author: SCALES, J.

text:
    Vernal KHORRAN, Appellant, v. HARBOR FREIGHT TOOLS USA, INC., Appellee.
    No. 3D17-1508
    District Court of Appeal of Florida, Third District.
    Opinion filed June 27, 2018
    Billera Law (Boca Raton); The Powell Law Firm, P.A., and Brett C. Powell, for appellant.
    Kubicki Draper, and G. William Bissett, Jr. and Caryn L. Bellus, for appellee.
    Before EMAS, SCALES and LUCK, JJ.
   SCALES, J.

In this personal injury action, Vernal Khorran, the plaintiff below, appeals a final summary judgment entered against him. We reverse because genuine issues of material fact exist as to whether Harbor Freight Tools USA, Inc., the defendant below, either (i) had actual or constructive knowledge of a dangerous condition on its premises that injured Khorran; or (ii) created a dangerous condition on its premises through its mode of operation in stacking the item that allegedly injured Khorran.

I. FACTS

On June 23, 2010, Khorran was shopping at a Harbor Freight store in Miami. According to Khorran, while he was perusing the shelves in a store aisle, a large metal object fell off an upper aisle shelf and struck Khorran from behind, injuring his knee. Apparently, Khorran was facing a wall of shelves when an item on one of the shelves behind him fell and somehow struck him.

Khorran filed a two-count, second amended complaint against Harbor Freight alleging negligence (Count I) and negligent mode of operation (Count II). Both of these claims were based, in part, on allegations that large and heavy equipment-such as the object that hit him-were displayed in an unsafe manner over areas that Harbor Freight's invitees traverse.

Khorran testified at his deposition that he did not see the object on the aisle shelf before the incident. Nor did Khorran see the object on the ground after it hit him. Khorran testified, however, that he saw the object in his peripheral vision as it was falling. Khorran also testified that while he was being attended to after the incident, a store employee showed Khorran a metal trailer hitch and identified the hitch as the object that had struck him. Though Harbor Freight asserts that its store policy is to display such heavy objects only on lower shelves, Khorran testified that, immediately after the incident, he saw trailer hitches being stored on the top shelf in question at a height of at least eight or nine feet from the ground.

Harbor Freight filed a motion for summary judgment, claiming there was no evidence that Harbor Freight had any actual or constructive knowledge or notice of the alleged dangerous condition prior to the incident. In its motion, Harbor Freight argued that "[e]ven assuming that it was a trailer hitch that fell on [Khorran] and that it had been dangerously stacked, [Khorran] ... adduced no evidence as to where the trailer hitch was located at the time of the incident, that Harbor Freight created the dangerous condition, or that Harbor Freight had actual or constructive notice of it." In support of its summary judgment motion, Harbor Freight also produced an expert affidavit, which opined that Khorran's version of events was a "physical impossibility."

In response, Khorran filed his own expert affidavit, which opined that Khorran's version of events was "reasonable." In his response, Khorran also argued that he was entitled to a res ipsa loquitur inference and, therefore, that any actual or constructive notice of a dangerous condition is irrelevant. While the transcript from the summary judgment hearing reflects that the trial court rejected Harbor Freight's "impossibility" claim, the trial court, nevertheless, entered summary judgment for Harbor Freight, concluding that the record evidence was devoid of any genuine issue of material fact. Khorran timely appealed the trial court's summary judgment for Harbor Freight.

II. ANALYSIS

Khorran asserts two distinct, albeit similar, negligence claims against Harbor Freight. Khorran's negligence claim (Count I) is premised upon there being a dangerous condition at the Harbor Freight store and requires proof that Harbor Freight either knew or should have known of the alleged dangerous condition. In the alternative, Khorran's "negligent mode of operation" claim (Count II) is premised upon Harbor Freight's alleged conduct in creating the dangerous condition, thus obviating the knowledge element inherent in the negligence claim. We discuss each claim below, and why the record evidence precludes summary judgment on either claim.

A. Khorran's Negligence Claim

A property owner owes an invitee a "duty to use reasonable care in maintaining the property in a reasonably safe condition." Grimes v. Family Dollar Stores of Fla., Inc., 194 So.3d 424, 427 (Fla. 3d DCA 2016). Where an invitee has been injured by a dangerous condition on a business premises and seeks to recover damages from the premises owner, the invitee ordinarily must establish that the premises owner had either actual or constructive knowledge or notice of the dangerous condition. Id. Constructive knowledge may be inferred if the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it. Id. at 427-28.

In his deposition, Khorran testified that: (i) two Harbor Freight employees were stacking the shelves behind him, in the same aisle where Khorran was standing; (ii) Khorran saw the object that hit him fall from above and behind his head; (iii) one of the Harbor Freight employees who had been stacking the shelves behind Khorran identified a trailer hitch as the object that had struck him; (iv) immediately following the incident, Khorran looked up from where he was seated and saw multiple, similar trailer hitches stored on the top shelf, directly behind where he had been standing; and (v) the top shelf was at least eight or nine feet high, requiring the use of a ladder to reach it.

Viewing this evidence in a light most favorable to Khorran, reasonable inferences can be made that the trailer hitch that hit Khorran was dangerously stacked on the top shelf behind where Khorran was standing, and that the Harbor Freight employees who then were stocking the shelves somehow caused the trailer hitch to fall. That the top shelf was not reachable without the assistance of a ladder and that multiple trailer hitches were displayed there support a reasonable inference that a Harbor Freight employee either created the dangerous condition by placing the trailer hitches there-as opposed to a random customer re-shelving a lone, unwanted item in the wrong place-or that the dangerous condition existed for a sufficient period of time that a Harbor Freight employee should have known about it and taken steps to remedy it.

Contrary to the trial court's finding, there is record evidence sufficient to create a genuine issue of material fact precluding summary judgment for Harbor Freight on whether it had actual or constructive knowledge of the dangerous condition. Id. Hence, we reverse the trial court's summary judgment for Harbor Freight on Count I of Khorran's second amended complaint.

B. Khorran's Negligent Mode of Operation Claim

A claim for negligent mode of operation "recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance." Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 260 (Fla. 2002). Under this negligence theory, the focus is on the manner in which the premises owner operates, rather than on the particular events surrounding the plaintiff's accident. Id. at 261. If the premises owner operates in a manner that creates a dangerous or unsafe condition, the premises owner can be held liable. Id. Importantly, under the mode of operation theory of negligence, "the requirement of establishing constructive knowledge is altered or eliminated." Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 323 (Fla. 2001).

As the Florida Supreme Court has explained:

The duty of premises owners to maintain their premises in a safe condition is not exclusively limited to detecting dangerous conditions on the premises after they occur and then correcting them; the duty to exercise reasonable care may extend to taking actions to reduce, minimize, or eliminate foreseeable risks before they manifest themselves as particular dangerous conditions on the premises. Of course, the duty of care may vary with the circumstances. See, e.g., Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577, 578 (Fla. 1st DCA 1998) (whether store was negligent in manner in which it hung radios from hook so as to create a dangerous condition was jury question); Ochlockonee Banks Rest., Inc. v. Colvin, 700 So.2d 1229, 1230 (Fla. 1st DCA 1997) (where jury could have determined that the defendant's negligence consisted of allowing a dangerous condition to exist by allowing people to place their drinks on the railing immediately adjacent to the dance floor); Klaue v. Galencare, Inc., 696 So.2d 933, 935 (Fla. 2d DCA 1997) ("[W]hether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question."); Harrell v. Beall's Dep't Store, Inc., 614 So.2d 1142, 1143 (Fla. 2d DCA 1993) (whether a department store created a dangerous condition by the manner in which it mounted a display rack is a jury question).

