author: Gross, J.

text:
    A.W., Appellant, v. HUMANA MEDICAL PLAN, INC., Appellee.
    No. 4D18-866
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    Maria T. Santi of Health and Medicine Law Firm, PLLC, Coral Gables, for appellant.
    Robert D.W. Landon, III and Christina M. Himmel of Kenny Nachwalter, P.A., Miami, for appellee.
   Gross, J.

A.W. appeals a final order of the Agency for Health Care Administration (the "Agency") that dismissed her request for a Medicaid Fair Hearing. We reverse because the Agency's method of notifying A.W. about the hearing did not comply with the dictates of due process.

Appellant is a Medicaid recipient under a plan administered by Humana. Appellant submitted a request to Humana for certain outpatient services. After reviewing the request, Humana sent her a Notice of Adverse Benefit Determination denying her request, determining that the services were "not medically necessary" and were for "elective cosmetic surgery," which Humana indicated was not a covered benefit under the Florida Medicaid rules.

Appellant filed an expedited appeal with Humana. Humana responded with a Notice of Plan Appeal Resolution denying her appeal, noting that "[t]he requested service is cosmetic in nature and is therefore considered not reasonable and necessary." The notice included information on appellant's right to request a State Medicaid Fair Hearing and the procedure for doing so.

Over the telephone, appellant requested a Medicaid Fair Hearing through the Agency's Office of Fair Hearings. She gave out certain personal information over the phone. The Agency acknowledged appellant's request in a letter, an Acknowledgement of Medicaid Fair Hearing Request, which included appellant's name, mailing address, telephone number, and e-mail address, and stated in pertinent part:

Recipient's Designation of Mailing Address or E-mail Address
The mailing address provided above for the Recipient or Recipient's representative is the Recipient's address of record for this fair hearing. Information regarding this fair hearing will be sent to the address above. It is very important to update this address with the Office of Fair Hearings if there is any change. The Recipient or Recipient's representative may request that fair hearing information be provided by e-mail . It is very important to update any change to the email address with the Office of Fair Hearings. If Recipient or Recipient's authorized representative designates an email address, service at the e-mail address will be presumed to be valid service .

(Emphasis added). The letter was provided to appellant solely via e-mail.

Appellant filed a grievance with Humana concerning her ability to access records so she could prepare for her Medicaid Fair Hearing. Humana responded in writing, stating that it does not provide medical records on the online portal and that appellant might be able to request them from the provider. The letter referenced her fair hearing request and indicated that "a hearing has not been scheduled at this time." The letter further stated that if and when a hearing is scheduled, Humana "will create a packet with all the information used in the appeal denial and send it to [her] and to [the Agency]." This letter was sent to appellant via regular U.S. mail.

On January 10, 2018, the Agency issued an order scheduling fair hearing by telephone and prehearing instructions ("Notice of Hearing"). The Notice of Hearing was sent to appellant via e-mail only. Appellant insists that she never received the Notice.

Appellant failed to appear at the scheduled fair hearing. The Agency issued an order to show cause on February 1, 2018, ordering appellant to show cause why her request for a fair hearing should not be dismissed for failure to appear at the scheduled hearing. The order stated that appellant's failure to comply by February 12, 2018, would result in dismissal of her case pursuant to rule 59G-1.100(9)(b)(5)(B) of the Florida Administrative Code. The order was sent to appellant via e-mail only. Appellant says she never received the order.

Appellant did not respond to the order to show cause by the deadline. As a result, the Agency issued a final order on February 19, 2018, deeming appellant's fair hearing request "abandoned" and closing the case. This order was sent to appellant via e-mail and regular U.S. mail. Appellant timely appealed.

Under the Administrative Procedure Act, this Court "shall remand a case to the agency for further proceedings ... or set aside agency action ... when it finds that: ... The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." § 120.68(7)(c), Fla. Stat. (2018) ; see also Schrimsher v. Sch. Bd. of Palm Beach Cty ., 694 So.2d 856, 861 (Fla. 4th DCA 1997) (stating that "[r]eversal is mandated when a procedural error is material to the fairness of the proceedings").

The essence of due process is "reasonable notice and a reasonable opportunity to be heard." Citizens of State v. Fla. Pub. Serv. Comm'n , 146 So.3d 1143, 1154 (Fla. 2014) (quoting Fla. Pub. Serv. Comm'n v. Triple "A" Enter., Inc. , 387 So.2d 940, 943 (Fla. 1980) ). "In the administrative arena, due process requirements are found in chapter 120, Florida Statutes, the Florida Administrative Procedure Act." Id.

Section 120.569, Florida Statutes, provides the procedure to be followed when the substantial interests of a party are determined by an agency. Under this section, "[a]ll parties shall be afforded an opportunity for a hearing after reasonable notice ...." § 120.569(2)(b), Fla. Stat. (2018). The Florida Administrative Code specifies the procedures applicable to Medicaid Fair Hearings. See Fla. Admin. Code R. 59G-1.100 (2018). Pursuant to rule 59G-1.100(5), service is by traditional U.S. mail, unless a Medicaid recipient specifically elects service by e-mail:

(5) Pleadings, Papers, Addresses, and Service.
* * *
(b) A recipient or their authorized representative, must provide and maintain a mailing address of record with the Office, or if they elect service via email , must provide and maintain a valid email address of record with the Office.... Service at the mailing address, or email address, if applicable, of record is presumed to be valid service.

(Emphasis added).

Appellant acknowledges that at the time she requested the fair hearing over the telephone, "she provided requested information during the intake process, including all contact information." Humana argues that the Agency's Acknowledgement of Medicaid Fair Hearing Request is competent, substantial record evidence that appellant elected to receive service by e-mail.

We reject Humana's characterization of the Acknowledgement. The Agency's Acknowledgment form recognizes that an e-mail election has not occurred, meaning that it must occur in a more formal manner than the initial telephone registration. The form states that its recipient "may request that fair hearing information be provided by e-mail "; it further advises that "[i]f Recipient or Recipient's authorized representative designates an e-mail address, service at the e-mail address will be presumed to be valid service." Providing an e-mail address, along with other personal information, during an initial phone call to the Agency does not constitute an "election" of e-mail service contemplated by rule 59G-1.100(5).

There are good reasons why a person would want to receive a hard copy of a document as important as a notice of hearing, rather than relegating a notice into a sea of e-mail spam. The administrative rule requires a recipient to specifically elect service via e-mail before the Agency can rely on that method of service. Nothing in this record even suggests that appellant made such an election, so there has been a "material error in procedure" within the meaning of section 120.68(7)(c), Florida Statutes. For this reason, we reverse the final order and remand to the Agency to reschedule a Medicaid Fair Hearing on the merits.

Warner, J., and Weiss, Daliah, Associate Judge, concur.


source: Caselaw Access Project

author: Ciklin, J.

license: Public Domain

text:
    Nermine HANNA, Appellant, v. PENNYMAC HOLDINGS, LLC; Patricia T. Connor; Unknown Tenant #1, n/k/a Robert Davis; Garden Villas Townhouses Homeowner's Association, Inc.; Village of Palm Springs, Florida ; Unknown Tenant #3, n/k/a Annie Wills; Unknown Tenant #4; Unknown Tenant #2, n/k/a Robert Davis; Any and All Unknown Parties Claiming By, Through, Under and Against The Named Individual Defendant(s) Who Are Not Known To Be Dead or Alive, Whether Unknown Parties May Claim An Interest As Spouses, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    No. 4D18-1400
    District Court of Appeal of Florida, Fourth District.
    [March 27, 2019]
    James R. Ackley of the Law Offices of James R. Ackley, P.A., West Palm Beach, for appellant.
    Jason F. Joseph of the Tromberg Law Group, P.A., Boca Raton, for appellee PennyMac Holdings, LLC.
   Ciklin, J.

Nermine Hanna appeals a final summary judgment of foreclosure and raises several issues. We affirm as to all of them but write to address her claim that there was a genuine issue of material fact as to standing which we find to be unavailing.

Hanna's purchase of the property underlying this appeal arose out of foreclosure proceedings brought against the property's former owner by the homeowner's association. After Hanna purchased the property, the appellee, PennyMac Holdings, LLC ("the bank"), brought a foreclosure suit naming the former owner and Hanna, among others, as defendants, and alleging that the former owner had defaulted on the note. The bank alleged it held the note, which contained an endorsement in blank by the lender.

The former owner consented to the entry of a final judgment of foreclosure, and the bank moved for summary judgment. In Hanna's response to the motion, she argued that the bank did not have standing as holder of the note, because the note was not negotiable. The trial court entered summary judgment in favor of the bank.

Hanna contends the note is not negotiable because it does not contain a promise to pay a fixed amount of principal. See § 673.1041(1), Fla. Stat. (2016) (defining "negotiable instrument" in part as "an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order"); Nagel v. Cronebaugh , 782 So.2d 436, 439 (Fla. 5th DCA 2001) ("In order for an instrument to be negotiable under the UCC, it must contain an unconditional promise to pay a sum certain."). Hanna argues that because the note was not negotiable, the bank could not establish its standing as the holder of the instrument pursuant to section 673.3011(1), Florida Statutes (2016). See Murray v. HSBC Bank USA , 157 So.3d 355, 358 (Fla. 4th DCA 2015) (recognizing that pursuant to section 673.3011, Florida Statutes, the "holder of the instrument" may enforce an instrument, and that pursuant to section 671.201(21)(a), Florida Statutes, a "holder" is a "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession").

