author: EMAS, J.

text:
    Craig ROBINS, Petitioner, v. Ugo COLOMBO and CMC Group, Inc., Respondents.
    No. 3D18-714
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Richard & Richard, P.A., and Dennis Richard, Laurel W. Marc-Charles, and Douglas J. Giuliano ; Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten, Miami, for petitioner.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and Kendall B. Coffey, Miami, for respondents.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Petitioner Craig Robins has filed a petition seeking certiorari relief from the trial court's order granting Respondents' motion to amend to assert a claim for punitive damages pursuant to section 768.72(1), Florida Statutes (2018). That subsection provides in pertinent part: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Petitioner raises a number of claims in his petition, but we conclude they are without merit or are beyond our limited scope of review.

As a general rule, a petitioner seeking certiorari relief must establish that the trial court's nonfinal order "departs from the essential requirements of law and thus causes material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla. 1995) ; Robles v. Baptist Health South Florida, Inc., 197 So.3d 1196, 1199 (Fla. 3d DCA 2016). In applying this standard of review to an order granting leave to amend a complaint to add a claim for punitive damages, we limit our review to whether the procedural requirements of section 768.72 have been followed.

Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995) ; SAP Am., Inc. v. Royal Flowers, Inc., 187 So.3d 946 (Fla. 3d DCA 2016). As we acknowledged in SAP, 187 So.3d at 946, "an appellate court lacks certiorari jurisdiction to review the sufficiency of the evidence considered by the trial court in granting leave to amend the complaint to add a claim for punitive damages." See also Globe, 658 So.2d at 520 (finding that certiorari may not be granted to review a trial judge's determination of the sufficiency of the ultimate facts pleading a claim for punitive damages). Moreover, this court is not permitted to reweigh a trial court's finding of a sufficient evidentiary basis for a punitive damages claim, and "such a finding could not be disturbed, or even evaluated on certiorari review." Espirito Santo Bank v. Rego, 990 So.2d 1088, 1091 (Fla. 3d DCA 2007).

Applying our narrow standard and scope of review, we find that Petitioner has not demonstrated that the trial court failed to comply with the procedural requirements of section 768.72. The record establishes that Respondents' motion to amend contained a proffer and referred to and relied upon testimony, answers to interrogatories, and exhibits attached to his motion. Further, the trial court order granting the motion to amend was, consistent with section 768.72(1), based upon "a reasonable showing by evidence in the record or proffered by the claimant." We conclude that Petitioner's remaining arguments on this point focus on the sufficiency of the evidence rather than compliance with the procedural requirements of section 768.72 which, as discussed earlier, is beyond this court's authority to review on certiorari. See TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 520 (Fla. 3d DCA 2016) (holding that even if appellate court might find that no independent tort has been alleged, "restraints on our certiorari jurisdiction prevent us from quashing the trial court's order on [that] basis.")

Petitioner also claims that the trial court failed to afford him an adequate hearing before ruling on the motion to amend. The hearing was specially set for thirty minutes, and was noticed to address Respondents' motion to amend as well as Petitioner's motion for summary judgment. Although it is true that the hearing on the motion to amend lasted only a short time, the trial court did not preclude or prohibit Petitioner from making any argument it wished to make in opposition to the motion to amend. Nor did Petitioner lodge any objection to the court's procedure or assert at the hearing that it was in any way foreclosed from presenting argument in opposition to the motion to amend. Instead, it appears from a review of the hearing transcript that Petitioner decided to "keep his powder dry" to await argument on his summary judgment motion that immediately followed, believing that a favorable ruling on summary judgment would render moot Respondents' request to amend the complaint. We conclude that the trial court complied with Florida Rule of Civil Procedure 1.190(f) by holding a hearing at which Petitioner was afforded a reasonable and meaningful opportunity to be heard on the merits of Respondents' motion to amend.

Finally, Petitioner asserts that certiorari relief is appropriate because Respondents failed to attach to their motion the proposed amended pleading, and instead proposed to amend the complaint by interlineation. Florida Rule of Civil Procedure 1.190(a) provides: "If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion." We have recognized that this requirement is mandatory. See Fetlar, LLC v. Suarez, 230 So.3d 97, 99 (Fla. 3d DCA 2017). However, petitioner never objected to this amendment by interlineation, raising it for the first time in this court. As a general rule, the failure to make a contemporaneous objection constitutes a waiver of a claim on appeal, absent fundamental error. Philip Morris USA, Inc., v. Ledoux, 230 So.3d 530 (Fla. 3d DCA 2017) ; Liberty Mut. Ins. Co. v. Dilenge, 312 So.2d 251, (Fla. 3d DCA 1975) ; Hernando HMA, LLC v. Erwin, 208 So.3d 848, 849 (Fla. 5th DCA 2017) (noting: "Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below.") See also Young v. State, 632 So.2d 245, 246 (Fla. 3d DCA 1994) (holding "the fact that the amendment [to an information] was erroneously accomplished by an unsworn interlineation, rather than a sworn-to amended information, was waived ... because the defendant never objected below to this defect."). Had Petitioner raised the issue in the trial court by contemporaneous objection, this now-asserted defect could easily have been cured by converting the interlineated amendment to a more formal amended pleading. See Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (observing: "As a general matter, a reviewing court will not consider points raised for the first time on appeal.... The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.") (Internal citations omitted.)

Petition denied.

      Rule 1.190(f) ("Claims for Punitive Damages") provides:
      A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

      Of course, there is nothing to prevent the trial court from directing such action on remand, or to prevent Respondents on their own from seeking to do so on remand.


source: Caselaw Access Project

author: ROTHENBERG, C.J.

license: Public Domain

text:
    C.R., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees.
    No. 3D18-46
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Steven Grossbard, for appellant.
    Karla Perkins, Miami, for appellee Department of Children & Families; Thomasina Moore (Tallahassee), Statewide Director of Appeals, for appellee Guardian ad Litem Program; Vincent F. Vaccarella, P.A., and Craig Robert Lewis (Fort Lauderdale), Pro Bono, Guardian ad Litem Program Defending Best Interest Project, for appellee Guardian ad Litem Program.
    Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

C.R. ("the Mother") appeals from an order terminating her parental rights as to her minor child, D.R.A. ("the Child"). Because the Department of Children and Families ("the Department") failed to establish either of the statutory grounds alleged in its petition, we reverse.

FACTS AND PROCEDURAL HISTORY

A. Removal of the Children and Adjudication of Dependency

In late January 2015, the Mother and her teenage daughter, B.D., engaged in a physical altercation, which resulted in B.D. being arrested and "Baker Acted." Thereafter, the Department took the Mother's three children into protective custody-A.D. (born early 1998), who also had a history of physical altercations with the Mother; B.D. (born late 1999); and the Child (born early 2008). The following day, the Department filed a dependency shelter petition alleging that the Mother's three children had been abused, abandoned, or neglected, or were in imminent danger of illness or injury as a result of the abuse, abandonment, or neglect. Following a shelter review hearing, the trial court entered an order on January 27, 2015, placing the three children in shelter care.

On February 10, 2015, the Department filed a verified dependency petition, alleging that the Mother had abused, abandoned, neglected and/or placed the three minor children at imminent risk of harm based on the Mother engaging in domestic violence with her two teenage daughters, A.D. and B.D. The Mother consented to the dependency petition and, on July 24, 2015, the Mother's three children were adjudicated dependent. The order adjudicating the children dependent states that the Mother has mental health issues that, if left untreated , will interfere with her ability to safely parent her children; the Mother tested positive for illegal drugs on January 27, 2015; the Mother and B.D. engaged in domestic violence on January 21, 2015, while B.D. was allegedly intoxicated and out of control; and the Child had excessive absences from school since August 2015.

B. The Case Plans Filed Prior to the Petition to Terminate the Mother's Parental Rights

To address the circumstances stated in the dependency order, the Department issued five case plans between August 18, 2015, and March 14, 2017, with each stating that the primary permanency goal was reunification. Specifically, the case plans required the Mother to complete and/or participate in the following tasks and/or services: (1) complete a Level of Care Assessment; (2) submit to a psychological evaluation and receive medication management; (3) attend parenting skills classes once a week for fourteen weeks to address the domestic violence between the Mother and her two teenage daughters, A.D. and B.D.; (4) attend family therapy; (5) attend individual psychotherapy due to the Mother being diagnosed with a mental health disorder, during which therapy, the Mother shall increase coping skills and gain insight; (6) participate in a substance abuse program and submit to random urinalyses for the duration of the case plan; and (7) show responsibility for the children's welfare.

