author: LAGOA, J.

text:
    Morris A. ASHEAR, Appellant, v. Seth SKLAREY, Appellee.
    No. 3D16-888
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    P.A. Bravo, P.A., and Paul Alexander Bravo; Matthew Estevez, P.A., and Matthew Estevez, for appellant.
    Michael A. Vandetty, P.A., and Michael A. Vandetty, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

The appellant, Morris A. Ashear ("Ashear"), appeals from a final judgment vacating and setting aside a tax deed issued to him. We affirm in part, reverse in part, and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The appellee, Seth Sklarey ("Sklarey"), was the owner of property located in Coconut Grove, Florida, on which a tax certificate had issued on June 1, 2007. On the morning of August 5, 2010, a tax deed auction took place, and Ashear was the successful bidder in the amount of $20,700 for the certificate at issue. A tax deed was subsequently issued to Ashear on August 6, 2010.

On August 12, 2010, Sklarey filed a complaint against Ashear, Harvey Ruvin, Clerk of the Circuit Court of Miami-Dade County ("the Clerk"), and Fernando Casamayor, Tax Collector of Miami-Dade County ("the Tax Collector"), seeking to set aside the tax deed issued to Ashear. Sklarey alleged that due to fraud, mistake, or wrongdoing that occurred at the tax deed auction on August 5, the property was not sold to the "highest and best bidder" in violation of Florida Statutes. Sklarey also alleged that after the auction, he tendered full payment of the taxes owed on the property on the afternoon of August 5, but that the Tax Collector's office refused his payment. Sklarey further alleged that the Clerk's office instructed him to return the next day, August 6, in order to speak with a supervisor in the Clerk's office. Sklarey arrived at the Clerk's office on August 6 at 8 a.m., and was informed shortly after 9 a.m. that the tax deed had been recorded at 8:38 a.m. that day. Sklarey claimed that the Tax Collector's office's refusal to accept his payment of the taxes, "despite the fact the sale was not complete and the Tax Deed had not yet been recorded," violated Florida Statutes and that the tax deed must be vacated and set aside.

The Tax Collector subsequently filed a motion to require Sklarey to deposit into the court registry the full sum required to redeem the property as of August 5, 2010. On October 18, 2010, the trial court entered an order directing Sklarey to deposit $20,700 into the court registry. Sklarey deposited the funds into the court registry the same day.

On January 19, 2012, Ashear filed an amended answer, affirmative defenses, counterclaim, crossclaim and third party complaint. Ashear alleged an action for quiet title, and pled in the alternative that if his tax deed were to be found invalid, that "the court [should] determine in its final judgment that ... [Ashear] holds a good and valid lien on the subject real property for the amount of money paid by [Ashear] for the tax deed, together with interest, per annum, from the date of the tax deed."

The matter proceeded to a bench trial on February 18, 2015. Sklarey presented the testimony of Luis Mendoza ("Mendoza"), the supervisor for delinquent real estate taxes at the Tax Collector's office. Mendoza testified regarding the process for paying taxes in the Tax Collector's office in August 2010. Mendoza testified that the Tax Collector's office does not accept payment from a property owner to redeem property if the Clerk's office has placed a "flag" on the property; a "flag" indicates that the tax certificate has been sold and that "the taxes are no longer due." The hours for the Tax Collector's office on August 5, 2010, were 8:00 a.m. to 4:30 p.m.

Vanessa Ceide ("Ceide"), the tax deed operations officer for the Clerk also testified. Ceide testified that on August 6, 2010, she arrived at work before 8:00 a.m. and was advised that a person who had a complaint about a sale from the previous day was waiting to speak with her. At 9:00 a.m., when the Clerk's office opened to the public, she informed Sklarey that the deed had been recorded at 8:38 that morning. Ceide also testified that she reviewed the tax deed on the evening of August 5, but it contained a typographical error. She therefore instructed her assistant clerks to correct the error. As a result, Ceide executed the tax deed on the morning of August 6.

Sklarey testified that he attended the tax deed auction on the morning of August 5, but was not the successful bidder. After the auction concluded, he went to the bank and returned on the afternoon of August 5 to the Tax Collector's office with two cashier's checks in an amount sufficient to redeem the property. Sklarey testified that he was at the tax collector's office "just after 4" on August 5, but that the cashier would not accept his payment. He went to the Clerk's office at 8:00 a.m. the following day, August 6, and was informed by Ceide shortly after 9:00 a.m. that the tax deed had been recorded that morning.

Gideon Glatsiani ("Glatsiani") Ashear's business partner, testified on behalf of Ashear. Glatsiani bid on Ashear's behalf on the morning of August 5. Glatsiani testified that he placed the winning bid at the auction and that he made payment by cashier's check within an hour after the conclusion of the auction. Glatsiani also testified that he picked up the deed from the Clerk's office on August 6.

The trial court entered final judgment on March 2, 2016. The trial court found that Sklarey "was ready, willing, and able to redeem the property on August 5, the day of the tax deed sale, and on August 6 during the Tax Collector's regular business hours, before the execution and recording of the tax deed. Although he tendered payment, it was not accepted through no fault of his own. Under such circumstances, the redemption should have been allowed." (emphasis in original) The trial court vacated and set aside the tax deed issued to Ashear. The trial court also ordered that the $20,700 in funds held in the court registry "shall be disbursed forthwith to the Miami-Dade County Tax Collector and applied towards the currently delinquent property taxes assessed against the subject property." This appeal ensued.

II. STANDARD OF REVIEW

In reviewing a judgment rendered after a bench trial, "the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous." Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 535 (Fla. 3d DCA 2015) (quoting Stone v. BankUnited, 115 So.3d 411, 412 (Fla. 2d DCA 2013) ). "Thus, they are reviewed for competent, substantial evidence." Underwater Eng'g Servs., Inc. v. Util. Bd. of City of Key West, 194 So.3d 437, 444 (Fla. 3d DCA 2016) ; see also Hall v. Hall, 190 So.3d 683, 684 (Fla. 3d DCA 2016). A trial court's application of the relevant statutes to its factual determinations is reviewed de novo. See Stock Bldg. Supply of Fla, Inc. v. Soares Da Costa Constr. Servs., 76 So.3d 313, 316 (Fla. 3d DCA 2011).

III. ANALYSIS

On appeal, Ashear argues that the trial court's finding that Sklarey was "ready, willing, and able to redeem the property" is not supported by the evidence presented at trial. Our review of the record reveals that the trial court's findings of fact on this issue are supported by competent, substantial evidence. We note that Mendoza's testimony neither supported nor contradicted Sklarey's assertion that he was prevented from paying his taxes at the Tax Collector's office. Additionally, Sklarey did not present bank records in support of his claim that he tendered full payment of taxes owed under the tax certificate. Nonetheless, the trial court's conclusion that Sklarey was "ready, willing, and able to redeem the property on August 5, the day of the tax deed sale" is supported by Skalarey's own testimony:

Q. And how did you know that you should go to the tax collector's office to redeem the taxes as opposed to the clerk's office?
A. Because they're the tax collector.
Q. Did they accept your money?
A. No.
....
Q. At 3:30 on August the 5th, did you have the funds necessary to redeem the property-I'm sorry, at four o'clock?
A. At four, just after four, yes.

The trial court clearly found Sklarey to be a credible witness, despite Ashear's argument to the contrary, and Ashear cites to no case for the proposition that testimony of the plaintiff alone does not constitute competent, substantial evidence to support the trial court's findings in this instance.

Additionally, the evidence that the tax deed was executed and recorded on August 6 is uncontroverted. First, the face of the tax deed shows that it was signed by Ceide, as Deputy Clerk of the Circuit Court in Miami-Dade County, witnessed by two witnesses, and attached with the official seal on August 6. The face of the tax deed also shows that it was recorded at 8:38 a.m. on August 6, and Glatsiani testified that he picked up the deed from the Clerk's office on August 6. Finally, Ceide testified that she signed the deed on the morning of August 6 because there was a typographical error on the deed which prevented her from signing it on August 5, the day of the sale.

As the trial court's factual finding are not clearly erroneous, we find no merit to Ashear's argument. See Stone v. BankUnited, 115 So.3d 411, 412 (Fla. 2d DCA 2013) ("When reviewing a judgment rendered after a nonjury trial, the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous."); Fito v. Attorneys' Title Ins. Fund, Inc., 83 So.3d 755, 757 (Fla. 3d DCA 2011) ("A factual finding made by a trial court in a non-jury trial is clearly erroneous only when there is no substantial evidence to sustain it, it is clearly against the weight of the evidence or it was induced by an erroneous view of the law.").

We also find that the trial court applied the correct law to the facts in vacating and setting aside the tax deed issued to Ashear. Both parties agree that the applicable statutes at issue are section 197.472(1), Florida Statutes (2010), and section 197.122(1), Florida Statutes (2010). Section 197.472(1) provides in relevant part as follows:

(1) Any person may redeem a tax certificate or purchase a county-held certificate at any time after the certificate is issued and before a tax deed is issued or the property is placed on the list of lands available for sale.

