text:
    TOSCANO CONDOMINIUM ASSOCIATION, INC., Appellant, v. DDA ENGINEERS, P.A., f/k/a Donnell, Duquesne, & Albaisa, P.A., Appellee.
    No. 3D18-1762
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., and Jason B. Trauth, Miami, and James S. Czodli, for appellant.
    Oramas & Associates, P.A., and John E. Oramas, Coral Gables, and Miles A. Archabal, for appellee.
    Before EMAS, C.J., and SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Toscano Condominium Association, Inc. (the "Association") appeals the denial of its motion to file a fourth amended complaint to include Appellee DDA Engineers as a direct defendant in a multi-defendant action for construction and design defects in a condominium building. Because the Association was, at a minimum, on notice of the potential claims against DDA Engineers yet waited until after it had already been granted leave to amend on three prior occasions, and because the Association did not seek to assert those claims until more than two years after the filing of the complaint and more than six months after the trial court conducted its case management conference, we affirm, finding that the trial court did not abuse its discretion in denying the Association's motion for leave to amend.

I. BACKGROUND

The Association assumed control of the condominium at issue in June 2012. In September 2015, the Association filed this action against various defendants for damages allegedly arising from construction and design defects in the condominium. In May 2016, the Association amended its complaint to add more defendants. The Association further amended its complaint to add additional defendants in January and June of 2017. Thereafter, in June 2017, the trial court entered its Case Management Order setting various deadlines for pretrial events and scheduling the case for trial beginning July 16, 2018. The order imposed an August 1, 2017 deadline for adding parties. Despite this deadline, the Association moved for leave to file a fourth amended complaint to add claims against DDA Engineers on November 30, 2017. The trial court denied the Association's motion to amend on January 22, 2018. The Association now seeks review of the denial of its motion to file the fourth amended complaint.

II. JURISDICTION

As an initial matter, DDA Engineers contends that this appeal is untimely because the Association relied on the trial court's dismissal order as a final judgment, which was entered about six months after the order denying leave to amend. According to DDA Engineers, the order denying the motion for leave to amend was a final and appealable order; therefore, the Association's appeal is untimely.

We disagree. "[A]n order denying leave to amend is a non-final and non-appealable order." Traveler v. Steiner Transocean Ltd., 895 So.2d 1191, 1192 (Fla. 3d DCA 2005) (citing Palomares v. Ocean Bank of Miami, 574 So.2d 1159, 1161 (Fla. 3d DCA), review denied, 587 So.2d 1328 (Fla. 1991) ). DDA Engineers mistakenly relies on Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010), which held that "[a]n order dismissing an action without prejudice and without granting leave to amend is a final appealable order." But here, unlike in Valcarcel, the order denying the Association's motion for leave to amend did not dismiss the action. "For an order to be final, it must constitute an entry of a dismissal of the case. It is the dismissal of the case that is final and appealable ...." GMI, LLC v. Asociacion del Futbol Argentino, 174 So.3d 500, 501 (Fla. 3d DCA 2015).

Thus, the order denying the Association's motion for leave to amend was an interlocutory order that could not be appealed until the case was completed. This occurred upon the dismissal of the case.

Accordingly, we have jurisdiction. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 23:3 (2018 ed.) ("When the jurisdiction of an appellate court has been invoked to review a final order or judgment, the court may review the entire case in the lower court, including all issues preserved for review during the trial and pretrial proceedings." (citing Fla. R. App. P. 9.110(h) )).

III. STANDARD OF REVIEW

This Court reviews the denial of a motion for leave to amend a pleading for abuse of discretion. RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So.3d 915, 916 (Fla. 3d DCA 2016) (citing Cobbum v. Citimortgage, Inc., 158 So.3d 755 (Fla. 2d DCA 2015) ); Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) ("It is settled that as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice."); Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981) ("While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, Romish v. Albo, 291 So.2d 24 (Fla.3d DCA 1974), Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971), a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished." (citing Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974) ).

IV. ANALYSIS

The issue before us is whether the trial court abused its discretion in denying the Association's fourth motion to amend. We find it did not. We recognize the general rule governing motions to amend a complaint that "leave to amend a Complaint should not be denied unless the privilege is abused, the opposing party will be prejudiced, or amendment would be futile." Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.2d 964, 968 (Fla. 3d DCA 2005) (citing World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 800 (Fla. 4th DCA 1999) ); see also Fla. R. Civ. P. 1.190(a) ("Leave of court shall be given freely when justice so requires."). "However, in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached." Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983) (citing Alvarez, 395 So. 2d at 216 ).

The Association contends both that it did not abuse its amendment privilege and that there was no prejudice to DDA Engineers. Here, the proposed amendment would have been the fourth time the Association amended its complaint to bring in new parties to the litigation. And significantly, the latest request to amend came after the case was set for trial and the trial court had specifically set a deadline for bringing in new parties.

With regard to prejudice, admittedly, DDA Engineers was involved in the case relatively early on in the litigation. But, it faced only indemnity claims from the architect of the condominium building. The Association is correct that these are qualitatively different from the direct claims it sought to bring against DDA Engineers in its role as structural engineers and threshold inspectors. However, litigation must end at some point, and trial courts must be afforded the discretion to manage their dockets. See SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC, 78 So.3d 636, 638 (Fla. 3d DCA 2011) ("A trial court has broad discretion to manage its docket, but must do so within the confines of governing statutes and rules of procedure."). Likewise, litigants must bear some responsibility in diligently pursuing their cases to resolution in a timely manner. See Freeman v. Mintz, 523 So.2d 606, 610 (Fla. 3d DCA 1988) (recognizing plaintiffs' "obligations as litigants to diligently prosecute the claim").

V. CONCLUSION

Accordingly, because the Association was at a minimum on notice of the potential claims against DDA Engineers yet waited until after it had already been granted leave to amend on three prior occasions, and because the Association did not seek to assert those claims until more than two years after the filing of the complaint and more than six months after the trial court conducted its case management conference, we find that the trial court did not abuse its discretion in denying leave to amend.

AFFIRMED.

      The trial court conducted a case management conference in April 2017, which resulted in the Case Management Order, entered in June 2017.

      Throughout the case, the Association stipulated to dismissal of various defendants. Ultimately, the Association dismissed its claims against all other defendants.

      In its brief, the Association asserts it has filed, separate and apart from this appeal, an independent action against DDA Engineers.


source: Caselaw Access Project

author: MILLER, J.

license: Public Domain

text:
    Alberto RIVERA, Appellant, v. Maria Teresa RIVERA, Appellee.
    No. 3D18-1338
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Kevin Coyle Colbert, Miami, for appellant.
    The Padron Law Group, P.L.L.C., and Luis M. Padron, Coral Gables and Brian D. Fell, for appellee.
    Before FERNANDEZ, LINDSEY, and MILLER, JJ.
   MILLER, J.

As neither party sought to partition the marital home, the body of jurisprudence relied upon by the former husband in furtherance of appellate relief is inapposite. Accordingly, we find no error and affirm. See Gulledge v. Gulledge, 82 So.3d 1113, 1114 (Fla. 2d DCA 2012) (narrowly holding that in partition cases "the trial court err[s] by failing to include a deadline for the refinancing or sale of the marital home"); Sullivan v. Sullivan, 363 So.2d 393, 395 (Fla. 2d DCA 1978) (discussing that in partition cases "the judgment must fix a reasonable deadline by which the sale must take place"); see also Smilack v. Smilack, 858 So.2d 1072, 1075 (Fla. 5th DCA 2003) ("[A] trial court may enforce the provisions of a final judgment through any appropriate remedy.") (citing Montanez v. Montanez, 697 So.2d 184, 186 (Fla. 2d DCA 1997) ).

Affirmed.


author: PER CURIAM.

text:
    TRANSCARGA INTL. AIRWAYS, C.A., etc., Appellant, v. ADVANTA SEEDS INTERNATIONAL, etc., et al., Appellees.
    No. 3D18-892
    District Court of Appeal of Florida, Third District.
    Opinion filed May 29, 2019
    Warren Gammill & Associates, P.L., and Warren P. Gammill, Miami, for appellant.
    Vazquez & Associates, and Gerardo A. Vazquez, Miami and Steven B. Herzberg, for appellees.
    Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
   PER CURIAM.

Affirmed. See Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 734 (Fla. 3d DCA 2006) (observing that, although "a trial court's order on a motion to dismiss for lack of personal jurisdiction is de novo," where "the trial court's decision is based on live testimony, the appellate court defers to the trial court's determinations of the facts"); Rudel v. Rudel, 111 So.3d 285 (Fla. 4th DCA 2013) (holding that where trial court's determination of its jurisdiction is based upon a finding of fact, an appellate court reviews those findings for competent, substantial evidence). See also Bohlander v. Robert Dean & Assoc. Yacht Brokerage, Inc., 920 So.2d 1226, 1228 (Fla. 3d DCA 2006) (holding: "The due process requirement of minimum contacts is not satisfied by a showing that a party has entered into a contract with a non-resident, or a showing that payment must be made in Florida"); deMco Tech., Inc. v. C.S. Engineered Castings, Inc., 769 So.2d 1128, 1131 (Fla. 3d DCA 2000) (holding that, in a breach of contract action to collect on a promissory note, defendant's failure to pay the debt owed in Florida, together with a choice-of-law provision in the note requiring that it be construed in accordance with Florida law, was insufficient to establish long-arm jurisdiction over the non-resident defendant).


author: Rowe, J.

text:
    The SCHOOL DISTRICT OF ESCAMBIA COUNTY, Florida, Appellant, v. SANTA ROSA DUNES OWNERS ASSOCIATION, INC., Appellee.
    No. 1D18-91
    District Court of Appeal of Florida, First District.
    May 30, 2019 Rehearing Denied July 11, 2019
    David C. Willis, Daniel J. Gerber, and Christian H. Tiblier of Rumberger, Kirk & Caldwell, P.A., Orlando; William A. VanNortwick, Jr. of Akerman LLP, Jacksonville; and Diane G. DeWolf of Akerman LLP, Tallahassee, for Appellant.
    Edward P. Fleming and R. Todd Harris of McDonald Fleming Moorhead, Pensacola, for Appellee.
   Rowe, J.

