author: SCALES, J.

text:
    Franco D'AGOSTINO, et al., Appellants, v. CCP PONCE, LLC, Appellee.
    No. 3D18-676
    District Court of Appeal of Florida, Third District.
    Opinion filed May 1, 2019 Rehearing Denied June 20, 2019
    Lamelas Law, PA, and Gustavo J. Lamelas and Daniel Buigas, for appellants.
    Anthony & Partners, LLC, and John A. Anthony and Nicholas Lafalce (Tampa), for appellee.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   SCALES, J.

In this appeal of a foreclosure deficiency judgment, the appellants are the mortgagor, Ponce Trust, LLC ("Ponce Trust"), and the two guarantors of the underlying promissory note, Franco D'Agostino ("D'Agostino") and Dayco Properties, Ltd. (collectively, the "Guarantors"). Appellee CCP Ponce, LLC ("CCP Ponce") is a successor-in-interest of the original lender and mortgagee, Mellon United National Bank ("Mellon"). On March 6, 2018, the trial court entered the challenged deficiency judgment that awarded CCP Ponce $ 7,792,150.35 against Ponce Trust, and $ 44,041,969.88 against the Guarantors ("Final Deficiency Judgment"). For the reasons stated herein, we affirm the Final Deficiency Judgment as to Ponce Trust, but reverse the Final Deficiency Judgment against the Guarantors and remand to the trial court for further proceedings.

I. History of the Proceedings

A. The Relevant Loan Documents

In March 2007, Ponce Trust entered into a Construction Loan Agreement with Mellon. Amending and restating a loan originating in 2004, this March 2007 Construction Loan Agreement, and accompanying loan documents, memorialized a $ 50,000,000 principal loan for Ponce Trust to use in constructing a twelve-story condominium project in Coral Gables, Florida.

In conjunction with the loan, in March 2007, the Guarantors executed two distinct guaranty agreements: (i) a Guaranty Agreement, and (ii) a Guaranty of Completion. In the Guaranty Agreement, the Guarantors guarantied payment of Ponce Trust's loan obligations. The Guaranty Agreement, however, significantly limited D'Agostino's liability, providing that, in the event the lender and Ponce Trust complete Tranche B funding, D'Agostino's guarantee of the loan's principal would be eliminated. D'Agostino would then remain liable only for "all costs of collection, including court costs and attorneys fees through all appellate levels and post judgment proceedings, and for default rate interest," as well as for his obligations under the separate Guaranty of Completion.

In the separate Guaranty of Completion, the Guarantors agreed to perform Ponce Trust's "Obligations" in the event Ponce Trust did not complete construction of the subject condominium project. The term "Obligations" is specifically defined in the document and includes: (i) constructing the improvements timely, in accordance with the construction plans, and "in a good and workmanlike manner;" (ii) furnishing labor and materials and completing payment therefor; and (iii) providing additional funds from sources outside of the loan, if necessary, to complete the project.

Potentially relevant in this case, the Guaranty of Completion contains two provisions that are not found in the Guaranty Agreement: (i) a provision stating that the liability assumed under the Guaranty of Completion will not be affected by the acceptance of any settlement or judgment of a bankruptcy court; and (ii) a provision stating that the Guarantors' obligations under the Guaranty of Completion are "completely independent" from the obligations of Ponce Trust.

While the 2007 Construction Loan Agreement and promissory note were modified twice again, in 2009 and 2010, the loan documents relevant to this appeal - the Guaranty Agreement and the Guaranty of Completion - were not amended by those modifications.

B. The Foreclosure Action

In December 2010, MUNB Loan Holdings, Inc. ("MUNB"), a successor to Mellon, filed the instant foreclosure action and, in March 2011, MUNB filed the operative amended complaint. This amended complaint alleges a May 2010 default date, and asserts seven counts (against various defendants). Importantly, while MUNB's amended complaint specifically alleges that the Guarantors executed and delivered to Mellon the Guaranty of Completion (and the Guaranty of Completion is attached as an exhibit to the amended complaint), MUNB's amended complaint alleges no claim against the Guarantors under the Guaranty of Completion.

In their answer to MUNB's amended complaint, Ponce Trust and the Guarantors denied that default had occurred and was continuing to occur, and further denied MUNB's allegations that Ponce Trust was leasing units in violation of the loan documents. In their affirmative defenses, Ponce Trust and the Guarantors asserted that: (i) MUNB had unclean hands; (ii) MUNB was mis-applying their payments; and (iii) payment had been made insofar as MUNB was holding funds belonging to Ponce Trust and the Guarantors that should have been used for the required loan payments.

In July 2011, MUNB filed its summary judgment motion seeking a final summary judgment on all counts in its amended complaint except for the replevin count (Count IV). The trial court conducted a hearing on MUNB's motion in December 2011, and, on June 4, 2012, the trial court entered a First Amended Summary Final Judgment of Foreclosure in favor of MUNB and against Ponce Trust only ("Foreclosure Judgment"). This Foreclosure Judgment: (i) determined that MUNB was owed a total of $ 37,346,025.50 (comprising approximately $ 28,731,231 in principal on the promissory note, costs, approximately $ 8,553,000 in default rate interest, and approximately $ 174,500 in post-judgment interest that accrued from December 14, 2011, with a credit of approximately $ 112,000 that was held in escrow); (ii) foreclosed Ponce Trust's interest in the real and personal property in favor of MUNB; and (iii) set a foreclosure sale for the property. Immediately after liquidating the amount due under the note, the Foreclosure Judgment contains the following language: "which shall bear interest per year at the interest rate provided by Section 55.03(1), Florida Statutes (2011)." No party appealed the Foreclosure Judgment.

The Foreclosure Judgment adjudicated and disposed of Counts I, II, III, and V of the amended complaint, as well as Ponce Trust and the Guarantors' affirmative defenses to those claims. With regard to Counts VI and VII (the counts against the Guarantors under the Guaranty Agreement), the judgment included the following language: "As to Count VI (Breach of Guaranty Agreement) and Count VII (Breach of Guaranty Agreement), this Court reserves jurisdiction to determine the validity and enforceability of the Guaranty Agreement and Guaranty of Completion, and the extent of Dayco's and D'Agostino's liability thereunder, if any."

C. Ponce Trust Files for Chapter 11 Reorganization

On February 22, 2012, prior to the foreclosure sale, Ponce Trust filed for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Florida. Ponce Trust's filing of the bankruptcy case stayed the foreclosure proceedings in the trial court. In December 2012, Ponce Trust filed its plan of reorganization, which the Bankruptcy Court approved on December 26, 2012. The plan identified seventy-seven unsold units in the condominium project, and required that the creditor receive payments on its claim from revenues generated from the ongoing sale of the units, as well as rental income from the unsold units. The plan effectively discharged Ponce Trust's liability to CCP Ponce for all default rate interest. The plan did not address or modify the Guarantors' liability.

In September of 2016, CCP Ponce filed a motion in the Bankruptcy Court to re-open the bankruptcy case for the sole purpose of terminating the automatic stay of the foreclosure action. At that point, forty-two condominium units remained unsold, and the amount of the debt had been reduced from the approximately $ 37 million reflected in the Foreclosure Judgment to approximately $ 19 million. On October 26, 2016, the Bankruptcy Court granted CCP Ponce's motion, lifted the automatic stay, and entered an order allowing the foreclosure sale to go forward.

D. The Foreclosure Sale and CCP Ponce's Motion for Deficiency Judgment

After the Bankruptcy Court lifted the stay, the trial court set the foreclosure sale for February 9, 2017. The remaining collateral - now forty-one units - was sold at foreclosure to CCP Ponce in the bid amount of $ 900,200.00. Less than a week later, on February 15, 2017, CCP Ponce filed its motion for deficiency judgment seeking a judgment against Ponce Trust and the Guarantors for the difference between the amount due pursuant to the Foreclosure Judgment and the fair market value of the unsold condominium units (as of the date of the foreclosure sale).

In its motion, CCP Ponce specifically set forth the amount CCP Ponce claimed it was owed by Ponce Trust and the Guarantors - the "Deficiency Balance" - as follows: the amount of the Foreclosure Judgment (as adjusted by Ponce Trust's reorganization) remaining due and owing of $ 19,080,454.14, less the market value of remaining collateral in the amount of $ 13,000,000. This resulted in an alleged Deficiency Balance of $ 6,080,454.14. Indeed, in three separate paragraphs of its motion, CCP Ponce claims that this is the amount it is due from Ponce Trust and the Guarantors. CCP Ponce did not assert a claim in this motion that any amounts were due under the Guaranty of Completion.

E. The Trial and Entry of the Challenged Final Deficiency Judgment

On January 22, 2018, the trial court conducted a bench trial on CCP Ponce's motion for deficiency judgment. On the Friday prior to the Monday bench trial, CCP Ponce filed a pre-trial memorandum indicating that it would be seeking damages against the Guarantors based not only on the Guaranty Agreement but also based on the Guaranty of Completion. In this submission, CCP Ponce asserted that it would be seeking a deficiency judgment of $ 7,792,150.35 against Ponce Trust, and $ 44,041,969.88 against the Guarantors.

At the beginning of the trial, the Guarantors' counsel objected to any claim by CCP Ponce based on the Guaranty of Completion:

They have never sued - they have never asserted a Cause of Action on the Guaranty of Completion. And so I object to any kind of attempt to shoehorn my client to liability that he did not accept on that theory. That's a very important issue.

The trial court, at least initially, seemed to agree, stating in response to CCP Ponce's counsel:

[I]f it's not in your Complaint and you haven't pled it, you're not entitled to receiving [sic] it, period. That's what the law is ... It's a very simple statement, if you don't plead it, you're not entitled to recover, period, end of sentence .... Again, if you didn't plead it as a Cause of Action in your Complaint, you're not entitled to recover. Period.

Yet, over the objections of the Guarantors' counsel, the trial court permitted CCP Ponce to put on evidence regarding damages allegedly awardable pursuant to the Guaranty of Completion, and denied the Guarantors' involuntary dismissal motion that sought dismissal of any claims related to the Guaranty of Completion.

