text:
    DARDEN RESTAURANTS, INC. and GMRI, Inc., Appellants, v. Rick SINGH, as Orange County Property Appraiser and Department of Revenue, Appellees.
    Case No. 5D16-4049
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 1, 2019
    Robert E.V. Kelley, Jr., of Hill, Ward & Henderson, P.A., Tampa, and Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellants.
    Kenneth P. Hazouri, of de Beaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for Appellee Rick Singh.
    Ashley Moody, Attorney General, and Robert P. Elson, Assistant Attorney General, Office of the Attorney General Revenue Litigation Bureau, Tallahassee, for Appellee Leon M. Biegalski, as Executive Director of the Florida Department of Revenue.
    Chris W. Altenbernd of Banker Lopez Gassler, P.A., and Joseph H. Lang, Jr., of Carlton Fields Jorden Burt, P.A., Tampa, Amicus Curiae for Chamber of Commerce of the United States of America, the Restaurant Law Center, and the Florida Restaurant & Lodging Association.
    Robert S. Goldman, of Dean, Mead & Dunbar, Tallahassee, Amicus Curiae for Florida Chamber of Commerce, Inc.
    Gaylord A. Wood, Jr., of Wood & Stuart, P.A., Bunnell, Amicus Curiae for Larry Bartlett, as Volusia County Property Appraiser.
    Loren E. Levy, of The Levy Law Firm, Tallahassee, Amicus Curiae for The Property Appraisers' Association of Florida, Inc.
    EVANDER, C.J., Darden Restaurants, Inc. and GMRI, Inc. (collectively "Darden") appeal a final judgment that vacated the Value Adjustment Board's ("VAB") rulings and reinstated the Orange County Property Appraiser's ("Property Appraiser") 2013 and 2014 tax assessments on tangible personal property ("TPP") located in Darden's corporate headquarters. In accepting the Property Appraiser's assessments, the trial court determined that the Property Appraiser was not required to present competent, substantial evidence that its appraisal methodology complied with professionally accepted appraisal practices. Rather, in setting forth the legal standards governing "fair market value determination" in its final judgment, the trial court cited to language from Mazourek v. Wal-Mart Stores, Inc. , 831 So.2d 85, 89 (Fla. 2002), that "[t]he property appraiser's determination of assessment value is an exercise of administrative discretion within the officer's field of expertise." The Mazourek decision preceded the 2009 amendment to section 194.301, Florida Statutes, where the Legislature articulated that the value of property must be determined by an appraisal methodology that met the criteria of section 193.011 and professionally accepted appraisal practices. Because the trial court did not comply with section 194.301(2)(b)'s requirement that its assessment must be based on "competent, substantial evidence of value in the record which cumulatively meets the criteria of s. 193.011 and professionally accepted appraisal practices," we reverse.
    In 2009, Darden constructed a new corporate headquarters facility in Orange County. The three-story, 469,000 square foot facility employed over one thousand people providing support for Darden's restaurants throughout the country. The facility contains a large amount of TPP, including computers, office furniture, fitness center equipment, test kitchen equipment, solar panels, signage, an alarm system, and a music system. The value of the TPP for 2013 and 2014 is the subject of the parties' litigation.
    In 2013, Darden filed a TPP tax return estimating the current fair market value of its TPP to be $20,503,172. However, the Property Appraiser valued Darden's TPP for 2013 at $29,033,332, or $8,530,160 more than Darden's estimate. In 2014, Darden filed a TPP tax return estimating the current fair market value of its TPP to be $18,217,701, while the Property Appraiser valued it at $27,424,505 or $9,206,804 more than Darden's estimate. Darden timely challenged the Property Appraiser's valuations for both years by filing petitions with the VAB. In each case, the VAB sided with Darden and reduced the Property Appraiser's assessment.
    The Property Appraiser timely challenged the VAB's decisions by filing complaints in the circuit court. The two actions were consolidated and a multi-day, nonjury, trial took place, in which both sides presented expert witness testimony. During the trial, the trial court expressly rejected Darden's argument that the Property Appraiser was required to show that its appraisal methodology complied with professionally accepted appraisal practices. Subsequently, the trial court entered a final judgment reinstating the Property Appraiser's original assessments for both years. After the denial of Darden's motion for rehearing, this appeal followed.
    Article VII, section 4 of the Florida Constitution directs the Legislature, subject to certain provisos and exceptions, to prescribe regulations "which shall secure a just valuation of all property for ad valorem taxation." The phrase "just valuation" has been construed to mean "fair market value." See Mazourek , 831 So.2d at 88 (citing Walter v. Schuler , 176 So.2d 81, 85-86 (Fla. 1965) ); see also § 192.001(2), Fla. Stat. (2013) (defining "assessed value of property" as annual determination of the "just or fair market value" of an item or property). Fair market value is "the amount a purchaser willing but not obliged to buy, would pay to one willing but not obliged to sell." Smith v. Krosschell , 937 So.2d 658, 662 (Fla. 2006) (citing Walter , 176 So.2d at 85-86 ); see also Fla. Admin. Code R. 12D-1.002(2) (defining just value).

      Tangible personal property is defined in section 192.001(11)(d), Florida Statutes (2013), as "all goods, chattels, and other articles of value (but does not include the vehicular items enumerated in s. 1(b), Art. VII of the State Constitution and elsewhere defined) capable of manual possession and whose chief value is intrinsic to the article itself."

      Pursuant to section 192.042(2), the valuation date for both years was January 1. § 192.042(2), Fla. Stat. (2013).

      Section 194.036, Florida Statutes, states, in part, that if the property appraiser disagrees with the VAB decision, it "may appeal the decision to the circuit court." "While this process is referred to as an 'appeal' of the board's decision, actions brought in the circuit court pursuant to ... section 194.036, are original actions, not appeals." Crossings At Fleming Island Cmty. Dev. Dist. v. Echeverri , 991 So.2d 793, 801 (Fla. 2008) (citing Williams v. Law , 368 So.2d 1285, 1286 (Fla. 1979) ).

   Section 194.301 provides that in proceedings before the VAB or the circuit court, the value of property must be determined by an appraisal methodology that complies with the criteria set forth in section 193.011 and with professionally accepted appraisal practices:

(1) In any administrative or judicial action in which a taxpayer challenges an ad valorem tax assessment of value, the property appraiser's assessment is presumed correct if the appraiser proves by a preponderance of the evidence that the assessment was arrived at by complying with s. 193.011, any other applicable statutory requirements relating to classified use values or assessment caps, and professionally accepted appraisal practices, including mass appraisal standards, if appropriate. However, a taxpayer who challenges an assessment is entitled to a determination by the value adjustment board or court of the appropriateness of the appraisal methodology used in making the assessment. The value of property must be determined by an appraisal methodology that complies with the criteria of s. 193.011 and professionally accepted appraisal practices. The provisions of this subsection preempt any prior case law that is inconsistent with this subsection.
(2) In an administrative or judicial action in which an ad valorem tax assessment is challenged, the burden of proof is on the party initiating the challenge.
(a) If the challenge is to the assessed value of the property, the party initiating the challenge has the burden of proving by a preponderance of the evidence that the assessed value:
1. Does not represent the just value of the property after taking into account any applicable limits on annual increases in the value of the property;
2. Does not represent the classified use value or fractional value of the property if the property is required to be assessed based on its character or use; or
3. Is arbitrarily based on appraisal practices that are different from the appraisal practices generally applied by the property appraiser to comparable property within the same county.
(b) If the party challenging the assessment satisfies the requirements of paragraph (a), the presumption provided in subsection (1) is overcome, and the value adjustment board or the court shall establish the assessment if there is competent, substantial evidence of value in the record which cumulatively meets the criteria of s. 193.011 and professionally accepted appraisal practices. If the record lacks such evidence, the matter must be remanded to the property appraiser with appropriate directions from the value adjustment board or the court, and the property appraiser must comply with those directions.
(c) If the revised assessment following remand is challenged, the procedures described in this section apply.
(d) If the challenge is to the classification or exemption status of the property, there is no presumption of correctness, and the party initiating the challenge has the burden of proving by a preponderance of the evidence that the classification or exempt status assigned to the property is incorrect.

§ 194.301, Fla. Stat. (2013) (emphasis added).

In an effort to fulfill the State's responsibility to secure a just valuation for ad valorem tax purposes and to provide uniform assessment throughout the state, see sections 195.0012 and 195.002, Florida Statutes (2013), Florida's Department of Revenue ("DOR") is required to establish and promulgate standard measures of value ("DOR Guidelines") to be used by property appraisers in all counties. See § 195.032, Fla. Stat. (2013). These standard measures of value "shall assist the property appraiser in the valuation of property and be deemed prima facie correct, but shall not be deemed to establish the just value of any property." Id. For purposes of this appeal, we accept the Property Appraiser's suggestion, without so holding, that the DOR Guidelines are reflective of professionally accepted appraisal practices to the extent that they specifically direct certain action by the Property Appraiser.

There are three recognized approaches to property valuations: cost, income, and market or sales-comparison. Havill v. Scripps Howard Cable Co. , 742 So.2d 210, 212-13 (Fla. 1998). In the instant case, Darden and the Property Appraiser agreed that the income approach was not appropriate for valuing Darden's TPP. Darden's valuation expert utilized the market or sales-comparison approach in arriving at his valuation. By contrast, the Property Appraiser utilized a cost approach. Notably, Darden does not dispute that the use of a cost approach in the instant case was permissible under DOR Guidelines.