Markowitz, 826 So.2d at 259-60.

Here, a Harbor Freight employee testified in his deposition that when Harbor Freight receives a shipment of trailer hitches, an employee removes the trailer hitches from the boxes they are shipped in and then stacks them loosely on the store shelves. Harbor Freight also introduced evidence that it has a policy of displaying, and does display, heavy metal objects on lower shelves (below eye level). Yet, in his deposition, Khorran testified that he saw several, metal trailer hitches stored on the top shelf, at a height of eight or nine feet (significantly higher than eye level).

"Under Florida law, ... the question of whether a business entity was negligent in stacking items on a shelf at a particular height, in a particular manner, and at a particular location thus causing a dangerous condition to exist is a jury question." Klaue v. Galencare, Inc., 696 So.2d 933, 935 (Fla. 2d DCA 1997) ; Valdes v. Faby Enters., Inc., 483 So.2d 65, 65 (Fla. 3d DCA 1986) ("Whether Faby was negligent in stacking the cases of beer at the height and in the manner and location in which it did was a question for the jury."). Simply put, we cannot conclude, based on our de novo review of the summary judgment evidence, that Harbor Freight met its burden of establishing the absence of any genuine issue of material fact with regard to Khorran's negligent mode of operation claim. Hence, we also reverse the trial court's summary judgment for Harbor Freight on Count II of Khorran's second amended complaint.

III. CONCLUSION

Because genuine issues of material fact exist as to both Khorran's negligence claim and his negligent mode of operation claim against Harbor Freight, we reverse the trial court's summary judgment and remand for proceedings consistent herewith.

Reversed and remanded with instructions.

      We review a trial court summary judgment de novo . Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

      We recognize that this no longer holds true in premises liability cases involving a slip and fall on a transitory foreign substance. See § 768.0755, Fla. Stat. (2010) ; Kenz v. Miami-Dade Cty., 116 So.3d 461 (Fla. 3d DCA 2013). This is not such a case.

      The employee confirmed that, because the trailer hitches are not in boxes at the time, the hitches can fall off the shelf during the stocking process and dent the floor.

      Because we reverse the trial court summary judgment, we need not reach the issue of whether, under the particular facts of this case, Khorran is entitled to a res ipsa loquitur inference.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    GKK, ETC., Petitioner, v. Petronila CRUZ, Respondent.
    No. 3D18-560
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Mitrani, Rynor, Adamsky & Toland, P.A., and Loren H. Cohen, Steven R. Adamsky, Eric Sage, and Adam Schlossberg (Weston), for petitioner.
    Goldman & Hellman, and Gary M. Hellman (Fort Lauderdale), for respondent.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

GKK, a Partnership, defendant below, seeks a writ of certiorari quashing an order denying GKK's motion for protective order and objections to the scope of a subpoena deuces tecum served by Petronila Cruz, plaintiff below, upon Mitchell Adelman ("Adelman"), an investigator hired by GKK to investigate a slip and fall accident in which Cruz was allegedly injured.

The subpoena duces tecum enumerated seven separate categories of items that Adelman was instructed to bring with him to his deposition.

GKK filed an objection to the subpoena duces tecum and moved for a protective order, asserting, inter alia , that the items listed in paragraphs One, Two, Three, Six and Seven sought items protected by the work-product or attorney-client privilege. GKK did not file a privilege log for any of these listed items, as required by Florida Rule of Civil Procedure 1.280(b)(5).

The trial court overruled GKK's objections and denied the motion for protective order. This petition followed.

We grant the petition as it relates to paragraphs One, Six and Seven. While it is true that, as a general rule, a party failing to file a privilege log may be deemed to waive these privileges, see Kaye Scholer LLP v. Zalis, 878 So.2d 447, 449 (Fla. 3d DCA 2004), that general rule is subject to an exception: The finding of a waiver "should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected." Nevin v. Palm Beach Cty. Sch. Bd., 958 So.2d 1003, 1008 (Fla. 1st DCA 2007). In the instant case, the privilege raised as to paragraphs One, Six and Seven are categorical assertions of privilege, and we conclude that the items sought in these paragraphs are plainly protected. Therefore, the failure to file a privilege log did not waive the privilege as to these categories of items sought. Nevin, 958 So.2d at 1008 ; DLJ Mortg. Capital, Inc. v. Fox, 112 So.3d 644 (Fla. 4th DCA 2013).

However, the same cannot be said as to the items or categories of items sought in paragraphs Two and Three. While some of the items sought may be subject to a privilege, others are not (at least on their face) subject to any privilege, as even petitioner's counsel commendably conceded in oral argument. The failure to file a privilege log waived the assertion of a privilege, and thus we deny the petition as to the items sought in these two paragraphs.

We grant the petition in part, deny the petition in part, withhold formal issuance of the writ, and remand to the trial court for further proceedings consistent with this opinion.

      GKK did not seek a protective order for the items listed in paragraphs Four and Five of the subpoena duces tecum and those items are not a part of this petition.

      That rule provides:
      When a party withholds information otherwise discoverable under these rules by claiming that is it privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

      "Under the work product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable." Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 446 (Fla. 3d DCA 2006). "If materials are prepared solely for a purpose other than litigation, they are not protected by the work product privilege. If they were prepared in anticipation of litigation, they will not lose their protected status, even if they were also generated for another purpose." Id. Documents are prepared in "anticipation of litigation" for purposes of the work product doctrine if they were "prepared in response to some event which foreseeably could be made the basis of a claim in the future." Id. at 447. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426, 427-28 (Fla. 1952) (holding that "a party is not entitled...to inspect the statements, memoranda, and other documents constituting the 'work product' of the opposing party as to the matter which is the subject of the litigation" and that examples of such work product include: "(1) written statements of witnesses relating to the occasion on which the injury occurred; (2) statements or reports from agents, officers or employees of the defendant company relating to the accident; and (3) records, investigation sheets, memoranda, and photographs, relating to the accident, including any and all information...received by the defendant's attorneys from investigators and adjusters."); Federal Ins. Co. v. Hall, 708 So.2d 976 (Fla. 3d DCA 1998) (holding that an insurance adjuster's notes are protected work product and compelling their production departs from the essential requirements of law); Goldstein v. Great Atlantic & Pacific Tea Co., 118 So.2d 253, 255 (Fla. 3d DCA 1960) (holding: "Communications, memoranda, and reports passing between the client and his attorneys and his or their employed investigators, relating to the accident, the investigation thereof, and the preparation for the trial...are not available to the opposing party on discovery.") See also Fla. R. Civ. P. 1.280(b)(4), (providing that "a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation" by that party's attorney or insurer "only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.")


author: BADALAMENTI, Judge.

text:
    M.M., Appellant, v. J.H., Appellee.
    Case No. 2D17-1921
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
    Thomas A. Burns and Arda Goker of Burns, P.A., Tampa, for Appellee.
   BADALAMENTI, Judge.