Over the objection of the Guarantors, CCP Ponce introduced a Deficiency Judgment Computation Worksheet that, consistent with CCP Ponce's pre-trial memorandum, separately calculated the deficiency amounts allegedly owed by Ponce Trust and the Guarantors. As discussed in further detail below, the deficiency damages sought against Ponce Trust were significantly less than those sought against the Guarantors primarily because: (i) approximately $ 32 million in pre-foreclosure sale default rate interest had been discharged in Ponce Trust's bankruptcy reorganization; and (ii) the non-discharged interest accrued not at the eighteen percent default rate outlined in the loan documents, but, rather, at the significantly lower post-judgment interest statutory rate set by section 55.03(1). The trial court rejected the Guarantors' arguments that they should receive the same treatment as the principal debtor, Ponce Trust.

Ultimately, on March 6, 2018, the trial court entered the challenged Final Deficiency Judgment against the Guarantors based on the damage calculations submitted by CCP Ponce in its pre-trial memorandum and Deficiency Judgment Computation Worksheet - damages presumably premised on both the Guaranty Agreement and the Guaranty of Completion. The trial court's Final Deficiency Judgment awarded CCP Ponce a deficiency of $ 7,792,150.35 against Ponce Trust, and $ 44,041,969.88 against the Guarantors. In its Final Deficiency Judgment, the trial court specifically concluded that any limitations on the Guarantors' liability in the Guaranty Agreement are irrelevant "because the Completion Guaranty provides for unlimited liability." Both Ponce Trust and the Guarantors appealed this Final Deficiency Judgment.

II. Issues on Appeal

While the Guarantors make several arguments on appeal, we characterize and address what we perceive as the three principal issues in this appeal: (i) whether the trial court erred by allowing claims to proceed based on the Guaranty of Completion; (ii) whether the trial court erred by not giving the Guarantors the financial benefits that inured to Ponce Trust by virtue of Ponce Trust's bankruptcy reorganization; and (iii) whether the trial court erred by calculating the post-Foreclosure Judgment interest at the eighteen percent default rate in the loan documents, as opposed to the post-judgment interest rate established in section 55.03(1). We address each issue in turn.

III. Analysis

A. CCP Ponce's Claim Based on the Guaranty of Completion

As mentioned earlier, over the objections of the Guarantors' counsel, the trial court allowed CCP Ponce to assert a claim against the Guarantors based on the Guaranty of Completion. While not entirely clear from the Final Deficiency Judgment, it does appear that the trial court's allowing CCP Ponce to assert a claim under the Guaranty of Completion resulted in significant benefits to CCP Ponce. By concluding that the Guaranty of Completion provides for "unlimited liability" of the Guarantors, the trial court did not limit D'Agostino's liability as expressly provided in the Guaranty Agreement, nor did the trial court conduct any legal analysis of whether the Guaranty Agreement limited the liability of the Guarantors to payments owed to CCP Ponce by Ponce Trust. The Guarantors assert, as they did below, that it was error for the trial court to allow CCP Ponce to prosecute this claim, because no claim was pled on the Guaranty of Completion.

As we have quoted in section I.E., supra , at the outset of the bench trial on CCP Ponce's deficiency judgment motion, the trial court unequivocally stated what is axiomatic in Florida law: a party cannot recover damages based on an unpled claim. Michael H. Bloom, P.A. v. Dorta-Duque, 743 So.2d 1202, 1203 (Fla. 3d DCA 1999) ("It is well settled that a defendant cannot be liable under a theory that was not specifically pled."). Given the trial court's clear statements that CCP Ponce could not recover on an unpled claim, we can conclude only that the trial court decided that CCP Ponce had pled a claim against the Guarantors based on the Guaranty of Completion. We have scoured the record, though, and are unable find that CCP Ponce pleaded any such claim. Neither MUNB's operative amended complaint nor CCP Ponce's deficiency judgment motion raised such a claim. In fact, in its deficiency judgment motion, CCP Ponce plainly, and without qualification, asserted that the deficiency amount being sought from the Guarantors - consistent with the Guaranty Agreement - is the difference between the amount remaining due pursuant to the Foreclosure Judgment (which CCP Ponce quantified as $ 19,080,454.14) and the fair market value of the collateral (which CCP Ponce quantified as $ 13,000,000). CCP Ponce then - again, consistent with the Guaranty Agreement - specifically calculated the difference, alleging an entitlement both from Ponce Trust and from the Guarantors of $ 6,080,454.14.

While we note that the Foreclosure Judgment "reserves jurisdiction to determine the validity and enforceability of the Guaranty Agreement and Guaranty of Completion " (emphasis added), we have been provided with no authority that a trial court's mere reference to a document in a reservation of jurisdiction provision somehow supplants a plaintiff's burden to plead a cause of action premised on that document. See, e.g., Marin v. Marin, 842 So.2d 273, 274-75 (Fla. 3d DCA 2003) ; Muhlrad v. Muhlrad, 375 So.2d 24, 26 (Fla. 3d DCA 1979). As the trial court correctly stated at the onset of the deficiency trial, a cause of action must be pled for a trial court to award damages on the cause of action. Bloom, 743 So.2d at 1203.

Against this backdrop, we simply are unable to conclude, as the trial court apparently did, that CCP Ponce pled entitlement to damages against the Guarantors based on anything other than the Guaranty Agreement. Additionally, as we observed in footnote 10, supra , we are unable to determine from the record which damages in the Final Deficiency Judgment the trial court awarded against the Guarantors pursuant to the Guaranty Agreement, as opposed to the Guaranty of Completion. Therefore, we reverse all of those portions of the Final Deficiency Judgment that awarded damages against the Guarantors, and remand for the trial court to recalculate, consistent with this opinion, the damages owed by each of the Guarantors based exclusively on the Guaranty Agreement, without regard to the Guaranty of Completion. On remand, the trial court may conduct whatever proceedings, evidentiary and otherwise, it deems necessary to perform the requisite recalculation.

B. Effect of Ponce Trust's Bankruptcy on the Guarantors' Liability

Citing to federal bankruptcy law, the Guarantors next argue that the trial court erred in summarily concluding in the Final Deficiency Judgment that the Guarantors' liability is unaffected by Ponce Trust's bankruptcy reorganization. The Guarantors assert that, irrespective of whether CCP Ponce pled a claim under the Guaranty of Completion, they should nevertheless be entitled to the benefits that inured to Ponce Trust as a result of Ponce Trust's bankruptcy reorganization. Specifically, the Guarantors suggest that, because Ponce Trust's bankruptcy reorganization eliminated Ponce Trust's obligation to pay pre-Foreclosure Judgment accrued default interest, the Guarantors' interest obligations should be similarly discharged.

CCP Ponce responds to the Guarantors' argument by citing federal authority suggesting a guarantors' liability for the debts of a Chapter 11 debtor is unaffected by a bankruptcy reorganization unless the confirmed plan provides for specific treatment of the guarantors.

The issue is obviously significant. According to CCP Ponce's calculations in its pre-trial memorandum and Deficiency Judgment Computation Worksheet, Ponce Trust owes CCP Ponce approximately $ 36 million less than the Guarantors. While not entirely clear from the record, suffice to say a significant amount of the difference results from Ponce Trust's bankruptcy reorganization plan. So, whether the Guarantors' liability under the Guaranty Agreement is limited to what Ponce Trust owes is critical.

While the parties' arguments on this issue are focused exclusively on federal bankruptcy law, in our view the issue is one of Florida contract law, that is, whether the Guaranty Agreement manifests the parties' intent for the Guarantors to have liability for (i) Ponce Trust's obligations to CCP Ponce or, in the alternative, (ii) all sums due under the loan documents, irrespective of what Ponce Trust might owe CCP Ponce. We recognize that this issue may pose a purely legal question; we are loath, however, to reach and adjudicate the issue in the first instance without giving either the parties or the trial court the opportunity to address it. Therefore, on remand, the trial court should specifically address and adjudicate the parties' intent regarding the scope of the Guarantors' liability under the Guaranty Agreement. On remand, the trial court may conduct whatever proceedings it deems necessary to perform the requisite inquiry.

C. The Appropriate Post-Judgment Interest Rate for Guarantors' Liability

If, on remand, the trial court determines that the parties did not intend for the Guarantors' liability to be limited to amounts owed by the borrower, Ponce Trust, then the trial court will need to revisit its calculation of the default interest owed by the Guarantors. The Guarantors assert that the trial court erred in awarding CCP Ponce post-Foreclosure Judgment interest at the eighteen percent default rate contained in the Construction Loan Agreement, rather than the statutory post-judgment interest rate prescribed in section 55.03(1) of the Florida Statutes. Again, the practical significance of this issue is hard to overstate: it appears that well over $ 26 million of post-Foreclosure Judgment interest awarded to CCP Ponce is calculated using the eighteen percent default rate. The Guarantors argue that the amounts Ponce Trust owed to CCP Ponce were liquidated by the trial court's adjudication of Count I of CCP Ponce's amended complaint (CCP Ponce's action on the promissory note), and that, once this liability was reduced to a judgment, pursuant to the express language of the Foreclosure Judgment, post-judgment interest would accrue at the statutory interest rate, rather than the contractual default interest rate.

CCP Ponce counters by asserting that the Guarantors were not named as parties in either Count I (CCP Ponce's action on the note) or in Count II (CCP Ponce's foreclosure count) of the amended complaint, and that, by the express terms of the Foreclosure Judgment, the trial court did not adjudicate any of CCP Ponce's claims against the Guarantors. CCP Ponce suggests that the Guarantors are thus similarly situated to the guarantor in Provident National Bank v. Thunderbird Associates, 364 So.2d 790 (Fla. 1st DCA 1978).

In Thunderbird, after the bank had obtained a foreclosure judgment against its borrower and purchased the foreclosed property at a foreclosure sale, the bank brought a distinct, separate deficiency action against a guarantor of the loan. Id. at 792-93. After conducting a trial, the trial court entered a deficiency judgment against the guarantor, in favor of the bank, setting a post-judgment interest rate on the deficiency judgment at the statutory rate. Id. at 794. The bank appealed arguing that, pursuant to the loan agreement, the borrower had agreed to pay default interest at fifteen percent and, pursuant to the guaranty agreement, the guarantor had agreed to guarantee the sums payable by the borrower. Id. at 796-97. Our sister court agreed with the bank and reversed the trial court. The Thunderbird court reasoned that, because the guarantor "was not an original party to the action and the claim against it is founded on the guaranty," the bank's contract with its borrower - calling for a fifteen percent default interest rate - controlled. Id. at 797-98. Importantly, underpinning its holding, the Thunderbird court twice makes reference to the guarantor not being an original party to the foreclosure proceedings, and that the bank's separate, independent action against the guarantor was based exclusively on the guaranty. Id. at 797, 798.