C. The Trial Court's Orders on Judicial Review/Permanency Review

The trial court addressed the Mother's compliance with the case plans and her progress in four separate Orders on Judicial Review/Permanency Review ("Orders on Judicial Review") filed on November 4, 2015, April 4, 2016, September 28, 2016, and March 20, 2017. The first order issued on November 4, 2015, showed little progress by the Mother except for her submitting to the psychological evaluation.

However, in the trial court's second Order on Judicial Review filed on April 4, 2016, the trial court noted that the Mother had completed the parenting class, the substance abuse evaluation, and the psychological evaluation. The Mother was also participating in an outpatient substance abuse program and individual counseling. Although the case plan in effect at that time stated that the Mother was to attend family counseling, the trial court's order made no finding as to family counseling. The trial court concluded that the Mother had not "reached substantial compliance & is in partial compliance due to ongoing services," but noted that the Mother was in compliance with the court-ordered visitation.

The trial Court's third Order on Judicial Review dated September 28, 2016, found that the Mother was continuing to make progress. The Mother had completed the parenting classes, the substance abuse evaluation, and the psychological evaluation. She was participating in an outpatient substance abuse program and individual counseling, she was maintaining adequate housing, and she had been complying with the court-ordered visitation. Once again, the trial court concluded that the Mother was in partial compliance but that she had not reached substantial compliance with the case plan and made no reference to family counseling. Importantly, however, the order states: "Mother is fully compliant & the Child [D.R.A.] is transitioning to [the Mother's care]. " (emphasis added). The case plan goal continued to be reunification, and the trial court entered an order changing the Mother's visitation with the Child from supervised visitations to unsupervised visitations with a minimum of twice a week and for a maximum of six hours per visit.

On March 20, 2017, the trial court entered its fourth and final Order on Judicial Review. This order provided that the Mother had completed the parenting classes, the substance abuse evaluation, and the psychological evaluation; the Mother was currently participating in outpatient substance abuse program and individual counseling ; and the Mother was maintaining adequate housing. The trial court, however, again determined that the Mother had not reached substantial compliance and was "in partial compliance due to services ongoing. " (emphasis added). Notably, the trial court once again made no finding as to family counseling, although family counseling had commenced approximately two weeks earlier. The order continued to state that the primary goal was reunification.

D. The Petition for Termination of Parental Rights

On May 2, 2017, approximately two months after the fifth case plan was issued, the Department filed a petition to terminate the Mother's parental rights based on two statutory grounds, sections 39.806(1)(e)1., and 3., Florida Statutes (2017), which provide as follows:

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:
....
(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child's placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child's placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court's approval of a case plan having the goal of reunification with the parent, whichever occurs first; or
....
3. The child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under s. 39.522(2) unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.

E. The Termination of Parental Rights Hearing and the Final Judgment Terminating the Mother's Parental Rights as to the Child

The termination of parental rights ("TPR") hearing was held over a three-day period commencing in early September 2017, and concluding in late October 2017. In December 2017, the trial court entered its final judgment terminating the Mother's parental rights as to the Child, finding that the Department had established by clear and convincing evidence both statutory grounds. The Mother's appeal followed.

ANALYSIS

The Mother contends that the trial court erred by terminating her parental rights as to the Child. Because there was no competent, substantial evidence to support the trial court's determination that the Department established either of the two statutory grounds alleged in its petition, we agree.

To terminate parental rights, the Department is required to establish by clear and convincing evidence the existence of at least one statutory ground for termination, see § 39.806, Fla. Stat. (2017), and that termination is in the manifest best interest of the child and is the least restrictive means to protect the child from serious harm. See B.K. v. Dep't of Children & Families, 166 So.3d 866, 873 (Fla. 4th DCA 2015). An appellate court's review of the final judgment terminating parental rights "is limited to whether competent, substantial evidence supports the trial court's final judgment, and whether the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing." J.P. v. Fla. Dep't of Children & Families, 183 So.3d 1198, 1203 (Fla. 1st DCA 2016) (quoting N.L. v. Dep't of Children & Family Servs., 843 So.2d 996 (Fla. 1st DCA 2003) ) (internal quotation marks omitted); see also T.P. v. Dep't of Children & Family Services, 935 So.2d 621, 624 (Fla. 3d DCA 2006) ("The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court's order is supported by substantial competent evidence.").

A. The Statutory Grounds

1. Section 39.806(1)(e) 1.

Section 39.806(1)(e) 1. permits the termination of parental rights when a child is adjudicated dependent, a case plan has been filed with the trial court, and the parent fails "to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child's placement into shelter care, whichever occurs first...." § 39.806(1)(e) 1. (emphasis added). This statutory provision further states that a parent's failure to substantially comply "constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the [D]epartment to make reasonable efforts to reunify the parent and child." § 39.806(1)(e) 1. Section 39.01(78), Florida Statutes (2017) , provides that " 'substantial compliance' means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child's remaining with or being returned to the child's parent."

In the instant case, the Child was adjudicated dependent and case plans were filed with the trial court. However, as will be addressed below, there was no competent, substantial evidence to support the trial court's determination that the Department established by clear and convincing evidence that the Mother failed to "substantially comply" with the case plan.

(a) The Case Plan Tasks

The case plan required the Mother to complete several tasks to address and remedy the "circumstances which caused the creation of the case plan." The record before this Court, including the testimony at the TPR hearing and the exhibits introduced at the TPR hearing, reflects that the Mother completed the following assigned tasks:

1) Complete a Level of Care Assessment

The Mother completed the Level of Care Assessment on March 15, 2015, which was prior to the issuance of the initial case plan in August 2015.

2) Submit to a Psychological Evaluation and Receive Medication Management

The Mother submitted to a psychological evaluation on February 3, 2015, conducted by Dr. Rebecca Harvey, a clinical psychologist. Dr. Harvey's testimony at the TPR hearing and her report, which was introduced into evidence, reflect that the Mother has a history of volatile relationships, mood issues, and mood management issues, which would be consistent with a bipolar anxiety issue. As to the Mother's parenting skills, Dr. Harvey concluded that the Mother was overwhelmed and "bewildered" as to how to manage her daughters' aggressive behaviors. During the evaluation, the Mother acknowledged that many of her childhood experiences, including physical and mental abuse by her father, have impacted her parenting abilities.

Based on the evaluation, Dr. Harvey opined that the Mother suffers from a bipolar disorder, a generalized anxiety disorder, a post-traumatic stress disorder, and a substance abuse disorder. Dr. Harvey concluded that the Mother was in need of various services to enable her to provide a safe and healthy environment for her children. Dr. Harvey recommended that the Mother participate in individual therapy to: (1) address her mood issues; (2) address her childhood experiences and to examine how her childhood impacts her parenting; (3) work on developing positive coping skills; and (4) address her tendency to relate to her children as peers. In addition, Dr. Harvey recommended that the Mother continue to regularly see a psychiatrist and to receive medication management; attend a substance abuse treatment program; attend parenting classes to learn how to communicate with her children and cope with her children's defiant behavior; and participate in family therapy with her children to learn how to solve problems, de-escalate arguments, and express thoughts and feelings appropriately. These recommendations were the foundation for the tasks assigned to the Mother in the case plans.

The record reflects that the Mother began seeing a psychiatrist, Dr. Priscilla Borrego, in November 2015. Dr. Borrego diagnosed the Mother as being bipolar and prescribed several medications. At the TPR hearing, Dr. Borrego testified that the Mother has been compliant with taking her medications and attending her appointments. Dr. Borrego also testified that she has seen improvements in the Mother-the Mother is calmer, has fewer mood swings, speaks less rapidly, is sleeping better, has a better appetite, and attends her sessions in better spirits.

