the defendant that they were going to conduct a pat down for weapons. Id. After not finding any weapons on the defendant, one of the officers explained to the defendant why they were in the area. Id. The officer then informed the defendant of his right to refuse consent and asked the defendant if he could search his pockets. Id. The defendant responded that he would not mind, and the officer searched and found illegal drugs in the defendant's pocket. Id. This court reversed the denial of the motion to suppress, holding that "there was no unequivocal break between the illegal stop of the [defendant] and his consent to the search." Id. Accordingly, even though the officer advised the defendant of his right to refuse consent, this court concluded that the defendant's consent was tainted by the illegal stop. Id.

Here, we conclude that the State did not show by clear and convincing evidence that there was an unequivocal break between the initial illegal stop and Mr. Moody's alleged consent to search. Like in Reed, the only intervening circumstances between the illegality and the acquisition of the evidence was the deputy's explanation as to why he had stopped Mr. Moody and the deputy's request to search Mr. Moody's pockets. Such facts do not sufficiently purge the taint of the prior official illegal action. See id. Nor does the brief amount of time-about one minute-remove that taint. And while we recognize that the official misconduct does not appear to be flagrant or driven by some unlawful purpose, the record is clear that the deputy did not attempt to dissipate the taint of the initial illegal stop in any way. The deputy simply exploited the initial unlawful stop and frisk by asking Mr. Moody if he had anything illegal on him and whether he could search his pockets. Indeed, unlike the officer's conduct in Reed, the deputy here failed to inform Mr. Moody that he was free to either refuse consent or leave prior to the search of his pockets. As such, because the State failed to clearly and convincingly show an unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior official illegal action, the trial court erred in denying Mr. Moody's motion to suppress.

Therefore, we reverse the trial court's denial of Mr. Moody's motion to suppress and vacate his judgment and sentence in case 16-CF-81. We affirm in all other respects.

Affirmed in part, reversed in part, and vacated.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The State does not challenge the trial court's determination that the initial stop of Mr. Moody was unlawful.

      "Although the State normally must prove voluntariness of consent only by a preponderance of the evidence, '[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action.' " Ballenger v. State, 16 So.3d 1022, 1025 (Fla. 2d DCA 2009) (alteration in original) (quoting Reynolds v. State, 592 So.2d 1082, 1086 (Fla. 1992) ).


author: LaROSE, Chief Judge.

text:
    STATE of Florida, Appellant, v. Emmet ZACHERY, Appellee.
    Case No. 2D16-5036
    District Court of Appeal of Florida, Second District.
    Opinion filed July 25, 2018. Rehearing Denied October 19, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter N. Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Chief Judge.

The State appeals the trial court's order granting Emmet Zachery's motion to suppress evidence. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). As explained below, the trial court erred in granting the motion. Accordingly, we reverse.

I. Procedural and Factual Background

The State charged Mr. Zachery with tampering with physical evidence. See § 918.13, Fla. Stat. (2016). Mr. Zachery filed a motion to suppress evidence (i.e., hand-rolled spice joints), arguing that it was obtained through an illegal stop and search. At an evidentiary hearing on the motion, the arresting officer, Kurt Bradshaw, testified to the following facts.

Early on a summer evening, Officer Bradshaw was on patrol, driving his cruiser near downtown St. Petersburg in the area of a homeless shelter. He saw Mr. Zachery talking with another male. Officer Bradshaw had no prior contact with Mr. Zachery. He recognized the other person, however, as someone he had arrested before for drug offenses. When Officer Bradshaw initially drove by the two men, from five to ten feet away, he saw that Mr. Zachery had his hand extended, palm up, holding what Officer Bradshaw described as several hand-rolled spice joints.

Officer Bradshaw made a U-turn and parked his cruiser on the street. Seeing Officer Bradshaw, Mr. Zachery immediately started to walk away. Officer Bradshaw exited his cruiser and called to Mr. Zachery. When Mr. Zachery stopped, Officer Bradshaw saw what appeared to be the spice joints in Mr. Zachery's clenched right hand. Officer Bradshaw then asked Mr. Zachery to "[j]ust drop them to the ground." Mr. Zachery "bladed" his body, as if using his body to place himself between Officer Bradshaw and Mr. Zachery's own right hand. Officer Bradshaw was concerned that Mr. Zachery was attempting to hide the spice joints and was going to either run or punch him.

At that point, Officer Bradshaw grabbed Mr. Zachery and put him against the cruiser to place him under arrest for possession of contraband. Mr. Zachery crumbled the joints in his right hand and tried to throw them over a chain-linked fence. Mr. Zachery failed to clear the fence. Officer Bradshaw recovered the items and identified them as nine hand-rolled spice joints. Upon arresting Mr. Zachery, Officer Bradshaw discovered another spice joint in Mr. Zachery's pocket.

