author: Warner, J.

text:
    Dilson S. URRIBARI, an individual, and La Placita Grocery of Fort Pierce Corp., a Florida corporation, Appellants, v. 52 SW 5TH CT WHSE, LLC, a Florida limited liability company, and Bashar M. Yatak, Appellees.
    No. 4D18-1539
    District Court of Appeal of Florida, Fourth District.
    March 20, 2019
    Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula & Associates, P.A., Miami, for appellants.
    Elaine Johnson James of Elaine Johnson James, P.A., Palm Beach Gardens, for appellees.
   Warner, J.

La Placita Grocery, a lessee of a commercial building, and its president, Dilson Urribari, appeal two judgments, both entered upon motions for judgment on the pleadings. The first resolved a complaint for breach of contract, fraud in the inducement, and other grounds against Bashar Yatak in connection with his purchase of La Placita's right of first refusal on the purchase of the building. The second judgment granted eviction of La Placita and entered judgment on La Placita's counterclaims against 52 SW 5th CT WHSE, LLC, and Yatak as its manager, which mirrored the claims brought in the first suit. Because the trial court erred by considering facts outside the four corners of the pleadings and relying on allegations deemed false pursuant to the rules governing motions for judgment on the pleadings, we reverse.

In the first lawsuit, La Placita Grocery of Fort Pierce Corporation sued Bashar Yatak for promissory estoppel, unjust enrichment, specific performance, fraud in the inducement, both intentional and negligent misrepresentation, and breach of contract. The second amended complaint alleged that La Placita operated a grocery store on property in Fort Pierce, which it leased from Jose and Sandra Garcia. In 2017, Yatak expressed an interest in purchasing the grocery store business, and Yatak and La Placita entered into an oral agreement for 52 SW to purchase the business for $ 550,000 prior to the end of June 2017. Subsequent to the agreement, Yatak became interested in purchasing the property leased to La Placita. The lease gave La Placita and Urribari the right of first refusal to buy the Garcias' property. La Placita agreed to waive its right of first refusal, so that Yatak could negotiate a sale of the building from Garcia, conditioned on Yatak continuing with his purchase of the grocery store business. When the purchase of the grocery business was not forthcoming, La Placita threatened to terminate the waiver. Unbeknownst to La Placita, Yatak, through his corporation 52 SW, expedited the purchase of the building for less than the sale price of the grocery business. After closing on the purchase, Yatak continued to make representations that he would purchase the grocery business. Yatak knew, however, that a clause in the lease allowed the purchaser of the building to terminate the lease within sixty days of the purchase. La Placita alleged that at the time of the filing of the complaint, Yatak, through 52 SW, was attempting to evict it from the property, thus breaching his agreement to purchase the grocery store business from La Placita.

Based upon the alleged facts, La Placita sought damages for breach of contract, unjust enrichment, and fraud, and it also sought specific performance of the oral agreement to purchase the business. La Placita did not attach any documents to its second amended complaint, although the lease agreement between it and Garcia, as well as an unsigned copy of an Asset Purchase Agreement between La Placita and Yatak, were attached to the original complaint.

Yatak moved to dismiss the complaint or for judgment on the pleadings of the second amended complaint, relying on two documents. The first document was the unsigned Asset Purchase Agreement attached to the initial complaint. The other document was the "Waiver of Right to Purchase," which La Placita signed. Neither document was attached to the pleadings. Yatak argued that the second amended complaint failed to state a cause of action for breach of contract and specific performance because Yatak had not executed the Asset Purchase Agreement attached to the initial complaint. Yatak also contended that the counts for fraud, intentional and negligent misrepresentation, unjust enrichment, and promissory estoppel all failed due to the existence of the written waiver agreement. Yatak also raised the affirmative defense that the statute of frauds barred the oral agreement to buy La Placita's grocery store business.

La Placita responded that the Asset Purchase Agreement and written waiver were not attached to the second amended complaint, and Yatak could not rely on them for dismissal. Further, La Placita and Urribari had fully performed their portion of the bargain, which prevented application of the statute of frauds. La Placita raised other grounds as to why the statute of frauds did not apply.

In the meantime, after La Placita had filed its original complaint, 52 SW filed a complaint in county court for eviction of La Placita and Urribari, alleging that it was entitled to terminate the lease and evict them based upon the provision in the lease allowing a new owner to terminate the lease upon sixty days' notice. 52 SW did not attach a deed, an assignment of the lease, or other evidence of its status as landlord. La Placita answered the eviction complaint and argued that the property had been sold by the Garcias, but it denied that 52 SW owned the property. It alleged that Yatak had fraudulently induced La Placita to waive the right of first refusal. As a result, La Placita contended that 52 SW and Yatak should be estopped from enforcing the sixty-day termination of the lease based on their misconduct. It sought to enjoin Yatak and 52 SW from evicting them.

La Placita filed a counterclaim against 52 SW and Yatak, which contained the same allegations as in the subsequently filed second amended complaint addressed above. It did not attach any documents to its counterclaim. Yatak and 52 SW responded to La Placita's counterclaim to the eviction action by filing an answer and affirmative defenses. They attached a copy of La Placita's original complaint in the circuit court action, including the attached Asset Purchase Agreement and the Garcia lease. They also attached the written waiver of the right of first refusal.

After the filing of the second amended complaint, the county court entered an agreed order transferring 52 SW's eviction case to circuit court and consolidating it with La Placita's fraud action. 52 SW and Yatak moved for judgment on the pleadings on La Placita's counterclaim in the eviction action. For reasons that do not appear in the record, 52 SW withdrew its affirmative defenses to La Placita's counterclaim, and then it moved for judgment on the pleadings in the eviction action.

The court heard all three motions for judgment on the pleadings, and, after argument, ruled on each of them. The court dismissed the second amended complaint based upon its review of the Asset Purchase Agreement and waiver. It granted judgment of eviction based upon 52 SW's ownership of the property, the lease term allowing a new owner to terminate the lease, and written notice to La Placita, all of which it referred to as undisputed. The court also found that the affirmative defenses were not legal defenses to the complaint for eviction under Florida law. As to La Placita's counterclaim, the court relied on the unsigned Asset Purchase Agreement, as well as the written waiver of the right of first refusal, to find that Yatak and 52 SW were entitled to judgment on the pleadings. From these rulings, La Placita appeals.

Preliminarily, we note that although the court consolidated the two cases, a motion to dismiss for failure to state a cause of action or a motion for judgment on the pleadings must be determined solely by the examination of the complaint and its related documents, not the documents in the consolidated case. In Santiago v. Mauna Loa Investments, LLC , 189 So.3d 752 (Fla. 2016), the supreme court discussed the effect of consolidation in ruling on a dismissal for failure to state a cause of action. The Third District had reversed a judgment in consolidated cases, determining that the complaint against the defendant in one of the consolidated cases did not state a cause of action by relying on documents attached to the complaint in the other consolidated case. Id. at 754-55. On petition for review, the Florida Supreme Court quashed the Third District Court of Appeal's opinion because that court had improperly gone outside the four corners of the complaint in determining the sufficiency of the complaint to state a cause of action:

The district court's examination of one complaint and its attachments to determine the sufficiency of a separate complaint to state a cause of action clearly contravenes the longstanding four-corners rule explained above. And to the extent that the district court reached this conclusion based on the consolidation of the cases, the district court also improperly merged the [complaints from the two consolidated cases]. "Consolidation does not merge suits into a single cause or change the rights of the parties, or make those who are parties in one suit parties in another. Rather, each suit maintains its independent status with respect to the rights of the parties involved."

Id. at 757 (citation omitted). The court explained that the sufficiency of a complaint to state a cause of action must be determined solely by the examination of the complaint and its related documents, not the documents in the consolidated case. Id. These principles of law apply to the complaints in these consolidated cases, and we address each complaint separately.

Standard of Review

An order on a motion to dismiss for failure to state a cause of action is reviewed de novo. See Rivera v. Torfino Enters., Inc. , 914 So.2d 1087, 1088 (Fla. 4th DCA 2005). "When ruling on a motion to dismiss for failure to state a cause of action, the trial court must 'treat as true all of the ... complaint's well-pleaded allegations, including those that incorporate attachments, and look no further than the ... complaint and its attachments.' " Morin v. Fla. Power & Light Co. , 963 So.2d 258, 260 (Fla. 3d DCA 2007) (footnote omitted) (quoting City of Gainesville v. Fla. Dep't of Transp. , 778 So.2d 519, 522 (Fla. 1st DCA 2001) ). In ruling on a motion to dismiss a complaint for failure to state a cause of action, "[t]he court 'must confine itself strictly to the allegations within the four corners of the complaint.' " Pizzi v. Cent. Bank & Tr. Co. , 250 So.2d 895, 897 (Fla. 1971) (quoting Kest v. Nathanson , 216 So.2d 233, 235 (Fla. 4th DCA 1968) ).

"A motion for judgment on the pleadings is governed by the same legal test as a motion to dismiss for failure to state a cause of action." Lutz v. Protective Life Ins. Co. , 951 So.2d 884, 889 (Fla. 4th DCA 2007). To grant a judgment on the pleadings, a trial court must find that based on the pleadings, the movant is entitled to judgment as a matter of law. Krieger v. Ocean Props., Ltd. , 387 So.2d 1012, 1013-14 (Fla. 4th DCA 1980). It is improper to enter judgment on the pleadings if there are factual issues to be resolved. Id. at 1014. And in considering a motion for judgment on the pleadings, the court is precluded from relying on matters outside the pleadings. Id. at 1013.

La Placita's Second Amended Complaint

The trial judge entered both a dismissal of La Placita's second amended complaint for failure to state a cause of action and a judgment on the pleadings on the same complaint. It relied on the unsigned Asset Purchase Agreement and the waiver of La Placita's right of first refusal. Neither document was attached to the amended complaint. Thus, the court erred in entering judgment on documents on matters outside the pleadings.