3) Attend Parenting Skills Classes

The Mother commenced parenting classes on August 31, 2015, and successfully completed the classes on December 21, 2015. Janet Martinez, the Parenting Facilitator at the Family Resource Center, testified that the Mother submitted to the Adult-Adolescent Parenting Inventory Assessment ("AAPI-2") both pre-services and post-services, and the results of these assessments were outlined in Ms. Martinez's final report that was introduced into evidence at the TPR hearing. Ms. Martinez's final report states:

The [AAPI-2] is designed to assess the parenting and child rearing attitudes of adults and adolescent parents and pre parent populations. Based on the known parenting and child rearing behaviors of abusive parents, responses to the inventory provide an index for practicing behaviors know to be attributable to child abuse and neglect. Responses to the AAPI-2 provide an index of risk in five specific parenting and child rearing behaviors:
Construct A- Inappropriate Expectations of Children
Construct B- Parental Lack of Empathy towards Children's Needs
Construct C- Strong Parental Belief in the Use of Corporal Punishment
Construct D- Reversing Parent-Child Family Roles
Construct E- Oppressing Children's Power and Independence

For each parenting construct, the score can range from one to ten, with a score of one to three indicating high risk, four to seven indicating medium risk, and eight to ten indicating low risk. Ms. Martinez's report sets forth the following pre-classes and post-classes scores for each parenting "construct": (A) inappropriate expectations of children: pre-parenting classes-3 (high risk); post-parenting classes-9 (low risk); (B) parental lack of empathy towards children's needs: pre-parenting classes-2 (high risk); post-parenting classes-8 (low risk); (C) strong parental belief in use of corporal punishment: pre-parenting classes-5 (medium risk); post-parenting classes-9 (low risk); (D) reversing parent-child family roles: pre-parenting classes-3 (high risk); post-parenting classes-5 (medium risk); and (E) oppressing children's power and independence: pre-parenting classes-5 (medium risk); post-parenting classes-9 (low risk). Thus, Ms. Martinez's report reflects that the Mother not only completed the parenting classes, but she showed significant improvement as to each parenting "construct" following the parenting classes, with four of the five constructs now being in the "low risk" category and one construct being in the "medium risk" category.

4) Attend Family Therapy

Although family therapy was a task included in the initial case plan issued in August 2015, the Mother did not commence family therapy with the Child until March 3, 2017, only six months before the TPR hearing commenced, and the family therapy was ongoing at the time of the hearing. It does not appear that the delay in commencing family therapy was attributable to the Mother.

Mr. Jeremiah Model, a registered mental health intern at Advance Health Community Services, described a positive relationship between the Mother and the Child:

[The Child] has a lot of affection towards the mom. There is a lot of appropriate touch. [What] I mean by appropriate touch, there is hugging. There [are] kisses, and she seems pretty happy in my opinion.... From observations[, the Child] seems to be very elated.... Like I would ask her questions about the weekend and how it went with mom, and she seems pretty happy. And she seems very happy when she is leaving with mom after the sessions because they will usually have events planned like going out to restaurants and spending quality time with each other or going to the pool or going to the beach or some sort.

Mr. Model also testified that although the Child is guarded during therapy, the Mother and the Child have progressed, but are still in need of family therapy. Mr. Model could not, at that point, recommend reunification because "six months is not enough for me to gain all the information ." Thus, Mr. Model's testimony reflects that the mother had made progress during family therapy, but that family therapy had not been completed, and six months of therapy was not enough for him to gain the necessary information to make a recommendation. However, based on the delayed referral to family therapy, the failure of the Mother to complete family therapy at the time of the hearing was not attributable to her.

5) Attend Individual Therapy

The Mother was referred to a combined substance abuse therapy and individual therapy at Banyan Health Systems. The therapies commenced in December 2015, and were completed in September 2016, approximately a year before the commencement of the TPR hearing.

Thereafter, in May 2017, the Mother voluntarily agreed to additional individual therapy at Jessie Trice Community Health Center and began therapy with Gladys Amador, a mental health counselor. Ms. Amador conducted the initial screening and assessment of the Mother on June 12, 2017, and the final session was on August 3, 2017, approximately a month before the TPR hearing commenced. Ms. Amador testified that she generally conducts twelve sessions of therapy, but she only had five sessions with the Mother due, in part, to conflicts in Ms. Amador's schedule and the Mother's hospitalization in the month of August. The focus of the twelve-week therapy period was to address the Mother's history of trauma . Ms. Amador testified that five sessions is not enough to make significant progress because the five sessions were "really rapport building ." (emphasis added). However, Ms. Amador noted that during her five sessions with the Mother, the Mother was very engaged and open to suggestions.

6) Participate in a Substance Abuse Program and Remain Drug Free

The Mother participated in an outpatient substance abuse program at Banyan Health Systems with Lorena Paar, an outpatient substance abuse therapist. Ms. Paar's reports, which were introduced into evidence, and her testimony at the TPR hearing reflect that the Mother commenced the outpatient substance abuse program in December 2015 and successfully completed the program in September 2016. While attending the program, the Mother was subject to random drug testing, and on November 4, 2015, the trial court ordered the Mother to submit to urinalyses three times per week. The testimony at the TPR hearing reflects that the Mother had been drug free for nearly two years .

7) Show Responsibility for the Children's Welfare

As to this final task, the case plan indicated that this task would be deemed completed upon achieving all goals of the case plan.

b) Substantial Compliance with the Case Plan

We acknowledge that completion of the tasks in a case plan does not necessarily equate to "substantial compliance" with a case plan. As previously stated, "substantial compliance" with a case plan "means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child's remaining with or being returned to the child's parent." § 39.01(78). In the instant case, the order adjudicating the Child and her siblings, A.D. and B.D., dependent reflects that the following "circumstances" caused the creation of the case plans: (a) the Mother's mental health issues, which if left untreated, will interfere with her ability to safely parent her children; (b) the Mother tested positive for drugs; (c) the Mother engaged in domestic violence with B.D.; and (d) the Child had excessive absences from school.

The record before this Court indicates that these "circumstances" have been "significantly remedied." First, the Mother's mental health issues have been addressed. She is currently under the care of psychiatrist, and the Mother is attending her appointments and taking her prescribed medications. Moreover, the psychiatrist testified that she has seen improvements in the Mother. Second, the Mother is not taking or using drugs. She successfully completed the outpatient substance abuse program and has tested negative for drugs for almost two years. Third, as to the Mother engaging in domestic violence with B.D., the record indicates that this "circumstance" has been "significantly remedied." B.D. is currently living with the Mother; B.D. received "wrap around" services, including therapy; and there have been no physical altercations between the Mother and B.D. since the Department permitted B.D. to move back into the Mother's home in May 2017. The record further reflects that A.D. and A.D.'s child are no longer living with the Mother, and there have been no further incidents of domestic violence between A.D. and the Mother. In addition, the Mother successfully completed parenting classes, and her post-classes scores on the AAPI-2 show that the Mother has significantly improved, with four of the five parenting constructs being at "low risk" and one being at "medium risk." Finally, there is no indication in the record that the Mother would continue to allow the Child to miss so many days of school. Thus, the record does not contain competent substantial evidence that the Mother failed to substantially comply with her case plan.

This Court's decision in C.G. v. Department of Children & Families, 67 So.3d 1141, 1142 (Fla. 3d DCA 2011), is factually distinguishable from the facts in the instant case. In C.G., the minor child's mother failed to substantially comply with her case plan, and the trial court entered a final order terminating C.G.'s parental rights pursuant to section 39.806(1)(e) 1. C.G. initially consented to her child being adjudicated dependent after the court determined that C.G. had mental health issues. Id. at 1142-43. The child was returned to C.G. for a brief period of time, but was returned to state custody after C.G. was convicted of prostitution. Id. at 1143. C.G. was assigned five reunifications plans over a two-year period, with each plan requiring C.G. to maintain a job, secure safe and consistent housing, undergo mental health evaluations and medication management, attend substance abuse therapy, and attend parenting classes. Id. at 1144. The evidence presented at the TPR

hearing reflected that C.G. failed to complete the psychotherapy sessions, the medication management program, and the substance abuse therapy, and that C.G. refused to follow a court order directing her to enter an inpatient substance abuse program. Id. Although C.G. completed the assigned parenting classes, her scores on the post-services test led the case manager to opine that reunification was not a safe option for the child. Id. On appeal, this Court affirmed the final order terminating C.G.'s parental rights, concluding as follows:

[T]he trial court's finding that clear and convincing evidence supported the termination of parental rights was based, in part, on competent and substantial evidence contained in the underlying dependency records. The state additionally demonstrated, by clear and convincing testimonial evidence, that C.G. failed to substantially comply with the case plans and made little effort to remedy the harmful behavior and circumstances that initially brought her child into foster care. We thus agree with the trial court that termination of [C.G.'s] parental rights is the least restrictive means of protecting the ultimate welfare of the child.

Id. at 1144-45 (internal quotation marks and citation omitted).

