author: LOGUE, J.

text:
    The STATE of Florida, Appellant, v. Yonisley GARCIA, Appellee.
    No. 3D16-1807
    District Court of Appeal of Florida, Third District.
    Opinion filed July 25, 2018
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellant.
    George T. Pallas, P.A., and George T. Pallas, Miami, for appellee.
    Before LAGOA, LOGUE, and LINDSEY, JJ.
   LOGUE, J.

The State of Florida seeks review of the trial court's order suppressing recordings taken by members of the animal rights organization, Animal Recovery Mission (ARM) documenting the slaughter of pigs on a farm. We reverse and remand for an evidentiary hearing.

Background

The defendant, Yonisley Garcia, was charged with aggravated animal cruelty in violation of sections 828.12(2) and 777.011, Florida Statutes (2013). The charges arose after the defendant was filmed slaughtering pigs to be sold for meat. The defendant and his co-defendants allegedly shot the pigs, and if the pigs did not immediately die, they drowned them in cauldrons.

The defendant filed a motion to suppress the videos on the basis that they were obtained in violation of the prohibition against surreptitious recordings contained in section 934.06, Florida Statutes (2016). He argued that the events occurred on a private farm where he had a reasonable expectation of privacy. The ARM members, he asserted, lied about their true identities and purpose in order to enter the private property, and they did not disclose that they were carrying recording devices.

In response to the motion to suppress, the State argued that the pigs were sold and slaughtered on property that was open to the public. According to the State, a sign posted at the entrance of the property read "Animals for Sale," and the State asserted that the public was permitted to walk onto the property to purchase a slaughtered pig. The prosecutor proffered that the video recordings showed the defendants talking to other individuals who were on the property to purchase pigs.

At the hearing, no testimony was taken and no evidence was admitted into the record. Instead, the trial court heard only argument from the lawyers for the parties. The lawyers initially agreed on certain facts. For example, they agreed that two ARM members went to the property at issue with recording devices disguised as wrist watches. The State presented a photo of the property where the pigs were killed, but it was not entered into evidence. As argument proceeded, however, it became apparent that there was no agreement on the critical facts.

Nevertheless, at the end of the hearing, the trial court granted the motion to suppress. It did so based on certain factual findings. For example, the trial court found that the remote location, the nature of the property, and the general circumstances gave the defendant a reasonable expectation of privacy. The court further found that the ARM members were not acting as private citizens, but "rather as a de facto arm of the State" for the purposes of obtaining evidence of criminal behavior to turn over to the State. This appeal followed.

Analysis

A trial court's order on a motion to suppress will not be disturbed where the findings are supported by competent substantial evidence. See State v. Johns, 920 So.2d 1156, 1156-57 (Fla. 2006) ("Factual findings are entitled to deference and reversal is possible only if the findings are not supported by competent, substantial evidence.").

Section 934.03, Florida Statutes prohibits the interception and disclosure of wire, oral, or electronic communications unless the parties involved give prior consent. Prohibited intercepted oral communications may not be used as evidence. More specifically, section 934.06 provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.

In order to prevail on his motion to suppress under this statute, the defendant "must not only have had a subjective expectation of privacy, but also his expectation under the circumstances must have been one that society is prepared to accept as reasonable." State v. Inciarrano, 473 So.2d 1272, 1275 (Fla. 1985). This expectation is not reasonable where "[t]he intercepted communication was made in an open, public area rather than in an enclosed, private, or secluded area." Stevenson v. State, 667 So.2d 410, 412 (Fla. 1996).

Here, the trial court's grounds were sufficient to grant the motion if those grounds were supported by the record. The problem is the trial court's key factual findings are not supported by competent substantial evidence simply because no evidence was taken. We acknowledge that the proceedings were somewhat confused because both the State and the defendant appear to be under the impression that the other party agreed with their factual assumptions. When this turned out not to be the case, however, the court could not resolve the disputed factual versions in the manner it did without taking evidence.

Given the lack of evidence supporting the factual findings on which the order is based, we reverse and remand for an evidentiary hearing. See Abdo v. State, 144 So.3d 594 (Fla. 2d DCA 2014).

Reversed and remanded.


source: Caselaw Access Project

author: LAMBERT, J.

license: Public Domain

text:
    Nachelle MOSS, Appellant, v. The ESTATE OF Curt HUDSON, BY AND THROUGH Jennifer HUDSON, as Personal Representative and Nathaniel Moss, Appellees.
    Case No. 5D17-3356
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 27, 2018
    Gregory D. Jones and Carla M. Sabbagh, of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Jason M. Melton, Christopher M. Klemawesch, and Gina M. Girardot, Whittel & Melton, LLC, St. Petersburg, for Appellee, Estate of Curt Hudson, by and through Jennifer Hudson, as Personal Representative.
    No Appearance for Other Appellee.
   LAMBERT, J.

Nachelle Moss appeals the trial court's order denying her motion to quash service of process. Concluding that substituted service of process under section 48.171, Florida Statutes (2015), was not properly obtained, we reverse.

Appellee, Jennifer Hudson, as personal representative of the Estate of Curt Hudson, deceased, filed a wrongful death complaint against Moss for damages arising out of an automobile accident in which the vehicle Moss was driving struck the decedent, who was riding a bicycle. The complaint alleged, among other things, that Moss was a resident of Hernando County. After several unsuccessful attempts to personally serve Moss with the initial complaint, Hudson attempted to obtain substituted service of process pursuant to section 48.171 by serving Moss through the Secretary of State. This statute provides, in pertinent part:

Any nonresident of this state ... or any resident of this state, being the licensed operator or owner of ... any motor vehicle under the laws of this state, who becomes a nonresident or conceals his or her whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees ... within the state constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state against such operator or owner ... of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.

§ 48.171, Fla. Stat. (2015).

Moss, by counsel, moved to quash service of process, asserting that Hudson had not strictly complied with the requirements of section 48.171 and had also failed to comply with the separate procedural requirements of section 48.161, Florida Statutes (2015), for effectuating substituted service upon the Secretary of State. Following a hearing, the trial court denied the motion, finding that Moss was "represented," "aware of the case," and "accountable herself of any due process." The court further found that Hudson had clearly demonstrated sufficient attempts to personally serve Moss with process.

A trial court's ruling on a motion to quash service of process is subject to a de novo standard of review. Hernandez v. State Farm Mut. Auto. Ins. Co. , 32 So.3d 695, 698 (Fla. 4th DCA 2010) (citing Mecca Multimedia, Inc. v. Kurzbard , 954 So.2d 1179, 1181 (Fla. 3d DCA 2007) ). Further, "[b]ecause substituted service of process statutes provide an exception to the general rule that a defendant must be personally served, they must be strictly construed to protect due process guarantees." Alvarado v. Cisneros , 919 So.2d 585, 588-89 (Fla. 3d DCA 2006) (citing Monaco v. Nealon , 810 So.2d 1084, 1085 (Fla. 4th DCA 2002) ; McAlice v. Kirsch , 368 So.2d 401, 402 (Fla. 3d DCA 1979) ).