This case is similar to Oceanside Plaza Condominium Ass'n v. Foam King Industries, Inc. , 206 So.3d 785, 787 (Fla. 3d DCA 2016). There, a condo association sued a roofing company, alleging faulty roofing materials and installation. Id. at 786. The original complaint and first amended complaint were dismissed because of a statute of limitations bar. Id. A second amended complaint was filed that changed the allegations so that the faulty roofing was discovered the day before the limitations period expired. Id. The roofer filed a motion to dismiss the second amended complaint. Id. The trial court reviewed the first amended complaint along with the second amended complaint, and it determined that the facts contradicted the facts of the second amended complaint. Id. Because of the variance, the trial court granted the motion to dismiss. Id. The appellate court reversed. The court noted that the filing of an amended complaint constituted an abandonment of the original complaint. Id. at 787. As the first amended complaint was superseded, it "could no longer be viewed as a pleading." Id. (quoting Babb v. Lincoln Auto Fin. Co. , 133 So.2d 566, 568 (Fla. 3d DCA 1961) ). Thus, because the court improperly considered pleadings outside the second amended complaint, it erred in granting the motion to dismiss. Id.

In this case, the court relied on the Asset Purchase Agreement attached to the original complaint. The original complaint was dismissed, and the exhibit was not attached to the second amended complaint. The waiver also relied on by the court was not attached to any pleading in this case. Therefore, the court erred in considering these documents when granting the motion to dismiss and motion for judgment on the pleadings. As to the motion to dismiss, the complaint stated a cause of action for each of the counts.

Judgment of Eviction

La Placita argues that the court erred in granting judgment on the pleadings in 52 SW's complaint for eviction because the allegations of the complaint were disputed in the answer. "In ruling on a motion for judgment on the pleadings[,] material allegations of the moving party which have been denied are taken as false." First Fin. USA, Inc. v. Steinger , 760 So.2d 996, 997 (Fla. 4th DCA 2000) (quoting Windle v. W.W. Windle Co. , 731 So.2d 36, 37 (Fla. 4th DCA 1999) ). "Judgment on the pleadings may be granted only if, on admitted facts, the moving party is clearly entitled to judgment as a matter of law." Krieger , 387 So.2d at 1013-14 (emphasis added).

The eviction complaint alleged that 52 SW owned real property leased by La Placita. However, La Placita responded in its answer to the eviction complaint that it was "without knowledge and [could] neither deny nor admit" this ownership allegation. Florida Rule of Civil Procedure 1.110(c) requires these allegations to "operate as a denial." Thus, for purposes of the motion for judgment on the pleadings, the allegations should have been taken as false. La Placita also denied that it had been notified of the sale of the property and contested 52 SW's standing to evict, contending that it was not a party to the lease. As there was a plethora of facts which were required to be taken as false for the purposes of the motion for judgment on the pleadings, the court erred in entering the judgment for eviction based upon the motion for judgment on the pleadings.

La Placita's Counterclaim against 52 SW and Yatak

The counterclaim of La Placita against 52 SW and Yatak was nearly identical to the consolidated complaint filed by La Placita. Unlike the consolidated complaint, the Asset Purchase Agreement and waiver were attached to the answer filed by 52 SW and Yatak, as they attached the entire original complaint filed by La Placita in the consolidated case. While the court's judgment on the pleadings in this case was not based upon documents outside the pleadings, that does not allow the trial court to grant judgment on the pleadings based upon the answer and affirmative defenses.

"In considering such a motion, all material allegations of the opposing party's pleading are taken as true, and all of the movant's allegations which have been denied are taken as false. Since the answer requires no responsive pleading, all allegations contained therein are deemed denied." Butts v. State Farm Mut. Auto. Ins. Co. , 207 So.2d 73, 75 (Fla. 3d DCA 1968) (citations omitted). Where, as here, there has been no reply to the affirmative defense of res judicata, it is deemed to be denied, and therefore false.

Jaramillo v. Dubow , 588 So.2d 677, 677-78 (Fla. 3d DCA 1991) ; accord Ferris v. Ferris , 660 So.2d 418, 418 (Fla. 4th DCA 1995). Thus, in this case, the allegations in appellees' answer and affirmative defense to La Placita's counterclaim must be deemed denied and false. Therefore, the trial court could not rely on them and the attached documents, as it did, in granting judgment on the pleadings. It also could not rely on the affirmative defenses, as they had been withdrawn by 52 SW by the time of the hearing on the motions.

In conclusion, in entering each judgment on the pleadings, the court erred in considering matters outside the pleadings, as well as in relying on allegations deemed false for purposes of the motion. We therefore reverse and remand for further proceedings in both of the consolidated cases.

Damoorgian and Levine, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ernest Todd KEENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3353
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Ernest Todd Keene, Lawtey, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Ernest Todd Keene, seeks review of the summary denial of his third amended Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse.

In December 2010, Keene pled no contest to two counts of DUI with serious bodily injury. The court sentenced Keene to time-served in jail, twelve months of community control, followed by forty-two months of probation on Count I and sixty months of probation on Count II, consecutive to Count I. On July 2, 2015, Keene was arrested for DUI and the State filed a violation of probation affidavit. Keene entered a plea to the violation of probation, and on February 12, 2016, the lower court revoked probation and sentenced Keene to 106.65 months in prison on both Counts I and II.

Keene filed a third amended motion for postconviction relief, arguing that the lower court lacked jurisdiction to revoke his probation and sentence him as to Count I, and that his counsel was ineffective for failing to object thereto. He argued that he had completed his sentence on that count on June 6, 2015-prior to his July 2015 arrest-and, therefore, the court lacked jurisdiction to modify the sentence on that count. He also argued that his scoresheet should have been calculated without adding points for a violation of Count I.

Without disputing Keene's chronology, the lower court summarily denied relief, reasoning that Keene's probationary period on Count I had not expired prior to his July 2015 arrest because his probationary period had been tolled between December 2013, when the State filed an earlier violation of probation affidavit and an arrest warrant was issued, and March 2014, when that affidavit was dismissed. The court relied on language in section 948.06(1)(f), Florida Statutes, stating that a probationary period is tolled upon filing of a violation of probation affidavit and issuance of a warrant until the court rules on the violation.

It is well settled that after a term of probation has expired, a court has no jurisdiction to entertain a violation of probation based on offenses occurring during the probation. Stambaugh v. State , 891 So.2d 1136, 1139 (Fla. 4th DCA 2005). We agree with Keene that the lower court erred in relying on the tolling provisions of section 948.06(1)(f) to conclude that his probationary period had not yet expired at the time of his July 2015 arrest. As Keene pointed out below, while the filing of a violation of probation affidavit ordinarily tolls the probationary period, the dismissal of that affidavit nullifies the tolling mechanism. See § 948.06(2)(g), Fla. Stat. (providing that "offender shall receive credit for all tolled time against his or her term of probation or community control" if court dismisses affidavit of probation violation); see also Pupo-Diaz v. State , 966 So.2d 1010, 1012 (Fla. 2d DCA 2007) (explaining that trial court was required to credit defendant for all tolled time after dismissing affidavit); Stambaugh , 891 So.2d at 1139 (holding that defendant shall receive credit for all tolled time after state dismisses or withdraws violation of probation charge).

In this case, Keene's third amended motion for postconviction relief alleged, and the attachments to the lower court's order support, that the December 2013 violation of probation affidavit was dismissed in March 2014. Thus, it appears that he should have been credited all time tolled between December 2013 and March 2014. If Keene's allegations are true, then the lower court was divested of all jurisdiction over Keene as to Count I. See Stapler v. State , 939 So.2d 1092, 1093 (Fla. 5th DCA 2006) (stating that court generally lacks jurisdiction over probationer upon expiration of probationary period). As such, Keene's postconviction motion stated a facially sufficient claim and the lower court erred in summarily denying the motion. We reverse for the lower court to either hold an evidentiary hearing, if necessary, grant the requested relief, or attach records conclusively showing that Keene is entitled to no relief.

REVERSED AND REMANDED.

EVANDER, C.J., HARRIS, and SASSO, JJ., concur.


text:
    Casey SEAMAN, Appellant, v. Allison L. SEAMAN, Appellee.
    Case No. 5D18-2080
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Michael V. Laurato, of Austin & Laurato, P.A., Tampa, for Appellant.
    Cheri A. Russell, of Cheri A. Russell, P.A. Ocala, for Appellee.
   PER CURIAM.

Appellant, Casey Seaman, appeals the trial court's order finding him in indirect civil contempt, arguing, inter alia , that the trial court failed to comply with Florida Family Law Rule of Procedure 12.615(c)(2)(B). Appellant asserts that because he was not present at the contempt hearing, the trial court erred when it found that he had a present ability to pay and that his failure to pay was willful. We agree and note that Appellee properly concedes error on this point.

We therefore reverse the order finding Appellant in indirect civil contempt and remand for the trial court to consider Appellant's present ability to pay and willfulness in compliance with the procedure set forth in rule 12.615(c)(2)(B).

REVERSED and REMANDED.

COHEN, EISNAUGLE and SASSO, JJ., concur.


author: LAMBERT, J.

text:
    Jomar Morales NEGRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1401
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Jomar Morales Negron appeals an order awarding $1044.48 in investigative costs to the Osceola County Sheriff's Office. Negron was adjudicated guilty and sentenced by the trial court pursuant to a plea agreement on three felonies. Consistent with this agreement, the court reserved jurisdiction to determine the investigative costs at an evidentiary hearing.