DOR Guidelines, which were admitted into evidence, recite that the "cost approach to value" involves the consideration of the reproduction or replacement cost of the subject TPP less the extent to which the value has been reduced by deterioration and obsolescence:

The Cost Approach to value involves consideration of :
(A) The reproduction or replacement cost is the cost of replacing reproducible property with new property of similar utility, or of reproducing the property at its present site and at present price level, less the extent to which the value has been reduced by deterioration and obsolescence.
(B) The historical or original cost is sometimes used as a starting point to the calculation of value. An appropriate appraisal depreciation rate reflecting economic, physical, and functional obsolescence must be determined and applied, as well as an appropriate trending factor to capture price changes from date of acquisition. (This approach may not apply to all assets. See Section G, Replacement Cost New Less Depreciation Calculation.)
(C) The appraiser should consider the cost of any asset at the appropriate level of trade-the manufacturing level, the wholesale level, and the retail level-and value the property according to the trade level for which it is utilized. Property normally increases in value as it progresses from the manufacturers' level (the lowest market value) to the retail level of trade (the highest level of trade). At each level a value is added to calculate a selling price which recovers for the current owner all direct costs to manufacture and install and indirect costs of overhead and profit. For example, the trade level concept must be considered when a manufacturer, who is operating at more than one trade level, transfers property to a subsidiary without the normal profit and costs. In order to maintain equity and uniformity in assessments of comparable property, the asset should be valued at a cost had the asset been acquired in an arm's length transaction from an outside supplier.

Fla. Dep't of Rev., Standard Measures of Value: Tangible Personal Property Appraisal Guidelines 40 (1997) (emphasis added).

Here, the Property Appraiser presented sufficient evidence that its determination of (1) the reproduction or replacement cost of Darden's TPP, and (2) the extent which its value has been reduced by deterioration, was consistent with DOR Guidelines. Thus, our focus is on the Property Appraiser's calculation of the reduction of value of Darden's TPP resulting from obsolescence.

The DOR Guidelines reflect that obsolescence should be considered when appraising any type of property. Obsolescence is defined as the reduction in value due to technological changes or innovation, changes in demand for a product, or other causes:

When the loss in value is due to technological change or innovation, it is usually referred to as functional obsolescence . It can be recognized by a lack of utility in the property, the location of the property, or inadequate capacity in use. Functional obsolescence can sometimes be overcome by remodeling or reconditioning.
When the loss in value is due to change in product, demand, or location, it is customarily referred to as economic obsolescence . This type of obsolescence is brought about by external factors and cannot be overcome. Obsolescence of personal property is not too difficult to recognize, but it is difficult to accurately measure. Adequate market data to measure obsolescence cannot always be found for all types of personal property.

Id. at 41 (emphasis added). DOR Guidelines direct the Property Appraiser to "look to the market" for any change of value resulting from obsolescence, and specifically recite that "[t]he appraiser should always consider what an informed purchaser would be willing to pay for the property as an installed operating unit when employed at its highest and best use." Id. Significantly, the DOR Guidelines do not specify the manner in which obsolescence is to be calculated so as to ultimately determine just valuation.

At trial, the Property Appraiser presented evidence that it made continuous efforts to "look to the market" for changing values in TPP from obsolescence by having weekly meetings of appraisers and auditors, going into the field, studying sales and life years of assets, utilizing its own Life Assignment Guide and Present Worth Table, and making constant adjustments to those tables. Critically, the Property Appraiser did not present testimony that the methodology it utilized in calculating obsolescence complied with professionally accepted appraisal practices.

In rebuttal, Darden presented expert testimony that the Property Appraiser's methodology was not consistent with professionally accepted appraisal practices. Darden's expert suggested, inter alia, that the Property Appraiser had failed to sufficiently examine comparable sales when "looking to the market."

Pursuant to section 194.301(2)(a), the Property Appraiser, as the party challenging the VAB assessment, had the burden of proving by a preponderance of the evidence that the VAB's assessed value did not represent the just value of Darden's TPP. We conclude that there was competent, substantial evidence to support the trial court's determination that the VAB's valuations of Darden's TPP for 2013 and 2014, respectively, were incorrect and less than the just or fair market value.

However, because the Property Appraiser failed to present evidence that it calculated obsolescence in accordance with professionally accepted appraisal practices, we conclude that the Property Appraiser failed to meet its additional burden, set forth in section 194.301(2)(b), of showing that there was competent, substantial evidence in the record to support the trial court's valuation of Darden's TPP for 2013 and 2014. That section expressly requires that the value found by the trial court be based on evidence in the record that established compliance with professionally accepted appraisal practices. See also Crapo v. Vulcan Materials Co. , No. 012013CA001001, 2016 WL 4366935 (Fla. 8th Cir. Ct. July 11, 2016) (finding that where property appraiser did not account for economic obsolescence in accordance with professionally accepted appraisal practices, property appraiser failed to meet its burden under section 194.301 ).

Section 194.301(2)(b) further provides that where the record lacks such evidence, the matter must be remanded to the Property Appraiser with appropriate directions. Here, the trial court should have remanded this cause to the Property Appraiser with directions that in determining the just valuation of Darden's TPP for 2013 and 2014, obsolescence must be calculated in accordance with professionally accepted appraisal practices. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GROSSHANS and SASSO, JJ., concur.

      Darden does not dispute that the Property Appraiser considered the criteria set forth in section 193.011.

      The statutes cited in this opinion were the same for both 2013 and 2014.

      Our opinion should not be construed to require the Property Appraiser to present an independent, or outside, expert witness to testify that its valuations comply with professionally accepted appraisal practices. Furthermore, we recognize, as did the parties below, that TPP appraisers must exercise their professional judgment and discretion throughout the appraisal process. However, section 194.301 reflects an effort by the Legislature to ensure that they exercise that professional judgment and discretion in accordance with professionally accepted appraisal practices.

      We find the other issues raised on appeal by Darden to be without merit.


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Kenneth Lee JOHNSON, DOC #510751, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3707
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Kenneth Lee Johnson appeals his judgment and sentence imposed pursuant to a negotiated plea agreement. We have jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)(ii). We affirm the judgment and sentence. But we remand for entry of a written nunc pro tunc order finding Mr. Johnson competent to proceed.

Background

The State charged Mr. Johnson with one count of possession of more than twenty grams of cannabis, a third-degree felony. See § 893.13(6)(a), Fla. Stat. (2016). The trial court appointed three experts to evaluate and determine Mr. Johnson's competency. Two of the three determined that Mr. Johnson was competent to proceed.

At his competency hearing, Mr. Johnson, his counsel, and the trial court discussed the findings and conclusions of the three experts. The trial court gave the State an opportunity to review the reports. The parties stipulated that the trial court could "receive the [experts'] reports in order to make a determination as to competency." The trial court orally found Mr. Johnson competent to proceed but failed to enter a written order to that effect.

After the competency hearing, Mr. Johnson filed an unsuccessful motion to suppress evidence. Thereafter, Mr. Johnson entered a negotiated plea of guilty to one count of the lesser-included offense of possession of cannabis. See § 893.13(6)(b). The trial court held a plea colloquy and sentenced Mr. Johnson to time served. Mr. Johnson did not reserve his right to appeal the denial of his suppression motion.

Mr. Johnson filed a pro se motion to withdraw his plea. He claimed that trial counsel was ineffective for failing to appeal the suppression ruling. Finding the motion facially insufficient, the trial court dismissed it but gave Mr. Johnson thirty days to file a facially sufficient motion. Nothing in our record indicates that Mr. Johnson filed another motion.

Analysis

Mr. Johnson argues that the trial court denied him due process by accepting his plea without making an independent finding of competency and issuing a written competency order. The State counters that "[t]he parties permissibly stipulated to the use of the expert reports as the sole basis for the competency determination, and the trial court reviewed the reports and made an independent finding of competency orally on the record." The State, however, concedes that the trial court erred by failing to enter a written order. The State correctly observes that the error "is not fatal and requires only remand for a nunc pro tunc order memorializing the oral finding of competency."

Mr. Johnson raises the competency issue for the first time on appeal. Thus, the issue "is subject to review for fundamental error." See Hendrix v. State, 228 So.3d 674, 675 (Fla. 1st DCA 2017) ("Hendrix's challenge to the adequacy of the competency procedures is raised for the first time on appeal, and is subject to review for fundamental error."); see also Carrion v. State, 235 So.3d 1051, 1053 (Fla. 2d DCA 2018) (reviewing defendant's challenge to the adequacy of the trial court's competency finding that was raised for the first time on appeal as fundamental error). "Error is fundamental if it 'goes to the foundation of a case' and amounts to a denial of due process." Hendrix, 228 So.3d at 676 (quoting D'Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla. 1988) ).

The record reflects that the trial court observed and spoke with Mr. Johnson at the competency hearing. See Sallee v. State, 244 So.3d 1143, 1146 (Fla. 2d DCA 2018) (observing that the defendant "was present at the competency hearing; the trial court was able to observe his demeanor"). The parties and the trial court also reviewed the expert reports. The parties agreed to allow the trial court to make its competency determination based solely on those reports. See Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014) ("[W]hen the parties agree, [the trial court] may decide the issue of competency on the basis of written reports alone."). The trial court subsequently, and orally, determined that Mr. Johnson was competent to proceed. The trial court made an independent determination of competency and, consequently, did not deprive Mr. Johnson of due process. See Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) (concluding that defendant was not deprived of due process where "[a]t Holland's competency hearing, with Holland present, the court considered the experts' reports, the statements of defense counsel, and Holland's demeanor" when it made an oral determination that defendant was competent); see also Sallee, 244 So.3d at 1146 (reaching the same conclusion based on similar facts).