The Santa Rosa Dunes Owners Association, Inc., sued the Escambia County Property Appraiser and Escambia County Tax Collector, disputing a tax assessment of property underlying the Association's condominium development. The Association claimed that its property was exempt from ad valorem taxation under section 196.199(2)(b), Florida Statutes (2016). The School District of Escambia County intervened in the suit and asserted that the Association's property should be taxed because the statutory exemption was unconstitutional. The Association challenged the District's standing to intervene, arguing that the public official standing doctrine barred the District's constitutional challenge. The trial court agreed that the District lacked standing and entered summary judgment for the Association on the District's affirmative defenses. This appeal follows.

The public official standing doctrine, first explained in State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers , 84 Fla. 592, 94 So. 681 (1922), provides that "a public official may not defend his nonperformance of a statutory duty by challenging the constitutionality of the statute." Crossings At Fleming Island Cmty. Dev. Dist. v. Echeverri , 991 So.2d 793, 794-803 (Fla. 2008). The doctrine, grounded in the separation of powers, recognizes that public officials are obligated to obey the legislature's duly enacted statute until the judiciary passes on its constitutionality. Id. at 683. For that reason, a public official's "[d]isagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion." Dep't of Revenue v. Markham , 396 So.2d 1120, 1121 (Fla. 1981) (holding that the property appraiser lacked standing to challenge an administrative rule), superseded by statute , § 195.092(2), Fla. Stat. (1980), as recognized in Crossings At Fleming Island , 991 So.2d at 802-03 (explaining that while the Legislature partially overruled the holding in Markham by enacting section 195.092, which allows a property appraiser and any taxing authority to challenge the validity of any "rule, regulation, order, directive or determination of any agency of the state," the Legislature "did not alter the common law principle announced in Atlantic Coast Line and Markham that property appraisers, as public officials, lack standing to challenge the constitutionality of a statute").

The parties do not dispute that the District is a public entity and its officers are public officials. But the District contends that the public official standing doctrine applies only when the challenged statute is one that the public officials are "charged with administering." Section 196.199(2)(b) exempts from ad valorem taxation certain leasehold interests in government-owned property used for non-governmental purposes. The plain language of the statute does not require the District to perform any duty. The District's lack of a duty under the statute, however, does not resolve whether the District has standing to challenge the statute.

The Florida Supreme Court and this Court have on several occasions considered challenges to the constitutionality of section 196.199(2)(b) brought by public officials. First, in Crossings At Fleming Island , a county property appraiser challenged the constitutionality of the statute. 991 So.2d at 798. The supreme court held that the property appraiser lacked standing to challenge the statute because the property appraiser was a public official charged with performing a specific duty under the statute-the duty of determining whether property owners are entitled to an exemption from taxation under the statute. In reaching this conclusion, the supreme court reaffirmed the public official standing doctrine and its holding in Atlantic Coast Line . Id. at 797.

Next, in Island Resorts Investments, Inc. v. Jones , 189 So.3d 917, 922-23 (Fla. 1st DCA 2016), this Court considered whether the public official standing doctrine barred a challenge to the statute brought by two public officials-the property appraiser, who is charged with performing a duty under the statute, and the tax collector, who is not charged with performing any duty under the statute. Though the plain language of the statute did not require the tax collector to perform any duty, this Court, citing the decisions in Crossings at Fleming Island and Atlantic Coast Line , concluded that the tax collector lacked standing to challenge the constitutionality of section 196.199(2)(b). Island Resorts , 189 So.3d at 922.

The District is in the same position as the tax collector in Island Resorts . Neither are charged with performing any duty under section 196.199(2)(b). Still, the District argues it had standing to challenge the constitutionality of the statute. The District misunderstands the public official standing doctrine. The doctrine exists to prevent public officials from nullifying legislation through their refusal to abide by the law and requires them instead to defer to the judiciary's authority to consider the constitutionality of a legislative act. Atl. Coast Line , 94 So. at 682-83 ("The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution."). The prohibition against public officials attacking the constitutionality of a statute is therefore not limited to those public officials charged with a duty under the challenged law. Consistent with the purpose of the doctrine, the prohibition extends to public officials whose duties are "affected" by the challenged law. See Crossings At Fleming Island , 991 So.2d at 800 (finding that no common law or statutory development since Atlantic Coast Line "has altered the basic principle, rooted in the doctrine of separation of powers, that property appraisers must abide by all applicable Florida statutes when assessing property and therefore do not have standing to challenge the constitutionality of such statutes ") (emphasis added); Dep't of Educ. v. Lewis , 416 So.2d 455, 458 (Fla. 1982) ("State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise.") (emphasis added); Santa Rosa Cty. v. Admin. Comm'n, Div. of Admin. Hearings , 642 So.2d 618, 623 (Fla. 1st DCA 1994) [hereinafter Santa Rosa Cty. I ], approved in part, disapproved in part , 661 So.2d 1190 (Fla. 1995) [hereinafter Santa Rosa Cty. II ] (same); Miller v. Higgs , 468 So.2d 371, 374 (Fla. 1st DCA 1985) disapproved on other grounds by Capital City Country Club, Inc. v. Tucker , 613 So.2d 448 (Fla. 1993) (same); Markham , 396 So.2d at 1121 ("Disagreement with a constitutional or statutory duty, or the means by which it is to be carried out , does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion.") (emphasis added).

Even though section 196.199(2)(b) does not specifically require the District to perform any duty, the statute's operation affects the District's duty to levy ad valorem taxes under other statutory provisions. See Art. VII, § 9, Fla. Const.; § 1011.71(1), Fla. Stat. (2016) (providing that school districts seeking to participate in the state allocation of funds for current operation "shall levy on the taxable value for school purposes of the district" a local effort millage rate); § 1011.04, Fla. Stat. (2016) (providing that school districts are to "determine by resolution the amounts necessary to be raised for current operating purposes and for each district bond interest and sinking fund and the millage necessary to be levied for each such fund, including the voted millage"); § 1001.42, Fla. Stat. (2016) (providing that the powers and duties of the district school board include adopting a "resolution fixing the district school tax levy ... necessary to carry on the school program adopted for the district for the next ensuing fiscal year as required by law"). The District argues that applying section 196.199(2)(b) to grant the Association's property an exemption will affect the District's ability to levy ad valorem taxes. Because the public official standing doctrine broadly prohibits ministerial officers from challenging legislative enactments, and because the statute at issue affects the official duties of the District, the trial court correctly found that the District lacked standing to challenge the constitutionality of section 196.199(2)(b).

The District argues that it may nonetheless attack the constitutionality of the statute because the personal injury exception to the public official standing doctrine applies. This exception confers standing on a public official to bring a constitutional challenge when the official can show injury to his person, property, or other material right by the statute in question. Crossings At Fleming Island , 991 So.2d at 799 (quoting Barr v. Watts , 70 So.2d 347, 350 (Fla. 1953) (en banc)). The District alleges it would have to refund about seven million dollars in ad valorem tax revenue it has already collected and escrowed, and it would lose its material and constitutional right to levy ad valorem taxes, subjecting it to a loss of future tax revenue.

The District's alleged injuries are not the type of injuries contemplated by the personal injury exception. See Green v. City of Pensacola , 108 So.2d 897, 900 (Fla. 1st DCA 1959). Rather, the type of personal injury necessary to allow a public official to challenge the constitutionality of a statute is limited to injuries that do "not grow out of the obligation of his oath of office, nor out of his official position." Atl. Coast Line , 94 So.2d at 684 (citing Bd. of Public Instruction for Santa Rosa Cty. v. Croom , 57 Fla. 347, 48 So. 641 (1908) ); see also Green , 108 So.2d at 900 ("It may be seriously questioned whether the Comptroller's failure to collect a tax lawfully due the State of Florida would render him liable on his official bond as well as subject him to impeachment for nonfeasance in office."). Here, the alleged injuries to the District arise exclusively from the District's official responsibilities to levy ad valorem taxes. See Art. VII, § 9, Fla. Const.; § 1011.71(1), Fla. Stat. (2016). The alleged injuries are thus not personal to the District. The public official standing doctrine therefore bars the District from challenging the constitutionality of section 196.199(2)(b). For these reasons, the trial court's order granting summary judgment for the Association is AFFIRMED .

Winsor, J., concurs; Bilbrey, J., concurs in result.

Bilbrey, J., concurring in result.

I am concerned that in past decisions this court may have approved the expansion of the public official standing doctrine beyond its historical roots. Both State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers , 84 Fla. 592, 94 So. 681 (1922), and Department of Revenue v. Markham , 396 So.2d 1120 (Fla. 1981), approved the public official standing doctrine to preclude suit where a public official was challenging a matter concerning the performance of that public official's duties. Then in Santa Rosa County v. Administration Commission, Division of Administrative Hearing , 642 So.2d 618, 623 (Fla. 1st DCA 1994), approved in part, disapproved in part , 661 So.2d 1190 (Fla. 1995), we expanded Markham to apply the public official standing doctrine where there was "[l]egislation which affects the duties of state officers and agencies."

Any general law is by definition going to affect, in varying degrees, the people of the State of Florida, including public officials. See Schrader v. Florida Keys Aqueduct Auth. , 840 So.2d 1050, 1055 (Fla. 2003) (noting that a general law is one which "materially affects the people of this state"). So it seems in Santa Rosa County we arguably precluded any challenge by a public official to most any general law.

