text:
    Carlos Manuel RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4925
    District Court of Appeal of Florida, First District.
    April 16, 2019
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this direct appeal from Appellant's conviction and sentence for aggravated stalking, we affirm in all respects and write only to explain why the trial court did not abuse its discretion by admitting Appellant's text messages to the victim as impeachment evidence.

At the beginning of trial, the parties discussed the admissibility of various text communications between Appellant and his wife, the victim in this case. The court ruled that the text messages could not be admitted during the State's case-in-chief because the State failed to file a timely notice to admit the text messages as collateral crime evidence. However, the court further ruled that this would not prohibit the defense from offering the text messages as impeachment evidence or the State from offering them as evidence during rebuttal.

During its case-in-chief, the State presented testimony that after the victim separated from Appellant and obtained an injunction against him for protection against domestic violence, Appellant threatened the victim and her family with death or great bodily harm, showed up unannounced at the victim's workplace, made over 100 phone calls to the victim's office in a single afternoon, and attacked the victim in a pharmacy parking lot.

During the defense's case, Appellant took the stand and testified that the victim called him from work every day and invited him to visit her at work without her boss's knowledge. He further testified that he and the victim went back and forth in their relationship and that the victim never stopped texting and calling him the entire time the injunction was in place. Although he acknowledged calling the victim at work repeatedly, he claimed he was desperate to get her on the phone to calm her down because she was upset about his involvement with other women.

On cross-examination, the State was allowed to introduce, over defense objection, text messages sent by Appellant to the victim as impeachment evidence. In those messages, Appellant demanded to know why the victim would not answer the phone at work when he called and threatened to call her office nonstop regardless of any restraining order, come over to her office, and beat her like she was a man. Defense counsel subsequently moved for a mistrial on the ground that those text messages were sent prior to the entry of the injunction. The trial court denied the motion on the ground that the text messages were proper impeachment evidence.

"A witness may open the door during the direct testimony to impeachment concerning matters that would not otherwise be permissible." Charles W. Ehrhardt, Florida Evidence § 608.1 (2018 ed.). "Under this concept, the adverse party may be able to introduce extrinsic evidence to contradict a specific factual assertion made during the testimony of the witness, even if it pertains to an otherwise collateral matter." Id . Thus, "a testifying defendant may open the door to impeachment with otherwise inadmissible collateral crime evidence by 'inaccurately testifying to material facts.' " Brookins v. State , 228 So.3d 31, 37 (Fla. 2017). To do so, "the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled." Robertson v. State , 829 So.2d 901, 913 (Fla. 2002) (quoting Bozeman v. State , 698 So.2d 629, 630 (Fla. 4th DCA 1997) ). "The standard of review of a determination of whether a party has opened the door is abuse of discretion as limited by the rules of evidence." Maharaj v. State , 78 So.3d 63, 66 (Fla. 4th DCA 2012).

Here, Appellant claims that the trial court abused its discretion by admitting Appellant's text messages to the victim as impeachment evidence because those messages did not contradict his testimony and were sent before the entry of the injunction. The State correctly responds that Appellant opened the door to cross-examination about those text messages because they contradicted Appellant's testimony that the victim repeatedly initiated contact with him because she wanted them to get back together. The texts showed it was Appellant who insisted on communicating with the victim despite her efforts to avoid any further contact with him. The trial court did not abuse its discretion by allowing the State to introduce this evidence to correct Appellant's inaccurate and misleading testimony regarding the nature of his relationship with the victim.

AFFIRMED.

Wolf, Winokur, and Jay, JJ., concur.


source: Caselaw Access Project

author: ATKINSON, Judge.

license: Public Domain

text:
    Joaquin DOMINGUEZ and Carmen Dominguez, Petitioners, v. CITIZENS PROPERTY INSURANCE CORPORATION, Respondent.
    Case No. 2D18-768
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    Steven E. Gurian and Anthony M. Lopez of Marin Eljaiek, Lopez, & Martinez P.L., Coconut Grove, for Petitioners.
    J. Pablo Cáceres of Butler, Weihmuller, Katz, Craig, LLP, Tampa, for Respondent.
   ATKINSON, Judge.

Joaquin and Carmen Dominguez seek certiorari review of two nonfinal orders partially denying their motions for protective order and objections to the subpoenas duces tecum directed to (1) the legal assistant and (2) the records' custodian of the law firm that they retained as counsel. Concerning the first order, the trial court departed from the essential requirements of the law by finding that the homeowners waived their attorney-client privilege when the legal assistant contacted their insurer, Citizens Property Insurance Corporation, to report the claim. With respect to the second order, the trial court departed from the essential requirements of the law by failing to conduct an in camera inspection of the purportedly privileged documents prior to ordering their production. As such, we must grant the writ of certiorari and quash these portions of the orders.

Background

The homeowners filed suit against Citizens seeking money damages for breach of an insurance contract and a declaratory judgment that the insurance policy covered their property loss. Before contacting Citizens about water damage sustained on a property that they lease to a third party, the homeowners retained counsel. One of the firm's legal assistants contacted Citizens to report the loss. Citizens made a determination that the loss was not covered under the policy. The homeowners subsequently filed suit.

During the course of discovery, Citizens filed and served a subpoena duces tecum with deposition on the legal assistant who had first reported the homeowners' loss. It also filed and served a subpoena duces tecum without deposition on the records custodian for the law firm. As a result, the homeowners filed two motions for protective order and objections to subpoena duces tecum, in which they claimed that the information sought by Citizens was not discoverable pursuant to the attorney-client and/or work-product privileges.

The trial court denied these motions in part. In its written order, the court concluded that "there was a waiver with respect to some attorney client communications" and permitted Citizens to depose the legal assistant concerning limited topic areas: why she told Citizens there was water damage at the covered premises; where she obtained the facts concerning the water damage; and the dates on which she obtained those facts. It also denied, in whole or in part, the motion to quash the subpoena duces tecum as to three of Citizens' requests: (1) the firm's papers or electronic records regarding the subject property or the loss pre-lawsuit; (2) paper or electronic records relating to communications between the legal assistant and the homeowners regarding the September 22, 2016, loss except those regarding compensation; and (3) paper or electronic records provided to the legal assistant and the firm by the homeowners or any of their representatives prior to the lawsuit being filed.

In a separate order, the trial court directed the firm's records' custodian to produce some of the documents sought by Citizens: (1) documents relating to communications between the firm and the homeowners regarding the September 2, 2016, loss, including the initial referral of the claim and facts regarding the claim; and (2) documents generated or created by the firm regarding the loss or the subject property prior to the lawsuit being filed except those regarding compensation. Upon denial of their motions, the homeowners sought certiorari review of these nonfinal orders.

Certiorari review is the proper vehicle to challenge nonfinal orders directing the disclosure of communications presumptively covered by the attorney-client privilege. See Robichaud v. Kennedy, 711 So.2d 186, 187 (Fla. 2d DCA 1998) (citing Shell Oil Co. v. Par Four P'ship, 638 So.2d 1050, 1050 (Fla. 5th DCA 1994) ); see also Montanez v. Publix Super Mkts., Inc., 135 So.3d 510, 512 (Fla. 5th DCA 2014) ("An order that erroneously compels a party to produce privileged information is a classic example of a discovery order subject to certiorari review because the harm caused by the disclosure of privileged information is irreparable." (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995) ) ). To establish entitlement to a writ of certiorari, "a petitioner must demonstrate that the order constitutes a departure from the essential requirements of the law and results in material injury for the remainder of the case that cannot be corrected on appeal." Paton v. GEICO Gen. Ins. Co., 190 So.3d 1047, 1052 (Fla. 2016).

Here, the trial court departed from the essential requirements of the law in two ways: (1) by ordering the production of documents responsive to requests that appear on their face to potentially invade the attorney-client or work-product privileges without first conducting an in camera inspection and (2) by finding that the homeowners had waived their attorney-client privilege.

To the extent that Citizens sought documents relating to communications between the firm and the homeowners regarding the loss, this is an attempt to invade the attorney-client privilege on its face. The trial court erred by ordering the production of these documents without first conducting an in camera review of the documents responsive to this request to determine whether the attorney-client privilege applied. See AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So.3d 510, 511 (Fla. 2d DCA 2015) ; Patrowicz v. Wolff, 110 So.3d 973, 974 (Fla. 2d DCA 2013) ("A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure." (citing Bennett v. Berges, 84 So.3d 373, 375 (Fla. 4th DCA 2012) ) ); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (holding that the trial court erred by failing to conduct an in camera inspection before ordering the production of documents pursuant to a request that sought attorney-client communications on its face).

The trial court also departed from the essential requirements of the law in ordering the production of documents generated or created by the firm before reviewing the documents responsive to that request to determine whether they were the firm's work product. The phrase "generated or created by the firm" provides for the production of documents that may disclose the mental impressions of the homeowners' counsel. This type of "opinion work product is generally afforded absolute immunity" since "proper representation demands that counsel be able to assemble information and plan her strategy without undue interference." Acevedo v. Doctors Hosp., Inc., 68 So.3d 949, 953 (Fla. 3d DCA 2011) ; accord State v. Rabin, 495 So.2d 257, 263 (Fla. 3d DCA 1986) ("The protection of an attorney's mental process is essential to the proper functioning of the adversary system.").