Section 197.122(1) states in relevant part:

(1) .... No sale or conveyance of real or personal property for nonpayment of taxes shall be held invalid except upon proof that:
....
(c) The real property had been redeemed before the execution and delivery of a deed based upon a certificate issued for nonpayment of taxes.

Ashear argues that the trial court did not apply the correct legal standard under sections 197.472 and 197.122 because the final judgment refers to the execution and recording of the tax deed rather than to its issuance. We disagree. First, the fact that the final judgment refers to the execution of the tax deed rather than its issuance in determining when Sklarey's right to redeem the tax certificate terminated is of no moment. The term "execution" is equivalent to the term "issue" as used in the statutes addressing tax certificates. See Lance v. Smith, 123 Fla. 461, 167 So. 366, 369 (1936) ("The words 'issuing' and 'execution,' used in the statutes in relation to the passing of title by a tax deed, are used as interchangeable terms."). Second, the final judgment does not erroneously rely on the recording of the tax deed as a legally significant event. Section 197.122 mandates that no sale of real property for the failure to pay taxes shall be held invalid unless redemption occurred before delivery of a tax deed. It is well established that the recording of a deed is evidence of its delivery. See Wise v. Wise, 134 Fla. 553, 184 So. 91, 96 (1938) ; Lance, 167 So. at 369 ; Kerr v. Fernandez, 792 So.2d 685, 687 (Fla. 3d DCA 2001). For these reasons, we conclude that the trial court applied the correct legal standard set forth in sections 197.472 and 197.122 when it determined that Sklarey was ready, willing, and able to exercise his right of redemption "before the execution and recording of the tax deed." (emphasis in original)

Finally, Ashear argues that the trial court's order contravenes section 197.602, Florida Statutes (2010). Specifically, Ashear argues that the trial court erred by failing to apply provisions in section 197.602 mandating that Sklarey reimburse him the amount paid for the tax deed together with twelve percent interest from the date the tax deed was issued and for the value of any improvements. We agree. Section 197.602, Florida Statutes (2010), provides:

If, in an action at law or in equity involving the validity of any tax deed, the court holds that the tax deed was invalid at the time of its issuance and that title to the land therein described did not vest in the tax deed holder, then, if the taxes for which the land was sold and upon which the tax deed was issued had not been paid prior to issuance of the deed, the party in whose favor the judgment or decree in the suit is entered shall pay to the party against whom the judgment or decree is entered the amount paid for the tax deed and all taxes paid upon the land, together with 12-percent interest thereon per year from the date of the issuance of the tax deed and all legal expenses in obtaining the tax deed, including publication of notice and clerk's fees for issuing and recording the tax deed, and also the fair cash value of all permanent improvements made upon the land by the holders under the tax deed. The amount of the expenses and the fair cash value of improvements shall be ascertained and found upon the trial of the action, and the tax deed holder or anyone holding thereunder shall have a prior lien upon the land for the payment of the sums.

Section 197.602 clearly and unambiguously requires that a purchaser of a tax deed determined to be invalid at the time of issuance is entitled to be reimbursed all sums paid to acquire the tax deed and to twelve percent interest on that amount. Turnberry Invs., Inc. v. Streatfield, 48 So.3d 180, 182 (Fla. 3d DCA 2010). Upon the trial court's determination that the tax deed was to be vacated and set aside, Ashear was entitled to an award from Sklarey of the reimbursements provided for in section 197.602. The trial court's failure to make such an award was error. For that reason, the provision in the final judgment ordering that the $20,700 Sklarey placed in the court registry be disbursed to the Tax Collector cannot stand. Indeed, Sklarey concedes that the funds held in the court registry should be disbursed to Ashear, although he does not acknowledge the statutory requirements concerning interest.

Ashear also argues on appeal that he is entitled to an award, pursuant to section 197.602, for the value of improvements to the land. At trial, however, Ashear failed to present any evidence regarding such improvements. We therefore cannot conclude it was error for the trial court not to include such amounts in the final judgment.

Accordingly, we affirm in part, reverse in part, and remand with instructions to the trial court to enter an amended final judgment in favor of Sklarey ordering that the $20,700 in funds held by the Clerk in the court registry be disbursed to Ashear, together with an award of interest in accordance with section 197.602.

Affirmed in part, reversed in part, and remanded.

      Indeed, Mendoza testified that he had no personal knowledge of Sklarey's transaction.

      Ashear alleges that Sklarey is a non-credible witness, repeatedly claiming that Sklarey engaged in "shill bidding" at the auction. The issue of whether Sklarey engaged in any improper activities at the auction was not determined by the trial court and is not at issue here.

      In his reply brief, Ashear argues that the only testimony in support of the trial court's finding that Sklarey "was ready, willing, and able to redeem the property" was hearsay testimony. This issue was not raised in the initial brief and may not be considered on appeal. See Parker-Cyrus v. Justice Admin. Comm'n, 160 So.3d 926, 928 (Fla. 1st DCA 2015) (stating that an issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply, as " '[w]ithout strict adherence to this rule, the appellees are left unable to respond in writing to new issues presented by the appellants' " (quoting Snyder v. Volkswagen of Am., Inc., 574 So.2d 1161, 1161-62 (Fla. 4th DCA 1991) )); Gen. Mortg. Assocs., Inc. v. Campolo Realty & Mortg. Corp., 678 So.2d 431 (Fla. 3d DCA 1996).

      Effective July 1, 2014, section 197.472(1), was amended to provide that "[a] person may redeem a tax certificate at any time after the certificate is issued and before a tax deed is issued unless full payment for a tax deed is made to the clerk of the court, including documentary stamps and recording fees." § 197.472(1), Fla. Stat. (2017).

      Section 197.122(1) was amended effective July 1, 2011, to provide:
      (1) .... A sale or conveyance of real or personal property for nonpayment of taxes may not be held invalid except upon proof that:
      ....
      (c) The real property was redeemed before receipt by the clerk of the court of full payment for a deed based upon a certificate issued for nonpayment of taxes, including all recording fees and documentary stamps.
      § 197.122(1), Fla. Stat. (2017).

      Although Ashear repeatedly refers to the "issuance" of the tax deed, he fails to define what actions or process constitutes the "issuance" of a tax deed. Section 197.552, Florida Statutes (2010), provides in relevant part:
      All tax deeds shall be issued in the name of a county and shall be signed by the clerk of the county. The deed shall be witnessed by two witnesses, the official seal shall be attached thereto, and the deed shall be acknowledged or proven as other deeds. ... All deeds issued pursuant to this section shall be prima facie evidence of the regularity of all proceedings from the valuation of the lands to the issuance of the deed, inclusive.
      (emphasis added).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jovan HOWARD, Petitioner, v. The FLORIDA DEPARTMENT OF CORRECTIONS; Julie L. Jones, Secretary, Respondents.
    No. 1D17-5234
    District Court of Appeal of Florida, First District.
    January 26, 2018
    Jovan Howard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondents.
   Per Curiam.

The petition for writ of mandamus is denied.

Roberts, Rowe, and Winokur, JJ., concur.


author: Winsor, J. Makar, J., dissenting.

text:
    Esther ASH, Appellant, v. John CAMPION, Appellee.
    No. 1D15-4165
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Esther Ash, pro se, Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, and Harold E. Patricoff of Shutts & Bowen LLP, Miami, for Appellee.
   Winsor, J.

During a long and contentious divorce battle, the circuit court held Esther Ash in contempt and ordered her to pay $100,000 to her former husband, John Campion. Ash appeals, contending the sanctions order was unlawful.

Ash and Campion lived as a married couple for several years before separating in 2012. Campion initiated divorce proceedings, and the trial court entered a mutual injunction prohibiting each party from "physically or verbally harass[ing], molest[ing], or disturb[ing] the other" by phone or text message. The couple finalized the dissolution, but animosities persisted, culminating with Ash's sending Campion a slew of vitriolic text and voicemail messages. Some of Ash's less outrageous texts called Campion an "evil, sick person," who "alienate[d] a child from [his] father" and who deserves to "rot in federal prison." Other messages-unfit for print here-said far worse.

Concerned that Ash would continue sending incendiary messages, Campion sought an order enforcing the mutual injunction. After a hearing, the trial court found Ash in contempt and ordered her to pay Campion $100,000.

On appeal, Ash does not defend her conduct. She does not claim her messages were anything but harassment or that they were permissible under the injunction. Instead, she argues that we must reverse the contempt order because the trial court did not satisfy necessary prerequisites.

"Contempt sanctions are broadly categorized as criminal or civil contempt." Parisi v. Broward County , 769 So.2d 359, 363 (Fla. 2000). The distinction is critical because those facing criminal-contempt sanctions are entitled to protections not offered to those facing civil-contempt sanctions. Id. ; see also Pugliese v. Pugliese , 347 So.2d 422, 424 (Fla. 1977) ("[A] determination of whether an order is civil or criminal must be made."). In fact, those facing charges of criminal contempt-"a crime in the ordinary sense"-are entitled to the same protections as other criminal defendants. Parisi , 769 So.2d at 363 (quoting Int'lUnion, United Mine Workers v. Bagwell , 512 U.S. 821, 831, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) ). The Constitution provides some of those rights (right to counsel, proof beyond a reasonable doubt, etc.), id. , and our rules of criminal procedure provide still more, see Fla. R. Crim. P. 3.840.