However, the record does not contain a written order memorializing the trial court's oral finding. " Florida Rule of Criminal Procedure 3.212(b) mandates the entry of a written order of competency." Holland, 185 So.3d at 637 (citing Dougherty, 149 So.3d at 677 ). Thus, we remand the case to the trial court for entry of a written nunc pro tunc order finding Mr. Johnson competent to proceed. See Sallee, 244 So.3d at 1147 ("[T]he failure to enter a written order requires remand for entry of an order nunc pro tunc.").

Affirmed; remanded with instructions.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: MORRIS, Judge.

text:
    NRG INVESTMENT PARTNERS, LLC, as Assignee of Regions Bank, Appellant, v. MDC 6, LLC ; Medallion Convenience Stores, Inc.; and Kenneth L. Wood, Appellees.
    Case No. 2D17-3682
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    Michael I. Bernstein and Jason B. Pear of The Bernstein Law Firm, Miami, for Appellant.
    No appearance for Appellees for MDC 6, LLC; Medallion Convenience Stores, Inc.; and Kenneth L. Wood.
   MORRIS, Judge.

NRG Investment Partners, LLC (NRG), appeals an order dismissing its action for a deficiency judgment against MDC 6, LLC; Medallion Convenience Stores, Inc.; and Kenneth L. Wood (the appellees). We reverse the order of dismissal because record activity occurred within sixty days of the trial court's notice of lack of prosecution, precluding dismissal under Florida Rule of Civil Procedure 1.420(e).

In 2013, NRG obtained a judgment of foreclosure against the appellees, with the trial court reserving jurisdiction to award a deficiency judgment to NRG. NRG filed a motion for deficiency judgment in May 2014, and the appellees answered in July 2014. Further record activity occurred in 2015. On May 31, 2017, the clerk of the circuit court issued a notice of lack of prosecution. The notice cited rule 1.420(e) and set forth the language of the rule. The notice went on to state:

NOTICE OF HEARING ON COURT'S OWN MOTION
If no record activity occurs within 60 days of this notice you are advised that a hearing has been scheduled before the Honorable Martha J. Cook for the 17th day of August, 2017 at 9:30 AM ... to consider your good cause showing, if any, and/or to dismiss this case.

On July 28, 2017, NRG filed a notice of evidentiary hearing, notifying the appellees that NRG had scheduled a hearing for September 7, 2017, on NRG's motion for deficiency judgment. Also on July 28, NRG filed a response to the notice of lack of prosecution, informing the court that NRG had set a hearing on its motion for deficiency judgment, arguing that such activity constituted record activity within sixty days of the notice of lack of prosecution, and requesting that the case proceed on the merits. However, on August 17, 2017, the trial court entered an order of dismissal with the following language: "THIS CAUSE having come before the Court on this date for Case Management Conference and the Plaintiff having failed to appear as ordered by the Court, it is ORDERED AND ADJUDGED that this action is DISMISSED ...." NRG filed a timely motion for rehearing, arguing that after NRG had set the September 7, 2017, hearing on the motion for deficiency judgment, NRG contacted the judge's office and confirmed that the trial court would not be proceeding with the August 17, 2017, hearing. NRG's motion was supported by an affidavit of a paralegal in NRG's counsel's office. The trial court denied NRG's motion for rehearing.

On appeal, NRG contends that the trial court erred in dismissing the case because record activity occurred within sixty days of the trial court's notice of lack of prosecution. We agree. There is an abundance of case law regarding dismissals for lack of prosecution pursuant to rule 1.420(e). Recently, this court reversed an order of dismissal for lack of prosecution because within sixty days of the notice of lack of prosecution, a party filed a notice of hearing on his pending motion. Robinson v. Marek, 255 So.3d 420, 422 (Fla. 2d DCA 2018). We held that the "notice of hearing [of the party's pending motion], filed within the sixty-day grace period, constituted 'record activity' that was sufficient to avoid dismissal under rule 1.420(e)." Id. As in Robinson, NRG filed a notice of hearing on its pending motion within sixty days of the notice of lack of prosecution; such notice of hearing constituted record activity preventing dismissal under rule 1.420(e).

In its order of dismissal, the trial court referred to NRG's failure to attend a case management hearing. However, the record does not reflect that such a hearing was scheduled in this case. To the extent that the trial court was referring to the August 17, 2017, hearing mentioned in the notice of lack of prosecution, it was error for the trial court to dismiss the case based on NRG's failure to attend that hearing. Rule 1.420(e) provides for a dismissal if no record activity occurs within sixty days of the notice, "unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending." (Emphasis added.) Once NRG filed its notice of hearing and response on July 28, 2017, NRG complied with the clear language of rule 1.420(e) and the trial court did not have authority to dismiss the action. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla. 2011) ("[D]ismissal is precluded if a stay order is entered or a party shows good cause in writing more than five days before a hearing ...."); Wilson v. Salamon, 923 So.2d 363, 368 (Fla. 2005) (holding that rule 1.420(e)"establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court" to determine whether or not there is "activity on the face of the record"). Accordingly, we reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Derrick Jammell PETTIS, Appellee.
    Case No. 2D17-2973
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    Ashley Moody, Attorney General, Tallahassee, and Jason M. Miller, Assistant Attorney General, Tampa, for Appellant.
    Robert A. Love, St. Petersburg, for Appellee.
   LaROSE, Chief Judge.

The State appeals the trial court's order suppressing contraband found in Derrick Jammell Pettis's car. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). As framed by the trial court's order, the issue for us is whether the car was within the curtilage of the house where it was parked. If so, law enforcement officers needed a warrant to search the car and seize the contraband. See Collins v. Virginia, --- U.S. ----, 138 S.Ct. 1663, 1668, 201 L.Ed.2d 9 (2018) (holding that the automobile exception does not permit "a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein").

Initially, however, we must confront Mr. Pettis's standing to challenge the search and seizure involved here. Although standing was not raised below, the State correctly observes that it may raise lack of standing for the first time on appeal. See Hendley v. State, 58 So.3d 296, 299 (Fla. 2d DCA 2011) ("Although the State did not raise this issue in the circuit court, standing may be properly raised for the first time on appeal."); McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003) ("Although this point was not argued by the State at the hearing on the motion, the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal.").

Because the standing issue was not developed in the trial court, we reverse the order on appeal and remand for the trial court to conduct a suppression hearing to determine Mr. Pettis's standing to challenge the search and seizure.

Background Facts

A police officer in an unmarked cruiser saw Mr. Pettis fail to make a complete stop at a stop sign. Mr. Pettis continued on for a short while until he parked his car near his mother's house. He exited the vehicle, ambled up to the house, and joined his mother on the front porch. About a minute later, six or seven police cruisers converged on the scene. Officers approached and announced that they wanted to speak with Mr. Pettis. He told the officers that he had no desire to speak with them and began to go into the house. The officers restrained him, and a scuffle ensued.

During the course of walking from their cruisers to the house, some officers walked by Mr. Pettis's car. They observed through the front windshield a large unlabeled pill bottle containing baggies of what appeared to be either cocaine or heroin. The officers did not seize the bottle at the scene. Rather, after arresting Mr. Pettis for his unruly behavior, officers seized his car keys from his pocket, and an officer drove the car to the police station. There, the substance tested positive for heroin.

In granting the suppression motion, the trial court found that there was neither hot pursuit nor any other exigent circumstance that would justify the warrantless entry into Mr. Pettis's locked car and the seizure of heroin. Although the written order does not explicitly say so, in orally announcing its ruling, the trial court stated that the car was "on the curtilage" of his mother's house.

Discussion

During the evidentiary hearing, the parties elicited scant testimony or other evidence explaining Mr. Pettis's connection to the house. This omission detracts from our determination of the extent of protection afforded Mr. Pettis under the Fourth Amendment. See, e.g., State v. Washington, 884 So.2d 97, 100 (Fla. 2d DCA 2004) (holding that defendant lacked standing to challenge search of home where she was short-term, nonovernight, casual guest). Compare Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (holding that persons present in the home of a casual acquaintance for a few hours for business purposes do not have a reasonable expectation of privacy), with Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (holding that an overnight guest possessed a legitimate expectation of privacy and was thus entitled to the protection of the Fourth Amendment).

To invoke Fourth Amendment protections, a defendant must demonstrate a reasonable expectation of privacy in the place searched. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ; cf. U.S. v. Puliese, 671 F.Supp. 1353, 1359 (S.D. Fla. 1987) (enumerating six factors to be considered in determining whether a guest's expectation of privacy is reasonable: "(1) Who has invited the guest into the home; (2) For what purpose and for how long has the movant been invited into the home; (3) Has the owner or lessee given the guest a key or other means of entry to the home; (4) What use has the guest made of the home and indeed what use has been made of the intruded area; (5) Does the movant/guest have the power and authority to exclude others from the home; and, (6) With how many other people has the use of the area been shared").

The expectation of privacy must originate from "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 143 n.12, 99 S.Ct. 421. The capacity to claim constitutional protection depends upon the person and not merely upon a property right in the invaded place. Id. at 143, 99 S.Ct. 421 (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Thus, Mr. Pettis's status at the house is a necessary part of our Fourth Amendment analysis.