Officer Bradshaw was a thirteen-year veteran of the St. Petersburg Police Department. He received extensive training in narcotics and narcotics detection. He had patrolled this area of St. Petersburg for three years. According to Officer Bradshaw, the area is known for its spice usage and sales. During the three years working in the area, Officer Bradshaw made "hundreds" of spice arrests and had been involved in spice-related incidents on a daily basis. Officer Bradshaw testified that, in his experience, he has only ever found spice in hand-rolled items recovered in the area. Officer Bradshaw testified that, based on his experience and training, spice joints are clearly distinguishable from hand-rolled cigarettes; they are thinly shaped and look like a lollipop stick.

The State admitted the spice joints into evidence. The trial court examined them and concluded that they were indistinguishable from cigarettes. Consequently, the trial court found that Officer Bradshaw had conducted an illegal stop when he asked to speak with Mr. Zachery as no probable cause existed to believe that Mr. Zachery had committed or was committing a crime. The trial court also found that Officer Bradshaw conducted an illegal search when he asked Mr. Zachery to drop the alleged contraband. The trial court reasoned that there was no reason to detain Mr. Zachery merely because the stop occurred in an area known for spice use and sales. The trial court suppressed the evidence and the State appealed.

II. Analysis

A. Whether Officer Bradshaw was Justified to Stop.

The State maintains that Officer Bradshaw's initial contact with Mr. Zachery was consensual. The State also contends that Officer Bradshaw's request that Mr. Zachery drop the spice joints was not an illegal search because the officer had reasonable suspicion to then proceed with an investigatory stop. More specifically, the State argues that Officer Bradshaw had reasonable suspicion to order Mr. Zachery to drop the spice joints based on the facts and circumstances known to Officer Bradshaw. Mr. Zachery, on the other hand, contends that Officer Bradshaw lacked reasonable suspicion or probable cause to believe that Mr. Zachery had committed a crime.

"When reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo, but a reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence." Duke v. State, 82 So.3d 1155, 1157-58 (Fla. 2d DCA 2012) (quoting Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005) ).

A consensual encounter is an encounter between a police officer and an individual where a citizen is free to leave; a well-founded suspicion of criminal activity is not required. Popple v. State, 626 So.2d 185, 186-87 (Fla. 1993). An investigatory stop occurs when an officer temporarily detains a citizen based on a reasonable suspicion that the citizen has committed, was committing, or is about to commit a crime. Id. at 186. A reasonable suspicion is "a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge." Bailey v. State, 717 So.2d 1096, 1097 (Fla. 5th DCA 1998) (emphasis added); see also United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ("[T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."). We consider various factors to assess "reasonable suspicion." See Brown v. State, 719 So.2d 1243, 1245 (Fla. 5th DCA 1998) (observing relevant factors such as "the location, the physical appearance of the suspect, the behavior of the suspect ... and anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge" (emphasis added) ); see also Santiago v. State, 941 So.2d 1277, 1279 (Fla. 4th DCA 2006) (considering the time, day of the week, location, the suspect's physical appearance, and the suspect's behavior in determining whether reasonable suspicion exists). We should not ignore factors such as "the officer's narcotics experience; the reputation of the location for drive-up transactions; ... the history of previous multiple arrests from that site;" and "[a] suspect's flight from an officer." Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006) (first quoting Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995) ; then citing Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ).

The circumstances observed and known by Officer Bradshaw justified an investigatory stop. Officer Bradshaw observed Mr. Zachery holding what appeared to be spice joints. Cf. Sanchez v. State, 507 So.2d 673, 673 (Fla. 3d DCA 1987) ("The officer's 'plain view' perception of a hand[-]rolled marijuana cigarette in Sanchez's shirt pocket provided sufficient probable cause to arrest Sanchez and conduct an inventory search of Sanchez's automobile."). Officer Bradshaw had extensive experience and training with narcotics. In virtually all of the hundreds of arrests Officer Bradshaw made in that area, he had always discovered spice in hand-rolled joints. Based on his experience, he was able to identify the items in Mr. Zachery's hand. Additionally, the area was known for spice use and transactions.

Further, Mr. Zachery exhibited evasive behavior upon seeing Officer Bradshaw. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (finding that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion").