M.M. (the Mother) seeks review of a Final Judgment of Paternity and Parenting Plan that, among other things, ordered her to pay child support to J.H. (the Father). After careful review and the benefit of oral argument, we reverse the trial court's award of child support to the Father. At bottom, the trial court neglected to make the required findings to order the Mother to pay child support to the Father. We thus remand to the trial court to make the requisite findings to support any child support award.

The Mother and the Father were a couple for approximately fourteen years but never married. In 2009, the Mother gave birth to a boy and, in 2011, the couple separated. In 2013, the Mother filed a petition for paternity seeking a judgment declaring the Father as the legal father of the boy. The petition also set forth a proposed parenting plan for the trial court's consideration. The trial court subsequently entered final judgment of paternity, which incorporated the Mother's proposed parenting plan.

For the next three years, the parents followed through with the parenting plan, amicably agreeing, as co-parents, to make adjustments where needed. During this period, the Mother married a man who subsequently accepted an employment offer, necessitating his relocation from Florida to Idaho. The Mother thus petitioned the trial court to relocate the child to Idaho so that the child could join her and her husband. This launched a barrage of court filings by the Father, attacking, among other things, the validity of the underlying paternity judgment and parenting plan. The Father further filed a counterpetition for paternity and for related relief. In sum, the trial court ultimately vacated its 2013 final judgment of paternity and parenting plan as void ab initio and proceeded on the Father's counterpetition. While the vacation of the final judgment of paternity and parenting plan rendered the Mother's relocation petition moot, the court approached the final hearing as if the Mother was advocating for a long-distance parenting plan and analyzed the relocation factors in its final judgment.

The trial court conducted a bench trial on the Father's counterpetition for paternity and for related relief. Both the Father and the Mother submitted proposed parenting plans and written closing arguments. In 2017, the trial court entered a new Final Judgment of Paternity and Parenting Plan, ordering shared parental responsibility of the child in Hillsborough County, where the child had lived his entire life. Furthermore, and germane to the sole issue we decide in this appeal, the trial court ordered that the Mother: (1) pay $97 per month to the Father in child support; (2) reimburse the Father $1400 for overpayments of past child support; and (3) pay $582 in retroactive child support.

In its order, the trial court neglects to set forth the parties' respective incomes. The only, albeit tangential, reference to the Mother's income is that she is not working and relies on the income of her husband to support her and the child. The trial court notes, though, that the Father is self-employed and grosses between $8000 and $11000 per month, $2000 of which is reinvested in his business. As for the $97 per month child support award to the Father, the trial court references that this amount was "pursuant to the child support guidelines worksheet that will be filed under separate cover." But no such worksheet was filed by the trial court. As for the retroactive child support award to the Father and the Father's overpayments owed by the Mother, the trial court's order does not set forth how these amounts were derived.

Section 61.30, Florida Statutes (2017), provides guidelines establishing the amount of child support to be awarded based on the parties' combined net monthly incomes. The legislature has made clear that the child support guidelines amount "presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support" § 61.30(1)(a). This statute affords trial courts discretion to deviate by more than five percent from a presumptive child support amount "only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate." Id. In conformance with section 61.30, the case law is "well-settled that a trial court errs by failing to make findings of fact regarding the parties' incomes when determining child support." Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010). "This is because findings regarding the parties' incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified." Id. A trial court's failure to include factual findings regarding the parties' incomes for purposes of child support calculations renders a final judgment facially erroneous. Id.

Here, the trial court's order failed to include factual findings regarding the parties' incomes for purposes of the child support judgment. The order makes no findings as to the Mother's income or ability to pay. The trial court also did not file a child support guidelines worksheet. See id. at 141 (reversing trial court's child support order for its failure to set forth adequate factual findings and attach a child support guidelines worksheet). Without these findings, we cannot conduct a meaningful appellate review of the child support awards. Whittingham v. Whittingham, 67 So.3d 239, 239 (Fla. 2d DCA 2010) (reversing child support order due to the court's failure to include any findings regarding the parties' incomes because such failure precluded a determination as to whether the award was within the guidelines established in section 61.30 ).

Absent sufficient findings by the trial court, it is difficult to discern how the trial court could order the unemployed Mother, who relies on her husband to support both her and the child, to pay $97 per month to a Father who earns between $8000 and $11000 in monthly income. Likewise, this absence of adequate factual findings renders facially erroneous the trial court's order that the Mother reimburse the Father $1400 for overpayments of past child support and pay $582 in retroactive child support. See Wilcox, 35 So.3d at 139. Although it appears that the trial court may have imputed income to the Mother to derive these child support amounts, the trial court did so "without making the required findings and without reference to the evidence that was, in fact, presented." Pedersen v. Pedersen, 892 So.2d 1125, 1126 (Fla. 2d DCA 2004) (citing LaFlam v. LaFlam, 854 So.2d 809, 810 (Fla. 2d DCA 2003) ).

We therefore reverse the child support awards entered in favor of the Father and remand to the trial court for further determination of any child support amount. We affirm the trial court's Final Judgment of Paternity and Parenting Plan in all other respects.

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

SILBERMAN and VILLANTI, JJ., Concur.

      The Mother agreed to remain in Hillsborough County if the court rejected her proposed long-distance parenting plan.

      After careful review, we affirm without comment the remaining issues raised by the Mother in this appeal.


author: Wetherell, J.

text:
    Trevor Amos BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-555
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Wetherell, J.

Trevor Amos Brown appeals his conviction for use of a firearm during the commission of a felony in violation of section 790.07(2), Florida Statutes (2015). He argues that the trial court should have dismissed the charge pursuant to his motion under Florida Rule of Criminal Procedure 3.151(c). We agree and reverse.

I

This case stems from a drug deal gone bad. It is undisputed that Brown went to the victim's house to buy marijuana and that he shot the victim. However, the circumstances of the shooting were disputed. Brown claimed that he shot the victim in self-defense after the victim and another man attacked him and tried to rob him of the money that he brought to buy the marijuana. By contrast, the victim claimed that Brown shot him during the foot chase that ensued after Brown took the satchel containing the marijuana without paying.

Brown was arrested for (1) armed robbery, (2) aggravated battery with a firearm, and (3) use of a firearm during the commission of a felony, but he was only charged with the first two offenses. Brown was not charged with the third offense because, according to the "No Prosecution with Charges" document filed by the prosecutor contemporaneously with the original information, that offense was "combined in counts 1 and 2." The case proceeded to trial at which the jury found Brown not guilty of armed robbery (and its lesser included offenses) and deadlocked on aggravated battery.

Shortly after the first trial, the State filed a second amended information (re)charging Brown with aggravated battery with a firearm and adding a new charge of use of a firearm during the commission of a felony. The underlying felony for the latter charge was the attempted purchase of "20g or more" of marijuana, not the robbery or the aggravated battery.

Brown filed a motion to dismiss the use-of-a-firearm count pursuant to rule 3.151(c) because that charge stemmed from the same criminal episode as the armed robbery charge for which he was acquitted in the first trial. The trial court denied the motion and the case proceeded to trial.

At the second trial, the jury found Brown guilty on the use-of-a-firearm count and deadlocked (again) on the aggravated battery count. The trial court adjudicated Brown guilty of use of a firearm during the commission of a felony and sentenced him to two years of community control followed by three years of probation. The State nol prossed the aggravated battery count.