The trial court first erred in denying Moss's motion to quash because she was "aware" of the case. Actual knowledge of a suit does not cure insufficient service of process. McDaniel v. FirstBank P.R. , 96 So.3d 926, 929 (Fla. 2d DCA 2012) (citing Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Due , 160 Fla. 120, 33 So.2d 716, 718 (Fla. 1948) ). Moreover, counsel's appearance and the filing of a motion to quash insufficient service of process, without more, are not a waiver of the defense of lack of personal jurisdiction. Id. at 928 (citing Oy v. Carnival Cruise Lines, Inc. , 632 So.2d 724, 725-26 (Fla. 3d DCA 1994) ).

In Hernandez , the Fourth District Court succinctly explained the two requirements that a plaintiff must meet when using substituted service under section 48.171 :

First, the complaint must allege the ultimate facts bringing the defendant within the purview of the statute. This requires the plaintiff to allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently became a non-resident, or a resident of Florida concealing his whereabouts. Second, the service must strictly comply with section 48.161, which sets forth the method of substituted service of process.

32 So.3d at 698 (internal citations and quotations omitted).

Here, Hudson's initial complaint was defective as it lacked any allegations that Moss was either a nonresident, a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing her whereabouts. Under these circumstances, "[w]hen the complaint is devoid of the jurisdictional allegations required for substituted service, the defendant cannot be properly served under the substituted service statute." Alvarado , 919 So.2d at 589 (citing Great Am. Ins. Co. v. Bevis , 652 So.2d 382, 383 (Fla. 2d DCA 1995) ). Because the jurisdictional allegations contained in Hudson's initial complaint were insufficient to invoke substituted service of process upon the Secretary of State, it is unnecessary for us to address whether the procedural requirements for service under section 48.161 were also met. As Moss was not personally served with process and for the reasons explained, substituted service of process upon her through the Secretary of State was defective. Thus, the trial court should have granted Moss's motion. We therefore reverse the order on appeal and remand for the entry of an order quashing service of process on Moss of the initial complaint, without prejudice to Hudson's further efforts to serve Moss with process.

REVERSED and REMANDED.

SAWAYA and EISNAUGLE, JJ., concur.

      Our record indicates that the trial court has now granted Hudson leave to file an amended complaint, which she did. We take no position regarding the sufficiency of the allegations contained in the amended complaint under section 48.171 or whether substituted service of the amended complaint can be properly obtained. Those issues are not before us, nor have they been presented to the trial court for a ruling because the lower court stayed its proceedings pending resolution of this appeal.


author: LUCAS, Judge.

text:
    GIFT OF LIFE ADOPTIONS, Petitioner, v. S.R.B., Respondent.
    Case No. 2D18-100
    District Court of Appeal of Florida, Second District.
    July 27, 2018
    Timothy M. Beasley, Pinellas Park, for Petitioner.
    Ita M. Neymotin, Regional Counsel, Second District, and Ngozi C. Acholonu, Assistant Regional Counsel, Office of Regional Conflict Counsel, Clearwater, for Respondent.
   LUCAS, Judge.

Gift of Life Adoptions (GLA) is an adoption agency that is endeavoring to facilitate a baby's adoption by a prospective couple. As part of the adoption process, pursuant to section 63.089, Florida Statutes (2017), GLA initiated the underlying action to terminate the parental rights of the baby's biological parents. The biological mother of the baby, who had voluntarily surrendered her child to GLA for adoption, consented to the termination of her parental rights. The present controversy stems from the litigation to terminate S.R.B.'s parental rights, whom GLA refers to as "an unmarried putative biological father" of this child.

GLA served S.R.B. with a notice of an intended adoption plan while he was incarcerated in the Sarasota County Jail. In response, S.R.B. filed a handwritten paper in which he stated that he was the father of the baby and that he did not waive or consent to the termination of his parental rights. S.R.B. further stated that he was indigent "and would like the court to appoint an attorney to protect his right's [sic] as a parent." When informed by the clerk of the circuit court that it could not appoint him counsel, S.R.B. later filed a handwritten motion for the appointment of counsel to represent him in the termination proceeding.

GLA then filed a motion for default, arguing that because S.R.B. failed to comply with the statutory requirements of sections 63.062(2)(b)(2) and (3)(a), Florida Statutes (2017), his handwritten responses were insufficient, and he had therefore waived and surrendered any rights to the child. The circuit court held a hearing on GLA's motion, at which S.R.B. appeared telephonically and renewed his request for a court-appointed attorney. Relying upon language within this court's holding in S.C. v. Gift of Life Adoptions, 100 So.3d 774 (Fla. 2d DCA 2012), the circuit court felt bound to deny GLA's motion for default in order to appoint S.R.B. counsel. GLA now challenges that order in this timely petition for writ of certiorari.

The crux of GLA's argument for certiorari relief is that the circuit court departed from the essential requirements of law when it appointed S.R.B. counsel and that that error visited a material injury upon someone (GLA does not specify who) because the appointment of counsel "delays and places at risk" this child's prospective adoption. The substantive question GLA raises concerning S.R.B.'s right to counsel is a difficult one. But we cannot reach it in this certiorari proceeding.

Our jurisdiction to issue a writ for the "extraordinary remedy" of certiorari, Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987) ), is well settled. To obtain certiorari relief, a petitioner must show "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves, 889 So.2d at 822 (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002) ). "The last two elements are jurisdictional and must be analyzed before the court may even consider the first element." Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995) ). The petition before us fails to meet either jurisdictional prong.

GLA has not cited, and we have not located, a single published decision where a court has construed a lawyer's representation to be, in and of itself, a cognizable, much less irremediable, injury in a termination of parental rights proceeding. Quite the contrary, whatever delay the presence of an opposing attorney could be said to entail, Florida law recognizes that indigent parents are entitled to court-appointed counsel in a proceeding to terminate their parental rights. Cf. J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060, 1068 (Fla. 2000) ("The right to counsel in termination of parental rights cases is part of the process designed to ensure that the final result is reliably correct." (citing Dep't of Children & Family Servs. v. Natural Parents of J.B., 736 So.2d 111, 117 (Fla. 4th DCA 1999) ) ); O.A.H. v. R.L.A., 712 So.2d 4, 7 (Fla. 2d DCA 1998) ("We believe that [ In the Interest of D.B., 385 So.2d 83 (Fla. 1980) ] mandates the appointment of counsel to represent a non-consenting parent in a contested adoption proceeding when the parent is indigent and his or her consent to the adoption is sought to be excused under section 63.072(1), Florida Statutes (1993)."). And the premise behind GLA's argument in this petition-that the presence of a lawyer for a putative father in a contested termination of parental rights proceeding constitutes a material injury-strikes us as rather troubling. See generally Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) ("The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth-as well as fairness-is 'best discovered by powerful statements on both sides of the question.' " (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A.J. 569, 569 (1975) (quoting Ex Parte Lloyd (1822) Mont 70, 72n) ) ); Fla. Bar v. Dove, 985 So.2d 1001, 1010 (Fla. 2008) ("Lawyers who undertake representation in the vital areas of adoption, dependency, and delinquency and in other family law cases serve interests which have unexcelled importance in the law."). We are loathe to view what is a hallmark of adversarial proceedings in our judicial system as a material injury in this context.