Our determination is based on, as it should be, the totality of the circumstances as interpreted in light of Officer Bradshaw's knowledge and experience. See Brown, 719 So.2d at 1245. Accordingly, the trial court's observation and opinion that the spice joints were indistinguishable from cigarettes is not determinative as to whether a well-founded articulable suspicion of criminal activity existed. Cf. State v. Fischer, 987 So.2d 708, 713 (Fla. 5th DCA 2008) ("Whether [the officers] knew for certain it was cocaine or whether it was within the realm of possibilities that the substance could have been something other than cocaine is not the standard; the proper standard is whether 'the facts available to the officer would lead a reasonable man of caution to believe that certain items may be contraband.' Here, instead of basing its ruling on the credibility of the officers, or lack thereof, the trial court granted the motion based on a misapprehension of the applicable law." (quoting State v. Walker, 729 So.2d 463, 464 (Fla. 2d DCA 1999) ) ).

Officer Bradshaw's personal observations, coupled with Mr. Zachery's evasive behavior in a high-crime area, created a reasonable suspicion that Mr. Zachery had committed, was committing, or was about to commit a violation of the criminal laws of this state. Cf. P.L.R. v. State, 455 So.2d 363, 366 (Fla. 1984) (holding that the officer had probable cause to arrest the defendant where "the officer was at a narcotics transaction site, making a narcotics arrest, when he observed the envelope in the defendant's pocket"; and where the officer "testified that the only thing he had ever seen these envelopes used for at this location was narcotics transactions"). Therefore, Officer Bradshaw conducted a proper investigatory stop when he asked Mr. Zachery to stop.

B. Whether Officer Bradshaw had Probable Cause to Arrest Mr. Zachery and Seize the Spice Joints.

The State argues that Officer Bradshaw had probable cause to grab and arrest Mr. Zachery and seize the spice joints based on the facts that justified the investigatory stop and, in addition, because of Mr. Zachery's "elusive behavior to hide and destroy [the spice joints]." Mr. Zachery contends that Officer Bradshaw's observations and knowledge, even coupled with Mr. Zachery's evasive maneuvers did not create probable cause to arrest.

An officer must have probable cause to arrest and search a person without a warrant. Gomez v. State, 155 So.3d 1184, 1187 (Fla. 4th DCA 2014). Probable cause exists where the totality of "the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." State v. Hankerson, 65 So.3d 502, 506 (Fla. 2011) (alterations in original) (quoting State v. Betz, 815 So.2d 627, 633 (Fla. 2002) ). "[O]bservation of suspected contraband can suffice to provide an officer with probable cause if other circumstances exist to corroborate the officer's suspicion." Parker v. State, 693 So.2d 92, 94 (Fla. 2d DCA 1997). "Relevant to this inquiry is the officer's specific experience with respect to the particular narcotic in question." Doctor v. State, 596 So.2d 442, 445 (Fla. 1992). The State must present more, however, than a "naked subjective statement" by the officer that he had a feeling based on his experience. See id. (finding that the State provided the specific factual basis of the officer's experience to establish probable cause where the officer "offered specific statistics evidencing his significant experience with this particular aspect of drug trafficking").

Mr. Zachery's reliance on Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978), is misplaced. In Carr, we held that seeing two twisted cigarettes in the vehicle, without any more facts, was not enough to provide the officer with probable cause to search the vehicle, seize the paraphernalia within it, and to arrest the defendant. Id. at 959. The officer in Carr testified that he "knew" the cigarettes contained marijuana but he failed to testify to any facts or experience to support that claim. Id."[T]here was no evidence that the search[ ] and seizure[ ] in [ Carr ] occurred at [a] narcotics-transaction site[ ] where the type of container seized was utilized as a principal means to convey narcotics." P.L.R., 455 So.2d at 366.

In contrast, Officer Bradshaw's testimony is similar to an officer's testimony in Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979). In Adams, the officer searched and arrested the defendant after he observed half of a plastic baggie containing a number of small hand-rolled cigarettes protruding from defendant's sweater pouch. Id. at 639.

The officer testified that the area was a high crime area; it was uncommon to find hand-rolled cigarettes not to be marijuana in that area; it was common to find marijuana cigarettes carried in baggies; and that from his experience, the cigarettes looked like marijuana cigarettes because of the way they were rolled.

Id. The officer "had been patrolling the area for three years and had made from 50 to 100 narcotic arrests." Id. The court held, "the hard facts as testified to by [the officer] gave him probable cause to believe that an offense was being committed in his presence," even though the officer had not actually seen the marijuana before concluding that the defendant was in possession of marijuana. Id.

Like the officer in Adams, Officer Bradshaw testified that he had been patrolling the area for three years, that he had made hundreds of spice-related arrests in the area, that the area was a high-crime area, that it was uncommon to find hand-rolled joints not containing spice in that area, and that he believed, from his experience, the joints were spice joints because of the way they looked and were rolled. The facts and circumstances within Officer Bradshaw's knowledge gave Officer Bradshaw probable cause to believe that Mr. Zachery had or was committing a criminal offense in his presence. See Hankerson, 65 So.3d at 506 ; Doctor, 596 So.2d at 445 ; Adams, 375 So.2d at 639. Thus, Officer Bradshaw legally arrested and searched Mr. Zachery. See Huffman, 937 So.2d at 208.