In Island Resorts Investment, Inc. v. Jones , 189 So.3d 917, 922 (Fla. 1st DCA 2016), we were bound to follow the holding from Santa Rosa County expanding the public official standing doctrine to "legislation which affects" the public official's duties. See Sims v. State , 260 So.3d 509, 514 (Fla. 1st DCA 2018) ("Each panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc."). Our holding in Island Resorts again applied the doctrine to legislation beyond that which the public official was charged with administering.

We are of course now bound by Santa Rosa County and Island Resorts . But even if we could apply only the more limited scope of the public official standing doctrine from Markham , here it would not avail the School District of Escambia County. In Miller v. Higgs , 468 So.2d 371 (Fla. 1st DCA 1985), disapproved in part , Capital City Country Club, Inc. v. Tucker , 613 So.2d 448 (Fla. 1993), we upheld the constitutionality of section 196.199(2)(b), Florida Statutes. So even if the District had standing to sue, we would be correct to affirm under Miller . I therefore agree affirmance is the correct result.


text:
    J. Gerard LEGAGNEUR, Jr., et al., Appellants, v. M & J FILM PRODUCTION, LLC, etc., et al., Appellees.
    No. 3D18-2576
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    J. Gerard Legagneur, Jr., for appellants.
    PinoNicholson, PLLC, and Laurence J. Pino (Orlando), for appellees.
    Before SALTER, SCALES and MILLER, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) ("When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, 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.").


author: HENDON, J.

text:
    Aaron ROKOSZ, Appellant, v. Sarah HACCOUN, Appellee.
    No. 3D18-2459
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    The Lora Law Firm, LLC, and Hector E. Lora, Hollywood; Deborah Marks, PLLC, and Deborah B. Marks, Cutler Bay, for appellant.
    Dorothy G. Negrin, P.A., and Dorothy G. Negrin, for appellee.
    Before LOGUE, SCALES, and HENDON, JJ.
   HENDON, J.

The former husband, Aaron Rokosz, seeks review by interlocutory appeal of the "Order Denying Former Husband's Verified Motion to Discharge Lis Pendens Against Homestead Property." For the reasons that follow, we reverse and remand for an evidentiary hearing.

In 2016, the former wife, Sarah Haccoun, filed a petition for dissolution of marriage. Thereafter, the parties entered into a partial mediated settlement agreement ("partial MSA") that equitably distributed the parties' assets and liabilities, provided that the former wife was waiving alimony, and resolved issues relating to child support through the end of May 2018. The parties, however, did not resolve issues relating to post-May 2018 child support, the parenting plan, and the former wife's claim for attorney's fees. In May 2018, the trial court entered a partial final judgment of dissolution of marriage dissolving the parties' marriage, approving the partial MSA, and retaining jurisdiction to enforce the partial MSA and to try the remaining issues.

Pursuant to the partial MSA, the former husband received condominiums located in New York City and Hialeah. The partial MSA provides that a lis pendens on the Hialeah condominium would remain in place to secure the payment of the former wife's attorney's fees, if awarded. Following the equitable distribution of the New York City condominium to the former husband, the former husband and his father entered into a 1031 Exchange Agreement, whereby they agreed to exchange the New York City condominium owned by the former husband for properties then owned by the father-a condominium located in Pompano Beach and 159 parcels of land located in Duval County.

On August 10, 2018, the former wife filed an "Urgent Motion for Leave to File Lis Pendens on Properties Located In Duval County and Pompano, Florida" ("motion for lis pendens"). The former wife argued that the former husband violated the status quo order by entering into the 1031 Exchange Agreement with his father, and requested that the trial court grant her leave of court to place lis pendens on the Pompano Beach condominium and the parcels in Duval County to prevent the former husband from disposing of or encumbering his assets prior to the trial court's entry of a judgment awarding attorney's fees and costs to the wife, if applicable. Following an evidentiary hearing, the trial court entered an order granting the former wife's motion for lis pendens finding that the former husband's transfer of the New York condominium and the Duval County parcels to his father violated the status quo order.

On September 24, 2018, the former husband filed a "Verified Motion to Discharge Lis Pendens Against Homestead Property" ("motion to discharge"), arguing that the Pompano Beach property was his homestead, and therefore, pursuant to Article X, section 4(a) of the Florida Constitution, the property was exempt from levy or forced sale to enforce the former wife's claim for attorney's fees and costs. At the evidentiary hearing on the former husband's motion to discharge lis pendens, the former wife objected to the former husband introducing several exhibits for the purpose of demonstrating whether the Pompano Beach condominium was in fact the former husband's homestead. Following the trial court's review of the transcript of the hearing on the former wife's motion for lis pendens, the trial court ruled that it was treating the motion to discharge the lis pendens as a motion for reconsideration of the order granting the former wife's motion for lis pendens and was denying the motion. Based on the trial court's ruling, the former husband did not testify and the exhibits the former husband intended to introduce were marked for identification but not introduced into evidence. Thereafter, the trial court entered an order denying the former husband's motion to discharge the lis pendens, noting that the trial court considers the motion for discharge as a motion for reconsideration of the issues raised in the former wife's motion for lis pendens. This non-final appeal followed.

The former husband contends that he was denied his right to procedural due process because he was not provided with a meaningful opportunity to be heard on his motion to discharge lis pendens based on the trial court erroneously treating his motion to discharge the lis pendens as motion for reconsideration of the order granting the former wife's motion for lis pendens. We agree. See Julia v. Julia, 146 So. 3d 516, 520 (Fla. 4th DCA 2014) (holding that an appellate court reviews "a possible violation of due process de novo ").

Motions for reconsideration apply to "nonfinal, interlocutory orders, and are based on a trial court's 'inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action ....' " Seigler v. Bell, 148 So. 3d 473, 478-79 (Fla. 5th DCA 2014) (quoting Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (citations omitted)); see also Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987) ("It is well settled in this state that a trial court has inherent authority to reconsider ... any of its interlocutory rulings prior to entry of a final judgment or final order in the cause."). In the instant case, in granting the former wife's motion for lis pendens, the trial court ruled that the former husband's transfer of the New York condominium and the Duval County parcels to his father violated the status quo order. In moving to discharge the lis pendens, the former husband did not ask the trial court to reconsider this ruling. Rather, the former husband moved to discharge the lis pendens on the Pompano Beach condominium arguing that the Pompano Beach condominium was his homestead, and therefore, pursuant to Article X, section 4(a) of the Florida Constitution, the property was exempt from levy or forced sale to enforce the former wife's claim for attorney's fees and costs. Thus, the trial court erred by treating the motion to discharge lis pendens as a motion for reconsideration of the trial court's order granting the former wife's motion for lis pendens.

Based on the trial court's erroneous treatment of the former husband's motion to discharge lis pendens as a motion for reconsideration, the trial court did not conduct an evidentiary hearing and did not permit the former husband to introduce the exhibits in support of his argument that the Pompano Beach condominium was indeed his homestead. Thus, because the former husband was not afforded a full and fair opportunity to be heard, his right to procedural due process was violated. See Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) ("Procedural due process requires both fair notice and a real opportunity to be heard."); Bull Motors, L.L.C. v. Brown, 152 So. 3d 32, 36 (Fla. 3d DCA 2014) ("Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard." Carmona v. Wal-Mart Stores, East, LP, 81 So. 3d 461, 463 (Fla. 2d DCA 2011) ). Accordingly, we reverse the order under review denying the former husband's motion to discharge lis pendens and remand the case for an evidentiary hearing on the former husband's motion to discharge lis pendens.

As we have reversed the order under review and remanded for an evidentiary hearing, we do not need to address the remaining arguments raised by the former husband.

Reversed and remanded.

      This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). See Rodriguez v. Guerra, 254 So. 3d 521, 521 n.1 (Fla. 3d DCA 2018).

      At the commencement of the dissolution action, the former wife filed a Notice of Filing and Serving Administrative Order No. 14-13, which attached an order titled, "Status Quo Temporary Domestic Relations Order, With or Without Minor Children."

      While the former husband's motion to discharge lis pendens was pending, the former husband appealed the non-final order granting the former wife's motion for lis pendens. During the pendency of that appeal, on the former husband's motion, this Court remanded on an interim basis to allow the trial court to address the former husband's motion to discharge lis pendens.

      The former husband's motion to discharge lis pendens did not address the parcels in Duval County.


text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Kimberly BROWN and Glen Brown, Appellees.
    No. 3D18-2071
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Cole Scott & Kissane and Kathryn L. Ender, Miami, David C. Borucke and Mark D. Tinker (Tampa); Brett Frankel and Jonathan Sabghir (Deerfield Beach), for appellant.
    Litigation & Recovery Law Center and Alex Stern, Miami Beach, for appellees.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See People's Trust Ins. Co. v. Acosta, 259 So. 3d 179 (Fla. 3d DCA 2018).


author: FERNANDEZ, J.

text:
    Irene FLORESCU, Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., Appellee.
    No. 3D17-2110
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Kula & Associates, P.A., Elliot B. Kula, W. Aaron Daniel and William D. Mueller, Miami, for appellant.
    Foreman Friedman, P.A., Catherine J. MacIvor, Darren Friedman and Jacob Resnick, Miami, for appellee.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   FERNANDEZ, J.

Irene Florescu ("Florescu") appeals the trial court's dismissal of Count II of her amended complaint against Royal Caribbean Cruises, LTD. ("RCCL"). Florescu alleged in Count II of her amended complaint, in relevant part, that she was acting within the course and scope of her employment as a seaman aboard a vessel owned and operated by RCCL, that she was injured while in the service of the vessel and entitled to maintenance and cure, and that RCCL failed to provide maintenance and cure as required by law.