The facts in C.G. could not be more factually disparate from the facts in the instant case. Unlike C.G., in the instant case, the Mother has completed all tasks and/or services assigned to her in her case plans. Further, unlike C.G., the Mother in the instant case remedied the circumstances that initially brought her children into foster care. Basically, the Mother has done everything the Department has asked her to do-(1) she completed a Level of Care Assessment; (2) she submitted to a psychological evaluation, and she is compliant with her psychiatric appointments and taking the medications prescribed by her psychiatrist; (3) she attended parenting skills classes, and unlike C.G., the Mother's post-services scores increased dramatically; (4) she is attending family therapy; (5) she completed individual therapy, and the Mother voluntarily agreed to additionally therapy; and (6) she participated in a substance abuse program and has remained drug-free for almost two years . Additionally, the Mother is employed and is maintaining suitable housing.

c) The Mother's Isolated Statement to the Child

Despite the Mother's significant efforts, completion of services, and tremendous progress, the Department argued and the trial court found that the Mother had not gained sufficient "insight." This determination was based primarily on a single incident that occurred a couple of days prior to the commencement of the TPR hearing. During one of the Mother's unsupervised visitations, the Mother told the Child that if the trial court terminated her parental rights and the Child stays with the foster mother, the Mother will move back to New York, the Child will never see the Mother again, and the Mother will have another girl. Following this statement, the Child became sad and reported this conversation to the foster mother. The Mother acknowledged during the TPR hearing that she was aware of the trial court's order prohibiting her and others from discussing the case unless the discussion took place in a therapeutic setting.

We agree with the trial court's determination that this conversation was inappropriate. However, this one isolated incident was insufficient to support the trial court's finding that the Mother failed to substantially comply with her case plan, warranting the termination of the Mother's parental rights. The Mother began unsupervised visitation with the Child on September 28, 2016, almost a year prior to the commencement of the TPR hearing. The Mother's inappropriate conversation with the Child was the only inappropriate conversation during the almost one-year period. Further, the evidence reflects that the Child is bonded to and loves her Mother. See L.A.G. v. Dep't of Children & Family Servs., 963 So.2d 725, 727 (Fla. 3d DCA 2007) ("The only evidence that the mother deviated from the case plan were two occasions when she had contact with the father and paternal grandmother. These two incidents are insufficient to support a finding that the mother failed to substantially comply with her case plan and to terminate her parental rights.").

Accordingly, based on the above analysis, we conclude that there was a lack of competent, substantial evidence to support the trial court's finding that the Department established by clear and convincing evidence the statutory ground set forth in section 39.806(1)(e) 1.

2. Section 39.806(1)(e) 3.

The Department also sought termination pursuant to section 39.806(1)(e) 3., which permits the termination of parental rights when a child is adjudicated dependent, a case plan has been filed with the trial court, and

[t]he child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under s. 39.522(2) unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the [D]epartment to make reasonable efforts to reunify the parent and child.

(emphasis added).

It is undisputed that the Child "has been in care for any 12 of the last 22 months." However, for the reasons previously stated, we conclude that there was a lack of competent, substantial evidence to support the trial court's finding that the Mother failed to substantially comply with her case plan and that the circumstances that caused the Child's out-of-home placement have not been "remedied to the extent that the return of the child to the home with an in-home safety plan prepared or approved by the department will not be detrimental to the child's safety, well-being, and physical, mental, and emotional health." § 39.522(2) (emphasis added). Accordingly, we conclude that the Department failed to establish by competent substantial evidence the statutory ground set forth in section 39.806(1)(e) 3.

B. Manifest Best Interest of the Child and Least Restrictive Means

The undisputed record evidence is that the Child remains bonded with the Mother, and several witnesses supported the reunification of the Mother and the Child. However, we do not need to address whether the trial court's findings that termination was in the manifest best interest of the Child and is the least restrictive means to protect the Child from serious harm are supported by clear and convincing evidence because we have concluded that the there was a lack of competent, substantial evidence to support the trial court's finding that the Department established by clear and convincing evidence the statutory grounds set forth in the petition to terminate the Mother's parental rights. See B.K. v. Dep't of Children & Families, 166 So.3d 866, 873 (Fla. 4th DCA 2015).

We do note, however, that despite the Mother's significant progress, the child therapist found that Child has "shown little, measureable improvement" since therapy began, and the Child does not "open up" during therapy as to her relationship with her Mother. Although the record is unclear as to why the Child does not "open up" during therapy, the record reflects that the Child has met with approximately five different therapists since being removed from the Mother's home and she did not receive therapy for at least three months.

The constant change of therapists may have contributed to the Child not opening up during therapy. As one expert testified at the TPR hearing, it takes approximately five sessions for a therapist to build "rapport" with a patient. Thus, it is unclear whether the Child's failure to "open up" about her Mother is attributable to some sort of past trauma or to the Child not receiving therapy for at least three months or from the Child being subjected to so many different therapists since being removed from the Mother's home. At this point, the Department should attempt to slowly reunify the Mother and Child and to coordinate therapy for the Child with the same therapist, if possible.

Accordingly, we reverse the order terminating the Mother's parental rights as to the Child, D.R.A., and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      See § 394.451, Fla. Stat. (2015).

      The Child was initially placed with a non-relative, the Mother's friend. However, on June 4, 2015, the Child was removed from the non-relative and placed into foster care.

      The case plans were issued on August 18, 2015, November 5, 2015, April 4, 2016, September 28, 2016, and March 14, 2017. The last three case plans did not include A.D. because she had reached the age of majority. Other case plans were filed after the Department filed its petition to terminate the Mother's parental rights on May 2, 2017, which stated that the primary permanency goal was now adoption.

      It appears that there was a substantial delay in referring the Mother to family counseling that was not attributable to the Mother. The Mother and the Child did not commence family therapy until March 3, 2017.

      As will be discussed later in this opinion, the evidence presented at trial actually indicates that the Mother completed the outpatient substance abuse program and individual counseling in September 2016. However, in May 2017, the Mother voluntarily agreed to be re-referred to additional individual therapy to address her past trauma.

      As B.D. was reunified with the Mother on the same day the Department filed its petition for termination of parental rights, the petition pertained only to the Child, D.R.A. Further, the petition for termination of parental rights was filed as to both the Mother and the Child's legal father. The Mother informed the Department that the Child's legal father had been deported to Guatemala and that his whereabouts are unknown. The Child's legal father's parental rights were terminated via publication, and the termination of his parental rights are not at issue in this appeal.

      The trial court also found that that termination was in the manifest best interest of the Child and that termination is the least restrictive means to protect the Child from serious harm.

      Effective July 1, 2018, the definition of "substantial compliance" appears in section 39.01(84), Fla. Stat. (2018).

      Dr. Harvey testified that following her assessment of the Mother, she believed that the Mother's individual therapy should also include "trauma" therapy, but that "[l]ooking back on [her] report [she] didn't exactly use those words."

      As stated earlier, Dr. Harvey testified that her report should have provided that the Mother's individual therapy should also include "trauma" therapy. Further, unlike the past case plans, the September 28, 2016 case plan provided for the first time that the Mother "should engage in evidence based trauma counseling in order to deal with past trauma ." (emphasis added).

      Section 39.522(2), Florida Statutes (2017), provides as follows:
      In cases where the issue before the court is whether a child should be reunited with a parent, the court shall review the conditions for return and determine whether the circumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home with an in-home safety plan prepared or approved by the department will not be detrimental to the child's safety, well-being, and physical, mental, and emotional health.

      On October 5, 2016, the trial court issued a rule to show cause ordering Family Resource Center to appear before the trial court to show cause why it should not be held in indirect civil contempt for failing to comply with the trial court's order pertaining to individual therapy for the Child. The rule to show cause reflects that the trial court ordered therapy for the Child, and although therapy was commenced, it had ceased, and the Child had not received any therapy for three months, without any explanation. Following the show cause hearing, the trial court did not hold Family Resource Center in indirect civil contempt, finding that the Child was now receiving therapy.


author: FERNANDEZ, J.

text:
    The STATE of Florida, Appellant/Cross-Appellee, v. Chandra JENE-CHARLES, Appellee/Cross-Appellant.
    No. 3D16-332
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Pamela Jo Bondi, Attorney General, and Jacob Addicott and Magaly Rodriguez, Assistant Attorneys General, for appellant/cross-appellee.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kristen Kawass, Assistant Regional Counsel, for appellee/cross-appellant.
    Before FERNANDEZ, LOGUE, and LUCK, JJ.
   FERNANDEZ, J.