III. Conclusion

The trial court erred in granting the motion to suppress. We reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

ROTHSTEIN-YOUAKIM, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

I agree with the majority's conclusion that the order granting Zachery's motion to suppress must be reversed because the totality of the circumstances justified Zachery's stop, arrest, and search. Further, I agree that the trial court's observation that the spice joints were indistinguishable from hand-rolled cigarettes, based on the court's own opinion, cannot be the basis for the suppression order.

Other than making the observation regarding the spice joints, the trial court made no findings as to the evidence presented at the suppression hearing. Specifically, the court did not reject the credibility of the officer who testified as to his training, experience, and the circumstances that he encountered. Had the court determined that the testimony was not credible, then an order granting suppression likely would be upheld as credibility is within the province of the trial court. See Dunk v. State, 206 So.3d 166, 166 (Fla. 2d DCA 2016) ; Wilson v. State, 191 So.3d 537, 538 (Fla. 1st DCA 2016). But in this case, the court's observation as to the spice joints, standing alone and unsupported by any evidence or a finding that the officer's testimony was not credible, does not provide a basis for the order granting suppression.

      The Fourth District certified conflict with Carr in P.L.R., 435 So.2d at 854, and the Third District disagreed with Carr in Council v. State, 442 So.2d 1072, 1073 (Fla. 3d DCA 1983).


author: MORRIS, Judge.

text:
    Lorraine KOWALSKI, Appellant, v. Richard ROSENBAUM, as Personal Representative of the Estate of Leon Paul Kowalski, Jr., deceased; and Stefanie Mead, Appellees.
    Case No. 2D17-2873
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018 Rehearing Denied October 24, 2018
    Glenn N. Siegel of Glenn N. Siegel, P.A., Port Charlotte, for Appellant.
    David K. Oakes of David K. Oakes, P.A., Punta Gorda, for Appellee Stefanie Mead.
    No appearance for remaining Appellee.
   MORRIS, Judge.

Lorraine Kowalski appeals an order confirming a special master's report in the probate proceedings of her deceased husband's estate. We affirm the order confirming the special master's findings and conclusions, but we write to discuss Kowalski's claim that certain money was not subject to probate because it was held by her and the decedent as tenants by the entireties.

Kowalski and the decedent were still married but had been separated for approximately sixteen years at the time of the decedent's death in 2015. In a will executed prior to his death, the decedent left the majority of his estate to his long-term, live-in girlfriend. Kowalski sought an elective share of the estate. A special master was appointed to determine critical issues, and the special master found, among other things, that Kowalski was in possession of money that belonged to the decedent's estate. Specifically, the special master found that the Kowalskis had received $3,445,066 from the sale of their business real estate in 2006 and that one half of that amount ($1,722,533) belonged to the decedent. He had received $1,008,547 during his life, and the remaining amount of $713,986 was now due to his estate. The special master ordered Kowalski to tender the money to the estate. The trial court confirmed the special master's report.

On appeal, Kowalski argues that the trial court erred in approving the special master's report because the money was held by her and the decedent as tenants by the entireties and was therefore not subject to probate upon the decedent's death. She contends that a presumption of tenancy by the entireties arose regarding the remaining proceeds from the sale of the couple's business real estate and that there was no evidence rebutting that presumption.

"A unique aspect of a tenancy by the entirety is that each spouse is 'seized of the whole or the entirety, and not of a share, moiety, or divisible part.' " Sitomer v. Orlan, 660 So.2d 1111, 1113 (Fla. 4th DCA 1995) (quoting Bailey v. Smith, 89 Fla. 303, 103 So. 833, 834 (Fla. 1925), receded from on other grounds by Beal Bank, SSB v. Almand & Associates, 780 So.2d 45, 59 (Fla. 2001) ). In other words, "property held by husband and wife as tenants by the entireties belongs to neither spouse individually, but each spouse is seized of the whole." Beal Bank, SSB, 780 So.2d at 53. "The important attribute separating a joint tenancy from a tenancy by the entirety is that in a tenancy by the entirety neither spouse may sever or forfeit any part of the estate without the assent of the other, so as to defeat the right of the survivor." Sitomer, 660 So.2d at 1113 (citing cases).