In turn, his status will inform whether he is entitled to the Fourth Amendment protections afforded to a house and its curtilage, because, after all, "[t]he Fourth Amendment protects the curtilage of a house." Abel v. State, 668 So.2d 1121, 1122-23 (Fla. 2d DCA 1996) ; see also Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ("We therefore regard the area 'immediately surrounding and associated with the home'-what our cases call the curtilage-as 'part of the home itself for Fourth Amendment purposes.' " (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ) ); Powell v. State, 120 So.3d 577, 583 (Fla. 1st DCA 2013) ("Because it is appurtenant to the home, the curtilage is entitled to the same Fourth Amendment protection as the area within the home." (citing California v. Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ) ); Pinyan v. State, 523 So.2d 718, 720 (Fla. 1st DCA 1988) ("It is well settled that the Fourth Amendment protection of the home extends to the curtilage of a residence."); United States v. Maestas, 639 F.3d 1032, 1036-37 (10th Cir. 2011) ("Under well-settled Fourth Amendment jurisprudence, the privacy expectation that one has in the home generally extends to the 'curtilage' of the home.").

We utilize a mixed standard of review in examining a trial court's ruling on a motion to suppress:

The trial court's "determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review."

State v. K.S., 28 So.3d 985, 987 (Fla. 2d DCA 2010) (quoting State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008) ). Our review of the surveillance CD supports the trial court's finding that Mr. Pettis parked his car within the curtilage of his mother's house. But that determination does not automatically compel the conclusion that a warrant was necessary to search the car. Cf. State v. Rickard, 420 So.2d 303, 305 (Fla. 1982) (distinguishing between " 'non-intrusion' ... when both the officer and the contraband are in a non-constitutionally protected area" and "the resulting seizure has no fourth amendment ramifications" and " 'preintrusion.' Here the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband" (quoting Ensor v. State, 403 So.2d 349, 352 (Fla. 1981) ) ).

The extent of Fourth Amendment protection afforded to Mr. Pettis is cabined by the a priori determination of whether he had standing in the first place to challenge the search and seizure of the car. See Washington, 884 So.2d at 98 ("Although the issue here is generally framed as one of 'standing,' the Supreme Court in [ Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 ], refused to employ only the traditional concept of standing when analyzing Fourth Amendment rights; instead, it stated that 'the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.' " (quoting Rakas, 439 U.S. at 140, 99 S.Ct. 421 ) ). "A search violates a defendant's Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable." Hicks v. State, 929 So.2d 13, 16 (Fla. 2d DCA 2006) ; see also Nieminski v. State, 60 So.3d 521, 524 (Fla. 2d DCA 2011) ("[B]efore the trial court considers the merits of a Fourth Amendment motion to suppress, the defendant must first establish a factual basis justifying his or her claim to have possessed a Fourth Amendment right at the time of the alleged invasion. This analysis is actually the first part of the substantive legal analysis of a Fourth Amendment claim.").

If, on remand, the trial court concludes that Mr. Pettis had standing to challenge the search and seizure, then it follows that he likewise possessed an expectation of privacy in the car located within the curtilage of the house. And, therefore, officers were obligated to obtain a warrant prior to searching and seizing the automobile and the contraband therein. See Collins, 138 S.Ct. at 1671 ("In physically intruding on the curtilage of Collins' home to search the motorcycle, Officer Rhodes not only invaded Collins' Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins' Fourth Amendment interest in the curtilage of his home. The question before the Court is whether the automobile exception justifies the invasion of the curtilage. The answer is no." (footnote omitted) ).

If, on the other hand, the trial court finds that Mr. Pettis lacked standing, then he will not succeed in suppressing the drugs and drug paraphernalia on Fourth Amendment grounds. See Washington, 884 So.2d at 98 ("To successfully claim the protection afforded by the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched and that this expectation is reasonable."). In such a scenario, Mr. Pettis's vehicle is not afforded the Fourth Amendment protections extended to a home's curtilage. Consequently, law enforcement's observations of the drugs in open view from outside of the car, see Rickard, 420 So.2d at 305, a non-constitutionally protected area, would furnish officers with probable cause to conduct a warrantless, yet constitutional, search of the vehicle. This would not offend the Fourth Amendment. See State v. Ross, 209 So.3d 606, 609 (Fla. 2d DCA 2016) ("Mr. Ross was arrested after fleeing and eluding police officers and hiding in a home. After his arrest, a police officer looked through the window of his car and saw crack cocaine in plain view. Sergeant Seymour's lawful observation of illegal drugs in the car gave the police probable cause to believe that the car contained evidence of a crime. The warrantless search of the car was thus authorized by the automobile exception." (footnote omitted) (citing State v. Green, 943 So.2d 1004, 1006-07 (Fla. 2d DCA 2006) ; State v. Gardner, 72 So.3d 218, 220-21 (Fla. 2d DCA 2011) ; State v. Fischer, 987 So.2d 708, 711-13 (Fla. 5th DCA 2008) ) ).

Because the parties did not develop the standing issue below, we are reluctant to assess the issue in the first instance. See McCauley, 842 So.2d at 900 ("Because McCauley was not given an opportunity to prove his interest in the premises below due to the State's tacit concession of standing, we conclude that he is entitled to a hearing on the matter."); see also State v. Fernandez, 36 So.3d 120, 123 (Fla. 2d DCA 2010) ("[W]e reverse the order suppressing the evidence and remand for further proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall hold a hearing on the issue of standing, at which time Fernandez will have the burden to establish that she had a reasonable expectation of privacy in the prescriptions."); Murphy v. State, 32 So.3d 122, 125 (Fla. 2d DCA 2009) ("While the issue can be addressed by this court, Murphy was never given an opportunity to meet his burden of proof on this issue. Accordingly, Murphy is entitled to an evidentiary hearing on the matter." (citation omitted) ). But see Hendley v. State, 58 So.3d 296, 299 (Fla. 2d DCA 2011) (declining to reverse and remand trial court's denial of motion to suppress on issue of standing raised for the first time on appeal because "a remand for that purpose would be a futile exercise in this case").

Conclusion

As we did in McCauley and its progeny, we reverse and remand for the trial court to conduct a new suppression hearing at which it shall address standing. 842 So.2d at 900 ("We therefore reverse and remand for a new suppression hearing at which the trial court shall address only the issue of standing. If the trial court finds that McCauley established standing, it should grant the motion to suppress based on the fact that the search and seizure was otherwise illegal."); see also State v. Mobley, 98 So.3d 124, 125 (Fla. 5th DCA 2012) ("The proponent of a motion to suppress carries the initial burden of establishing a violation of the Fourth Amendment." (citing Rakas, 439 U.S. at 130 n.1, 99 S.Ct. 421 ) ).

Reversed and remanded with instructions.

KHOUZAM and SLEET, JJ., Concur.

      Officers testified that they removed the car from the scene because onlookers were becoming argumentative and combative; the officers feared for their safety as well as for the integrity of the crime scene. Our review of the surveillance CD shows a couple of curious passersby.

      In Oliver v. State, 989 So.2d 16, 17-18 (Fla. 2d DCA 2008), this court reversed the trial court's denial of a suppression order in an " 'open-view' situation" where the "incriminating nature of the items was not immediately apparent." Mr. Pettis ventures no such argument here.

      Officer Aaron Franklin testified that during questioning, Mr. Pettis related that the residence "was his mother's house" and that "he was going there to visit his mom." Be that as it may, this issue is best developed and addressed on remand with the introduction of additional evidence and/or argument, rather than by this court on the record before us.


text:
    Krista CARLTON, f/k/a Krista Lee Zanazzi, Appellant, v. Victor Carl ZANAZZI, Appellee.
    Case No. 2D18-603
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
    Kinnear K. Smith of Kinnear K. Smith, P.A., Clearwater, for Appellee.
   MORRIS, Judge.

Krista Carlton, the former wife, appeals an order granting a motion by Victor Zanazzi, the former husband, to vacate the final judgment dissolving their marriage. We conclude that the trial court erred in vacating the final judgment on the basis that it lacked jurisdiction to enter the final judgment, and we reverse.

The parties were married in 2012. In November 2015, the former wife filed a petition for dissolution of marriage in case number 15-10814-FD, and the former husband filed a counterpetition in that same case number in January 2016. The parties voluntarily dismissed their petitions in May 2016. In August 2016, the former wife filed a new petition for dissolution of marriage listing the original case number, 15-10814-FD.

The parties reached a marital settlement agreement and requested the trial court to enter a final judgment of dissolution in September 2016. The final judgment of dissolution listed case number 15-10814-FD. In November 2017, the former husband filed a petition for modification of the parenting plan, also listing the original case number, 15-10814FD. However, in December 2017, the former husband filed a motion to vacate the final judgment of dissolution, claiming that the trial court did not have subject matter jurisdiction to enter the final judgment in September 2016 because a voluntary dismissal had been entered in that same case number in May 2016, preventing any further action in the case. The trial court agreed and granted the former husband's motion to vacate the final judgment of dissolution in February 2018.

On appeal, the former wife argues that the fact that the original case number was used for the new petition for dissolution is a purely administrative matter and that it did not divest the trial court of subject matter jurisdiction to consider the former wife's petition for dissolution filed in 2016. She further claims that her new petition for dissolution invoked the subject matter jurisdiction of the trial court and that this case is distinguishable from the cases relied upon by the former husband and trial court.