The State of Florida ("State") appeals the lower court's January 26, 2016 order granting a downward departure sentence and the lower court's withhold of adjudication without the requisite imposition of probation in this felony case. Chandra Jene-Charles ("Jene-Charles") cross-appeals her conviction and sentence on two conspiracy charges as a violation of double jeopardy. Without further discussion, we affirm the trial court's downward departure sentence finding no abuse of discretion and concluding that it is supported by competent substantial evidence. We reverse and remand the imposition of a withhold of adjudication for the reasons stated below. On cross-appeal, we affirm the trial court's conviction and sentence on the two conspiracy charges.

The State charged Jene-Charles, by Information filed on June 13, 2014, with eight counts, including Count 10 of the Information charging that on or between March 8, 2012 and November 21, 2012, Jene-Charles conspired to sell cannabis at a location in, on, or within 1,000 feet of a school; and Count 11 charging that on or between March 8, 2012 and November 21, 2012, Jene-Charles conspired to constructively possess a location with the knowledge that the location would be used for the sale of cannabis.

On December 17, 2015, the trial court accepted the guilty plea offered by Jene-Charles on all eight counts in the Information and withheld adjudication on all counts, imposing a term of imprisonment with credit for all time previously served followed by a period of probation.

When a court, in its discretion, withholds adjudication, section 948.01(2), Florida Statutes (2016), provides that "the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation." Further, Florida Rule of Criminal Procedure 3.670 provides, "where allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation." "This is true even if the court is sentencing the defendant to time ... already served in jail prior to the plea." Tucker v. State, 78 So.3d 36, 37 n. 3 (Fla. 3d DCA 2012). Under appropriate circumstances, the court may "withhold adjudication, place a defendant on probation, and impose a period of incarceration as a special condition of that probation, so long as the period of incarceration is less than one year." Id. Although reversal is required because the current sentence structure constitutes an illegal sentence, the record reveals the lower court's clear and unequivocal sentencing goal to withhold adjudication, impose a term of probation, and sentence Jene-Charles to jail time already served as a special condition of probation. See, e.g., Gonzalez v. State, 194 So.3d 380 (Fla. 3d DCA 2016). Thus, on remand, the court may withhold adjudication, place Jene-Charles on probation, a special condition of which will be credit for time already served, and impose all other conditions of probation that were previously imposed.

On the cross-appeal, the lower court did not err in convicting and sentencing Jene-Charles on Count 11 of the Information. In Bertonatti v. State, 163 So.3d 709 (Fla. 3d DCA 2015), the defendant, as in the case before us, pleaded open to the trial court to two counts of resisting an officer without violence, among other counts. The defendant in Bertonatti raised the double jeopardy claim for the first time on appeal. This Court explained that because the double jeopardy claim was not raised below, and the defendant pleaded guilty, the record was not clear as to whether the resisting was one continuous series of events or two separate acts. Id. at 710. Thus, because the record was unclear, we agreed with the State and affirmed the two convictions "without prejudice for the defendant to raise this issue in a rule 3.850 motion, where the state would have the opportunity at the trial court level, to develop the facts which may show possible breaks in time and location with greater clarity, as it had been deprived of that opportunity as this issue had not been raised below." Id.

Similarly, in the case before us, because the record in Jene-Charles' case is also unclear as to whether one conspiracy was completed or terminated before the other began, we affirm the convictions without prejudice to Jene-Charles to raise the issue in a rule 3.850 motion before the trial court, thus allowing the State the opportunity it did not have below to present evidence that it was two separate conspiracies rather than one with two objects. This is consistent with case law that a double jeopardy violation has to be clear from the face of the record. Hawkins v. State, 138 So.3d 1196, 1199 (Fla. 2d DCA 2014).

CONCLUSION

For the foregoing reasons, we affirm the trial court's downward departure sentence finding no abuse of discretion and concluding that it is supported by competent substantial evidence. We reverse and remand the imposition of a withhold of adjudication for the reasons stated in this opinion, with instructions to the trial court to restructure the sentence in such a way as to impose a lawful sentence consistent with the lower court's clear and unequivocally articulated original sentencing goal, to withhold adjudication and place Jean-Charles on probation with special conditions, one of which will be credit for all time previously served. On cross-appeal, we affirm the trial court's conviction and sentence on the two conspiracy charges, without prejudice for Jene-Charles to raise the issue in a rule 3.850 motion.

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


author: SCALES, J.

text:
    Francisco PIJUAN, et al., Appellants, v. BANK OF AMERICA, N.A., Appellee.
    No. 3D16-1553
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Loan Lawyers, LLC, and Chase E. Jenkins (Fort Lauderdale), for appellants.
    Liebler, Gonzalez & Portuondo, and Adam M. Topel, Miami, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   SCALES, J.

Appellants, defendants below, Francisco, Luisa, Francisco Jr. and Sonia Pijuan ("Pijuan")

appeal the final foreclosure judgment entered in favor of appellee, plaintiff below, Bank of America ("BOA"). After conducting a bench trial on BOA's foreclosure complaint, the trial court found that BOA's predecessor, Countrywide Home Loans, Inc., had entered into a loan modification agreement ("LMA") that constituted a novation of the original loan documents. Notwithstanding this finding (which BOA has not cross-appealed), the trial court entered a foreclosure judgment against Pijuan that failed to consider the effect of its novation finding on the foreclosure case pled and proven by BOA. We conclude that, under the facts of this case, once the trial court made the finding that the LMA replaced the original loan, then BOA could not prevail without having pled and proven a breach of the LMA.

I. Relevant Facts and Procedural Background

In December of 2006, Countrywide loaned Francisco and Luisa Pijuan $410,000. The loan was memorialized by an adjustable rate promissory note, and was secured by a mortgage encumbering Miami Beach real property owned by Pijuan. Pursuant to the terms of the note, Pijuan was required to make monthly principal and interest payments of $2,050.00 to Countrywide.

In March of 2009, Pijuan received a letter from Countrywide notifying Pijuan that Countrywide had approved a loan modification. In order for the modification to be valid, the LMA (enclosed with the letter) would need to be signed by Francisco and Luisa and returned to Countrywide. Pursuant to the LMA, Pijuan's monthly payment was adjusted down from $2,050.00 to $1,630.51, effective with the payment due on May 1, 2009. The LMA required compliance with all other covenants of the original documents not altered or amended by the LMA. The LMA did not alter or amend the condition precedent requirements of the mortgage's paragraph 22.

Francisco and Luisa executed the LMA and, on or about March 12, 2009, mailed it to Countrywide. From approximately April 20, 2009, through October 13, 2010, Pijuan, consistent with the LMA's payment terms, made eighteen monthly payments of $1,630.51, totaling $29,349.36.

Sometime later in 2009, BOA assumed the Pijuan note and mortgage from Countrywide. Notwithstanding Pijuan's return of the executed LMA to BOA, and Pijuan's eighteen monthly payments made pursuant to the LMA's payment terms, BOA, on December 31, 2010, sent a default letter to Pijuan asserting a November 1, 2009 default date. In this default letter ("BOA's Notice"), BOA instructed Pijuan that BOA must receive a payment of $42,523.45 prior to January 31, 2011, in order to "cure" this asserted default. BOA's Notice did not mention the LMA, much less assert any default under the LMA. Consistent with BOA's Notice, in February 2013, BOA filed the instant suit alleging a default not of the LMA, but of the December 2006 note and mortgage. BOA's verified complaint identified November 1, 2009 as the default date "on the Mortgage Note and Mortgage." Paragraph 9 of BOA's complaint, which was denied by Pijuan, alleged that BOA had performed all conditions precedent to acceleration. As an affirmative defense to BOA's foreclosure action, Pijuan asserted that BOA did not perform a condition precedent because BOA failed to provide proper default notice as required by the mortgage. Pijuan also filed a motion for leave to add an additional affirmative defense specifically relating to the failure of BOA to acknowledge the existence of the LMA. While Pijuan's motion seeking leave to add this affirmative defense was not heard before trial, the issue of whether the LMA constituted a novation of the original loan was tried by the parties' consent.

The bench trial, conducted in May of 2016, focused almost exclusively on whether, by virtue of the March 2009 LMA and subsequent payments consistent therewith, the parties had modified the December 2006 loan documents. BOA argued that, while it had received the executed LMA from Pijuan and credited Pijuan's account for Pijuan's payments made pursuant to the LMA, neither BOA nor Countrywide ever had approved the modification nor had either entity actually executed the document. BOA argued that the document therefore was ineffective.