Unlike the order relating to the records' custodian, the order directed toward the subpoena duces tecum to the firm's legal assistant does not actually order the production of documents; it merely denies, in part, the motion for protective order and objection. Under the circumstances of this case in its current procedural posture, we cannot make a determination that the trial court departed from the essential requirements of the law by denying the homeowners' motion for protective order related to these requests. However, the trial court must still conduct an in camera inspection of any of the specific, responsive documents that the homeowners claim are privileged before requiring their production. See generally Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068 (Fla. 2011) ("Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege."). As to the order relating to the firm's legal assistant, the trial court departed from the essential requirements of the law by concluding that the homeowners had waived the attorney-client privilege merely by having the law firm report the loss. Such a waiver can occur when a party bases its claim on the very matters that it later claims are privileged. See, e.g., Savino v. Luciano, 92 So.2d 817, 819 (Fla. 1957) (finding an express or implied waiver of accountant-client privilege by seeking an accounting of money due under an employment contract). However, this exception to the general rule that a party does not waive attorney-client privilege merely by bringing or defending a suit only applies "where the party seeking to avoid discovery has injected into the litigation issues going to the very heart of the litigation."

Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983). While this might be the case for some of the putatively privileged communications and information-e.g., those that made their way into the insurance claim that was ultimately submitted to the insurer-this may very well not have been true of other communications made by, or information conveyed from, the homeowners to their law firm.

Attorney-client privilege might not apply to facts that were the basis of the homeowners' loss, but what the homeowners said to their law firm is covered, regardless of whether they might have been talking about facts that themselves could be the subject of inquiry during discovery. In other words, the prospect that some or all of the facts discussed by the attorney and the client might ultimately have been included in the insurance claim itself does not vitiate the privilege of what would be otherwise protected communications that relate to those facts. Cf. Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2d DCA 2003) ("[T]he simple fact that Jenney raised the issue [of intent] is not sufficient to waive his attorney-client privilege.").

Although the homeowners did not automatically waive their privilege by retaining a law firm to report and settle a property insurance claim, this does not mean that they can shield from discovery the underlying facts concerning the property loss. That is, the homeowners cannot tell the law firm facts about the property loss "in confidence," and then refuse to disclose them when Citizens takes their deposition. See Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ("The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney."); see also Jenney, 846 So.2d at 668 ("[B]ecause Jenney's claim does not necessarily require proof through his conversations with his attorney, the sword and shield doctrine does not apply to waive his attorney-client privilege.").

By finding a waiver, the trial court implicitly concluded that the underlying communications were, in fact, privileged. Citizens contends that no privilege attached in the first instance because neither the legal assistant nor the firm were providing legal services by reporting the loss and presenting the claim to Citizens.

The law does not require an all-or-nothing approach to this inquiry. Depending on the circumstances, some functions undertaken by lawyers might constitute the rendering of legal services for the purposes of invoking the attorney-client privilege, even though such function could have been undertaken by a nonlawyer (e.g., negotiating a complex real estate transaction or a collective bargaining agreement). And attorney-client privilege might attach to some communications made in the rendering of legal services, even though the same lawyer might have provided additional nonlegal services related to the same matter. See Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1376 (Fla. 4th DCA 1980). However, given the available facts and our certiorari standard of review, we cannot reach that question regarding the communications at issue here. This nuanced determination may be better made after the required in camera inspection of the specific documents that the homeowners contend are privileged.

To the extent that the order partially denying the homeowners' motion for protective order and objection to the subpoena duces tecum directed to the firm's legal assistant finds a waiver of the attorney-client privilege, it is hereby quashed. The other order concerning the subpoena duces tecum directed to the firm's records custodian is also quashed to the extent it requires the production of documents responsive to requests that appear on their face to potentially invade the attorney-client or work-product privileges without first conducting an in camera inspection.

Certiorari granted, trial court order quashed in part, and case remanded.

KELLY and KHOUZAM, J.J., Concur.

      In the written order, the trial court granted portions of the motion to quash the subpoena duces tecum relating to requests that could be obtained directly from third parties. These portions of the order are not the subject of this appeal.

      Florida Rule of Civil Procedure 1.280(c), made applicable through rule 1.410(e), permits, but does not require, the trial court to order "any party or person provide or permit discovery" if it denies the motion for protective order in whole or in part.

      The homeowners here have not sought to avoid discovery of the facts underlying the property loss. In fact, at the time it served the two subpoenas on the firm and the legal assistant, Citizens had already deposed both homeowners about the source and extent of the water damage.

      Judge Kelly has been substituted for Judge Crenshaw, an original panel member in this proceeding. Judge Kelly has viewed a recording of the oral argument.


author: BLACK, Judge.

text:
    Renaldo CHAMPAGNE a/k/a Renaldo Sampson, DOC #495786, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3072
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    Renaldo Champagne, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa; and Helene S. Parnes, Senior Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   BLACK, Judge.

Renaldo Champagne challenges the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Champagne does not challenge the life sentence imposed on his conviction for robbery with a firearm; he contends only that the twenty-year sentence imposed on his conviction for false imprisonment, a third-degree felony, is illegal. We conclude that Champagne's twenty-year sentence is legal, and we certify a question of great public importance.

Champagne was sentenced under the Criminal Punishment Code, chapter 921, Florida Statutes (2005) (CPC). Section 921.0024(2) states that when "the lowest permissible sentence under the [CPC] exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the [CPC] must be imposed." Champagne asserts that because the lowest permissible sentence under the CPC (LPS) does not exceed the statutory maximum for his primary offense or the collective statutory maximum of his primary and additional offense, his sentences must not exceed the respective statutory maximum for each offense. However, Champagne's interpretation is not supported by the statutory language, and the plain language of the statute must control. We conclude that the LPS is an individual minimum sentence which must be imposed when the LPS exceeds the statutory maximum sentence for each offense and therefore that Champagne's sentence is legal.

I. Background

Champagne was convicted of robbery with a firearm, a first-degree felony punishable by life in prison, see § 812.13(2)(a), Fla. Stat. (2005), and false imprisonment, a third-degree felony, see § 787.02(2), Fla. Stat. (2005). A CPC scoresheet was prepared for sentencing. The robbery count was scored as the primary offense on Champagne's scoresheet, and the false imprisonment count was scored as an additional offense. Champagne's total sentence points were 348.2, and the LPS was 240.15 months in prison. The court found that Champagne qualified as a three-time violent felony offender and imposed a life sentence on the robbery count. The court then sentenced Champagne to twenty years (240 months) in prison on the false imprisonment count.

In his postconviction motion, Champagne argued that his twenty-year sentence is illegal based on his reading of section 921.0024(2) and Butler v. State, 838 So.2d 554 (Fla. 2003). He asserted that because the 240.15-month LPS does not exceed the statutory maximum of life for the primary offense, his sentence on the additional offense, a third-degree felony, cannot exceed the statutory maximum of five years. Champagne's interpretation of the law would mean that in instances like his, where the LPS does not exceed the statutory maximum for the primary offense, the sentences for any additional offenses must not exceed the individual statutory maximums for those offenses. Essentially, Champagne contends that the LPS is a collective minimum sentence.

The postconviction court denied Champagne's motion, finding that section 921.0024 does not require the LPS to be imposed "only if it exceeds the statutory maximum for the primarily scored offense. Rather, the [c]ourt must look at each individual offense and compare the statutory maximum for that specific offense to the [LPS] pursuant to the scoresheet." Thus, it concluded that because the 240.15-month LPS exceeded the five-year statutory maximum for false imprisonment, Champagne's twenty-year sentence is legal. We agree.

II. Standard of Review

Where a sentencing error involves "a violation of the sentencing maximums provided by the [l]egislature," it may be corrected by a rule 3.800(a) motion. Martinez v. State, 211 So.3d 989, 991-92 (Fla. 2017) (quoting Wright v. State, 911 So.2d 81, 84 (Fla. 2005) ). "[A] sentence that patently fails to comport with statutory or constitutional limitations is by definition 'illegal.' " Id. at 991 (quoting Plott v. State, 148 So.3d 90, 94 (Fla. 2014) ). Champagne's twenty-year sentence is clearly in excess of the maximum provided by section 775.082, Florida Statutes (2005) ; therefore, we must examine the applicable language of the CPC and existing precedent to determine if Champagne's sentence is also at odds with the CPC. See Nat'l Deaf Acad., LLC v. Townes, 242 So.3d 303, 309 (Fla. 2018) ("[W]e begin with the statutory definition ... enacted by the [l]egislature and interpreted by this Court and the district courts of appeal. We then examine how that statutory definition has been applied by courts ...."). "Questions of statutory interpretation are reviewed de novo," and "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, ... the statute must be given its plain and obvious meaning." Eustache v. State, 248 So.3d 1097, 1100 (Fla. 2018) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ).

III. Applicable law

A. Statutory language

The CPC provides that "[t]he primary purpose of sentencing is to punish the offender." § 921.002(1)(b). It also provides that "[t]he penalty imposed is commensurate with the severity of the primary offense and the circumstances surrounding the primary offense" and that "[t]he severity of the sentence increases with the length and nature of the offender's prior record." § 921.002(1)(c), (d). "Primary offense" is defined as the "the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing." § 921.0021(4). "Prior record" is defined as "a conviction for a crime committed ... prior to the time of the primary offense." § 921.0021(5). Additional offenses, those "for which an offender is convicted and which [are] pending before the court for sentencing at the time of the primary offense," § 921.0021(1), are scored and included in the total sentence points calculation, which is then used solely to determine the offender's LPS, see § 921.0024(1)(a), (2). Additional offenses are also referenced as part of the CPC's sentencing range: "The permissible range for sentencing shall be the [LPS] up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing." § 921.0024(2). The LPS "is assumed to be the lowest appropriate sentence for the offender being sentenced," § 921.00265(1), and it "is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure," § 921.0024(2).