The promissory note in this case provides the following in relevant part: "In return for a loan that I have received, I promise to pay U.S. $ 156,800.00 plus any amounts added in accordance with Section 4 (G) below, (this amount is called 'Principal'), plus interest, to the order of the Lender." Hanna argues that the following language appearing at the top of the first page of the note renders it non-negotiable:

THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. MY MONTHLY PAYMENT INCREASES WILL HAVE LIMITS WHICH COULD RESULT IN THE PRINCIPAL AMOUNT I MUST REPAY BEING LARGER THAN THE AMOUNT I ORIGINALLY BORROWED, BUT NOT MORE THAN 125% OF THE ORIGINAL AMOUNT (OR $ 196,000.00 ). MY INTEREST RATE CAN NEVER EXCEED THE LIMIT STATED IN THIS NOTE OR ANY RIDER TO THIS NOTE. A BALLOON PAYMENT MAY BE DUE AT MATURITY.

The paragraph appears to reference a provision of the note related to amortization. Section 4(G) of the note contains the following provision:

(G) Changes in My Unpaid Principal Due to Negative Amortization or Accelerated Amortization
Since my payment amount changes less frequently than the interest rate and since the monthly payment is subject to the payment limitations described in Section 4(F), my monthly payment could be less or greater than the amount of the interest portion of the monthly payment that would be sufficient to repay the unpaid Principal I owe at the monthly payment date in full on the maturity date in substantially equal payments. For each month that the monthly payment is less than the interest portion, the Note Holder will subtract the monthly payment from the amount of the interest portion and will ad[d] the difference to my unpaid Principal, and interest will accrue on the amount of this different at the current interest rate. For each month that the monthly payment is greater than the interest portion, the Note Holder will apply the excess towards a principal reduction of the Note.

Hanna does not address this provision or Section 4(F), which it references. While no Florida state appellate case addresses the negotiability of a note containing provisions related to amortization, a Washington appellate court has squarely addressed the issue and has found that such a provision does not render the note non-negotiable.

In Bucci v. Northwest Trustee Services, Inc. , 197 Wash.App. 318, 387 P.3d 1139, 1141 (2016), the appellant executed an adjustable rate note promising to pay a specified amount "plus any amounts added in accordance with Section 4(G) below, (this amount is called 'Principal'), plus interest." The note also contained a provision that has substantially similar language to the paragraph relied on by Hanna in this appeal. See id. The note contained other provisions relating to changes in the interest rate and monthly payment amount and, as in the instant case, a Section 4(G), which is substantially similar to the Section 4(G) in this case. See id. at 1141-42. Bucci filed suit, seeking declaratory and injunctive relief to prevent a nonjudicial foreclosure and sale. Id. at 1143. The trial court entered summary judgment in favor of the defendant. Id. On appeal, Bucci argued that a negative amortizing note is not a negotiable instrument under Washington's UCC because the note provided for changes in the principal amount. Id. at 1144. The court rejected the argument, reasoning that the note "describes Bucci's obligations on its face," as it defined the principal as "$ 1,530,000.00 plus any amounts added in accordance with 4(G) below ... plus interest," and it "fully discloses how interest accrual may result in negative amortization, depending on the amount Bucci chooses to make as a monthly payment." Id. at 1146. Further:

Negative amortization only occurs under the note if Bucci chooses not to pay the full amount of interest due each month and only if the monthly payment is insufficient to cover the accrued interest. Bucci's note provides for a monthly payment, but Bucci is not limited to paying only the monthly payment amount. The note expressly permits Bucci to make prepayments towards the principal.
37 RCW 62A.3-104(a) defines a negotiable instrument as "an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order." RCW 62A.3-104(a). Because Bucci's note contains an unconditional promise to pay a fixed amount of $ 1.53 million plus any amounts added in accordance with the provisions in Section (4)(G) of the note, it is a negotiable instrument as defined in RCW 62A.3-104(a).

Id.

We find Bucci ' s reasoning persuasive. The relevant provisions of the Washington UCC are substantially similar to the Florida UCC. We reject the contention that the paragraph at the top of the first page of the note, standing alone, renders the note non-negotiable.

Affirmed.

May and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    OFFICE OF the ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, State of Florida, Appellant, v. NATIONWIDE POOLS, INC., a Florida corporation, Nationwide Pools of Dade, Inc., a Florida Corporation, Nationwide Pools of West Palm Beach, Inc., a Florida corporation Nationwide Pools, Gulf Coast, Inc., a Florida corporation, f/k/a Stuart Pools, Inc., Keith Loring Stuart, an individual Lynn Antonucci Stuart, an individual Felicia Josephina Mallia, an individual Terry Lynn Edwards, an individual, and the Kings Highway General Contracting, Inc., a Florida corporation n/k/a National Construction Group, Inc., Appellees.
    No. 4D18-822
    District Court of Appeal of Florida, Fourth District.
    [April 3, 2019]
    Ashley B. Moody, Attorney General, Tallahassee, Amit Agarwal, Solicitor General, Office of the Attorney General, Tallahassee, and Sarah L. Shullman, Bureau Chief, Office of the Attorney General, West Palm Beach, for appellant.
    Claudia T. Pastorius of Claudia T. Pastorius, P.A., Melbourne, Crane A. Johnstone of Johnstone Law, P.A., Fort Lauderdale, and Robyn L. Sztyndor, Fort Lauderdale, for appellees.
   Kuntz, J.

The Office of the Attorney General (OAG) appeals an order granting the defendants' motion to vacate final judgments against them for lack of due process and for failure to state a cause of action in the complaint. We reverse.

Background

The OAG sued defendant Nationwide Pools, Inc., for deceptive trade practices and implementing a surcharge for credit card usage. The OAG asked the court to declare the practices unfair, enjoin the defendants from the pool industry, award equitable relief, award restitution, assess civil penalties, and award attorney's fees.

After filing the complaint, the OAG discovered that the defendants closed Nationwide Pools and formed a new pool company, National Construction Group. The OAG also learned that they transferred Nationwide Pools' assets to National Construction Group. Based on the discovery of the new company, the OAG amended the complaint to name National Construction Group and sought an ex parte temporary injunction and asset freeze against the companies and the individual defendants. The court granted the ex parte temporary injunction. Although Florida Rule of Civil Procedure 1.610(d) allowed the defendants to challenge the ex parte order, they did not do so.

The Corporate Defendants

The corporate defendants did not file an answer to the complaint. At a hearing before the entry of the default judgment, co-defendant Keith Stewart appeared stating he was the president of Nationwide Pools and that he did not "object to the default."

Separately, co-defendant Terry Edwards, owner of National Construction, was granted an enlargement of time to respond to the complaint and to allow him time to find counsel. But, counsel never appeared on National Construction's behalf.

This led to the entry of a default judgment against the corporate defendants.

The Individual Defendants

The individual defendants appeared pro se throughout the proceedings. They individually filed answers and affirmative defenses and attended six hearings. The individuals participated in discovery and sought and obtained partial relief from the court-ordered asset freeze.

The OAG moved for summary judgment and the individual defendants submitted evidence in opposition to the motion. The court entered summary judgment on liability only and set an evidentiary hearing on damages. Before the evidentiary hearing, the court suggested the OAG and the defendants attempt to settle.

The OAG and the individual defendants negotiated consent judgments. After the court entered the judgments, no party appealed.

The Motion to Vacate

Seventeen months after the court rendered the consent judgments, the defendants moved to disqualify the judge based on alleged impermissible ex parte proceedings discovered on the court's public docket. The judge granted the motion.

After the judge disqualified himself, the defendants moved to vacate the consent judgments pursuant to Florida Rule of Civil Procedure 1.540(b)(4), arguing they were denied due process based on the alleged ex parte proceedings. They also argued the OAG's amended complaint failed to state a claim. The newly assigned circuit judge held a three-day evidentiary hearing, agreed with both arguments, and vacated the judgments.

The OAG appeals the court's order vacating the consent judgments.

Analysis

A court may vacate a judgment if the judgment is void. Fla. R. Civ. P. 1.540(b). A judgment is void if entered by a court without subject matter jurisdiction, Tannenbaum v. Shea , 133 So.3d 1056, 1061 (Fla. 4th DCA 2014) (citation omitted), or if the "due process guarantee of notice and a real opportunity to be heard" were violated, Shiver v. Wharton , 9 So.3d 687, 690 (Fla. 4th DCA 2009). Without those circumstances, "errors, irregularities, or wrongdoing in proceedings ... will not render the judgment void." Tannenbaum , 133 So.3d at 1061 (quoting Krueger v. Ponton , 6 So.3d 1258, 1261 (Fla. 5th DCA 2009) ).

The defendants argue they were denied due process because the circuit court held four hearings on an ex parte basis. But they discovered these hearings on the court's public docket, and the case concluded with the defendants agreeing to the entry of consent judgments.

At common law, a consent judgment could be set aside only for clerical error. Swift & Co. v. United States , 276 U.S. 311, 323-24, 48 S.Ct. 311, 72 L.Ed. 587 (1928) (citation omitted). The United States Supreme Court has taken a more liberal view, allowing review when there was "a claim of lack of actual consent to the decree as entered," "fraud in its procurement," or "lack of federal jurisdiction because of the citizenship of the parties." Id. at 324, 48 S.Ct. 311 (internal citations omitted). But other than those limited circumstances, a judgment entered by consent must be affirmed on appeal without considering the merits. Id. And when the court is reviewing a motion to vacate, and not a direct appeal of the judgment, "the scope of the inquiry may be even narrower." Id.

The narrow review afforded when a party consents to judgment exists because "due process rights to notice and hearing prior to a civil judgment are subject to waiver." D.H. Overmyer Co. of Ohio v. Frick Co. , 405 U.S. 174, 185, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972).