At the end of the trial, the court specifically found, as a factual matter, that the parties had entered into the LMA in March of 2009, and that the LMA constituted a novation of the original December 2006 loan documents. The trial court, though, rejected Pijuan's counsel's argument that, upon finding a loan modification existed, BOA's foreclosure case should be dismissed under the authority of Kuehlman v. Bank of America, N.A., 177 So.3d 1282, 1283 (Fla. 5th DCA 2015) (holding that when a loan is modified a lender can foreclose only by pleading and proving a breach of the modification agreement). Rather, despite no allegation by BOA of any breach of the LMA, nor any allegation or proof that BOA had complied with the conditions precedent for suing Pijuan under the LMA, the trial court found that Pijuan had breached the LMA, and entered the subject foreclosure judgment, simply crediting Pijuan with the $29,349.36 that Pijuan had paid pursuant to the LMA. It is from this judgment that Pijuan timely appeals.

II. Discussion

The trial court found that the LMA constituted a novation; that is, the original loan documents had been modified by the subsequent LMA. This finding has not been challenged on cross appeal by BOA. We follow the persuasive precedent of our sister courts in holding that, when a loan modification agreement has been reached, a lender can foreclose only by both pleading and proving a breach of the modification agreement. Nowlin v. Nationstar Mortg., LLC, 193 So.3d 1043, 1046 (Fla. 2d DCA 2016) ; Kuehlman, 177 So.3d at 1283.

In this case, BOA pleaded a default under the December 2006 loan documents, and its trial proofs, including its evidence of compliance with all required contractual conditions precedent to acceleration and foreclosure, were based exclusively on Pijuan's alleged breach of the December 2006 loan documents. BOA vigorously contested the effectiveness of the LMA, and certainly never pleaded or attempted to prove a default thereunder; nor did BOA plead or prove that BOA had complied with the conditions precedent to sue Pijuan under the LMA. Therefore, when the trial court concluded that the LMA constituted a novation, and that the LMA replaced the inconsistent provisions of the original note, BOA's foreclosure case - premised entirely on BOA's allegations and proof that Pijuan breached the December 2006 loan documents, rather than the LMA - failed. Nowlin, 193 So.3d at 1046. As argued by Pijuan's counsel, upon finding that the LMA constituted a novation of the December 2006 loan documents, the trial court should have involuntarily dismissed BOA's case.

We reverse the trial court's final foreclosure judgment for BOA and remand with instructions to enter an involuntary dismissal of BOA's case.

Reversed and remanded, with instructions.

LAGOA, J., concurs.

I respectfully dissent. Although the trial court entered a final judgment of foreclosure after a full trial on the merits, the majority reverses because the Bank's complaint alleged only a default of the original loan-not a default of the loan modification. While the majority is correct that the Bank did not allege a default of the loan modification, it ignores the Borrowers' failure to raise the loan modification as an affirmative defense which, as explained below, was their burden.

More importantly, the majority's focus on the pleadings misses the point. The Bank and the Borrowers consented by word and act to try both the issue of whether a modification existed and whether the Borrowers had breached the modification. Indeed, it was the Borrowers who offered into evidence their payments under the loan modification and the fact that they stopped payments. The Borrowers' position at trial was that they were excused from making payments during the foreclosure litigation. Because the trial court rightly rejected that defense, the final judgment of foreclosure should be affirmed.

At the beginning of trial, the trial court asked both the Bank and the Borrowers to frame the issues to be tried. The parties agreed the focus of the trial should be whether there was a loan modification and whether there was a default under the loan modification. The following exchange took place:

The Court: Okay. Counsel, do you see the issues-any other issues other than those raised?
Bank's Counsel: I do not, Judge. In fact, I think the only real issue is going to be the application of payment on some alleged loan modification.
Borrowers' Counsel: That's correct, Your Honor. I think that's the heart of the issue.

(Emphasis added.) At the end of the exchange, Borrowers' counsel again confirmed that the two issues to be tried concerned whether there was a modification and "how much was paid towards it and whether those payments were properly applied":

The Court: So is the issue, as counsel framed it, a question of how much?
Borrowers' Counsel: Whether there's a modification and how much was paid-how much was paid towards it and whether those payments were properly applied.

(Emphasis added.)

At trial, the Bank maintained there was no loan modification because the Bank never signed a modification contract. To prove the Bank agreed to the unsigned modification, the Borrowers presented evidence that they made eighteen payments from April 2009 to October 2010 in the amount specified in the loan modification and the Bank accepted those payments.

Without objection, the Borrowers also admitted to stopping payments after October 2010. They stopped payments because they believed they did not have to pay during the foreclosure litigation:

The Court: Now, six years, no payments?
Pijuan: Yes, sir.
Court: No taxes?
Pijuan: Nothing.
The Court: No insurance?
Pijuan: Nothing.
....
The Court: I want to know why you sat there for six years with no payment living there, no taxes, no insurance.
Pijuan: Well, I was told that, you know, that's how it was going to-you know, they were going to be paying everything for now until the case was resolved.

Based on this unobjected-to testimony, the trial court noted that "there's two wrongs here," and "this is not good for either of you." He ruled against the Bank and found that a loan modification existed, pointing to the Bank's acceptance of eighteen payments in the amount of the loan modification. He then found the Borrowers had defaulted under the loan modification based upon their own admission. The court then entered a final judgment of foreclosure that fully credited the Borrowers for all payments made under the original loan and the loan modification.

If the parties had not tried by consent the issue of the loan modification, the judgment of foreclosure would still be proper. The Borrowers' main defense was the loan modification, but they never raised it as an affirmative defense. It was the Borrowers' "burden to plead the existence of a modification or forbearance agreement as an affirmative defense." Rouffe v. CitiMortgage, Inc., 241 So.3d 870, 873 (Fla. 4th DCA 2018). Since they failed to raise the loan modification as an affirmative defense, they technically waived it. Bank of New York Mellon for Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2005-BC5 v. Bloedel, 236 So.3d 1164, 1167 (Fla. 2d DCA 2018) ("The effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant's liability under the agreement, is an affirmative defense that must be pled and proven by the defendant.").

The Borrowers are saved from their technical waiver of the defense of a modification; but only because the issue of the modification was tried by consent. "The essence of the broad test generally applied to determine whether an issue has been tried by implied consent is whether the party opposing introduction of the issue into the case would be unfairly prejudiced thereby." Smith v. Mogelvang, 432 So.2d 119, 122 (Fla. 2d DCA 1983). The Borrowers were not only on notice of the issues relating to the loan modification (it was their main defense), they expressly agreed to try these issues and provided the evidence of the payments and default under the loan modification. They cannot now be heard to argue the issues were not raised in the pleadings. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Fla. R. Civ. P. 1.190(b).

These facts bring this case out of the ambit of the cases relied upon by the majority. In Nowlin v. Nationstar Mortgage, LLC, 193 So.3d 1043 (Fla. 2d DCA 2016), the borrowers raised the modification as an affirmative defense and denied breaching the modification. In Kuehlman v. Bank of America, N.A., 177 So.3d 1282, 1283 (Fla. 5th DCA 2015) the Fifth District expressly held the breach of the loan modification was not tried by consent.

Accordingly, the final judgment should be affirmed.

      We refer to the four appellants collectively as Pijuan, while noting their different roles in the events underlying this litigation. All four of the Pijuans executed the mortgage; however, only Francisco and Luisa executed the note and LMA.

      Paragraph 22 of the December 2006 mortgage requires, as a condition precedent to acceleration and foreclosure, the mortgagee to provide notice to the mortgagor specifying, among other things, the specific default and cure amount.

      A novation is a separate and new agreement, discharging an existing obligation and substituting a new one. See Ades v. Bank of Montreal, 542 So.2d 1013, 1014 (Fla. 3d DCA 1989).

      Indeed, such proof would have undermined BOA's principal argument that the LMA was ineffective.

      Citing dialogue between Pijuan's counsel and the trial court, the dissent argues that, in trying the novation issue by consent, Pijuan necessarily (or impliedly) waived both (i) BOA's obligation to plead and prove compliance with all conditions precedent related to a breach of the LMA, and (ii) Pijuan's affirmative defense asserting that BOA did not provide proper default notice to Pijuan. Waiver is the voluntary and intentional relinquishment of a known right. Caraffa v. Carnival Corp., 34 So.3d 127, 130 (Fla. 3d DCA 2010). The language of waiver must be clear and unequivocal. See, e.g., Rodriguez v. Ocean Bank, 208 So.3d 221, 225 (Fla. 3d DCA 2016). From our review of the record, it does not appear that Pijuan, at any time, expressly or impliedly waived the requirement that BOA plead and prove compliance with conditions precedent. Indeed, in our view, the record reflects just the opposite: immediately after the trial court announced its novation determination, Pijuan's counsel argued that dismissal was required based on Kuehlman precisely because of BOA's default notice infirmities.