RCCL filed a motion to dismiss Count II of Florescu's complaint, alleging that Count II failed to state a cause of action because Florescu was not employed by RCCL and that she failed to join an indispensable party, Steiner Transocean Limited, Florescu's employer and RCCL's subcontractor. RCCL attached a copy of Florescu's employment contract with Steiner to RCCL's motion to dismiss. The trial court granted RCCL's motion to dismiss, finding that Florescu "failed to allege that the Defendant is Plaintiff's employer."

In considering a motion to dismiss, the trial court is limited to the four corners of the complaint, and the allegations in the complaint are assumed to be true. W. Kendall Holdings, LLC v. Downrite Eng'g Corp., 112 So. 3d 614, 615 (Fla. 3d DCA 2013). Assuming the facts alleged in Count II of Florescu's amended complaint, it is impossible to conclude that RCCL is not Florescu's employer, particularly when she alleged that she was "acting within the course and scope of her employment as a seafarer [ ] aboard a vessel owned and operated by Defendant, RCCL." Although it may be true that Florescu was not employed by RCCL, one must not look beyond the four corners of the complaint to reach that conclusion. Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010). On a motion to dismiss, a search beyond the four corners of the complaint is impermissible. We therefore reverse and remand to the trial court for further proceedings.

Reversed and remanded.


author: EMAS, C.J.

text:
    Eric TRELLES, Appellant, v. LE BASQUE HOLDINGS, LLC, Appellee.
    No. 3D18-932
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Armand & Dieguez, P.A., and Arturo A. Armand and Manuel A. Dieguez, Miami, for appellant.
    Business Law & Litigation, P.A., and Joseph Anderson, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   EMAS, C.J.

Eric Trelles appeals from the trial court's entry of summary judgment in favor of Le Basque on claims of tortious interference with a business relationship and breach of fiduciary duty, and the subsequent entry of final judgment for damages in the amount of $ 251,519.74.

We affirm, holding (1) the trial court properly entered summary judgment on the two tort claims, as no genuine issue of material fact remained in dispute, see Cont'l Concrete, Inc. v. Lakes at La Paz III Ltd. P'ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000) (observing: "Issues of nonmaterial facts are irrelevant to the summary judgment determination" and a "material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case");

Armstrong v. S. Bell Tel. & Tel. Co., 366 So. 2d 88, 90 (Fla. 1st DCA 1979) (holding: "The existence of a dispute as to matters not material to disposition of the case will not preclude entry of a summary judgment"); (2) the damages award for future lost profits was supported by competent substantial evidence, see Alvarez v. All Star Boxing, Inc., 258 So. 3d 508 (Fla. 3d DCA 2018) ; Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So. 3d 374, 382 (Fla. 3d DCA 2013) ; W. Boca Med. Ctr., Inc. v. Marzigliano, 965 So. 2d 240 (Fla. 3d DCA 2007) ; and (3) the two tort claims were not precluded by the independent tort doctrine, see Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So. 2d 558, 559 (Fla. 5th DCA 2001) (holding: "The contract claim and the tortious interference claim were separate and distinct causes of action rather than alternative theories of recovery for the same wrong"); Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So. 2d 1222, 1229-30 (Fla. 1st DCA 2005) (explaining that plaintiff's theory of the case on its tortious interference claim alleged an "ongoing business relationship" existed while the contract at issue was in force) (citation omitted)).

Affirmed.


text:
    MBLOCK INVESTORS, LLC, Appellant, v. BOVIS LEND LEASE, INC., etc., et al., Appellees.
    No. 3D18-501
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., and Joy Spillis Lundeen and Johnathan T. Ayers, Miami, for appellant.
    Kubicki Draper, P.A., and Caryn L. Bellus and Bretton C. Albrecht, Miami, for appellee Bovis Lend Lease, Inc., n/k/a Lendlease (US) Construction, Inc.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   EMAS, C.J.

MBlock Investors, LLC ("MBlock") appeals the lower court's entry of final summary judgment in favor of defendant below, Bovis Lend Lease, Inc. n/k/a Lend Lease (US) Construction, Inc. ("BLL"), in a construction defect case brought by MBlock to recover damages following its acquisition of property commonly known as the Midblock Miami East Project ("the Property").

BACKGROUND

The Property was previously owned and developed by EB Development, LLC ("EB"), who hired BLL as its general contractor. The construction of the Property was financed by HSBC Bank, who held a mortgage and lien on the Property at all relevant times. Following the completion of construction in 2008, EB transferred the Property to D/M Midtown Miami Owner, LLC ("D/M Midtown"), and thereafter, BLL sued EB and D/M Midtown for allegedly failing to pay over $ 3 million in outstanding invoices. In response, EB contended that there were several construction defects in the Property.

In June 2009, EB and BLL settled their claims, and, as part of the consideration, BLL reduced its construction bill, voluntarily dismissed its lawsuit with prejudice, and discharged the lien and lis pendens ("the Close Out Agreement"). EB, in turn, released BLL and others from liability arising from construction of the Property. Specifically, the Close Out Agreement provided:

8. Subject to the provisions of Paragraphs 7 and 9, EB, for themselves, their employees, agents, managers, members, and their respective successors and assigns, hereby release, acquit and forever discharge BLL, Surety (as to the Performance Bond only) and all of their employees, servants, agents, representatives, successors and assigns (collectively, the "BLL Parties") from any and all claims, actions, causes of action, legal, equitable or administrative proceedings, demands, rights, damages, losses, relief, remedies, costs, expenses, fees and compensation of whatsoever kind or nature which EB may have against any of the BLL Parties on account of any and all acts or omissions from the beginning of the world through the date of this Agreement which are known to EB, its employees, agents, partners, managers, members, consultants, representatives, predecessors, attorneys, and their respective successors and assigns (collectively "EB Parties") as of the Effective Date , arising from the construction of the Project, the Construction Contract, or the Performance Bond, including but not limited to the alleged claims set forth in the attached schedule, Exhibit E (the "Released Claims") ... (emphasis added).

Two years later, D/M Midtown defaulted on the construction loan and mortgage with HSBC and agreed to convey the Property (by way of a deed in lieu of foreclosure) to MBlock, an entity formed by HSBC Bank specifically for the purpose of taking title to the Property.

In 2015, MBlock sued BLL, alleging claims of negligent construction and violations of the Florida Building Code. In response, BLL asserted the affirmative defense of release, contending that the claims were barred by the Close Out Agreement. Both parties moved for summary judgment on the release issue, and after a hearing, the trial court entered final judgment in favor of BLL.

ANALYSIS

On appeal, MBlock raises two primary issues: (1) that the Close Out Agreement does not preclude MBlock from suing BLL because MBlock is not EB's successor as a matter of law; and (2) that even if the Close Out Agreement applies to MBlock, the construction defects alleged in its complaint against BLL were latent defects, and thus, were not covered by the terms of the Close Out Agreement. We must therefore determine whether the Close Out Agreement applies to MBlock in the first instance, and, if so, whether the Close Out Agreement precludes the specific claims brought by MBlock in the underlying litigation.

We review the trial court's order granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) ; Gallagher v. Dupont, 918 So. 2d 342, 346 (Fla. 5th DCA 2005) (noting: "The standard of review for construction of a contract and for summary judgment is de novo.")

1. The Trial Court Correctly Determined MBlock is a Successor of EB Under the Terms of the Close Out Agreement

As to the first issue, we agree with the trial court's determination that MBlock is EB's successor, and therefore, affirm that portion of the order granting summary judgment in favor of BLL.

The Florida Supreme Court has previously explained that under the doctrine of res judicata:

A judgment on the merits rendered in a former suit between the same parties or their privies , upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Florida Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984) ) (bold emphasis added). "Res judicata bars a subsequent lawsuit when there is (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made." Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984) (superseded by statute on other grounds).

Generally, "one who is not a party to a settlement agreement cannot be bound by its terms." Gallagher, 918 So. 2d at 348 (citing Ahern v. Odyssey Re (London) Ltd., 788 So. 2d 369, 371-72 (Fla. 4th DCA 2001) ); see also Security Prof., Inc. v. Segall, 685 So. 2d 1381, 1383 (Fla. 4th DCA 1997) (same); Udick v. Harbor Hills Dev., L.P., 179 So. 3d 489, 491-92 (Fla. 5th DCA 2015) (noting: "[A] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings"); Whetstone Candy Company v. Kraft Foods, Inc., 351 F.3d 1067, 1073 (11th Cir. 2003) (noting: "Generally, a contract does not bind one who is not a party to the contract, or who has not in some manner agreed to accept its terms.")

However, there is an exception to this rule "when it can be said that there is 'privity' between a party to the second case and a party who is bound by an earlier judgment." Udick, 179 So. 3d at 491 (quoting Richards v. Jefferson Cty., Ala., 517 U.S. 793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996) ). A "party may be said to be a privy of another whenever there is a mutual or successive relationship to the same right." Id. (quoting Osburn v. Stickel, 187 So. 2d 89, 91-92 (Fla. 3d DCA 1966) ); see also Fabal v. Florida Keys Memorial Hosp., 452 So. 2d 946, 950 (Fla. 3d DCA 1984) (noting: "Although the term 'privity' has no definition which can be applied uniformly, it is not completely elusive, but denotes a mutual or successive relationship to the same interest in property" (internal citations omitted)); AMEC Civil, LLC v. PTG Const. Servs. Co., 106 So. 3d 455, 456 (Fla. 1st DCA 2012) (holding the doctrine of res judicata barred action where defendants were privies of prior litigant and noting: "Privity is a mutuality of interest, and identification of interest of one person with another, and includes privity of contract, the connection or relationship which exists between contracting parties." (quoting Radle v. Allstate Ins. Co., 758 F.Supp. 1464, 1467 (M.D. Fla. 1991) )). Compare Ventana Condo. Ass'n, Inc. v. Chancey Design P'ship, 203 So. 3d 175 (Fla. 2d DCA 2016) (holding where there is a substantial issue of fact in dispute as to whether Association was a successor or assign of developer, summary judgment is inappropriate.)