This appeal followed.

II

We review de novo Brown's claim that he was entitled to dismissal of the use-of-a-firearm count under rule 3.151(c). See O'Leary v. State , 109 So.3d 874, 876 (Fla. 1st DCA 2013) ("We review a trial court's denial of a motion to dismiss under a de novo standard of review.").

Rule 3.151(c) provides:

(c) Dismissal of Related Offenses After Trial. When a defendant has been tried on a charge of one of two or more related offenses, the charge of every other related offense shall be dismissed on the defendant's motion unless [1] a motion by the defendant for consolidation of the charges has been previously denied, or [2] unless the defendant has waived the right to consolidation, or [3] unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses.

The rule is intended to "protect defendants from successive prosecutions based upon essentially the same conduct." Franklin v. State , 719 So.2d 938, 940 (Fla. 1st DCA 1998) ; see also Dixon v. State , 486 So.2d 67, 69 (Fla. 4th DCA 1986) ("The purpose behind rule 3.151(c) is to allow the defendant a means to protect himself (by motion to dismiss) from multiple trials on charges of related offenses when he has already suffered a prior trial on a related offense."). Offenses are "related" for purposes of the rule "if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions." Fla. R. Crim. P. 3.151(a). "The state can establish the necessary connection by demonstrating (1) an uninterrupted crime spree or (2) a causal link irrespective of the passage of time." Lindsey v. State , 220 So.3d 1255, 1257 (Fla. 1st DCA 2017) ; see also Paul v. State , 385 So.2d 1371, 1372 (Fla. 1980) (adopting Judge Smith's dissent in Paul v. State , 365 So.2d 1063 (Fla. 1st DCA 1979), which explained that rule 3.151"refer[s] to 'connected acts or transactions' in an episodic sense" rather than charges that "are 'connected' only by similar circumstances and the accused's alleged guilt in both or all instances"); State v. Varnum , 991 So.2d 918, 920 (Fla. 4th DCA 2008) ("Dismissal under Rule 3.151(c)... is required only where the offenses arise out of a single criminal episode.").

Here, as the prosecutor conceded at the hearing on the defendant's motion to dismiss, the use-of-a-firearm count is "related" to the offenses that were the subject of the first trial because the offenses were inextricably intertwined and occurred during a single ten-minute criminal episode-the drug deal gone bad. The offenses could have been prosecuted in the same court, and none of the exceptions in rule 3.151(c) are present because Brown did not file a previous motion for consolidation, he did not waive his right to consolidation, and there is no showing that the prosecution was unable, by due diligence, to obtain sufficient evidence to charge the use-of-a-firearm offense at the outset. Thus, like Franklin , supra , this case fits squarely under rule 3.151(c).

Indeed, the circumstances of this case are materially indistinguishable from Franklin . There, as here, the defendant was charged with two offenses (DUI manslaughter and leaving the scene of an accident involving death ) arising out of a single incident (a car accident); the defendant was acquitted on one of the counts (leaving the scene of an accident) and the jury deadlocked on the other count (DUI manslaughter); the defendant was subsequently recharged with the offense on which the jury deadlocked and he was also charged with a new offense stemming from the same incident (leaving the scene of an accident involving injury ); and, after the defendant's motion to dismiss the new charge pursuant to rule 3.151(c) was denied, the defendant was convicted of the new charge. Franklin , 719 So.2d at 939. On appeal, we reversed the defendant's conviction, explaining:

This case fits squarely under rule 3.151(c)..... There can be no argument that the charges are not 'related offenses,' because they arise from the same automobile accident and could be tried in the same court. See Fla. R.Crim. P. 3.151(a). Moreover, it is undisputed that appellant did not file a previous motion for consolidation; nor did he waive his right to consolidation, and there is no showing that the prosecution was unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense. See Fla. R.Crim. P. 3.151(c). Finally, although a mistrial was declared on the DUI manslaughter charge, appellant was nonetheless tried and acquitted on the leaving-the-scene charge; therefore, he was tried on a charge of one related offense. Id. Under the circumstances, the trial court erred in denying appellant's motion to dismiss under rule 3.151(c), and the conviction for leaving the scene must be reversed.

Id. at 940 ; see also Fields v. State , 743 So.2d 92 (Fla. 5th DCA 1999) (relying on Franklin to reverse conviction for carrying a concealed firearm charge that was based on the same incident for which the defendant was acquitted of assault or battery while armed). Accordingly, Franklin compels reversal of Brown's use-of-a-firearm conviction.

We have not overlooked the Varnum case relied on by the State, but we find that case distinguishable. The offenses at issue in Varnum arose out of entirely different real estate transactions that occurred over the course of a two-year period and involved different alleged victims. See 991 So.2d at 919-20. The court held that the offenses were not "related" to the offenses for which the defendant was previously tried and acquitted because the offenses were committed in a different manner and arose out "temporally separate episode[s]" that were only connected by "similar circumstances and [the defendant]'s alleged guilt in all instances." Id. at 921. By contrast, here, the use-of-a-firearm count arose out of the exact same criminal episode as the robbery for which Brown was previously tried and acquitted.

III

In sum, because the use-of-a-firearm charge was "related" to the robbery offense for which Brown was previously tried and acquitted, the trial court erred in denying Brown's motion to dismiss that charge pursuant to rule 3.151(c). Accordingly, we reverse Brown's conviction and remand for entry of an order dismissing the use-of-a-firearm charge.

REVERSED and REMANDED with instructions.

Ray and Osterhaus, JJ., concur.

      An amended information was filed prior to the first trial, but like the original information, it only charged Brown with armed robbery and aggravated battery with a firearm.

      The record does not explain why the drug transaction was not used as the underlying felony from the outset. However, the "No Prosecution with Charges" document implies that the prosecutor originally considered only the armed robbery or the aggravated battery to be the underlying felony.

      The prosecutor stated: "Of course, it's related. We could not bring in another charge for something that's completely unrelated."


author: Jay, J.

text:
    Sean Patrick MAHONEY, Appellant, v. Virginia Colby MAHONEY, Appellee.
    No. 1D17-2071
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Brian P. North, Kenny Leigh & Associates, Fort Walton Beach, for Appellant.
    Clark H. Henderson, Oberliesen & Henderson, Fort Walton Beach, for Appellee.
   Jay, J.

In this appeal from a final judgment of dissolution of marriage, the former husband raises the following issues: (I) the trial court erred in ordering him to pay $1500 in monthly, durational alimony to the former wife for four years; (II) the trial court erroneously calculated child support under the child support guidelines; (III) the trial court erred by ordering the former husband to pay $3000 in attorney's fees to the former wife; (IV) the trial court erred by requiring the former husband to secure the alimony and child support awards with life insurance and by ordering the former husband to designate the former wife as the beneficiary of his survivor benefit plan; (V) the trial court miscalculated when the former husband's military retirement plan ceased to be a marital asset; and (VI) the trial court erred in the manner by which it directed the division of the parties' tangible personal property.