When a married couple holds money in a jointly-titled bank account, a rebuttable presumption arises in favor of a tenancy by the entireties, unless the terms of the account expressly disclaim the tenancy by the entireties form of ownership. See Beal Bank, SSB, 780 So.2d at 57. Here, Kowalski did not offer testimony that the money from the sale was held in an account that was titled in both of their names; in fact, she appears to have conceded that the money was held in accounts titled solely in her name. Thus, she has not demonstrated that the presumption applies. But we must still consider whether Kowalski proved that the funds were held by her and the decedent as tenants by the entireties. See id. at 61 (recognizing that when no presumption arises, a party may still prove a tenancy by the entireties).

There was no dispute that the business property that was sold constituted marital property. Generally, "[t]he proceeds from the sale ... of tenancy by the entireties property are also held as a tenancy by the entireties and are owned in total by both the husband and the wife." Passalino v. Protective Grp. Sec., Inc., 886 So.2d 295, 297 (Fla. 4th DCA 2004) (citing cases). However, the character of the proceeds may change if the parties intended to change the character. Id. The question is whether Kowalski and the decedent intended to hold the funds as tenants by the entirety. "Whether the parties created a tenancy by the entireties in a bank account-whether they were each taking the whole of the account-is a question of fact." Sitomer, 660 So.2d at 1115. A tenancy by the entireties can be terminated by the agreement of the owners, and "[t]he agreement need not be explicit" but "can be inferred from the conduct of the parties." Passalino, 886 So.2d at 297.

At the hearing, Kowalski testified that she "hung on [to] those moneys" and that in her mind, she did not "divide that amount, one-half for [the decedent], one-half for" herself. She also testified that the decedent "did not expect everything to be cut down the middle." She testified that the decedent did not have control over the money; he would come to her when he needed money. At the time of his death, the decedent had received a little over $1,000,000. Kowalski also testified that if the decedent had lived and had continued to ask for money, she would have

wanted answers and money from him, so it came out equal. I would have wanted all of it be figured out as a lump sum. Take the proceeds of the sale of the land and the proceeds of the sale of the inventory and the equipment and then figure out the 50 percent.

She also testified that she began to get concerned after he had asked for amounts reaching a total of $1,000,000.

Based on the testimony given by Kowalski, the special master did not err in finding that she and the decedent did not own the money as tenants by the entireties at the time of his death. While her initial testimony suggested that she and the decedent were not intending to split the money down the middle, her subsequent testimony more clearly explained that she believed that each of them owned fifty percent of the funds. Such testimony indicates that the parties were not intending to each own the whole of the money but rather that they each intended to own a divisible part of the money, and it is consistent with the fact that they had separated and were living separate lives. Further, the entireties character of property is terminated when one of the parties maintains sole control and the other party can no longer exercise control over the property. See Passalino, 886 So.2d at 298. While the decedent had obtained significant funds from Kowalski (over $1,000,000), she exercised sole control over the money. She had not yet disbursed half of the total funds to the decedent, but her testimony indicated that she would not have given him more than half of the total funds, supporting a finding that the parties each owned half of the funds. The trial court did not err in confirming the special master's report directing Kowalski to give the remainder of the decedent's half to the estate. See Jaeger v. Jaeger, 182 So.3d 697, 700 (Fla. 4th DCA 2015) ("A trial court is bound by a master's factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous." (citing Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014) ) ).

Affirmed.

VILLANTI and ATKINSON, JJ., Concur.


author: ROTHENBERG, C.J.

text:
    Manuel A. JUNES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2251
    District Court of Appeal of Florida, Third District.
    Opinion filed September 05, 2018
    Manuel A. Junes, in proper person.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   ROTHENBERG, C.J.

Manuel A. Junes ("the defendant") appeals the trial court's order treating his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) as a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and denying the motion as untimely filed. Because we conclude that the defendant's motion was properly filed under rule 3.800(a), it was not time-barred. We, therefore, reverse the order on appeal for consideration on the merits under rule 3.800(a).

Reversed and remanded.

      Although we ordered and received a response by the State addressing the merits of the defendant's claims, we are without jurisdiction to address the merits in the first instance. We, therefore, remand the motion for proper consideration by the trial court. The State is free to re-submit its response on the merits to the trial court.


author: PER CURIAM.

text:
    Neelam T. UPPAL, Petitioner, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Respondent.
    Case No. 2D18-808
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Neelam T. Uppal, pro se.
    Christine E. Lamia, Chief Appellate Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The petition for certiorari is dismissed and the petition for prohibition is denied.