We question whether there were due process violations here. But we need not reach that issue. The defendants consented to the final judgment, and "one may not seek review of a judgment entered with his consent nor under which he has accepted benefits." In re Fredcris, Inc. , 101 So.2d 49, 51 (Fla. 3d DCA 1958) (citations omitted); see also Walling v. Miller , 138 F.2d 629, 631 (8th Cir. 1943) ("All errors going to the merits and remediable on appeal are waived by consent to the decree. If the court entering the decree had jurisdiction both of the general subject matter and of the parties, any objection to the merits is reviewable on appeal and is not open on a motion to vacate." (citations omitted) ); O'Hearn v. O'Hearn , 506 A.2d 78, 80 (R.I. 1986) ("By appearing and consenting to the January 1985 decree, defendant had his day in court. Thus, via entering into a consent decree, defendant waived argument and defenses relating to the subject matter underlying the judgment." (citations omitted) ).

Finally, we address the alternative basis for the court's order, the court's conclusion that the OAG's amended complaint failed to state a claim. The court found that the consent judgments were based, in part, on a statute the Eleventh Circuit held unconstitutional. See Dana's R.R. Supply v. Attorney Gen., Fla. , 807 F.3d 1235, 1239 (11th Cir. 2015). The Eleventh Circuit found the statute violated the First Amendment of the United States Constitution. Id.

Here, the circuit court held that "[i]t is well established under Florida Law that a judgment is void if it is based on a statute subsequently declared unconstitutional." But that is not the established rule. Judgments based on illegally enacted statutes are void, but judgments based on legally enacted statutes whose provisions violate the Constitution are voidable. Green v. State , 839 So.2d 748, 752 (Fla. 2d DCA 2003) (citing B.H. v. State , 645 So.2d 987, 995 (Fla. 1994) ), quashed on other grounds , 887 So.2d 1089 (Fla. 2004).

Assuming for purposes of this opinion that the statute violated the First Amendment, the statute was not improperly enacted. Instead, it was a legally enacted statute whose provisions violate the Constitution. As a result, the judgment would have been voidable. Because Rule 1.540(b) allows a court to vacate only void judgments, the court erred in vacating the consent judgments on this basis.

Conclusion

The defendants agreed to the consent judgments. This precluded the due process challenges they raised to events that occurred before they consented to judgment. As a result, we reverse the court's order vacating the consent judgments and remand with instructions to reinstate them.

Reversed and remanded.

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

      Unlike the corporate defendants, an individual may defend himself or herself without an attorney. See Punta Gorda Pines Dev., Inc. v. Slack Excavating, Inc. , 468 So.2d 438, 439 (Fla. 2d DCA 1985) ("A corporation must be represented by an attorney when it appears in the courts of the State of Florida." (citations omitted) ).


author: Weiss, Daliah H., Associate Judge.

text:
    William David HAHN, Appellant, v. Erica HAHN, Brooke Hahn, Alan Weinstein, as Trustee, Wayne Kaplan, and Wayne Kaplan, P.A., Appellees.
    No. 4D17-3919
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Meah Rothman Tell of Meah Rothman Tell, P.A., Lauderhill, for appellant.
    John P. Seiler and Steven A. Wahlbrink of the Law Offices of Seiler, Sautter, Zaden, Rimes & Wahlbrink, Fort Lauderdale, for appellees Erica Hahn and Brooke Hahn.
    Wayne Kaplan of Wayne Kaplan, P.A., Boca Raton, for appellees Wayne Kaplan and Wayne Kaplan, P.A.
   Weiss, Daliah H., Associate Judge.

Appellant raises multiple points on appeal. Points one, two, and five, as numbered in appellant's brief, pertain to Erica and Brooke Hahn. Points three, four, six, and seven address Wayne Kaplan and Wayne Kaplan, P.A. On all issues involving the Hahns, we affirm without discussion. On the remaining issues concerning Wayne Kaplan and Wayne Kaplan, P.A., we dismiss the appeal due to the pendency of a counterclaim in the lower court. See Mendez v. W. Flagler Family Ass'n , 303 So.2d 1, 5 (Fla. 1974).

Affirmed in part; dismissed in part .

Warner and Gross, JJ., concur.


author: Per Curiam.

text:
    Maria S. COHEN f/k/a Maria Richter, Individually and as Successor Co-Trustee and Lisa Berman, Individually and as Successor Co-Trustee, Appellants, v. Gabriel SCARNATO and Portia M. Rindosh n/k/a Portia M. Riccio, Appellees.
    No. 4D18-3654
    District Court of Appeal of Florida, Fourth District.
    [April 10, 2019]
    Casey W. Mills of Casey W. Mills, P.A., Fort Lauderdale, for appellants.
    Gabriel Scarnato, Palm Coast, pro se.
   Per Curiam.

In this non-final appeal, we review an order transferring two consolidated trust disputes from Broward County to Flagler County under section 47.122, Florida Statutes (2018). We reverse for two reasons: first, because there was insufficient evidence that a change of venue was necessary, and second, because the trial court failed to consider whether Flagler County was a proper venue for the trust cases.

In 1992, Portia Rindosh executed a will and revocable trust in Broward County. She appointed herself as trustee and named her son, daughter, and granddaughter as beneficiaries under the trust. She later resigned as trustee, at which time her daughter and granddaughter became successor co-trustees under the terms of the trust.

The trust disputes began in 2016, after Portia amended the trust to terminate her daughter and granddaughter as co-trustees and name her son as the sole beneficiary of the trust. The daughter and granddaughter filed a complaint against Portia and her son in Broward County, seeking a declaratory judgment that Portia lacked the capacity to amend the trust.

Consequently, Portia filed a separate complaint against her daughter and granddaughter alleging that they had mismanaged the trust. The two complaints were consolidated.

While the trust disputes were pending in Broward County, Portia executed a new will and trust in Flagler County. She expressly revoked the 1992 trust and thereby excluded her daughter and granddaughter as beneficiaries. Portia died a few months later, and her son filed a petition for administration of the new will in Flagler County. The daughter and granddaughter objected to this petition and deposited the 1992 will in Broward County. Neither will has been admitted to probate.

Thereafter, the son moved to transfer the Broward County trust disputes to Flagler County. The trial court recognized that Broward County was a proper venue for the trust disputes but decided that they should be transferred "in the interest of justice and judicial economy" because Flagler County was the only proper venue for the administration of Portia's estate. The daughter and granddaughter appealed.

Section 47.122 provides that "[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought." The party seeking a transfer under this section must submit affidavits or other evidence to show that a change of venue is necessary for the convenience of the parties or witnesses or in the interest of justice. See Cardelles v. Catholic Health Servs., Inc. , 14 So.3d 1025, 1027 (Fla. 4th DCA 2009). Even after this showing is made, a court may transfer venue only to a court where the action could have been filed initially. See McGee v. McGee , 145 So.3d 955, 958 (Fla. 1st DCA 2014) ; Vitale v. Vitale , 994 So.2d 1242, 1243 (Fla. 4th DCA 2008).

We generally review an order transferring venue under section 47.122 for an abuse of discretion. See Vitale , 994 So.2d at 1243 ; Weinberg v. Weinberg , 936 So.2d 707, 708 (Fla. 4th DCA 2006). But "where there are no disputed facts and the venue order turns on a question of law," our review is de novo. Weinberg , 936 So.2d at 708.

Here, the trial court erred in transferring the trust disputes to Flagler County because there was insufficient evidence presented to show that a change of venue was necessary for the convenience of the parties or witnesses or in the interest of justice. See Cardelles , 14 So.3d at 1027. The son primarily argued that the trust disputes should be transferred because they cannot be resolved until the Flagler County court determines whether the new will and trust are valid. However, this argument is unpersuasive because any potential injustice can be avoided by abating the trust cases until the will contest is resolved. See Fla. R. Civ. P. 1.260(a)(1) ; Schaeffler v. Deych , 38 So.3d 796, 799-800 (Fla. 4th DCA 2010).

The trial court also erred in transferring the trust disputes to Flagler County without considering whether they could have been filed in that venue initially. In its order the trial court primarily relied on our holding in Pasquale v. Loving , 82 So.3d 1205, 1207 (Fla. 4th DCA 2012), that when a trust is incorporated by reference into a will, a party cannot "challenge the validity of the trust without also contesting the will." However, the court's reliance on Pasquale was misplaced because venue was not at issue there. See id. No other basis for venue in Flagler County can be determined from this record.

For these reasons, we reverse the trial court's order transferring venue to Flagler County and remand for further proceedings consistent with this opinion.

Reversed and remanded .

May, Levine and Klingensmith, JJ., concur.


text:
    Jonathan LACUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1300
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In 1999, Jonathan Lacue was found guilty and convicted of first-degree murder and robbery with a firearm. He was sentenced to concurrent terms of life imprisonment for the first-degree murder conviction and 15 years' imprisonment for the robbery conviction.

In 2012, Lacue moved for post-conviction relief based on Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Because Lacue was 17 years old when he committed the crime, he argued that his life sentence violated the Eighth Amendment. The circuit court denied the motion, but on appeal, this court reversed and remanded. Lacue v. State , 183 So.3d 1110 (Fla. 4th DCA 2015). On remand, Lacue was resentenced to life imprisonment.

Lacue raises five issues on appeal, and we affirm without comment with one exception.

Lacue argues-and the state concedes-that the trial court should have included language in the resentencing order providing for sentence review after 25 years as required by section 921.1402(2)(a). We accept the concession and remand for the trial court to provide for sentence review. See § 775.082(1)(b)3., Fla. Stat. (2017) ("The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s. 921.1402(2)(a) or (c)."); Cook v. State , 225 So.3d 268, 269 (Fla. 4th DCA 2017) (affirming the sentence but remanding for the trial court to enter the written finding required by the applicable provision of section 775.082, Florida Statutes ).

Affirmed and remanded with instructions.

May, Ciklin and Klingensmith, JJ., concur.


author: Levine, J.

text:
    Ernest CARNAHAN, Appellant, v. Robert W. NORVELL, Appellee.
    No. 4D17-3948
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Nicholas A. Shannin and Carol B. Shannin of Shannin Law Firm, P.A., Orlando, and Joseph H. Graves and Matthew M. Thomas of Graves Thomas Injury Law Group, Vero Beach, for appellant.
    Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, P.A., Miami, for appellee.
   Levine, J.