However, unlike the CPC's sentencing range which references "the statutory maximum ... for the primary offense and any additional offenses," the CPC's requirement that the LPS be imposed when the LPS "exceeds the statutory maximum sentence" does not reference primary or additional offenses, statutory maximum s, or multiple sentences: "If the [LPS] exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the [CPC] must be imposed." § 921.0024(2); cf. id. ("The [LPS] is any nonstate prison sanction in which the total sentence points equals or is less than 44 points, unless the court determines within its discretion that a prison sentence, which may be up to the statutory maximum s for the offense s committed, is appropriate." (emphasis added) ). But see Fla. R. Crim. P. 3.992(a) ("The maximum sentence is up to the statutory maximum for the primary and any additional offenses as provided in s. 775.082, F.S., unless the [LPS] exceeds the statutory maximum." (emphasis added) ). The CPC also provides that the trial court "may impose a sentence up to and including the statutory maximum for any offense," § 921.002(1)(g), and expressly allows for concurrent or consecutive sentencing, § 921.0024(2).

The LPS is a minimum sentence; the question is whether it is an individual minimum sentence, required to be imposed on each offense at sentencing for which it exceeds that offense's statutory maximum, or a collective minimum sentence. If the LPS is an individual minimum sentence, our analysis is complete and the LPS was legally imposed. But as is apparent, the language of section 921.0024(2) is not consistent; both singular and plural terms are used, and the terms statutory maximum and statutory maximum sentence are used without explanation or definition. Although the supreme court has interpreted section 921.0024(2), it has not addressed the issue presented to us. And as will be seen, courts have not consistently applied the language.

B. Precedent

1. Butler v. State, 838 So.2d 554 (Fla. 2003)

In Butler, the supreme court determined that sections 921.002(1)(g) and 921.0024(2), respectively providing that a court may sentence an offender up to the statutory maximum for any offense and that a court must impose the LPS where it exceeds the statutory maximum sentence, are not in conflict and can be harmonized. 838 So.2d at 556. In so concluding, the supreme court held that "when section 921.0024(2) applies so that the statutory maximum sentence as provided in section 775.082, Florida Statutes (2002), is exceeded by the [LPS], the [LPS] becomes the maximum sentence which the trial judge can impose." Id.

Butler was sentenced to the LPS, 75.6 months in prison, on his possession of cocaine conviction. He subsequently filed a postconviction motion alleging that the 75.6-month sentence was illegal because it exceeded the five-year statutory maximum sentence for third-degree felonies. He did not challenge his sentences on the possession of cannabis, driving with a suspended license, resisting arrest without violence, and driving under the influence convictions. The opinion is silent as to the classifications of those offenses; however, they all appear to be misdemeanors. See id. at 555. Therefore, the possession of cocaine conviction necessarily would have been the primary offense on Butler's CPC scoresheet.

Given the facts in Butler, the court did not determine whether the LPS becomes the maximum sentence a court can impose-in fact, the sentence which must be imposed in the absence of a basis for downward departure-for each offense at sentencing for which the LPS exceeds that individual offense's statutory maximum. It had no reason to discuss whether the LPS is an individual or collective minimum or how to apply the LPS to multiple felonies at sentencing.

2. Moore v. State, 882 So.2d 977 (Fla. 2004)

In Moore, the supreme court addressed whether Tripp credit must be awarded to probation violators sentenced under the CPC. In holding that Tripp does not apply to CPC sentences, the court addressed conceptual and procedural differences between the CPC and its predecessor, the sentencing guidelines. The court recognized that "a single sentencing range is not established under the CPC as occurred under the prior guidelines." Id. at 985. "[U]nder the CPC, together the individual offenses only establish the minimum sentence that may be imposed; a single maximum sentence is not established-each individual offense has its own maximum sentence, namely the statutory maximum for that offense." Id."The maximum sentence for each offense is determined solely by the statutory maximum for the individual offense[ ]." Id. That is, "the CPC has no ceiling other than the statutory maximum punishment ... and permits a consecutive sentence for each offense." Id. at 986 (Pariente, C.J., concurring).

Thus, the supreme court seems to have determined that the number of permissible sentencing ranges at a sentencing hearing is determined by the number of convictions pending for sentencing. But Moore does not address how to apply the directive to impose the LPS when it exceeds the statutory maximum sentence. Nor does it address whether the LPS is an individual minimum sentence or whether the "statutory maximum" referenced in the range is different than the "statutory maximum sentence" in the directive of section 921.0024(2).

IV. Analysis

Although courts have applied the language of section 921.0024(2) and the holdings of Butler and Moore, they have often done so inconsistently, with conflicting application and results, and without analysis. Compare Holland v. State, 953 So.2d 19, 20 (Fla. 2d DCA 2007) ("[T]he points on the scoresheet totaled 1090 points and the [LPS] was 796.5 months' or 66.3 years' incarceration for this collection of second-degree felonies." (emphasis added) ), Charles v. State, 204 So.3d 63, 65, 65 n.3 (Fla. 4th DCA 2016) (noting that the offender's LPS was 79.8 months (6.65 years) yet he was sentenced to five years for the possession of Ecstasy/MDMA conviction), Robinson v. State, 160 So.3d 521, 522 (Fla. 5th DCA 2015) (reversing denial of postconviction motion in part and stating that Robinson pleaded to three third-degree felonies in exchange for "a sentence equal to the [LPS] calculated on the scoresheet" (emphasis added) ), and Cliatt v. State, 970 So.2d 902, 902 (Fla. 5th DCA 2007) (stating that offender's LPS was 53.25 years in prison, he was sentenced to "a composite sentence" of 70 years followed by life probation, and that "[b]ecause the trial court did not exercise its discretion to impose life imprisonment, it could not impose a sentence in which the total of the incarcerative term and the probationary term exceeded the maximum sentence for a particular offense" (citing Carter v. State, 920 So.2d 735, 736 (Fla. 5th DCA 2006) ) ), with Moss v. State, 925 So.2d 1131, 1133 (Fla. 2d DCA 2006) ("[T]he sentences imposed by the trial court in this case exceeded those authorized by the [CPC]."), Castillo v. State, 244 So.3d 1098, 1109-1100, 1105 (Fla. 4th DCA 2018) (reversing with instructions that the trial court "impose the correct sentence required by the [CPC] of 237.45 months, or 19.78 years," on a second-degree felony conviction which, given the crimes and the arguments raised, must have been an additional offense), Cunningham v. State, 22 So.3d 127, 129 (Fla. 4th DCA 2009) (holding that sentences in excess of the statutory maximum for additional offenses at sentencing under the CPC were legal without reference to the LPS), Wheeler v. State, 864 So.2d 492, 492-93 (Fla. 5th DCA 2004) (reversing offender's sentences on five counts of burglary where the sentences exceeded the statutory maximum of fifteen years for each count and stating that "[t]he [LPS] for each of the burglaries was 165.6 months, or 13.80 years" (emphasis added) ), and Demar v. State, 840 So.2d 381, 382 (Fla. 1st DCA 2003) (reviewing two convictions and sentences, reversing the sentence on third-degree felony child abuse, and stating that "the maximum sentence the trial court could have imposed in the instant case is [the LPS of] 64.5 months" without distinguishing between the two convictions). The inconsistencies may be strictly the result of courts addressing only the discreet issues presented and the terms or portions of section 921.0024(2) about which they were asked. Nonetheless, the results of these cases and their applications of section 921.0024(2) are often conflicting and, at a minimum, imprecise.

Given the statutory language and Moore and Butler, we know that the LPS is a minimum sentence; that it must be imposed where it exceeds the statutory maximum sentence, absent a basis for departure; that the maximum sentence for each offense is the statutory maximum for the individual offense; and that where it exceeds the statutory maximum sentence, the LPS becomes the maximum sentence which may be imposed. What has not been analyzed, except in two concurrences and one dissent, is how to interpret and apply the language of section 921.0024(2) where there are multiple convictions at sentencing. See Colon v. State, 199 So.3d 960, 964 (Fla. 4th DCA 2016) (Warner, J., concurring specially); Dennard v. State, 157 So.3d 1055, 1056-57 (Fla. 4th DCA 2014) (Conner, J., concurring specially); Id. at 1057-61 (Warner, J., dissenting). And although it has been stated that section 921.0024(2) "is unclear on how a sentence should be imposed in cases where there are multiple offenses for sentencing and the sentencing points result in a[n] [LPS] above the statutory maximum," we disagree. See Dennard, 157 So.3d at 1056-57 (Conner, J., concurring specially) (discussing two potential interpretations of section 921.0024(2) as requiring imposition of the LPS "for each offense" for which it exceeds that offense's statutory maximum or as requiring imposition of the LPS where it exceeds the primary offense's statutory maximum); see also Colon, 199 So.3d at 964 (Warner, J., concurring specially) (discussing application of section 921.0024(2)'s directive when the statutory maximum of the primary offense exceeds the LPS but the additional offense statutory maximum is less than the LPS); Dennard, 157 So.3d at 1059-61 (Warner, J., dissenting) (interpreting Butler and the language of section 921.0024(2) as requiring the court to sentence the offender to at least the LPS on the primary offense where the primary offense's statutory maximum exceeds the LPS but prohibiting the court from sentencing the offender to the LPS on an additional offense where the LPS exceeds the statutory maximum for the additional offense and determining that in light of Moore, the LPS "is the collective total minimum sentence for all offenses" and "not the sentence which must be applied to each offense at sentencing" such that section 921.0024(2)'s directive "appl[ies] to the collective total statutory maximum of the individual sentences").