There is no question that the trial court fell short of affording Ash the requisite protections for a criminal-contempt order. And there is no question that if the contempt order was criminal in nature, we therefore must reverse. See Wendel v. Wendel , 958 So.2d 1039, 1040 (Fla. 1st DCA 2007) ("Noncompliance with rule 3.840 constitutes fundamental error."). Indeed, Campion makes no effort to defend the order as a lawful criminal-contempt sanction, arguing instead that it was a valid civil -contempt order. But we cannot accept that argument.

We can consider a contempt fine civil only if it coerces the defendant into compliance with the court's order or compensates the other party for sustained losses. See Parisi , 769 So.2d at 366 ; see also Bagwell , 512 U.S. at 829, 114 S.Ct. 2552. We cannot consider this fine a coercive sanction because it includes no purge provision: there was nothing Ash could do to avoid the fine after the trial court imposed it. See Parisi , 769 So.2d at 366. A punishment (like a $100,000 penalty) might deter future noncompliance (just as prison terms might deter future crimes), but that does not make it a coercive civil sanction. Regardless, any valid coercive civil sanction order must include a purge provision.

See id. ("[I]n order to impose a valid coercive sanction, the trial court must ... include a purge provision."). "Without this critical protection, there is a danger that the contempt sanction could be transformed from a civil to a criminal contempt sanction without any other underlying procedural protections attendant to criminal proceedings." Id. at 365.

Nor can we view this fine as a compensatory award. A contempt order designed to compensate must turn on "the injured party's actual loss." Id. at 366 (quoting Johnson v. Bednar , 573 So.2d 822, 824 (Fla. 1991) ). Campion argues here that the award sought to compensate him for emotional distress, but the record does not support that argument. There was no argument about loss below, there was no evidence about the value of any loss below, and the trial court made no findings about loss below. Campion himself testified that he didn't want compensation (insisting he'd give any award to charity anyway)-he "just want[ed] it to stop." Moreover, the court's announced purpose was to deter Ash from engaging in "unacceptable conduct," and it chose $100,000 only after Campion argued "it's going to take a lot to get her attention." This was not a compensatory order.

Rather than serve any remedial or compensatory purpose, the trial court's order "simply imposes a flat and unconditional fine," meaning it must be "considered a criminal sanction." J-II Invs., Inc. v. Leon County , 21 So.3d 86, 90 (Fla. 1st DCA 2009) ; accord Wendel , 958 So.2d at 1040. And because the trial court imposed a criminal sanction without complying with rule 3.840, our precedent requires us to find fundamental error. Wendel , 958 So.2d at 1040 ("Noncompliance with rule 3.840 constitutes fundamental error."); Hunt v. State , 659 So.2d 363, 364 (Fla. 1st DCA 1995) (noting "unequivocal authority holding that noncompliance with the provisions of Rule 3.840 constitutes fundamental error").

REVERSED .

Lewis, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

In this rancorous and affluent dissolution case, Esther Ash appeals a $100,000 contempt order arising from her multiple violations of a 2012 mutual consent agreement saying that neither she nor her then-husband "shall physically or verbally harass, molest or disturb the other, in person, by phone, through email or text messaging." In flagrant disregard of her agreement, Ash sent numerous harassing photographs, text messages, and voicemails that, charitably, can be described as outrageous, profane, and vile. After a noticed hearing, the trial court entered the contempt order at issue.

On appeal, Ash's appellate counsel asserts a number of issues, but none were raised in the trial court except Ash's belated request for a continuance of the contempt hearing. But it was not an abuse of discretion to deny a motion for continuance-first made halfway through the hearing-given Ash's ongoing pattern of delay by dismissing her lawyers before important court proceedings and seeking continuances, four of the trial itself. See, e.g. , Cargile-Schrage v. Schrage , 908 So.2d 528, 529 (Fla. 4th DCA 2005) (no abuse of discretion to deny continuance that would have allowed third attorney in nine months to appear on movant's behalf). The trial judge saw firsthand this "fire attorney, seek continuance" method of avoidance, which occurred on the eve of the scheduled contempt hearing (this pattern continued on appeal, Ash's appellate counsel moving to withdraw shortly before oral argument because he had been "discharged"). Just before the contempt hearing, Ash terminated her then-trial attorney (approximately the tenth to represent her), sending a new one the next day, who arrived mid-hearing to request a continuance. He stayed for the rest of the contempt hearing, but didn't participate, saying his authority was limited only to appear and present the motion for continuance. Due to the restrictions Ash placed upon him, therefore, no objections to the contempt order were presented and no points preserved for appellate review. And Ash's counsel did nothing thereafter to contest the contempt order, such as a motion for rehearing or the like.

Consequently, every issue raised in this appeal as to the contempt order is new and unpreserved, making our standard of review one of fundamental error. As we recently said:

[W]e cannot reverse on this unpreserved claim of error absent fundamental error, which is one that "goes to the foundation of the case or goes to the merits of the cause of action." Sanford v. Rubin , 237 So.2d 134, 137 (Fla.1970). An appellate court "should exercise its discretion under the doctrine of fundamental error very guardedly." Id. To do otherwise would undermine the orderly adjudication of claims and inject a degree of arbitrariness into the appellate process.

Yau v. IWDWarriors, Corp. , 144 So.3d 557, 560 (Fla. 1st DCA 2014) (unauthorized award of attorney's fees not fundamental error). We noted in Yau that "there are only a limited category of errors that 'courts universally allow to be raised for the first time on appeal because of the very nature of the error' including subject matter jurisdiction and judgments entered without notice that deny due process." Id. (citation omitted).

Neither category applies here: the trial court had jurisdiction, and Ash had notice of the contempt hearing and judgment and was therefore afforded due process. She was on notice of the hearing, but nonetheless chose to fire her lawyer at the eleventh hour, sending a new one with next to no authority to act on her behalf who arrived mid-hearing; she thereafter failed to contest the contempt order in the trial court and chose instead to appeal. Precisely like Yau, who "was on notice of the alleged deficiency in her pleading and given a full opportunity to explain why her client's case should not be dismissed and why no sanctions should be imposed," Ash too was on notice of the contempt hearing but chose essentially to boycott it. Id.

On appeal, Ash seeks to restyle the trial court's order as one sounding exclusively in criminal contempt, rather than a civil contempt order, based on some of the language used ("sanctions"), the lack of a purge provision, and the former husband's testimony that he didn't want her money and would give a sanctions award to charity ("I'm not looking to get money out of her."). But the "same contemptuous conduct may be the subject of both criminal and civil proceedings," and the elusive "distinction between criminal and civil contempt often turns on the 'character and purpose' of the sanctions involved." Parisi v. Broward Cnty. , 769 So.2d 359, 363-64 (Fla. 2000) (citation omitted). On this point, the proceeding below and the contempt order itself were intended solely to effectuate a civil contempt remedy via the imposition of sanctions, whose purpose could be compensatory or coercive, or both. Either are permissible. Id. at 363 ("Civil contempt sanctions are ... classified as either compensatory or coercive sanctions.").

The clear purpose of the contempt order was "remedial" and "for the benefit of the complainant [Campion]," making it quintessentially civil in nature. Id. at 364. It enforced only individual rights of privacy and dignity, a hallmark of a civil contempt order. The order did not subject Ash to potential incarceration, attempt to punish her for her litigation tactics, or otherwise vindicate the authority of the court; it thereby lacked the characteristics of a criminal contempt order. Instead, the order only enforced the parties' private agreement to not "physically or verbally harass, molest or disturb" one another.

Characterizing the civil contempt order as compensatory, Campion vigorously argues on appeal that the record shows that Ash's "willful, profane and repeated" misconduct was "totally outside the bounds of all common decency," causing him (and his family) anguish and severe emotional distress. The evidence easily shows that Campion suffered substantial harm resulting from Ash's contemptuous conduct. Id. at 366. His trial counsel's suggestion of ten-thousand dollars apiece for the ten incidents, each outrageous in its own way, was wholly reasonable on this record, the former husband's non-enforceable pledge to give the money to charity notwithstanding. One incident, involving unsolicited pictures Ash sent of the couple's son appearing severely injured in a hospital bed at an undisclosed location (turns out he was getting liposuction in Los Angeles), could alone support a tort verdict of $100,000 in a civil case. ("I thought it was extremely cruel ... I was completely and utterly shocked and traumatized by this ... to think that my mother [who was 92 and just suffered a stroke] and son on the same day were in very, very critical condition was not something I'll get over any time soon."). Indisputably, the record shows conduct amounting to intentional infliction of emotional distress, easily meeting the "Outrageous!" test. Johnson v. Thigpen , 788 So.2d 410, 413 (Fla. 1st DCA 2001) (conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.... [a case whose] recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' ").