Appellant was driving along an unlit road at 4:45 a.m. when he collided with cows that were on the roadway. The nearby gate that enclosed the cows' pasture was found open. Appellant sued appellee, the cows' owner, under the Warren Act, which establishes liability for owners of livestock. Under the Warren Act, an owner is liable for injuries due to livestock that come upon public roads due to the owner's intentional, willful, careless, or negligent actions in permitting the livestock to "stray upon" public roads. See § 588.15, Fla. Stat. (2012). Appellant claimed that the pasture's gate was left unlocked and unlatched, which allowed the livestock to escape and come upon the unlit road he was driving on. After a trial, the jury found that appellee was not liable under the Warren Act.

Appellant claims that the trial court erred in granting a motion in limine barring the introduction of evidence pertaining to prior instances where appellee's livestock had escaped their confinement. We find that the trial court did not err in granting the motion in limine. We also find the other issues raised to be without merit and affirm without further discussion. Thus, we affirm the judgment below.

This court reviews a trial court's decision to admit or exclude evidence for abuse of discretion. Sims v. Brown , 574 So.2d 131, 133 (Fla. 1991). Relatedly, whether an incident is sufficiently similar to be admissible as prior incident evidence is within the trial court's discretion. Stephenson v. Cobb , 763 So.2d 1195, 1196 (Fla. 4th DCA 2000).

Pre-trial discovery mentioned multiple instances of appellee's cows escaping their pastures. During his deposition, appellee recounted several such incidents in general that had occurred over his thirty years raising cows in the area. The reasons for the cows' escapes were numerous, including hurricanes, hunters, felled trees, neighbors, and vandals, among other causes. Notably, none of the previous escapes were the result of appellee leaving a gate unlocked or unlatched.

Appellee subsequently moved to limit the introduction of any evidence pertaining to previous times his cows had escaped from their enclosed pastures. At the hearing on this motion, the parties discussed only one specific escape: an incident where appellee's cows escaped from a different pasture onto Carlton Road. Based on appellee's deposition testimony, the cows had left the pasture when dogs belonging to hunters on a neighbor's property scared the cows, causing them to run through or over the fence encircling their pasture. Only then did those cows make their way onto a road and become involved in a car collision.

Appellant only brought to the trial court's attention the facts and circumstances regarding the Carlton Road incident. Appellant did not proffer evidence of any other incidents. Further, neither party even argued any of the other prior incidents at the hearing, nor did appellant file any response to the motion challenging the exclusion of all those incidents from evidence. The trial court granted appellee's motion in limine, preventing appellant from introducing evidence of any prior escapes at trial.

Appellant, by failing to proffer or argue as to any of the incidents aside from the one that occurred on Carlton Road, waived his ability to contest the exclusion of any incident not specifically proffered in the trial court. See Aarmada Protection Sys. 2000, Inc. v. Yandell , 73 So.3d 893, 898 (Fla. 4th DCA 2000) ("When the trial court excludes evidence, an offer of proof is generally necessary if the claimed evidentiary error is to be preserved for appellate review. Alternatively, if an adequate record of excluded evidence has been made at the hearing on the motion in limine, it is not necessary to make an offer of proof at trial.") (citation omitted). Appellant neither proffered evidence as to the other incidents, nor did he argue against their exclusion at the motion in limine hearing. As such, he failed to preserve and cannot challenge the exclusion of any incident except the Carlton Road incident. See id.

As to the evidence regarding the Carlton Road escape, appellant preserved his argument, as evidenced by the record of the motion in limine hearing. See id. However, because that escape was not similar to the circumstances that led to appellant's crash and not relevant to the theory of negligence pursued at trial, the trial court properly excluded the evidence.

Another Warren Act case, Prevatt v. Carter , 315 So.2d 503 (Fla. 2d DCA 1975), is instructive. In Prevatt , like in this case, the appellant was driving down a dark road and collided with a black cow. Id. at 504. Importantly, the Second District there noted-and we reiterate here-that the Warren Act is not a "strict liability" statute, but instead hinges upon a showing of negligence:

The mere fact that the defendant's [livestock] were running at large upon the public highway does not justify an inference that the defendant intentionally, willfully, carelessly or negligently permitted them to so run at large on the highway in violation of [the Warren Act].

See id. (quoting Hughes v. Landers , 215 So.2d 773, 775 (Fla. 2d DCA 1968) ) (alterations added).

In Prevatt , the court determined that the appellant should have been permitted to introduce evidence that the appellee knew that his cows had gotten out of the same pasture before as evidence of appellee's negligence. Id. at 505-506. However, the instant case differs from Prevatt in several ways. First, the Carlton Road incident simply did not tend to prove or disprove appellee's negligence. Appellee had nothing to do with that escape; instead, it was dogs belonging to hunters who were on a neighboring property. As the Second District noted in Prevatt , the mere fact that livestock escaped does not establish negligence. See id. at 503. Rather, there must be a nexus to negligence. The Carlton Road escape, where third parties caused appellee's cows to leave their pasture, did not demonstrate any negligence by appellee, even if those escaped cows ultimately were involved in a car accident.

Additionally, appellant pursued a specific theory of negligence below: that appellee was negligent in maintaining his gate, which allowed the cows to escape and collide with appellant's car. In light of this theory, the only livestock escape evidence appellant identified and proffered to the trial court was not similar incident evidence that would be probative and consequently admissible. The Carlton Road incident involved a fence; the instant case involves a gate. The Carlton Road incident occurred on a different pasture and the cows escaped onto a different road. Finally, as discussed above, the Carlton Road breakout was precipitated by the acts of third parties, not appellee, so it did not tend to prove "careless or negligent" action. Due to these key differences, the trial court did not abuse its discretion in excluding the Carlton Road incident evidence. See Stephenson , 763 So.2d at 1196 (observing that determinations of whether incidents are sufficiently similar should be left to the sound discretion of the trial court).

Finally, any error in excluding the prior incident evidence was harmless. As detailed above, none of the proffered evidence actually went to negligence; as such, its exclusion could not have reasonably contributed to the verdict. See Special v. West Boca Med. Ctr. , 160 So.3d 1251, 1256 (Fla. 2014). We therefore affirm.

Affirmed .

Taylor and Ciklin, JJ., concur.


text:
    Johnny DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1677
    District Court of Appeal of Florida, Fourth District.
    [April 17, 2019]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Chavis v. State , 247 So.3d 9 (Fla. 4th DCA 2018).

Gerber, C.J., Conner, J., and Metzger, Elizabeth A., Associate Judge, concur.


author: Damoorgian, J.

text:
    German FLOREZ, Appellant, v. BROWARD SHERIFF'S OFFICE and Howard Forman, in his official capacity as Clerk of Courts for Broward County, Appellees.
    No. 4D18-1189
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Ryan C. Tyler, Mario R. Giommoni and Kimberly L. Boldt of Boldt Law Firm, Boca Raton, and Adam T. Dougherty of Dougherty Law Firm, P.A., Fort Lauderdale, for appellant.
    Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, for appellees.
   Damoorgian, J.

Appellant, German Florez, sued the Broward Sheriff's Office ("BSO") for negligence and false arrest after BSO arrested and detained Appellant for ten days based on a previously executed warrant. In his complaint, Appellant alleged that although he was initially served with the warrant by BSO while either in court or inmate housing, BSO failed to follow its own protocol and, as a result, erroneously entered the executed warrant as active in its system. The court dismissed Appellant's lawsuit with prejudice, citing to case law establishing BSO did not owe Appellant a duty to ensure that the warrant was properly recorded in its system. We agree that BSO lacked such a duty and, therefore, Appellant could not state a cause of action for negligence. However, we do not agree that this lack of duty precluded Appellant from alleging a cause of action for the intentional tort of false arrest and, therefore, reverse and remand for further proceedings.

Analysis

As Appellant's lawsuit was against a governmental agency, our analysis must necessarily begin with an overview of governmental tort liability. Generally speaking, the sovereign is immune for tort liability unless such immunity is expressly waived. Town of Gulf Stream v. Palm Beach Cty. , 206 So.3d 721, 725 (Fla. 4th DCA 2016) ("Sovereign immunity protects the sovereign from being sued without its consent."). To that end, "[t]he State of Florida has waived sovereign immunity in tort actions for any act for which a private person under similar circumstances would be held liable." Henderson v. Bowden , 737 So.2d 532, 534-35 (Fla. 1999) (citing Art. X, § 13, Fla. Const.; § 768.28 Fla. Stat. (1995) ). However, before considering whether sovereign immunity bars a lawsuit, courts must first determine if there is tort liability to be immune from. See Wallace v. Dean , 3 So.3d 1035, 1044-45 (Fla. 2009) ; Pollock v. Fla. Dep't of Highway Patrol , 882 So.2d 928, 932 (Fla. 2004).

Negligence

In order to establish that a defendant is liable for the tort of negligence, the claimant must establish that the defendant owed it a duty of care, which it breached, thereby causing the claimant harm. Williams v. Davis , 974 So.2d 1052, 1056 (Fla. 2007). The government's duties for purposes of negligence are dictated by the common law and statute. Trianon Park Condo. Ass'n v. City of Hialeah , 468 So.2d 912, 917 (Fla. 1985) ("[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct."). Further, "[t]he responsibility to enforce the laws for the good of the public cannot engender a duty to act with care toward any one individual, unless an official assumes a special duty with regard to that person." Pollock , 882 So.2d at 935.