In sum, GLA has not shown how the circuit court's order appointing counsel results in a material injury for the remainder of the case that cannot be corrected on postjudgment appeal. Accordingly, we are without jurisdiction to review GLA's petition and must dismiss it without consideration of GLA's legal arguments. See Oken, 62 So.3d at 1132 ; Heggs, 658 So.2d at 527.

Petition dismissed.

KELLY and MORRIS, JJ., Concur.

      From our limited record, it appears that the biological mother may have disclosed to GLA that S.R.B. was the baby's biological father. S.R.B. was not named on the child's birth certificate, nor, at the time the proceeding was commenced, had S.R.B. registered with the Florida Putative Father Registry under section 63.054, Florida Statutes (2017).

      In S.C., we held that a putative father's "belated" appointment of counsel after an initial hearing in a termination proceeding had concluded did not deprive him of due process. 100 So.3d at 775. The majority opinion concluded with the observation:
      If the only basis of the trial court's granting of the petition was S.C.'s failure to timely comply with the requirements of the Notice of Intended Adoption Plan, we might reach a different conclusion because we agree that the filing requirements are very technical and might be a challenge to the nonlawyer biological father.
      Id. GLA argues that, to the extent S.C.'s comments about the "different conclusion" we "might reach" concerning the appointment of counsel were not dicta, they conflict with the Fourth District's holding in K.H. v. Children's Home Society, 120 So.3d 104 (Fla. 4th DCA 2013). In K.H., the Fourth District concluded that "[u]ntil a putative father complies with the statute [section 63.062 ], he has no constitutionally-protected right to counsel." 120 So.3d at 108 (citing In the Interest of D.B., 385 So.2d 83, 91 (Fla. 1980) ).

      In his concurring opinion in S.C., our former colleague, Judge Davis, succinctly stated the problem:
      [I]t is unclear whether an unmarried biological father who has failed to comply with the registration requirements of the Florida Putative Father Registry provisions is a party to the termination-pending-adoption procedure-and thus entitled to assistance of counsel-or whether he is not a party since he is deemed to have waived his consent to adoption and notice to all further proceedings.
      100 So.3d at 776 (Davis, J., concurring). We would take this opportunity to renew his plea for the legislature to address this issue and craft an appropriate balance between the vital, competing interests this issue implicates. Id.

      GLA has cited to our per curiam, memorandum opinion in In the Interest of Baby Girl M., 231 So.3d 593 (Fla. 2d DCA 2017), in which this court reviewed a lower court's order permitting an unmarried biological father who failed to file a notarized form with the Florida Putative Father Registry to intervene in an adoption proceeding as "an example" of this court exercising certiorari jurisdiction. So it was; and that is about all that can be said of it. The Baby Girl M. memorandum opinion does not tell us what the alleged jurisdictional basis was for the underlying petition for writ of certiorari, or what material injury the petitioner alleged, or how that injury, whatever it was, was irremediable on plenary appeal. The elements of certiorari review, including its jurisdictional prongs, are not even mentioned in the opinion. Accordingly, it is inapposite to our disposition of the instant petition. Cf. Adelman Steel Corp. v. Winter, 610 So.2d 494, 502 (Fla. 1st DCA 1992) ("The holding or ratio decidendi of a decision is appropriately defined as the outcome of the case on the precise points discussed in the opinion stated in terms of the facts found to be material to the court's decision." (emphasis added) (quoting Adams v. Aetna Cas. & Sur. Co., 574 So.2d 1142, 1153 n.10 (Fla. 1st DCA 1991) ) ).


author: SILBERMAN, Judge.

text:
    Joseph C. DOUGLAS, Appellant, v. Kathryn Ann DOUGLAS, Appellee.
    Case No. 2D17-2175
    District Court of Appeal of Florida, Second District.
    Opinion filed August 1, 2018
    Nancy S. Paikoff and O. George Bamis of MacFarlane, Ferguson & McMullen, Clearwater, for Appellant.
    J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellee.
   SILBERMAN, Judge.

Joseph C. Douglas, the Husband, seeks review of a final judgment of injunction for protection against domestic violence in favor of Kathryn Ann Douglas, the Wife. We reverse because the final judgment is not supported by competent, substantial evidence that the Wife had an objectively reasonable fear of imminent domestic violence.

Section 741.30(6)(a), Florida Statutes (2016), provides for the issuance of an injunction "when it appears to the court that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." "Although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the 'reasonable cause' alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well." Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007). This court reviews a finding of an objectively reasonable fear of imminent domestic violence for competent, substantial evidence. Id. at 905.

Domestic violence is defined as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." § 741.28(2). This definition requires a threat or showing of violence, and general harassment is insufficient. Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005). "An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance." Arnold v. Santana, 122 So.3d 512, 514 (Fla. 1st DCA 2013) (quoting Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012) ).

When the Wife filed the petition for injunction in March 2017, the parties were in the midst of divorce proceedings. They had been residing together in the marital home with their three minor children until just a few days before the petition for injunction was filed. The Wife testified that the Husband had a history of alcohol abuse and losing his temper. She claimed that the Husband had injured her in 1998 and 2011 by grabbing her arms hard enough to cause bruising. And the parties offered differing versions of four incidents in the week before the petition was filed.

The trial court refused to grant the injunction based on the 1998 and 2011 incidents because they were too remote in time. However, the court granted the injunction based on its conclusion that this history coupled with the Wife's version of the four incidents in March 2017 established an objectively reasonable fear of imminent domestic violence. We cannot second-guess the court's finding that the Wife's evidence was more credible than the Husband's, so we set forth the evidence as presented by the Wife. See Jeffries v. Jeffries, 133 So.3d 1243, 1244 (Fla. 1st DCA 2014).

The first incident occurred on March 13, 2017. The Wife informed the Husband that she would be working late at her clothing boutique due to a private event. The Husband texted her at 9:30 p.m. and asked where she was. She replied that she was still at the boutique. The Husband drove his truck to the boutique and arrived at around 10:30 p.m. As the Husband pulled into the parking lot, the Wife and her clients were exiting the building. The Husband parked but did not turn off or get out of the vehicle. After a few minutes, the Husband revved his engine and peeled out of the parking lot. The Wife assumed he was mad at her because he did not greet her or her clients. His actions made one of the women uncomfortable.

Shortly thereafter, the Wife returned to the marital home that the pair were still sharing. She went to the master bedroom to retrieve some clothing, but the Husband was inside with the door locked. He refused to open the door until the Wife knocked loudly enough to wake the children. The Wife asked the Husband if he was upset with her, but he did not want to talk to her. The Wife spent the night in the guest room.