MBlock contends that it is not in privity with EB and therefore, it cannot be bound by the Close Out Agreement. However, a review of the Close Out Agreement itself, along with the other record evidence, including the documents generated between MBlock and EB when the Property was transferred, demonstrates that: (1) EB intended that its successors and assigns would be bound by the Close Out Agreement; (2) MBlock is the successor to EB's rights and liabilities related to the Property; and (3) HSBC, which formed MBlock for the sole purpose of taking over EB's property rights, was fully aware of the litigation and settlement between EB and BLL.

The Close Out Agreement provides:

EB, for themselves , their employees, agents, managers, members, and their respective successors and assigns , hereby release, acquit and forever discharge BLL , Surety (as to the Performance Bond only) and all of their employees, servants, agents, representatives, successors and assigns (collectively, the "BLL Parties") from any and all claims, actions, causes of action, legal, equitable or administrative proceedings, demands, rights, damages, losses, relief, remedies, costs, expenses, fees and compensation of whatsoever kind or nature which EB may have against any of the BLL Parties on account of any and all acts or omissions from the beginning of the world through the date of this Agreement which are known to EB, its employees, agents, partners, managers, members, consultants, representatives, predecessors, attorneys, and their respective successors and assigns (collectively "EB Parties") as of the Effective Date, arising from the construction of the Project , the Construction Contract, or the Performance Bond, including but not limited to the alleged claims set forth in the attached schedule, Exhibit E (the "Released Claims") ...

The term "successor" is generally defined by Black's Law Dictionary (10th ed. 2014) as:

1. A person who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor. 2. A corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.

"Florida courts have generally defined a successor as "he that followeth or cometh in another's place" or, more recently, as one "who follows or takes the place another has left and sustains the like part or character." Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So. 2d 1066, 1068 (Fla. 2d DCA 1980) (quoting Beatty v. Ross, 1 Fla. 198, 209 (1847) ). An assignee is one "to whom property rights or powers are transferred by another." Black's Law Dictionary (10th ed. 2014); see also Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553, 557 (2001) (noting the term "successors and assigns" is "boilerplate language ... [and] ordinarily applies only when another corporation, through legal succession, assumes the rights and obligations of the first corporation.")

In Whetstone, 351 F.3d at 1071 n. 4, the Eleventh Circuit Court of Appeals considered whether, under Florida law, a settlement agreement between Kraft Foods North America, Inc. and Whetstone Candy Company was binding on Kraft N.A.'s subsidiary, Kraft Foods UK, Ltd. where the settlement agreement provided that "[t]he terms and provisions of this Agreement shall inure to the benefit of and bind the successors and assigns and legal representatives of both Kraft and Whetstone." The settlement agreement between Kraft N.A. and Whetstone came about when Kraft N.A. sued Whetstone for trade dress violations related to the packaging of a chocolate-orange product. In the settlement agreement, Whetstone agreed to modify the packaging of its product in exchange for Kraft N.A.'s agreement to release Whetstone from any claims regarding a trade dress violation. After it signed the settlement agreement, Whetstone tried to market its chocolate-orange product in the United Kingdom and Kraft UK threatened legal action. Whetstone sued, seeking, inter alia, declaratory relief as to its rights under the settlement agreement with Kraft N.A. In determining that Kraft UK was not bound by Whetstone's settlement agreement with Kraft N.A., the court honed in on the fact that Kraft UK, although Kraft N.A.'s subsidiary, was not its "successor" or "assign," but "merely related to Kraft N.A. through its corporate structure." Id. at 1075-76.

Conversely, in this case, it is rather clear that MBlock is in fact, EB's "successor" for purposes of the settlement agreement with BLL because MBlock took over the Property and all of EB's rights with regard to the Property. Thus, MBlock clearly met the privity requirement for the application of res judicata in this case: it has a mutual or successive relationship to the same right that EB had when it settled with BLL: a reduction in the amount owed to BLL for its services in exchange for releasing BLL from any claims of construction defects, as provided for in the Close Out Agreement.

2. The Trial Court Erred in Granting Summary Judgment in Favor of BLL on MBlock's Latent Defect Claims

Having determined that MBlock, as a successor, is bound by the terms of the Close Out Agreement, we must next determine whether the trial court erred in determining that the Close Out Agreement precluded MBlock from litigating its latent defect claims and erred in entering summary judgment in favor of BLL.

The Close Out Agreement released BLL from known claims arising from the Project's construction, including, but not limited to, specified claims identified in Exhibit E to the Close Out Agreement. See note 2 supra . Thus, under the plain language of the Close Out Agreement, any unknown claims (e.g., latent defects), were not covered by the Close Out Agreement, and BLL was not released from liability for such claims. See generally, Falsetto v. Liss, No. 3D18-794, 2019 WL 2202543 (Fla. 3d DCA May 22, 2019). As to each claim raised by MBlock, it asserted below that the particular defects at issue were latent and were unknown at the time the Close Out Agreement was executed. MBlock supported this assertion with the affidavit of its expert, John Medina, who averred: "No one, whether a professional engineer or an untrained layperson, could have reasonably discovered the latent defects at the Project without the destructive and forensic evaluation I performed." Additionally, Medina averred that, in his expert opinion, none of the items listed in Exhibit E "provided any notice of the specific latent defects" that were later discovered by Medina's forensic evaluation.

The Medina affidavit created genuine issues of disputed fact, and the trial court erred in entering summary judgment in favor of BLL, requiring reversal. See Garcia v. First Cmty. Ins. Co., 241 So. 3d 254 (Fla. 3d DCA 2018) (holding the trial court erred in granting summary judgment where there were conflicting expert reports on a material issue); RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 3d 915, 917 (Fla. 3d DCA 2016) (observing: "The trial court must interpret every possible inference in favor of the non-movant, and should not enter summary judgment unless the facts are so crystallized that nothing remains but questions of law" (quoting Campaniello v. Amici P'ship, 832 So. 2d 870, 872 (Fla. 4th DCA 2002) ); Virtual Computacion Y Communicaciones, S.R.L. v. Fischzang, 776 So. 2d 327, 328 (Fla. 3d DCA 2001) (noting: "Summary judgment should not be granted 'unless the facts are so crystallized that nothing remains but questions of law' ") (quoting McCraney v. Barberi, 677 So. 2d 355, 357 (Fla. 1st DCA 1996) ); Seay v. Service Am. Corp., 614 So. 2d 2 (Fla. 3d DCA 1993) (same).

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

      Both EB and D/M Midtown were managed by Jack Cayre.

      Exhibit E, titled "Schedule of Alleged Outstanding Issues," listed:
      1. Cast Stone
      2. Quality of installation, staining, and efflorescence of Amenity Deck Pavers
      3. Gaps in cavity walls
      4. Absence of bond beam in exterior masonry wall at elevator machine room, south wall
      5. Thickness of stucco and the associated BLL contribution to the cost for testing
      6. Wavy and non-plumb construction of walls, drywall and base
      7. Gaps and cracks in balcony waterproofing
      8. Corrosion to steel framing
      9. Drywall water damage
      10. Garage ventilation fans under 6'8? clearance
      11. Drains on amenity deck not installed straight
      12. Tolerance of concrete slabs not meeting ASTM standards 1/8? per 10' foot in 172,000 s.f.
      13. All Punch list issues excluding potential future latent construction defects
      14. All items identified in the Condominium Defect Mitigation ("CDM") Reports
      15. Any additional OCIP credits

      We do not reach the third issue raised by MBlock on appeal, related to policy considerations, as it is not necessary to the resolution of this case.

      "As a general rule, a voluntary dismissal with prejudice operates as an adjudication on the merits, barring a subsequent action on the same claim." W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79, 83 (Fla. 4th DCA 2010) (quoting Capital Bank v. Needle, 596 So. 2d 1134, 1136 (Fla. 4th DCA 1992) ); see also Arrieta-Gimenez v. Arrieta-Negron, 551 So. 2d 1184, 1186 (Fla. 1989) (holding that a consent judgment "is entitled to the same preclusive, res judicata effect as any other judgment issued by a Florida court.") Thus, the fact that the final judgment in the case between EB and BLL ended with a settlement and voluntary dismissal does not preclude this court from applying the doctrine of res judicata if it otherwise applies.

      In addition, Florida follows "the traditional corporate law rule which does not impose the liabilities of the selling predecessor upon the buying successor company except under some limited circumstances. Bernard v. Kee Mfg. Co., Inc., 409 So. 2d 1047 (Fla. 1982) ; see also Corp. Express Office Prods., Inc. v. Phillips, 847 So. 2d 406, 412 (Fla. 2003) (holding: "A corporation that acquires the assets of another business entity does not as a matter of law assume the prior liabilities of the prior business.") This principle applies to LLCs. See Collier HMA Physician Mgmt., LLC v. Menichello, 223 So. 3d 334 (Fla. 2d DCA 2017). Importantly, however, one such exception to the general rule is where the successor expressly or impliedly assumes obligations of the predecessor . See Bernard, 409 So. 2d at 1049 ; Phillips, 847 So. 2d at 412.