In moving to vacate the final judgment, the former husband relied on Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013), which is the principal case discussing the effect of a voluntary dismissal. In Pino, the plaintiff in a mortgage foreclosure case voluntarily dismissed the case after the defendant had asserted in the case that the plaintiff was relying on fraudulent documents. Id. at 27. Pursuant to the voluntary dismissal, the case was dismissed without prejudice, but after the plaintiff filed a new, separate action against the defendant, the defendant moved in the original case to set aside the dismissal on the basis of fraud and sought a dismissal of the original action with prejudice. Id. at 28. The supreme court considered the "specific issue" of "whether an allegation of fraud on the court empowers a trial court to reopen a lawsuit at the request of a defendant after the plaintiff has already voluntarily dismissed that suit, but where the plaintiff did not obtain any affirmative relief." Id. at 30.

In answering that question, the supreme court looked to Florida Rule of Civil Procedure 1.420, which grants a plaintiff the absolute right to file a voluntary dismissal that is effective upon service. Pino, 121 So.3d at 31. The court went on to explain that the effect of the voluntary dismissal is jurisdictional: "The voluntary dismissal serves to terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action." Id. at 32. The court further explained that there are two exceptions to the divesture of jurisdiction, neither of which are applicable here. See id. at 33.

Pino is relied on for the general proposition that a voluntary dismissal terminates the litigation and divests the court of jurisdiction to enter any further orders in the case. See, e.g., Dandar v. Church of Scientology Flag Serv. Org., 190 So.3d 1100, 1102 (Fla. 2d DCA 2016) ; U.S. Bank Nat'l Ass'n v. Rivera, 193 So.3d 954, 956 (Fla. 3d DCA 2016). The trial court applied these cases in granting the former husband's motion to vacate in this case. The problem is that none of the cases deal with a factual scenario similar to the one in this case, i.e., where a new pleading is filed in a dissolution context that serves to initiate new proceedings between the parties. There are cases that hold that the effect of a voluntary dismissal applies equally in dissolution cases. Kelly v. Colston, 977 So.2d 692, 694 (Fla. 1st DCA 2008) ("This is equally true when the dismissal is taken in a dissolution action." (citing Hayden v. Hayden, 373 So.2d 436, 438 (Fla. 3d DCA 1979) ) ). But again, those cases involve only initial petitions for dissolution and further action relating to those petitions after voluntary dismissals were filed. None involve the filing of a new petition for dissolution.

In considering whether Pino applies to this case, we look to this court's opinion in Dandar. In Dandar, the parties to a wrongful death case reached a settlement agreement and filed a joint stipulation of voluntary dismissal pursuant to rule 1.420(a). 190 So.3d at 1101. There was no order entered by the trial court retaining jurisdiction to enforce the settlement. The defendant then filed a motion to enforce settlement agreement in the same case, and the trial court concluded it had jurisdiction to enforce the settlement agreement based on language in the agreement. Id. at 1101-02. However, this court disagreed, holding that the filing of the voluntary dismissal in the original case divested the circuit court of jurisdiction, relying on Pino. Id. at 1102-03.

This court noted that the trial court would have had jurisdiction to enforce the settlement agreement if the circuit court had entered an order incorporating the agreement and dismissing the case with a reservation of jurisdiction. Id. But that did not occur. Rather, a voluntary dismissal was filed, and it served as an act of finality. Therefore, the parties could not file a motion in the original case to enforce the agreement and were limited to filing a new breach of contract action. Id. at 1103.

On one hand, Dandar is similar in that the issue of enforcement of a settlement agreement is a different issue than the one originally brought before the court in the case, i.e., the wrongful death action. That is similar to this case; the petition for dissolution in August 2016 was a new and different proceeding than the petition for dissolution filed in May 2016. On the other hand, the motion to enforce in Dandar was a continuation of the original proceeding in that it sought to enforce a settlement of the cause of action that was first brought in the original proceeding. Here, the first petition for dissolution was dismissed, and a new petition was later filed. The new petition did not reference or relate back to the original petition. In Dandar, there was only a motion to enforce and no new pleading was filed. While this case involves the use of the wrong case number for a new pleading, the same cannot be said for Dandar. For these reasons, Dandar is distinguishable from this case.

We find merit in the former wife's argument that this case involves an administrative matter of the court, not a jurisdictional one. There is no dispute that the circuit court of Pinellas County had subject matter jurisdiction to consider the new petition for dissolution filed by the former wife in December 2016. See §§ 61.021, 61.052, Fla. Stat. (2016) ; Marshall v. Marshall, 988 So.2d 644, 648 (Fla. 4th DCA 2008) ("Under the divisible divorce concept, if the trial court has subject matter jurisdiction over a marriage, pursuant to sections 61.021 and 61.052, Florida Statutes, then it can dissolve the marital relationship." (citing Orbe v. Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995) ) ). The fact that the new petition listed a case number of a proceeding that had already been dismissed between the parties should not operate to divest the circuit court of jurisdiction over the divorce.

"The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge's jurisdiction." Malave v. Malave, 178 So.3d 51, 54-55 (Fla. 5th DCA 2015) (quoting In re Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978) ). When a case is filed in the wrong division, it should be transferred to the correct division. Weaver v. Hotchkiss, 972 So.2d 1060, 1062 (Fla. 2d DCA 2008) ; Malave, 178 So.3d at 54-55 (holding that "[a] circuit court ... does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court" and that circuit court had jurisdiction over ancillary petition that was improperly filed in divorce case and that should have been transferred from the family division to the civil division). The same is true of a pleading filed with a case number that the parties and circuit court should recognize is improper. The use of the original case number on a new and separate petition is more in the nature of a scrivener's error than a jurisdictional defect. See Walker v. Nolke, 614 So.2d 655, 656-57 (Fla. 5th DCA 1993) (referring to incorrect case number used on an amended complaint and in a circuit court order as a scrivener's error that should not have resulted in a dismissal merely because amended complaint was not filed in correct case number); see also Hodges v. State, 674 So.2d 869, 870 (Fla. 2d DCA 1996) (referring to incorrect case number on judgment and sentence as a scrivener's error). The former wife's new petition clearly sought to invoke the circuit court's jurisdiction to dissolve the parties' marriage, and the new petition should have been assigned a new case number. But neither the failure of the parties to use a new case number nor the failure of the circuit court to assign a new case number to the former wife's new petition operated to divest the circuit court of jurisdiction to consider the new petition.

We also note that prior to raising this issue in his motion to vacate, the former husband had (1) agreed to the trial court's entering the final judgment of dissolution in the original case number and (2) sought relief from the trial court by filing a petition for modification of the parenting plan in November 2017, also listing the original case number. We recognize that a party may not waive the issue of subject matter jurisdiction, see Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla. 1994), but as we have concluded, this is not a matter of subject matter jurisdiction. By agreeing to the final judgment of dissolution and by seeking affirmative relief, the former husband waived any claim that the trial court erred in entering judgment using the wrong case number. See Taylor v. Kenco Chem. & Mfg. Corp., 465 So.2d 581, 587 (Fla. 1st DCA 1985) ("Waiver is the intentional or voluntary relinquishment of a known right, or conduct which infers the relinquishment of a known right.").

Because the facts of this case are distinguishable from the Pino line of cases and because the trial court had jurisdiction to consider a petition for dissolution of marriage filed by the former wife in August 2016, we reverse the February 2018 order vacating the final judgment entered in September 2016 and remand for proceedings consistent with this opinion.

Reversed and remanded.

KELLY and SLEET, JJ., Concur.

      At the hearing on the former husband's motion to vacate, the former wife's attorney stated that she was not sure how the new petition was filed in the same case number, whether it was the fault of her former paralegal or the clerk.

      It appears that at the time of the marital settlement agreement and the final judgment, the former husband was not represented by counsel. He obtained counsel to file his petition for modification and his motion to vacate.

      The wife argues that Fitzgerald v. Fitzgerald, 790 So.2d 1216 (Fla. 2d DCA 2001), suggests that a new petition for dissolution can be filed in the same case number as one that has already been dismissed. In Fitzgerald, this court held that the trial court must accept the voluntary dismissal of the husband's petition but noted that the wife's pending petition could be considered. But a close reading of the case indicates that this court was referring to a pending dissolution case filed by the wife a year after the husband voluntary dismissed his petition, thus suggesting that the wife's petition was filed in a separate proceeding. Id. at 1217-18. Thus, the case is not clear regarding the wife's pending proceeding. In addition, Fitzgerald was issued prior to Pino. Accordingly, Fitzgerald offers little guidance.


author: Per Curiam.

text:
    DELTA AGGREGATE, LLC, a Florida Limited Liability Company, and Michael Desimone, a Florida Resident, Petitioners, v. HERMES HIALEAH WAREHOUSE, LLC, a Florida Limited Liability Company, Respondent.
    No. 4D18-2252
    District Court of Appeal of Florida, Fourth District.
    March 6, 2019
    Robert A. Sweetapple and Cynthia J. Miller of Sweetapple, Broeker & Varkas, P.L., Boca Raton, for petitioners.
    Paul DeCailly of DeCailly Law Group, P.A., Indian Rocks Beach, for respondent.
   Per Curiam.

Petitioners, Delta Aggregate, LLC (Delta) and Michael DeSimone (DeSimone), seek certiorari review of an order that denied their emergency motion to discharge a lis pendens. We have jurisdiction and grant the petition.

While a claim for an equitable lien can support a lis pendens, it must be founded either upon a duly recorded instrument or a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. See Chiusolo v. Kennedy , 614 So.2d 491, 492 (Fla. 1993) ; Lakeview Townhomes at the Calif. Club, Inc. v. Lakeview of the Calif. Club Homeowners Ass'n, Inc. , 579 So.2d 290 (Fla. 3d DCA 1991). Respondent Hermes Hialeah Warehouse, LLC (Hermes) has not demonstrated either basis to support the lis pendens.