Section 938.27(1), Florida Statutes (2018), provides, in pertinent part, that in all criminal cases, convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies if requested by such agencies. Investigative costs include the actual expenses incurred in conducting the investigation and prosecution of the criminal case and may also include the salaries of permanent employees. § 938.27(7), Fla. Stat.

At the hearing held on investigative costs, the Osceola County Sheriff's Office submitted an affidavit to the court showing that one of its detectives had spent fifteen hours "dedicated to the investigation and preparation for trial" in this case and that two other deputies had each expended six hours, all at the rate of $38 per hour. All totaled, the Sheriff's Office was seeking $1026 in investigative costs for the "salaries" of these three employees, plus an additional $18.48 for actual expenses incurred. The only witness who testified at the hearing was the aforementioned detective. His testimony was that he was paid approximately $23 per hour by the Osceola County Sheriff's Office and that he had no knowledge as to what either of the two deputies were paid.

The trial court admitted the Sheriff's Office's affidavit into evidence over a timely hearsay objection and awarded the full amount of requested investigative costs. The court concluded that the $38 hourly rate stated in the affidavit "doesn't necessarily equate with the actual take home salary the person gets ... we all understand that benefits for employees are usually up to about 50 percent of the salary ... in the cost of the employee." On appeal, Negron asserts that this is error and asks that we strike the order and remand for a new hearing. We agree.

An award of investigative costs must be supported by competent substantial evidence. See Speed v. State , 262 So.3d 267, 268 (Fla. 5th DCA 2019). Here, the only competent, non-hearsay evidence presented at the hearing as to salaries was the detective's testimony that he was paid by the Osceola County Sheriff's Office at the rate of $23 per hour. While the trial court explained why it found that the salaries for the detective and the deputies should be assessed at the higher rate of $38 per hour, its reasoning was not based on any competent evidence presented.

Accordingly, we strike the order awarding investigative costs and remand with instructions to hold a new hearing. See Phillips v. State , 942 So.2d 1042, 1044 (Fla. 2d DCA 2006).

ORDER STRICKEN; REMANDED with instructions.

COHEN and EISNAUGLE, JJ., concur.

      Negron has not challenged the amount awarded for actual expenses.


author: HARRIS, J.

text:
    HHA BORROWER, LLC., Appellant, v. W.G. YATES & SONS CONSTRUCTION COMPANY, Appellee.
    Case Nos. 5D17-2783 5D18-1357
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Vincent F. Vaccarella and Craig R. Lewis, of Vincent F. Vaccarella, P.A., Ft. Lauderdale, for Appellant.
    Stanley LaRue Williams, and Drew C. Williams, of Kinsey, Vincent, Pyle, PL, Daytona Beach, for Appellee.
   HARRIS, J.

HHA Borrower, LLC ("HHA") appeals the trial court's order finding that W.G. Yates & Sons Construction Company ("Yates") was the prevailing party on the significant issues and thus entitled to an award of attorney's fees and costs. This complex case, a highly contested and protracted construction lien litigation, involved multiple significant issues and each party prevailed on different ones. Under the specific facts and history of this case, it would be inequitable to award attorney's fees to either party, because although both won on significant issues, they also both lost on significant issues. See Brevard Cty. Fair Ass'n, v. Cocoa Expo., 832 So.2d 147 (Fla. 5th DCA 2002). We find that the trial court abused its discretion in failing to find that HHA was also a prevailing party on significant issues in the case.

Therefore, we reverse the final order awarding attorney's fees and costs to Yates and remand to the trial court with instructions to enter an order determining that neither party was the prevailing party under section 713.29, Florida Statutes (2017), and to deny both requests for attorney's fees in this case. See Trytek v. Gale Indus., 3 So.3d 1194 (Fla. 2009) ; Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993) ; Moritz v. Hoyt Enters. Inc., 604 So.2d 807 (Fla. 1992) ; C.U. Assocs. v. R.B. Grove, Inc., 472 So.2d 1177 (Fla. 1985).

REVERSED and REMANDED.

GROSSHANS, J., and BLECHMAN, M., Associate Judge, concur.


text:
    Clint HORVATT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1912
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Clint Horvatt, Chipley, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Clint Horvatt appeals the denial of his motion for the return of property seized during his criminal prosecution. Horvatt contends that the trial court erred in finding that he untimely filed his motion. We affirm.

Section 705.105(1), Florida Statutes (2011), governs the disposition of unclaimed evidence or tangible personal property and provides:

Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.

(emphasis added). This Court defines the "conclusion of the proceeding" as when "the mandate issues from the appellate court on a direct appeal of a defendant's judgment and sentence." Davis v. State, 198 So.3d 1070, 1072 (Fla. 5th DCA 2016). Thus, a trial court may deny a motion for return of seized property as untimely pursuant to section 705.105(1) where the defendant failed to file the motion within sixty days of the entry of the defendant's judgment and sentence or the issuance of the mandate in the direct appeal. See § 705.105(1) ; Davis, 198 So.3d at 1072.

Here, Horvatt failed to file his motion within the time limitation of section 705.105(1). This Court affirmed Horvatt's judgment and sentence on August 9, 2011, and issued the mandate in his direct appeal on August 31, 2011. Horvatt v. State, 84 So.3d 331 (Fla. 5th DCA 2011). Horvatt filed his motion for return of seized property on February 23, 2018. Thus, we agree with the trial court that Horvatt's motion, filed almost seven years after this Court's mandate, was untimely.

AFFIRMED.

EVANDER, C.J., COHEN and EDWARDS, JJ., concur.


text:
    Kendra T. ELLIS, Appellant, v. Rasheed Karim ALLEN, Appellee.
    Case No. 5D18-1369
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Tarya A. Tribble, of Tribble Law Center, P.A., Riverview, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the judgment in its entirety. However, we remand with instructions to the trial court to allocate responsibility for the payment of the child's noncovered medical, dental, and prescription medication expenses as required by section 61.30(8), Florida Statutes (2015).

AFFIRMED; REMANDED with INSTRUCTIONS.

EVANDER, C.J., WALLIS and GROSSHANS, JJ., concur.


author: COHEN, J.

text:
    Kyle C. CARROLL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-98
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Sean M. Wagner, of Wagner & Wagner, P.A., Melbourne, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Kyle C. Carroll appeals the dismissal of his Florida Rule of Criminal Procedure 3.170(l ) motion to withdraw his violation of probation plea. The issue on appeal is whether following the entry of a final judgment and sentence, a pro se notice of appeal filed by a defendant represented by counsel divests the trial court of jurisdiction. We hold that it does.

Carroll was sentenced to prison followed by probation for the conviction of robbery with a weapon. While on probation and after completing the prison portion of his sentence, Carroll was again arrested for robbery with a weapon and related charges. Represented by counsel, Carroll pled guilty to violating his probation, and the trial court sentenced him to ten years in the Department of Corrections.

Shortly thereafter, and while still represented by counsel, Carroll filed a pro se notice of appeal. Subsequently, Carroll filed a pro se motion to withdraw his plea pursuant to Rule 3.170(l ). The trial court, relying on Cunningham v. State, 838 So.2d 1209, 1210 (Fla. 2d DCA 2003), dismissed Carroll's motion to withdraw his plea, ruling that the notice of appeal divested it of jurisdiction to hear the motion. This appeal followed.

We review the trial court's exercise of jurisdiction during the pendency of an appeal de novo. Terry v. State, 263 So.3d 799, 801-02, at *2 (Fla. 4th DCA 2019) (citing Rogers v. State, 33 So.3d 805, 806 (Fla. 1st DCA 2010) ). On appeal, Carroll argues that the trial court erred in dismissing his Rule 3.170(l ) motion to withdraw his plea because his pro se notice of appeal was a legal nullity, as he filed it while represented by counsel. The State argues that pursuant to Wilson v. State, 814 So.2d 1203 (Fla. 2d DCA 2002), a notice of appeal divests a trial court of jurisdiction to rule on a subsequently filed motion to withdraw plea, even if the notice of appeal was filed pro se by a represented defendant. Id. However, while the court in Wilson held that the trial court did not have jurisdiction over the defendant's pro se motion to withdraw his plea filed after he filed his pro se notice of appeal, the court did not specify whether counsel represented the defendant when he filed his pro se notice of appeal. Id. at 1204.

We find Sharp v. State, 884 So.2d 510, 511-12 (Fla. 2d DCA 2004), to be more instructive. Following a guilty plea and sentencing, Sharp filed a pro se motion to withdraw his plea pursuant to Rule 3.170(l ) while still represented by counsel. Id. at 511. Sharp then filed a notice of appeal before the trial court ruled on his motion, and subsequently filed a second pro se motion to withdraw his plea. Id."Again, Sharp did not seek the discharge of trial counsel." Id. The trial court dismissed the second motion for lack of jurisdiction due to the pending appeal. Id. The Second District agreed and noted that "[p]rocedurally, Sharp's second motion to withdraw plea differs from the first in that Sharp filed it after he filed a notice of appeal. Id. at 512. As a result, the trial court lacked jurisdiction to consider or rule on the motion." Id. (citations omitted). The court held that "[t]he filing of the notice of appeal 'divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on [the] subsequently filed motion to withdraw his plea.' " Id. (quoting Wilson, 814 So.2d at 1204 ).

Though the court only explicitly stated that counsel represented Sharp when he filed his first and second pro se motions to withdraw his plea, its notation that Sharp "still had counsel of record in the trial court when he filed the second motion" suggests that counsel represented Sharp throughout the proceeding, including when Sharp filed his notice of appeal. Id. Despite the fact that Sharp filed his notice of appeal while represented, the court held that the pending appeal divested the trial court of jurisdiction to rule on his subsequently filed pro se motion to withdraw his plea. Thus, it reversed the order of dismissal with instruction to strike the motion "[b]ecause the trial court did not have jurisdiction to consider the second motion during the pendency of the appeal." Id.