      "A settlement is a contract. An unambiguous contract provision must be afforded its plain meaning." Lazzaro v. Miller & Solomon General Contractors, 48 So. 3d 974, 975 (Fla. 4th DCA 2010).


text:
    The STATE of Florida, Appellant, v. Ray BRADLEY, Appellee.
    No. 3D17-726
    District Court of Appeal of Florida, Third District.
    Opinion filed June 5, 2019
    Ashley Moody, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellee.
    Holland & Knight and Frances Guasch De La Guardia; Miriam Ramos, City Attorney, for City of Coral Gables, as amicus curiae.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

On Remand from the Supreme Court of Florida

Upon consideration of the opinion of the Supreme Court issued May 3, 2019, quashing this Court's opinion of May 30, 2018, in this case, the Court withdraws its opinion of May 30, 2018, and substitutes the following opinion in its place and stead.

The circuit court order of March 17, 2017, granting defendant/appellee Ray Bradley's motion to vacate illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800, is hereby vacated. The case is remanded to the trial court for entry of an order denying Bradley's motion. State v. Michel, 257 So. 3d 3 (Fla. 2018) ; Franklin v. State, 258 So. 3d 1239 (Fla. 2018).

Reversed and remanded.

      State v. Bradley, No. SC18-922, 2019 WL 1983473 (Fla. May 3, 2019).

      State v. Bradley, 43 Fla. L. Weekly D1213, 2018 WL 2422873 (Fla. 3d DCA May 30, 2018).


text:
    Craig TAYLOR, Appellant, v. HANLEX DEVELOPMENT, LLC, Appellee.
    Case No. 5D18-3204
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Craig Taylor, Miami, pro se.
    Scott R. Rost and Jason R. Hawkins, of South Milhausen, P.A., Orlando, for Appellee.
   PER CURIAM.

Craig Taylor appeals from a judgment on the pleadings entered in a quiet title action filed by Hanlex Development, LLC. We reverse.

According to Hanlex's amended complaint to quiet title, it entered into a contract to purchase a parcel of real property with a seller named in the contract as "Mobley Mattie Life Estate, RE: J G Mobley." Despite the seller being identified as holding a life estate, Hanlex pled that it "understood" that the seller held fee simple title to the property. Hanlex further alleged in its amended complaint that the property was owned by James G. Mobley until his death, intestate, in 1959 and that Taylor was one of Mobley's heirs at law. Taylor filed an answer and affirmative defenses generally denying the allegations of the amended complaint. Hanlex then filed a motion for summary judgment, which was granted as to all named parties except Taylor. On the same pleadings, Hanlex then filed a motion for judgment on the pleadings, which was granted.

After the pleadings are closed, a party may move for judgment on the pleadings. See Fla. R. Civ. P. 1.140(c). The motion raises only questions of law arising on the pleadings. See Whitaker v. Powers, 424 So. 2d 154, 155 (Fla. 5th DCA 1982).

When a plaintiff moves for judgment on the pleadings, the motion tests the legal sufficiency of the answer and all affirmative defenses. See Henry P. Trawick, Jr., Fla. Practice & Procedure, § 10-9 (2018-19 ed.). In considering the motion, all well-pleaded allegations of the nonmoving party are taken to be true, while the moving party's allegations, which were denied in the defendant's answer, are taken as not proved. See Whitaker, 424 So. 2d at 155. A judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Williams v. Howard, 329 So. 2d 277, 280 (Fla. 1976).

Here, Taylor's denial of the operative portions of the amended complaint had to be taken as true for purposes of the motion for judgment on the pleadings. See Scarborough Assocs. v. Fin. Fed. Sav. & Loan Ass'n of Dade Cty., 647 So. 2d 1001, 1004 (Fla. 3d DCA 1994). Because of this, the judgment on the pleadings was erroneously entered. Consequently, we reverse the judgment and remand for further proceedings.

REVERSED and REMANDED.

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


author: BERGER, J.

text:
    Robert MULLINS, Appellant, v. Kenneth MULLINS and Carla Mullins, Appellees.
    Case No. 5D18-1672
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Eric S. Mashburn, Law Office of Eric S. Mashburn, P.A., Winter Garden, for Appellant.
    Charles A. Dehlinger, of Law Office of Charles A. Dehlinger, Altamonte Springs, for Appellees.
   BERGER, J.

Robert Mullins appeals a summary final judgment ordering the partition and sale of the residence he and his siblings, Kenneth Mullins and Carla Mullins, inherited from their mother, Sarah Jane Mullins. He argues that the trial court erred when, in ordering the partition, it relied solely on an order determining homestead instead of the directive in his mother's will bequeathing him and his brother Kenneth a life estate in the property and providing Carla with a remainder interest. Robert contends that his mother's will establishes the sibling's interest in the property, not the homestead order. We agree and reverse.

Ms. Mullins died testate in Orange County, Florida, leaving behind her three surviving children, the parties in this case. Her Last Will and Testament devised her homestead property to Robert, Kenneth, and Carla, in equal shares, subject to the following:

A. My sons, Robert F. Mullins and Kenneth D. Mullins shall be allowed to live in the property with the use of the furnishings as long as either one of them desires to live there: and
B. Robert F. Mullins and Kenneth D. Mullins shall each pay a share of the expense of maintaining the property while they are residing at the property, including, but not limited to, ad valorem taxes, insurance comparable to the insurance that I carried on the property during my lifetime, regular ordinary maintenance, and such other expenses as may be necessary to maintain the property in a condition comparable to the condition that it was in at the time of my death; and
C. If either Robert F. Mullins or Kenneth D. Mullins lives in the house for any period of time and then moves the son who moved shall pay a share of the expenses of maintaining the property based upon a pro rata share for the time period that he was living at the house. If both of my sons vacate the house then all of my surviving children shall pay a pro rata share of the cost of maintaining the property until the home is disposed of as agreed by them.

The probate court later entered an order determining homestead (Homestead Order), wherein it determined that the homestead property was properly devised and exempt from administration of the estate or the claims of Ms. Mullins's creditors. The Homestead Order reflects that the homestead property was devised in equal shares to Ms. Mullins's three children, but it neglects to mention the existence of Robert and Kenneth's life estates in the property. The significance of the failure to include the life estates in the Homestead Order is at issue in this case.

Prior to and immediately following their mother's death, Robert and Kenneth resided together on the property. Kenneth alleges that Robert's actions forced him to vacate the property. Currently, Robert resides there with two tenants. As a result, Kenneth and Carla filed a complaint to partition the property. They alleged that the siblings own the property in equal parts as corroborated by the Homestead Order. Because Robert had made it impossible for anyone else to occupy the property, specifically Kenneth, Carla and Kenneth asked the trial court to partition and sell the property so that each sibling could receive their just and proper share.

Robert countered that their mother's will established the siblings' interest in the property, not the Homestead Order. He attached their mother's will to his answer to demonstrate as much. In response, Kenneth and Carla amended their complaint. In it they acknowledged that their mother's will gave Kenneth and Robert life estates, but asked, in the alternative, that the trial court extinguish the life estates based on Robert's actions.

Both parties filed competing motions for summary judgment, which were denied. The Honorable John E. Jordan recognized that the three children's equal shares in the property were subject to Robert and Kenneth living in the property for as long as either desired to live there, essentially agreeing with Robert that he and Kenneth possess a life estate interest in the property. Consequently, Judge Jordan found that although Kenneth could seek a partition against Robert, Carla could not because she had no current possessory interest in the property. Ultimately, however, Judge Jordan concluded that he could not enter summary judgment in favor of Robert because Kenneth presented evidence in support of partition and had a statutory right to petition for it. Kenneth and Carla's motion was denied because a genuine issue of material fact existed as to whether equity required premature termination of Robert's life estate so as to permit partition of the property. Specifically, Robert refuted Kenneth and Carla's allegation that Robert made it impossible for Kenneth to exercise his life estate.

Undeterred, Kenneth and Carla filed a second amended motion for summary judgment, claiming that the title report prepared by Commonwealth Land Title Insurance Company confirms that the Homestead Order is the only document that creates title in the property and it does not mention any life estate. This time, the parties appeared before a different judge and the motion was granted. This judge found:

[I]f there is a difference between the will that was admitted to probate and the actual Order Determining Homestead, it was cured by the consent of all three parties to this action as a matter of law, everybody agreeing to it, when the Plaintiff and Defendant executed and filed consents to the form of the Order. Therefore, the Order Determining Homestead entered on February 7, 2011 is entitled to be given the respect it deserves and therefore it controls. All three parties consented to the entry of that Order.

This judge further found that the Homestead Order is presently the only document of record that pertains to the parties' title to the real property. Accordingly, it ordered that the property be partitioned and sold, with each party getting a one-third interest. This was error.

The question for this Court is the impact the Homestead Order has on Robert and Kenneth's interests as set forth in the will. First, Kenneth and Carla assert that the consents to the Homestead Order altered the parties' individual interests in the estate. Second, Kenneth and Carla suggest that the Homestead Order constitutes a title transaction within the meaning of section 712.01(3), Florida Statutes (2011), and thereby extinguished the life estates in the property. We disagree. We conclude, as Judge Jordan did in his order denying summary judgment, that the Homestead Order did not eradicate Robert and Kenneth's life estates.