We distinguish Thunderbird from our case. Not only were the Guarantors original parties to the foreclosure proceedings, the Guarantors' claims and defenses were procedurally intertwined with CCP Ponce's claims against Ponce Trust. In its summary judgment motion resulting in the Foreclosure Judgment, CCP Ponce sought to adjudicate fully its claims against, and the defenses of, the Guarantors. Indeed, the parties litigated the Guarantors' affirmative defenses to the foreclosure, and the Foreclosure Judgment adjudicates those defenses Hence, this case is procedurally distinguishable from Thunderbird, and the Guarantors are not similarly situated to the Thunderbird guarantor.

Based on our reading of Thunderbird, these distinguishing facts are dispositive. Because the Guarantors were, at all times, not only parties to, but active litigants in, the proceedings resulting in the entry of the Foreclosure Judgment, it makes little sense to conclude that the Foreclosure Judgment's liquidation of the amounts due would not inure to, or be binding upon, them. The Thunderbird decision does not control the post-judgment interest issue of the instant case. Rather, under the distinctive facts of this case, the trial court should have followed the general rule that a debt bears interest at the contract rate only to the date of final judgment, and after that date, the total indebtedness bears interest at the statutory rate. Braswell v. Braswell, 881 So.2d 1193, 1203 (Fla. 3d DCA 2004).

Thus, on remand, if the trial court determines that the parties did not intend for the Guarantors' liability under the Guaranty Agreement to be limited to the amounts owed by Ponce Trust, the trial court should - when calculating the amounts due by the Guarantors under the Guaranty Agreement - apply the statutory interest rate to all post-Foreclosure Judgment sums due. Again, on remand, the trial court may conduct whatever proceedings it deems necessary to perform the requisite calculations.

III. Conclusion

We affirm those portions of the Final Deficiency Judgment assessing damages against Ponce Trust. We reverse those portions of the Final Deficiency Judgment assessing damages against the Guarantors, and remand for recalculation of those damages consistent with this opinion.

Affirmed in part; reversed in part and remanded.

      Tranche B funding represented $ 40,375,000 of the total loan. The record indicates that the lender and Ponce Trust completed Tranche B funding, thus triggering D'Agostino's limited liability under the Guaranty Agreement.

      Count I (against Ponce Trust) seeks damages for breach of the promissory note and alleges that $ 28,731,231.15 in principal remains due and owing under the note. Count II (against Ponce Trust) seeks to foreclose on the mortgage securing the note. Count III (against Ponce Trust) seeks to foreclose on personal property secured by other security agreements. Count IV (against the Guarantors) alleges that, to the extent the Guarantors are in possession of personal property secured by other security agreements, MUNB is entitled to replevin against the Guarantors. Count V (against Ponce Trust) seeks enforcement of an assignment of rents document executed as part of the loan. Count VI (against Dayco Properties, LLC) is a claim on the Guaranty Agreement premised on Ponce Trust's failure to meet its payment obligations under the promissory note. Count VII (against D'Agostino) is a claim on the Guaranty Agreement premised on Ponce Trust's failure to meet its payment obligations under the promissory note.

      The trial court entered the initial foreclosure judgment on December 14, 2011, shortly after the hearing. The trial court later amended it on June 4, 2012, nunc pro tunc , to December 14, 2011, to reflect an adjustment in the amounts due.

      The record is unclear as to the ultimate disposition of the replevin count (Count IV) asserted against the Guarantors. Such disposition is not essential to our adjudication of this appeal.

      See 11 U.S.C. § 362.

      During the pendency of the reorganization, CCP Ponce became the successor-in-interest of MUNB.

      Section 55.03(1) provides that Florida's Chief Financial Officer shall set, on a quarterly basis, the interest rate payable on judgments. § 55.03(1), Fla. Stat. (2011).

      While both Ponce Trust and the Guarantors appealed the Final Deficiency Judgment, the initial brief advances only the arguments of the Guarantors. Hence, any challenge to the Final Deficiency Judgment by Ponce Trust is deemed abandoned. City of Miami v. Haigley, 143 So.3d 1025, 1027 n.1 (Fla. 3d DCA 2014). Therefore, without further elaboration, we affirm the Final Deficiency Judgment as it relates to Ponce Trust.

      Whether a pleading is sufficient in its allegation of a claim is a question of law that we review de novo . Patel v. Shah, 217 So.3d 152, 154 (Fla. 3d DCA 2017).

      The Final Deficiency Judgment does not itemize which damages against the Guarantors are premised on the Guaranty Agreement as opposed to the Guaranty of Completion.

      Because we conclude that CCP Ponce did not plead a claim under the Guaranty of Completion, we need not, and do not, reach the issue of whether Ponce Trust's payment obligations are "Obligations" guaranteed by the Guarantors under the Guaranty of Completion. Nor do we reach the issue of whether the evidence at trial established whether Ponce Trust failed to complete any of the "Obligations" that were guaranteed by the Guarantors under the Guaranty of Completion. It certainly does not appear, though, that the trial court, in its Final Deficiency Judgment, awarded any damages to CCP Ponce specifically related to Ponce Trust's failure to complete the project. It appears, rather, that the trial court simply concluded that the Guarantors' liability was unlimited because of certain unidentified language in the Guaranty of Completion.

      We note that, at oral argument, CCP Ponce's counsel was unable to provide a record citation to where his client's claim against the Guarantors, based on the Guaranty of Completion, had been pleaded.

      We note that, in its Final Deficiency Judgment, the trial court purported to calculate D'Agostino's liability - without regard to the Guaranty of Completion - at approximately $ 15,310,000. It appears that the trial court calculated this sum simply by eliminating principal from the total amounts owed to CCP Ponce, as is no doubt required by the Guaranty Agreement. This calculation proved purely academic, though, after the trial court determined that, irrespective of the Guaranty Agreement's limiting provisions, the Guaranty of Completion would provide for "unlimited liability" of the Guarantors. On remand, the trial court cannot perform the requisite recalculation of the Guarantors' liability under the Guaranty Agreement by restating this sum because this calculation is not informed by our holdings in sections III. B. and C., infra . On remand, the trial court should recalculate the amount based on the holdings in this opinion.

      See, e.g., In re Troutman Enters., Inc, 253 B.R. 8, 11 (6th Cir. BAP 2000) ("The plan is essentially a new and binding contract between the Reorganized Debtor and the Petitioning Creditors.").

      See, e.g., In re Applewood Chair Co., 203 F.3d 914, 918 (5th Cir. 2000) ("The general rule is that a discharge in bankruptcy does not affect a guarantor's liability.").

      We express no opinion on the issue.

      We review de novo a trial court's decision regarding post-judgment interest. Alexander v. Kalitan, 263 So.3d 70, 71 (Fla. 4th DCA 2019).

      Obviously, if the trial court determines that the Guarantors' liability under the Guaranty Agreement is limited to the amount Ponce Trust owed CCP Ponce, then this step is unnecessary. In calculating the amount due by Ponce Trust, the trial court applied the statutory, rather than the contractual, default interest rate to the post-Foreclosure Judgment sums due.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tyrone R. HARTSFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-1074
    District Court of Appeal of Florida, First District.
    May 7, 2019 Rehearing Denied June 14, 2019
    Tyrone R. Hartsfield, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Makar, Osterhaus, and Bilbrey, JJ., concur.


text:
    Samuel Yamil MENDEZ-CARMONA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1252
    District Court of Appeal of Florida, First District.
    May 2, 2019 Rehearing Denied June 27, 2019
    Samuel Yamil Mendez-Carmona, pro se, Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . See State v. Welker, 536 So.2d 1017, 1019-20 (Fla. 1988) ("[T]he giving of consent is a verbal act, and therefore testimony that someone has given consent is not hearsay." (quoting Welker v. State, 504 So.2d 802, 806 n.3 (Fla. 1st DCA 1987) ) ).

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    Richard SHEPPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-638
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019 Rehearing Denied June 18, 2019
    Richard Sheppard, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before SCALES, HENDON, and MILLER, JJ.
   PER CURIAM.

Affirmed. See State v. Whitehead, 472 So.2d 730, 731-32 (Fla. 1985) ("[P]ursuant to section 775.087(1), a first-degree felony shall be reclassified to a life felony if a weapon or firearm is used ..."); State v. Smith, 470 So.2d 764, 764 (Fla. 5th DCA 1985) ("Second degree murder is a felony of the first degree, and when committed with a firearm, is reclassified as a life felony." (internal citation omitted) (citing § 775.087(1)(a), Fla. Stat. (1983) ; Strickland v. State, 437 So.2d 150 (Fla. 1983) )).


text:
    Eduardo ALFONSO, et al., Petitioners, v. MIAMI-DADE COUNTY, Respondent.
    No. 3D19-348
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019. Rehearing Denied June 18, 2019
    Torricella Law, PLLC, and Maurice J. Baumgarten, for petitioners.
    Abigail Price-Williams, Miami-Dade County Attorney, and Leona N. McFarlane, Assistant County Attorney, for respondent.
    Before SCALES, LINDSEY and HENDON, JJ.
   SCALES, J.

Petitioners are eleven employees of respondent Miami-Dade County (the "County"). They seek certiorari review of a February 12, 2019 order of the trial court denying their second renewed motion to lift a stay in their case against the County over a wage dispute. In the alternative, Petitioners seek a writ of mandamus requiring the trial court to dismiss the case below for lack of subject matter jurisdiction so that they may pursue a plenary appeal to this Court. For the reasons stated below, we deny the petition for writ of certiorari and deny the alternate petition for writ of mandamus.