Finding no need for further elaboration of the following points, we conclude without comment that there was no abuse of discretion or legal error in the trial court's award of durational alimony to the former wife; in its decision to designate the former wife as the irrevocable beneficiary of the former husband's survivor benefit plan (thereby awarding her the maximum amount available of 55% of the annuity upon the former husband's death); or in its directions concerning the distribution of the parties' tangible personal assets. We also affirm without comment the trial court's calculation of the monthly child support award.

Concerning the remaining issues on appeal, we find, first, that the trial court abused its discretion in awarding the former wife attorney's fees without making the requisite findings. We also find that the trial court erred when it failed to make specific findings before directing the former husband to secure life insurance. And, lastly, we find the trial court miscalculated the former wife's marital share of the former husband's military retirement benefits. On these matters, we reverse and remand for further proceedings as discussed in greater detail below.

Attorney's Fees

In its final judgment, the trial court ordered the former husband to pay to the former wife $3000 in attorney's fees, finding that she had the need for payment of her fees and he had the ability to pay. A trial court's award of attorney's fees is reviewed for an abuse of discretion. Ziruolo v. Ziruolo , 217 So.3d 1170, 1172 (Fla. 1st DCA 2017).

Attorney fee awards in dissolution actions are governed by section 61.16, Florida Statutes (2016), "which requires the court to consider 'the relative financial resources of the parties' in evaluating whether an award of fees is appropriate." Perez v. Perez , 100 So.3d 769, 771 (Fla. 2d DCA 2012). "The purpose of the statute is 'to ensure that both parties will have a similar ability to obtain competent legal counsel.' " Schwartz v. Schwartz , 965 So.2d 832, 833 (Fla. 1st DCA 2007) (quoting Rosen v. Rosen , 696 So.2d 697, 699 (Fla. 1997) ). "In determining whether to make such an award, the trial court is to primarily consider the relative financial resources of the parties, but may also consider any other factor necessary to provide justice and ensure equity." Schwartz , 965 So.2d at 833 (citing Rosen , 696 So.2d at 700 ). If there is a finding of entitlement, the trial court must evaluate the reasonableness of the requested fee. Ortiz v. Ortiz , 227 So.3d 730, 732 (Fla. 3d DCA 2017) ; see also Schwartz , 965 So.2d at 833-34.

In evaluating reasonableness, the trial court should consider the following:

(1) the time and labor required, the novelty and difficulty of the issues, and the legal skill required; (2) the likelihood that the representation will preclude other employment by the lawyer; (3) the customary fee; (4) the result obtained; (5) the time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyers; and (8) whether the fee is fixed or contingent.

Schwartz , 965 So.2d at 833-34 (citations and internal quotation marks omitted). After completing this analysis, the trial court must "set forth findings ... [as to] the factors that justify the specific amount awarded." Rogers v. Rogers , 12 So.3d 288, 292 (Fla. 2d DCA 2009). Those factors include "the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement ...." Giovanini v. Giovanini , 89 So.3d 280, 282 (Fla. 1st DCA 2012). "Where there is nothing in the trial court's order that allows the appellate court to discern whether any of the above factors were considered in determining a reasonable attorney's fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper and an abuse of discretion."

Campbell v. Campbell , 46 So.3d 1221, 1223 (Fla. 4th DCA 2010) (citing Schwartz , 965 So.2d at 833 ).

Here, although the former wife testified at the final hearing that she was asking the trial court to order the former husband to pay her attorney's fees, no evidence was presented regarding the amount of those fees, and there is nothing on the face of the final judgment revealing that the trial court made the requisite factual determinations. Accordingly, the trial court abused its discretion in awarding $3000 in fees to be paid by the former husband. See Nagl v. Navarro , 187 So.3d 359, 361 (Fla. 4th DCA 2016) (internal citations and quotation marks omitted) ("An award of attorney's fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved."); see also Garrido v. Garrido , No. 4D17-2140, 247 So.3d 22, 23, 2018 WL 2746375 at *1 (Fla. 4th DCA June 6, 2018) (reversing final judgment for attorney's fees and remanding for the trial court "to make the appropriate findings as to the reasonableness of the hours expended and the hourly rate," quoting Nagl ).

However, we are not persuaded by the former husband's argument that the former wife "invited the error" below. The former husband relies on Held v. Held , 617 So.2d 358 (Fla. 4th DCA 1993), to claim the former wife is not entitled to a "second bite at the apple on remand." In Held , the husband took inconsistent positions at trial and on appeal. That tactic prompted the Fourth District to hold that "[a] party cannot claim as error on appeal that which he invited or introduced below." Id. at 360.

In this case, the former wife has consistently claimed that she needs the former husband to pay her attorney's fees and that the former husband is able to pay those fees. That position requires appropriate factual findings by the trial court. The former wife, therefore, did not invite the error of which the former husband now complains.

Accordingly, the award of attorney's fees is reversed and the cause is remanded for the trial court to determine the reasonable amount of the former wife's attorney's fees, applying the factors outlined above.

Life Insurance to Secure Alimony and Child Support

A trial court's decision to require the obligor spouse to maintain life insurance to secure awards of alimony and child support is reviewed for an abuse of discretion. Therriault v. Therriault , 102 So.3d 711, 713 (Fla. 1st DCA 2012). Here, the trial court was authorized by the provisions of sections 61.08(3) and 61.13(1)(c), Florida Statutes (2016), to require the former husband-as the party ordered to pay alimony and child support-to purchase or maintain life insurance to secure those awards.

However, it was an abuse of discretion for the trial court to order the former husband to do so without first making " 'specific evidentiary findings as to the availability and cost of insurance, the [former husband's] ability to pay, and the special circumstances that warrant such security.' " Therriault , 102 So.3d at 713 (bracketed language in original) (quoting Kotlarz v. Kotlarz , 21 So.3d 892, 893 (Fla. 1st DCA 2009) ). Of particular note, such "special circumstances" include minor children living at home. Further, the amount of insurance must be " 'related to the extent of the obligation being secured.' " Id. (internal citations omitted) (quoting Kotlarz , 21 So.3d at 893 ). Thus, in the present case, "[w]hile there may be a basis in the record for such a finding," we must reverse and remand to the trial court to "include the required specific findings ...

[that] require the security." Gotro v. Gotro , 218 So.3d 494, 498 (Fla. 1st DCA 2017).

Military Retirement Plan

As far as identifying the military retirement plan as a marital asset, the former husband argues that the trial court utilized an incorrect cut-off date. We agree.

Section 61.075(7), Florida Statutes (2016), provides that absent a valid separation agreement, "[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is ... the date of the filing of a petition for dissolution of marriage." Here, as there was no separation agreement between the parties, the trial court appropriately utilized the date when the husband filed his petition for dissolution of marriage. See Willman v. Willman , 944 So.2d 1151, 1151 (Fla. 1st DCA 2006) ("As the parties did not have a separation agreement, the husband's pension plan continued as a marital asset until he filed for divorce on August 10, 2004."); see also Peter Cushing, Effects of Military Service, Adoption, Paternity, and Other Family Practice , § 8-1 (Fla. Bar CLE 12th ed. 2017) (citations omitted) ("Florida has a bright line rule that in the absence of a marital settlement agreement, the date to be used to determine the marital classification of assets and liabilities is the date of the filing of the petition for dissolution of marriage and all retirement points earned on a military pension after the date of filing are nonmarital.").