In this case, the siblings all agree that their mother's will granted Robert and Kenneth a life estate in the homestead property. As set forth below, the Homestead Order did not create any new rights, and the consents thereto did not alter the parties' property rights established by the will. "[A]ny person to whom homestead property is devised under a will and who is categorized as an 'heir' in the intestacy statute, regardless of whether that person would be next in line had the decedent died intestate, receives protected homestead property under the Florida Constitution." McKean v. Warburton, 919 So. 2d 341, 345 (Fla. 2005), as revised on denial of reh'g (Jan. 5, 2006) (citing Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997) ). As the Second District succinctly explained in In re Estate of Hamel, 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002) :

If the property is homestead on the date of death, the homestead protection is impressed upon the land and the protection from creditors' claims inures to the benefit of the heirs to whom the property is devised. See Bartelt v. Bartelt, 579 So.2d 282, 283 (Fla. 3d DCA 1991) (noting, "[t]he test is not how title was devolved, but rather to whom it passed").
Moreover, homestead rights exist and continue even in the absence of a court order confirming the exemption. See Raulerson v. Peeples, 77 Fla. 207, 81 So. 271 (1919) ; Clifton, 553 So. 2d at 194 ; Cavanaugh, 542 So. 2d at 1351. Thus proceedings to determine whether a property is homestead are permissive, not required. See Fla. Prob. R. 5.405(a) (providing an interested person may file a petition to determine homestead property); Clifton, 553 So. 2d at 194. Generally, petitions to determine homestead are initiated for the practical purposes of changing record title to the property or releasing the personal representative of any obligation regarding the property. See Rohan Kelley, Homestead Made Easy, Part I: Understanding the Basics, 65 Fla. B.J. 17, 20 (Mar. 1991). Such proceedings are similar to actions for declaratory relief that explain or clarify existing rights rather than determine new rights.

Based on this principle, the Homestead Order in this case did not create new rights, but rather explained or clarified the rights that already existed by operation of law. See Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1352 (Fla. 1st DCA 1989) (explaining that parties are not required to litigate homestead benefit because it inures to lineal descendants by virtue of section 732.401(1), Florida Statutes ). Nevertheless, Kenneth and Carla assert that the consents to the Homestead Order amounted to an agreement to alter Robert and Kenneth's life estates.

While "[h]eirs and beneficiaries may formally agree to alter their prescribed interests in an estate, ... such an agreement must be in writing and comply with section 733.815, Florida Statutes."

Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5th DCA 1989) (footnote added). The consents signed by Robert, Kenneth, and Carla state that each beneficiary "hereby consents to the Petition to Determine Homestead Property; consents to the entry of an Order Determining Homestead Property; waives service of Notice of Hearing upon the undersigned and consents to entry of such order ex-parte." Conspicuously missing is any reference to an agreement to alter the interests, shares, or amounts to which Robert, Kenneth, and Carla are entitled under the will. See § 733.815, Fla. Stat. (2011). And as conceded by counsel, no contract between the three exists that would alter the interests, shares, or amounts to which they are entitled. Id. As such, the consents signed by Robert and Kenneth do not constitute an agreement to reject their life estates. The consents simply establish that the siblings consented to an order confirming their homestead exemption and nothing more.

Finally, the Homestead Order in this case does not constitute a title transaction, as defined by section 712.01(3), Florida Statutes (2011), extinguishing the life estates in the property. "A title transaction within the meaning of this act is defined in section 712.01(3), Florida Statutes, and means any recorded instrument or court proceeding which affects title to any estate or interest in land and which describes the land affected with legal sufficiency." Cunningham v. Haley, 501 So. 2d 649, 652 (Fla. 5th DCA 1986). Although the probate and recording of a will constitutes a title transaction within the meaning of section 712.01(3), see Mayo v. Owens, 367 So. 2d 1054, 1057 (Fla. 1st DCA 1979) ; Kittrell v. Clark, 363 So. 2d 373 (Fla. 1st DCA 1978), Kenneth and Carla point to no authority holding or suggesting that an order determining homestead property constitutes the same. Even if it did, Robert can assert an exception to the marketable title statute because he is in possession of the property. Indeed, "marketable record title shall not affect or extinguish the ... [r]ights of any person in possession of the lands, so long as such person is in such possession." § 712.03(3), Florida Statutes (2011).

Based on the foregoing, we conclude that Judge Jordan's Order Denying Cross Motions for Summary Judgment was correct, and we adopt his well-reasoned analysis as our own. Accordingly, we reverse the Summary Final Judgment of Partition entered upon Kenneth and Carla's second amended motion for summary judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

EDWARDS and HARRIS, JJ., concur.

      Section 733.815, Florida Statutes (2011), provides:
      Subject to the rights of creditors and taxing authorities, interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract, subject to the personal representative's obligation to administer the estate for the benefit of interested persons who are not parties to the contract, and to pay costs of administration. Trustees of a testamentary trust are interested persons for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts.


author: Kelsey, J. Bilbrey, J., dissenting.

text:
    Michael E. HOLDER, Former Husband, Appellant, v. Anna Marie LOPEZ, f/k/a Anna Marie Holder, Former Wife, Appellee.
    No. 1D18-1870
    District Court of Appeal of Florida, First District.
    June 7, 2019
    Gena D. Fournier and Richelle M. Marsico, of Fournier Law, PLLC, Tallahassee, for Appellant.
    No appearance for Appellee.
   Kelsey, J.

Mr. Holder, Former Husband, retired from driving a tractor-trailer rig in January of 2017, at age sixty-five. He had been paying permanent periodic alimony since these parties divorced in 2003, but neither the parties' marital settlement agreement nor the final judgment dissolving their marriage addressed what would happen with alimony upon either party's retirement. After retiring, Former Husband petitioned for reduction or termination of alimony. The trial court reduced the alimony but did not terminate it, and Former Husband appeals that order. We reverse because the trial court erred in two respects: (1) imputing non-existent housing expenses to Former Wife; and (2) finding Former Husband voluntarily under-employed and imputing income to him without the required evidentiary basis. See § 61.08(2), Fla. Stat. (listing factors to be considered in evaluating need and ability to pay alimony); § 61.14(1)(a), Fla. Stat. (governing changes in alimony based on changed circumstances); see also Ketcher v. Ketcher , 188 So. 3d 991, 993 (Fla. 1st DCA 2016) (holding that award of alimony must be supported by findings of both need and ability to pay); McCray v. McCray , 493 So. 2d 1117, 1118 (Fla. 1st DCA 1986) (reversing alimony award where record did not support amount claimed as wife's need).

(1) Need: Imputing Expenses to Former Wife.

The trial court erred in finding that Former Wife demonstrated need. The evidence was undisputed that she received Social Security and Medicare disability benefits, plus a share of Former Husband's civil service and military retirement benefits, which was meeting her basic needs and leaving her a small surplus of monthly income. It was undisputed that she was not incurring housing expenses because she was living with her children on a rotating basis to spend time with grandchildren (apparently from an earlier marriage) and assist with their needs, and had a bungalow at her son's house. Even if there had been a present need for other housing, there was no evidence of what that would cost. The trial court erred in imputing housing expenses to Former Wife on this record. See Hedden v. Hedden, 240 So. 3d 148, 151-52 (Fla. 5th DCA 2018) (finding it an abuse of discretion to base alimony award on mere possibilities or speculation about future events); Kobe v. Kobe , 159 So. 3d 986, 987 (Fla. 1st DCA 2015) (concluding trial court erred in awarding alimony without sufficient record evidence and findings of actual expenses).

In addition, the record reflects that Former Wife has accumulated credit card debt that she attributed largely to purchasing craft supplies for her activities with her grandchildren, but the trial court did not consider the nature of these voluntary, non-essential expenses. Nor did the trial court consider that, if Former Wife, who claimed to be totally disabled, can assist with child-care and household needs for family members, she likely could do so for paying clients. An award of alimony should not exceed the recipient's actual, reasonable need. McCray , 493 So. 2d at 1118. On this record, the trial court erred in finding need, and therefore erred in failing to terminate Former Husband's alimony obligation.

(2) Ability to Pay: Imputing Post-Retirement Income to Former Husband.

Although the error in finding need is dispositive of this appeal, we address the error in the trial court's treatment of Former Husband's retirement, in the event it becomes relevant in future proceedings between these parties. Retirement is a changed circumstance warranting reconsideration of alimony. Pimm v. Pimm, 601 So. 2d 534, 537 (Fla. 1992) ("In determining whether a voluntary retirement is reasonable, the court must consider the payor's age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire."). The supreme court in Pimm noted that sixty-five "has become the traditional and presumptive age of retirement for American workers." Id. The court also noted that "[e]ven at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty." Id.

Former Husband's decision to retire was reasonable. He was sixty-five years old, which he testified was five years older than the age at which most truckers retire. He had a variety of physical limitations and ailments related to age and the physical labor associated with thirty-six years of military service overlapping with twenty-one years working as a truck driver, for a total of nearly fifty years of work. The evidence of his physical limitations included Former Husband's testimony as well as documentation from a physician that Former Husband suffered from fibromyalgia, back pain, and fatigue, and was unable to work. These factors demonstrate reasonableness and a substantial change of circumstances warranting modification or termination of alimony. Id.

Although the trial court concluded that Former Husband was no longer physically able to continue driving a truck, the court nevertheless found that Former Husband was able to perform some kind of part-time work for minimum wage. It was error for the trial court to proceed to an imputed-income analysis, because the retirement was reasonable as supported by the undisputed evidence. A reasonable retirement under these circumstances does not constitute voluntary under-employment. Leonard v. Leonard, 971 So. 2d 263, 266 (Fla. 1st DCA 2008) (holding courts may not impute income unless the payor voluntarily declined to find work paying at or above previous earnings); Schram v. Schram , 932 So. 2d 245, 249-50 (Fla. 4th DCA 2005) (holding trial courts may not impute income without first finding that termination of employment was voluntary and that the underemployment was owing to "less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received") (quoting Konsoulas v. Konsoulas , 904 So. 2d 440, 443 (Fla. 4th DCA 2005) ).