Based on the language of section 921.0024(2) and bounded by the language of Butler and Moore, we conclude that the LPS is an individual minimum sentence which applies to each felony at sentencing for which the LPS exceeds that felony's statutory maximum sentence, regardless of whether the felony is the primary or an additional offense. See § 1.01(1), Fla. Stat. (2005) ("In construing [Florida] statutes and each and every word, phrase, or part hereof ... [t]he singular includes the plural and vice versa."); Fla. R. Crim. P. 3.701(d)(12) ("A sentence must be imposed for each offense."); Parks v. State, 765 So.2d 35, 35 (Fla. 2000) ("[G]eneral sentences have been prohibited in Florida since Dorfman v. State, 351 So.2d 954 (Fla. 1977)." (quoting Inclima v. State, 570 So.2d 1034, 1034 (Fla. 5th DCA 1990) ) ). The alternative interpretation, that the LPS is a collective minimum sentence, while seemingly reasonable, is not premised on the statutory language or clearly reconcilable with Butler and Moore.

Although factually distinguishable, Butler provides that when the LPS exceeds the statutory maximum sentence the LPS becomes "the maximum sentence which the trial judge can impose." 838 So.2d at 556. We acknowledge that a strict application of that holding in multiple-conviction-at-sentencing cases would mean that when it is the maximum sentence which must be imposed, the LPS is a collective sentence. However, Butler has not been applied by any court in such a way, and we do not believe that Butler requires such an application. See Dennard, 157 So.3d at 1058 (Warner, J., dissenting). As noted previously, because Butler appears to have involved misdemeanor additional offenses, to which the CPC does not apply and for which consecutive sentencing would be impossible, Butler's holding in this context is questionable.

Likewise, while Moore did not address the directive of section 921.0024(2) requiring imposition of the LPS when it exceeds the statutory maximum where multiple convictions are before the court for sentencing, the court's holding that once the minimum sentence is established the offenses are no longer interrelated is important to our conclusion. Moore clearly holds that under the CPC there is not a single sentencing range; rather, each offense has its own statutory maximum sentence such that the range may differ for each offense. But where the LPS exceeds the offense's statutory maximum sentence, there is no range; the LPS must be imposed. See Butler, 838 So.2d at 556 ; Dennard, 157 So.3d at 1057 (Conner, J., concurring specially) (highlighting the use of singular terms, i.e., statutory maximum rather than statutory maximums, as well as the absence of limiting or clarifying language, i.e., restricting mandatory imposition of the LPS to circumstances where the LPS exceeds the statutory maximum for the primary and any additional offenses on the scoresheet). But cf. § 921.002(1)(h) ("A sentence may be appealed on the basis that it departs from the [CPC] only if the sentence is below the [LPS] or as enumerated in s. 924.06(1)." (emphasis added) ), § 924.06(1)(e), Fla. Stat. (2005) ("A defendant may appeal from ... [a] sentence imposed under [the CPC] which exceeds the statutory maximum penalty provided in s. 775.082 for an offense at conviction, or the consecutive statutory maximums for offenses at conviction, unless otherwise provided by law." (emphasis added) ).

Although this court has not previously analyzed the statutory language or how it is to be applied, it has cited Butler and section 921.0024(2) and remanded for resentencing where the sentences were illegal, exceeding both the LPS and the statutory maximums. See Perkins v. State, 123 So.3d 678, 678 (Fla. 2d DCA 2013) ; Thompson v. State, 79 So.3d 208, 208 (Fla. 2d DCA 2012) ; Horne v. State, 6 So.3d 99, 101 (Fla. 2d DCA 2009), clarified by Horne v. State, 35 So.3d 40 (Fla. 2d DCA 2010). Our conclusion that the LPS is an individual minimum sentence is consistent with these cases. See also Martinez v. State, 216 So.3d 734, 738 (Fla. 4th DCA 2017) (en banc) (addressing a postconviction claim of manifest injustice and stating that "[u]nder the CPC, given the total sentencing points, the trial court was required, absent a valid reason for departure, to sentence the defendant to the [LPS] for each crime" and that "[o]nly the State's agreement to cap [the offender's] sentence ... enabled the trial court to depart from imposing the [LPS] for both counts" (emphasis added) (citing § 921.0024(2), Fla. Stat. (2007) ) ); Busbee v. State, 187 So.3d 1266, 1268-69 (Fla. 1st DCA 2016) (concluding, in part, that the LPS was required to be imposed on each of two third-degree felony convictions, neither of which would have been the primary offense where a second-degree felony conviction was also pending before the court for sentencing, stating "[p]er section 921.0024(2) and Butler, [the LPS] becomes the required sentence" for both third-degree felony convictions not subject to habitual felony offender enhancement). But see Colon, 199 So.3d at 964 (Warner, J., concurring specially) ("[I]n this case, as the statutory maximum for [the primary offense] was life, well in excess of the LPS, sentencing appellant to the LPS for the primary offense satisfies the statutory directive of section 921.0024(2). The sentences for the remaining third degree felonies should not exceed the statutory maximum for each crime."); Dennard, 157 So.3d at 1060-61 (Warner, J., dissenting) (determining that the directive of section 921.0024(2) can be harmonized with the language from section 921.002(1)(g) that the trial court "may impose a sentence up to and including the statutory maximum for any offense" and courts may impose concurrent or consecutive sentences, directing "consecutive sentencing to achieve an LPS without exceeding the statutory maximum for any one offense"); but cf. Fla. R. Crim. P. 3.992(a) ("The maximum sentence is up to the statutory maximum for the primary and any additional offenses as provided in s. 775.082, F.S., unless the [LPS], exceeds the statutory maximum."); Walsh v. State, 198 So.3d 783, 785, 788 (Fla. 2d DCA 2016) ("In case 2D14-4735, the trial court sentenced Mr. Walsh to the [LPS] of 18.5 years for count one, 15 years consecutive for count two, 15 years consecutive for count three, and 15 years each for counts four to ten concurrent to counts one to three, for a total of 48.5 years. In case 2D14-4920, the trial court sentenced him to 15 years for each of the seven counts .... [T]he sentences imposed on Mr. Walsh are legal." (emphasis added) ).

It is evident that the effect of section 921.0024(2)'s directive differs significantly if the LPS is an individual minimum sentence rather than a collective minimum sentence. Would an offender convicted in multiple cases of multiple counts be in a better position for sentencing if he is sentenced on each case individually rather than at one sentencing hearing where all convictions appear on a single scoresheet? Could counsel be deemed ineffective for failing to advise his client of this option and its ramifications? The factors potentially at issue are indeterminable.

V. Conclusion

We affirm the postconviction court's order and conclude that Champagne's sentence on the false imprisonment conviction is legal. Recognizing the importance of the issue, we certify the following question:

IS THE LOWEST PERMISSIBLE SENTENCE AS DEFINED BY AND APPLIED IN SECTION 921.0024(2), FLORIDA STATUTES (2017), AN INDIVIDUAL MINIMUM SENTENCE AND NOT A COLLECTIVE MINIMUM SENTENCE WHERE THERE ARE MULTIPLE CONVICTIONS SUBJECT TO SENTENCING ON A SINGLE SCORESHEET?
Affirmed; question certified.

KELLY and LUCAS, JJ., Concur.

      A single scoresheet is prepared "for each defendant to determine the permissible range for the sentence that the court may impose," and the scoresheet "must cover all of the defendant's offenses pending before the court for sentencing." § 921.0024(3); see also Fla. R. Crim. P. 3.704(d)(2). An exception to the single scoresheet requirement applies where some of the offenses at sentencing are subject to enhancement. See Fla. R. Crim. P. 3.704(d)(1) ; State v. Collins, 985 So.2d 985, 991 (Fla. 2008) ("Habitual offender sentencing is now separate from both the sentencing guidelines and sentencing under the [CPC].").

      Although he was noticed as a habitual felony offender, habitual violent felony offender, and violent career criminal (VCC), and the court found that he qualified for each designation, the court only sentenced Champagne as a three-time violent felony offender and a VCC. The propriety of listing the robbery as the primary offense, given those enhancements, has not been raised. See § 775.084(4)(h), Fla. Stat. (2005) ("A sentence imposed under this section is not subject to s. 921.002."); see also Fla. R. Crim. P. 3.704(b) ("Existing case law construing the application of sentencing guidelines will continue as precedent unless in conflict with the provisions of this rule or the 1998 [CPC]."); Olsen v. State, 791 So.2d 558, 560 (Fla. 2d DCA 2001) (restating that it is improper to include habitualized offenses on a scoresheet); Sheffield v. State, 214 So.3d 763, 764 (Fla. 1st DCA 2017) ("Florida appellate courts repeatedly have held that when the trial court imposes a habitual offender sentence for an offense, the trial court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines scoresheet."). However, we note that "[s]ection 921.0021 does not differentiate original sentencing proceedings ... and resentencing proceedings." Sanders v. State, 35 So.3d 864, 869 (Fla. 2010).