When a defendant files a notice of appeal following the entry of a final judgment and sentence, whether ultimately determined to be effectual or not, the trial court is divested of jurisdiction. See id. Unlike most pro se pleadings filed by represented defendants, which courts strike as nullities, the filing of a notice of appeal has jurisdictional consequences for both the trial and appellate court. Appellate courts are not in a position to know whether a notice of appeal received following the entry of a final judgment and sentence was appropriately filed by a pro se litigant and, as occurred in the instant case, accept such filings and open a new case. It should not be the responsibility of the clerk of the appellate court to determine the status of legal representation or validity of a notice of appeal. Likewise, it should not be the province of the trial court to rule upon an appellate court's jurisdiction.

We find that the trial court did not err in finding that the notice of appeal filed following the entry of Carroll's final judgment and sentence divested it of jurisdiction to consider his subsequent motion to withdraw his plea. However, because the court could not consider the motion at all, we reverse its dismissal and remand with instructions to strike the motion. See id. at 512. As the trial court's order noted, Carroll is not without a possible remedy-he may still file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

REVERSED and REMANDED with instructions.

BERGER and EDWARDS, JJ., concur.

      Following the imposition of the sentence, the State dropped the new substantive charges. Carroll takes the position, incorrectly, that as a result, there was no basis to find that he violated his probation.

      We too note that while Cunningham, 838 So.2d at 1209, also involved a motion to withdraw a plea filed after a notice of appeal, it did not address the jurisdictional effect of a pro se notice of appeal filed by a represented defendant following the entry of a judgment and sentence. Cunningham merely notes that counsel no longer represented Cunningham when he filed the pro se motion to withdraw his plea. Id. at 1210 n.1.

      See Cornelius v. State, 223 So.3d 398, 401 (Fla. 5th DCA 2017) ("Courts have adopted the general rule, with limited exceptions not applicable here, that a pro se pleading is a nullity and must be stricken if it is filed while the defendant is represented by counsel." (citations omitted) ).


author: EDWARDS, J.

text:
    Shawn J. JONES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3924
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Appellant, Shawn J. Jones, appeals the trial court's denial of his motion to dismiss a severed charge for possession of a firearm by a felon, arguing that collateral estoppel barred any further prosecution after he was previously tried by a jury and found not guilty of murder with a firearm. We disagree and affirm.

Appellant was indicted for murder with a firearm and possession of a firearm by a convicted felon. After successfully moving to sever the felon-in-possession charge for a separate trial, Appellant proceeded to jury trial on the murder with a firearm charge. The only percipient witness, Sims, testified that he saw Appellant outside holding a handgun and heard him say that he was going to rob and kill the next person he saw. Sims retreated to his home and four or five minutes later heard gunshots. The victim was shot and killed. No eyewitnesses to the shooting came forward. Nor was there any evidence to connect the handgun Sims saw Appellant holding to the shooting. The jury found Appellant not guilty of murder while discharging, possessing, or carrying a firearm.

Then, Appellant filed a motion to dismiss the remaining, previously severed, charge of possession of a firearm by a convicted felon on the ground that collateral estoppel barred further prosecution. In order for collateral estoppel to prevent further prosecution, the issue sought to be foreclosed "must necessarily have been determined in the defendant's favor" in the earlier trial. State v. Short , 513 So.2d 679, 681 (Fla. 2d DCA 1987). Collateral estoppel does not prevent future litigation "if the verdict [already rendered] could be grounded upon an issue other than that which the defendant seeks to foreclose from consideration." State v. Strong , 593 So.2d 1065, 1067 (Fla. 4th DCA 1992). The trial court denied Appellant's motion to dismiss, finding that the jury could have believed Sims' testimony that he saw Appellant in possession of a firearm five minutes before hearing gunshots, while it found that Appellant was not guilty of murder because of that five-minute gap in time and the lack of evidence proving beyond a reasonable doubt that Appellant shot the victim. We agree with the trial court and the State that whether Appellant was a convicted felon simply in possession of a firearm was not presented to the jury, was not necessarily the basis for the jury's verdict, and was not determined in Appellant's favor in the murder-with-firearm trial. Accordingly, we affirm the trial court's denial of Appellant's motion to dismiss because collateral estoppel did not bar prosecution on the felon-in-possession charge.

AFFIRMED.

ORFINGER and GROSSHANS, JJ., concur.


text:
    Wilma Jane CRAWFORD f/k/a Wilma E. Satterwhite, Cody Crawford and Brooke Crawford, Appellants/Cross-Appellees, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee/Cross-Appellant,
    Case No. 5D17-3027
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019
    Michael P. Nordman, of Taylor and Nordman, P.A., DeLand, for Appellants/Cross-Appellees.
    David Rosenberg, Cynthia L. Comras and Jarrett Cooper, of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellee/Cross-Appellant.
   PER CURIAM.

Wilma Jane Crawford ("Wilma"), Cody Crawford, and Brooke Crawford (collectively, the "Appellants") appeal the trial court's final judgment granting claims for mortgage foreclosure, equitable subrogation, and equitable lien, asserted by Federal National Mortgage Association ("Appellee"), and dismissing Appellants' counterclaims. We affirm in part, reverse in part, and remand for the entry of a corrected final judgment consistent with this opinion.

Joseph Crawford ("Joseph") obtained sole title to certain real property located in Flagler County. In 1999, Joseph, as "a single man," executed a mortgage on the subject real property in the amount of $ 80,000. He married Wilma in early 2000, and Wilma made the property her homestead. However, Joseph did not add Wilma to the deed for the property. In 2001, Joseph and Wilma, as husband and wife, executed a second mortgage on the property in favor of Bank of America, securing a home equity line of credit.

More than five years later, Joseph applied for another loan from Bank of America, indicating on the application that he was unmarried, despite being married to Wilma at the time. In October 2006, Bank of America loaned Joseph $ 97,850.00 consistent with his request. In return, Joseph executed a note and mortgage ("refinance mortgage"), again indicating that he was "a single man." Of the $ 97,850.00 in loan proceeds, separate payments of $ 6,533.52 and $ 10,595.74 were disbursed to Bank of America, satisfying the balance owed on the Bank of America home equity loan, and $ 33,006.32 was disbursed to the then-holder of the note secured by the original mortgage for the property, thereby satisfying the original mortgage in its entirety. Joseph also received a cash disbursement of $ 44,576.31.

Joseph died in January 2014, and the last payment on the loan was made in June 2014. After notifying the "Estate of Joseph Crawford" that the refinance mortgage loan was in default due to the lack of payments, Bank of America assigned the refinance mortgage to Appellee who filed a foreclosure action and notice of lis pendens. Subsequently, Appellee filed a Third Amended Complaint for mortgage foreclosure, equitable subrogation, imposition of and foreclosure upon an equitable lien, and mortgage reformation.

The case proceeded to a bench trial. Appellee moved the refinance mortgage loan payment history into evidence which demonstrated that the last payment was made in June 2014, the total unpaid principal amount at the time of trial was $ 87,678.95, the unpaid interest was $ 18,403.56, and the total amount of escrow advances was $ 6,990.01.

Following trial, the court entered a final judgment in favor of Appellee, finding it had proven the requisite elements of a foreclosure action and was entitled to foreclose on the refinance mortgage. The trial court also concluded that Appellee was entitled to relief via equitable subrogation, and to thereby "stand in the shoes" of the prior mortgagees due to the refinance mortgage loan proceeds being used to satisfy the prior loans. Additionally, the trial court ruled that Appellee was entitled to the imposition of an equitable lien upon the property to prevent Appellants from being unjustly enriched by the satisfaction of the prior loans and by Appellee's continuing payment of taxes and hazard insurance for the property after the default on the refinance loan.

The trial court also reasoned that Wilma received both direct and indirect benefits from the cash disbursement and therefore found Appellee entitled to the full amount of the refinance mortgage as part of the equitable lien. Additionally, the trial court dismissed Appellants' counterclaims, ruling that each failed to state a cause of action.

Finally, the trial court awarded the Appellee $ 117,648.32 in damages, which included prejudgment interest. This appeal follows.

The parties raise numerous issues on appeal and cross-appeal. We affirm in all respects except for two issues raised by Appellants. We agree with Appellants that the final judgment incorrectly awards Appellee a mortgage foreclosure and incorrectly applies funds to the equitable lien that did not benefit the homestead. We write to address these issues.

I. The trial court erred by entering a judgment for mortgage foreclosure against Wilma's homestead but did not err in imposing an equitable lien on the property.

This issue presents a question of law that is to be reviewed de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla. 2010). Appellants argue that the trial court erred by entering a final judgment of mortgage foreclosure, noting that Wilma never executed the refinance mortgage. We agree.

The Florida Constitution provides that "[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift." Art. X, § 4(c), Fla. Const. Florida courts have consistently interpreted this constitutional provision as requiring spousal joinder in the execution of a mortgage on homestead property in order for the mortgage to encumber the property and be enforceable in foreclosure, even where only the signatory spouse is an owner of record on the property's deed. See Vera v. Wells Fargo Bank, N.A., 178 So.3d 517 (Fla. 4th DCA 2015).

Wilma did not sign the refinance mortgage, and the subject property was Wilma's homestead. Thus, the trial court erred in finding that Appellee was entitled to foreclose on the refinance mortgage.

However, a trial court is authorized to impose an equitable lien on a homestead if necessary to prevent unjust enrichment. See Palm Beach Sav. & Loan Ass'n v. Fishbein, 619 So.2d 267 (Fla. 1993). The evidence at trial fully supports the court's determination that some of the loaned funds associated with the refinance mortgage benefited the homestead and that imposition of an equitable lien was necessary to prevent unjust enrichment. Thus, the trial court did not err in imposing an equitable lien on the homestead.