Delta operates a mining operation on real property that it owns. Delta's interests were originally held equally between DeSimone and Raelaur Realty LLC (Raelaur). DeSimone sought to purchase Raelaur's fifty percent interest in Delta. To facilitate the transaction, DeSimone executed a promissory note for the full purchase price in Raelaur's favor. As collateral to secure the note, DeSimone also executed a security agreement for 100% of his membership interest in Delta.

Raelaur received partial payment on the note and then declared DeSimone in default. The parties thereafter entered into a loan modification in which Delta was joined as a party. Under the terms of the loan modification, Delta was to pay Raelaur monthly, specified amounts of the revenue realized from the sale of sand and stone excavated from the property. Raelaur alleges that it was never paid any money nor provided an accounting from Delta under the modification agreement.

Raelaur later assigned its interest under the loan documents and modification agreement to Hermes. Hermes sued Delta and DeSimone for breach of contract and fraud. It filed a lis pendens which the trial court discharged.

Hermes amended the complaint to add a third count to impose an equitable or constructive lien on the real property, and filed the second lis pendens under review. Hermes alleged that Delta and DeSimone failed to make the payments due from its sales revenue. Therefore, it sought an equitable or constructive lien on the real property and the materials embedded therein.

In order to maintain a lis pendens not based on a duly recorded instrument or lien, the proponent must show a "fair nexus" between the property that is the subject of the lis pendens and the dispute embodied in the lawsuit. Chiusolo, 614 So.2d at 492. The amended complaint with its claim for equitable or constructive lien does not show the requisite "fair nexus." Rather, it is based solely on Delta's failure to pay those sums claimed to be due from the sale of the excavated materials as provided by the terms of the loan modification agreement. See Roger Homes Corp. v. Persant Constr. Co. , 637 So.2d 5, 6-7 (Fla. 3d DCA 1994). Delta did not grant Hermes, as Raelaur's successor, an interest in or a lien against the property. Hansen v. Five Points Guar. Bank , 362 So.2d 962, 964 (Fla. 1st DCA 1978) ("An equitable lien results ... only when the intention to offer the land as security for the debt is clearly apparent.") (citation and internal quotation marks omitted). Furthermore, Hermes can obtain complete relief without reference to the property. Blue Star Palms, LLC v. LED Tr., LLC , 128 So.3d 36, 39 (Fla. 3d DCA 2012) (holding that lis pendens could not be maintained where the plaintiff can be afforded complete relief without reference or connection to the property's title).

Based on the foregoing, we grant the petition and quash the order that denied the motion to discharge the lis pendens.

Petition for writ of certiorari granted and order quashed.

Gerber, C.J., Gross and Forst, JJ., concur.

      This court exercises certiorari review over such orders. See Kennedy Real Estate Found. v. Goldberg, 436 So.2d 1056 (Fla. 4th DCA 1983) ; Cooper Vill., Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980) ; see also Archer v. Archer, 692 So.2d 1009 (Fla. 4th DCA 1997). The third district exercises non-final review but has recognized that certiorari review is more appropriate. See Villamizar v. Luna Capital Partners, LLC., 260 So.3d 355 (Fla. 3d DCA 2018) ; see also Rodriguez v. Guerra , 254 So.3d 521, 521 n.1 (Fla. 3d DCA 2018) (recognizing that prior decisions indicated that certiorari was appropriate to review such orders); Bankers Lending Servs., Inc. v. Regents Park Inv., LLC, 225 So.3d 884, 885 (Fla. 3d DCA 2017) (noting that prior non-final review was based on Rule 9.130(a)(3)(B), associated with injunctions). This court in Archer agreed with the third district that non-final review would be the preferred method of review but noted that Florida Rule of Appellate Procedure 9.130 did not authorize it and urged the appellate rules committee to consider the issue. 692 So.2d at 1009 n.1. The first district may decline review. Landmark at Crescent Ridge LP v. Everest Fin., Inc., 219 So.3d 218, 220 (Fla. 1st DCA 2017) (dismissing petition and holding that monetary harm that may result from a lis pendens, such as loss of value or ability to sell to a particular buyer, is insufficient to allow for certiorari review).


author: Bilbrey, J.

text:
    Christine M. MCCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1477
    District Court of Appeal of Florida, First District.
    March 7, 2019
    Christine M. McCray, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Bilbrey, J.

Christine McCray appeals the order denying her motion under rule 3.850, Florida Rules of Criminal Procedure, to vacate the judgment and sentence entered following her no contest plea. Appellant asserts that the circuit court erroneously denied her motion which claimed ineffective assistance of defense counsel in connection with her open plea and the sentence ultimately imposed. Upon review of the evidence adduced at the hearing on the postconviction motion, the order on appeal is affirmed.

When a postconviction movant seeks relief due to alleged ineffective assistance of counsel, she must establish "counsel's performance was deficient," and "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the postconviction court's ruling after an evidentiary hearing under a mixed standard, as stated in Wickham v. State , 124 So.3d 841, 858 (Fla. 2013), "[b]ecause both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings as long as they are supported by competent, substantial evidence and reviewing the legal conclusions de novo."

Appellant asserted that defense counsel was ineffective during plea negotiations with the State because counsel allegedly led her to believe that if she rejected the State's plea offers, she would receive a sentence which did not include any incarceration. Both of the State's plea offers included 364 days of jail time to be followed by probation. Appellant rejected the State's offers and instead entered an open plea. Appellant's open plea resulted in a sentence of six years' incarceration followed by a total of fourteen years of probation.

The testimony at the hearing on Appellant's postconviction motion by both Appellant and her former defense counsel established that Appellant was informed and was well aware of the twenty-year maximum sentence she faced. In addition, the testimony of both Appellant and defense counsel was that counsel had communicated the two plea offers from the State to Appellant. Accordingly, this was not a case where defense counsel failed to inform Appellant of her sentence exposure or failed to communicate a plea offer.

A claim of ineffective assistance of counsel is cognizable upon an allegation that counsel affirmatively advised the defendant to reject a plea offer based on misinformation, which causes the defendant to decline an offer he or she would have accepted if properly advised. See Lafler v. Cooper , 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ("[C]ounsel was deficient when he advised [defendant] to reject the plea offer on grounds he could not be convicted at trial."). However, to establish that defense counsel's performance was deficient, as required by Strickland , "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052. In addition, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691, 104 S.Ct. 2052.

The evidence presented at the hearing was that Appellant consistently informed counsel she did not want to serve any jail time. Appellant testified that her rejection of the State's offers was based on her counsel's representation that a new judge would soon be assigned to her case and that this judge "would not send me to prison because he believes in giving people second chances." However, defense counsel testified that Appellant rejected both offers from the State based on the jail time required. Defense counsel denied advising Appellant to reject the offers. Counsel testified that he informed Appellant that if she did not want to accept the plea offers, she could enter an open plea but that the sentence could be "anything within the legal range, including the maximum."

The postconviction court evaluated the credibility of the witnesses and weighed the evidence to conclude that Appellant rejected the State's plea offers, despite knowing that she faced the possibility of a twenty-year sentence, "because she wanted the opportunity to seek a sentence without any incarceration." Our review of the transcript of the evidentiary hearing confirms that the circuit court's denial of postconviction relief is supported by competent, substantial evidence that counsel's performance was not deficient. Rather than demonstrating ineffective assistance of defense counsel, "[t]he record paints a picture of a defendant who rolled the dice and lost."

Santos v. State , 125 So.3d 962, 964 (Fla. 4th DCA 2013). Any harm to the Appellant was based not upon any misadvice by defense counsel, but upon her own wish to avoid incarceration. We affirm the denial of postconviction relief on the other claims raised in Appellant's motion without comment.

AFFIRMED .

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


author: HARRIS, J.

text:
    Howard SPARBER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3640
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Howard Sparber, Zephyrhills, pro se.
    No Appearance for Appellee.
   HARRIS, J.

Howard Sparber appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without further discussion, the denial of Sparber's first two claims. However, we conclude that the trial court erred in summarily denying Sparber's remaining two claims and reverse.

Sparber was convicted of shooting at or within a dwelling, aggravated stalking, and criminal mischief. He was sentenced to five years in prison followed by five years of probation. Below, Sparber argued that his sentence was illegal because the special conditions of his probation were not related to the underlying charges. Specifically, Sparber's probation precludes him from consuming alcohol and patronizing bars and requires him to undergo evaluation and treatment for drug use and mental health issues.

"A defendant may not be sentenced to drug-offender probation unless he has been convicted of an enumerated offense under Chapter 893 or he has specifically agreed to such conditions as part of a plea agreement." Ackermann v. State, 962 So.2d 407, 408 (Fla. 1st DCA 2007) (citing Parker v. State, 839 So.2d 736 (Fla. 1st DCA 2003) ). Because Sparber was not charged with an offense under chapter 893, Florida Statutes (2017), and he argues neither his competency nor mental health was an issue in his case, it is not clear whether the trial court had the authority to impose these special conditions as a part of his probationary sentence. Further, Sparber alleged that when he entered his plea, he never agreed to the additional special conditions for either drug offender probation or mental health evaluation and treatment. The order denying these claims failed to attach any records that conclusively refute Sparber's allegations. Because the record on appeal does not include the plea form or a transcript of the plea hearing, this Court is unable to determine whether the special conditions were legally imposed. See McLendon v. State, 58 So.3d 387, 388 (Fla. 5th DCA 2011).