Factual and Procedural Background

Petitioners are County employees, each of whom the County hired at a rate of pay above "step 1" of their respective job classifications. In March of 2017, the County reduced each of the Petitioners' pay to the equivalent of the other employees in their job classifications. The County took this action because Petitioners' Union, AFSCME Local 199, maintained that the County's hiring of an employee at a rate higher than step 1 violated Article 44 of the Collective Bargaining Agreement (CBA). On June 28, 2017, Petitioners filed suit against the County in Circuit Court, alleging that the County had (i) violated section 448.08 of the Florida Statutes by failing to pay their wages, thus entitling them to an attorney's fee award; and (ii) breached their respective oral employment contracts by reducing Petitioners' pay.

On January 8, 2018, the County moved to dismiss the case for lack of subject matter jurisdiction, asserting that Petitioners are subject to the grievance procedure of the CBA, and failed to exhaust the remedies prescribed by the CBA. On January 9, 2018, the trial court dismissed the case for lack of subject matter jurisdiction. The next day, Petitioners moved to amend their complaint. In the amended complaint, Petitioners alleged that none of their claims were governed by the CBA.

On January 30, 2018, the trial court granted Petitioners' motion to amend their complaint, but stayed the case pending Petitioners' "submission of evidence that the grievance procedures and arbitration procedure set forth in the Collective Bargaining Agreement have been exhausted." Subsequently, Petitioners filed three motions to lift the stay - on February 9, 2018, January 10, 2019, and January 25, 2019 - all of which were denied.

At the March 15, 2018 hearing on the first motion to lift stay, Petitioners advised the trial court that five of the eleven Petitioners had filed with the Florida Public Employees Relations Commission (PERC) an unfair labor practice charge against their Union, AFSCME Local 199. Petitioners further advised the trial court that: (i) PERC dismissed these claims; (ii) the five Petitioners had appealed the dismissal to the First District Court of Appeal; and (iii) on December 14, 2018, the First District had affirmed the PERC dismissals. The record reveals some confusion about whether the trial court, at this March 15, 2018 hearing, included as a condition for lifting the stay that Petitioners' additional PERC litigation against the County also be administratively exhausted.

Petitioners then filed two renewed motions to lift the stay and, on February 12, 2019, the trial court entered the challenged order, again declining to lift the stay. Petitioners requested, as an alternative, that the trial court simply dismiss the case for lack of subject matter jurisdiction so they can pursue a plenary appeal to this Court. The trial court declined to do so.

Petitioners now seek to have this Court, by certiorari, quash the trial court's order denying Petitioners' motion to lift the stay; or, in the alternative, require the trial court to dismiss their case again.

Analysis

Petitioners maintain they are in legal limbo: the trial court will neither lift the stay nor dismiss the case. After the trial court's January 9, 2018 dismissal order, though, Petitioners were the parties who sought leave to amend their complaint. The trial court allowed the amendment, but only on the condition that Petitioners demonstrate that they had exhausted their administrative remedies. Petitioners accepted this condition. Thus, notwithstanding Petitioners' legal limbo, we are unable to conclude that the trial court, in its refusal to lift the stay, somehow departed from the essential requirements of law. Chessler v. All Am. Semiconductor, Inc., 225 So.3d 849, 852 (Fla. 3d DCA 2016). While we are not unsympathetic to Petitioners' posture, we deny the petition for writ of certiorari.

We further deny Petitioners' alternate request for mandamus relief. While mandamus is available to compel a lower tribunal to issue a ruling that it has delayed unreasonably, mandamus is not available, as Petitioners seek here, to compel a trial court to make a particular ruling. See Lakeshore Townhomes Condo. Ass'n, Inc. v. Bush, 664 So. 2d 1170, 1170 (Fla. 4th DCA 1995). Indeed, mandamus is available only when a trial court fails to perform a ministerial duty; it is not an appropriate vehicle to compel a trial court to perform a discretionary action. City of Miami v. Vill. of Key Biscayne, 197 So.3d 580, 583 (Fla. 3d DCA 2016).

Petitions denied.

      The CBA is the Collective Bargaining Agreement Between Miami-Dade County and American Federation of State, County and Municipal Employees A.F.L.-C.I.O. General Employees, Local 199, effective September 1, 2014 - September 30, 2017. Article 44 provides, in pertinent part, as follows: "For all employees hired into the County Service on or after November 1, 1991, the entrance pay rate for all bargaining unit classifications shall be pay step 1 of the appropriate pay range in the Miami-Dade County Pay Plan."

      Article 8 of the CBA sets forth a grievance procedure to resolve certain employment disputes between the parties. If the internal grievance procedure is completed without satisfaction to the employee, the Union may request arbitration under Article 9 of the CBA. Although our record is not entirely clear, it appears that five of the Petitioners participated in the grievance procedure, but the Union declined to file for arbitration on their behalf.

      The trial court's January 9, 2018 dismissal order was a final, appealable order. While not at all clear from the record, it appears, though, that the parties and the trial court treated Petitioners' January 10, 2018 motion seeking leave to amend as a rehearing motion under Florida Rule of Civil Procedure 1.530. Otherwise, we are unaware of how - after its dismissal of the case for lack of subject matter jurisdiction - the trial court could have retained jurisdiction to adjudicate a motion seeking leave to amend a pleading.

      See, e.g., Armand v. Miami-Dade County, 258 So.3d 392 (Fla. 1st DCA 2018) (table).

      We are puzzled why the parties think extraordinary relief is appropriate in this Court at this stage of the case. Petitioners want the case to be dismissed. In the County's response brief, the County "requests the Court deny the petition and remand with instructions to Trial Court to close Petitioners/Plaintiffs' case against Miami-Dade County." It seems to us that the parties can conclude the case in the lower court without this Court's intervention.


author: MILLER, J.

text:
    COUNTRY CLUB OF MIAMI CONDOMINIUM ASSOCIATION, INC., Appellant, v. Naidima GRACIA, et al., Appellees.
    No. 3D18-791
    District Court of Appeal of Florida, Third District.
    Opinion filed May 22, 2019 Rehearing Denied June 20, 2019
    Kawel PLLC, and Andrew Paul Kawel and Andrew Richard Verblow, for appellant.
    Roger Cabrera, P.A., and Roger Cabrera, for appellees.
    Before EMAS, C.J., and SCALES and MILLER, JJ.
   MILLER, J.

As we have no basis for concluding the trial court abused its discretion in denying appellant's motion for entitlement to attorney's fees, we affirm. See Kelsey v. Metro Constr., 31 So.3d 252, 254 (Fla. 3d DCA 2010) ("The standard of review for prevailing party attorney's fees is abuse of discretion." (citation omitted)); see also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a[n adequate] record ... the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); Del Valle v. Biltmore II Condo. Ass'n, Inc., 411 So.2d 1356, 1358 (Fla. 3d DCA 1982) ("Where, as here, the unit owner denies each and every material allegation in a complaint for injunctive relief and, additionally, interposes affirmative defenses ... which, if proved at time of trial, would have precluded the Association from obtaining the relief requested, we have no basis for concluding that the Association was the prevailing party where the dismissal for mootness was unrelated to the merits of the case.").

Affirmed.


author: KELLY, Judge.

text:
    Stacey WALKER, Appellant/Cross-Appellee, v. Kristi WALKER, Appellee/Cross-Appellant.
    Case No. 2D17-4575
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    Toni A. Butler of Alderuccia & Butler, LLC, Naples, for Appellant/Cross-Appellee.
    Lisa P. Kirby of Law Office of Lisa P. Kirby, P.A., Naples, for Appellee/Cross-Appellant.
   KELLY, Judge.

Stacey Walker, the former husband, appeals and the former wife, Kristi Walker, cross-appeals from the final judgment dissolving their twenty-six-year marriage. The former husband challenges certain financial aspects of the judgment, as well as the timesharing plan. The former wife contests the equitable distribution award as it relates to the marital residence. She also contends that the trial court erred by not requiring the former husband to secure his alimony and child support obligations with a life insurance policy, not extending child support until the youngest child graduates high school, and not awarding her ultimate decision-making authority over the children's education. We affirm the final judgment in part, reverse in part, and remand for further proceedings.

Alimony

The former husband argues that the final judgment contains no findings to support the $ 2500 alimony award and that combined with child support, the amount exhausts his income. "The trial court's award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court's findings regarding the amount of alimony awarded, the appellate court will reverse the award." Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003) (citation omitted); see also Crick v. Crick, 78 So.3d 696, 698 (Fla. 2d DCA 2012). "[A] party is entitled to alimony when that party has an actual need for alimony and the other party has the ability to pay." Turcotte v. Turcotte, 122 So.3d 954, 956 (Fla. 2d DCA 2013).

Here, the record supports the trial court's general finding of the former wife's need and the former husband's ability to pay alimony. See id. However, we cannot discern from this record whether the parties' incomes and expenses are properly calculated or whether the award based on those calculations are correct; specifically, the amount the former husband is able to earn working overtime. See Martinez v. Abinader, 37 So.3d 944, 947 (Fla. 2d DCA 2010) (stating that the trial court should consider all sources of a party's income in determining the ability to pay alimony). Therefore, we reverse the alimony award and remand for the trial court to provide specific factual findings to support the award as required by section 61.08(2), Florida Statutes (2016), and, if necessary, revisit the amount of the award in light of the findings.

Child Support

The former husband argues that the child support award was incorrectly calculated because the $ 2500 alimony award was not deducted from his gross income as required by section 61.30(4). Based upon our review of the child support guidelines worksheet, which is attached and incorporated into the final judgment, it appears that the former husband is incorrect and that the amount was properly deducted. However, the former husband's argument that the trial court erred in using the gross-up method to determine child support is well taken. The former wife concedes this was error but correctly contends reversal is not required because the amount awarded does not exceed five percent of what the child support award would have been without using the gross-up method. See § 61.30(1)(a) (providing that any deviation beyond five percent of the child support guideline amount requires a written finding); Fla. Dep't of Revenue ex rel. Bloemendal v. Hodge, 754 So.2d 845, 846 (Fla. 2d DCA 2000) (stating that specific findings are not required for a five percent deviation from the child support guidelines). In light of our directive to the trial court to revisit the alimony issue, on remand, the trial court shall determine whether the child support award needs to be recalculated.