In addition, even if there were a valid basis to impute income to Former Husband, the trial court erred in failing to base imputation on specific evidence of available jobs appropriate to Former Husband's experience and physical limitations, how much they would pay, and other pertinent factors such as competition for such jobs in the relevant marketplace. See Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA 2015) (requiring evidence and findings of "the employment potential and probable earnings ... based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available," under § 61.30(2)(b), Fla. Stat.); Vallette v. Vallette, 693 So. 2d 1121, 1121 (Fla. 4th DCA 1997) (requiring current evidence of skills and of available jobs in the current market at similar income); Cooper v. Cooper , 639 So. 2d 153, 155 (Fla. 2d DCA 1994) (holding imputed income must be "based on a finding that the husband is capable of earning a specified, imputed amount and that he could, in fact, earn this amount by using his best efforts"). Former Wife had the burden of proving these factors. Burkley v. Burkley, 911 So. 2d 262, 269 (Fla. 5th DCA 2005). She failed to do so. Although the trial court ultimately adjusted other obligations to create a paper surplus of a few hundred dollars to be paid to Former Wife, the finding of ability to pay appears to have been based on the improperly imputed income, which did not establish ability to pay.

REVERSED .

Rowe, J., concurs; Bilbrey, J., dissents with opinion.

Bilbrey, J., dissenting.

The former husband appeals the trial court's order modifying the final judgment of dissolution of marriage because it reduced, but did not eliminate, his permanent periodic alimony obligation to the former wife. Applying the appropriate law to our review of the trial court's order, I am compelled to respectfully dissent and would affirm the order.

The final judgment, entered in September 2003, incorporated the parties' marital settlement agreement, including provisions for former wife's support. The marital settlement agreement required the former husband to provide the former wife with health insurance, portions of his retirement accounts, and $ 1,150.00 per month in permanent periodic alimony secured by an insurance policy on his life. The alimony and insurance premiums amounted to a monthly obligation of $ 1,785.15 payable by the former husband. No appeal was taken from the final judgment.

Thirteen years later, in February 2017, the former husband filed his supplemental petition for modification or termination of his alimony and insurance premium obligations. See § 61.14(1)(a), Fla. Stat. (2018). He alleged several substantial changes in his circumstances, including his recent voluntary retirement at age 65 from his physically demanding trucking job and his declining physical health. The former husband had remarried but the former wife had not. According to the former husband, the former wife's financial circumstances had also substantially changed since the final judgment due to her qualification for, and receipt of, Social Security Disability benefits and health care coverage through Medicare. Other than the receipt by the former wife of her portion of the former husband's retirement benefits as originally awarded, the former husband did not allege any increase in the former wife's income or earning capacity since the 2003 final judgment.

After a delay in obtaining service upon the former wife caused by her lack of a permanent residence, proceedings continued upon the former husband's supplemental petition for modification. The final hearing was held in December 2017. The hearing transcript reflects the parties' wide-ranging testimony and the court's inquiries about matters not strictly essential to resolution of the supplemental petition. The written order also reflects the broad scope of the hearing and includes lengthy narrative of various facts and observations, some relevant and some inconsequential to the disposal of the supplemental petition. The superfluous discussion tends to confuse, rather than enlighten, our review of the trial court's particular findings necessary to support its ruling. However, ultimately the court found "a substantial unanticipated change in circumstances of the parties since entry of the last order" and that the former husband's "retirement from his job has resulted in a significant reduction of income." The court also found that the former wife "is totally disabled and cannot work at all" and that she had secured health insurance costing her only $ 31.00 per month. Upon these substantial changes in the former husband's financial abilities and the former wife's needs for insurance, the court granted modification of the support provisions in the final judgment.

The court's finding substantial decreases in the former husband's financial circumstances and in the former wife's need for him to provide health insurance are not challenged on appeal. And the former husband does not challenge the trial court's legal conclusion that modification was warranted based on these changes in circumstances. Accordingly, the trial court's ruling that modification is warranted is not before us for our de novo review. See Jarrard v. Jarrard , 157 So. 3d 332, 337 (Fla. 2d DCA 2015) (mixed standard of review for modifications of alimony under § 61.14, Fla. Stat.; de novo review for legal conclusion that modification is required by substantial change in circumstances); Bauchman v. Bauchman , 253 So. 3d 1143, 1146 (Fla. 4th DCA 2018). Once grounds for any modification at all are established (here, the requisite substantial change in circumstances), the trial court's decision whether to reduce or terminate alimony is reviewed for abuse of discretion. Atkinson v. Atkinson , 157 So. 3d 473, 478 (Fla. 2d DCA 2015) ; Albu v. Albu , 150 So. 3d 1226 (Fla. 4th DCA 2014). The extent of the modification to the former husband's support obligation is the issue before us.

Focusing on the actual modification ordered by the trial court, the order on appeal eliminates the former husband's obligations to provide the former wife with health insurance and secure alimony with a life insurance policy. It also reduces the alimony itself from $ 1,150.00 to $ 500.00. The former husband's monthly support obligations were thus reduced by $ 1,285.15, from $ 1,785.15 to $ 500.00. The court made the reduced support obligation retroactive to the filing date of the former husband's supplemental petition and determined that no arrearages of alimony were due.

The former husband asserts on appeal that the trial court abused its discretion by finding that the former wife continued to have a need for any alimony and that he had any ability to pay. "In determining the extent of modification, the trial court should consider those factors listed in section 61.08, Florida Statutes, to the extent that they are relevant in a modification proceeding." Albu , 150 So. 3d at 1228. "These factors include each party's financial resources, earning capacities, employability, and sources of income." Id.

Both the transcript of the final hearing and the order on appeal demonstrate the trial court's proper consideration of the statutory factors to support the determination "that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance." § 61.08(2), Fla. Stat. Under section 61.08(2)(b), the court found the duration of the marriage was almost 25 years. As set out in subsections 61.08(2)(c), (2)(d), (2)(e), and (2)(i), the court considered the former wife's current need in light of her age (62), physical condition ("totally disabled"), financial resources and sources of income (Social Security Disability benefits and her portion of former husband's civil service and military retirement), and her employability ("cannot work at all").

The former husband does not assert on appeal that the court failed to apply the proper statutory factors. Likewise, he does not challenge the court's conclusions under these factors. Rather, the former husband argues that the trial court abused its discretion by finding any need because the former wife was able to meet her basic needs with her income. However, the former husband does not challenge the trial court's finding that the former wife "is able to live on her meager income without a monthly deficit because she is living with her son who is paying her housing expense." Without calculating a specific housing expense, the court found generally that "she is in need of some financial assistance in the form of alimony" and she "has a continued need."

The majority interprets the trial court's finding a continued need of the former wife for "some financial assistance" as an improper imputation of a speculative housing expense to the former wife. The cases relied upon by the majority all concern direct appeals of final judgments awarding alimony, not modification proceedings. See Hedden v. Hedden , 240 So. 3d 148 (Fla. 5th DCA 2018) ; Ketcher v. Ketcher , 188 So. 3d 991 (Fla. 1st DCA 2016) ; Kobe v. Kobe , 159 So. 3d 986 (Fla. 1st DCA 2015) ; McCray v. McCray , 493 So. 2d 1117 (Fla. 1st DCA 1986). Accordingly, the determination of a substantial change in the recipient's need since the entry of a final judgment awarding alimony is not addressed in those cases.

The parties' and the court's detailed discussion during the final hearing about the accuracy of particular expenses of both parties did not result in the court setting a particular dollar amount of the former wife's need based on a specific amount of imputed expense, as might be appropriate for an initial award of alimony in a final judgment. The former husband does not argue on appeal that the court's finding a continued need of the former wife was based upon mathematical error in calculation of a dollar amount.

The former husband fails to establish that the trial court abused its discretion by finding that, despite the substantial change in the parties' financial conditions, the former wife continued to need "some financial assistance." Other than her decreased need for insurance provided by the former husband, there was absolutely no evidence that the former wife's financial circumstances had improved since the entry of the agreed-upon alimony provisions in the final judgment.

The majority also finds the trial court abused its discretion by imputing income to the former husband to support its finding of his ability to pay the reduced alimony. While the court's expansive discussion of the former husband's physical condition and employability in contrast to those of the former wife suggests the statutory factors for imputing income for child support purposes, the trial court was not considering, and did not make any ruling upon, an imputation of income pursuant to section 61.30(2)(b). The court's unfortunate use of terminology - that it was "appropriate to impute income to" the former husband, in the amount of "minimum wage rate of $ 8.25 at a number of hours equal to 50% of full-time" due to his voluntary retirement - could be misleading as to the actual modification ordered by the trial court. Like the former wife's need, the "imputing" here was the imputation of ability to pay and did not result in any dollar amount used in any mathematical formula by the trial court in the calculation of alimony.

The clear language in the order on appeal shows that the trial court did not base the reduced alimony of $ 500.00 per month on any imputed income. Unlike Leonard v. Leonard , 971 So. 2d 263 (Fla. 1st DCA 2008), the modification of alimony in this case was not the result of imputed income supporting a calculation of a specified wage-earning capacity for purposes of setting the alimony payment. In this case, the former husband's ability to pay the modified alimony amount was based on the court's cessation of his obligation to pay future insurance premiums to secure his alimony payments ($ 187.20) and for health insurance for the former wife ($ 447.95). The court's termination of these insurance obligations afforded the former husband more than enough ability to pay his reduced alimony payments.

In view of the court's actual modification of alimony, the court's discourse on the former husband's capacity for employment, minimum wage and possible part-time jobs for the former husband was mere surplusage. Although the order on appeal is not a model of clarity and contains an abundance of dicta and other superfluous language, the former husband fails to establish that the trial court abused its discretion by reducing, but not eliminating, the alimony payment based on the continuance of former wife's need and his ability to pay the reduced amount. Accordingly, I would affirm.

      The pertinent portions of section 61.14(1), Florida Statutes, have not been amended since 2003.

      The record reflects that the former wife lived primarily with one adult son and visited other adult children of the marriage.