Where a civil contempt is sustainable as compensatory-as it is in this case-no purge is necessary. Gregory v. Rice , 727 So.2d 251, 253 (Fla. 1999) ("Only if the fine is compensatory is it appropriate to dispense with a purge provision."). The reason is obvious: compensatory fines provide recompense for past harm, leaving nothing to purge. A coercive fine, in contrast, compels future compliance with an order, an example being a $5,000 fine for not turning over discovery documents or failing to deliver property under a marital agreement. Here, Ash claims that the contempt order was coercive and required to have a purge, but nothing in the order's remedial terms was "coercive" as to her possible future behavior. Instead, the contempt order imposed a compensatory sanction for her past "willful violations" of the non-harassment order arising from "her ongoing pattern of repeated offensive communications directed to [Campion] and his family" that were "extremely inappropriate, outrageous and unacceptable" thereby constituting "significant harassment." As to possible future misconduct, the order stated that if Ash "communicates with [Campion] or his family in a similar manner in the future, necessitating another motion for enforcement, the Court will consider imposition of more severe sanctions." (Emphasis added). This language imposed no enforceable coercive sanction; it merely intimates that Ash might be subject to stiffer sanctions if her behavior were to recur. No purge was necessary, either as to the compensatory contempt sanction or as to this latter statement, whose obvious purpose was to warn Ash against repeat behavior.

* * *

This case presents no basis for fundamental error review or reclassification of the contempt order on appeal as solely a criminal matter; the order is sustainable solely as a valid compensatory civil sanction. Further, due process is not denied when a client disregards the need for orderly judicial proceedings by repeatedly terminating her lawyers and frittering away their ability to preserve potential legal errors and advocate on her behalf. Principles of judicial restraint, which reserve fundamental error analysis for only the truly meritorious cases, require affirmance of the contempt order, short of which flouting court orders and provoking disorderly adjudication are rewarded.

      The record shows that the court considered Ash's substantial wealth in determining the sanction. Ash's ability to pay is irrelevant in measuring Campion's actual losses.

      Because we reverse on these grounds, we do not address Ash's separate argument that the court should have granted her a continuance before the contempt hearing.


author: VILLANTI, Judge.

text:
    John ST. LOUIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1939
    District Court of Appeal of Florida, Second District.
    Opinion filed February 9, 2018
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

John St. Louis appeals his convictions and sentences for delivery of cocaine, a second-degree felony; possession of cocaine with intent to sell or deliver, a second-degree felony; and possession of cocaine, a third-degree felony. We reject without comment St. Louis's argument that the trial court erred in denying his motion for judgment of acquittal. We also affirm without comment St. Louis's convictions for delivery of cocaine and possession of cocaine with intent to sell or deliver. However, we agree with St. Louis that his conviction and sentence for the third-degree felony of possession of cocaine must be vacated as being a violation of the prohibition against double jeopardy.

We need only recite the facts necessary to adjudicate this appeal. St. Louis was arrested as a result of a cocaine purchase by a detective through an undercover criminal informant. St. Louis had a single stash of cocaine in his nightstand from which he removed a portion that he sold to the informant. St. Louis was then arrested for the three charges described above, and he was convicted as charged after a jury trial. The trial court sentenced him on each of the three convictions.

In this appeal, St. Louis argues for the first time that his convictions for possession of cocaine with intent to sell and deliver and simple possession of cocaine violate double jeopardy because they arise out of the same quantum of cocaine. Although St. Louis did not make this double jeopardy argument in the trial court, a "double jeopardy claim presents an issue of fundamental error that may be raised for the first time on appeal." McGlorthon v. State, 908 So.2d 554, 555 (Fla. 2d DCA 2005). And the facts of McGlorthon are analogous to the facts here. In McGlorthon, this court reversed one of McGlorthon's convictions for possession of cocaine. One conviction was based on possession of the cocaine sold to an undercover officer while the other was based on McGlorthon's possession of the quantum of cocaine remaining after the sale. This court noted in an apt analogy that it "fail[ed] to see how there can be a legal distinction between the produce leaving the peddler's hand or in his pocket and that still on the push cart." Id. at 556 (quoting Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982) ). Given the virtually identical facts here, McGlorthon controls our decision.

In defense of the two convictions, the State argues that St. Louis separately possessed two quantities of cocaine so as to constitute two distinct crimes of possession. According to the State, one possession conviction was based on the cocaine that St. Louis sold to the confidential informant, while the other possession conviction was based on the cocaine that remained in St. Louis's nightstand after the sale. And in support of its argument, the State cites Mosely v. State, 659 So.2d 1342, 1344 (Fla. 5th DCA 1995). However, the facts in Mosely are distinguishable from those here. The court in Mosely determined that "[t]he powdered cocaine residue found in Mosely's wallet had nothing to do with the crack cocaine found concealed in the trunk of Mosely's automobile." Id. This is a critical distinction because, unlike in this case, "Mosely was not charged and convicted of trafficking by possession and possession of the same drugs." Id. Mosely's powdered cocaine was found in his wallet, while he separately possessed a much larger amount of crack cocaine that was concealed in the trunk of his car. In other words, the cocaine sold was not merely a portion of a larger amount possessed in the same form and the same place. Instead, it was a different form of cocaine kept in a separate location. Thus, the two convictions did not violate double jeopardy.

Here, in contrast, St. Louis's act of selling a portion of his cocaine stash, all of which emanated from a single source and location, could not factually support separate possession convictions for both the quantity sold and the quantity that remained. The resolution of this case is governed by McGlorthon, not Mosely. Hence, we must vacate one of St. Louis's two possession convictions as violative of double jeopardy. See McGlorthon, 908 So.2d at 556.

As to the remedy, "when a defendant is found guilty for two offenses and adjudication of the defendant as guilty for both offenses would violate double jeopardy ... the lesser offense ... should be vacated." State v. Tuttle, 177 So.3d 1246, 1253 (Fla. 2015). Here, the lesser offense is the simple possession conviction. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) (holding that lesser offenses "are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial" (quoting State v. Florida, 894 So.2d 941, 947 (Fla. 2005) ) ).

Accordingly, we vacate St. Louis's conviction and sentence for the third-degree felony of simple possession of cocaine and remand for resentencing using a corrected scoresheet. We affirm the two remaining convictions in all other respects.

Affirmed in part, vacated in part, and remanded for resentencing.

SILBERMAN and SALARIO, JJ., Concur.


text:
    Thomas G. HYLAND, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, State of Florida, Respondent.
    No. 1D17-5032
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Thomas G. Hyland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm'n , 807 So.2d 733 (Fla. 1st DCA 2002). Petitioner's Emergency Motion for Enforcement of Principles of Habeas Corpus Through Mandamus, filed on December 27, 2017, is denied.

Wetherell, Makar, and Kelsey, JJ., concur.


author: Rowe, J.

text:
    PALISADES OWNERS' ASSOCIATION, INC., Appellant, v. Thomas F. BROWNING, Appellee.
    No. 1D17-2129
    District Court of Appeal of Florida, First District.
    March 15, 2018
    Linda H. Wade of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appellant.
    Richard S. Johnson, Niceville, for Appellee.
   Rowe, J.

Thomas F. Browning, an owner of a unit in the Palisades condominium community, sued Palisades Owners' Association, Inc., after two of the Association's board members installed a boat lift at the community's boat dock without the approval of the other unit owners. The Association moved to dismiss the complaint, arguing that Browning was required to submit his claim to nonbinding arbitration pursuant to section 718.1255, Florida Statutes (2016), before filing suit because the disagreement between the parties was a garden-variety dispute between a unit owner and condominium association. Because the complaint included claims of breach of fiduciary duty by the Association, the trial court denied the motion to dismiss, finding that Browning's claims were specifically excluded from the class of disagreements required to be submitted to arbitration under the statute. We affirm.

The Palisades is a condominium community located in Panama City, Florida. One of the common elements of the community is a boat dock with ten slips for the use and benefit of the entire community. According to the Association's by-laws, any alteration to the common elements requires approval of at least three-fourths of all of the unit owners. And, for any alteration affecting any unit owner, unanimous approval from all unit owners is required.

Dan Phillips and Jamey Phillips each own a unit in the Palisades and serve on the Association's board of directors. In early 2016, they installed a permanent, freestanding boat lift at the end of the community's boat dock for their exclusive use without prior approval from the other unit owners. Browning asserted that construction of the boat lift without approval of the other unit owners violated the community's by-laws and demanded that the boat lift be removed. However, the boat lift remained, and at a meeting in late 2016, the board of directors (including Jamey Phillips) voted to amend the community's by-laws to allow for temporary personal boat docks. It was asserted that the vote was done for self-serving interests and not in accordance with the responsibility of the Board of Directors to maintain the common element for the enjoyment of all owners. Shortly thereafter, Browning filed suit against the Association. The Association's motion to dismiss the suit was denied, and this appeal follows.