We reverse the summary denial of Claims 3 and 4 of Sparber's motion to correct illegal sentence and remand for the postconviction court to attach records conclusively refuting these claims or to resentence Sparber without the drug-offender and mental health conditions. See Parker, 839 So.2d at 737.

AFFIRMED in part; REVERSED in part; REMANDED with instructions

EDWARDS and SASSO, JJ., concur.


text:
    Jesus M. BATISTA-IRIZARRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2911
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Jesus M. Batista-Irizarry, Mayo, pro se.
    No Appearance for Appellee.
   HARRIS, J.

Appellant, Jesus M. Batista-Irizarry, appeals an order summarily denying his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised six claims for postconviction relief, including a cumulative error claim. We affirm without further comment the summary denial of claims 1, 2, and 5, but for the reasons set forth below, we reverse the summary denial of claims 3 sub-claim 1, 4, and 6 and remand for further proceedings.

Following a jury trial, Appellant was convicted of trafficking in 28 grams or more of cocaine and possession of drug paraphernalia. He was sentenced to five years in prison, followed by two years of community control, eight years of probation for the trafficking conviction, and time served for the paraphernalia conviction. This Court affirmed Appellant's direct appeal. See Batista-Irizarry v. State, 183 So.3d 366 (Fla. 5th DCA 2015). Appellant subsequently filed the instant rule 3.850 motion. He now appeals the trial court's summary denial all of his claims for relief.

"A motion for post-conviction relief can be denied without an evidentiary hearing when the motion and record conclusively demonstrate that the movant is entitled to no relief." Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989). "To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record." Kimbrough v. State, 886 So.2d 965, 981 (Fla. 2004). "When reviewing a court's summary denial of a Rule 3.850 motion for postconviction relief, the court must accept the movant's factual allegations as true to the extent they are not refuted by the record." Franqui v. State, 59 So.3d 82, 96 (Fla. 2011).

In claim 3 sub-claim 1 of his motion, Appellant alleged that his attorney failed to convey a favorable plea offer to him. The failure of counsel to convey a plea offer may constitute ineffective assistance of trial counsel. See Young v. State, 608 So.2d 111 (Fla. 5th DCA 1992). Appellant, who can neither speak nor read English, relied on his attorney to convey all plea offers to him. However, he claimed that his attorney never conveyed the three-year plea offer that his wife allegedly discovered when reviewing his legal paperwork. He argues that had his attorney informed him of the plea offer he would have accepted it, the State would not have withdrawn it, he would have received a lesser sentence, and the trial court would have accepted it. Therefore, his claim meets the requirements of Alcorn v. State, 121 So.3d 419, 430 (Fla. 2013) ("[T]o establish prejudice, the defendant must allege and prove a reasonable probability ... that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.").

The trial court denied this sub-claim, finding that the State did not make a three-year offer and attached portions of a pretrial hearing transcript to its order. However, the court's record attachments do not support this finding. The records reflect that during a bench conference, the State advised the judge, "Your Honor, the-the defendant scores 42 months DOC, a three-year minimum mandatory. I believe the offer from the last pretrial from me was five years. If he wants to plea to five years, the State will let him plea to five years ...." Even though this suggests the State made a five-year plea offer, it does not refute Appellant's contention that the State also made a three-year offer. Because there was no evidentiary hearing, this Court must accept Appellant's factual allegations as true unless the record conclusively refutes them. See Kimbrough, 886 So.2d at 981. We, therefore, reverse the order as to claim 3 sub-claim 1 and remand for the trial court to attach records that conclusively refute the claim or to hold an evidentiary hearing.

In claim 4 of his motion, Appellant alleged that his trial counsel's misadvice caused him to forgo a favorable plea offer. Appellant contended that he did not want to go to trial, but his attorney advised him that the State had a weak case. Appellant further asserted that his attorney assured him that counsel would get the charges dismissed and instructed Appellant to say nothing. Appellant contended that, but for his attorney's erroneous advice, he would have accepted the five-year plea offer.

Contrary to the trial court's finding on this claim, Appellant neither alleged that he was not informed of the plea offer nor that he failed to discuss the plea offer with counsel. Rather, he alleged that he rejected the favorable plea offer based on his attorney's erroneous advice. "A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute an actionable ineffective assistance of counsel claim." Hauter v. State, 206 So.3d 839, 840 (Fla. 5th DCA 2016) (citations omitted). However, to have a viable claim that counsel's erroneous advice caused a defendant to reject a favorable plea, the movant must allege some specific deficiency on the part of counsel that demonstrates his counsel's advice or assessment was unreasonable. Drakus v. State, 219 So.3d 979, 982 (Fla. 1st DCA 2017). In his motion, Appellant failed to allege any facts that would demonstrate that his attorney's assessment of the State's case was "weak" or that counsel's assurance that he could "get the charges dismissed" was unreasonable. Because Appellant's timely claim was insufficiently pled, he was entitled to at least one opportunity to amend. See Fla. R. Crim. P. 3.850(f)(2) ; see also Spera v. State, 971 So.2d 754, 761 (Fla. 2007). Accordingly, we reverse and remand the trial court's denial of claim 4 for the court to allow Appellant the opportunity to amend.

Finally, in claim 6, Appellant alleged that his trial counsel committed cumulative error during the trial, arguing that the independent claims set forth above entitled him to the relief sought.

Because the court erred in summarily denying claims 3 and 4, claim 6 must be reversed and remanded as well. See Flint v. State, 84 So.3d 469, 471 (Fla. 2d DCA 2012) ; Hempstead v. State, 980 So.2d 1254, 1265 (Fla. 2d DCA 2008) (both holding that reversal and remand on some claims required reversal of cumulative error claim and remand for post conviction court to consider it after court has resolved remaining claims). Accordingly, we reverse and remand for the postconviction court to reconsider claim 6 after it reassesses claim 3 sub-claim 1 and claim 4.

AFFIRMED in part; REVERSED in part; REMANDED with instructions

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

      There are two other sub-claims to claim 3. Because Appellant failed to demonstrate entitlement to relief on those claims, we affirm the summary denial as to sub-claims 2 and 3 of claim 3 without further discussion.


author: LAMBERT, J.

text:
    Raymond MATTISON, Appellant, v. Christine MATTISON, Appellee.
    Case No. 5D18-304
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 8, 2019
    Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, for Appellant.
    Debra S. Johnson, of Debra S. Johnson, P.A., Orlando, for Appellee.
   LAMBERT, J.

Raymond Mattison ("Former Husband") appeals the amended final judgment dissolving his marriage with Christine Mattison ("Former Wife"). Former Husband raises several claims of error, primarily related to child support and the equitable distribution of marital assets. Because we agree with the majority of his arguments, we reverse and remand for further proceedings.

CHILD SUPPORT -

The parties have two minor children resulting from their relatively short marriage. The parties reached a 50/50 timesharing agreement regarding their children that was incorporated into the amended final judgment. The court ordered Former Wife to pay to Former Husband child support in the sum of $ 63.71 per month based upon its findings that Former Wife's "annual income for child support purposes is $ 107,761.08" and that "[Former] Husband's income is $ 86,400." The court also found that Former Wife owed Former Husband retroactive child support for the period from separation until the final judgment in the amount of $ 9130.80, to be repaid at the rate of $ 50 per month until paid in full. Lastly, the court ordered that the minor children's medical expenses that were not covered by insurance would be equally split by the parties. Former Husband challenges each of these rulings.

The undisputed evidence at trial is that in January 2017, during the pendency of the litigation, Former Husband was involuntarily laid off from his employment with Bank of America. Approximately two months later, and shortly before trial, Former Husband formed a medical underwriting company at which he employed two other individuals. The trial court found that Former Husband's new company was awaiting payment from a client on a $ 7200 invoice that the court concluded took approximately one month of work to generate. The court then extrapolated from these facts to find that Former Husband's annual income for purposes of computing child support was $ 86,400 ($ 7200 per month multiplied by twelve months). Former Husband contends that this ruling is erroneous as a matter of law. We agree.

Section 61.30, Florida Statutes (2017), sets forth the child support guidelines to be applied in Florida and the manner in which the court is to determine the parties' respective net incomes for purposes of computing the child support obligations. See § 61.30(2) - (4), Fla. Stat. Specifically, section 61.30(2)(a) 3. provides that a party's gross income shall include "[b]usiness income from sources such as self-employment, partnership, close corporations, and independent contracts" with business income being defined as "gross receipts minus ordinary and necessary expenses required to produce income." The trial court erred here when it determined Former Husband's income for child support purposes to be his anticipated gross income from self-employment without factoring in the ordinary and necessary expenses that Former Husband incurs to produce this income. On remand, the court is directed to recalculate the parties' child support obligation. The trial court, in its discretion, may receive additional evidence to assist it regarding the calculations described herein.