With these parameters in mind, it is well established that the government does not owe individual citizens a common law duty to convey accurate information or maintain accurate records. Glenney v. Forman , 936 So.2d 660, 662 (Fla. 4th DCA 2006) (noting that "this court has not recognized a duty of governmental officials to maintain records or issue paperwork for the benefit of an individual or particular group of individuals"); City of Dunedin v. Pirate's Treasure, Inc. , 255 So.3d 902, 905 (Fla. 2d DCA 2018) (holding that a city did not "owe a duty to convey accurate information"). Therefore, absent the government's assumption of a special duty, the government's failure to maintain accurate records cannot form the basis of a negligence suit by a person affected by erroneous record keeping. Id. This is true even if the agency did not follow its own procedures. Pollock , 882 So.2d at 936-37.

For example, in the factually similar Lovett v. Forman , 883 So.2d 319, 320 (Fla. 4th DCA 2004), a defendant sued both the clerk of court and the sheriff's office in negligence after the clerk failed to make a computer entry which would have shown a warrant for the defendant's arrest was withdrawn. Based on the clerk's negligent record keeping, the defendant was wrongfully arrested and incarcerated for two months. Id. On appeal, this Court held that the defendant could not maintain a cause of action against the clerk or sheriff based on the clerk's error because the maintenance of records is a function undertaken by the government for the public generally and does not create a special duty. Id. at 320-21 ; see also Moore v. Dep't of Corr. , 833 So.2d 822, 823-24 (Fla. 4th DCA 2002) (holding no special duty owed which would permit recovery against government where individual was wrongfully arrested by another agency because corrections officer negligently failed to revoke outstanding warrant for her arrest after learning her probation was terminated); Holodak v. Lockwood , 726 So.2d 815, 816-17 (Fla. 4th DCA 1999) (holding clerk did not owe individual drivers special duty of care to properly and timely record traffic violation fine payments different from duty owed the general public to keep proper records); Layton v. Fla. Dep't of Highway Safety & Motor Vehicles , 676 So.2d 1038, 1041 (Fla. 1st DCA 1996) (holding that a defendant could not maintain a cause of action for negligence against the DMV for its failure to accurately maintain her driving records resulting in her wrongful arrest because "the maintenance of DHSMV records is a function undertaken by the government for the public generally and that the duty to perform this function accurately runs to the public and not to individual licensed drivers").

Here, Appellant did not allege that BSO's negligence took place in the context of a special duty. Rather, Appellant alleged that BSO was negligent in "failing to properly record [Appellant's] voided warrant." This negligence did not implicate any duty separate and distinct from the duty owed by BSO to the public at large. Therefore, Appellant cannot allege a valid cause of action for negligence against BSO and the court properly dismissed this count.

False Arrest

The tort of false arrest is an intentional tort and, therefore, does not necessitate the same showing of duty requisite to a negligence claim. Jibory v. City of Jacksonville , 920 So.2d 666, 667 (Fla. 1st DCA 2005). Instead, it requires proof of "1) the unlawful detention and deprivation of liberty of a person 2) against that person's will 3) without legal authority or 'color of authority' and 4) which is unreasonable and unwarranted under the circumstances." Montejo v. Martin Mem'l Med. Ctr., Inc. , 935 So.2d 1266, 1268 (Fla. 4th DCA 2006).

When a claimant is arrested by an agency based on a facially sufficient and validly issued arrest warrant, that person cannot satisfy the elements of a false arrest claim because the warrant confers "legal authority" on the arresting agency.

Willingham , 929 So.2d at 50. This is true even if the warrant was erroneously issued by another entity but still appears to be facially valid to the arresting agency. Id. (court properly granted summary judgment in arresting agency's favor on arrested person's false imprisonment claim when the arresting agency effectuated the arrest pursuant to a warrant that was erroneously issued by a court in another county); Andrews v. Fla. Parole Comm'n , 768 So.2d 1257, 1263 (Fla. 1st DCA 2000) (holding that the court properly dismissed a false imprisonment claim against the Department of Corrections after it detained the defendant pursuant to a warrant erroneously issued by another entity because "[the Department of Corrections] was entitled to accept the warrants as lawful, as they were regular on their face and issued by a legal body having authority to issue warrants"). The reason for this appears to be that law enforcement does not have the discretion to disregard a facially valid warrant issued by an entity authorized to issue warrants. Eslinger v. Shields , 91 So.3d 185, 186 (Fla. 5th DCA 2012) (holding that an arresting agency was not liable for false imprisonment when it arrested the defendant pursuant to a warrant erroneously issued by an entity in another jurisdiction because the arresting agency "had no obligation to look behind the warrants and no discretion in executing them").

However, if the warrant is void and thus facially invalid due to the conduct of the arresting agency, the analysis is different. In the factually similar Jibory , a plaintiff was arrested by the City of Jacksonville ("the City") on an outstanding warrant and then arrested by the City on the same warrant two years later. 920 So.2d at 666-67. The subsequent arrest was a result of the City's failure to delete the warrant from its system after the first arrest. Id. at 667. The court held that under these circumstances, the plaintiff could allege a cause of action for false arrest/imprisonment against the City. Id. In arriving at this conclusion, the Jibory court pointed out that "this case does not present a situation where appellee was entitled to accept the warrant as lawful because it was issued by another entity having the legal authority to issue warrants." Id. "Rather, this case presents a situation where appellee, through its own employees, failed to delete the warrant from its computer records after appellee's officers executed it [two years prior]." Id. at 668.

In the instant case, Appellant alleged that BSO served Appellant with the warrant either while he was in court or in inmate housing. BSO later arrested him on the same warrant due to BSO employee error. Thus, based on the facts of the complaint as pled, the alleged false arrest was the result of a warrant which was void per BSO's own actions. Accordingly, under the authority of Jibory , Appellant adequately alleged that BSO committed the intentional tort of false arrest as the arrest was not made pursuant to a facially valid warrant and, thus, was not "lawful."

Having determined that there was potential tort liability for false arrest, the next question is whether sovereign immunity bars such liability. On this point, Jibory is also instructive and provides that sovereign immunity does not bar a false arrest suit against the government. Id. at 667 (citing Sego v. City of Fernandina Beach , 771 So.2d 1235, 1235 (Fla. 1st DCA 2000), for the proposition that sovereign immunity does not preclude an action for false arrest); Dickinson v. Gonzalez , 839 So.2d 709, 713 (Fla. 3d DCA 2003) (citing Lester v. City of Tavares , 603 So.2d 18, 19 (Fla. 5th DCA 1992), for the proposition that there is no sovereign immunity for false arrest); Thomas v. Fla. Game & Fresh Water Comm'n , 627 So.2d 541, 542 (Fla. 2d DCA 1993) ("Sovereign immunity does not bar an action for false arrest."). Therefore, the court erred in dismissing Appellant's false arrest count.

Affirmed in part, reversed in part, and remanded.

Conner and Forst, JJ., concur.

      The tort of false arrest is often used interchangeably with the tort of false imprisonment and, thus, case law discussing false imprisonment is instructive to the tort of false arrest and vice versa. Willingham v. City of Orlando , 929 So.2d 43, 49-50 (Fla. 5th DCA 2006) (recognizing that the torts of false imprisonment and false arrest are "often 'distinguishable in terminology only' " and are treated as "the same tort when the issue involves an arrest and detention by a law enforcement officer" (quoting Johnson v. Weiner , 155 Fla. 169, 19 So.2d 699, 700 (Fla. 1944) ) ).

      As outlined in the Second Restatement of Torts, " '[d]uty' is rarely used in dealing with the invasions of legally protected interests by acts which are intended to invade them." Restatement (Second) of Torts § 4 cmt. b ( Am. Law Inst. 1965). As explained by a North Carolina court:
      All [a]ctionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The law may impose that duty by statute, or else generally by operation of law under application of the basic rule of the common law which requires one to exercise due care when performing an undertaking and not to endanger the person or property of others. By contrast, the intentional tort of battery is not premised on the existence of a duty between the parties.
      Lynn v. Burnette , 138 N.C.App. 435, 531 S.E.2d 275, 279 (2000) (internal citations and quotations marks omitted). See also Gipson v. Kasey , 214 Ariz. 141, 150 P.3d 228, 231 n.2 (2007) ("Intentional torts, in contrast [to negligence], do not require proof of a predicate duty of care.").

      The Willingham court incorrectly discussed the lawfulness of the arrest pursuant to a warrant in terms of duty. 929 So.2d at 49-50. However, the import of its holding was that an arrested person cannot maintain a false arrest or imprisonment claim against a law enforcement agency when the arrest is made pursuant to a "facially sufficient and validly issued arrest warrant[ ]."


text:
    Terrance J. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1471
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Maryellen M. Farrell, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Quarrells v. State , 641 So.2d 490 (Fla. 5th DCA 1994) ; Gilbert v. State , 547 So.2d 246 (Fla. 4th DCA 1989).

Warner, Gross and Forst, JJ., concur.


text:
    Raul REYNOSO, Appellant, v. CITY OF BOCA RATON, Appellee.
    No. 4D18-2427
    District Court of Appeal of Florida, Fourth District.
    [April 24, 2019]
    Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, for appellant.
    Laura K. Wendell, Daniel L. Abbott and Richard B. Rosengarten of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed . See Baker v. Airguide Mfg., LLC , 151 So.3d 38 (Fla. 3d DCA 2014).

May, Ciklin and Klingensmith, JJ., concur.


author: Metzger, Elizabeth A., Associate Judge.

text:
    Don DU PERAULT, Appellant, v. Tatiana DU PERAULT, Appellee.
    No. 4D18-1226
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Troy W. Klein of the Law Office of Troy W. Klein, P.A., West Palm Beach, for appellant.
    Mark C. A. Jennings of Mark C. A. Jennings & Associates LLC, Atlanta, Georgia, for appellee.
   Metzger, Elizabeth A., Associate Judge.