The Association asserts that Browning's disagreement with the Association was a "dispute" subject to the alternate dispute resolution procedures provided in section 718.1255, and therefore Browning was required to petition for nonbinding arbitration before filing a complaint in the trial court. But we hold that Browning's complaint does not allege a "dispute" within the meaning of section 718.1255, and therefore Browning was not required to submit his claim to arbitration as a condition precedent to filing suit in the trial court. We reach this conclusion by examining the plain meaning of the statute. Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) ("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning."). The language of this statute is clear and unambiguous. Section 718.1255 requires that as a condition precedent to filing an action in the trial court, a "dispute" between a condominium owner and the board of the condominium association must be submitted to nonbinding arbitration. § 718.1255(1), Fla. Stat. (2016) ; Neate v. Cypress Club Condo., Inc. , 718 So.2d 390, 392 (Fla. 4th DCA 1998). The statute defines a "dispute" as a disagreement between two or more parties over the authority of the board of directors to require an owner to take (or not take) an action involving that owner's unit or the authority of the board to alter or add to a common area. § 718.1255(1)(a), Fla. Stat. (2016). The definition of "dispute" also includes a challenge to the governing body's failure to properly conduct elections, to give adequate notice of meetings, to properly conduct meetings, and to allow inspection of its books. § 718.1255(1)(b), Fla. Stat. (2016).

However, the Legislature specifically excluded from the statutory definition of "dispute" several categories of more complex disagreements between unit owners and condominium associations including title claims, interpretation or enforcement of a warranty, fee assessments, evictions, breaches of fiduciary duty , and claims for damages for failure to maintain common areas. § 718.1255(1), Fla. Stat. (2016).

The Association argues that Browning's complaint falls under the statutory definition of a "dispute" because it challenges the authority of the Association to alter or add to the boat dock, which is a common area. However, Browning's complaint does more than raise a garden-variety factual dispute about changes to the common area of the condominium community. Rather, Browning's complaint alleges a breach of fiduciary duty by the Association through the action of two of its board members, conflicts of interest, and violations of the Association's by-laws. As our review is limited to the four corners of the complaint, all well-pleaded allegations must be accepted as true. Gomez v. Fradin , 41 So.3d 1068, 1070 (Fla. 4th DCA 2010). Because Browning's complaint alleges a "breach of fiduciary duty by one or more directors," the disagreement between the parties does not fall within the statutory definition of a "dispute" that must be submitted to arbitration before filing suit. § 718.1255(1)(c), Fla. Stat. (2016). Accordingly, Browning was not required to petition for nonbinding arbitration as a condition precedent to bringing suit, and the trial court properly denied the Association's motion to dismiss the complaint.

AFFIRMED.

Wolf and Ray, JJ., concur.


text:
    Lewis JOHNSON, a/k/a Lewis Edward Johnson, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3122
    District Court of Appeal of Florida, Second District.
    Opinion filed May 2, 2018 Rehearing Denied June 8, 2018
    Ita M. Neymotin, Regional Counsel, Second District, and Byron P. Hileman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
   VILLANTI, Judge.

Lewis Johnson appeals the order denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We must reverse.

In 1979, Johnson, a juvenile at the time of his crime, was sentenced under section 39.111(6), Florida Statutes (1978), which required the sentencing court to make a "suitability determination" regarding the imposition of adult sanctions but which did not require consideration of the individualized factors now required by Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Because this earlier statute did not afford the trial court the discretion to consider "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison," as now required by Miller, 567 U.S. at 480, 132 S.Ct. 2455, we must reverse and remand for a new sentencing hearing. See Atwell v. State, 197 So.3d 1040, 1050 (Fla. 2016) (holding that "[t]he only way to correct [the juvenile]'s sentence, consistent with this Court's case law in Horsley[ v. State, 160 So.3d 393 (Fla. 2015) ], is to resentence [the juvenile] in conformance with chapter 2014-220, Laws of Florida"); Wells v. State, 208 So.3d 1235, 1236 (Fla. 2d DCA 2017) (same). On remand, Johnson is entitled to the full panoply of rights necessary at a resentencing.

Reversed and remanded for resentencing.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: ROTHENBERG, C.J.

text:
    The STATE of Florida, Appellant, v. Ibes GOMEZ, Appellee.
    No. 3D17-1727
    District Court of Appeal of Florida, Third District.
    Opinion filed May 02, 2018
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

On June 22, 2015, Ibes Gomez ("the defendant") entered an open plea to the trial court wherein he pled guilty to twenty-four felony offenses charged in five separate cases: 14-13477, 14-13480, 14-22837, 15-9420, and 15-1546. Thereafter, the defendant filed an appeal, claiming that some of the charges he had pled guilty to violated the prohibition against double jeopardy, which required the correction of the judgments in case numbers 14-22837 and 15-1546. Because this Court agreed that the convictions for both grand theft and organized fraud in case numbers 14-22837 and 15-1546 constituted double jeopardy, this Court vacated the two grand theft convictions in those two cases, affirmed the remaining twenty-two convictions reflected in the judgments of these five cases, and remanded for the preparation of a new sentencing scoresheet and reconsideration of the sentence based on a change, if any, to the sentencing scoresheet. See Gomez v. State, 220 So.3d 495 (Fla. 3d DCA 2017). However, despite the clear directive issued in this Court's mandate, and over the State's objection and warning that it would appeal the trial court's failure to comply with this Court's mandate, the trial court permitted the defendant to vacate his plea and set the five cases for trial. The State appeals.

We treat this appeal as a motion to enforce the mandate in appellate case number 3D16-372, grant the motion, and quash the trial court's order granting the defendant's amended motion for postconviction relief, with instructions to the trial court to follow this Court's mandate by reconsidering the sentences imposed based on a corrected scoresheet and sentencing the defendant accordingly.

When an appellate court issues a mandate, the trial court's role "becomes purely ministerial, and its function is limited to obeying the appellate court's order or decree." Hearns v. State, 54 So.3d 500, 502 (Fla. 3d DCA 2010) ; see also Robinson v. Weiland, 988 So.2d 1110, 1112 (Fla. 5th DCA 2008) (holding that "[t]he trial court lacks the discretionary power to go beyond the scope of relief granted by the appellate court.... Once the case is decided on appeal, the circuit court is bound by the decree as the law of the case and is required to perform the purely ministerial act of implementing the mandate.") (internal citation omitted);

Huffman v. Moore, 834 So.2d 300, 301 (Fla. 1st DCA 2002) ("When an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate."); Rodriguez v. State, 924 So.2d 985, 986 (Fla. 2d DCA 2006) ("In carrying out an appellate mandate, the trial court's role is purely ministerial.... It cannot deviate from the terms of an appellate mandate.") (internal quotation and citations omitted).

This Court's mandate vacated only two of the twenty-four counts contained in the judgments and remanded for consideration of a modification of the sentence based on a corrected scoresheet, and nothing more. This Court's mandate required only the following ministerial acts: (1) a vacating of the judgments as to only grand theft in case numbers 14-22837 and 15-1546 (leaving intact the remaining convictions in those two cases and the other three cases); (2) the preparation of a new scoresheet; and (3) a reconsideration by the trial court of the sentence in light of the corrected judgments and scoresheet because the plea was an open plea to the court. It was therefore error for the trial court to permit the defendant to vacate his guilty plea as to the remaining twenty-two charges, vacate the convictions, and set the cases for trial.

The defendant concedes that the law clearly precludes deviation from this Court's mandate but argues that because the defendant had filed a motion for postconviction relief, the trial court had jurisdiction to consider and rule on the defendant's postconviction motion prior to complying with the mandate, and because the trial court granted the motion for postconviction relief, this obviated the need for the trial court to comply with the mandate. We conclude that these arguments are without merit.

First, as already addressed in this opinion, the trial court was required to follow the instructions contained in this Court's mandate. Second, the defendant's motion for postconviction relief was prematurely filed and prematurely considered by the trial court. This Court remanded for a correction of the judgment in two of the defendant's cases and for reconsideration of the sentences imposed. Thus the judgments and sentences are not yet final. As this Court has previously held, a conviction and sentence become final for the purposes of rule 3.850 when this Court affirms following resentencing. Valdes v. State, 904 So.2d 515, 516 (Fla. 3d DCA 2005).

Recently, this Court reversed the trial court under strikingly similar circumstances. In State v. Perez-Diaz, 189 So.3d 896, 902 (Fla. 3d DCA 2016), this Court concluded that the downward departure sentence imposed by the trial court was not supported by competent substantial evidence and therefore reversed the judgment and sentence and remanded for resentencing under the sentencing guidelines. Id. Rather than following the directives mandated by this Court, the trial court heard a newly filed motion for postconviction relief, granted the motion, and vacated the finding of guilt and the judgment and sentence. See State v. Perez-Diaz, 232 So.3d 1072, 1072 (Fla. 3d DCA 2017). The State appealed, and this Court treated the appeal as a motion to enforce the mandate. Id. This Court granted the motion and quashed the trial court's order granting Perez-Diaz's motion for postconviction relief. Id. In quashing the trial court's order granting Perez-Diaz's motion for postconviction relief, this Court specifically informed the trial court that it was "not authorized to deviate from the terms of an appellate court's instructions ... [and]

[t]he trial court's action, regardless of how well-intentioned, violated that mandate." Id. at 1072-73 (internal citations and quotation omitted).