Timesharing

The former husband contends that the trial court applied an incorrect standard when it awarded the former wife the majority of timesharing. We agree. In limiting the former husband's timesharing, the court stated:

Based on the testimony and evidence presented at the trial, the Husband does not have adequate physical space to have the children for extended periods of parenting time. As such, the Court finds that it is currently in the children's best interest to have the majority of parenting time with the Wife. Should the Father's living situation change in the future, the Father may pursue a Supplemental Petition to Modify the Parenting Plan at that time.

The trial court made no other findings, and it did not indicate that it considered the timesharing factors set forth in section 61.13.

In Martinez, this court held that the trial court erred "by equating the child's 'environment,' as referenced in section 61.13(3)(d) ... with the physical structure where the child lived." 37 So.3d at 945. As in Martinez, the trial court used an incorrect standard in deciding timesharing. Thus, we reverse this provision of the final judgment for reconsideration in accordance with the factors outlined in section 61.13. See id. at 946.

Extracurricular Activities

The former husband alleges that the trial court erred in including in the judgment a provision allowing either parent to enroll the children in extracurricular activities without the consent of the other and then obligating the parties to pay for the activities equally. As the former wife concedes error, we reverse this provision. See Gross v. Zimmerman, 197 So.3d 1248, 1254 (Fla. 4th DCA 2016) (finding an abuse of discretion where trial court ordered the father to pay for extracurricular activities without input or information regarding cost); Gordon v. Gordon, 63 So.3d 824, 827-28 (Fla. 5th DCA 2011) (same).

Child Support Arrearage

The former husband alleges error in the trial court's determination that he has a child support arrearage in the amount of $ 8109.40. The former wife concedes that the trial court erred in not making specific findings regarding how it arrived at this figure. Therefore, we reverse the amount of child support arrearage. On remand, the trial court shall make specific findings regarding the amount of the arrearage, if any, based upon the evidence presented. See T.J.D. v. A.G., 39 So.3d 360, 363-64 (Fla. 2d DCA 2010) (stating that the trial court's finding regarding the amount of child support arrearage must be supported by substantial, competent evidence).

Transportation

The former husband argues that the trial court erred in ordering him to provide all transportation for timesharing. "[T]he expenses of visitation are part of the parties' childrearing expenses that must be addressed as part of the parties' child support obligations." Perez v. Fay, 160 So.3d 459, 466 (Fla. 2d DCA 2015) ; see also Hindle v. Fuith, 33 So.3d 782, 786-87 (Fla. 5th DCA 2010) ("Child support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means."). On remand, the trial court shall reconsider this issue and if warranted, amend the final judgment accordingly.

Taxes

The former husband argues that the trial court should have classified a portion of his temporary support as alimony and provided that it be deductible on his tax return. He also contends that the trial court did not indicate whether the permanent alimony award would be deductible or nondeductible as required by section 61.08(2)(h), which provides that the court shall consider "[t]he tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment." See Tarkow v. Tarkow, 128 So.3d 82, 85 (Fla. 2d DCA 2013) (reversing alimony award and remanding for recalculation where the trial court failed to consider the tax consequences of the award). The record reflects that the former husband raised this issue but the trial court did not address it. This was error. On remand, the trial court is directed to address this issue and amend its final judgment accordingly.

Mortgage Interest Deduction

The former husband contends that he is entitled to an interest deduction because he paid the mortgage on the marital residence from February 2016 through October 2017. The former wife concedes that the trial court should have addressed the mortgage interest deduction; however, she does not agree the deduction should have been awarded to the former husband. On remand, the trial court shall address this issue and make the requisite specific findings.

Equitable Distribution

Finally, the former husband contends that the trial court should have addressed his request for an unequal distribution because the former wife disposed of the majority of his personal belongings. Based on the testimony at trial regarding this issue, we cannot say the trial court abused its discretion in ruling as it did.

Cross-Appeal

Sale of Marital Residence

The former wife argues that the trial court erred in failing to consider the best interests of the minor children when it ordered that the marital residence be sold. We disagree. "As a general rule, a trial court should award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances." Coristine v. Coristine, 53 So.3d 1204, 1204 (Fla. 5th DCA 2011). " 'Special circumstances' exist where the parties' incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expenses of maintaining the marital residence." Id. at 1205. Based on the testimony at trial and the parties' limited assets, we cannot say the trial court abused its discretion in finding that the parties do not have a sufficient, combined income to meet their obligations and still maintain the marital residence. Thus, we affirm the trial court on this issue.

Life Insurance

Next, the former wife argues that the trial court abused its discretion in not ordering that the former husband maintain life insurance as security for alimony and child support. Regarding alimony:

"[I]n determining whether to secure support awards, the trial court should consider the need for such insurance, the cost and availability of such insurance, and the financial impact upon the obligor." Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005). "In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing alimony obligations." Pinion v. Pinion, 818 So.2d 557, 557 (Fla. 2d DCA 2002).

Shimer v. Corey, 230 So.3d 624, 624-25 (Fla. 2d DCA 2017) (alteration in original). As to child support:

Generally, the trial court has discretion to order the payor of child support to maintain a life insurance policy in order to secure the award. § 61.13(1)(c), Fla. Stat. (2012). However, the court's order must include findings on the cost of the insurance and whether the obligor can afford it, and there must be special circumstances that would necessitate such an order. See Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002).

Velaga v. Gudapati, 148 So.3d 550, 551 (Fla. 2d DCA 2014).

The record reveals that the former husband not only has a life insurance policy in effect through his employer, but also that he pays for additional life insurance. The former husband testified that although the former wife is currently the beneficiary of the policy, he would like to replace her as beneficiary with a friend. There was no testimony that the former husband cannot afford the insurance or that there is some safeguard to ensure the funds go to his children in the event of his death. These circumstances, especially in light of the long-term duration of the marriage and the former wife's need for support, provide a basis for the court to require the former husband to have insurance for the benefit of the former wife, yet the final judgment is silent on her request. On remand, the trial court shall address the wife's request regarding life insurance and make specific findings in support of its decision to either grant or deny the request.

Child Support

The former wife contends that the judgment improperly awarded child support only until the children turn eighteen and that the judgment should be amended to include language that support shall continue for the children if they are still in high school upon turning eighteen and reasonably expect to graduate before the age of nineteen. We agree.

Section 743.07(2), Florida Statutes (2016), allows for an award of support for a child who is between the ages of eighteen and nineteen and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of nineteen. If a child is in their senior year in high school at the time that child turns eighteen, "the trial court should either award child support until the date [the child] graduates or set forth findings of fact explaining why such relief is denied." Hill v. Hooten, 776 So.2d 1004, 1008 (Fla. 5th DCA 2001). The former husband objects and contends that the former wife could petition the court for a modification if this situation arises. We agree with the former wife that this is a waste of judicial resources. On remand, the trial court is directed to address this issue in the judgment. See id.

Decision-Making Authority

Finally, the former wife argues that the trial court erred in not awarding her ultimate decision-making authority regarding the children because the former husband refuses to communicate with her. We disagree. Shared parental responsibility contemplates that major decisions affecting the welfare of a child are to be made after both parents confer and reach an agreement. Cranney v. Cranney, 206 So.3d 162, 164 (Fla. 2d DCA 2016). By awarding one parent ultimate decision-making authority on issues affecting the children, the trial court essentially nullifies the award of shared parental responsibility. See id. It is clear from the testimony at trial that the parties have an acrimonious relationship. In fact, both parties requested ultimate decision-making authority. However, we cannot conclude on this record that the trial court abused its discretion in failing to award the former wife ultimate decision-making authority.

Accordingly, we reverse those portions of the judgment as set forth above and remand for the trial court to revisit these issues and to make specific findings to support its rulings consistent with this opinion. All other portions of the judgment are affirmed.

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

CASANUEVA and ATKINSON, JJ., Concur.


text:
    Damien B. FORD, Appellant, v. FLORIDA HOSPITAL EAST ORLANDO, Appellee.
    No. 1D18-1196
    District Court of Appeal of Florida, First District.
    May 28, 2019 Rehearing Denied June 27, 2019
    Richard S. Larson of Rick Larson Law, Winter Garden, for Appellant.
    Craig S. Foels, Christian P. Trowbridge, and Dinelia Concepcion of Estes, Ingram, Foels & Gibbs, P.A., Maitland, for Appellee.
   Per Curiam.

AFFIRMED . See Marchman v. St. Anthony's Hosp., Inc. , 152 So.3d 830, 831 (Fla. 2d DCA 2014) (holding that the Florida Commission on Human Relations lacked jurisdiction over hospitals); Crane v. Lifemark Hosp. of Fla., Inc. , 149 So.3d 718, 721 (Fla. 3d DCA 2014) (concluding that a hospital was not a covered establishment under the Florida Civil Rights Act). See also Mena v. Lifemark Hosps. of Fla., Inc. , Final Order No. 12-023, 2012 Fla. Div. Adm. Hear. LEXIS 253, *4 (FCHR May 16, 2012) (a hospital cafeteria cannot turn a hospital into a place of public accommodation), aff'd, Mena v. Lifemark Hosps. of Fla., Inc. , 109 So.3d 787 (Fla. 1st DCA 2013).

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    N.B., the Mother, Appellant, v. DEPARTMENT OF CHILDREN OF FAMILIES, et al., Appellees.
    No. 3D18-2525
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Law Offices of Roger Ally, P.A., and Roger Ally, Fort Lauderdale, for appellant.
    Karla F. Perkins, Miami, for appellee the Department of Children and Families; Akerman LLP, and Tracy Tatnall Segal (West Palm Beach); Thomasina Moore (Tallahassee), and Laura J. Lee (Tallahassee), for appellee the Guardian ad Litem Program.
    Before SALTER, HENDON, and MILLER, JJ.
   MILLER, J.

N.B., the mother, challenges a final judgment terminating her parental rights. On appeal, she argues that the lower tribunal's exercise of jurisdiction failed to comport with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), thus rendering the final judgment void ab initio . For the reasons set forth below, we disagree and affirm the final judgment under review.