      Neither the State, the sentencing court, nor the postconviction court addressed the difference between the LPS of 240.15 months and the sentence of 240 months.

      A departure sentence is one "that decreases an offender's sentence below the [LPS]." § 921.00265(2).

      The CPC expressly states that it applies "to all felony offenses, except capital felonies, committed on or after October 1, 1998," § 921.002, but it also allows for misdemeanors to be scored as additional offenses and prior record, § 921.0024(1)(a); see Fudge v. State, 791 So.2d 1186, 1187 (Fla. 5th DCA 2001) ("[M]isdemeanors cannot be scored as primary offenses at conviction.").

      Tripp v. State, 622 So.2d 941 (Fla. 1993).

      Additionally, some cases have referenced the maximum sentence in connection with the LPS. See, e.g., Fernandez v. State, 199 So.3d 500, 503 (Fla. 2d DCA 2016) (stating that although the LPS would have been reduced under a corrected scoresheet, the maximum sentence remained the same collective maximum); State v. Hall, 47 So.3d 361, 364 n.4 (Fla. 2d DCA 2010) ("Although it is true that [the LPS] exceeds the statutory maximum sentence for a single grand theft, it does not exceed Ms. Hall's maximum sentence under her scoresheet, which is ten years' imprisonment.").

      We recognize that our conclusion may result in the State successfully appealing additional-offense sentences which are individually less than the LPS and for which a basis for departure has not been established. See § 921.002(1)(h) ("A sentence may be appealed on the basis that it departs from the [CPC] only if the sentence is below the [LPS] ...."), § 924.07(1)(i), Fla. Stat. (2017) ("The State may appeal from ... [a] sentence imposed below the [LPS] established by the [CPC] under chapter 921.").

      See § 775.08(2); Kittles v. State, 31 So.3d 283, 284-85 (Fla. 4th DCA 2010) ; see also Bautista v. State, 128 So.3d 117, 118 (Fla. 4th DCA 2013) ("The defendant's first degree misdemeanor conviction was not subject to the [CPC]." (citing § 921.002, Fla. Stat. (2004) ) ).

      Martinez was convicted of two counts of DUI manslaughter, both second-degree felonies; one count of DUI with serious bodily injury, a third-degree felony; and one count of DUI with damage to property or person, a first-degree misdemeanor. 216 So.3d at 735. Although the Martinez opinion states that the trial court was required to impose the LPS "for each crime" absent a basis for departure, the opinion does not address the third-degree felony conviction; it states only that the two counts of DUI manslaughter require imposition of the LPS. There is no explanation for why the LPS would apply to those felonies, one of which was necessarily the primary offense and the other an additional offense, but not to the DUI with serious bodily injury count, also a felony additional offense.

      The remaining convictions at sentencing were subject to habitual felony offender (HFO) enhancement, Busbee, 187 So.3d at 1269-71, and therefore not subject to the CPC, § 775.084(4)(h) ; see Collins, 985 So.2d at 991. The opinion does not indicate whether the HFO enhanced convictions were included on the scoresheet used to calculate the LPS. It indicates only that the court found "no error" in the LPS calculation. Id. at 1268.

      The myriad of possibilities affecting sentencing under the CPC, both factually and legally, is greater than what we can address here. We have noted some of the nuances potentially applicable to Champagne's case, particularly as to VCC sentencing. We acknowledge that the supreme court has "verified the constitutionality of the CPC," at least as to the issues raised by the offender and considered by the court. See Bryant v. State, 148 So.3d 1251, 1257 (Fla. 2014) (citing Hall v. State, 823 So.2d 757, 759 (Fla. 2002) ). In Hall, the court held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was inapplicable to Hall's case: first, there was no Apprendi violation "[b]ecause the sentence for each of Hall's offenses did not exceed the statutory maximum"-his penalties were not increased beyond the statutory maximum-and therefore, there was no requirement for a jury finding; and second, "in [Hall's] case" because the LPS was below the statutory maximum for the third-degree felony offenses, the CPC did not create " 'wandering' or 'floating' statutory maximums" in violation of the due process principles expressed in Apprendi. Hall, 823 So.2d at 764-65. We are not faced with the question of whether an Apprendi violation exists if the offender is sentenced on multiple convictions to an LPS above the individual statutory maximums where only one (or only some) of the offenses were assessed victim injury points by the jury or juries. See Smallridge v. State, 904 So.2d 601, 606 (Fla. 1st DCA 2005) ; see generally Plott, 148 So.3d at 95 ("[W]e hold that upward departure sentences that are unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to comport with constitutional limitations, and consequently, the sentences are illegal under rule 3.800(a)."). Likewise, we are not faced with the possibility of double jeopardy or due process violations where the points assessed on the primary offense are used to reach the total sentencing points which are then used to calculate the LPS and the LPS is imposed on each offense at sentencing. See Hall, 823 So.2d at 761-62, 764.


author: PER CURIAM.

text:
    Luis Carlos RODRIGUEZ, Petitioner, v. STATE of Florida and Bryan Holt, Chief of Osceola Corrections, Respondents.
    Case No. 5D19-1114
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 24, 2019
    Robert Wesley, Public Defender, and Sarah L.B. Jordan, Assistant Public Defender, Kissimmee, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    No Appearance for other Respondent.
   PER CURIAM.

Luis Carlos Rodriguez seeks a writ of habeas corpus to obtain pretrial release. Rodriguez was arrested and charged with domestic battery and domestic battery by strangulation. At the time of his arrest, he was out on bond on an earlier domestic battery charge. At his initial appearance on the new charges, the first appearance judge ordered Rodriguez to be held without bond on the new charges and revoked his bond in the earlier case.

Section 907.041, Florida Statutes (2018), provides a comprehensive statutory scheme setting forth the circumstances when a trial court may deny bond to a person charged with a crime. State v. Paul, 783 So.2d 1042, 1046 (Fla. 2001). The rules of criminal procedure adopted by the Florida Supreme Court are consistent with and complementary to this legislative scheme, which involves "a comprehensive set of procedures for pretrial detention [that] provide a panoply of protections." Id. at 1048.

Florida Rule of Criminal Procedure 3.131(a) provides: "Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions." If the State does not file a motion seeking pretrial detention at first appearance, or if its motion is facially insufficient, "the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)." Fla. R. Crim. P. 3.132(a). When a defendant commits a new offense while out on bond, the trial court can, sua sponte, revoke the bond in the earlier offense. Parker v. State, 843 So.2d 871, 878 (Fla. 2003). However, " Parker alone cannot be used as a basis to hold a defendant without bond as to any charges for which the defendant was not already on a form of pretrial release." Alexander v. Judd, 930 So.2d 847, 849 (Fla. 2d DCA 2006).

Because the State did not seek pretrial detention and the new charges did not allege a capital or life felony, we grant the petition for writ of habeas corpus and remand to the trial court to set an expedited hearing to determine the issue of pretrial release or detention according to rules 3.131 and 3.132. This decision is without prejudice to the State to file a motion for pretrial detention, should it choose to do so.

PETITION GRANTED.

ORFINGER, WALLIS and GROSSHANS, JJ., concur.

      It was within the first appearance judge's discretion to revoke bond in the earlier case. See Alexander v. Judd, 930 So.2d 847 (Fla. 2d DCA 2006) ; Perry v. State, 842 So.2d 301 (Fla. 5th DCA 2003).


text:
    Antwan T. MANN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D19-430
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    Antwan T. Mann, Crawfordville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Antwan T. Mann seeks a belated appeal of an order retroactively finding him competent to proceed to trial. Mann was originally charged with aggravated battery and felony battery. During the course of representation, Mann's lawyer filed a suggestion of mental incompetence to stand trial. The trial court ordered an examination to determine whether Mann was competent to proceed to trial. The evaluation concluded that while Mann had various mental health issues, he was competent to proceed. At trial, Mann was convicted of two counts of felony battery. The trial court later dismissed one count based on double jeopardy and sentenced Mann as a prison release reoffender on the remaining felony battery count.

On direct appeal, Mann argued that the trial court failed to conduct a hearing and enter an order determining his competency. The State conceded error. This Court remanded for the trial court to make a retroactive competency determination, if possible. See Mann v. State, 254 So.3d 1131 (Fla. 5th DCA 2018). On remand, the trial court conducted the requisite hearing and entered a nunc pro tunc order finding that Mann was competent to proceed at the time of trial. Mann did not timely appeal that order, and he now seeks a belated appeal.

As observed in Pamphile v. State, 260 So.3d 1185, 1185-86 (Fla. 1st DCA 2018), Florida Rule of Appellate Procedure 9.140(b) does not authorize this Court to independently review an order on competency. However, Mann and those in a similar position may challenge a finding of competency through a timely petition for writ of certiorari. See State v. Pettis, 520 So.2d 250, 253 (Fla. 1988) (noting cases in which "the district courts of appeal have granted common law certiorari to quash nonappealable interlocutory orders in criminal cases which departed from the essential requirements of law" (citations omitted) ). However, there is no belated certiorari review. See Owings v. State, 181 So.3d 588, 588 (Fla. 1st DCA 2016).

PETITION DENIED.

COHEN, BERGER and EDWARDS, JJ., concur.