Third, a review of the transcript reveals that the trial court did not perform even a rudimentary evaluation of the defendant's motion for postconviction relief, which is styled as an amended motion for postconviction relief. The amended motion for postconviction relief was filed on July 11, 2017, after the issuance of this Court's mandate but prior to the reconsideration of the defendant's sentences upon remand. In this motion, the defendant claimed that when he entered his open plea of guilty to the trial court, he did so based on the misconduct and misadvise of his prior counsel. The defendant claimed that, at the time of the plea, he was prepared to accept the State's offer, which he outlined in the motion, but based on the conduct of his prior trial counsel, the State concluded that its plea offer had been rejected. Thereafter, he was advised by his prior trial counsel that if he pled open to the court, he would receive a sentence no greater than five years in prison.

The record reflects, however, that on February 18, 2016, the defendant filed a motion for postconviction relief and a supporting memorandum of law wherein he made these same claims and which the same trial judge denied after conducting an evidentiary hearing. Additionally, the Assistant State Attorney notified the trial court twice during the hearing that he had spoken to the defendant's prior counsel and that the defendant's prior attorneys were available and willing to testify at a postconviction evidentiary hearing that the allegations made by the defendant in his postconviction motion were false.

The State: I spoke to Mr. Mastos and Mr. Reboso and Mr. Silverman, they're willing to come in here and say what happened and it is not what Mr. Gomez said.
The Court: Let [sic] set aside the Rule Three issue.

Then, later during the hearing, the State discussed with the trial court the defendant's allegation in his postconviction relief motion that the State had previously offered the defendant a plea, which included a 42-month prison term, probation, and the payment of $7600 restitution up front. The defendant claimed in his motion that he wanted to accept the plea and was prepared to make the requisite restitution payment. The State, however, told the trial court that the defendant's prior counsel would testify that this allegation was not true.

The Court: So, the original plea by the State to close out all the cases before the whole fiasco [with] his mother and all of that was what?
The State: Well, your Honor there is the plea agreement that was attached to [the defendant's current counsel's] motion, but my discussions, if you want to have a hearing with that with Mr. Reboso and Mr. Silverman.
The Court: What [was] the plea?
The State: He would take the plea to thirty years with a surrender date, I think June 17 and so at that time his plea will be reduced to 42 months state prison followed by twelve years of probation with I believe $9400 dollars restitution.
The Court: $9400
The State: $9400 dollars in restitution and now there is a new plea agreement that Mr. Gomez is alleging that the State rescinded from that said [sic] it was 42 months followed by five years only with $7600 dollars restitution. But my discussions with Mr. Reboso and Mr. Silverman, the defendant was not happy with any of these and he wanted to file a motion for downward departure. He wanted a reduced sentence and the family didn't want to give over money-they didn't want to give over $7600 hundred, if he is serving jail time.
....
The State: And the defendant said in the sentencing that you would not have accepted that plea and he was happy that you didn't let him accept that plea ....

What these record citations reflect is that the State was prepared to dispute the allegations made by the defendant in his motion for postconviction relief, but the trial court "set aside the Rule Three issue" rather than deciding it as the defendant suggests. But even if the basis for the trial court's ruling had been the allegations contained in the defendant's postconviction motion, that too would have been error without providing the State with an opportunity to present evidence to refute the defendant's allegations and requiring the defendant to meet the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requirements.

Conclusion

We quash the trial court's order granting the defendant's amended motion for postconviction relief as the trial court was required to comply with this Court's mandate and was not permitted to deviate from this Court's instructions on remand-instructions which required the trial court to reconsider the sentence based on a corrected scoresheet. If the defendant wishes to attack his plea and sentence based on ineffective assistance of counsel, he may do so after the trial court imposes a new sentence and that sentence becomes final. The trial court, however, may only grant such relief after affording the State with an opportunity to be heard and after making the appropriate findings.

Reversed and remanded with instruction to comply with this Court's mandate.


author: LINDSEY, J.

text:
    SAMMIE INVESTMENTS, LLC, a Florida Limited Liability Company, Appellant, v. STRATEGICA CAPITAL ASSOCIATES, INC., Appellee.
    No. 3D17-2052
    District Court of Appeal of Florida, Third District.
    Opinion filed May 9, 2018
    Borowski & Traylor, P.A., and T.A. Borowski, Jr., and Darryl Steve Traylor, Jr., (Pensacola), for appellant.
    Pathman Lewis, LLP, and Aaron W. Tandy, and John A. Moore, Fort Lauderdale, for appellee.
    Before SALTER, EMAS, and LINDSEY, JJ.
   LINDSEY, J.

Sammie Investments, LLC appeals the trial court's order granting Strategica Capital Associates, LLC's motion for temporary injunctive relief rendered in this breach of contract action. The order directed Sammie to turn over $200,000 of the proceeds derived from the sale of real property to its counsel to be held in its counsel's trust account pending further order of the trial court. Because irreparable harm does not exist and Strategica has an adequate remedy at law, we reverse the entry of the temporary injunction.

I. BACKGROUND

Strategica sued Sammie and its manager, Mary Moulton, in a six-count complaint filed on June 15, 2017. Strategica brought three counts against Sammie for breach of contract, two counts against Ms. Moulton for misrepresentation and unjust enrichment, and one count against Sammie and Ms. Moulton for declaratory judgment. Thereafter, on June 21, 2017, Strategica filed a verified emergency motion for injunctive relief on the basis it provided services and advanced funds on behalf of Sammie and its affiliated companies and entities (the "Moulton entities") in exchange for a twenty percent interest in the profits of Sammie. Strategica claimed that Sammie's only asset was its investment in and co-manager position of 9 Mile-NF Joint Venture LLC ("9 Mile"). 9 Mile was purportedly poised to sell real property (the "9-Mile property") and Strategica sought the entry of an injunction to prohibit Sammie from distributing the proceeds of that sale.

Seven days later, Sammie filed a response asserting it did not agree to grant Strategica an interest in twenty percent of the gross amount it received and argued that a profits interest in it is separate and distinct from a twenty percent assignment of the proceeds of its interest in 9 Mile. Ms. Moulton filed an affidavit in support of Sammie's response, stating that no written agreement was ever executed by the parties.

Although Sammie conceded that Strategica advanced $75,000 for the benefit of the Moulton entities, it claimed substantial factual disputes existed as to the alleged agreement's terms, performance, and remedies. Sammie also asserted it has other ongoing business activities. As such, Strategica contended, even assuming Sammie is correct, there is no basis for the entry of a temporary injunction because money damages provide an adequate remedy at law and irreparable harm does not exist where the potential loss is compensable by money damages.

On August 3, 2017, the trial court held an evidentiary hearing on Strategica's injunction motion. The trial court considered an engagement letter and a supplemental agreement from September 2015, neither of which is signed by, or mentions Sammie, as well as emails from November of 2015. The engagement letter from Strategica was addressed to Ms. Moulton and James C. Moulton, who signed the letter as President of Moulton Properties, Inc. and affiliates. The supplemental agreement was allegedly between Strategica and the Moulton Entities. The emails include an exchange between Strategica's executive vice president, Steven Cook, and its counsel. Mr. Cook testified that although Strategica exchanged drafts with Sammie, they never reached an agreement on the disposition of the proceeds of the sale of the 9 Mile property. He further testified that based on the 9 Mile property closing statement, Strategica is owed "slightly over $200,000" from the sale. Mr. Cook also opined that Sammie did not have operations other than this investment in 9 Mile.

Thereafter, on August 29, 2017, the trial court entered the order granting Strategica's motion for temporary injunctive relief, wherein the trial court found that Strategica satisfied its burden of showing:

a. the likelihood of irreparable harm and the unavailability of an adequate remedy at law based on the testimony presented regarding the limited resources and operations of [Sammie];
b. a substantial likelihood of success on the merits based on the testimony presented regarding the contract formed between [Strategica] and [Sammie];
c. that the threatened injury to [Strategica] outweighs any possible harm to the [Sammie], and
d. that the granting of the preliminary injunction will not disserve the public interest.

In its order, the trial court directed Sammie to "immediately deliver up to $200,000.00 of the proceeds derived from the sale [the 9-Mile property] to its counsel ... to be held in counsel's trust account, until further order of the Court." The trial court further required Strategica to obtain a $500 bond and set this minimal amount based on Strategica's likelihood of success on the merits. This timely appeal follows.

II. JURISDICTION

This Court has jurisdiction to review the non-final order granting temporary injunctive relief pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(B). See also Fla. R. App. P. 9.130(a)(3)(B) (authorizing district courts of appeal to review non-final orders that "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.").