Because the child support arrearages total was based, in part, upon an incorrect figure used by the court for Former Husband's income from the time he was laid off from his previous employer until trial, the amount of the child support arrearages will have to be recalculated. To facilitate the trial court's determination of the arrearages, we address three other errors regarding the arrearages that should be corrected on remand. First, the court erred in not awarding prejudgment interest on the arrearages. See Burkley v. Burkley , 911 So.2d 262, 271 (Fla. 5th DCA 2005) ("Courts must award prejudgment interest on arrearages found to be due in the final judgment."). Second, the court failed to award post-judgment interest on the arrearage judgment itself. See Vitt v. Rodriguez , 960 So.2d 47, 48 (Fla. 5th DCA 2007). Third, in light of Former Wife's income and the interest on the arrearage balance now to be included on remand, the repayment of arrearages at the rate of $ 50 per month must also be revisited. The present $ 50 per month arrearage payment (computing to $ 600 per year) will barely pay the annual interest accruing on the present arrearage balance. See Lamar v. Lamar , 889 So.2d 983, 984 (Fla. 4th DCA 2004) ("[A] plan for purging child support arrearages 'which postpones repayment of support until the object of such support reaches legal age or becomes self-supporting flies in the face of the very reasons for which "child support" exists.' " (quoting Leone v. Weed , 474 So.2d 401, 404 (Fla. 4th DCA 1985) ) ). On remand, the trial court should set a monthly arrearage payment that is both consistent with Former Wife's ability to pay and satisfies the arrearages in a more expeditious fashion.

The court also erred in allocating the children's uncovered medical expenses equally. Presently, the monthly child support obligation of the parties is allocated 53.27% to Former Wife and 46.73% to Former Husband. "[A]bsent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same percentage as the child support allocation." Julia v. Julia , 263 So.3d 795, 797, 2019 WL 211520 (Fla. 4th DCA Jan. 16, 2019) (quoting Zinovoy v. Zinovoy , 50 So.3d 763, 764-65 (Fla. 2d DCA 2010) ); see also § 61.30(8), Fla. Stat. Here, there was no "logically established rationale" contained in the amended final judgment for the disparate treatment. On remand, the court shall allocate the children's uncovered medical expenses in the same percentage as the parties' respective child support obligation, as recalculated after redetermining Former Husband's income, or provide a "logically established rationale" for doing otherwise.

EQUITABLE DISTRIBUTION -

(a) FIFTH THIRD BANK ACCOUNT - Former Husband argues that the trial court abused its discretion when it valued one of his Fifth Third Bank accounts at $ 13,000.56, which was the balance of the account on October 28, 2015, when Former Wife filed her petition. Former Husband contends that the court abused its discretion when it equitably distributed this account to him in this amount when the undisputed evidence at trial showed that the account had been dissipated to a zero balance as of the trial date.

"The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion." Dorworth v. Dorworth, 176 So.3d 336, 338 (Fla. 5th DCA 2015) (citing Chehab v. Hamilton-Chehab , 45 So.3d 533, 535 (Fla. 5th DCA 2010) ). However, "[a]s a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings." Lopez v. Lopez , 135 So.3d 326, 328 (Fla. 5th DCA 2013) (quoting Roth v. Roth , 973 So.2d 580, 584 (Fla. 2d DCA 2008) ). Nevertheless, if marital misconduct results in the depletion or dissipation of a marital asset, the trial court may assign the asset to the dissipating spouse as part of that spouse's equitable distribution. Karimi v. Karimi , 867 So.2d 471, 475 (Fla. 5th DCA 2004).

Former Husband argues that the court erred in distributing this dissipated marital asset to him without making an express finding that the dissipation resulted from intentional misconduct. We agree. See Weymouth v. Weymouth , 87 So.3d 30, 36 (Fla. 4th DCA 2012) ("To include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct." (citing Roth , 973 So.2d at 585 ) ). As Former Wife did not argue below that this dissipated asset should be distributed to Former Husband due to his intentional misconduct, on remand, the trial court shall not include this asset in its equitable distribution of the marital assets and liabilities.

(b) FORMER HUSBAND'S MERRILL LYNCH 401(k) ACCOUNT - Former Husband argues that the trial court erred when it valued his Merrill Lynch 401(k) account at $ 24,474.11 and distributed this account to him in that sum. Former Husband asserts that the balance of this account on the October 28, 2015 date the court elected to use to value marital assets was $ 9005.90, and it is this amount that should have been distributed to him. We again agree.

The valuation of an asset or debt in connection with equitable distribution that is "not supported by competent substantial evidence cannot stand." Dorworth , 176 So.3d at 338 (quoting Noone v. Noone , 727 So.2d 972, 974 (Fla. 5th DCA 1998) ). Here, a composite exhibit admitted into evidence clearly shows that this 401(k) account had a value of $ 9005.90 on October 28, 2015. Because the trial court's valuation of this Merrill Lynch 401(k) was not supported by competent substantial evidence, resulting in its distribution being an abuse of discretion, on remand, the trial court is directed to use the $ 9005.90 value for this account and adjust the equitable distribution accordingly.

(c) MARITAL HOME - The trial court distributed the marital home to Former Wife based upon the parties' agreement. The court valued the home as of October 28, 2015, the date Former Wife filed her petition, to be $ 275,000, subject to a mortgage balance of $ 221,760, making the parties' shared equity in the home $ 53,240. Former Wife has resided in the home since the parties separated and, by the time of trial, as found by the court, she had subsequently incurred and paid $ 36,782.02 in mortgage, tax, and insurance expenses on the home, for which she claimed deductions (for mortgage interest and taxes) on her tax returns that were received into evidence. Former Wife also presented evidence that just prior to trial, the fair market value of the house had appreciated to $ 285,000.

The trial court awarded a credit to Former Wife of $ 36,782.02 for the aforesaid payments, which it then reduced by the sum of $ 21,000 for what it determined to be a reasonable value for the rental of the home ($ 1000 per month, multiplied by twenty-one months from date of the parties' separation to trial), resulting in the sum of $ 15,782.02. The court then assessed one-half of this figure ($ 7891.01) against the value of Former Husband's equity in the home at the time of filing ($ 26,620) and ordered Former Wife to pay Former Husband $ 18,729.99 for his one-half net equity in the marital home.

On appeal, Former Husband essentially argues that the court erred in conflating these two methods for calculating his one-half equity interest in the marital home. He asserts that he is entitled to either his one-half share of the equity in the home as of the date that the court valued this asset (filing date) without any reduction resulting from Former Wife's mortgage, taxes, and insurance payments on the home post-separation or , alternatively, one-half of the equity in the home based upon the home's appreciated value at the time of trial and the reduced mortgage balance, less one-half of the net amount of credits to Former Wife for her post-separation mortgage, taxes, and insurance payments (reduced by the reasonable rental value of the home as determined by the court). Former Husband contends that the present ruling effectively results in him reimbursing Former Wife for one-half of her mortgage, taxes, and insurance payments on the home while she reaps 100% of the benefits from the appreciation in the value of the home and the reduced mortgage loan balance, plus any tax benefits from claiming the entire deductions for mortgage interest and taxes on her personal income tax returns.

Former Husband is correct. On remand, because the trial court has expressly elected to use the October 28, 2015 date for valuation of marital assets, the trial court is directed to award Former Husband the $ 26,620 that it determined was his one-half equity in the marital home as of that date.

ATTORNEY'S FEES -

Former Husband argues that the trial court abused its discretion in denying his request for an award of attorney's fees below. See Gunn v. Ubbels , 101 So.3d 420, 420 (Fla. 5th DCA 2012) ("The standard of review for an award or denial of attorney's fees in a dissolution of marriage proceeding is abuse of discretion." (citing Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980) ) ). Because we have reversed the trial court's determination as to Former Husband's income as well as to its equitable distribution of certain marital assets, we also reverse the denial of Former Husband's claim for attorney's fees and remand with directions that the trial court reconsider this claim after recalculating Former Husband's income and correcting its equitable distribution of the marital property.

Former Husband has also filed a motion for an award of attorney's fees on appeal. We provisionally grant his motion and remand this matter to the trial court. If Former Husband establishes his entitlement pursuant to section 61.16, Florida Statutes, the trial court is authorized to award Former Husband all or a portion of the reasonable appellate attorney's fees. The merit of the respective positions of the parties in this appeal is not a factor that the trial court need consider. See Rados v. Rados , 791 So.2d 1130, 1134 (Fla. 2d DCA 2001).

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent with this opinion. FORMER HUSBAND'S MOTION FOR APPELLATE ATTORNEY'S FEES CONDITIONALLY GRANTED.

WALLIS and GROSSHANS, JJ., concur.

      The parties married on December 21, 2012, and separated on September 1, 2015, and Former Wife filed her petition for dissolution of marriage on October 28, 2015.

      Former Husband does not challenge the October 28, 2015 date used by the court to value the marital assets. See § 61.075(7), Fla. Stat. (2017).

      The $ 24,474.11 figure used by the trial court appears to reflect the combined value of an American Funds IRA ($ 19,709.55) and a Hartford Smart 529 college savings account ($ 4764.56). The separate distribution of these accounts has not been challenged.

      Former Husband takes no issue with these factual findings.

      Former Husband raises two other grounds in his initial brief for reversal regarding the trial court's distribution of the American Funds IRA and denial of his request to claim both children as a dependency tax exemption on his federal income tax return for at least one year. We affirm as to these arguments without further discussion.


text:
    Darius Antwan PRINCE, Petitioner, v. TANYA MONIQUE ALDEN-PAGE, and State of Florida, Department of Revenue, Respondents.
    No. 1D18-4054
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Darius Antwan Prince, pro se, Petitioner.
    No appearance for Respondents.
   Per Curiam.

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

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Oshane LAWSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5287
    District Court of Appeal of Florida, First District.
    March 11, 2019
    OShane Lawson, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Lewis, Rowe, and Makar, JJ., concur.


text:
    Reginald Andri RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-5071
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Reginald Andri Richardson, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

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