      While Mann's petition is arguably deficient, we elect to address its merits because this is a recurring issue. E.g., Pleasures II Adult Video, Inc. v. City of Sarasota, 833 So.2d 185, 186 (Fla. 2d DCA 2002) (addressing issue that would likely reoccur).

      Counsel represented Mann at that proceeding.

      Mann's allegations, even if timely, were inadequate to warrant certiorari review. See Fla. R. App. P. 9.141(c)(4)(F)(i) (requiring specific allegations "that constitute the basis for entitlement").


author: SMITH, Judge.

text:
    In the INTEREST OF M.G. and A.B., children.
    A.D., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4211
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families.
    Thomasina Moore and Joanna Summers Brunell, Appellate Counsel, Tallahassee, for Appellee Guardian ad Litem Program.
   SMITH, Judge.

A.D. appeals the final judgment terminating her parental rights to her children, M.G. and A.B. Because the trial court abused its discretion in refusing to allow A.D. to appear by telephone and explain her absence from the advisory hearing, we reverse.

At the advisory hearing, A.D.'s attorney advised the court that A.D. was not physically present because she was having car troubles and requested that she be allowed to appear by phone. The Department of Children and Families (Department) maintained that there was a pending warrant for A.D.'s arrest in a criminal case, giving her a motive not to appear, and objected to the request to appear by phone. The court refused the request. After the bailiff sounded the halls to no avail, the Department moved for a consent by default to be entered based on A.D.'s nonappearance. A.D.'s counsel objected, reiterating that A.D. was having car troubles and that A.D. wanted to go to trial and defend against the termination of parental rights petition. The court announced that it was entering a consent by default but would entertain a motion to set aside the default if filed within ten days. A.D. filed a motion the next day. Without ruling on the motion, the court entered a final judgment terminating A.D.'s parental rights.

We begin this analysis by recognizing that the "interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests" in American law. D.M.T. v. T.M.H., 129 So.3d 320, 334 (Fla. 2013) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). "Moreover, the Supreme Court [has] stated that the fundamental liberty interest a parent has in the custody and care of his or her child 'does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.' " J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060, 1064 (Fla. 2000) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ).

Under section 39.801(3)(a), Florida Statutes (2018), parents must be notified of an advisory hearing on a petition to terminate their parental rights, and the notice must meet certain requirements. The advisory hearing is required for the purpose of determining whether parents will consent to termination, advising parents of their right to counsel, appointing counsel and, if necessary, a guardian ad litem for children, and ultimately setting the adjudicatory hearing. See § 39.808, Fla. Stat. (2018). The failure of a parent to personally appear at the advisory hearing constitutes consent by that parent for termination of their parental rights. § 39.801(3)(d). This default provision is necessary to ensure that a petition is not defeated by the parent's neglect of the proceeding and enables trial courts to bring the case to conclusion if the parent elects not to participate. J.B., 768 So.2d at 1067. But "courts should ordinarily refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent's control." C.B. v. Dep't of Children & Family Servs., 990 So.2d 520, 523 (Fla. 2d DCA 2008) (quoting T.L.D. v. Dep't of Children & Family Servs., 883 So.2d 910, 914 (Fla. 2d DCA 2004) (holding public policy favors an adjudication on the merits over a default when balancing the rights of a parent) ).

It is undisputed that A.D. was served with notice of the advisory hearing and was represented by counsel and that the court had previously appointed a guardian ad litem for the children. All that remained at the advisory hearing was to set the matter for an adjudicatory hearing. This was not a case where the parent elected not to participate by their failure to appear at the advisory hearing. Instead, the attorney for A.D. advised the court of A.D.'s desire to appear at the advisory hearing via telephone due to car troubles and advised the court that she wanted to proceed to trial and contest the termination proceedings.

We have previously held it was error for a trial court to default a parent and terminate parental rights based on a parent's failure to personally appear where the parent's counsel appeared at the hearing, advised the court of the extenuating circumstances of the parent's absence, and requested permission for the parent's appearance by telephone. See L.S. v. Dep't of Children & Family Servs., 995 So.2d 516, 517 (Fla. 2d DCA 2008) (concerning a parent's failure to appear at an adjudicatory hearing); accord F.M. v. Dep't of Children & Families, 95 So.3d 378, 381-82 (Fla. 3d DCA 2012) ; B.H., Sr. v. Dep't of Children & Families, 882 So.2d 1099, 1100-02 (Fla. 4th DCA 2004). Under the circumstances presented in this case, the trial court abused its discretion in terminating A.D.'s parental rights based on her nonappearance, without affording her an opportunity to appear by phone for the limited purpose of explaining her absence. After affording such an opportunity, the court could have made a determination on the record as to the reasonableness or genuineness of the explanation. See F.M., 95 So.3d at 382. However, leaving this inquiry for a later day-after entering the final judgment terminating A.D.'s parental rights-was error. Accordingly, we reverse the final judgment terminating A.D.'s parental rights and remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      After this appeal commenced, the trial court held an evidentiary hearing and entered an order on the motion. However, the trial court lacked jurisdiction to do so while this appeal was pending. See, e.g., Beyel Bros. v. Lemenze, 720 So.2d 556, 558 (Fla. 4th DCA 1998) ("[T]he filing of the notice of appeal divested the trial court of jurisdiction to hear a motion that pertained to the underlying final judgment."). Although Florida Rule of Appellate Procedure 9.146(d) provides that a trial court retains jurisdiction "to conduct judicial reviews or other proceedings related to the health and welfare of the child pending appeal," the postjudgment proceedings do not fall within the scope of this rule. As such, the trial court's order on the motion to set aside is a nullity. See Haines v. State, 805 So.2d 972, 973 (Fla. 2d DCA 2001). Although the order on the motion to set aside is not within the scope of review in this appeal, see Fla. R. App. P. 9.110(h), 9.146(a), we note that the preferred procedure would have been for the trial court to rule on the motion prior to entering the final judgment. See, e.g., T.L.D. v. Dep't of Children & Family Servs., 883 So.2d 910, 914 (Fla. 2d DCA 2004). Alternatively, the parties could have requested that this court relinquish jurisdiction to the trial court to rule on the motion and, upon entry of the order, filed a separate notice of appeal. See R.W. v. Dep't of Children & Families, 164 So.3d 15, 17-18 (Fla. 1st DCA 2015).


text:
    Michele L. SMITH and Shannon Douglas Smith, Appellants, v. Vilma RODRIGUEZ, Tracie Maler and J'Makaa Corporation, Appellees.
    Case No. 5D17-3194
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 26, 2019
    William S. Chambers, IV, of Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellants.
    Carol M. Rooney and James K. Hickman, of Butler Weihmuller Katz Craig LLP, Tampa, for Appellees Tracie Maler and J'Makaa Corporation.
    No Appearance for Appellee Vilma Rodriguez.
   PER CURIAM.

Appellants, Michele L. Smith and Shannon Douglas Smith, appeal an order dismissing with prejudice their claims against Appellees, Tracie Maler and J'Makaa Corporation. Appellants argue, inter alia , that the non-reliance provision in their real estate purchase contract does not bar their claims for fraud and violations of chapter 475. We agree and reverse as to Appellants' fraud and chapter 475 claims. We otherwise affirm.

Facts and Procedural History

Appellants entered into a contract to purchase a home from Vilma Rodriguez. After closing, Appellants allege that they discovered, for the first time, numerous defects in the home that were not disclosed and were actively concealed by Rodriguez and the real estate broker, Tracie Maler. As a result, Appellants filed suit against Rodriguez, Maler, and Maler's employer, J'Makaa Corporation.

Appellees moved to dismiss the claims against them relying on a non-reliance provision in the purchase contract. To that end, paragraph 14 of the contract provides in pertinent part:

BUYER AGREES TO RELY SOLELY ON SELLER, PROFESSIONAL INSPECTORS AND GOVERNMENTAL AGENCIES FOR VERIFICATION OF PROPERTY CONDITION, SQUARE FOOTAGE AND FACTS THAT MATERIALLY AFFECT PROPERTY VALUE AND NOT ON THE REPRESENTATIONS (ORAL, WRITTEN OR OTHERWISE) OF BROKER ....

The trial court dismissed the claims against Appellees based upon the above provision, despite the same paragraph providing:

This Paragraph 14 will not relieve Broker of statutory obligations under Chapter 475, F.S., as amended ....

This appeal follows. Appellants' claims against Rodriguez remain pending in the trial court.

Discussion

On appeal, Appellants argue that paragraph 14 does not bar their fraud and violation of chapter 475 claims because it expressly provides that "Paragraph 14 will not relieve Broker of statutory obligations under Chapter 475," citing the first district's decision in Kjellander v. Abbott , 199 So.3d 1129 (Fla. 1st DCA 2016). We agree.

In Kjellander , the court considered the effect of a non-reliance provision with nearly identical language to the contract in this case and concluded that the non-reliance provision did not bar claims for fraudulent misrepresentation and fraudulent concealment. Id. at 1131-32. In so doing, the Kjellander court reasoned that because the plaintiffs had "effectively allege[d]

that the agents violated [chapter 455 and 475's] statutory obligations, those counts were sufficient to withstand the agents' motion to dismiss." Id. at 1132.