II. The trial court erred in finding the full amount of the refinance mortgage loan to be subject to the equitable lien.

This issue involves questions of both fact and law. We review the trial court's findings of fact to determine whether they are supported by competent substantial evidence, but we review questions of law de novo. See St. Vincent's Med. Ctr. v. Mem'l Healthcare Grp., Inc., 967 So.2d 794, 799 (Fla. 2007).

Appellants argue that the trial court miscalculated the amount secured by the equitable lien because it included the $ 44,576.31 disbursed directly to Joseph that did not benefit the homestead. The Appellee counters by claiming that the trial court properly found that Wilma would be "unjustly enriched" since she had limited access to a portion of the funds and the homestead indirectly benefited from the disbursement. We agree with Appellants.

A trial court may impose an equitable lien to prevent unjust enrichment, but only for funds used to benefit the homestead. See Fishbein, 619 So.2d at 270-71. Thus, it is not appropriate to include in an equitable lien funds disbursed to the signatory spouse that were "not used to benefit the homestead" but, instead were used by the signatory spouse "for other purposes." Id. at 271.

At trial, Appellee produced no evidence demonstrating that the $ 44,576.31 disbursed to Joseph either directly or indirectly benefited the homestead. The Appellee's speculation that the funds may have been used to make payments on the loan or provide upkeep to the property does not justify the inclusion of the cash disbursement in the equitable lien. Therefore, it was error for the trial court to include the funds disbursed directly to Joseph in the amount of the equitable lien.

Next, we address whether the equitable lien amount should be reduced based upon Joseph's monthly payments. Appellants argue that payments made by Joseph from the inception of the loan to the date of default exceeded the $ 50,135.58 disbursed to satisfy the prior loans, and should therefore extinguish the equitable lien. We reject this argument as it would undermine the principles of equity which support imposition of the equitable lien. Instead, the payments made by Joseph from 2006 to 2014 should be applied proportionally, reflecting the percentage of the refinance loan which was used to satisfy the prior loans. Since 51 percent of the loan was used to benefit the homestead, 51 percent of each payment made by Joseph may be applied toward the equitable lien.

Based upon the foregoing, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. Upon remand, the trial court shall enter a final judgment of foreclosure on the equitable lien consistent with this opinion. The corrected judgment shall include damages in the amount of the refinance mortgage loan disbursed to satisfy the prior loans less any applied payments, all escrow advances, and any prejudgment interest.

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

GROSSHANS, SASSO, JJ., and WILSON, T., Associate Judge, concur.

      Although evidence at trial may support a finding that Wilma had limited access to a portion of the cash disbursement, there was no evidence that these funds benefited the homestead.

      We derived this percentage by applying the following formula: ($ 50,135.58 [amount disbursed to satisfy prior loans] ÷ $ 97,850.00 [refinance mortgage loan amount] ) × 100% = 51%, rounded to the nearest units of %.

      In calculating prejudgment interest, the trial court shall compute the interest that accrued by applying payments when they were actually made rather than applying all the payments as a lump sum on the date of trial.

      Judge Sasso did not participate in oral argument but reviewed the case in its entirety.


text:
    Patricia Jean ANTON and Stanley Joseph Anton, Appellants, v. Herburt Kyle FLETCHER, Appellee.
    Case Nos. 5D18-2112 5D18-2968 5D18-2969 5D18-2970
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 26, 2019
    Patricia Jean Anton and Stanley Joseph Anton, Kissimmee, pro se.
    H. Kyle Fletcher, Jr., of the Fletcher Law Firm, P.A., Oviedo, pro se.
   PER CURIAM.

AFFIRMED. See In re Guardianship of Beck, 204 So.3d 143, 152 (Fla. 2d DCA 2016).

ORFINGER, LAMBERT and SASSO, JJ., concur.


text:
    Tammy SENTZ f/k/a Tammy Williams and GEICO General Insurance Company, Appellants, v. Richard TRACY, Appellee.
    Case No. 5D18-964
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2019
    Sharon C. Degnan, of Kubicki Draper, Orlando, for Appellants.
    Robert Gregory King, of King Law Firm, Ocala, for Appellee.
   PER CURIAM.

Appellants, Tammy Sentz f/k/a Tammy Williams and Geico General Insurance Company, appeal a final judgment awarding Appellee, Richard Tracy, attorney's fees pursuant to Florida Rule of Civil Procedure 1.380(c) in this motor vehicle accident case. Appellants argue that the trial court erred in awarding fees for denying Appellee's requests for admission because the requests went to issues for which there was a bona fide dispute. We agree and reverse.

At trial, the parties offered directly conflicting testimony concerning who was at fault for the accident that occurred after dark. Essentially, Sentz testified that she rear-ended Appellee's boat trailer because he was traveling under the speed limit and his brake lights were not operational, whereas Appellee testified that he was traveling the speed limit and his brake lights were working.

Leading up to trial, Appellee sent Sentz several requests for admission that asked her to broadly concede negligence, causation, and damages. Specifically, the requests asked Sentz to admit, inter alia , that she "did so negligently and carelessly maintain, operate and control the motor vehicle so that it collided with the vehicle operated by [Appellee]." Not surprisingly given the position Sentz would later take at trial, she denied the requests.

Florida Rule of Civil Procedure 1.380(c) authorizes the trial court to award expenses, including attorney's fees, against a party that fails to admit the truth of a request for admission made pursuant to Florida Rule of Civil Procedure 1.370. "The purpose of requests for admissions is to define and limit the issues in controversy between the parties, thus reducing the expense and delay that might otherwise be unnecessarily involved in the trial, and thereby facilitating proof at trial." Winn Dixie Stores, Inc. v. Gerringer , 563 So.2d 814, 816 (Fla. 3d DCA 1990) (footnote omitted). "This is accomplished by compelling admissions to those matters over which there is no good faith controversy." Id. Notably, there is "an important distinction between requests for admission that would resolve the ultimate issues in the case if admitted, and requests for admission that simply go to establishing a relevant fact in the case." Haas Automation, Inc. v. Fox , 243 So.3d 1017, 1028 (Fla. 3d DCA 2018) (citation omitted).

In this case, Appellee's requests for admission went to the ultimate issues in the case rather than relevant facts. Moreover, the issues were hotly contested at trial as evidenced by the contradictory testimony of Sentz and Appellee. In our view, awarding attorney's fees under these circumstances would render rule 1.380(c) a prevailing party fee provision rather than an exception to the rule that the individual parties bear their own fees. See Arena Parking, Inc. v. Lon Worth Crow Ins. Agency , 768 So.2d 1107, 1113 (Fla. 3d DCA 2000) ; see also R.J. Reynolds Tobacco Co. v. Ward , 238 So.3d 408, 410 (Fla. 1st DCA 2018) ("[R]ule 1.380(c) serves as a vehicle to impose sanctions for unjustified denials, not as a substantive fee-shifting provision.").

REVERSED and REMANDED.

COHEN, EISNAUGLE and SASSO, JJ., concur.


text:
    A.P., Father of B.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3986
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 28, 2019
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee, Department of Children and Families.
    Thomasina F. Moore and Sara Elizabeth Goldfarb, of Florida Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem Program.
   PER CURIAM.

AFFIRMED. See T.D. v. Dep't of Child. and Fams., 187 So.3d 365 (Fla. 5th DCA 2016).

EVANDER, C.J., BERGER and EISNAUGLE, JJ., concur.


author: Per Curiam.

text:
    Kenneth Ray SENN, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5107
    District Court of Appeal of Florida, First District.
    March 29, 2019
    Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Wolf, Bilbrey, and Winsor, JJ., concur.


text:
    ERNIE MORRIS ENTERPRISES, INC., Petitioner, v. CONTRAX FURNISHINGS, LLC, Meteor Education, LLC, and Greg S. Cave, Respondents.
    No. 1D19-0001
    District Court of Appeal of Florida, First District.
    March 29, 2019
    J. Robert McCormack and Lara J. Peppard of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa, for Petitioner.
    Seldon J. Childers and James W. Kirkconnell of Childers Law, LLC, Gainesville, for Respondents.
   Per Curiam.

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

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    David L. DICE Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1979
    District Court of Appeal of Florida, First District.
    April 3, 2019
    David L. Dice Jr, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Appellant is warned that any future filings that this court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2018) (providing that a prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

Rowe, Bilbrey, and Kelsey, JJ., concur.


author: Bilbrey, J.

text:
    Glenn Charles DORSEY, II, Former Husband, Appellant/Cross-Appellee, v. Paula Rae DORSEY, Former Wife, Appellee/Cross-Appellant.
    No. 1D17-5375
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee.
    Ross A. Keene, Pensacola, for Appellee/Cross-Appellant.
   Bilbrey, J.

Former Husband appeals the final judgment of dissolution of marriage and Former Wife cross-appeals. Both parties challenge various aspects of the equitable distribution, alimony, child support, and attorneys' fees ordered by the trial court. Upon review of the judgment as a whole to determine whether the trial court abused its discretion, as required by Hamlet v. Hamlet , 583 So.2d 654 (Fla. 1991), and Canakaris v. Canakaris , 382 So.2d 1197 (Fla. 1980), and given the partial concessions of error by each party, the final judgment is affirmed in part and reversed in part as set forth below.

Background. During their long-term marriage of 23 years, the parties had two children. They acquired substantial assets which, at the time of the final hearing, included seven residential properties, several vehicles, three businesses (one of which owned an airplane), and numerous cash accounts. The children attended private school, and Former Wife worked only sporadically and temporarily during the marriage, expending most of her efforts on unpaid work such as child-rearing and household management. Former Wife's most recent employment consisted of part-time clerical and administrative work for one of the marital businesses managed by Former Husband.