In reciting the pertinent background facts in its final judgment, the trial court stated that "[t]he parties were married to each other for a period of 6 years 8 months through the date of filing." (Emphasis in the original.) Later, the court reiterated this eighty-month determination as part of its evaluation of the former wife's entitlement to the marital portion of the former husband's military retirement.

However, the trial court's finding that the parties were married for eighty months has no basis in the record. At the time the former husband filed his petition for dissolution of marriage, the parties had been married for just over four years and eight months, or fifty-six months. Therefore, this portion of the final judgment must be reversed and remanded for the trial court to correct the cut-off date for identifying the former husband's military retirement as a marital asset under section 61.075(7). On remand, the other references in the final judgment to the incorrect length of the marriage measured by the date of filing should likewise be corrected.

As to the remainder of the former husband's argument under this point, it, too, suffers the infirmity of having been omitted from his motion for rehearing. Consequently, his additional claims were waived for review. Brock , 229 So.3d at 425.

For all the reasons expressed above, the case is AFFIRMED , in part, REVERSED , in part, and REMANDED for further proceedings consistent with this opinion.

Wolf and Winsor, JJ., concur.

      We do note that the former husband failed to raise in his motion for rehearing any argument that the child support award lacked the necessary written findings to support a variance of more than 5% from the guideline amount as required by section 61.30(1)(a), Florida Statutes (2016). The former husband's failure to bring this aspect of the child support order to the trial court's attention-in his motion for rehearing-waived his argument on this issue. See Brock v. Brock , 229 So.3d 425 (Fla. 1st DCA 2017) (Mem.) (citing cases).


author: B.L. Thomas, C.J.

text:
    Blake Edwin TRIPP, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2545
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Andy Thomas, Public Defender, Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

An intoxicated pedestrian stumbling across a public thoroughfare in Bay County attracts the attention of a citizen, who reports the pedestrian to the sheriff's office. A county ordinance prohibits public intoxication that creates a safety risk. Law enforcement officers observe the pedestrian, Appellant, having great difficulty "keeping his bearings." The officers talk to Appellant, smell alcohol on his person, and ask Appellant for identification. Appellant is able to communicate with the officers, who check his identification as part of the investigation for a violation of the ordinance. After noticing a bulge in Appellant's front pocket, the officers ask Appellant if he possesses a firearm. Appellant tells the officers he has a gun tucked in the small of his back. Because Appellant does not have a concealed-carry permit, he is arrested and charged with the third-degree felony of carrying a concealed firearm.

Appellant filed a motion to suppress the evidence of the concealed firearm, arguing that the officers were conducting a welfare check, which was a consensual encounter, and the encounter was converted to an unjustified stop when the officers asked him to provide identification. Appellant argued there was insufficient evidence that he was unable to care for his own safety, as was required to support a detention under the ordinance. The State argued that the officers had reasonable suspicion to conduct an investigatory stop for disorderly conduct under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), based on the report of an intoxicated pedestrian and the officers' observation of him.

The court ruled that crossing a highway under the influence of alcohol would cause an officer "to reasonably believe somebody was intoxicated in a public place, doing something that ... could be injurious to his safety." Appellant pled no contest, reserving the right to appeal the dispositive motion to suppress. The court withheld adjudication of guilt, and placed Appellant on felony probation for eighteen months.

On appeal, Appellant argues there was insufficient reason for the officers to detain him based on the county ordinance, and that even if the detention was valid, the officers conducted an unlawful Terry stop by asking if he was carrying a firearm, because they lacked a valid reason to believe he was armed and dangerous. We affirm the denial of the motion to suppress on two alternative grounds: (1) the police had reasonable suspicion to think Appellant had violated the county ordinance, and did not conduct an unlawful search by asking if Appellant had a weapon; and 2) even if the police did not have reasonable suspicion to detain Appellant for violation of the county ordinance, they had the lawful authority to conduct a welfare check on Appellant (despite the testimony of one officer that he was not conducting a welfare check). Based on an objective review of the facts, Appellant could have been injured or caused an injury or accident in his intoxicated state, and the officers did not unconstitutionally detain or search Appellant by asking for his license and asking whether he had a weapon.

When an officer has reasonable suspicion that an individual has committed, is committing, or is about to commit a crime-including a violation of a criminal ordinance-the officer may temporarily detain the person to ascertain his identity and investigate the circumstances surrounding the suspected criminal activity. § 901.151(2), Fla. Stat. An investigatory stop requires more than mere suspicion; the officer must have a "well-founded, articulable suspicion of criminal activity." Popple v. State , 626 So.2d 185, 186 (Fla. 1993).

The Bay County Code of Ordinances provides that "a person shall be guilty of disorderly conduct if ... his conduct is likely to cause public danger, alarm, disorder or nuisance, [and] he willfully ... is in a public place under the influence of an intoxicating liquor or drug in such a condition as to be unable to exercise care for his own safety or the safety of others." Bay Cty. Code of Ordinances 15-46(c)(6). Appellant acknowledges the evidence that he was intoxicated in public, but asserts there was insufficient reason for the officers to believe he was unable to protect his safety.

The officers received a report of public intoxication and witnessed Appellant stumbling in the crosswalk of a busy road. Although there was no traffic at the time, and Appellant did walk across the street in the proper cross walk, one officer said Appellant was "tripping over his feet" and that it was "apparent he couldn't keep his bearings." Another officer indicated he was concerned Appellant was a risk to himself. Although Appellant argues there was no evidence he had fallen down or was unable to speak, the officers' testimony showed they had more than a bare suspicion he was in such a condition as to be a risk to himself. The evidence supports a finding that, under the ordinance, the officers could lawfully detain Appellant on suspicion of disorderly conduct.

Appellant argues that even if the officers were justified in detaining him on suspicion of violating the ordinance, the firearm should be suppressed, because there was insufficient justification for one of the officers to ask Appellant if he had any weapons. Florida's Stop and Frisk law provides that when an officer has probable cause to believe a person, who has been lawfully temporarily detained, "is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person," the officer may search the person only to the extent necessary to determine whether the person in fact has a weapon. § 901.151(5), Fla. Stat.

In addressing Appellant's arguments, we first note that we find no basis to conclude that law enforcement officers engage in a search by merely asking questions. Cf. D.A. v. State , 10 So.3d 674, 677 (Fla. 3d DCA 2009) (holding, in the context of a consensual encounter, that a question "is neither a search nor a seizure"). And even assuming arguendo that the officer's question was the functional equivalent of a Terry search, which we do not think it was, the purported search was far less intrusive than the typical pat-down permissible under Terry for determining the presence of a weapon. The bulge in Appellant's front pocket was sufficient reason for the officer to ask Appellant if he had a weapon. See § 901.151(5), Fla. Stat. (providing that a Terry search must be limited only to the extent necessary to discern the presence of a weapon).

Furthermore, even if there were insufficient evidence for the officers to determine Appellant was in violation of the county ordinance, on this record we can affirm the order denying the suppression of the gun on a separate ground. The trial court's ruling was correct, but perhaps for a different reason. See Caso v. State , 524 So.2d 422, 424 (Fla. 1988) ("A conclusion or decision of a trial court will generally be affirmed, even when based on erroneous reasoning, if the evidence or an alternative theory supports it."). Based on these facts, the officers had the lawful authority to conduct a welfare check on Appellant's safety.