Don Du Perault ("Husband") appeals the trial court's final judgment of dissolution. Specifically, the Husband appeals the court's value determination pertaining to certain marital assets within the final judgment. The Husband also appeals the attorneys' fee provision applicable to future enforcement actions contained within the final judgment. We affirm the court's determination regarding the value of certain assets without comment. However, we reverse the court's inclusion of an attorneys' fee provision within the final judgment for future enforcement actions.

After a final hearing on the Husband's petition for dissolution of marriage, the trial court entered its final judgment of dissolution. The judgment addressed attorneys' fees, noting each party was to "pay their own attorneys' fees incurred in this initial proceeding." The judgment went on to state "in the event either party seeks enforcement of this Final Judgment or Parenting Plan for the other party's failure to comply, the defaulting party shall be liable to the non-defaulting party for all fees and costs incurred as a result of the default and enforcement of same."

Section 61.16, Florida Statutes (2018), governs the issue of entitlement to attorney's fees in postdissolution enforcement proceedings. Powers v. Powers , 193 So.3d 1047, 1048 (Fla. 2d DCA 2016). Entitlement to fees, pursuant to section 61.16, requires inquiry into the parties' need and ability to pay. Id. Other relevant factors may be considered in assessing fees, however, "the financial resources of the parties are the primary factor to be considered." Rosen v. Rosen , 696 So.2d 697, 700 (Fla. 1997).

In this case, because the final judgment contained a fee provision for future enforcement actions which failed to account for the parties' need and ability to pay, we reverse and remand to the trial court for correction of the enforcement fee provision within the final judgment. See Griffin v. Griffin , 276 So.2d 211, 212-13 (Fla. 4th DCA 1973).

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

Gerber, C.J., and Conner, J., concur.


text:
    Arturo E. MATTA a/k/a Arturo Matta and Maria A. Matta a/k/a Maria Matta, Appellants, v. WILMINGTON SAVINGS FUNDS SOCIETY, FSB, d/b/a Christiana Trust, not individually, but as Trustee for Petrium Mortgage Acquisition Trust, Appellee.
    No. 4D18-2711
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
    Adam J. Knight and Jacqueline Simms-Petredis of Burr & Forman LLP, Tampa, for appellee.
   Per Curiam.

Affirmed . See Brown v. M & T Bank , 183 So.3d 1270 (Fla. 5th DCA 2016) ; State St. Bank & Tr. Co. v. Badra , 765 So.2d 251 (Fla. 4th DCA 2000).

Taylor, Levine, JJ., and Rowe, Cymonie, Associate Judge, concur.


author: Warner, J.

text:
    Harold Gunnar JOHANSSON, Appellant, v. Jacquelyn JOHANSSON, n/k/a Jacquelyn Putt, Appellee.
    No. 4D18-2112
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Harold Gunnar Johansson, Boynton Beach, pro se.
    Jacquelyn Johansson, n/k/a Jacqueline Putt, Palm City, pro se.
   Warner, J.

Appellant challenges the circuit court judgment, adopting findings of a general magistrate, that denied his petition for modification of child support. He claims that the court erred in finding no substantial change in circumstances due to the decrease of his income, and it further erred in failing to impute income to the former wife, whom he contended was voluntarily underemployed. The trial court did not follow section 61.30, Florida Statutes (2016), in the modification proceeding. No child support guidelines calculation worksheet was prepared, nor did the court determine the parties' respective incomes or determine whether the former wife was voluntarily underemployed. Without such findings, we cannot perform meaningful appellate review. We therefore reverse for the trial court to make the appropriate findings and calculations required by section 61.30.

In the final judgment of dissolution of the parties' marriage, the former husband was directed to pay $ 3000 per month in bridge-the-gap alimony to transition the wife from married life to single life. The court found that the former wife did not need rehabilitative alimony because the wife had been employed full-time prior to the five-year marriage and was fully employable thereafter. The court did not find that she needed to stay home with the parties' children. It ordered the former husband to pay $ 1570.23 per month in child support for his two children. In this record, there is no explanation of how the child support obligation was calculated. Several years later, the parties stipulated to a modification regarding time-sharing, medical expenses of the children, and the dependency exemption for tax purposes. Child support was not recalculated.

After the husband's income from his employment decreased, he petitioned the court for a modification in child support and other matters not related to the issues in this appeal. He alleged both that his own income had been reduced by more than fifteen percent and that no income had been imputed to the former wife at the time that the child support calculations were made originally. He contended that the former wife was now employed, and the child support should be recalculated. A general magistrate heard the evidence, and it made findings of fact and recommendations, which the trial court adopted. The court found that while the husband's income had decreased, he no longer had the monthly bridge-the-gap alimony payment, which increased his net income. Because of this, the court found that no substantial change of circumstances occurred. The court never determined the former husband's current income. As to the former wife, the court found that she was employed on a project basis with a church, making $ 18 per hour for design services. The evidence showed that this was a part-time job. The court made no findings as to whether she was voluntarily underemployed. It made no findings at all as to her income. It found simply "that there has not been a significant change of circumstances to warrant a modification of the former Husband's child support obligation." From this order, the former husband appeals.

The court's decision on modification of alimony is reviewed under the abuse of discretion standard. Albu v. Albu , 150 So.3d 1226, 1228 (Fla. 4th DCA 2014) ; Wood v. Blunck , 152 So.3d 693, 695 (Fla. 1st DCA 2014). However, statutory principles limit that discretion. First, "[e]ach parent has a fundamental obligation to support his or her minor or legally dependent child." § 61.29(1), Fla. Stat. (2016). Second, the child support guidelines may provide the basis for a finding of substantial change of circumstances for modification of an existing order of support where the monthly obligation would change by fifty dollars or fifteen percent, whichever is greater. § 61.30(1)(b), Fla. Stat. (2016). Third, the child support guidelines analysis under section 61.30 applies to modification proceedings. § 61.30(1)(a), Fla. Stat.; see Wilcox v. Munoz , 35 So.3d 136 (Fla. 2d DCA 2010). Where the essential findings necessary to calculate child support pursuant to the guidelines are missing from the record, the appellate court cannot properly perform its review function. See Brown v. Brown , 220 So.3d 560, 561-62 (Fla. 5th DCA 2017) (reversing child support award because of lack of child support guidelines work sheet and lack of findings regarding parties' respective incomes); Todd v. Guillame-Todd , 972 So.2d 1003, 1007 (Fla. 4th DCA 2008) (concluding that the final judgment was facially erroneous because it did not make any findings as to the net income of each party in calculating child support).

Pursuant to section 61.30(1)(b), a substantial change in circumstance may result from a sufficiently large change in the guidelines support amount. Without the determination of the income of each party, it is unknown whether that threshold was reached in this case.

Furthermore, section 61.30requires the court to impute income to a voluntarily unemployed or underemployed parent, unless the court finds that the parent cannot work due to circumstances beyond the parent's control. Otherwise, income must be imputed in accordance with the statute and the fundamental obligation of each parent to support their children. § 61.29(1), Fla. Stat. The court made no findings on this issue.

As the trial court did not follow the dictates of section 61.30, we reverse and remand for the trial court to make the findings and calculations necessary to properly calculate the child support guideline amount and then to determine whether modification should be granted or denied after the appropriate calculations are made.

Gross and Levine, JJ., concur.


text:
    Kory SOLTIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-598
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Kory Soltis appeals his judgment of guilt and sentence for one count of aggravated assault with a deadly weapon, one count of resisting arrest with violence, one count of felony battery, and one count of culpable negligence. Appellant contends that the trial court erred by failing to make a proper Nelson inquiry after he filed a motion to dismiss his court-appointed counsel. We affirm because Appellant failed to preserve the issue for appellate review.

Appellant's convictions were the result of a no contest plea. Several months prior to the date the court considered Appellant's plea, Appellant filed a pro se motion to dismiss his court-appointed counsel. However, Appellant took no steps to bring his motion to the court's attention despite having the opportunity to do so. Then, at his change of plea hearing, Appellant expressed his satisfaction with the same court-appointed counsel. Under these circumstances, Appellant waived his right to have the trial court conduct a Nelson inquiry. See Hall v. State , 92 So.3d 223, 225-26 (Fla. 4th DCA 2012) (holding that by failing to bring his pro se motion to dismiss counsel to the court's attention and proceeding to trial with the same court-appointed counsel without voicing any objection, the defendant failed to preserve the court's error in failing to conduct a Nelson inquiry); Sheffield v. State , 769 So.2d 493, 493 (Fla. 4th DCA 2000) (same); Kinzie v. State , 696 So.2d 530, 530-31 (Fla. 4th DCA 1997) (same).

Affirmed.

Conner and Forst, JJ., concur.

      Nelson v. State , 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Gary STOUT, Appellant, v. Terry STOUT, Appellee.
    No. 4D18-2296
    District Court of Appeal of Florida, Fourth District.
    [May 1, 2019]
    Philip A. Duvalsaint of Philip A. Duvalsaint, PLLC, Fort Lauderdale, for appellant.
    Terry Stout, Newark, Delaware, pro se.
   Damoorgian, J.

Appellant, Gary Stout, appeals an order finding that he owes $ 21,224.18 in child support arrearages for his three children. Appellant argues that the court's arrearage calculation was based on its incorrect conclusion that Appellant's support obligation was unallocated amongst his children. We agree and reverse.

Appellant and Appellee, Terry Stout, were divorced in a final judgment of dissolution entered in 2005. At that time, the parties had three minor children. In conjunction with the dissolution of their marriage, the parties executed a Marital Settlement Agreement ("MSA") which was incorporated into and made part of the final judgment of dissolution. The MSA provided, in pertinent part, that Appellant would pay a monthly sum of child support "continuing as each child reaches the age of 18, or graduates high school, whichever is later." The court later entered a modification order increasing Appellant's monthly obligation.