NORTHCUTT, CRENSHAW, and ROTHSEIN-YOUAKIM, JJ., Concur.


author: Per Curiam.

text:
    Earnest D. BOLTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2483
    District Court of Appeal of Florida, First District.
    September 12, 2018 Rehearing Denied November 7, 2018
    Earnest D. Bolton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Rowe, and Kelsey, JJ., concur.


author: LAGOA, J.

text:
    Joel C. ADAMS, Petitioner, v. UTAH POWER SYSTEMS, LLC, Respondent.
    No. 3D18-1113
    District Court of Appeal of Florida, Third District.
    Opinion filed September 14, 2018
    Law Office of Jerry D. Haynes, P.A., and Jerry D. Haynes, Fort Lauderdale, for petitioner.
    Richards Goldstein LLP, and Richard L. Richards, Jason Goldstein, and Joshua Saval, Coral Gables, for respondent.
    Before LAGOA, FERNANDEZ, and LUCK, JJ.
   LAGOA, J.

Joel C. Adams ("Petitioner") petitions this Court for a writ of habeas corpus seeking to quash the trial court's writ of bodily attachment issued against him. We grant the petition, quash the writ of bodily attachment, and order Petitioner's release.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner resides in Niceville, Florida, and is the owner of NJJ Power Service, L.L.C. ("NJJ"). In the underlying proceedings, Utah Power Systems, LLC ("UPS"), filed suit against Petitioner and NJJ, and on July 10, 2017, the trial court entered final summary judgment in favor of UPS. In order to aid in the execution of the judgment, UPS served interrogatories and first requests for production on Petitioner and NJJ on October 16, 2017. On December 12, 2017, UPS obtained a writ of execution against Petitioner.

On March 1, 2018, the trial court held a "Hearing to Show Cause ... why [Petitioner and NJJ] should not be held in contempt of court for [their] failure to comply with this Court's order entered on December 19, 2017, in which the Defendants were to respond to discovery propounded by [UPS]." Petitioner did not appear at this hearing even though he was properly served. On March 6, 2018, the trial court subsequently issued a Writ of Bodily Attachment against Petitioner. In its Writ of Bodily Attachment, the trial court found that Petitioner:

individually and as representative of NJJ Power Services, L.L.C., is in willful contempt of court for failure to comply with the subpoena, served November 7, 2017, with this Court's Order to Compel Discovery Responses, entered December 19, 2017, and with the Order to Appear and Show Cause, entered February 8, 2018.

The trial court further found that Petitioner "has the ability to purge this contempt and may purge this contempt by properly responding to all outstanding discovery," and directed any authorized law enforcement personnel who took the Petitioner into custody to bring Petitioner before the court "within 48 hours of execution of the writ for a hearing to determine whether the individual wishes to purge the contempt." The Okaloosa County sheriff subsequently arrested Petitioner on April 9, 2018, and Petitioner was eventually transported to Miami-Dade County on April 26, 2018.

On April 23, 2018, Petitioner filed an "Emergency Motion to Quash Writ of Bodily Attachment and to Rescind Warrant for [Petitioner's] Arrest" (the "First Motion to Quash"). In his First Motion to Quash, Petitioner stated that he had obtained counsel and had been previously representing himself and NJJ. Petitioner alleged that: (1) on April 13, 2018, he had "made efforts to comply with [UPS's] discovery requests by faxing and filing written responses" to "[UPS's] First Requests for Admission to Defendants," filed on June 28, 2017, and to "[UPS's] Interrogatories in Aid of Execution," filed on October 16, 2017; (2) the Okaloosa County sheriff was not adhering to the trial court's order requiring Petitioner to be brought in front of the court within forty-eight hours of his detention; (3) Petitioner needed to be released from jail to properly access his computer systems in order to properly comply with pending requests for production; and (4) Petitioner had "attempted to alert the Court of his inability to attend recent hearings ... by filing letters concerning his health conditions" on March 1, 2018. Our review of the discovery responses indicates that it is unclear whether Petitioner answered UPS's discovery requests in his individual capacity or as representative of NJJ, or both.

On April 27, 2018, the trial court held a specially set hearing on Petitioner's First Motion to Quash. Petitioner alleges that at this hearing, contrary to the provision in the Writ of Bodily Attachment requiring Petitioner to be brought in person to the court, the trial court proceeded with the hearing without the presence of Petitioner, who was in the process of being transported to the court from the Miami-Dade County correctional facility. At the hearing, Petitioner's counsel argued that Petitioner needed to be released in order to return to Niceville to produce any documents responsive to UPS's requests for production. The trial court denied this motion.

Then, on May 1, 2018, UPS filed an "Ex Parte Motion for Break Order" against Petitioner in order to enforce its writ of execution. The trial court granted UPS's motion, ordering the Okaloosa County sheriff to enter Petitioner's property in Niceville for the purpose of cataloging Petitioner's assets. Petitioner asserts that the Okaloosa County sheriff seized computers and cellular phones in the execution of this break order.