      While Pijuan filed a motion for leave to add an additional affirmative defense relating to the Bank's failure to acknowledge the parties' loan modification agreement, that motion was never heard and never ruled upon.


author: BLACK, Judge.

text:
    Jimmy VELEZ, Appellant, v. Elizabeth MONTALVO-VELEZ, Appellee.
    Case No. 2D16-4794
    District Court of Appeal of Florida, Second District.
    Opinion filed August 10, 2018
    Brian J. Kruger and Luis E. Insignares of Luis E. Insignares, P.A., Fort Myers, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Jimmy Velez (the former husband) challenges the final judgment of dissolution of marriage, arguing that the award of permanent alimony to Elizabeth Montalvo-Velez (the former wife) is not supported by sufficient findings or evidence. Because the trial court failed to make sufficient factual findings to allow for meaningful review and otherwise failed to make the express finding mandated by section 61.08(8), Florida Statutes (2014), we reverse the portion of the final judgment related to alimony.

The trial was held on August 18, 2016. The former husband testified that he earns, on average, $1300 per month. This is supported by his amended financial affidavit, which indicates that the former husband's gross income is $1300 per month and that his net income is $1255 per month. Yet the former husband also testified that he has been paid exclusively in cash since May 2015, one month before the former wife filed for divorce, and that he has no idea how much he has earned since then. The former husband does not have a bank account, and he does not report his income to the Internal Revenue Service. According to his amended financial affidavit, the former husband's monthly expenses exceed his monthly net income by almost $500. The former husband was incarcerated in February 2016 for failing to pay court-ordered temporary alimony to the former wife but has been making the payments since then. The former husband was questioned about where the "extra money" was coming from since he has been paying both temporary alimony to the former wife and his expenses. He responded as follows: "I have to work and do additional property inspections to make up the difference or get-be delayed on my bills. Like now, my car payment is delayed, my rent hasn't been paid, my [car] insurance is due, hasn't been paid either." The former husband later admitted that he was not behind on rent and was only one month behind on his car payment. The document he presented to the court in support of his assertion that he was one month behind on his car payment did not indicate how much was owed or how far behind he was. Moreover, the car insurance statement presented to the court demonstrated only that a payment was due on August 6, 2016. The former wife's counsel argued in closing that the former husband's income is more than the former husband claims it to be and that he has "tried to find it by numerous ways, and he's done a good job of covering up, good job of hiding it through his girlfriend." The court made the following findings in the final judgment regarding the former husband's income and ability to pay alimony:

The [former] [w]ife proved she had a need for alimony, and the [former] [h]usband showed that he had the ability to pay alimony. The [former] husband testified that he solely supported the [former] wife and the minor children during the marriage. He further testified that he wanted the [former] wife at home to take care of the children. The [former] husband was less than truthful when it came to his income.... On December 14th, 2015 the court imputed income to the [former] husband [in the amount] of $900.00 a week based on his testimony, evidence presented. For a period of time the [former] husband wrote checks from his company to his adult children. He then had the adult children cash the checks and return the cash to him. By his own admission he did this to avoid child support payment[s] in the State of New York. The [former] husband's testimony waivered [sic] as to his income. He stated he may make $3,000 a month even though prior tax returns showed him making in excess of $50,000.00 annually.... To obtain the standard of living that the [former] [w]ife maintained during the marriage she would need $370.00 per week [in] alimony. This is the previous amount this court ordered the [former] husband to pay. The [former] husband was once incarcerated for non-payment on February 17, 2016. His purge amount was $1460, cash. He was able to obtain the cash bond within 24 hours and posted on February 18, 2016. Since that date, the [former] husband has faithfully paid the $370.00 weekly with no issues. The court grants the [former] wife alimony in the amount of $370.00 per week.

In order to impute income to an unemployed or underemployed spouse, the court must determine based on competent substantial evidence whether that spouse came to be in such a state voluntarily and whether he or she has been diligent in finding replacement income. See Lafferty v. Lafferty, 134 So.3d 1142, 1144 (Fla. 2d DCA 2014) (first citing Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010) ; and then citing Schlagel v. Schlagel, 973 So.2d 672, 675 (Fla. 2d DCA 2008) ); see also Soria v. Soria, 237 So.3d 454, 461 (Fla. 2d DCA 2018) ("A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts." (quoting Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004) ) ). In addition to finding a basis for imputation of income, the court must also indicate the amount imputed. See Nieboer v. Nieboer, 816 So.2d 1259, 1260-61 (Fla. 2d DCA 2002). However, "[w]here there is insufficient evidence to determine the amount to impute, there is a presumption based on the spouse's historical earnings that arises, though it can be rebutted by the spouse to whom income is imputed." Lafferty, 134 So.3d at 1145.

Prior to May 2015, the former husband had a documented work history including pay stubs and tax records and consistently made about $50,000 per year. Given the court's findings that the former husband wavered and was "less than truthful" about his income and the fact that his work history is no longer documented, imputing income based on his historic income may be appropriate. Cf. Ghay v. Ghay, 954 So.2d 1186, 1190 (Fla. 2d DCA 2007) (stating that it may be appropriate for the trial court on remand to impute income to the husband in calculating the temporary support award since he "attempted to divest himself of any income"). However, though the court indicated that it imputed income to the former husband in awarding temporary alimony to the former wife, it did not indicate that it was in fact imputing income to the former husband in awarding permanent alimony. See Greenberg v. Greenberg, 823 So.2d 176, 177 (Fla. 4th DCA 2002) ("The factual findings in the temporary order on alimony ... do not restrict the trial court from determining alimony ... in accordance with the evidence presented at the final hearing and the applicable law."). It is possible, as the former husband contends, that the court awarded permanent alimony based on imputed income. It is also possible, given the testimony and evidence presented during trial that the former husband has been able to stay current-for the most part-on his expenses and temporary alimony, that the court based the award of permanent alimony on the former husband's actual income. But just as the court failed to indicate whether it was imputing income to the former husband in awarding permanent alimony it also failed to make a finding regarding actual net income. See McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) ("It is well-established that the trial court must determine each spouse's [net] income for purposes of alimony ...."). Our review is thus hampered, and we must reverse the alimony award and remand for the court to make the appropriate findings based on the record; the court may also conduct further proceedings as needed. See Wabeke v. Wabeke, 31 So.3d 793, 796 (Fla. 2d DCA 2009) ("A trial court's failure to make specific factual findings with regard to alimony 'may preclude meaningful appellate review[ ] and result in a case having to be reversed and remanded.' " (alteration in original) (quoting Ruberg v. Ruberg, 858 So.2d 1147, 1155 (Fla. 2d DCA 2003) ) ); McCants, 984 So.2d at 682 (holding that "meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount" for alimony and child support purposes); see also Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994) ("[I]t is not clear in the final judgment whether an imputation was made and, if so, in what amount. Upon remand, if the trial court determines that income should be imputed to the husband, such imputation must be based on a finding that the husband is capable of earning a specified, imputed amount and that he could, in fact, earn this amount by using his best efforts.").

Additionally, section 61.08(8) provides that "[i]n awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties." (Emphasis added.) The court did not expressly make this finding or specifically reference subsection (8). Rather, the court indicated the following, in part, with respect to section 61.08(2) and section 61.08 generally: "The [former] [w]ife showed she had a need for alimony and the [former] [h]usband showed that he had an ability to pay.... In determining [a]limony, all issues were considered in conjunction with Florida Statute 61.08...." This court and others have recognized that the fair and reasonable finding is statutorily required when awarding permanent alimony. See Vinsand v. Vinsand, 179 So.3d 366, 369 (Fla. 2d DCA 2015) ("[T]he trial court failed to make a finding that no other form of alimony was fair or reasonable under the circumstances of this case. We note that such a finding is now statutorily required ...." (citing Winder v. Winder, 152 So.3d 836, 841 (Fla. 1st DCA 2014) ) ); Taylor v. Taylor, 177 So.3d 1000, 1003 (Fla. 2d DCA 2015) ("[W]hen [permanent alimony] is awarded the court must 'include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.' " (quoting § 61.08(8), Fla. Stat. (2012) ) ); Jordan v. Jordan, 199 So.3d 343, 345 (Fla. 4th DCA 2016) ("The trial court did, however, fail to make the requisite finding that no other form of alimony would be fair and reasonable. Section 61.08(8) provides: 'In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.' § 61.08(8), Fla. Stat. (2015) (emphasis added). Neither the original nor the amended final judgment included this finding. That finding might be implicit in the trial court's conclusion; nevertheless, the statute requires the finding to be made. We therefore reverse and remand the case for this finding, which the trial court will no doubt make."), rev. denied, No. SC16-1954, 2017 WL 944234 (Fla. Mar. 10, 2017). Even if this finding is implicit in the court's ruling given the length of the marriage, the former's wife's need for alimony, and the former husband's apparent ability to pay alimony, we must reverse as to this issue.