Appellant fell into arrears on his child support obligations and, as a result, his wages were garnished continuously until well after the youngest child graduated high school at the age of nineteen. Eventually, Appellant filed a motion to close his child support case, arguing that, after accounting for an automatic one-third reduction of his obligation upon the emancipation of each of his older children, Appellant had more than fully paid off his arrearage amount. After reviewing the MSA and modification order, the court concluded that Appellant's child support obligation was unallocated between the parties' children and calculated Appellant's arrearage amount based on the full monthly sum to the date the youngest child graduated high school.

"It is well established that a trial court may, in its discretion, award a lump sum, rather than a separate amount of support for each child ...." State, Dep't of Revenue, Child Support Enf't v. Segrera , 661 So.2d 922, 923 (Fla. 3d DCA 1995). When the court makes such an unallocated award, the obligor "has the duty to petition the court to reduce the amount when one child attains majority." Id. "[T]here is no automatic reduction retroactive to the qualifying event ...." Thompson v. Watts , 111 So.3d 986, 990 (Fla. 1st DCA 2013). If, however, the child support award is allocated per child, the obligor is entitled to retroactive reduction to the date of a qualifying event. See Fla. Dep't of Revenue ex rel. McClung v. McClung , 760 So.2d 244, 246 (Fla. 3d DCA 2000). Therefore, the controlling question in this case is whether the child support award was an aggregate award for all three children or an award allocated per child. This turns on the language of the MSA.

On this point, this Court's decision in Karnbach v. Karnbach , 971 So.2d 1031 (Fla. 4th DCA 2008) is controlling. There, the parties entered into an MSA wherein the former husband agreed to pay a monthly sum of child support for his two minor children which would "continue until 'each child reaches nineteen (19) years of age, graduates high school, dies or becomes emancipated.' " Id. at 1032 (emphasis omitted). Based on this language, we held that the child support was allocated and thus subject to retroactive reduction upon a qualifying event for the older child. Id. The language contained in the MSA in this case is analogous to the language contained in the MSA quoted by Karnbach . Thus, pursuant to the MSA, Appellant's child support obligations were allocated amongst his children.

Despite this conclusion, Appellant is not entitled to an automatic proportional reduction retroactive to the qualifying date for each of his older children. In Lehman v. Department of Revenue ex rel. Lehman , 946 So.2d 1116, 1119 (Fla. 4th DCA 2006), this Court held that where the language used in an agreement providing for allocated child support "is not clear as to the exact amount the child support is to be reduced by upon a child's emancipation," a hearing is required to fix child support for the remaining children in accordance with the guidelines set forth in section 61.30 of the Florida Statutes. The MSA here is silent as to the amount Appellant's support obligation would reduce by upon the emancipation of each child. Accordingly, we reverse and remand with instructions to hold an evidentiary hearing to determine the correct amount of arrearages and the appropriate reduction in child support payments.

Reversed and remanded.

Gerber, C.J., and Conner, J., concur.


text:
    Henock DIEUJUSTE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-3842 4D17-3858 4D17-3867
    District Court of Appeal of Florida, Fourth District.
    [May 15, 2019]
    Carey Haughwout, Public Defender, and Jaime Lapidus, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges the denial of his motion to suppress, after which he pled guilty and was convicted of possession of cocaine. This conviction also formed the sole basis for revocation of probation in two other cases, all of which have been consolidated in this appeal. He contends that he was stopped by law enforcement without a reasonable suspicion, thus tainting the ensuing search. We agree that reasonable suspicion did not exist to stop appellant and reverse.

The State charged appellant with possession of cocaine after drugs were found on appellant after a stop in a shopping center parking lot. He moved to suppress the evidence. At the hearing on the motion, only one officer of the four present during the incident testified. This officer testified that he was dispatched based on an anonymous call regarding a black male with dreads, wearing designer pants with glitter on the back side of the pants, standing by a convertible black Camaro parked in front of a liquor store. The anonymous caller said that the individual was dealing drugs out of the vehicle. The caller described the car as being "filled with drugs." The officer responded to the location, which was in a shopping center. In addition, at least four other officers responded, although it is unclear from the record or the videos produced how many sheriff's vehicles were present.

When the officer arrived, he observed a black Camaro, with a male matching the description from the anonymous call standing at the driver's side of the Camaro, and appellant was standing at the passenger side. Two other individuals were seated in the vehicle. The officer did not conduct any surveillance or observe any illegal conduct as he approached. As soon as appellant saw the officer, who was in uniform, get out of the police vehicle, appellant walked quickly back to the vehicle door, bent down, and was pulling on the center console. The officer was directly behind him, and the officer pulled his gun as appellant bent down. He ordered appellant to stand up and asked him what he had put under the console. Appellant responded "nothing." The officer testified that he knew it was a plastic bag because he could hear the "crinkle" of plastic, and he saw a tiny corner of the bag. At that point, the officer moved appellant away from the door of the vehicle, ordered him to put his hands up, and then placed him in handcuffs. The officer said that as he was speaking to appellant he faintly smelled marijuana. He searched the passenger compartment of the vehicle and found crack cocaine hidden underneath where he had seen appellant pulling out the center console. He field tested the substance, and it tested positive for cocaine. He did not find any marijuana or residue. When asked about why he pulled his gun, he said that he could not see what appellant was doing in the vehicle or if he was reaching for a weapon. The court asked him if he were in fear, and the officer responded that he was because of how fast appellant went back to the vehicle.

Two videos from bodycams of other officers present were shown to the court. Each video began after the initial stop of appellant, but in the videos, the testifying officer is seen searching the vehicle. He searched the entire vehicle prior to searching around the console, where he found one rock of crack cocaine.

The court denied the motion to suppress, concluding that although the tip alone did not justify a stop, appellant's actions as the officer approached did:

So the tip in this particular case is clearly insufficient to allow an investigatory stop. But, however, that's not what happened in this case. The actions of the-I'm sorry, the deputy, were not based upon the tip, the anonymous tip, but instead based upon the actions of Mr. Dieujuste. The testimony was that the deputy exited his vehicle, or as he was exiting his vehicle he had no intention to stop anyone. More akin to a consensual encounter, but before he could even engage in any kind of consensual encounter, Mr. Dieujuste immediately turned and quickly proceeded to the open passenger door of a motor vehicle, bent down, and started placing something in the console. He heard what sounded like a bag. What was in the potential bag, the officer did not know.
As a result, fearing for his safety, the deputy pulled his weapon, and gave the defendant orders to show his hands, which he had every legitimate right to do. He had no idea what the defendant was doing. The defendant's conduct is what resulted in the stop, not the anonymous tip. While at the car, dealing with the defendant, whose actions caused the deputy to in fact fear that something-fear for his life. He doesn't know [if] there's a gun that's being stashed in there. Where others could possibly have access to it. That's when he smelled the burnt cannabis which at that time clearly was sufficient for probable cause. And exigent circumstances as well[.]

Appellant then pled guilty, reserving his right to appeal the denial of the motion to suppress. The court adjudicated him guilty of possession of cocaine and revoked his probation on two earlier charges, based upon his possession of cocaine. He was sentenced, and this appeal follows.

"[W]hen reviewing a ruling on a motion to suppress, an appellate court presumes the trial court's findings of fact are correct and reverses only those findings not supported by competent substantial evidence." Pierre v. State , 22 So. 3d 759, 765 (Fla. 4th DCA 2009). The appellate court reviews de novo the court's application of the law to the facts. Id.

Appellant contends that he was detained and searched without reasonable suspicion of criminal activity. We agree. Popple v. State , 626 So. 2d 185, 186 (Fla. 1993), sets out the three levels of police-citizen encounters: 1) a consensual encounter where a citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed.

The trial court determined correctly that the anonymous tip of drug activity was insufficient to justify the stop of appellant. The tip described an individual selling drugs from a black Camaro, but appellant did not match the description of the individual selling drugs. More importantly, the anonymous tip's assertion of illegal conduct must be corroborated in some way to establish its reliability. See Florida v. J.L. , 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L."). Here, the officers never observed any details that would corroborate the anonymous tip.

The trial court, however, found that appellant's conduct of returning to the vehicle, bending down, and doing something in the vehicle made the officer fear for his safety and justified the stop and search of the vehicle. In this finding, the court erred as a matter of law. In order to justify a stop, there must be a well-founded suspicion of criminal activity. Popple , 626 So. 2d at 186 ; R.J.C. v. State , 84 So. 3d 1250, 1256 (Fla. 4th DCA 2012). There were no circumstances in this encounter from which the officer could conclude that criminal activity had occurred, was occurring, or was about to occur. Appellant's retreat to the vehicle did not evidence criminal activity. Indeed, if appellant could not retreat, then he was not free to leave, which circumstance constitutes a seizure for Fourth Amendment purposes. Popple , 626 So. 2d at 188. Even where an individual is lawfully stopped in a roadside encounter, law enforcement may not engage in a search unless the police have a reasonable belief that the suspect is armed and dangerous. In Michigan v. Long , 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court explained:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Here, there were no facts, even taken together with the anonymous tip information, from which it could be inferred that the suspect was dangerous and may gain control of a weapon. The tip did not mention weapons at all, and the officer did not observe anything but appellant bending down into the vehicle. What he heard was the crinkle of plastic, which in no way suggests the sound of a gun.

Because there was no reasonable suspicion to stop appellant, the ensuing search of the vehicle also violated the Fourth Amendment. While the officer stated that after ordering appellant to stop, he smelled marijuana, the State conceded at oral argument that the court found that the officer's smell of marijuana occurred after the stop.

In conclusion, the court erred in denying the motion to suppress the contraband found after the stop, which violated the Fourth Amendment. We reverse the convictions and sentences.