After the two-day final hearing and two post-hearing conferences to discuss the court's anticipated rulings, the court issued the final judgment now on appeal. The court distributed to Former Husband the three businesses and associated debt, three of the residential properties, six vehicles, and a trailer. The distribution to Former Wife included two residences, the proceeds from the sale of two other properties, a vehicle, her jewelry, and several cash accounts. The court also ordered an equalization payment from Former Husband to Former Wife which is not challenged on appeal.

In addition to distributing the parties' assets and liabilities, the trial court awarded $ 2,000.00 per month permanent periodic alimony to Former Wife and child support based on a child support guidelines worksheet attached as an exhibit to the final judgment. The court directed Former Husband to continue to pay for the older child's private school unless the parties agreed to discontinue such attendance. The court left the decision on schooling for the younger child to the parents, acknowledging Former Husband's concerns about his ongoing financial abilities. Finally, the court directed Former Husband to pay half of Former Wife's requested attorney's fees and costs, reserving jurisdiction on the method of payment.

Both parties filed a motion for rehearing which was denied by the trial court. The issues addressed below are therefore preserved for our review. See Owens v. Owens , 973 So.2d 1169 (Fla. 1st DCA 2007).

Equitable Distribution . The equality of the overall equitable distribution scheme was not challenged on appeal or cross-appeal. See § 61.075(1), Fla. Stat. (2017) ("court must begin with premise that distribution should be equal"). Instead, each party challenges certain individual distributions of assets and debts within the whole.

Former Husband argues that the trial court abused its discretion by finding one of the residential properties, a condominium, to be a marital asset. Former Husband also argues that even if the condominium was marital property the trial court reversibly erred in its valuation. Former Husband also challenges the court's allocation of debts to two of the businesses distributed to him. Former Wife cross-appeals the equal distribution of the parties' income tax liabilities up to 2015 and division of the proceeds from the sale of the business airplane.

Without asserting that these challenged aspects of the equitable distribution scheme make the overall apportionment unequal, both parties invite piecemeal review of the trial court's distribution scheme. This court is prohibited from engaging in a piecemeal approach and may reverse only upon a showing that "the judgment entered by the trial court, when taken as a whole, constituted an abuse of the trial court's discretion." Hamlet , 583 So.2d at 657. The trial court's application of the various remedies to "do equity between the parties" must be "reviewed by appellate courts as a whole, rather than independently." Canakaris , 382 So.2d at 1202. Using this standard, no error has been shown in the trial court's overall equitable distribution scheme.

Even if we were to consider the parties' piecemeal complaints, they do not have merit. Former Husband admitted at trial that he purchased the subject condominium five days before Former Wife filed her petition for dissolution. Section 61.075(7), Florida Statutes (2017), sets the filing date as a valid cut-off date for determining an asset's marital character. The trial court's valuation of the condo as of this cut-off date was within the court's discretion. Id. As for the trial court's allocation of the $ 92,708 debt "associated with the condo" to one of the businesses distributed to Former Husband, Glenn Dorsey, Inc. (GDI), rather than reducing the value of the condo by that amount, the court explained in the final judgment that the debt was incurred by Former Husband through "cross collateralization with the business accounts" which the court considered "with the value of the business."

Similarly, former Husband failed to establish an abuse of the trial court's discretion in the distribution of $ 87,500 as business debt "associated with" the second business distributed to Former Husband, Collins Mill Creek, LLC. Even if this distribution of debt rendered the equitable distribution scheme unequal - which Former Husband did not assert, and we do not find apparent from this record - such unequal distribution is authorized by section 61.075(1)(g), Florida Statutes. Where one spouse incurred a business debt, and the other spouse was not actively involved in the business, distribution of that debt to the managing spouse is within the trial court's discretion. See Cardella-Navarro v. Navarro , 992 So.2d 856 (Fla. 3d DCA 2008).

Former Wife's cross-appeal of two parts of the equitable distribution scheme also lacks merit. The trial court's equal distribution of the parties' income tax liabilities through the year 2015 comports with the presumption of equal distribution of liabilities as provided in section 61.075(1). While the trial court could have unequally distributed this liability if it found any of the factors that justify such unequal distribution under the statute, Former Wife fails to establish any unreasonableness in the court's equal distribution. Likewise, Former Wife fails to establish that the trial court abused its discretion by directing the equal division of the proceeds from the sale of the business airplane - after subtraction of the hangar fees paid by Former Husband as a cost of the sale. Former Wife's disagreement with the court's subtraction of the costs of sale from the proceeds of the sale, which results in reimbursement to Former Husband for an expense he paid, does not render the court's direction unreasonable.

Alimony . Both parties appeal the trial court's alimony award in the final judgment, but we find no error. Former Husband argues that the trial court abused its discretion by imputing only minimum wage income of $ 1,395 per month to Former Wife. He bases his position on Former Wife's income of $ 2,334 per month when she worked for him at GDI at some point during the marriage. Considering that this business was distributed to Former Husband in the final judgment and considering the uncontroverted evidence at trial that Former Wife's employment in this family business was temporary and sporadic, no abuse of the trial court's discretion by imputing only minimum-wage income is established. See § 61.08(2)(e), Fla. Stat. (2017) (providing that relevant factors to consider in setting alimony include "earning capacities, education levels, vocational skills, and employability of the parties").

Former Wife challenges the trial court's award of $ 2,000.00 per month in permanent periodic alimony as inadequate to meet her needs as established during the marriage and far below Former Husband's ability to pay. She argues that this award "shortchanges" her, such that the court abused its discretion. See Marcoux v. Marcoux , 464 So.2d 542, 544 (Fla. 1985) (claim that former spouse "shortchanged" in dissolution action is "another way of saying that a trial court has acted unreasonably and thereby abused its discretion"). However, Former Wife's general assertion that the alimony award is inadequate fails to establish unreasonableness amounting to an abuse of discretion in the overall financial settlement of the marital assets, alimony, and child support. Cf. Juchnowicz v. Juchnowicz , 157 So.3d 497 (Fla. 2d DCA 2015) (reversing where alimony award resulted in nearly $ 17,000 disparity between parties' monthly incomes); Sussman v. Sussman , 915 So.2d 281 (Fla. 4th DCA 2005) (reversing $ 1,000 per month alimony award after 47-year marriage where former husband's income was four times former wife's income); Crowley v. Crowley , 672 So.2d 597 (Fla. 1st DCA 1996) (reversing alimony award as insufficient to maintain marital standard of living where award would require former wife to sell marital home).

Child Support . The parties agree on appeal that the gross income figures used by the trial court on the child support guidelines worksheet, attached as an exhibit to the final judgment, were incorrect. The parties also agree that equal allocation of the children's medical and dental expenses not covered by insurance violated section 61.30(8), Florida Statutes (2017). See Demmi v. Demmi , 186 So.3d 1144, 1144 (Fla. 1st DCA 2016) (holding that generally children's medical expenses not covered by insurance should be allocated "in the same percentage as the child support allocation") (citation omitted). Upon the parties' concessions of error, the portion of the final judgment using the incorrect figures in the worksheet to determine child support obligations and the percentage of each party's responsibility for uncovered medical and dental expenses must be corrected on remand.

The portion of final judgment addressing private school as an aspect of child support is challenged by both parties. Former Husband asserts that the trial court abused its discretion by requiring him to continue to pay for private school for the older child and by failing to make a finding for the tuition rate on the worksheet. Former Wife argues that based on Former Husband's ability to pay and the living standard of the family during the marriage, the trial court abused its discretion by allowing Former Husband to discontinue paying private school tuition for the younger child and by giving Former Husband the option to discontinue the older child's tuition "[i]f the parties determine that it is not financially feasible or desirable to have either child in private school."

Under the parenting plan adopted in the final judgment, the parties enjoy shared parental responsibility for the minor children, including mutual decision-making authority on education matters. While Former Husband appeals the directive that the older child remain in private school, paragraph 9 of the final judgment reiterates the decision-making power of the parents by providing for agreement of the parties to send the younger child to private school or to determine that it is not financially feasible to "have either child in private school." No abuse of discretion is shown in these directives. Because the child support figures must be remanded for recalculation based on an accurate child support guidelines worksheet, any error in reporting tuition payments made or agreed to by either party as a factor of child support may also be corrected.

Temporary Support. Prior to the final judgment, the trial court awarded undifferentiated temporary support. In the final hearing the trial court refused the Former Husband's request to differentiate the support and retroactively reduce the support.

As to Former Husband's appeal of the trial court's denial of his request to "delineate for tax purposes a portion of the undifferentiated support as alimony and a portion as child support," Former Wife concedes error. Pursuant to Nilsen v. Nilsen , 63 So.3d 850 (Fla. 1st DCA 2011), the trial court's denial of such delineation of the $ 5,300 per month undifferentiated support must be reversed and remanded for such delineation to ensure that the child support award comports with the child support guidelines in effect at the time of the temporary order. However, the trial court's refusal to retroactively reduce the support was within the trial court's discretion and is affirmed.

Life Insurance to Secure Support . Former Husband's appeal of the trial court's requirement that he maintain life insurance to guarantee the support awards is well-taken. The trial court ordered Former Husband to maintain a policy with a $ 750,000.00 benefit for as long as he was obligated to pay "any of the three recipients." Former Husband correctly points out that the life insurance requirement in the final judgment lacks any findings as to availability, cost, Former Husband's ability to pay, and any special circumstances warranting the security. Accordingly, this part of the final judgment must be reversed and remanded for further proceedings. See Therriault v. Therriault , 102 So.3d 711 (Fla. 1st DCA 2012) ; Kotlarz v. Kotlarz , 21 So.3d 892 (Fla. 1st DCA 2009).