As in Kjellander , while the non-reliance provision effectively barred some claims, it did not bar claims based upon violations of chapter 475. While the provision at issue here could have been drafted more artfully, we agree with the Kjellander court's analysis. Appellees have not offered any other reasonable interpretation of this provision, nor can we identify one.

Appellees argue that our decision in Billington v. Ginn-La Pine Island, Ltd. , 192 So.3d 77 (Fla. 5th DCA 2016), is controlling and requires that we affirm the dismissal of the fraud claim. We disagree and find that the non-reliance provision in Billington is distinguishable because it did not include an exception for statutory obligations pursuant to chapter 475.

We also conclude that Appellants sufficiently allege a private cause of action against Appellees pursuant to chapter 475. Cf. Moyant v. Beattie , 561 So.2d 1319, 1320 (Fla. 4th DCA 1990) (holding prospective purchasers whose deposit was stolen by broker's salesperson had standing to bring a private cause of action against broker under chapter 475 regulating real estate brokers and salespersons). In Florida, legislative intent, rather than the duty to benefit a class of individuals, determines "whether a cause of action exists when a statute does not expressly provide for one." Murthy v. N. Sinha Corp. , 644 So.2d 983, 985 (Fla. 1994) (citations omitted). "[I]t is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole." De Armas v. Ross , 680 So.2d 1130, 1131 (Fla. 3d DCA 1996) (quoting State v. Gale Distribs., Inc. , 349 So.2d 150, 153 (Fla. 1977) ).

While chapter 475 does not expressly create a private cause of action, the statutory language strongly implies that one exists. Not only does chapter 475 make several references to a civil cause of action based upon violations of its provisions, it bases recovery from the Real Estate Recovery Fund upon obtaining a final judgment for such violations. § 475.483(1)(a), Fla. Stat. (2018). Reading chapter 475 as a whole, we conclude that Moyant correctly held that chapter 475 authorizes a private cause of action. Moyant , 561 So.2d at 1320.

We therefore reverse the order dismissing the fraud claim and the private cause of action pursuant to chapter 475. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      See, e.g. , §§ 475.42(2), 475.482, 475.483, Fla. Stat. (2018).


author: LUCAS, Judge.

text:
    Gregory NIPPER, Appellant, v. SUNCOAST CREDIT UNION, Appellee.
    Case No. 2D18-2758
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Adam Stevens of Powell of Jackman, Stevens & Ricciardi, P.A., Fort Myers, for Appellant.
    Theodore J. Hamilton of Wetherington Hamilton, P.A., Tampa, for Appellee.
   LUCAS, Judge.

Gregory Nipper appeals a summary judgment entered against him in a credit card collection case brought by Suncoast Credit Union (Suncoast). He argues that Suncoast was not entitled to summary judgment because it proffered no evidence or argument to refute his affirmative defenses that some of the charges to his credit card account were not authorized and that Suncoast failed to mitigate its damages. From our de novo review, we must conclude that Mr. Nipper's view of the record is correct. See ALS Maxim I LLC v. Katsenko, 218 So.3d 472, 473 (Fla. 2d DCA 2017) (noting that an appellate court reviews a trial court's entry of summary judgment de novo and that "[s]ummary judgment is appropriate 'only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law' " (quoting Reed v. Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) ) ). In order "to establish irrefutably that the nonmoving party cannot prevail were a trial to be held," id. (quoting Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011) ), we have repeatedly said that a plaintiff moving for summary judgment "must conclusively refute the factual bases" for any asserted affirmative defenses "or establish that they are legally insufficient," Lucey v. 1010 Logic, Inc., 208 So.3d 1236, 1238 (Fla. 2d DCA 2017) (emphasis omitted) (quoting Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011) ); see also Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005) ; Balun v. Tucci, 549 So.2d 257, 257-58 (Fla. 2d DCA 1989). Because Suncoast did not meet that burden here, we are compelled to reverse the circuit court's entry of summary judgment in Suncoast's favor and remand this case for further proceedings.

Reversed and remanded.

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    R.M.A., Appellant, v. J.A.S., Appellee.
    J.A.L., f/n/a J.A.S., Appellant, v. R.M.A., Appellee.
    Case No. 2D18-478 Case No. 2D18-1406 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant R.M.A.
    Gary E. Williams and Stephen D. Gregg of The Law Firm for Family Law, Clearwater, for Appellee J.A.L.
   ATKINSON, Judge.

In this consolidated appeal, R.M.A., the father, appeals an order awarding J.A.L., the mother, attorney's fees following the entry of a final judgment establishing paternity, child support, and time-sharing, and the mother appeals an order granting her motion for rehearing requesting a reasonable payment plan on the grounds that it erroneously awarded de minimis payments. We reverse only the underlying award of attorney's fees.

The father brought an action against the mother for paternity and to determine custody, parental responsibility, and child support under chapter 742, Florida Statutes (2011). Following a trial, the court entered a final judgment establishing the father's paternity and determining the mother's entitlement to an award of attorney's fees. The trial court held a hearing on the mother's subsequent motion for attorney's fees and costs. The transcript of that hearing was not included in the record on appeal.

The trial court entered a written order on the mother's motion, in which it made specific findings as to the reasonableness of the hourly rates charged by the mother's attorneys. In calculating the total award, the trial court began with the total fees sought by the mother's attorneys-$54,397.50 in fees paid to one firm, plus an additional $32,210.00 in fees paid to a second firm-then made certain reductions. Based on its review of the attorney fee affidavits, the court file, and the parties' arguments, the trial court determined that fifty percent of the litigation involved time-sharing, and after making all of the reductions, it taxed that amount against the father. The trial court awarded the mother the following attorney's fees and costs: $21,866.67 for the first firm plus $13,384.71 for the second firm.

Absent from the written order are specific findings as to the reasonableness of the number of hours spent by the mother's attorneys. The father contends that this omission constitutes reversible error notwithstanding his failure to supply a transcript of the hearing. The mother concedes that the trial court failed to make these findings but suggests that it reviewed her amended affidavit-which included an itemized list of the hourly rate and the number of hours spent by each attorney-and made certain reductions, thereby implying a finding as to the reasonableness.

The mother filed a motion for rehearing, requesting the trial court amend the fee award to include a reasonable payment plan for the payment of the award, as well as an additional award of interest from the date of entitlement. The trial court held a hearing and entered an order granting the mother's motion. The order provides for direct monthly payments of $200 to the mother's current law firm until $22,637.65 has been paid; payments of $100 to the mother's previous counsel; and, once $5680.97 is paid in full, payments of $100 to the mother until $8175.05 has been paid. The mother appealed the order, arguing that the trial court erred by only awarding de minimis payments.

Section 61.16, Florida Statutes (2018), governs the determination of an award of attorney's fees in dissolution of marriage, support, and child custody cases. See Rosen v. Rosen, 696 So.2d 697, 701 (Fla. 1997). This court reviews an award of attorney's fees under that section for abuse of discretion. Wright v. Wright, 965 So.2d 1168, 1170 (Fla. 2d DCA 2007). An abuse of discretion results when no reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980).

The trial court has discretion to establish a regular payment plan for the attorney's fee award. Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999). Nevertheless, the trial court must make factual findings to support this specific payment plan. Rogers v. Rogers, 12 So.3d 288, 292 (Fla. 2d DCA 2009) (reversing attorney's fee award, in part, because the trial court failed to making any "findings that would support allowing the Husband to pay the attorney's fee award in two installments over a one-year period"). The repayment period must be reasonable based upon the parties' respective financial conditions. See, e.g., Hood v. Hood, 535 So.2d 715, 715 (Fla. 5th DCA 1989) ("The trial court abused its discretion in allowing the husband a seven[-]year payment period, especially in light of the husband's financial affidavit reflecting net assets of over $117,000 and a weekly income of over $1,100."); Urbieta v. Urbieta, 469 So.2d 930, 931 (Fla. 3d DCA 1985) (finding that the fifty-dollar monthly repayment "was manifestly erroneous in face of the husband's financial affidavits reflecting assets of $391,000" as it would take the husband eight years to repay the remaining $4800 award). Under the current payment structure, it will take 4.7 years to pay the former attorneys directly, then another 6.8 years to pay the mother.

Although the trial court must make specific findings of fact to support an attorney's fee award under chapter 61, it can do so either orally or in a written order. Arena v. Arena, 103 So.3d 1044, 1046 (Fla. 2d DCA 2013). The mother bore the burden of providing a record sufficient to demonstrate reversible error. See Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007) ("The most salient impediment to meaningful review of the trial court's decision is not the absence of findings, but the absence of a transcript."). Without a transcript of the hearing on the mother's motion for rehearing, we cannot say that the trial court abused its discretion by failing to make sufficient factual findings to support a de minimis payment plan. Cf. Frezza v. Frezza, 216 So.3d 758, 760 (Fla. 2d DCA 2017) (noting that specific findings to support an attorney's fee award in a dissolution proceeding "may be made in the written final judgment or at the hearing" and concluding that "[i]n the absence of a hearing transcript, we cannot say that the trial court erred"); Esaw, 965 So.2d at 1264-65 ("The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is 'usually fatal' to the appellant's claims." (quoting Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990) ) ).