The second incident occurred three days later on March 16, 2017. The Wife went to a late lunch with a friend, and as the two were leaving the restaurant they ran into the Husband. The Wife asked the Husband what he was doing there, and he said he was going to get his glasses fixed at a store in the same plaza. The third incident occurred on the following day when the Husband showed up at the same bar as the Wife to celebrate St. Patrick's Day. There was no contact between the two.

The fourth incident occurred two days later on March 19, 2017, at the marital home. When the Wife walked into the kitchen that morning, the Husband confronted her about not attending their child's basketball game. The Husband called her "mother of the year" and a narcissist. He came within two feet of her and pointed his finger at her face. When the Wife went upstairs, the Husband followed her into the master bathroom. The Husband demanded that she open the safe and show him her wedding ring. When she said there was nothing in the safe, the Husband called her a liar. He was standing inches away from her and pointing his finger in her face again.

The Wife said she was going to call the police. The Husband responded that he was going to call the police and blocked her from leaving the room. During this argument, one of their sons was showering in the master bathroom. When he came out of the shower, the Husband stepped away from the door. The Wife ran downstairs, grabbed her cell phone, and called the police. The Husband also called the police. Then the Wife ran back upstairs and locked herself in the bathroom with their son. The Husband got a coat hanger and unsuccessfully tried to unlock the bathroom door. He also asked their son to open the door, but the boy did not comply. The police arrived. They classified the matter as a simple verbal dispute and left without making an arrest.

In this case, the Wife did not establish any threatened or actual violence during the four incidents the court relied upon to grant the injunction. The facts of this case are analogous to those the First District found insufficient to support an injunction against domestic violence in Arnold, 122 So.3d 512. In Arnold, the wife testified that she locked herself in the bathroom during an argument with the husband and that he kicked the door down. Id. at 513. She claimed that the husband texted her warnings that he was tracking her online transactions. He also said he was following her. The wife asserted that the husband had hit her three or four years earlier and that the marriage involved a great deal of verbal abuse. Id.

The First District concluded that the wife did not set forth competent, substantial evidence to establish that she reasonably believed she was in imminent danger of domestic violence. Id. at 514. The court explained that the wife did not allege that the husband hurt her when he broke the bathroom door down or that he threatened violence in his texts. The only allegation of violence occurred several years prior to filing and was an isolated incident. And there was no allegation that the husband had since threatened to do violence to the wife. Id.

In this case, the only allegations of violence occurred even further in the past than that in Arnold. And the allegations that formed the basis for the injunction were essentially the same. The Wife asserted that the Husband's showing up at the same locations meant he was following her like the husband in Arnold. And as in Arnold, the other incident was a verbal argument that resulted in the Wife locking herself in the bathroom. Unlike in Arnold, the Husband used no force to enter the bathroom.

Also as in Arnold, the Husband made no threats to do violence to the Wife. Indeed, the Husband twice attempted to deescalate arguments with the Wife. The night of the incident at the boutique the Husband declined her offer to discuss the matter and sent her away from their bedroom. And when the Wife refused to open the parties' safe during the incident at the marital home, the Husband actually called the police to get them to intervene.

As in Arnold, the Husband's actions were insufficient to establish that the Wife reasonably believed she was in imminent danger of domestic violence. See also Stone v. Stone, 128 So.3d 239, 241-42 (Fla. 4th DCA 2013) (holding that evidence of the husband's abandoned attempt to have intercourse with the wife, numerous texts and phone calls that caused her mental anguish, and a few surprise appearances "was simply insufficient to establish a fear of imminent danger"). Indeed, the Husband's actions in this case were more akin to "mere uncivil behavior that causes distress or annoyance." Arnold, 122 So.3d at 514. Accordingly, we reverse the final injunction.

Reversed.

CASANUEVA and SLEET, JJ., Concur.


author: SUAREZ, J.

text:
    A.G., the Father, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Respondents.
    Nos. 3D18-615 3D18-1171
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Amber B. Glasper; Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for petitioner.
    Karla Perkins, for respondent Department of Children & Families; Laura J. Lee (Tallahassee), for respondent Guardian ad Litem Program.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
   SUAREZ, J.

The Father, A.G., petitions for certiorari review of the trial court's February 27, 2018 non-final order that 1) denied the approval of a two-month reunification goal submitted by the Department of Children and Families ("DCF"), and 2) that changed the case plan goal from reunification to adoption. The Father claims he was denied due process as he was not noticed that a change in the case plan was to be addressed at the hearing and, also, that the trial court's decision changing the case plan from reunification to adoption is not supported by the required finding of a preponderance of the evidence.

The standard of review for a petition for a writ of certiorari is whether the circuit court departed from the essential requirements of law so as to materially injure the petitioner throughout the remainder of the proceedings. Baptist Hosp. of Miami, Inc. v. Garcia, 994 So.2d 390, 393 (Fla. 3d DCA 2008). To merit certiorari review, we must find that (1) the trial court departed from the essential requirements of the law; (2) this departure will result in material injury for the remainder of the case; and (3) the departure cannot be corrected on post-judgment appeal. See D.G. v. Dept. of Children and Families, 16 So.3d 972, 973 (Fla. 3d DCA 2009).

The order in question arises out of a February 27, 2018 hearing in which the trial court ordered the case plan to be changed from one of unification to one of adoption. DCF properly concedes that the order at issue constitutes a departure from the essential requirements of law for two reasons. First, there was no evidentiary basis to support the change of case plan goal from reunification to adoption. In order to change a case plan, the trial court is required to find by a preponderance of the evidence that a change in the case plan is required. See Fla. R. Juv. P. 8.260(a). The only evidence presented at the hearing was from the Guardian ad Litem, who did not recommend a change in the plan from reunification to adoption, and the Department's Judicial Review Study Report that recommended the Mother be reunited with the children. Therefore, the trial court's order is not based on the required preponderance of the evidence.

DCF also concedes that the Father was denied his due process rights as he was not put on notice that a change of case plan goal would be considered at the hearing. DCF additionally concedes that the goal change relieves DCF from providing further referrals for services, constituting material injury that cannot be remedied on post-judgment appeal.

We therefore grant the petition for certiorari, quash the order below, and remand for proceedings consistent herewith.

      The two petitions filed by the Father, case numbers 18-615 and 18-1171, have been consolidated for purposes of this review under case number 18-615. The Father in case number 18-615 also seeks certiorari review of the trial court's order finding the Father in non-compliance with his case plan. We do not have jurisdiction to address this aspect of the order by petition for certiorari as that order does not cause irreparable harm and can be addressed on direct appeal.


text:
    A.M., the Mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Respondents.
    No. 3D18-614
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Thomas Butler, P.A., and Thomas Butler, Miami Beach, for petitioner.
    Karla Perkins, Miami, for respondent Department of Children & Families; Laura J. Lee (Tallahassee), for respondent Guardian ad Litem Program.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
   SUAREZ, J.

The Mother, A.M., petitions for certiorari review of the trial court's February 27, 2018 order changing her case plan goal from reunification to adoption. The Mother claims she was denied due process as she was not noticed that the change in her case plan was to be addressed at the hearing and, also, that the trial court's decision changing her case plan from reunification to adoption is not supported by the required finding of a preponderance of the evidence. Based on our review of the record presented, we agree with the mother on both points and grant the writ requested.