On May 3, 2018, Petitioner and NJJ gave notice to the trial court that "documents responsive to [UPS's] Requests for Production in Aid of Execution were served to [UPS's] counsel on May 1, 2018 via electronic mail," consisting of 504 pages in nine separate files. This notice is clear that the response to UPS's request for production is made on behalf of both Petitioner and NJJ. On May 4, 2018, Petitioner filed a third "Emergency Motion to Quash Writ of Bodily Attachment and to Rescind Warrant for Defendant's Arrest" (the "Third Motion to Quash"), alleging that Petitioner had "responded to all outstanding discovery requests through the above response, document production and with the aid of the Sheriff of Okaloosa" required to purge Petitioner's contempt. Then, on May 23, 2018, Petitioner filed a fourth "Emergency Motion to Quash Writ of Bodily Attachment and to Rescind Warrant for Defendant's Arrest" (the "Fourth Motion to Quash"), notifying the trial court he had sought Chapter 7 bankruptcy relief and again alleging he had complied with all of UPS's discovery requests.

On May 25, 2018, the trial court, without a hearing, entered an "Order Denying [Petitioner's] Fourth Emergency Motion to Quash," finding that Petitioner, as representative of NJJ, had not purged contempt as "NJJ has failed to properly respond to all outstanding discovery" and that the automatic stay entered pursuant to Petitioner's bankruptcy did not apply as to Petitioner in his capacity as representative of NJJ. The trial court ordered NJJ to not file any further motions to quash until NJJ cured the purge provision in the Writ of Bodily Attachment or demonstrated its inability to comply with the purge provision. The trial court specifically noted that its order did not apply to Petitioner in his individual capacity.

Subsequently, on June 3, 2018, Petitioner filed a petition for writ of habeas corpus with this Court, as well as his own sworn affidavit dated June 1, 2018. On June 4, 2018, this Court ordered Miami-Dade Corrections to immediately release Petitioner with an opinion to follow. Following Petitioner's release, the trial court entered another Writ of Bodily Attachment dated September 6, 2018, against Petitioner, "as agent and representative of NJJ." In the September 6, 2018 writ, the trial court stated that Petitioner may purge the contempt "by complying with all outstanding discovery" detailed in an email on May 3, 2018, from UPS's counsel to Petitioner's counsel. On September 14, 2018, Petitioner filed an "Emergency Motion to Quash Writs of Bodily Attachment" with this Court. We treat Petitioner's emergency motion as being filed on behalf of both himself individually and NJJ, and for the reasons stated herein, we quash both the March 6, 2018 writ of bodily attachment and the September 6, 2018, writ of bodily attachment and order Petitioner's immediate release from jail, if he is again incarcerated.

II. ANALYSIS

Florida Rule of Civil Procedure 1.380 delineates "the procedures for a party to obtain an order compelling discovery and the sanctions available for a party's failure to comply with such an order." Channel Components, Inc. v. Am. II Elecs., Inc., 915 So.2d 1278, 1282 (Fla. 2d DCA 2005). Under rule 1.380(b)(2), if a party does not obey an order to provide discovery, the trial court may enter:

(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.
(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.
(E) When a party has failed to comply with an order under rule 1.360(a)(1)(B) requiring that party to produce another for examination, the orders listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows the inability to produce the person for examination.

The issue before us involves the entry of a civil contempt order against Petitioner. "Because the trial court treated the violation of the discovery orders as a contempt of court, the trial court was required to comply with the procedural safeguards necessary to enter such a contempt order." Channel Components, 915 So.2d at 1283. Indeed, "[i]f the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil." Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla. 1977) ; see also Channel, 915 So.2d at 1283 ("[A] contempt sanction is considered civil if it is remedial, and for the benefit of the complainant." (quoting Parisi v. Broward County, 769 So.2d 359, 364 (Fla. 2000) ) ). However,

where a party is being sanctioned for civil contempt for failing to abide by a court order, that person must "carr[y] the key to his cell in his own pocket." Put another way, a party held in civil contempt and ordered to comply with a court order must be able to do so-that is, the party must have the ability to comply.

Ross Dress for Less Va., Inc. v. Castro, 134 So.3d 511, 523 (Fla. 3d DCA 2014) (citations omitted) (quoting Pugliese, 347 So.2d at 424 ). Significantly, "the key safeguard in civil contempt proceedings is a finding by the trial court that the contemnor has the ability to purge the contempt." Parisi, 769 So.2d at 365 ; accord Channel Components, 915 So.2d at 1283.