In January 2017, the mother gave birth to a son in Miami-Dade County, Florida. Although the mother was unmarried at the time of the child's birth, she remained involved in an amorous relationship with D.M., the child's biological father. In September 2017, the mother and father temporarily traveled to California with the child to escape the forecasted path of destruction of Hurricane Irma. Upon their arrival in California, the parents left the child in a short-term vacation rental without air conditioning. The child was restrained in a car seat, without care or supervision, for an indeterminate number of hours. The child's cries eventually alerted neighbors to his plight. Law enforcement officers were summoned, and the child was medically evaluated and placed in emergency foster care in California. Both parents were subsequently arrested, incarcerated for approximately one week, and charged with child endangerment and negligence.

On September 13, 2017, the Los Angeles County Department of Children and Family Services invoked the temporary emergency jurisdiction of the California courts, pursuant to the UCCJEA, by initiating juvenile dependency proceedings. On September 18, 2017, the Superior Court of California, Los Angeles County conducted a detention hearing, with the mother present. At the hearing, the court appointed counsel to represent the mother. The court rendered a threshold determination regarding the applicability of the UCCJEA and apprised all parties of its intent to facilitate communication between the supervising judge of the California court and the Eleventh Judicial Circuit Court of Florida. Thereafter, the court informed the parents that jurisdictional and dispositional issues would be heard at a future hearing, and an unfavorable resolution was possible in the event of a failure to appear. The jurisdictional review hearing was calendared for October 31, 2017. Although the mother remained represented by counsel, she abstained from participation in the communication between the California and Florida courts and neglected to materialize at the jurisdictional hearing.

On November 6, 2017, in the parallel criminal proceedings, both parents entered pleas of guilty to child endangerment and negligence charges, wherein probationary terms were imposed. The parents subsequently returned to Miami-Dade County and received probationary transfers under the Interstate Compact for Adult Offender Supervision.

On January 5, 2018, the California court convened a status conference in the temporary emergency proceedings. The court was informed that the paternal grandmother, residing in Florida, was willing to foster the child. On January 12, 2018, the child was adjudicated dependent, and the court ordered the Los Angeles County Department of Children and Family Services "to contact its counterpart in the State of Florida" in order to facilitate an executive transfer.

On March 29, 2018, the Florida trial court rendered a written order, accepting the transfer of jurisdiction of the California case. The child was returned to Florida and placed in the care of his paternal grandmother. The mother subsequently relocated to Michigan and ceased contact with the child. On November 28, 2018, following a lengthy adjudicatory hearing, the mother's parental rights were terminated. This appeal ensued.

STANDARD OF REVIEW

"Whether a court has subject matter jurisdiction pursuant to the UCCJEA is a question of law reviewed de novo." McAbee v. McAbee, 259 So. 3d 134, 139 (Fla. 4th DCA 2018) (citing In re D.N.H.W., 955 So. 2d 1236, 1238 (Fla. 2d DCA 2007) ).

ANALYSIS

The mother contends that Florida did "not have [subject matter] jurisdiction to terminate [her] parental rights." "Subject matter jurisdiction-the 'power of the trial court to deal with a class of cases to which a particular case belongs'-is conferred upon a court by constitution or by statute." Strommen v. Strommen, 927 So. 2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994) ). The term jurisdiction must be used precisely and only when apposite:

"Jurisdiction" refers to "a court's adjudicatory authority." Kontrick v. Ryan, 540 U.S. 443, 455, 124 S. Ct. 906, 915, 157 L.Ed. 2d 867 (2004). Accordingly, the term "jurisdictional" properly applies only to "prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)" implicating that authority. Id.; see also Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L.Ed. 2d 210 (1998) ("subject-matter jurisdiction" refers to "the courts' statutory or constitutional power to adjudicate the case") (citation omitted) (emphasis in original); Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S. Ct. 1483, 1503, 128 L.Ed. 2d 229 (1994)
("[J]urisdictional statutes 'speak to the power of the court rather than to the rights or obligations of the parties.' ") (quoting Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 100, 113 S. Ct. 554, 565, 121 L.Ed. 2d 474 (1992) (Thomas, J., concurring)) ... [W]e have encouraged federal courts and litigants to "facilitate[e]" clarity by using the term "jurisdictional" only when it is apposite. Kontrick, 540 U.S. at 455, 124 S. Ct. at 915.

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61, 130 S. Ct. 1237, 1243-44, 176 L.Ed. 2d 18 (2010) (last alteration in original). The circuit courts of Florida are "superior courts of general jurisdiction, and nothing is intended to be out of the jurisdiction of a superior court, except that which specially appears so to be." Curtis v. Albritton, 101 Fla. 853, 861, 132 So. 677, 681 (1931) (citation omitted); see Art. V, § 5(b), Fla. Const.; § 26.012, Fla. Stat. (2018). More precisely,

The Circuit courts of the State of Florida are courts of general jurisdiction-similar to the Court of King's Bench in England-clothed with most generous powers under the Constitution, which are beyond the competency of the legislature to curtail. Ex Parte Henderson, 6 Fla. 279, 279-80 (1855) ; Lamb v. State, 91 Fla. 396, 401, 107 So. 535, 537 (1926). They are superior courts of general jurisdiction, subject of course to the appellate and supervisory powers vested in the Supreme Court by the Constitution, and as a general rule it might be said that nothing is outside the jurisdiction of a superior court of general jurisdiction except that which is clearly vested in other courts or tribunals, or is clearly out side of and beyond the jurisdiction vested in such circuit courts by the Constitution and the statutes enacted pursuant thereto. Chapman v. Reddick, 41 Fla. 120, 132, 25 So. 673, 676 (1899) ; Curtis, 101 Fla. at 861-62, 132 So. at 681.

S. Records and Tape Serv. v. Goldman, 458 So. 2d 325, 326-27 (Fla. 3d DCA 1984) (quoting State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 504, 192 So. 175, 177 (1939) ).

A court's exercise of subject matter jurisdiction over interstate child custody disputes is guided by the UCCJEA, a uniform law that has been adopted in some iteration by all states, with the exception of Massachusetts. Leigh R. Shinohara, Foreign Judgments, in Florida Proceedings After Dissolution of Marriage 9-1 (13th ed., The Florida Bar 2017). The UCCJEA strives "to avoid jurisdictional competition between states or countries, promote interstate cooperation, avoid relitigation of another state's or country's custody decisions[,] and facilitate enforcement of another state's or country's custody decrees." In re Gloria A., 213 Cal.App.4th 476, 152 Cal. Rptr. 3d 550, 555 (2013) (citation omitted); see § 61.502, Fla. Stat. (2018).

Pursuant to the initial child custody jurisdiction provision of the UCCJEA, codified in section 61.514, Florida Statutes (2018), the child's "home state" is unequivocally granted priority to exercise jurisdiction to determine initial custody matters, except in temporary emergency situations when the child is present in another state. Arjona v. Torres, 941 So. 2d 451, 454 (Fla. 3d DCA 2006). "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least [six-]consecutive months immediately before the commencement of a child custody proceeding." § 61.503(7), Fla. Stat (2018). In computing the requisite six-month period, "[a] temporary absence of [a parent or person acting as a parent] is part of the period." Id. Moreover, "[t]he state with home state jurisdiction over the child has [jurisdictional] priority under the UCCJEA." Baker v. Tunney, 201 So. 3d 1235, 1237 (Fla. 5th DCA 2016) (citation omitted); see also § 61.514, Fla. Stat. (2018).

In the instant case, prior to traveling to California, the child lived with his parents for more than six-consecutive months in Florida. Thus, under the UCCJEA, Florida was his home state and retained "jurisdictional priority" over any other state. Karam v. Karam, 6 So. 3d 87, 90 (Fla. 3d DCA 2009) ("Under the UCCJEA, jurisdictional priority lies in the child's home state.") (citation omitted).

As previously referenced, as an exception to the exercise of general "home state" jurisdiction, the UCCJEA further provides for the exercise of "temporary emergency jurisdiction if the child is present in [the] state and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to[,] or threatened with[,] mistreatment or abuse." § 61.517(1), Fla. Stat. (2018) ; see Cal. Fam. Code § 3424(a) (2018); see also In re A.M., 224 Cal.App.4th 593, 168 Cal. Rptr. 3d 494, 498 (2014) ; Steckler, 921 So. 2d at 743-44. California courts have further interpreted the statutory language, and found "[a]n 'emergency' exists when there is an immediate risk of danger to the child if he or she is returned to a parent." In re A.M., 168 Cal. Rptr. 3d at 498 (citation omitted). Here, as the child was abandoned by his parents in California, it is indisputable that California permissibly invoked temporary emergency jurisdiction under the UCCJEA.

Nonetheless, the mother contends that Florida, thereafter, improperly exercised jurisdiction, as in the absence of a formal termination of the California proceedings, the California case remained concurrently active. See § 61.519(1), Fla. Stat. (2018) ("[A] court of [Florida] may not exercise its [home state] jurisdiction ... [if] a proceeding concerning the custody of the child had been commenced in a court of another state [properly exercising] jurisdiction ... unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520."). We agree that, under the broad statutory definition promulgated in section 61.503(4), Florida Statutes (2018), the temporary emergency proceeding constituted an earlier-initiated child custody proceeding. Nevertheless, California's act of transferring the case necessarily evidenced a declination to further exercise temporary jurisdiction, and the ensuing acceptance of transfer by Florida entailed a de facto, contemporaneous termination of the temporary proceedings. See e.g., In re Am. President Lines, Ltd., 929 F.2d 226 (6th Cir. 1991) (discussing that a transfer of a case divests the originating court of further jurisdiction); Transfer , The American Heritage Dictionary (5th ed. 2019) (defining "transfer" as the action "to convey or cause to pass from one place, person, or thing to another.").