The standard of review on a petition for a writ of certiorari is whether the circuit court departed from the essential requirements of law so as to materially injure the petitioner throughout the remainder of the proceedings.

Baptist Hosp. of Miami, Inc. v. Garcia, 994 So.2d 390, 393 (Fla. 3d DCA 2008). To merit certiorari review, we must find that (1) the trial court departed from the essential requirements of the law; (2) this departure will result in material injury for the remainder of the case; and (3) the departure cannot be corrected on post-judgment appeal. See D.G. v. Dept. of Children and Families, 16 So.3d 972, 973 (Fla. 3d DCA 2009).

The Department of Children and Families ("DCF") properly concedes that the order at issue constitutes a departure from the essential requirements of law as there was no evidentiary basis to support the change of case plan goal from reunification to adoption. The sole testimony presented at the February 27, 2018 hearing was that of the children's guardian ad litem ("GAL"), who did not recommend a change of goal; the GAL's report recommended that the Mother be reunified with the children. Further, the DCF's Judicial Review Social Study Report presented at the hearing recommended reunification, and the Mother's most recent case plan was structured toward reunification. Additionally, the Mother was not put on notice that a change of case plan goal would be considered at the hearing, thereby denying her due process. The DCF additionally concedes that the goal change relieves the DCF from providing further referrals for services, constituting material injury that cannot be remedied on post-judgment appeal. We agree and grant the petition for certiorari, quash the order below and remand for further proceedings.

The Mother has also filed a petition for writ of prohibition, which we deny. The Mother's motion to disqualify the trial judge is based solely on the judge's change of case plan goal. We find such grounds to be legally insufficient to establish a well-grounded fear on the movant's part that she will not receive a fair hearing. See Arbelaez v. State, 898 So.2d 25, 41 (Fla. 2005). Further, "[a] mere 'subjective fear [ ]' of bias will not be legally sufficient; rather, the fear must be objectively reasonable." Id. (citing Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986) ).

Certiorari granted, order quashed; Prohibition denied.


author: BADALAMENTI, Judge.

text:
    ALICEA ENTERPRISES, INC., a Florida corporation, now converted to Alicia Enterprises, LLC, d/b/a Sunlake Pharmacy and also d/b/a Physician Specialty Compounding, LLC ; Physician Specialty Compounding, LLC, a Florida Limited Liability Company, d/b/a Sunlake Pharmacy; Huy Ba Le; and Ingrid Mary Bendeck, Appellants/Cross-Appellees, v. NATIONWIDE INSURANCE COMPANY OF AMERICA, INC., Joseph Stahel, and Remee Jo Lee, Appellees/Cross-Appellants.
    Case No. 2D16-5261
    District Court of Appeal of Florida, Second District.
    Opinion filed August 1, 2018
    Nataliia G. Artemova and Daniel G. Musca of Lexium PLLC f/k/a Tampa Law Source, P.A., Tampa, for Appellants/Cross-Appellees.
    Hinda Klein, of Conroy Simberg, Hollywood, for Appellee/Cross-Appellant, Nationwide Insurance Company
    No appearance for remaining Appellees/Cross-Appellants.
   BADALAMENTI, Judge.

Nationwide Insurance Company of America issued a general liability insurance policy to Alicea Enterprises, Inc., which owns and operates Sunlake Pharmacy. In an underlying lawsuit, Remee Jo Lee alleges, among other things, claims against the Pharmacy and its employees for negligent acts causing her injuries. The facts giving rise to the underlying action stem from the Pharmacy's alleged part in Remee Jo Lee's miscarriage that was caused by her then-boyfriend, John Andrew Weldon (Andrew), duping her into taking an abortifacient drug she believed simply to be an antibiotic.

Nationwide filed a complaint for declaratory relief, requesting a decree from the trial court that it neither had a duty to defend nor a duty to indemnify the Pharmacy in the underlying lawsuit. Less than four months after it filed for this declaratory relief, Nationwide filed a motion for summary judgment, asserting that the policy it issued to the Pharmacy expressly excluded coverage for "professional services." Nationwide contended that "100%" of Ms. Lee's allegations in the underlying lawsuit are excluded from coverage because they arose out of the professional "[s]ervice, treatment, advice or instruction in the practice of pharmacy."

The trial court denied Nationwide's motion for summary judgment as to its duty to defend the Pharmacy in Ms. Lee's underlying lawsuit. It reasoned that Ms. Lee's underlying complaint "contains allegations that potentially could be deemed as unrelated to professional services and potentially could bring the Tort action at this time within the coverage provided by the Insurance Policy." The trial court, however, went on to grant Nationwide's motion for summary judgment on its duty to indemnify the Pharmacy from any damages awarded to Ms. Lee in her underlying lawsuit. The trial court reasoned that "there could never be a set of circumstances where there would be a duty to indemnify as a matter of law." The Pharmacy appeals the grant of summary judgment to Nationwide on the duty to indemnify, and Nationwide cross-appeals the denial of its motion for summary judgment on the duty to defend.

After de novo review and the benefit of oral argument, we affirm the trial court's denial of Nationwide's motion for summary judgment on the duty to defend the Pharmacy in the underlying lawsuit. We are in lockstep with the trial court's reasoning that Ms. Lee's allegations could potentially "be deemed as unrelated to professional services and potentially could bring the Tort action at this time within the coverage provided by the Insurance Policy." Accordingly, because Ms. Lee's underlying complaint alleged facts that fairly and potentially bring the suit within the policy's coverage, we affirm the trial court's denial of Nationwide's motion for summary judgment on the duty to defend. See Jones v. Fla. Ins. Guar. Ass'n, 908 So.2d 435, 442-43 (Fla. 2005) ("It is well settled that an insurer's duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage." (citing State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n.3 (Fla. 1998) ) ); see also Fla. R. Civ. P. 1.510(c) ; LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 598 (Fla. 2d DCA 2014) ("If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991) ) ).

We disagree with the trial court's decision to grant summary judgment to Nationwide on its duty to indemnify the Pharmacy from any damages attributable to it in Ms. Lee's underlying lawsuit. An insurer's duty to indemnify is "determined by analyzing the policy coverage in light of the actual facts in the underlying case." Diamond State Ins. Co. v. Boys' Home Ass'n, 172 F.Supp.3d 1326, 1342 (M.D. Fla. 2016) (quoting J.B.D. Constr., Inc. v. Mid-Continent Cas. Co., 571 Fed. App'x. 918, 927 (11th Cir. 2014) ). Therefore, in deciding whether an insurer has a duty to indemnify, the trial court must look beyond the allegations in the underlying complaint. "The duty to indemnify is thus often dependent upon further factual development through discovery or at trial." Khatib v. Old Dominion Ins. Co., 153 So.3d 943, 947-48 (Fla. 1st DCA 2014) (reversing for further proceedings on the insurer's duty to indemnify because a ruling on that duty was premature without further factual development); Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So.3d 182, 188 (Fla. 4th DCA 2010) ("While the duty to defend is broad and based on the allegations in the complaint, the duty to indemnify is determined by the facts adduced at trial or during discovery.").