In its order denying Petitioner's Fourth Motion to Quash, the trial court did not make an affirmative finding that at that time it issued the order, Petitioner, as representative of NJJ, had the continued ability to purge his contempt despite the allegations in the motion stating he had complied with all of UPS's outstanding discovery requests required to purge. Cf. Janeski v. Janeska, 974 So.2d 1220, 1222 (Fla. 2d DCA 2008) (reversing a writ of bodily attachment where "the trial court simply relied on its prior findings and its prior purge amount and presumed the former husband continued to have 'the present ability to pay' that amount"). Notably, the order only states that "NJJ has failed to properly respond to all outstanding discovery." Moreover, the trial court's order does not state with specificity what further actions NJJ must take to purge the contempt. See, e.g., Marconi v. Walther, 819 So.2d 936, 938 (Fla. 2d DCA 2002) ; see also Stanton v. Stanton, 50 So.3d 1143, 1143 (Fla. 2d DCA 2010) ("A new order should take into account any discovery provided by the Husband following the November 4 judgment. Such an order shall make explicit on its face what materials the Husband must provide to the Wife in order purge the contempt."); Lanza v. Lanza, 804 So.2d 408, 409 (Fla. 4th DCA 2001) ("A civil contempt order must contain a specific purge provision that adequately informs the contemnor what he or she must do to purge the contempt."). We note that it is unclear from the record in which capacity Petitioner was acting in when responding to UPS's discovery requests.

Additionally, the trial court was required to hold a hearing before denying Petitioner's Fourth Motion to Quash because the trial court never held an initial hearing on whether Petitioner violated his discovery obligations and had the present ability to purge before holding him in civil contempt. See Marconi, 819 So.2d at 938 ("A person charged with civil contempt is entitled to an opportunity to be heard."); Bargiel v. Colt Studio, Inc., 901 So.2d 315, 317 (Fla. 4th DCA 2005) (noting that in civil contempt proceedings, "[p]etitioner was entitled to an evidentiary hearing at which the witnesses were sworn and any other evidence presented was duly verified"); see also Cook v. Navarro, 611 So.2d 47, 47 (Fla. 4th DCA 1992) ("Appellant is entitled to a hearing where he has the opportunity to demonstrate that he does not have the ability to pay the substantial purge amount."). Petitioner asserted in his Fourth Motion to Quash that he had complied with all discovery requests on behalf of himself individually and as representative of NJJ or that he did not have the present ability to purge the contempt, and Petitioner had no opportunity to present evidence or testimony to support the allegations in his motion. We further note that nothing has changed to warrant the trial court issuing another writ of bodily attachment against Petitioner. No evidence has been adduced that further documents or discovery responses exist and are being withheld by the Petitioner. Moreover, Petitioner was incarcerated for about two months without the benefit of personally appearing before the trial court in order to be heard and address the purge provisions of the writ. "[I]ncarceration cannot be imposed upon a civil contemnor for willfully failing to comply with a court order unless the court first determines that the contemnor has the present ability to purge himself of contempt." Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985). Here, no such finding was made nor could it have been made, as the trial court proceeded to hold a hearing without the presence of the Petitioner while he was being transported from the Miami-Dade County correctional facility to the courthouse.

III. CONCLUSION

Accordingly, we grant Petitioner's petition for writ of habeas corpus. We also grant Petitioner's September 14, 2018, emergency motion to quash the writ of bodily attachment dated September 6, 2018, and order Petitioner's immediate release from jail. This opinion shall take effect immediately notwithstanding the filing of any post-opinion motions, and the mandate shall issue immediately.

Petition for writ of habeas corpus granted and Emergency Motion to Quash Writs of Bodily Attachment granted; writs quashed.

      Our review of the lower court docket reveals that a second motion to quash was filed on May 1, 2018. This motion, however, was not provided to this Court for review.

      We are further troubled by the fact that (1) Petitioner was incarcerated for eighteen days prior to any hearing before the trial court, and (2) the trial court proceeded with the specially set hearing without Petitioner's presence , when Petitioner was being transported to the court by Miami-Dade County corrections. These actions were in direct contravention of the orders in the Writ of Bodily Attachment, which explicitly states that Petitioner is to be brought "before the undersigned judge within 48 hours of execution of the writ for a hearing to determine whether the individual wishes to purge the contempt."

      We further note that on September 10, 2018, the trial court issued a writ of bodily attachment against Nina Roberts Adams, Petitioner's wife, in her capacity as "agent and representative of NJJ" for failing to comply with the same motion to compel outstanding discovery responses from NJJ. As the September 10, 2018 writ of bodily attachment possesses the same legal infirmities as the writs of bodily attachment against Petitioner discussed in this opinion, we quash the trial court's September 10, 2018 writ against Nina Robert Adams and order her immediate release from jail if she has already been detained.