III. STANDARD OF REVIEW

"The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Bookall v. Sunbelt Rentals, Inc., 995 So.2d 1116, 1117 (Fla. 4th DCA 2008) (emphasis added) (citations omitted). "Although a trial court has broad discretion in granting injunctive relief, it is an extraordinary remedy that requires a clear legal right, free from reasonable doubt." Meritplan Ins. Co. v. Perez, 963 So.2d 771, 776 (Fla. 3d DCA 2007) (internal quotations omitted).

IV. ANALYSIS

To establish entitlement to a temporary injunction, the moving party must show "the likelihood of irreparable harm; the unavailability of an adequate remedy at law; the substantial likelihood of success on the merits; the threatened injury to the petitioner outweighs the possible harm to the respondent; and the granting of the temporary injunction will not disserve the public interest." Chevaldina v. R.K./FL Mgmt., 133 So.3d 1086, 1089 (Fla. 3d DCA 2014). Moreover, a temporary injunction "should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to relief." Id. (quoting Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) ). The party seeking an injunction has the burden of providing competent, substantial evidence satisfying each element. See SunTrust Banks, Inc. v. Cauthon & McGuigan, PLC., 78 So.3d 709, 711 (Fla. 1st DCA 2012).

The trial court below based its finding of the likelihood of irreparable harm and the unavailability of an adequate remedy at law on the testimony presented regarding the limited resources and operations of Sammie. Specifically, the trial court reasoned that if Sammie does not "have any other assets based on the only testimony provided, then there would be irreparable harm because there would be nowhere else from where to gain that money. Those monies are not set aside." As such, the trial court concluded that "the most [it could do] is enjoin [Sammie] from somehow not disbursing or otherwise dissipating, [it] would say, $200,000 of whatever they obtain from the closing from that 9 Mile property. It has been dispersed [sic] to them. Hopefully, it's still in an account somewhere."

Strategica has failed to meet its burden of proving that it will incur irreparable harm because it has no adequate remedy at law. As defined by this Court, "irreparable injury is injury that cannot be cured by money damages." Lutsky v. Schoenwetter, 172 So.3d 534, 534 (Fla. 3d DCA 2015) (citing Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1092 (Fla. 3d DCA 2014) ). And, "[t]he test for unavailability of an adequate remedy at law, under these requirements, is 'whether a judgment can be obtained, not whether, once obtained, it will be collectible.' " Lopez-Ortiz v. Centrust Sav. Bank, 546 So.2d 1126, 1127 (Fla. 3d DCA 1989) (citations omitted).

Here, even if Strategica is ultimately successful in establishing entitlement to the $75,000 purported loan or to twenty percent of Sammie's profits from the sale of the 9 Mile property, it will only be entitled to an award of money damages. Strategica, therefore, has an adequate remedy at law to recover the disputed funds. Accordingly, because the injury Strategica is attempting to prevent is purely monetary and can be cured by money damages, Strategica will not suffer irreparable harm.

As this Court stated in Konover Realty Associates, Ltd. v. Mladen:

It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court, or indeed for any restraint upon the use of a defendant's unrestricted assets prior to the entry of judgment. The rule has been specifically applied, as on general principles it must be, to an action like this one for the recovery of unsegregated earnest money, and is unequivocally not affected by the claim that recovery upon any subsequently-entered judgment may be made difficult by the dissipation or unreachability of the debtor's assets.

511 So.2d 705, 706 (Fla. 3d DCA 1987) (internal citations omitted); see also Leight v. Berkman, 483 So.2d 476, 477 (Fla. 3d DCA 1986) (citations omitted) ("The law is unequivocally established that an injunction against the disposition of a defendant's assets simply may not be granted upon the ground that their preservation is required to satisfy a subsequent money judgment."); De Leon v. Aerochago, S.A., 593 So.2d 558, 559 (Fla. 3d DCA 1992) ("Injunctive relief may not be used to enforce money damages, or to prevent any party from disposing of assets until an action at law for an alleged debt can be concluded." quoting Hiles v. Auto Bahn Federation, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) ).

V. CONCLUSION

Because Strategica has suffered no irreparable injury that cannot be cured by money damages and an adequate remedy at law is available, we reverse the trial court's order granting Strategica's motion for temporary injunctive relief and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      Prior to the hearing, on July 3, 2017, Strategica filed an amended complaint, adding claims against Sammie for breach of implied contract at law and the imposition of a constructive trust over the funds which correspond to twenty percent of the profit interest received by Sammie from the sale of the 9 Mile property and the other amounts due to Strategica under the parties' alleged agreement. However, the order entered by the trial court makes no mention of the constructive trust claim. As such, we decline to address this theory.


author: PER CURIAM.

text:
    Antoine L. BYNUM, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3342
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 11, 2018
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Antoine L. Bynum, appeals his judgment and sentence following a jury trial where he was convicted of murdering Remmi Goyens. Appellant argues that the trial court committed fundamental error when it failed to "make an independent determination of the Appellant's competency." We agree and reverse for a nunc pro tunc competency hearing. We otherwise affirm.

The Proceedings in this Case

On April 26, 2015, the day before trial was initially scheduled, Appellant's counsel filed a notice of incompetency. As a result, the trial court held a competency hearing, and after considering the reports of two court-appointed experts, found Appellant incompetent to proceed and committed him to the Department of Children and Families (DCF) for treatment at the state hospital under Florida Rule of Criminal Procedure 3.212(c).

On August 31, 2015, mental health professionals at the North Florida Evaluation and Treatment Center filed a report representing that Appellant's competency had been restored. At defense counsel's request, the trial court once again appointed an expert to evaluate Appellant under Florida Rule of Criminal Procedure 3.210(b)(4).

The trial court then held a competency hearing on October 22, 2015. However, no evidence was received at the hearing. Rather, Appellant's counsel conveyed to both the State and the trial court that the expert had found Appellant competent to proceed. Even though it had not yet reviewed the expert's report, the court found Appellant competent to proceed "based on the accord of [the expert], and based on ... the stipulations of the State and Defense."

The case then proceeded to trial on August 8, 2016, where Appellant admitted that he killed the victim but raised an insanity defense. The jury convicted Appellant of the lesser-included offense of second-degree murder.

Florida Law: Competency to Proceed

"[A] criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed." McCray v. State , 71 So.3d 848, 862 (Fla. 2011) (quoting Caraballo v. State , 39 So.3d 1234, 1252 (Fla. 2010) (citing Medina v. California , 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) ) ); see also Fla. R. Crim. P. 3.210(a). A "material stage" includes the trial, pretrial hearings on factual issues where the defendant might testify, entry of a plea, contempt hearings, violation of probation hearings, sentencing, and "other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered." Fla. R. Crim. P. 3.210(a)(1).

"Once found incompetent, a presumption clings to the criminal defendant that the state of incompetence persists until a court, after proper notice and a hearing, finds otherwise." Molina v. State , 946 So.2d 1103, 1105 (Fla. 5th DCA 2006) (citing Jackson v. State , 880 So.2d 1241, 1242 (Fla. 1st DCA 2004) ; Sledge v. State , 871 So.2d 1020 (Fla. 5th DCA 2004) ). "Until the presumption of continued incompetence dissipates, the criminal defendant may not be tried for the crimes for which he or she is charged. Violation of this principle constitutes fundamental error[,]" Id. at 1105-06 (citing Jackson ), which may be raised for the first time on appeal. See also Sheheane v. State , 228 So.3d 1178, 1181 (Fla. 1st DCA 2017) ("This is a denial of due process, resulting in a fundamental error that requires our intervention despite Appellant's failure to preserve it below.").

"A proper hearing to determine whether competency has been restored [typically] requires 'the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.' " Molina , 946 So.2d at 1105 (quoting Samson v. State , 853 So.2d 1116, 1117 (Fla. 4th DCA 2003) (citing Fla. R. Crim. P. 3.212 ) ). However, "where the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone." Dougherty v. State , 149 So.3d 672, 678 (Fla. 2014) (quoting Fowler v. State , 255 So.2d 513, 515 (Fla. 1971) ). In such a case, the trial court must actually "review[ ] the expert reports and other evidence." Rumph v. State , 217 So.3d 1092, 1095 (Fla. 5th DCA 2017).

Importantly, the court must always make an independent determination as to a defendant's competency to proceed.

Dougherty , 149 So.3d at 678. Thus, accepting a stipulation of the parties as to competency is not permitted. Id.

The Competency Determination in this Case

In this case, the trial court found Appellant competent to proceed based upon the stipulation of the parties and an expert's report which the court had not reviewed. In so doing, the court deferred to the expert and the parties rather than making its own independent determination. We conclude that this was fundamental error. See Sheheane , 228 So.3d at 1180 ; see also Rumph , 217 So.3d at 1094.

Given the circumstances here, we remand for the trial court to conduct a nunc pro tunc competency hearing. "[W]here the issue of competency was inadequately determined below, a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the defendant contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing." Presley v. State , 199 So.3d 1014, 1019 (Fla. 4th DCA 2016) (citing Dougherty , 149 So.3d at 679 ).