"It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications." Dermio v. State , 112 So.3d 551, 555-56 (Fla. 2d DCA 2013). And because we must review the facts from the perspective of an objectively reasonable law enforcement officer, the officer's testimony that he was not conducting a welfare check is not dispositive. Cf. State v. Scott , 774 So.2d 794, 795-96 (Fla. 3d DCA 2000) (explaining that validity of searches and seizures under Florida law is construed in conformity with decisions of the United States Supreme Court interpreting the Fourth Amendment, and noting an officer's actions are judged by an objective standard). Here, an objectively reasonable law enforcement officer would have justifiably checked on Appellant's welfare, even without the suspicion that Appellant had violated the Bay County ordinance, based on the citizen's report and the officer's own observations.

Thus, because it was lawful for the officer to check on Appellant's welfare, it was also lawful for the officers to ask Appellant about his identification and whether he had a weapon on his person. Asking for identification during a welfare check does not convert the consensual encounter into a seizure. See State v. Baez , 894 So.2d 115, 116 (Fla. 2004) (concluding officer who responded to a call about a suspicious vehicle, saw the defendant slumped over the steering wheel, knocked on vehicle window to ask if the defendant was all right, requested the defendant's identification, and arrested the defendant after the license check revealed an outstanding warrant, had only engaged the defendant in a consensual encounter). And "[i]t is well-settled that asking a question of a person not in custody is neither a search nor a seizure." D.A., 10 So.3d at 677 (emphasis in original). Therefore, we affirm the trial court's order denying Appellant's motion to suppress.

AFFIRMED .

Wolf and Ray, JJ., concur.


author: Ray, J.

text:
    Michael PAULSON, Appellant, v. Sarah RANKART, Appellee.
    No. 1D17-1751
    District Court of Appeal of Florida, First District.
    July 11, 2018
    Shannon L. Novey, Christin F. Gonzalez, and Jerome M. Novey of Novey Law, Tallahassee, for Appellant.
    Sarah Rankart, pro se, Appellee.
   Ray, J.

Michael Paulson raises two independent grounds for reversal of the stalking injunction entered against him. First, he contends the trial court erred in issuing the injunction because the petitioner, Sarah Rankart, failed to demonstrate that an incident of harassment occurred within six months of the petition. We disagree on this point because the plain language of the statute does not require such a showing. However, we agree with Mr. Paulson's second argument that the evidence was legally insufficient to support the injunction.

Facts

Mr. Paulson and Ms. Rankart are neighbors in the small town of Port St. Joe. Ms. Rankart lives in a community of "cottages" adjacent to Mr. Paulson's home of thirty years. Ms. Rankart moved into her cottage in 2013.

The testimony at the evidentiary hearing on the petition reflects a rocky relationship between the neighbors from the start. According to Ms. Rankart, she first met Mr. Paulson when he came to her cottage one evening and yelled at her to turn off her outdoor street-facing light. She turned off the light that evening but soon after turned it back on for security. After a few months with the light on, Mr. Paulson came back to her home and asked her "in a very rude tone" to build something around the light so it would not shine towards his home. Months later, she started receiving notices at her home from various authorities based on complaints by Mr. Paulson. She wondered each day whether she would come home to "a dog complaint or a light complaint." She explained that she was "just tired of this man getting to call the police on [her] just because of anything he wants to do."

Ms. Rankart additionally claimed that Mr. Paulson would stare at her while she sunbathed on her deck, which made her very uncomfortable. He would watch her from his "tiny side deck" even though he had a "huge deck" with a beautiful view of the ocean. She also observed Mr. Paulson looking at utility meters on her street's boardwalk on three occasions and she did not "want him creeping around the meters." Ms. Rankart was scared that Mr. Paulson would be so angry and drunk one day that he would shoot one of her dogs. She suffers from general anxiety disorders and depression, and he "amplifies [her] anxiety." She explained, "that's what horrible neighbors do, you know, sometimes you just have to deal with it."

According to Mr. Paulson, he never met Ms. Rankart before, did not know her, and did not want to know her. He admitted that he complained to code enforcement about her outdoor lights and complained to animal control and law enforcement about her barking dogs but explained that his complaints were focused on issues of noise and light pollution and were not directed towards Ms. Rankart or any specific person.

The trial court concluded that Ms. Rankart's complaints about Mr. Paulson's calls and reports to authorities were insufficient under the law to support the entry of a stalking injunction. The court also rejected Mr. Paulson's argument that Ms. Rankart was required to establish that one of the incidents of harassment occurred within six months of the petition to satisfy her burden of proof. However, the court found that Ms. Rankart's unrebutted testimony concerning Mr. Paulson looking at her utility meters and watching her sunbathe was sufficient for the issuance of an injunction for protection against stalking. The court issued a judgment of injunction to be in effect for one year.

Analysis

Section 784.0485, Florida Statutes (2016), provides for an injunction for protection against stalking. Stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2), Fla. Stat. (2016). To "harass" means "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. A "course of conduct" is "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b), Fla. Stat. In determining whether an incident causes "substantial emotional distress," courts use a "reasonable person" standard rather than a subjective one. McMath v. Biernacki , 776 So.2d 1039, 1040 (Fla. 1st DCA 2001).

At the outset, Mr. Paulson argues the trial court failed to apply the correct legal standard for the issuance of a stalking injunction because there was no showing that one of the alleged incidents occurred "within six months of the filing of the petition." To support adding this extratextual element to the statutory definition of stalking, Mr. Paulson correctly points out that several district courts have interpreted the stalking statute with guidance from the repeat violence statute-section 784.046-which defines "repeat violence" as "two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition. " § 784.046(1)(b), Fla. Stat. (2016) (emphasis added).

However, as we recently explained in Pickett v. Copeland , the stalking statute "makes no reference to the provisions of the repeat violence statute; does not mandate 'guidance' from the repeat violence provisions; and, independent of the requirements of [the repeat violence statute], creates a 'cause of action for an injunction for protection against stalking.' " 236 So.3d 1142, 1145 (Fla. 1st DCA 2018) (holding that unlike the repeat violence statute, the injunction provisions of the stalking statute only require the petitioner to prove a single incident of stalking). The statutory provisions for an injunction for protection against stalking do not require that one of the underlying incidents occur within six months of the filing of the petition. Since we cannot depart from the plain and unambiguous language of the statute, we decline to add an element the Legislature chose not to impose.

Mr. Paulson next argues that even if the trial court applied the correct legal standard, the injunction is not supported by competent, substantial evidence. After carefully reviewing the record and being "sensitive to the difficulties faced by the trial court in teasing out a thread of truth from a jumbled patchwork of conflicting narrative," Pickett , 236 So.3d at 1146, we agree with Mr. Paulson.

The trial court based the injunction on its findings that Ms. Rankart observed Mr. Paulson looking at her utility meters and that, at times, he would watch her sunbathe from his deck. The facts alleged and proven do not rise to the level of stalking.