Accordingly, we reverse the alimony award and remand for the court to make sufficient findings of fact in accordance with this opinion. The court may conduct further proceedings as needed. The final judgment of dissolution is otherwise affirmed.

Affirmed in part; reversed in part; remanded with instructions.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The former wife did not participate in this appeal.


text:
    D.D., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-769
    District Court of Appeal of Florida, Second District.
    Opinion filed August 10, 2018
    Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
    BY ORDER OF THE COURT:
   Appellant's motion for rehearing or clarification is granted. The prior opinion dated May 16, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

D.D. appeals from an order placing him on probation but withholding adjudication for the delinquent acts of third-degree grand theft and first-degree misdemeanor criminal mischief. Because the State failed to present sufficient evidence that the value of the stolen and damaged property met the statutory thresholds for the charged offenses, see §§ 812.014(2)(c)(1), 806.13(1)(b)(2), Fla. Stat. (2016), we reverse and remand for the delinquency court to enter an order finding that D.D. committed second-degree petit theft, see § 812.014(3)(a), and second-degree misdemeanor criminal mischief, see § 806.13(1)(b)(1), and to hold a new disposition hearing.

The evidence at the adjudicatory hearing established that while D.D. was at school, he stole another student's cell phone and threw it from a second-story balcony. The State called the victim to testify about the value of the phone. The victim testified that the phone was his "father's old phone" and that he thought it was an iPhone 6. Beyond that, he did not know anything important about the phone-such as the size of the display, the quantity of memory, the quality of the camera, or anything else bearing on the phone's value. Although he originally stated that the phone was in perfect condition when it was stolen, he later testified that the only way he was able to recognize the shattered phone after it was recovered was by the absence of a small piece that had broken off before the theft. The victim nonetheless testified, without objection from D.D., that the phone was worth $340 because he and his mother "checked online how much a used phone with ... no damage ... would be worth." The State offered no further evidence of the value of the phone. The trial court subsequently denied D.D.'s motion for judgment of dismissal, which had been based in part on an argument that the State had failed to offer legally sufficient evidence that the value of the phone met the statutory threshold for grand theft, and found him delinquent.

A motion for judgment of dismissal in a delinquency case is subject to the same standard of review as a motion for judgment of acquittal in criminal cases. C.E.L. v. State, 995 So.2d 558, 560 (Fla. 2d DCA 2008). We review a motion for judgment of acquittal de novo. Id."If, upon reviewing the evidence in a light most favorable to the State, a rational fact-finder could find the elements of the crimes proven beyond a reasonable doubt, then the evidence is sufficient to sustain the adjudication of delinquency." I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005).

To establish third-degree grand theft, the State must prove that the value of the stolen property was at least $300 at the time of the theft. § 812.014(2)(c)(1) ; Pickett v. State, 839 So.2d 860, 861 (Fla. 2d DCA 2003). Although value can be proven with the owner's direct testimony of fair market value of the property, a witness's mere ownership of property unaccompanied by sufficient personal knowledge of its value is insufficient. Mitchell v. State, 917 So.2d 1056, 1057 (Fla. 2d DCA 2006). "Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase." Pickett, 839 So.2d at 861-62.

In this case, the victim plainly lacked sufficient personal knowledge to establish the stolen phone's value beyond a reasonable doubt. The victim was only barely able to identify the phone, and he had no knowledge at all of any characteristics that would be relevant to its market value. Although there was testimony admitted about the internet research the victim and his mother did, nothing in the testimony established that the phone or phones they saw on the internet were the same kind of phone or in a similar condition to the phone the victim had. Absent that kind of testimony-or some other probative evidence bearing on value-there was simply no way for the delinquency court to say that the $300 threshold for grand theft was met. See, e.g., M.K. v. State, 143 So.3d 428, 431 (Fla. 4th DCA 2014) (holding that victim's testimony was insufficient to establish value of a stolen necklace where the victim "lack[ed] ... familiarity with the quality, length, weight and cost of the stolen necklace" and could only testify to a price that was based on her parent's internet research); K.W. v. State, 13 So.3d 90, 91-92 (Fla. 3d DCA 2009) (holding that testimony from witness who lacked personal knowledge of the value of stolen cell phone was insufficient to establish value in a first-degree petit theft trial where the witness did not know the phone's age, quality, condition, or to what extent its value had depreciated); S.M.M. v. State, 569 So.2d 1339, 1341 (Fla. 1st DCA 1990) (holding that State failed to prove value of stolen jewelry in grand theft prosecution where victim was only able to testify to the price of items a jeweler had indicated were similar to hers). On this evidence, the State could only establish that D.D. committed second-degree petit theft.

D.D. also argues that the State's evidence of the phone's value was not sufficient to meet the $200 threshold for first-degree misdemeanor criminal mischief. See § 806.13(1)(b)(2). Having already established that the State's value evidence could only sustain a conviction for second-degree petit theft under section 812.014, it follows that the same evidence is insufficient to prove first-degree misdemeanor criminal mischief. However, because D.D. failed to raise this particular argument with respect to the criminal mischief count in his motion for judgment of dismissal, it is not preserved for appellate review. See Tillman v. State, 471 So.2d 32, 35 (Fla. 1985) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.").

But that does not bring our analysis to an end. D.D. argues further that even if his sufficiency-of-the-evidence argument on the criminal mischief count is unpreserved, we should nonetheless reverse that finding of delinquency because his trial counsel was ineffective in failing to preserve that argument. Generally, "ineffective assistance of counsel may not be raised on direct appeal." Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). However, on the rare occasion where ineffectiveness is "obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable," we may deviate from the general rule and find ineffective assistance of counsel in a direct appeal. Id.

In this case, there is no conceivable tactical explanation for D.D.'s counsel's failure to raise the exact same sufficiency-of-the-evidence argument for the criminal mischief charge that he did for grand theft. And because the prejudice to D.D. is obvious in this instance-his criminal mischief charge would have been downgraded to a second-degree misdemeanor had counsel preserved the argument-it is clear from the face of our record that D.D.'s trial counsel was ineffective and that D.D. is entitled to relief. See Bagnara v. State, 189 So.3d 167, 172 (Fla. 4th DCA 2016) (finding that counsel's failure to seek judgment of acquittal in grand theft prosecution where the State failed to offer sufficient evidence that the value of a stolen lawn mower exceeded $300 was ineffective assistance on the face of the record); see also Hicks v. State, 41 So.3d 327, 331 (Fla. 2d DCA 2010) (finding ineffective assistance on the face of the record where counsel failed to move for judgment of acquittal in second-degree murder case despite the State's failure to offer evidence showing ill will, hatred, spite, or evil intent).

In sum, because the State's evidence was not sufficient to show that the value of the stolen phone met the threshold necessary to prove the offense of grand theft, the delinquency court erred in denying the motion for judgment of dismissal, and we reverse. Additionally, because D.D.'s counsel was ineffective in failing to challenge the sufficiency of the State's evidence as to the phone's value within the context of the criminal mischief charge, we also reverse the finding that D.D. committed first-degree misdemeanor criminal mischief. On remand, the delinquency court shall enter an order finding that D.D. committed the delinquent acts of second-degree petit theft and second-degree misdemeanor criminal mischief and hold a new disposition hearing. See D.J.S. v. State, 242 So.3d 448, 449-50 (Fla. 2d DCA 2018) ; Perez v. State, 162 So.3d 1139, 1141 (Fla. 2d DCA 2015).

Reversed and remanded with instructions.

CASANUEVA and CRENSHAW, JJ., Concur.