Moreover, as the purpose of a temporary order under emergency jurisdiction "is to protect the child until the [s]tate that has jurisdiction [as the 'home state'] enters an order," a vast body of jurisprudence dictates that emergency jurisdiction is intended to be impermanent and transient. UCCJEA § 204 comment (1997); see § 61.517(2), Fla. Stat. (2018) ; see, e.g., In re Gino C., 224 Cal.App.4th 959, 169 Cal. Rptr. 3d 193, 198 (2014) ("Emergency jurisdiction [can] be exercised to protect a child only on a temporary basis until the court with appropriate jurisdiction issue[s] a permanent order.") (citation omitted). Therefore, "[i]f there is no previous child custody determination that is entitled to be enforced ... and a child custody proceeding has not been commenced [in the 'home state']," then temporary emergency jurisdiction only lasts "until an order is obtained from a court of a state having jurisdiction [as the home state of the child]." § 61.517(2), Fla. Stat. (2018) ; Cal. Fam. Code § 3424(b) (2018); see also In re Gino C., 169 Cal. Rptr. 3d at 198 ("[T]he UCCJEA provides for 'temporary emergency jurisdiction, that can ripen into continuing jurisdiction only if no other state with grounds for continuing jurisdiction can be found or, if one is found, that state declines to take jurisdiction .' ") (citation omitted) (emphasis in original). Here, by exercising jurisdiction, following California's temporary emergency exercise of jurisdiction, Florida fulfilled the purpose and intent of the UCCJEA, as it remained the state endowed with home state jurisdictional priority.

Finally, the mother asserts that California procedurally erred in relinquishing jurisdiction, effectively depriving her of her right to procedural due process and divesting the Florida court of jurisdiction. Subject matter "jurisdiction does not depend on procedural rules." Dougherty v. Dep't of Labor & Indus., 150 Wash.2d 310, 76 P.3d 1183, 1185 (2003) (citation omitted). "If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction." Robert J. Martineau, Subject Matter Jurisdiction as New Issue on Appeal: Reining in an Unruly Horse, 1988 BYU L. Rev. 1, 28. Thus, any failure by the California court to adhere to procedural requirements, as alleged, is not within the purview of our review. See Krebs v. Krebs, 183 Md.App. 102, 960 A.2d 637, 643 (2008) (Appellant "makes her argument in the wrong court ... if [she] was aggrieved by [the sister] court's declination of jurisdiction, the appropriate review would be in the appellate courts [of the sister court's jurisdiction] ... our conclusion is also consistent with other decisions applying the UCCJEA ...") (citing Ramsey v. Ramsey, 995 So. 2d 881 (Ala. Civ. App. 2008) ; Cole v. Cushman, 946 A.2d 430 (Me. 2008) ; Fickinger v. Fickinger, 342 Mont. 552, 182 P.3d 763 (2008) ; Griffith v. Tressel, 394 N.J.Super. 128, 925 A.2d 702 (App. Div. 2007) ; Horgan v. Romans, 366 Ill.App.3d 180, 303 Ill.Dec. 311, 851 N.E.2d 209 (2006) ; Shanoski v. Miller, 780 A.2d 275 (Me. 2001) ).

CONCLUSION

As California exclusively exercised temporary emergency jurisdiction, and Florida remained the child's home state, the exercise of jurisdiction by the lower tribunal, following the court-ordered transfer and subsequent acceptance of the case, was in substantial conformity with the requirements of the UCCJEA. Accordingly, we affirm the final judgment under review.

Affirmed.

      In 2002, the Florida Legislature adopted provisions of the UCCJEA, as codified in section 61.501 et seq., Florida Statutes (2018). See Steckler v. Steckler, 921 So. 2d 740, 742 (Fla. 5th DCA 2006). California's adopted version of the UCCJEA is codified in section, 400 et seq., California Family Code (2018).

      See Cal. Fam. Code § 3424(a) (2018).

      See § 949.07, Fla. Stat. (2018).

      The trial court terminated the parental rights of both parents, however, only the mother has appealed.

      Section 3402(g), California Family Code (2018), contains an identical definition.

      The UCCJEA defines "abandoned" as "left without provision for reasonable and necessary care or supervision." § 61.503(1), Fla. Stat. (2018) ; Cal. Fam. Code § 3402(a) (2018).

      Section 61.503(4), Florida Statutes (2018), defines "[c]hild custody proceeding" as "a proceeding in which legal custody ... with respect to a child is an issue. The term includes a proceeding for ... abuse, dependency, guardianship ... in which the issue may appear."

      The mother also asserts the Florida court procedurally erred in accepting jurisdiction; however, we find no merit to this claim. First, the mother conflates the statutory burdens encumbering a court declining to exercise jurisdiction with the duty of a home state to accept transfer absent a reasoned determination that it is an inconvenient forum. See § 61.520(2), Fla. Stat. (2018). Second, it is axiomatic that the Florida court acquired personal jurisdiction over the mother, as she appeared during the Florida proceedings and stipulated to the entry of a case plan. See C.J.L-M. v. Dep't Children & Families, 248 So. 3d 1184, 1185 (Fla. 4th DCA 2018) (holding "the mother's personal appearance at the shelter hearing obviated the need for service of process [of a subsequently filed dependency petition]") (citation omitted).

      We note the mother's arguments are incongruous, as she first contends that California continued to exercise jurisdiction, and then asserts that California improperly relinquished its continuing jurisdiction. These arguments do not represent arguments in the alternative based on varying interpretations of the law, but rather constitute contradictory presentations of the facts that leave us to grapple with the record "in an effort to ferret out the dispositive issues." Auto World Body & Paint, Inc. v. Sun Elec. Corp., 471 So. 2d 212, 213 (Fla. 1st DCA 1985).

      "Were we to undertake a review of the [California] court's decision to decline jurisdiction ... we would produce a jurisdictional conflict in this [termination of parental rights case] that the UCCJEA was intended to eliminate." Krebs, 960 A.2d at 646.


author: COHEN, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. S.B., Mother of J.B., A Child and Guardian Ad Litem, Respondents.
    Case No. 5D19-538
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 6, 2019
    Kelley Schaeffer, of Children's Legal Services, Bradenton, for Petitioner.
    Joseph M. Conti, Melbourne, for Respondent, S.B.
    Thomasina F. Moore and Joanna Summers Brunell, Florida Statewide Guardian ad Litem Office, Tallahassee, for Respondent, Guardian ad Litem Program.
   COHEN, J.

The Department of Children and Families ("DCF") petitions for a writ of certiorari and seeks to quash two orders entered by the lower court, both of which temporarily placed J.B. ("Child") in a relative's custody outside of Florida pending the outcome of S.B.'s ("Mother") dependency proceeding. We grant the petition, quash the orders, and remand the matter for further proceedings.

Following Child's birth in May 2018, DCF petitioned to shelter Child. In the shelter petition, DCF requested a home study of Child's maternal grandfather's home in Alabama, in compliance with the requirements of the Interstate Compact on the Placement of Children ("ICPC"), as provided in section 409.401, Florida Statutes (2018). DCF sheltered Child pending an arraignment hearing on the petition.

The ICPC home study was not completed before the scheduled arraignment hearing. At the hearing, DCF objected to Child's placement in Alabama without the completion of the home study. The court nevertheless placed Child in the temporary legal custody of the maternal grandfather.

DCF moved for reconsideration/rehearing, arguing that the court violated the ICPC. It asked the court to vacate its previous order and place Child in foster care. In its denial order, the court expressly refused to apply the ICPC. The court called the ICPC "an antiquated law" that "does not take into consideration the best interests of children nor emergent care." It also stated that the ICPC destroys families "around this country every day," leaving courts unable to make independent decisions. The court ruled that it would "put the child first and the ICPC second."

We recognize the trial court's well-intentioned motives. Its goal was to place Child with family rather than into the foster care system. However, as we have previously recognized, a trial court is not free to disregard the ICPC, even if the court believes that the statute handcuffs it in determining a child's best interest under the unique circumstances of the case. See Dep't of Child. & Fams. v. T.T., 42 So. 3d 962, 963-64 (Fla. 5th DCA 2010) (noting trial court's frustration with the ICPC but holding that "a trial court cannot send children to a receiving state unless it has complied with 'each and every requirement set forth' in Article III of the ICPC" (quoting Dep't of Child. & Fams. v. Fellows, 895 So. 2d 1181, 1185 (Fla. 5th DCA 2005) )); H.P. v. Dep't of Child. & Fams., 838 So. 2d 583, 584-85 (Fla. 5th DCA 2003) (same).

The primary culprit in these cases is the delay caused by compliance with the ICPC. Home studies take entirely too long, and as the trial court observed, result in non-relative placements, which may not necessarily be in the best interest of the child. We offer no solution to what we recognize as a systemic problem. This issue is best addressed by the legislative branch. However, as we and our sister courts have previously held, we find that the trial court departed from the essential requirements of law in disregarding the ICPC. See T.T., 42 So. 3d at 963-64 ; see also M.A.C. v. Dep't of Child. & Fams., 73 So. 3d 327, 328 (Fla. 1st DCA 2011).

While we do not typically reward the failure to follow the law, neither do we wish to cause harm to Child, who is caught in the middle of this dispute. This Court has permitted children to remain where their best interests lie pending the completion of the ICPC process. See D.R. v. J.R., 203 So. 3d 952, 956 (Fla. 5th DCA 2016) ("[N]otwithstanding the trial court's error, the children are not required to be immediately returned to Florida." (citations omitted)); T.T., 42 So. 3d at 964 (requiring trial court to comply with the ICPC requirements but remanding for trial court to determine where children should reside, in light of their best interests, pending the ICPC process in Georgia); see also B.G. v. Dep't of Child. & Fams., 189 So. 3d 305, 306 n.2 (Fla. 4th DCA 2016) ("Even if an out-of-state placement does not strictly comply with the ICPC, a court may allow the child to remain in the out-of-state placement during the ICPC process if it is in the child's best interest." (quoting R.F. v. Dep't of Child. & Fams., 50 So. 3d 1243, 1244 (Fla. 4th DCA 2011) )). It does not appear that the parties to this case dispute that the best interest of Child is to stay with the maternal grandfather during the ICPC process. Thus, we quash the January 28, 2019 arraignment order and the February 25, 2019 order denying DCF's motion for reconsideration/rehearing and remand the case for further proceedings consistent with this opinion.

PETITION GRANTED; ORDERS QUASHED; CAUSE REMANDED.

ORFINGER and GROSSHANS, JJ., concur.

      Mother had two other children whom DCF removed prior to Child's birth.

      "The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child." § 409.401, Art. III(d), Fla. Stat. (2018).