Whether a professional service has, or has not, been rendered is a fact-intensive analysis. See, e.g., Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470, 472 (Fla. 3d DCA 2005) (explaining that "the services which are meant to be excluded as professional are those which require specialized training" and reciting the facts it relied upon to come to the conclusion that the professional services policy exclusion did not apply). Thus, when deciding whether an act arises out of the rendering of or failure to render a professional service, the court must focus on the act itself and not the character of the individual performing the act. See Estate of Tinervin v. Nationwide Mut. Ins. Co., 23 So.3d 1232, 1237 (Fla. 4th DCA 2009) (citing Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994) ). The act from which the claim arises must be related to a professional service that requires the use of professional judgment or skill. Cf. Nat'l Deaf Acad., LLC v. Townes, 242 So.3d 303, 305 (Fla. 2018) (concluding that a "claim arises out of the 'rendering of, or the failure to render, medical care or services,' " when the act from which the claim arises is "directly related to medical care or services, which require the use of professional judgment or skill").

Thus, at the summary judgment stage, in circumstances where there has not been thorough discovery to flesh out the relevant facts, the trial court is in a poor position to determine whether the facts alleged in the complaint are true or the legal theories unsound so as to make a decision on whether an insurer has a duty to indemnify under the policy. See Khatib, 153 So.3d at 947-48 (reversing the trial court's determination that an insurer had no duty to indemnify its insured based on the allegations against the insured in the complaint because such a determination was "premature" prior to trial); see also Diamond State, 172 F.Supp.3d at 1342 (acknowledging that "it may be appropriate in some instances to consider the duty to indemnify before resolution of the underlying case" but refusing to do so where too many factual issues remained regarding the applicability of an exclusion in the insurer's policy).

Here, there appears to have been little discovery conducted. Only one deposition was before the trial court for its review-the deposition of a pharmacy technician, Joseph Stahel. Notably absent was the deposition testimony of Andrew, the individual who Ms. Lee alleged to have been the mastermind in a scheme leading to her alleged injuries. Also absent was any testimony from the pharmacists themselves. Furthermore, there was no bench trial on Nationwide's complaint for declaratory relief to present evidence as to whether the purported acts of the Pharmacy and its employees here fell within the professional negligence exclusion of the policy. Nor has there been a trial on Ms. Lee's underlying lawsuit.

We are therefore left with Mr. Stahel's deposition testimony. We know from his deposition that he provided Andrew an incomplete prescription label. This incomplete label did not contain the name of any drug. Mr. Stahel also testified that Ms. Lee was not a customer of the pharmacy. We also know that Mr. Stahel had never given out an incomplete prescription label before and did not recall whether he had asked the on-duty pharmacist for permission to give this incomplete prescription label to Andrew. Lastly, he testified that, to his knowledge, the Pharmacy did not dispense a drug with that incomplete label.

Here, we conclude that Nationwide did not meet its heavy summary judgment burden. See Fla. R. Civ. P. 1.510(c) ; LoBello, 152 So.3d at 598 ("If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." (quoting Holland, 583 So.2d at 789 ) ). It is unclear on this scant record whether the acts of the Pharmacy or its employees alleged in Ms. Lee's underlying complaint and further expounded upon by the deposition of the pharmacy technician's version of events fell within the exclusionary provision of the policy, which we must strictly construe. See Tinervin, 23 So.3d at 1236 ("Exclusionary clauses are strictly construed."). That is, a genuine issue of material fact exists as to whether the acts of the Pharmacy's employees arose out of the professional "[s]ervice, treatment, advice or instruction in the practice of pharmacy."

Because the record reflects the existence of genuine issues of material fact as to whether the Pharmacy or its employees were ordinarily or professionally negligent, we reverse and remand for further proceedings on Nationwide's duty to indemnify. See Khatib, 153 So.3d at 947-48 (reversing for further proceedings on the insurer's duty to indemnify because a ruling on the duty was premature without further factual development); Diamond State, 172 F.Supp.3d at 1342 (denying summary judgment on duty to indemnify "as premature"). We express no opinion as to whether evidence adduced upon our remand may bring the conduct within the policy's professional services exclusion. We also do not hold that summary judgment is always improper on whether an insurer has a duty to indemnify. See generally Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 16-17 (Fla. 2004) (explaining some of the factors the trial judge may rely upon when exercising its "discretion as to whether the insurance indemnity coverage issue should proceed ahead of the underlying tort action" and concluding that "there is too infinite a variety of circumstances for there to be a rule applicable in all cases"); see also State Farm Fla. Ins. Co. v. Campbell, 998 So.2d 1151, 1155 (Fla. 5th DCA 2008) (concluding on appeal from a final summary judgment in a declaratory action proceeding that insurer had no duty to indemnify its insured). We simply hold that based on the very limited record before us, genuine issues of material fact remain as to whether the Pharmacy or the Pharmacy's employees' alleged acts fell within the professional services exclusion of the policy. We affirm the trial court's denial of Nationwide's motion for summary judgment on its duty to defend the underlying lawsuit.

Affirmed in part; reversed in part; remanded.

LaROSE, C.J., and NORTHCUTT, J., concur.

      Joseph Stahel, a pharmacy technician employed by Sunlake Pharmacy and a defendant in the underlying action, and Remee Jo Lee, the plaintiff in the underlying action, are also parties to this appeal. We will refer to these appellees collectively as "Nationwide."

      Appellants Alicea Enterprises, Inc. and Physician Compounding, LLC operate Sunlake Pharmacy through a joint venture. Huy Ba Le and Ingrid Mary are pharmacists employed by Sunlake Pharmacy. Collectively, we will refer to the appellants as "the Pharmacy."

      Ms. Lee alleged that after she learned she was pregnant, she shared the news with the child's father, Andrew. While pregnant, she was prescribed an antibiotic to treat a bacterial infection. Andrew acquired an incomplete prescription label from the Pharmacy and completed the label to display that antibiotic's name. Unbeknownst to Ms. Lee, she instead took Cytotec, which she alleged Andrew placed in the pill bottle she thought contained the antibiotic. Lee's ingestion of the Cytotec medication caused her to miscarry. It is unclear whether the Pharmacy provided the incomplete prescription label by itself or affixed to an empty prescription bottle.


author: LUCK, J.

text:
    David RAHIMI, etc., Appellant, v. GLOBAL DISCOVERIES, LTD., LLC, Appellee.
    No. 3D16-2756
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Murdoch, Weires & Neuman, PLLC and Scott A. Weires (Boca Raton), for appellant.
    McCumber, Daniels, Buntz, Hartig, Puig & Ross, P.A., Amy L. Dilday, Starlett M. Massey, and Jonathan D. Kaplan (Tampa), for appellee.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   LUCK, J.