Gross and Forst, JJ., concur.


text:
    Yohaniz Ceballos PALOMINO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-197
    District Court of Appeal of Florida, Fourth District.
    [May 8, 2019]
    Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.
    Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.
    CONFESSION OF ERROR
   Kuntz, J.

The Defendant was convicted of aggravated battery with a deadly weapon and two counts of violation of a domestic violence injunction following a nine-day trial. The Defendant appealed his convictions and sentences, and a record on appeal was transmitted to this Court. But the transcript for one of the days of trial was missing from the record.

Within the record was an affidavit from the court reporter. The affidavit stated that the court reporter's electronic files and backup files for the day in question were empty. Based on the affidavit, the Defendant moved to relinquish jurisdiction to reconstruct the record for the missing day.

On relinquishment, the Defendant and the State agreed that the "missing transcript was necessary for full [appellate] review of the case." They also agreed that the "Defendant's convictions and sentences should be reversed, and that this case should be remanded for a new trial." The circuit court entered an order on relinquishment, confirming the transcript is unavailable and cannot be reconstructed and that the "absence of the transcript prejudices the Defendant in his appeal."

Consistent with the order on relinquishment, the State filed a confession of error, acknowledging that a "defendant is entitled to a full transcript containing appealable issues." We agree. See Robinson v. State , 262 So.3d 826, 826 (Fla. 4th DCA 2019) (citing Hardy v. United States , 375 U.S. 277, 279, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) ; Ader v. State , 814 So.2d 461, 462 (Fla. 4th DCA 2001) ; Smith v. State , 801 So.2d 198, 199-200 (Fla. 4th DCA 2001) ).

The Defendant's convictions and sentences are reversed, and the case is remanded for a new trial on one count of aggravated battery (deadly weapon) and two counts of violation of a domestic violence injunction.

Reversed and remanded .

Ciklin and Klingensmith, JJ., concur.


author: May, J.

text:
    STATE of Florida, Appellant, v. Dylan MORRIS, Appellee.
    No. 4D18-2470
    District Court of Appeal of Florida, Fourth District.
    [ April 24, 2019 ]
    Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellant.
    Russell L. Cormican, Fort Lauderdale, for appellee.
   May, J.

License plate frames and whether they violate section 316.605(1), Florida Statutes (2017), are challenged in this appeal. The State appeals a suppression order. It argues the trial court erred in finding that a license plate frame did not violate section 316.605(1). We disagree and affirm.

Law enforcement conducted a traffic stop of the defendant for violating section 316.605(1). The State charged the defendant with possession of cocaine, which was seized as a result of the stop. The defendant moved to suppress the cocaine, arguing that the traffic stop was invalid.

The parties agreed to the facts. The legal question was whether the Drive Pink AutoNation license plate frame around the defendant's license plate was "obscuring matter" over the words "MyFlorida.com" and "Sunshine State," providing a legal basis for the traffic stop.

The statute's 2017 version provides that on a Florida license plate, "all letters, numerals, printing, writing, the registration decal, and the alphanumeric designation shall be clear and distinct and free from ... other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front." § 316.605(1), Fla. Stat. (2017). The defendant's license plate looked like this:

Defense counsel argued the license plate frame did not obscure any of the words, although it covered part of a few letters. Regardless, he argued, all the words could be read from a hundred feet. The only letters that were partially covered were in the words "Sunshine State" and "MyFlorida.com." Counsel argued that only "Florida," the tag number, and registration decal were "necessary information." See State v. Pena , 247 So.3d 61, 61 (Fla. 3d DCA 2018) (interpreting the 2015 version of the statute).

The State responded that the statute requires "all" letters and writing be "clear and distinct from ... obscuring matter," even if the frame covers only "a little top portion" of "MyFlorida.com." And, because the frame obscured part of "Sunshine State," the stop was valid.

The trial court found "that the word 'Florida' [was] not obscured.... [E]verything that needs to be identified [was] identifiable," even with the frame. The court granted the motion to suppress, "find[ing] that the tag [was] not obscured as the law require[d] for purposes of stopping a vehicle." The State now appeals.

The State continues to argue the trial court erred in suppressing the cocaine because the plain language of section 316.605(1), Fla. Stat., requires "all" writing on the license plate to be clear and free from "obscuring matter." The statute indicates that "[n]othing shall be placed upon the face of a Florida plate except as permitted by law...." § 316.605(1), Fla. Stat. (2017). It also argues that even if the stop were illegal, the evidence should not be suppressed because the officer acted under a reasonable mistake of law.

The defendant responds that the trial court's finding is supported by competent, substantial evidence and should not be disturbed on appeal. He argues case law interpreting the statute's prior version supports the trial court's legal conclusion. Lastly, he argues that because the State failed to argue the officer's reasonable mistake of law in the trial court, that argument is unpreserved.

We review an order on a motion to suppress to determine whether the trial court's factual findings are supported by competent, substantial evidence. Martin v. State , 921 So.2d 697, 698 (Fla. 4th DCA 2006). We have de novo review of the legal issue. Id.

When reviewing a statute, we should first look to the actual language and its plain meaning. English v. State , 191 So.3d 448, 450 (Fla. 2016). If the language is clear and unambiguous, we need not look behind it or resort to statutory construction to determine legislative intent. Id. Plain meaning controls unless that meaning leads to a result that is unreasonable or clearly contrary to legislative intent. Id.

The statute's current version provides that, "all letters, numerals, printing, writing, the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front." § 316.605(1), Fla. Stat. (2017).

Our supreme court has held that the predecessor version of " section 316.605(1) does not distinguish between obscuring matter that is on or external to the license plate." English , 191 So.3d at 451. It did so in concluding "that a tag light, hanging down in front of a license plate, obscuring its alphanumeric designation, constitute[d] a violation of section 316.605(1)." Id.

Here, all the letters and words on the license plate were visible within 100 feet. In fact, the officer who stopped the defendant testified in deposition that "he didn't have any trouble" reading the word "Florida." The trial court specifically found that "everything that needs to be identified is identifiable," even with the frame. The trial court further suggested that if the legislature wanted to outlaw license plate frames, which are most often placed on the plates by auto dealers, it could have done so.

We agree with the trial court that the "letters, numerals, printing, writing, the registration decal, and the alphanumeric designation [were] clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they [were] plainly visible and legible at all times 100 feet from the rear or front." § 316.605(1), Fla. Stat. (2017). For this reason, we affirm.

Affirmed.

Gerber, C.J., and Klingensmith, J., concur.

      The parties correctly point out that no Florida court has yet to interpret this version of section 316.605(1), Florida Statutes, which went into effect on July 1, 2016.

      Because the State failed to raise the "mistake of law" argument below, it is unpreserved.


text:
    ADDISON DRYWALL, INC. and Bridgefield Employer's etc., et al., Appellants/Cross-Appellees, v. Salvador TORRES, Appellee/Cross-Appellant, and CRB Contractors, LLC and Normandy Insurance Co., Appellees/Cross-Appellees.
    No. 1D18-2901
    District Court of Appeal of Florida, First District.
    Date of Accident: September 1, 2017 May 13, 2019
    H. George Kagan of H. George Kagan, P.A., Gulf Stream, for Addison Drywall, Inc. and Bridgefield Employer's, et al., Appellants/Cross-Appellees.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, and Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, for Salvador Torres, Appellee/Cross-Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch, P.A., Winer Park, for CRB Contractors, LLC and Normandy Insurance, Appellees/Cross-Appellees.
   Per Curiam.

In this workers' compensation appeal, Addison Drywall, Inc. and its insurer (collectively, the E/C) challenge the finding of the judge of compensation claims (JCC) that Addison was Claimant's employer at the time of the workplace accident. On cross-appeal, Claimant challenges the denial of his claim for payment of certain medical bills as well as the JCC's failure to award temporary total disability (TTD) benefits beyond the date of the hearing. We affirm the JCC's order in all respects and write only to address Claimant's argument concerning the award of TTD benefits.

Claimant argues that the award of TTD benefits only to the date of the hearing was erroneous because no record evidence supports terminating the benefits as of that date. He asks us to modify the decretal portion of the order to specify that the TTD benefits are not only payable through the date of the hearing but also "for so long as such benefits are proper." See McDonnell Douglas Corp. v. McDonald , 620 So. 2d 1146, 1146 (Fla. 1st DCA 1993) (modifying decretal portion of order to include this phrase in place of erroneous language awarding TTD benefits "through the present and continuing"). We see no reason to do so.

Although the JCC would not have erred by including this language in the decretal portion of the order in light of the undisputed evidence that Claimant was still off work at the final hearing and that he would continue to be off work until released by his doctor, it does not follow that the JCC erred by not including this language in the order and instead awarding TTD benefits only to the date of the hearing. Indeed, as the E/C recognizes, even without such language, the self-executing nature of the workers' compensation system will require the E/C to continue providing TTD benefits to Claimant so long as he remains eligible for those benefits, and if the E/C fails to do so, Claimant is not without recourse. Thus, under the circumstances, the language Claimant asks us to add to the JCC's order is surplusage.

For the foregoing reasons, the JCC's order is AFFIRMED.

Wolf, Wetherell, and Makar, JJ., concur.

      See Reply/Cross-Ans. Br. at 47-48 ("Salutary phrases emerged in the case law, such as those Claimant cites and would like to have seen written into the order, e.g.; 'until such time' or 'for so long as such benefits are proper' -- all ways of simply signaling a case is returned to a self-administering status, it being presumed the carrier will not act arbitrarily but will continue benefits until such date as a release is published, for if it acts precipitously -- or even if it acts responsibly, definitive report in hand: in both cases a claimant is not precluded from challenging administrative determination vis-à-vis all tools and remedies afforded by law for continuation or extension of said benefits, along with fees, costs, penalties and interest designed to keep the carrier on the straight-and-narrow.").