      The court ordered that the maternal grandfather maintain contact with Child's Florida case management officials every thirty days via Skype, with Child viewable to the officials.


text:
    Walter Lee WRIGHT, Petitioner, v. John KOLODZIEJ, Warden, Century Correctional Institution, Respondent.
    No. 1D18-4689
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Walter Lee Wright, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

Because Petitioner seeks a belated appeal of an order entered in a civil proceeding, the petition for belated appeal is denied. See Powell v. Fla. Dep't of Corr. , 727 So. 2d 1103 (Fla. 1st DCA 1999).

Roberts, Ray, and Winsor, JJ., concur.


author: Wolf, J. Winokur, J., concurring.

text:
    William Burr MILLIRON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3889
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges the denial of his motion to suppress after entry of a negotiated plea. Because we find the resolution of appellant's motion is not dispositive of appellant's case, we affirm. Leonard v. State , 760 So. 2d 114, 118-19 (Fla. 2000).

FACTS

Appellant filed a motion to suppress evidence obtained pursuant to a traffic stop. The trial court denied the motion, finding the stop was legal. Thereafter, appellant entered a negotiated plea. Defense counsel informed the court appellant was "reserving his right to appeal the dispositive motion to suppress," and the court responded, "[a]bsolutely appropriate thing to do." Pursuant to the plea, appellant was convicted of the lesser-included offense of possession of methamphetamine for count 1, as well as possession of a firearm by a convicted felon (count 2), battery on a law enforcement officer (count 7), resisting an officer with violence (count 8), and possession of paraphernalia (count 9), and the State nol prossed the remaining counts. All of the charges arose out of the same incident. The court sentenced appellant to 408 days' time served.

DISPOSITIVE ORDER

This appeal is unauthorized because the order denying the motion to suppress is not dispositive as to two of appellant's convictions - battery on a law enforcement officer and resisting arrest with violence.

A defendant who enters a plea of guilty or nolo contendere has no right to appeal unless the defendant expressly reserves the right to appeal a dispositive order. See Fla. R. App. P. 9.140(b)(2)(A)(i) ("A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying particularity the point of law being reserve."); § 924.051(4), Fla. Stat. ("If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.").

In this case, appellant did not obtain a stipulation of dispositiveness from the State, nor did he ask the trial court for an express ruling on dispositiveness. He merely informed the court he was "reserving his right to appeal the dispositive motion to suppress." The court responded, "[a]bsolutely appropriate thing to do." This is not a specific ruling on the dispositiveness of the motion to suppress as to all charges.

The motion to suppress, in fact, was not dispositive to the charges of battery on a law enforcement officer or resisting an officer with violence. Florida law "prohibits the defendant from using violence to resist [an] arrest, even if the arrest was illegal." State v. Roy , 944 So. 2d 403, 407 (Fla. 3d DCA 2006) (reversing a trial court's order denying a motion to dismiss charges of battery on a law enforcement officer and resisting arrest without violence despite the fact the arrest was illegal). "If a person resists an arrest with violence ... the fact that the arrest was illegal is generally irrelevant" because " '[t]here is no right to commit a battery upon a law enforcement officer.' " Ruggles v. State , 757 So. 2d 632, 633 (Fla. 5th DCA 2000) (quoting State v. Roux , 702 So. 2d 240, 241 (Fla. 5th DCA 1997) ). Cf. B.D.H. v. State , 903 So. 2d 390, 391 (Fla. 3d DCA 2005) ("[T]he crime of resisting an officer without violence requires proof that the arrest was lawful.") (emphasis added); Jay v. State , 731 So. 2d 774, 775 (Fla. 4th DCA 1999) ("[T]he law permits a person to resist an illegal arrest without violence.") (emphasis added).

Appellant proceeds in this appeal as if the order on his motion to suppress were dispositive as to all of his charges. He does not seek to limit the scope of his appeal to those charges for which the order was dispositive. The Second and Fifth Districts have entertained such appeals, reversing the convictions for which the order on appeal was dispositive and affirming the remaining counts with instructions that the defendant may choose to withdraw from his plea and proceed to trial on the remaining counts, including any charges the State may have dropped as part of the plea agreement. See Hicks v. State , 852 So. 2d 954, 961 (Fla. 5th DCA 2003) ; Brown v. State , 224 So. 3d 806, 811 (Fla. 2d DCA 2017). See also Nelson v. State , 268 So.3d 837 (Fla. 2d DCA 2019) (noting the defendant appealed only the convictions for the offenses for which the trial court's order was dispositive). None of these cases specifically address the issue we discuss in this opinion. We, therefore, determine there is no direct conflict with these decisions.

However, this piecemeal approach contradicts the purpose of the limitation that a defendant is only permitted to appeal dispositive rulings after entering a plea. In Brown v. State , 376 So. 2d 382, 383-84 (Fla. 1979), the supreme court explained the purpose behind this requirement that an order be "dispositive of the case" was to "expedite[ ] resolution of the controversy." Permitting appeals from nondispositive issues would "sanction[ ], in effect, an interlocutory appeal," after which the defendant would still "face [ ] the prospect of trial .... The inevitable is not avoided but merely postponed, thus further burdening the already severely taxed resources of our courts." Id. at 384.

Applying Brown , this court came to the widely adopted conclusion that "[a]n issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case ." Morgan v. State , 486 So. 2d 1356, 1357 (Fla. 1st DCA 1986) (emphasis added). Morgan and other similar cases from this court applying this standard have focused on whether there would still be a trial on the counts for which the defendant argued an order was dispositive. These cases did not consider the situation presented here, where an order was clearly dispositive as to some issues but not others. Regardless, permitting a defendant to appeal an order that is not dispositive to all issues is effectively an interlocutory appeal. Even if this court grants appellant relief on some counts, there will still be a "trial of the case" or further proceedings for the remaining counts.

Thus, because appellant has not asked to proceed only on the counts for which the order is dispositive and because doing so would contradict the purpose of the rule limiting appeals to dispositive orders, this appeal is procedurally barred.

The decision is AFFIRMED .

Kelsey, J., concurs in result; Winokur, J., concurs with opinion.

Winokur, J., concurring.

I agree with the rationale and disposition of the majority opinion. I write separately because I find that this case underscores the need of the parties and the trial court to recognize the appellate limitations set out in section 924.051(4), Florida Statutes, before a defendant enters a no-contest or guilty plea while reserving the right to appeal an issue. A defendant may only appeal an issue after a no-contest or guilty plea if the issue is expressly reserved and dispositive. § 924.051, Fla. Stat. Absent a stipulation from the state, see Churchill v. State , 219 So. 3d 14, 18 (Fla. 2017), a "trial court is obligated to determine the dispositive nature of an issue reserved for appeal." Holden v. State , 90 So. 3d 902, 903 (Fla. 1st DCA 2012). Absent such a determination, appellate courts are left to determine the question themselves and potentially affirm a judgment and sentence without considering the merits of an argument that the defendant believed would prevail on appeal. See id. at 903-04. This disposition may undermine whether the plea was appropriately entered. See id. at 904 (Benton, J., concurring) ("Whether a ruling is dispositive is a question for the trial court, and not for us, in the first instance, because it is imperative that the defendant's plea be voluntary and intelligent."). However, the question of voluntariness of the plea is not before us and should not be considered.

      In Leonard v. State , 760 So. 2d 114, 118-19 (Fla. 2000), the supreme court explained that where an appeal following a plea "does not present ... a legally dispositive issue that was expressly reserved for appellate review pursuant to section 924.051(4)," the district court "should affirm summarily" rather than dismiss because section 924.051(4) "is not a limitation on the subject matter jurisdiction of the appellate courts, but instead is a codification of the existing law regarding the issues that can be addressed on appeal following a plea of guilty." See also Ruilova v. State , 125 So. 3d 991, 995 (Fla. 2d DCA 2013) ("[A]fter Leonard it is clear that the appellate court has 'jurisdiction,' i.e., power to examine the case as a whole, even when an order of suppression is not necessarily dispositive."); Paulk v. State , 765 So. 2d 147, 148-49 (Fla. 1st DCA 2000) (following Leonard and affirming where the defendant did not reserve the right to appeal a dispositive ruling). But see Lewis v. State , 262 So. 3d 859, 860 (Fla. 1st DCA 2018) ("Because Appellant pled no contest without expressly reserving the right to appeal the ruling on his motion, we dismiss for lack of jurisdiction.") (emphasis added).

      It is unclear from the limited record on appeal whether the order was dispositive of count 4, conspiracy to sell, manufacture, or deliver a controlled substance. However, the State dropped that charge as part of the plea agreement.


text:
    David J. BALLINGER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3078
    District Court of Appeal of Florida, First District.
    June 7, 2019
    David J. Ballinger, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED without prejudice to appellant's right to file a petition for a writ of mandamus in the circuit court. See Rood v. State , 790 So. 2d 1192, 1193 (Fla. 1st DCA 2001).

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


text:
    Walter H. CARY III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-1860
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Walter H. Cary III, pro se, Petitioner.
    Ashley Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

In light of Petitioner's pending direct appeal in case 1D19-1123, the petition for writ of habeas corpus is dismissed.

Rowe, Makar, and Kelsey, JJ., concur.


author: Bilbrey, J.

text:
    Jamichael S. TRIBUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5028
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Jamichael S. Tribue was placed on probation following a no contest plea to burglary of a dwelling and grand theft. Adjudication of guilt was withheld. He violated probation and was then restored to probation. He was again alleged to have violated probation. Following a hearing, the trial court orally revoked Tribue's probation after he was found to have committed a new violation of law. Tribue appeals the judgment and sentence.

Tribue's appointed counsel was unable to make a good faith argument that error occurred and filed an Anders brief. We have reviewed the record and find there is competent, substantial evidence supporting the trial court's determination that Tribue violated probation. However, as Tribue's counsel has noted, there is no written order of probation. Further, the judgment of conviction subsequently entered, which adjudicated Tribue guilty of the underlying offenses, incorrectly lists the burglary conviction as burglary of a dwelling while armed rather than burglary of a dwelling. Therefore, this judgment is reversed, and the cause is remanded for the trial court to enter a corrected judgment and a written order of revocation of probation. Appellant need not be present for entry of the corrected judgment or the written order of revocation.

REVERSED and REMANDED .

Ray and Jay, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).