However, an award of attorney's fees that lacks the findings required under Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), is not susceptible to the same impediment to appellate review. See Harris v. McKinney, 20 So.3d 400, 403 (Fla. 2d DCA 2009) ("[T]he absence of the required findings in the written order renders the order fundamentally erroneous on its face and ... the lack of transcript 'does not preclude appellate review.' " (quoting Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, 891 So.2d 1063, 1065 n.4 (Fla. 2d DCA 2004) ) ). Reversal is required unless the trial court makes specific written findings as to these Rowe factors. See, e.g., Tullos v. Tullos, 37 So.3d 355, 357 (Fla. 2d DCA 2010) ; Voronin v. Voronina, 995 So.2d 1049, 1050 (Fla. 2d DCA 2008) ; Beck v. Beck, 852 So.2d 934, 938 (Fla. 2d DCA 2003) ; cf. Barber v. Goodwin, 880 So.2d 712, 713 (Fla. 2d DCA 2004) (reversing in part because the trial court's order contained "no findings establishing the basis for the specific amount awarded for fees").

The trial court here failed to make written findings as to the reasonable number of hours expended by the mother's attorneys. Although it is unclear whether the trial court addressed the reasonableness of the attorney's fees at the hearing on the mother's motion for rehearing, "it is the established rule in this court that the omission of the required findings of fact from orders awarding attorney's fees is to be treated differently from such omissions made in other types of orders." Harris, 20 So.3d at 406 (Davis, J., concurring specially). As a result, we must reverse and remand for the trial court to make the written findings required under Rowe, compelled as we are by precedent that dictates the disparate treatment of the issues raised by the father in his appeal and those raised by the mother in hers. Cf. Harris, 20 So.3d at 407 (Davis, J., concurring specially) ("I agree that we must reverse the award of attorney's fees because the case law is clear that attorney's fees orders are treated differently and that the absence of the Rowe findings on the face of the written order currently renders that order per se reversible. However, I do not agree that the difference between an order awarding attorney's fees and other types of orders, such as those dealing with alimony or the equitable distribution of marital assets, justifies this disparate treatment.").

Because the trial court failed to make express, written findings as to the reasonableness of the number of hours expended by the mother's attorneys, we must reverse, notwithstanding the father's failure to present us with a hearing transcript. But because the mother failed to provide us with the same, we are compelled to affirm the trial court's order granting the mother's motion for rehearing.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and SLEET, JJ., Concur.

      An amended attorney's fees affidavit was introduced into evidence at the hearing. This affidavit included an itemized list for each attorney and paralegal of the hours spent and the hourly rate, as well as the fee agreement and a thirty-page summary of the first firm's timesheets.

      The trial court added prejudgment interest.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    OLD DOMINION INSURANCE COMPANY, Appellant/Cross-Appellee, v. Joseph TIPTON and Rhonda Tipton, Appellees/Cross-Appellants.
    Case No. 2D18-24
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019.
    Andrew A. Labbe of Groelle & Salmon, P.A., Tampa; and David R. Terry, Jr., of Groelle & Salmon, P.A., Maitland, for Appellant/Cross-Appellee.
    George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for Appellees/Cross-Appellants.
   ROTHSTEIN-YOUAKIM, Judge.

Old Dominion Insurance Company appeals an order denying its motion for attorney's fees, which the trial court entered after Old Dominion prevailed at trial on Joseph and Rhonda Tipton's breach-of-contract actions. The Tiptons cross-appeal, challenging the court's order granting Old Dominion's motion to deem admitted its unanswered requests for admissions concerning attorney's fees. We find no error with respect to the Tiptons' cross-appeal, but as set forth below, we reverse and remand for further proceedings with respect to Old Dominion's motion for attorney's fees.

On January 21, 2015, the Tiptons filed a complaint against Old Dominion for breach of contract in relation to a sinkhole claim. On February 25, 2015, Old Dominion filed a notice of automatic stay pending completion of a neutral evaluation pursuant to section 627.7074, Florida Statutes (2014). See § 627.7074(10) ("Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator's report with the court."). The stay was lifted on May 5, 2015, and filings resumed. Among other things, the Tiptons amended their complaint and Old Dominion answered and raised affirmative defenses.

On June 2, 2015-132 days after the Tiptons had filed suit-Old Dominion served the Tiptons with a proposal for settlement. On June 10, 2015, the Tiptons moved to strike the proposal, contending that it was both premature in light of the stay and not made in good faith. They did not seek any extension of time to accept the proposal pending the outcome of their motion.

The trial court agreed that the proposal was premature, and on July 27, 2015-well after the thirty-day time period for the Tiptons to accept the proposal had elapsed, see Fla. R. Civ. P. 1.442(f)(1) -the court granted the Tiptons' motion. The court explicitly did not reach the Tiptons' contention of lack of good faith.

Ultimately, Old Dominion prevailed at trial and moved for attorney's fees based on the rejected proposal. Relying on its previous order striking the proposal, the trial court denied the motion for attorney's fees. As to the merits of having struck the proposal, the court stated: "I might make a different determination today, I would look into it, but the fact that I made that determination, there is some element of reliance. However, also I think there's some element of it's stricken from the record rightly or wrongly, it's not there." The court acknowledged that "had the proposal for settlement not been stricken, I would be considering that for fees."

Rule 1.442(b), provides, in pertinent part, that "a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced." Because rule 1.442 is in derogation of the common law rule that each party bear its own attorney's fees, its provisions must be strictly construed, Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003), and so a premature proposal is invalid, Design Home Remodeling Corp. v. Santana, 146 So.3d 129, 133 (Fla. 3d DCA 2014) ; Regions Bank v. Rhodes, 126 So.3d 1259, 1261 (Fla. 4th DCA 2013) ("Under Rule 1.442, any premature offer is an invalid offer.").

The Tiptons argue that the stay of court proceedings under section 627.7074(10) pending neutral evaluation also stayed the ninety-day waiting period for serving the proposal, rendering the proposal roughly thirty days' premature and therefore invalid. They reason that "[a] proposal for settlement is without a doubt a part of a court proceeding and a matter related to the sinkhole litigation"; that the legislative purpose behind section 627.7074 is "to efficiently resolve sinkhole disputes ... and to minimize, if not avoid, the costs associated with unnecessary litigation," State Farm Fla. Ins. Co. v. Buitrago, 100 So.3d 85, 88 (Fla. 2d DCA 2012) (quoting Morejon v. Am. Sec. Ins. Co., 829 F.Supp.2d 1258, 1260 (M.D. Fla. 2011) ); and that refusing to stay the waiting period for serving a proposal for settlement would frustrate that purpose.

Regardless of whether the serving of a proposal is a "court proceeding," however, the ninety-day waiting period mandated before one may be served is not-it is a rule of civil procedure. By its plain language, therefore, section 627.7074(10) does not stay that period. Moreover, there is nothing within rule 1.442 indicating that a stay under section 627.7074(10) -or the operation of any other statute or rule, for that matter-concomitantly stays that period. The rule simply provides that "a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced," Fla. R. Civ. P. 1.442(b), and "[e]very action of a civil nature shall be deemed commenced when the complaint ... is filed," Fla. R. Civ. P. 1.050.

We reject the Tiptons' contention that interpreting section 627.7074(10) in this manner would lead to a result clearly contrary to the legislative intent behind the neutral evaluation procedure, which is to facilitate the timely and cost-effective resolution of sinkhole disputes. See Buitrago, 100 So.3d at 88 ("The legislature explicitly enacted the neutral evaluation process under section 627.7074 'to efficiently resolve sinkhole disputes, in order to accelerate the timeline by which sinkhole activity is mitigated, where verified at the property, and to minimize, if not avoid, the costs associated with unnecessary litigation.' " (quoting Morejon, 829 F.Supp.2d at 1260 ) ); see also State v. Burris, 875 So.2d 408, 410 (Fla. 2004) ("When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Instead, the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent." (citing Lee Cty. Elec. Coop., Inc. v. Jacobs, 820 So.2d 297, 303 (Fla. 2002) ) ). The very purpose of a proposal for settlement is to facilitate settlement and to avoid the costs associated with unnecessary litigation. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1078 (Fla. 2006) ("A proposal for settlement is intended to end judicial labor, not create more." (quoting Nichols v. State Farm Mut., 851 So.2d 742, 746 (Fla. 5th DCA 2003) ) ). Consequently, it seems to us that the interpretation that the Tiptons urge-which would stay the ninety-day period and thus prolong the amount of time that a party must wait before serving a proposal for settlement-is the one contrary to legislative intent.

We therefore hold that section 627.7074(10) does not stay rule 1.442(b)'s ninety-day waiting period for serving a proposal for settlement. Because Old Dominion served the Tiptons with its proposal more than ninety days after the Tiptons filed suit against Old Dominion, the trial court erred in striking the proposal as premature, and so we reverse the denial of Old Dominion's motion for attorney's fees on that ground and remand for further proceedings consistent with this opinion. With respect to the Tipton's cross-appeal, we find no error.

Affirmed as to cross appeal; reversed and remanded as to main appeal.

NORTHCUTT and SALARIO, JJ., Concur.

      We reiterate that when Old Dominion served the Tiptons with the proposal, the stay under section 627.7074 had been lifted, and so we do not address the propriety, or lack thereof, of serving a proposal during the stay period.

      The Tiptons summarily argue that the trial court nonetheless correctly denied Old Dominion's motion for attorney's fees because Old Dominion failed to file the proposal with the court as required by rule 1.442(d) and (i). Rule 1.442(i), however, does not mandate the filing of a proposal, and nothing in the record indicates that filing the proposal is necessary per rule 1.442(d) to enforce the provisions of rule 1.442.