Attorneys' Fees. Both parties appeal the portion of the final judgment finding that Former Wife had incurred $ 30,500 in attorneys' fees and costs and directing Former Husband to pay half this amount. Former Husband challenges the lack of factual findings on the reasonable number of attorney hours expended, a reasonable hourly rate, and the propriety of the costs incurred. Former Husband also challenges the lack of a determination of any financial disparity between the parties after consideration of the equitable distribution scheme and support awards. Former Wife counters that the financial affidavits of the parties demonstrate a vast financial disparity between the parties, as contemplated under section 61.16, Florida Statutes (2017). She argues that the trial court abused its discretion by not ordering Former Husband to pay all of her attorneys' fees and costs.

We reverse the award of attorneys' fees and cost for reconsideration of both parties' arguments. The final judgment does not indicate any basis for the trial court's directive requiring Former Husband to pay $ 15,250, amounting to half of Former Wife's unpaid attorneys' fees and costs. An award of fees and costs under section 61.16 must include specific findings of fact to support and explain the ruling. See Glasgow v. Wolfe , 873 So.2d 483 (Fla. 1st DCA 2004) ; see also Street v. Street , 198 So.3d 1160 (Fla. 1st DCA 2017). The absence of any such findings requires reversal of this part of the final judgment and a remand for specific findings of fact to support any directive for contribution. See Brady v. Brady , 229 So.3d 892 (Fla. 5th DCA 2017).

Conclusion. In light of the foregoing, we reverse the provisions in the final judgment that: 1) award child support based on the erroneous gross incomes reflected on the guidelines worksheet; 2) equally divide the uncovered medical and dental expenses of the children, rather than divide them in the same percentages as the correct child support obligations; 3) deny retroactive delineation between alimony and child support of the $ 5,300 per month in undifferentiated support ordered in the temporary order for support; 4) require Former Husband to maintain life insurance to secure his support obligations absent the required findings of fact; and 5) require Former Husband to pay (or to only pay) one-half of Former Wife's unpaid attorneys' fees and costs absent any finding of fact to support the award. In all other respects, the final judgment is affirmed. This cause is remanded for further proceedings and entry of corrections to the final judgment consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

Rowe and Kelsey, JJ., concur.

      In his challenge to the child support calculations, Former Husband alludes to the trial court's imputing minimum-wage income to Former Wife in considering alimony. The imputation of income to Former Wife is addressed and affirmed above as it pertains to the alimony award. Given that a separate statute governs imputation of income for child support, we also affirm the trial court's imputation of income to the Former Wife in calculating child support. See § 61.30(2)(b), Fla. Stat. (2017).


text:
    Steven BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1953
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Steven Burns, pro se, Appellant.
    Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Steven Burns was sentenced in 1999 to eight concurrent sentences of thirty-five years' imprisonment for the offenses of second-degree murder, robbery with a firearm, and two counts of armed burglary, among others. He was fourteen when he committed the crimes. He now appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He asserts that his sentence is illegal under Kelsey v. State , 206 So.3d 5 (Fla. 2016). We disagree and affirm.

Burns' thirty-five year sentences do not violate Kelsey . Id. He was not sentenced to a life, mandatory life, or a de facto life sentence. See Davis v. State , 214 So.3d 799 (Fla. 1st DCA 2017). Furthermore, as Burns was not sentenced to life with possibility of parole after twenty-five years, the decision of State v. Michel , 257 So.3d 3 (Fla. 2018), is inapplicable.

AFFIRMED .

Lewis, Makar, and M.K. Thomas, JJ., concur.


text:
    Larry C. COBB, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4478
    District Court of Appeal of Florida, First District.
    April 3, 2019
    Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Ashley B. Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits. See § 948.06(1)(f), Fla. Stat. (2014) ; Blackshear v. State , 838 So.2d 1228, 1230 (Fla. 1st DCA 2003) (failing drug test constitutes a violation of law); Alston v. State , 646 So.2d 184, 185 (Fla. 1994) (same).

Roberts, Ray, and Kelsey, JJ., concur.


text:
    Ramone ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-0658
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Robert Wesley, Public Defender and Sarah Moore, Assistant Public Defender, Orlando, for Petitioner
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 25, 2019 order regarding Petitioner's motion for postconviction relief, filed in Case No. 2013-CF-9835, Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, BERGER and LAMBERT, JJ., concur.


text:
    BARBEQUE INTEGRATED, INC., Appellant, v. WIN-DEVELOPMENT, LLC, Appellee.
    Case No. 5D18-3202
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Monica M. McNulty, Carrie Ann Wozniak, and David S. Wood, of Akerman, LLP, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The appellant, Barbeque Integrated, Inc. ("BBI"), appeals the trial court's order denying its motion for attorney's fees filed under section 768.79, Florida Statutes (2017). BBI had previously obtained a final summary judgment in its favor against the appellee, Win-Development, LLC, and thereafter sought an award of attorney's fees under its earlier offer of judgment served pursuant to this statute. The trial court denied the motion, relying on the Third District Court of Appeal's holding in Wheaton v. Wheaton , 217 So.3d 125 (Fla. 3d DCA 2017), that the failure to comply with the email service provisions of Florida Rule of Judicial Administration 2.516 rendered an offer of judgment served under section 768.79 and proposal for settlement served under Florida Rule of Civil Procedure 1.442 unenforceable.

Subsequent to the trial court entering the order under review, the Florida Supreme Court quashed the Third District Court's decision in Wheaton , holding that the plain language of section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 does not require service by email and thus the email service provisions of Florida Rule of Judicial Administration 2.516 do not apply. Wheaton v. Wheaton , 261 So.3d 1236, 1244 (Fla. 2019). Accordingly, we reverse the order denying BBI's motion for attorney's fees and remand for further proceedings.

REVERSED and REMANDED.

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

      The trial court also based its denial order on this court's opinion in Goersch v. City of Satellite Beach , 252 So.3d 309 (Fla. 5th DCA 2018). In Goersch , we addressed whether a motion for sanctions brought pursuant to section 57.105(4), Florida Statutes (2015), must be served in strict conformity with Florida Rule of Judicial Administration 2.516. Id. at 309. We held that it did and, in doing so, we specifically aligned ourself with the now-quashed decision of the Third District Court in Wheaton . Id. at 312. However, Goersch is not directly applicable here as it did not involve the offer of judgment statute, and we therefore decline to address its continuing viability subsequent to the Supreme Court's opinion in Wheaton . Furthermore, a request for the Florida Supreme Court to exercise discretionary jurisdiction to review Goersch is currently pending in Case Number SC18-1429.


text:
    William Houston KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2905
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    William Houston King, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Following a jury trial, William Houston King was adjudicated guilty of violating the Florida Racketeer Influenced and Corrupt Organization ("RICO") Act, conspiracy to violate the Florida RICO Act, and organized fraud in Marion County Circuit Court Case Number 2009-CF-002251. King was sentenced to twelve years and six months' imprisonment, followed by fifteen years of probation. King appealed his judgment and sentence, and this Court per curiam affirmed. King v. State, 177 So.3d 624 (Fla. 5th DCA 2015).

King subsequently filed eight separate appeals attacking the denials of his Florida Rule of Criminal Procedure 3.850 motions for postconviction relief. King voluntarily dismissed two of his postconviction appeals, and this Court per curiam affirmed the remaining appeals. See King v. State, 177 So.3d 624 (Fla. 5th DCA 2015) ; King v. State, 222 So.3d 1230 (Fla. 5th DCA 2017) ; King v. State, 229 So.3d 1248 (Fla. 5th DCA 2017) ; King v. State, 233 So.3d 1142 (Fla. 5th DCA 2017) ; King v. State, 252 So.3d 1273 (Fla. 5th DCA 2018) ; King v. State, No. 5D18-2905, 2019 WL 993355 (Fla. 5th DCA Feb. 26, 2019).

Due to King's apparent abuse of the legal process by his repeated frivolous filings attacking his judgment and sentence rendered in the above referenced case, this Court issued an order directing King to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Having carefully considered King's response and finding that it fails to show cause as to why sanctions should not be imposed, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources, King is prohibited from filing with this Court any further pro se filings concerning the above referenced case. The Clerk of this Court is directed not to accept any further pro se filings concerning the referenced case. Any future filings regarding the referenced case will be summarily rejected by the Clerk, unless filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary proceedings. See § 944.279(1), Fla. Stat. (2018) ; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

Future pro se filings PROHIBITED.

COHEN, BERGER and HARRIS, JJ., concur.


text:
    Lisa BATTAGLIA, Appellant, v. Bruce BATTAGLIA, Appellee.
    Case No. 5D18-1036
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 9, 2019
    John Nicholas Klein IV, of The Klein Practice PLLC, Altamonte Springs, for Appellant.
    Michelle P. Smith, of Law Office of Michelle P. Smith, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Macar v. Macar, 803 So.2d 707 (Fla. 2001).

ORFINGER, COHEN and WALLIS, JJ., concur.


text:
    Andre L. PHILLIPS, Appellant, v. U.S. BANK NATIONAL ASSOCIATION and Grand Island Oaks Homeowners' Association, Inc., Appellees.
    Case No. 5D17-7
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Latasha Scott, of Lord Scott, PLLC, Tampa, for Appellant.
    Shannon T. Sinai, of Albertelli Law, Tampa, for Appellee, U.S. Bank National Association.
    No Appearance for Other Appellee.
   PER CURIAM.

Andre Phillips appeals the final judgment of foreclosure entered by the trial court in favor of U.S. Bank National Association. We affirm the final judgment in all respects except for the award of attorney's fees which was not supported by competent, substantial evidence. See Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1203 (Fla. 4th DCA 2015) ; Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So.3d 958, 961 (Fla. 4th DCA 2014). Accordingly, we reverse the award of attorney's fees without remand. See Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 984 (Fla. 2d DCA 2016).

AFFIRMED in part and REVERSED in part.