Thus, on remand, if the court determines that Appellant was competent to proceed to trial, it shall enter a written order with findings. See Roman v. State , 163 So.3d 749, 751 (Fla. 2d DCA 2015). However, if the trial court finds that an evaluation of Appellant's competency prior to trial "cannot be conducted in such a manner as to assure [Appellant] due process of law," or if the court finds that Appellant was not competent, the court must grant Appellant a new trial. See Mason v. State , 489 So.2d 734, 737 (Fla. 1986).

AFFIRMED in part; REVERSED in part; and REMANDED with INSTRUCTIONS.

PALMER, TORPY, and EISNAUGLE, JJ., concur.

      This was the second time that Appellant was found incompetent to proceed in this case.

      We note "[a] determination by DCF that a criminal defendant has regained competency is insufficient to change the defendant's legal status." Erickson v. State , 965 So.2d 294, 295 (Fla. 5th DCA 2007).

      Our record indicates the first material stage after the competency hearing was trial.


text:
    Pamela MORRISON, Appellant, v. James MORRISON, Appellee.
    Case No. 2D17-3309
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018
    Andrea M. Johnson of Law Office of Andrea M. Johnson, P.A., Bradenton; and Kathi B. Halvorsen of Kathi B. Halvorsen, P.A., Sarasota, for Appellant.
    Richard Weissfeld, Sarasota, for Appellee.
   VILLANTI, Judge.

Pamela Morrison (the Former Wife) appeals the order that denied her second amended motion for enforcement of the marital settlement agreement (MSA) entered between her and James Morrison (the Former Husband). Because the trial court applied the incorrect legal standard when interpreting the parties' MSA and because resolution of the matter will require consideration of evidence, we reverse and remand for further proceedings.

The parties were married for twenty-seven years before filing for dissolution. Apparently, the parties elected not to save for retirement, relying instead on the fact that the Former Husband's parents were quite wealthy and that he expected to inherit large sums of money from them.

In the parties' MSA, as part of equitable distribution, the parties agreed that the Former Husband would pay the Former Wife specified percentages of the "inheritance funds received" by the Former Husband after both of his parents died. The MSA specifically stated that it was the parties' "intention to utilize the inheritance for both of their elder years." The MSA also required the Former Husband to maintain life insurance as security for this agreed obligation, with the insurance obligation ending "if the Wife receives the inheritance monies."

It appears from the language of the MSA that the parties anticipated that the Former Husband would receive his inheritance as a lump sum. However, the Former Husband's father actually created a revocable trust, put all of his considerable assets into the trust, and then-after the MSA was signed-created a spendthrift subtrust with the Former Husband as beneficiary that would be funded upon the father's death. Thus, rather than receiving a lump sum payment upon his father's death, the Former Husband began receiving periodic distributions from the subtrust. But the Former Husband refused to pay any portion of these distributed funds to the Former Wife.

The Former Wife subsequently filed a motion for enforcement, contending that the funds actually distributed to the Former Husband from the subtrust were subject to equitable distribution under the MSA as inheritance funds received. The Former Wife did not contend that she could invade the subtrust or require that any distributions be made-only that she was entitled to the percentage specified in the MSA of the distributions actually made to the Former Husband. In opposition, the Former Husband contended that the funds paid to him from the subtrust were not "inherited" and therefore were not contemplated by the language of the MSA. He based this argument entirely on case law dealing with statutory construction and the use of the term of "inherit" in the federal bankruptcy statutes.

The trial court held a hearing at which the Former Wife testified to the parties' intent concerning the distribution of the funds. The Former Husband did not attend the hearing or present any contrary evidence; instead, his attorney simply argued that the parties' intent was immaterial in light of the "plain language used." The trial court agreed with the Former Husband and denied the Former Wife's motion to enforce. The Former Wife then brought this timely appeal.

The issue here is one that must be resolved under the law pertaining to latent ambiguities rather than statutory construction. "A latent ambiguity arises when the language in a contract is clear and intelligible, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two or more possible meanings." GE Fanuc Intelligent Platforms Embedded v. Brijot Imaging Sys., Inc., 51 So.3d 1243, 1245 (Fla. 5th DCA 2011) (citing Deni Assocs. of Fla, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla. 1998) ); see also Luciano v. Franchino, 730 So.2d 410, 412 (Fla. 2d DCA 1999) ("A latent ambiguity ... exists where a contract fails to specify the rights and duties of the parties in certain situations and extrinsic evidence is necessary for the interpretation or a choice between two possible meanings" (quoting Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995) ) ). "A latent ambiguity is thus brought to light when extraneous circumstances reveal 'an insufficiency in the contract not apparent from the face of the document.' " Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Hunt v. First Nat'l Bank, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980) ). When a latent ambiguity exists, "the court must hear parol evidence to interpret the writing properly." Id. (quoting RX Sols., Inc. v. Express Pharmacy Servs., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999) ); see also Emergency Assocs. of Tampa, P.A., 664 So.2d at 1002-03. When considering that parol evidence, the question to be addressed is what the parties would have included in the contract had they anticipated the occurrence they overlooked. Hunt, 381 So.2d at 1197 & n.3 (noting that "it isn't what the parties should have done that invites and sanctions judicial intervention, it's what they would have done had they thought to do it"). And the question of what the parties would have included is particularly important in an equitable setting, such as family law matters.

Here, the parties' MSA refers to "inheritance funds received" by the Former Husband. There is no dispute that the parties were referring to funds the Former Husband anticipated that he would receive when his parents died, and there is also no dispute that the parties did not know when they executed the MSA exactly how the funds would ultimately pass to the Former Husband. The extrinsic fact here is the means by which the Former Husband received the funds. Rather than the father's estate being probated with a lump sum going to the Former Husband, the funds are being held in trust for the Former Husband. This extrinsic fact requires an analysis of the parties' intent as to the distribution of funds when they entered into the MSA, i.e., what would the parties have included in the MSA had they known that the Former Husband would not receive the funds from his parents outright but instead would receive them only in his capacity as the beneficiary of a spendthrift trust.

Unfortunately here, the trial court did not address this question. Instead, the court went on an extended foray into the law of statutory construction and examined cases dealing with how to interpret undefined terms in a statute-specifically the bankruptcy statutes. See, e.g., In re Ciano, 433 B.R. 431 (Bankr. N.D. Fla. 2010) ; In re Roth, 289 B.R. 161 (Bankr. D. Kan. 2003). This was plain error, however, because the goal of statutory construction is to determine what a legislative body intended when it drafted a statute of general applicability. See, e.g., Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 (Fla. 2013) (noting that the "primary rule of statutory construction is 'to give effect to legislative intent' " (quoting Gomez v. Vill. of Pinecrest, 41 So.3d 180, 185 (Fla. 2010) ) ). That is a wholly different question from determining what private parties intended when they entered into a contract. Hence, the courts' determinations in Ciano and Roth concerning what Congress meant when it used the term "inherit" in the bankruptcy statutes does not inform-or even provide guidance-as to what the Former Husband and Former Wife meant or intended when they provided for the division of the anticipated "inherited funds" in their MSA. The trial court's reliance on the statutory construction analysis in Ciano and Roth when attempting to resolve the issue of a latent ambiguity in a private contract was legally erroneous and requires us to reverse the order denying enforcement and remand for further proceedings utilizing the proper legal standard.

We recognize that normally the interpretation of a marital settlement agreement is a question of law which this court can decide as easily as the trial court. See Hobus v. Crandall, 972 So.2d 867, 869 (Fla. 2d DCA 2007) ; Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006) ("Interpretation of a marital settlement agreement is a matter of law and places the appellate court on an equal footing with the trial court as interpreter of the written document."). However, when a contract contains a latent ambiguity, the question of the parties' intent requires the taking of parol evidence-something which this court will not do. See, e.g., Mac-Gray Servs., Inc., 915 So.2d at 659-60 (noting that when there is a latent ambiguity the correct interpretation of the contact is an issue of fact rather than of law). And while the Former Wife has asserted that she gave testimony at the evidentiary hearing while the Former Husband did not, no transcript of that hearing is available for this court to review. Therefore, because we cannot make findings of fact concerning the parties' intent in the first instance and because the trial court made no factual findings on this issue, we remand this case for the trial court to reconsider its ruling in light of the correct legal standard. If the trial court can do so based on the evidence presented at the earlier hearing, it may do so. Otherwise, further hearings may be needed.

Finally, for guidance to the trial court on remand, we note that when considering parol evidence concerning the parties' intent, a reasonable interpretation is preferred over one which is unreasonable, and an interpretation that leads to an absurd result or that nullifies other provisions of the contract should be avoided. See Hunt, 381 So.2d at 1197. Further, "[w]here one interpretation would lead to an agreement which is fair and reasonable, while another interpretation would result in an unfair and inequitable agreement, the former must be selected." Id. Given these general principles, any interpretation that would essentially negate a large portion of the parties' equitable distribution agreement should be rejected.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.