While Ms. Rankart testified that she observed Mr. Paulson looking at utility meters on her street's boardwalk on multiple occasions and that she did not "want him creeping around the meters for the cottages," no evidence indicated that the utility meters were on Ms. Rankart's property or that Mr. Paulson was focused on the utility meter for her cottage alone. In other words, there was no evidence that he willfully and maliciously engaged in a course of conduct directed at her. Additionally, we are not persuaded that a reasonable person would suffer substantial emotional distress from such acts. Indeed, Ms. Rankart testified that Mr. Paulson's conduct in this regard "weirds [her] out," not that it caused substantial emotional distress. See Leach v. Kersey , 162 So.3d 1104, 1106 (Fla. 2d DCA 2015) (reversing stalking injunction in part because petitioner's testimony failed to demonstrate that she suffered substantial emotional distress).

Similarly, while Ms. Rankart testified that Mr. Paulson would stare at her while she was sunbathing on her porch, there was no evidence that Mr. Paulson made any statements or gestures toward her on these occasions, that he trespassed onto her property, or that he made threats of any kind. Without more, the evidence was insufficient to show that he willfully and maliciously engaged in a course of conduct that would cause her substantial emotional distress. Compare Ashford-Cooper v. Ruff , 230 So.3d 1283, 1283 (Fla. 1st DCA 2017) (reversing stalking injunction against wife who made repeated calls and texts to her husband's girlfriend to try to reach her husband because the evidence did not show that a reasonable person in the girlfriend's position would suffer substantial emotional distress), and McMath v. Biernacki , 776 So.2d 1039, 1040-41 (Fla. 1st DCA 2001) (evidence that respondent had made several attempts to talk to petitioner and that she did not feel comfortable around him did not amount to stalking under a "reasonable person" standard), with Robertson v. Robertson , 164 So.3d 87, 88 (Fla. 4th DCA 2015) (respondent's conduct of looking inside petitioner's house in the middle of the night with a flashlight, uninvited and without warning, for three consecutive nights was a course of conduct causing substantial emotional distress).

Ms. Rankart was exasperated by Mr. Paulson's actions-from multiple dog and noise complaints to conduct that made her feel uncomfortable-but an injunction for protection is not designed to " 'keep the peace' between parties who, for whatever reason, are unable to get along and behave civilly towards each other." Power v. Boyle , 60 So.3d 496, 498 (Fla. 1st DCA 2011) (holding that respondent's conduct of yelling obscenities toward petitioners' house, allowing dog to urinate on their garage door, and writing profane notes on their mail did not amount to "violence" or "stalking" for an injunction for protection against repeat violence). Because Ms. Rankart's evidence fell short of the exacting standards to justify a stalking injunction and the collateral consequences that flow from it, we must reverse and remand for the trial court to vacate the injunction.

B.L. Thomas, C.J., and Wolf, J., concur.

      Although the injunction has now expired, the appeal is not moot. Murphy v. Reynolds , 55 So.3d 716, 716 (Fla. 1st DCA 2011) (finding appeal of an expired injunction against repeat violence was not moot "because collateral legal consequences flowing from such an injunction outlast the injunction itself").

      See e.g. , David v. Textor , 189 So.3d 871, 874-75 (Fla. 4th DCA 2016) (stating section 784.0485"must be read in conjunction with section 784.046(1)(b)"); Richards v. Gonzalez , 178 So.3d 451, 453 (Fla. 3d DCA 2015) ("[T]o define 'repeated following, harassing, or cyberstalking,' guidance can be derived from section 784.046."); Wyandt v. Voccio , 148 So.3d 543, 544 (Fla. 2d DCA 2014) ("We analyze [section 784.0485 ] with guidance from section 784.046."); Touhey v. Seda , 133 So.3d 1203, 1203 (Fla. 2d DCA 2014) ("Given the statute's recent enaction, support for our holding comes from cases analyzing allegations of stalking in the context of section 784.046.").

      The trial court properly disregarded Ms. Rankart's complaints that Mr. Paulson contacted animal control and law enforcement concerning her dogs and outdoor lights. See Olin v. Roberts , 42 So.3d 841, 842 (Fla. 1st DCA 2010) (holding that filing of reports and complaints to authorities does not constitute harassment).


author: LUCAS, Judge.

text:
    E.M., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2521
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge.

E.M. appeals her withhold of adjudication of delinquency for burglary of a dwelling and criminal mischief. From the evidence presented at her adjudicatory hearing, it appears that E.M. and a group of teenaged girls drove around town in a stolen Toyota Camry, used a garage door opener to gain entrance into a vacant house, parked the vehicle inside the garage, and remained in the house for some period of time. A neighbor identified E.M. when she briefly appeared in the house's backyard. Otherwise, there was no evidence presented as to what, if anything, E.M. did or intended to do while inside the house. Various items in the house were found to have been damaged, and the front hood and roof of the Camry were severely dented.

With respect to the criminal mischief disposition, the State points out that it had announced a nolle prosse of that count towards the conclusion of the proceeding. Though it does not concede error, the State makes no argument in this appeal for affirmance of this count. We can discern no basis to affirm and are, therefore, compelled to reverse the circuit court's disposition on that count. See State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979) ("As a general proposition, everything which occurs in a proceeding subsequent to the filing of a nolle prosse by the [S]tate is a nullity."); State v. Spence, 658 So.2d 660, 661 (Fla. 3d DCA 1995) ("Upon the [S]tate's announcement of a nol pros of the information, which was self-executing, the case was effectively nullified and the proceeding terminated." (citing Y.S. v. State, 620 So.2d 245, 246 (Fla. 3d DCA 1993) ) ).

As to the burglary count, we agree with E.M. that the State failed to present any evidence that E.M. held an intent to commit a crime when she entered the house. See § 810.02(1)(b), Fla. Stat. (2017) (defining "burglary" to mean "[e]ntering a dwelling ... with the intent to commit an offense therein"); P.D.T. v. State, 996 So.2d 919, 919 (Fla. 4th DCA 2008) (reversing adjudication of delinquency for burglary of a dwelling and observing that the "intent to commit an offense therein" under the statute "is an essential element of the offense"). Indeed, there was no evidence of what E.M. actually did-much less what she intended to do-while she was inside the house. Cf. R.C. v. State, 793 So.2d 1078, 1078-79 (Fla. 2d DCA 2001) (reversing adjudication of delinquency on charge of burglary where no evidence was presented of juvenile's intent when he visited a friend who had broken into a vacant mobile home and the juvenile's only criminal act while inside was to write on a wall with a marker he had found in the home).

We reverse the circuit court's withhold of adjudication of delinquency as to count four (criminal mischief) with directions to dismiss that charge and as to count one (burglary of a dwelling) with directions to reduce that charge to trespassing. See, e.g., J.J.D. v. State, 973 So.2d 1254, 1255 (Fla. 2d DCA 2008) (reversing and remanding for "a reduction of the [burglary] charge to trespass and for a new disposition hearing"). The circuit court shall convene a new disposition hearing consistent with this opinion.

Reversed and remanded.

NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.

      E.M. was charged with third-degree felony criminal mischief, but the circuit court found E.M. committed the act of first-degree misdemeanor criminal mischief. The circuit court also found sufficient evidence to support the charge of trespass of a conveyance, but E.M. does not challenge that finding on appeal.

      Apparently, at some point, some of the girls were dancing on the car. It was suspected that this was how the hood and roof became damaged. However, as the State conceded below and on appeal, there was no evidence that E.M. was one of the girls who danced on the car or damaged it in any way.