Florida statutes allow for the government-sponsored forced sale of real property to pay the overdue property tax bill owed on that property. If, after the money from the sale has been used to pay the property taxes and other government liens, there is a balance - or surplus - the surplus is to be paid to the property's titleholders, lienholders, and mortgagees. But what date must the clerk use to determine which titleholders, lienholders, and mortgagees are entitled to the surplus - the date of the sale or when the court adjudicates disputed claims to the surplus? Because we agree with the trial court that the determination of who is entitled to the surplus is made at the time of the tax deed sale, we affirm the summary judgment.

Factual Background and Procedural History

Ila Weiner purchased a condominium at the Mayfair House on January 5, 2005. About a year later, she took out a mortgage loan on the property with Regions Bank in the amount of $193,000. In September 2007, the loan, which at this time had $198,539.73 owing, was modified. Soon thereafter, Weiner executed the first of three warranty deeds transferring the property to the Mayfair 555 Trust. David Rahimi is the current trustee of this trust.

Taxes on the condominium were not paid, and, on June 12, 2014, the property was sold at a tax deed sale. The sale, after the taxes were paid off, resulted in a surplus of $92,519.89, which remained in the court registry. Global Discoveries, Ltd. is a company that recovers judicial sale surplus proceeds on behalf of mortgagees. The company obtained an assignment from Regions Bank to recover the subject funds. At the time, the amount owed on the modified mortgage loan was $208,618.92.

Two lawsuits were filed to recover the surplus. Rahimi filed a complaint to quiet title, which sought to recover the surplus funds resulting from the tax deed sale. Upon the filing of the quiet title action, the clerk marked the funds "do not disburse." When Global Discoveries filed a statement of claim against the surplus, the clerk refused to disburse the money. Global Discoveries then filed a declaratory action to compel disbursement based on the priority held by the mortgage. Rahimi moved to intervene in the declaratory action and the trial court eventually consolidated the two cases.

While the two cases were pending, on January 14, 2016, Regions Bank recorded a release of mortgage. The release stated that Regions Bank "cancel[led] and discharge[d]" the subject mortgage. Nonetheless, Global Discoveries moved for summary judgment asserting that "discharge of the [m]ortgage ... does not release the prior titleholder's obligation to pay the [l]oan, it only releases the property from serving as collateral for the [l]oan." The trial court concluded that the mortgage lien had priority to the surplus funds regardless of the later release. Thus, it granted summary judgment in favor of Global Discoveries and ordered the clerk to disburse the surplus to the company.

This is the appeal of that order.

Standard of Review

"When considering a motion for summary judgment, the trial court must determine that no genuine issue of material fact exists, and the moving party is entitled to summary judgment as a matter of law. A trial court's entry of summary judgment based on its interpretation of a statute is reviewed de novo." Mesa v. BMW of N. Am., LLC, 904 So.2d 450, 453 (Fla. 3d DCA 2005) (citations omitted).

Discussion

Rahimi contends he is entitled to the surplus funds because at the time the trial court decided the conflicting claims to the surplus Regions Bank was no longer a mortgagee with rights to the proceeds of the tax deed sale. Global Discoveries responds that entitlement to the surplus money is determined at the time of the tax deed sale, and at the time that the Mayfair House condominium was sold, Regions Bank was the mortgagee of record entitled to the surplus. We agree with Global Discoveries based on our reading of the tax deed statutes.

Four tax deed statutes are relevant here. Section 197.582, entitled "Disbursement of proceeds of sale," provides:

(2) If the property is purchased for an amount in excess of the statutory bid of the certificateholder, the excess must be paid over and disbursed by the clerk....The clerk shall distribute the excess to the governmental units for the payment of any lien of record held by a governmental unit against the property, including any tax certificates not incorporated in the tax deed application and omitted taxes, if any.... If, after all liens of governmental units are paid in full, there remains a balance of undistributed funds, the balance shall be retained by the clerk for the benefit of persons described in s. 197.522(1)(a) ... as their interests may appear. The clerk shall mail notices to such persons notifying them of the funds held for their benefit....

§ 197.582(2), Fla. Stat. (2014). Section 197.582 references section 197.522(1)(a):

The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector's statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector's statement, then no notice shall be required.

Id. § 197.522(1)(a). Section 197.522(1)(a) then references section 197.502(4):

The tax collector shall deliver to the clerk of the circuit court a statement that payment has been made for all outstanding certificates or, if the certificate is held by the county, that all appropriate fees have been deposited, and stating that the following persons are to be notified prior to the sale of the property:
(a) Any legal titleholder of record if the address of the owner appears on the record of conveyance of the property to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed, the notice may be mailed to the address of the legal titleholder as it appears on the latest assessment roll.
(b) Any lienholder of record who has recorded a lien against the property described in the tax certificate if an address appears on the recorded lien.
(c) Any mortgagee of record if an address appears on the recorded mortgage or if the mortgagee has designated an address with the Department of State pursuant to s. 655.0201(2), then the notice must be sent to the address on file with the Department of State.

Id. § 197.502(4)(a)-(c). Finally, section 197.552 provides that:

All tax deeds shall be issued in the name of a county and shall be signed by the clerk of the county. The deed shall be witnessed by two witnesses, the official seal shall be attached thereto, and the deed shall be acknowledged or proven as other deeds. Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed, except that a lien of record held by a municipal or county governmental unit, special district, or community development district, when such lien is not satisfied as of the disbursement of proceeds of sale under the provisions of s. 197.582, shall survive the issuance of a tax deed. The charges by the clerk shall be as provided in s. 28.24. Tax deeds issued to a purchaser of land for delinquent taxes shall be in the form prescribed by the department. All deeds issued pursuant to this section shall be prima facie evidence of the regularity of all proceedings from the valuation of the lands to the issuance of the deed, inclusive.

Id. § 197.552. Three times (at least), the tax deed statutes tell us the determination of who is entitled to the surplus is made at the time of the sale.

First time. After the property tax bill and other government liens are paid off, the court clerk holds the "balance" (or surplus) of the tax deed sale "for the benefit of person described in section 197.522(1)(a)." Id. § 197.582(2). Section 197.522(1)(a) refers to "the persons listed in the tax collector's statement pursuant to section 197.502(4)." Id. § 197.522(1)(a). These "persons" must be notified by the court clerk, and the notice must be mailed out "at least 20 days prior to the date of sale." Id. The "persons" receiving notice are the titleholder to the property up for sale, "[a]ny lienholder of record who has recorded a lien against the property," and "[a]ny mortgagee of record." Id. § 197.502(4)(a)-(c).

The clerk, thus, is required to hold the surplus for benefit of the titleholder, lienholders of record, mortgagees of record, and others defined in section 197.502(4). The determination of which titleholder, lienholders, and mortgagees are entitled to the benefit of the surplus is made based on the notice that is sent out twenty days before the sale. Only those titleholders, lienholders, and mortgagees that are of record before the tax deed sale are entitled to notice, and those for whom the clerk is holding the surplus.