BERGER, GROSSHANS, and SASSO, JJ., concur.


author: Forst, J.

text:
    OFFICE OF the ATTORNEY GENERAL, State of Florida, Department of Legal Affairs, Appellant, v. Joseph James BILOTTI, Jr., Laura Lynn Hess, Ralph Joseph Consiglio, Gary Robillard Rahim Jamal West, Timothy John Healy, Stay Home, Inc., William Berger & Assoc.'s, P.A., Home Defense Law Firm, P.A., Home Defense Team, P.A., Nationwide Foreclosure Defense, P.A.Southeast Billing, Inc., d/b/a Home Defense Team, Zohar Billings, Inc, Tax Rescue Firm, Inc., Appellees.
    No. 4D18-1645
    District Court of Appeal of Florida, Fourth District.
    [February 20, 2019]
    Ashley B. Moody, Attorney General, Amit Agarwal, Solicitor General, and Jordan Pratt, Deputy Solicitor General, Tallahassee, and Sarah Shullman, Chief Assistant Attorney General, and Howard Dargan, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Robyn L. Sztyndor of RLS Law, P.A., and Crane A. Johnstone of Johnstone Law PA, Fort Lauderdale, for appellees.
   Forst, J.

The Office of the Attorney General, Department of Legal Affairs (AG), appeals the trial court's nonfinal order granting appellees', Joseph James Bilotti, et al., motion to dissolve a temporary injunction. We reverse and remand to reinstate the temporary injunction and asset freeze and clarify that Outreach Housing, LLC v. Office of the Attorney General, Department of Legal Affairs , 221 So.3d 691 (Fla. 4th DCA 2017), does not require the AG to plead "actual damages" to get injunctive relief under section 501.207(1)(b), Florida Statutes (2018).

Background

The AG filed a complaint against appellees pursuant to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), section 501.207(1)(b), Florida Statutes, seeking injunctive relief, restitution, civil penalties, and other equitable relief. The AG alleged fraudulent and deceptive acts by appellees in collecting millions of dollars in up-front legal fees from delinquent home-loan borrowers for loan modifications and foreclosure rescue services. This was allegedly accomplished through appellees teaming up with disbarred lawyers to form a fake law firm and deceiving customers into paying legal fees for services performed by non-lawyers. This entity allegedly failed to accomplish the results promised to consumers and instead dug them into even deeper financial holes.

The AG moved for temporary injunctive relief and an order freezing assets pursuant to FDUTPA, which the trial court granted. The trial court found that the affidavits and accompanying exhibits submitted in support of the AG's motion established that the AG "has a substantial likelihood of success on the merits of its allegations that the acts and practices [of appellees] were likely to deceive a consumer acting reasonably, and did in fact deceive consumers acting reasonably, in direct violation of FDUTPA."

Appellees filed a motion to dissolve the temporary injunction, arguing that the AG

was required, but failed, to plead "actual damages." The trial court granted the motion and dissolved the temporary injunction, stating that the AG could not bring an action solely for an injunction under section 501.207(1)(b) without pleading "actual damages." The trial court relied solely on the statement, made by this Court in Outreach Housing, LLC , 221 So.3d at 697, that "[a]ctual damages are an essential element of a FDUTPA claim."

Analysis

"A trial court's ruling on a motion for temporary injunction is presumed correct and will be reversed only upon a showing of a clear abuse of discretion or clearly improper ruling." E-Racer Tech, LLC v. Office of Attorney Gen., Dep't of Legal Affairs , 198 So.3d 1107, 1109 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted).

We accept the AG's argument that subparagraph (1)(b) of section 501.207 does not require an enforcing authority to plead "actual damages" in an action seeking injunctive and other equitable relief. Section 501.207(1)(b) allows an enforcing authority to bring an action to "enjoin any person who has violated, is violating, or otherwise likely to violate" FDUTPA. The enforcing authority's sole burden in establishing its right to a temporary injunction under the statute, is to establish that it has a clear legal right to a temporary injunction by demonstrating a substantial likelihood of success on the merits. E-Racer Tech, LLC , 198 So.3d at 1110 ("The AG does not have to establish irreparable harm, lack of an adequate legal remedy, or public interest as ordinarily required for a temporary injunction," but instead need only "demonstrate a substantial likelihood of success on the merits."); Millennium Commc'ns & Fulfillment, Inc. v. Office of the Attorney Gen. , 761 So.2d 1256, 1260 (Fla. 3d DCA 2000) ("[B]ecause section 501.207(1)(b) expressly authorizes the Department to seek injunctive relief on behalf of the state, ... [t]he Department's sole burden at a temporary injunction hearing under FDUTPA is to establish that it has a clear legal right to a temporary injunction.").

To establish a substantial likelihood of success on the merits, the AG must show that "the practice was likely to deceive a consumer acting reasonably in the same circumstances." Office of Attorney Gen., Dep't of Legal Affairs v. Wyndham Intern., Inc. , 869 So.2d 592, 598 (Fla. 1st DCA 2004). Therefore, regardless of whether actual harm has materialized, the AG can seek an injunction to stop an unfair and deceptive trade practice that violates FDUTPA.

The AG correctly points out that Outreach Housing is distinguishable and inapplicable here. In that case, the AG filed a complaint for violations of FDUTPA seeking to recover the actual damages suffered by consumers pursuant to section 501.207(1)(c), Florida Statutes (2008). See Outreach Housing , 221 So.3d at 693. Only when an enforcing authority is seeking recovery of actual damages under subparagraph (1)(c), or a private individual is seeking recovery of consumers' actual damages-as opposed to injunctive relief-is that party required to plead and prove "actual damages." Id. ; Rollins, Inc. v. Butland , 951 So.2d 860, 869 (Fla. 2d DCA 2006) (holding that a private individual seeking a consumer claim for damages under FDUTPA has to prove actual damages); Chicken Unlimited, Inc. v. Bockover , 374 So.2d 96, 97 (Fla. 2d DCA 1979) (holding that a plaintiff seeking actual damages under FDUTPA must show that a defendant engaged in unfair or deceptive trade practices and that those practices caused injury to the plaintiff). Here, the AG was seeking relief under subparagraph (1)(b), not (1)(c), of section 501.207 ; thus, Outreach Housing is not applicable to the instant case.

Conclusion

Because the trial court found that the AG met its burden entitling it to injunctive relief by showing a substantial likelihood of success on the merits of its underlying claim, the temporary injunction and asset freeze were improperly dissolved. We reinstate the temporary injunction and asset freeze.

Reversed and remanded .

Damoorgian and Ciklin, JJ., concur.


text:
    Elias ROSADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2968
    District Court of Appeal of Florida, Fourth District.
    [March 6, 2019]
    Elias Rosado, Florida City, pro se.
    Ashley B. Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Elias Rosado appeals an order summarily denying his second rule 3.850 motion and an order prohibiting further pro se filing in this case. We affirm the denial of the rule 3.850 motion and reverse the sanction.

In 2007, Rosado pleaded guilty to burglary of a structure, and he was sentenced to ten years in prison as a habitual offender. He filed a prior rule 3.850 motion that was denied after an evidentiary hearing and affirmed on appeal. Rosado v. State , 67 So.3d 220 (Fla. 4th DCA 2011). He also filed a rule 3.800(a) motion to correct an illegal sentence that was denied and affirmed on appeal. Rosado v. State , 234 So.3d 747 (Fla. 4th DCA 2017).

On July 19, 2017, Rosado filed this rule 3.850 motion alleging newly discovered evidence after he received a notice from the State that DNA statistical probabilities may have been miscalculated in his case. The notice stated that the Broward Sheriff's Office Crime Laboratory inappropriately used Combined Probability of Inclusion (CPI) to calculate the statistical probabilities of genetic profiles in complex mixture DNA cases. The notice did not indicate whether CPI calculations were used in Rosado's case. He sought to withdraw his plea, alleging that he would have proceeded to trial if he had known that the DNA statistics were miscalculated.

The trial court ordered the State to file a response to the rule 3.850 motion in ninety days. After the State did not timely respond, Rosado filed two motions to hear and rule and he requested supplemental DNA discovery including all serology and DNA reports and to allow further testing.

More than a year after Rosado filed this rule 3.850 motion and eight months after the court's order, the State filed its response. The State explained that the notice about calculation errors in complex DNA mixture cases did not apply in this case because the sample analyzed was not a mixture. It was blood from a single person. The State argued there was no good cause to allow postconviction discovery. Referring to filings in Rosado's other cases, the State asked the court to prohibit further pro se filing.

The trial court denied the rule 3.850 motion, and following an order to show cause pursuant to State v. Spencer , 751 So.2d 47 (Fla. 1999), the court prohibited further pro se filing in this case.

We affirm the denial of Rosado's rule 3.850 motion because the State's generic DNA Brady notice does not apply to Rosado's case. As a result, there is no newly discovered evidence that could have affected the voluntariness of his plea.

However, we agree with Rosado that the trial court erred in prohibiting further pro se filing in this case. See Gaston v. State , 141 So.3d 627 (Fla. 4th DCA 2014). Rosado's second rule 3.850 motion, filed in response to the State's Brady notice, was not an abuse of procedure. The Brady notice did not provide enough information for him to understand that the calculation error did not occur in his case. The Spencer order to show cause was directed at this case, not his other unrelated cases. On appeal, the State acknowledges that apart from his motions to hear and rule and his request for discovery, this case is controlled by Gaston . These motions were related to the State's delay in responding to the rule 3.850 motion. A prompt response would have shown that the Brady notice was inapplicable and there was no need for further discovery. The record does not show that Rosado abused the postconviction process in this case. See Fla. R. Crim. P. 3.850(n). Accordingly, the sanction prohibiting further pro se filing is reversed.

Affirmed in part; reversed in part .

Warner, Gross and Klingensmith, JJ., concur.

      Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).