Here, it is undisputed that Regions Bank recorded a mortgage on the Mayfair House condominium years before the tax deed sale, and the mortgage had not been released when the property was sold in 2014. In order to be included in the group of people entitled to notice of both the tax sale and the existence of a surplus, the mortgagee must have a mortgage of record prior to the sale. Regions Bank did, so the clerk was holding the surplus for the benefit of Regions Bank (and the others entitled to notice).

Second time. Once there's a "balance" following the sale after paying off the property tax bill and any government liens, "the clerk shall mail notices to such persons notifying them of the funds held for their benefit." Id. § 197.582(2). "[S]uch persons" are those titleholders, lienholders, and mortgagees of record that also received notice at least twenty days prior to the sale. Id. The "excess proceeds shall be presumed payable or distributable on the sale the notice is sent." Id.

The money held by the clerk, in other words, is "presumed payable" to those that are required to receive notice. The notice list includes titleholders, lienholders, and mortgagees of record at the time of the sale.

Here, again, it is undisputed that Regions Bank had a recorded mortgage on the property at the time of the tax deed sale. As one of "the persons" required to be notified, payment to Regions Bank was presumed once the clerk sent the notice following the sale.

Third time. After the sale, once the tax deed is issued to the new owner, "no right, interest, restriction, or other covenant shall survive the issuance of a tax deed." Id. § 197.522. The tax deed statutes "extinguish any covenant that creates a lien or requires a [new owner] to 'expend money for any purpose' for debts that precede the issuance of the tax deed. Both the lien and the [new owner's] liability for the preexisting debt are extinguished upon issuance of the deed." Lunohah Invs., LLC. v. Gaskell, 158 So.3d 619, 621 (Fla. 5th DCA 2013) ; see also A to Z Props., Inc. v. Fairway Palms II Condo. Assoc., Inc., 137 So.3d 453, 456 (Fla. 4th DCA 2014) (same); Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass'n, Inc., 124 So.3d 302, 307 (Fla. 2d DCA 2013) ("Under sections 197.552 and 197.573(2), any lien Nassau may have had for unpaid homeowners association assessments did not survive the issuance of the tax deed."). The prior liens are extinguished in exchange for the prior lienholder's interest in the surplus.

This is what happened to Regions Bank's lien on the Mayfair House condominium. It was extinguished after the property was sold at the tax sale and the deed was issued. In exchange for wiping the title clean of non-government liens, the tax deed statutes give former lienholders an interest in the surplus. The extinguishment and the interest in the surplus are exchanged after the sale, when the deed is issued, and not years later when the dispute over the surplus is litigated.

* * * *

Although the tax deed statutes require that entitlement to the surplus be decided at the time of the sale, this also happens to be good sense. Determining entitlement at the time of the sale allows for an orderly distribution of the surplus from a defined and finite pool of applicants. The clerk can easily determine from the notices who was entitled to the surplus and distribute the money without much administrative hassle and years of litigation. Doing it the other way, as Rahimi suggests, would have the clerk holding onto significant amounts of money waiting for years of litigation to be over. This prolongs the distribution process, adds administrative burdens on the clerks and the courts, and creates uncertainty in the process.

Conclusion

We conclude that the determination of who is entitled to the surplus of a tax sale is made at the time of the sale. Because it is undisputed that Regions Bank had a lien and mortgage interest in the Mayfair House condominium at the time of the sale, we affirm the trial court's summary judgment in favor of Regions Bank on the declaratory judgment and quiet title cases.

Affirmed.

      Rahimi may still have a claim against Regions Bank if the bank improperly kept the surplus money, but that is not the issue in this case. This case is about whether the trial court properly determined that Regions Bank was entitled to the surplus because it held a mortgage of record at the time of the sale. We read the law to be clear and unambiguous that it was.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Kevin J. MURPHY, Appellant, v. Kande K. BLUBAUGH, Appellee.
    Case No. 2D17-1799
    District Court of Appeal of Florida, Second District.
    Opinion filed August 1, 2018
    Kevin J. Murphy, pro se.
    No appearance for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Kevin Murphy, pro se, appeals from a permanent injunction for protection against stalking. The appellee, Kande K. Blubaugh, has neither filed an answer brief nor appeared in this appeal. Murphy, however, has failed to establish that the trial court abused its broad discretion in entering the injunction. Therefore, we must affirm.

FACTS

In March 2017, Blubaugh petitioned for an injunction against Murphy, her next-door neighbor, for protection against stalking. Blubaugh claimed that Murphy had "threatened, harassed, stalked, cyberstalked, or physically abused" her. Specifically, she alleged that Murphy had repeatedly referred to her as a "bitch" and a "piece of shit"; that she had called the Sheriff because Murphy had yelled from his home that she was "trash" and the responding deputy had advised her to get an injunction; and that Murphy "brings his dog in front of my house & barks at my dogs."

The trial court granted Blubaugh a temporary injunction (without notice) and set the matter for hearing. Following the hearing, at which both parties appeared pro se and testified, the court entered a final judgment extending the injunction for one year. The order includes no findings other than "the Court finds, based on the specific facts of this case, that Petitioner is a victim of stalking."

DISCUSSION

A trial court has broad discretion to grant an injunction, and we will not reverse an order granting an injunction absent a clear abuse of that discretion. See Pickett v. Copeland, 236 So.3d 1142, 1143-44 (Fla. 1st DCA 2018). To the extent that the order is based on factual matters, this court will uphold the order if it is supported by competent, substantial evidence. See id. at 1146 ; Thoma v. O'Neal, 180 So.3d 1157, 1159 (Fla. 4th DCA 2015) ("A trial court's order granting a permanent injunction is reviewed for competent substantial evidence."); cf. Selph v. Selph, 144 So.3d 676, 677-78 (Fla. 4th DCA 2014) ("A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence").

Murphy argues that competent, substantial evidence does not, in fact, support the order granting Blubaugh an injunction, but we are unable to evaluate this argument because Murphy failed to include a transcript of the hearing in the record on appeal. Pursuant to Florida Rule of Appellate Procedure 9.200(f)(2) -which provides that "[n]o proceeding shall be determined, because of an incomplete record, until an opportunity to supplement the record has been given"-and bearing in mind that section 784.0485(6)(f), Florida Statutes (2016), requires that all proceedings related to petitions for an injunction for protection against stalking be recorded, this court issued an order directing Murphy to supplement the record on appeal with a transcript of the hearing. Murphy, however, did not respond to this court's order.

"Without a record of the hearing, we cannot conclude that the injunction was not supported by the evidence or that the [trial] court so misconceived the law that reversal is required." Stevens v. Bryan, 805 So.2d 881, 881 (Fla. 2d DCA 2001) ; see also Ricketts v. Ricketts, 790 So.2d 1265, 1265 (Fla. 5th DCA 2001) ("The record on appeal contains no transcript of the hearing held on the permanent injunction. Without a transcript of the hearing, this court cannot assess whether error was committed by the trial court." (citing Ain v. Ain, 778 So.2d 1029 (Fla. 4th DCA 2001) ) ). Accordingly, we are compelled to affirm.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.