author: VILLANTI, Judge.

text:
    Terry Lavon MCDONALD, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4532
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019 Rehearing Denied March 14, 2019
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Terry Lavon McDonald, Jr., appeals the order revoking his probation based on two alleged violations and sentencing him to sixty months in prison. Because the State proved the charged violation of condition four of McDonald's probation, we affirm. However, because the State did not prove the charged violation of condition five, we remand for entry of a corrected revocation order.

While McDonald was on probation for a prior offense, he was arrested on a charge of murder. The murder occurred when a group of individuals got into a fight and one pulled out a gun and ended the fight by shooting his opponent. Based on McDonald's arrest, the Department of Corrections filed an affidavit of violation of probation (VOP) alleging that McDonald had violated condition five of his probation by being arrested for murder.

The State subsequently nolle prossed the murder charge against McDonald, and it never filed any other charges against him arising from the shooting incident. Nevertheless, the Department amended the VOP affidavit to allege that McDonald had violated condition five of his probation "by being arrested for the criminal offense of Possession of a Firearm by a Convicted Felon on 01/24/2017." It also charged that McDonald had violated condition four of his probation by "possessing, carrying, or owning any weapon or firearm" based on the probable cause affidavit relating to McDonald's murder arrest.

At the VOP hearing, the State presented testimony from a number of witnesses to the fight, one of whom testified that she saw McDonald in possession of a gun that night, and specifically that she saw the gun sticking out of the waistband of McDonald's pants. The State presented no evidence whatsoever that McDonald had ever been arrested for or charged with the offense of possession of a firearm by a convicted felon. Nevertheless, the trial court found that the State had proved the charged violations of both conditions four and five, and it revoked McDonald's probation based on these findings. McDonald now seeks review of this ruling.

As to the alleged violation of condition four, the evidence presented at the VOP hearing was sufficient to support the trial court's finding of guilt. The testimony from one witness that she saw McDonald with a gun stuffed into the waistband of his pants was legally sufficient to support the trial court's finding that McDonald violated condition four by possessing and/or carrying a firearm. Therefore, we affirm the court's finding of guilt as to the violation of condition four of McDonald's probation.

However, as to the alleged violation of condition five, there was no evidence to support the trial court's finding of a violation as charged in the affidavit. The affidavit specifically alleged that McDonald had violated condition five by being arrested for the offense of possession of a firearm by a convicted felon. However, there is no dispute that McDonald was never in fact arrested for that offense, and the State offered no evidence that he was ever arrested on that charge. Since the VOP affidavit identified conduct as the basis for the violation that the State did not prove, revocation on that basis was improper. And while the State did offer evidence that McDonald had been arrested for murder, that charge was ultimately nolle prossed and the State amended its VOP affidavit to eliminate any reference to that offense. Once it did so, the murder arrest could no longer serve as a basis for revocation because a revocation of probation cannot be based on conduct not charged in the affidavit. See McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012) (quoting Johnson v. State, 811 So.2d 749, 750 (Fla. 2d DCA 2002) ); Cherington v. State, 24 So.3d 658, 660 (Fla. 2d DCA 2009) (quoting Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000) ); Harrington v. State, 570 So.2d 1140, 1142-43 (Fla. 4th DCA 1990) (reversing violation of probation when affidavit charged that defendant had used cocaine to excess but the only evidence presented at the hearing was that the defendant had used marijuana). Accordingly, we must reverse the finding of guilt as to condition five.

Despite this error in the revocation order, however, reversal of the order of revocation is not necessary in this case. This court has held that it need not reverse an order of revocation based on one unproven violation when the record establishes that the trial court would have revoked probation based on a proven violation. See Cherington, 24 So.3d at 661. Here, the transcript of the VOP hearing shows that the trial court carefully considered all of the circumstances surrounding the fight and the events leading up to it and concluded that McDonald's possession of a firearm was sufficiently serious to warrant the revocation of his probation. While the trial court did not explicitly state that it would have revoked probation based solely on the one violation, the tenor of the trial court's comments overall indicate that this is the case. In light of the trial court's comments when considered as a whole, we affirm the revocation of McDonald's probation but remand for entry of a corrected order of revocation that eliminates the reference to the violation of condition five.

Affirmed but remanded with directions.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      At the conclusion of the hearing, the court summarized the evidence and then stated that it would "find that the testimony in front of the Court at this time is sufficient to establish the greater weight of the evidence is proven [sic] that the Defendant, McDonald, was in possession of a firearm. And with that, I'll find him in violation of condition 5 and condition 4." This statement makes it clear that it was McDonald's possession of the firearm that triggered the revocation rather than any arrest for a new law offense.


source: Caselaw Access Project

author: Winsor, J.

license: Public Domain

text:
    Louis Anthony MCCRAE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1210
    District Court of Appeal of Florida, First District.
    March 7, 2019 Rehearing Denied April 15, 2019
    Louis Anthony McCrae, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Winsor, J.

In 2003, seventeen-year-old Louis McCrae shot into a crowd, killing Jackson Blakely. A jury convicted McCrae of second-degree murder, the judge sentenced him to thirty years, and this court affirmed. McCrae v. State , 908 So.2d 1095 (Fla. 1st DCA 2005). McCrae later filed a postconviction motion, alleging that the Florida Supreme Court's subsequent Horsley v. State decision entitles him to a new sentence. 160 So.3d 393 (Fla. 2015). The trial court denied relief, and we affirm.

Years after McCrae's conviction, the United States Supreme Court announced in Graham v. Florida that the Eighth Amendment precludes life-without-parole sentences for juveniles who committed nonhomicide offenses.

560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Then, in Miller v. Alabama , the Court decided that the Eighth Amendment also precludes mandatory life sentences for juveniles, including those guilty of homicide. 567 U.S. 460, 465, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Responding to these decisions, the Florida Legislature established a new juvenile sentencing scheme. See Ch. 2014-220, Laws of Fla.; see also Horsley , 160 So.3d at 395. Although the new legislation had a 2014 effective date, the Florida Supreme Court determined that the new legislation would apply "to all juvenile offenders whose sentences are unconstitutional under Miller ." Horsley , 160 So.3d at 409. Therefore, juveniles whose original sentences were inconsistent with Miller are now entitled to a new sentence under the new statute. Id. Likewise for juveniles whose original sentences were inconsistent with Graham . Henry v. State , 175 So.3d 675, 680 (Fla. 2015).

These developments do not help McCrae because his original sentence-thirty years-was not inconsistent with Graham or Miller . It was not inconsistent with Graham because this was a homicide offense and, at any rate, there was no life sentence-de facto or otherwise. Indeed, McCrae will still be in his forties when released. See, e.g., Davis v. State , 214 So.3d 799 (Fla. 1st DCA 2017) (rejecting Graham challenge to 35-year sentence); Abrakata v. State , 168 So.3d 251, 252 (Fla. 1st DCA 2015) (rejecting Graham challenge because "Appellant will be in his early forties when he is released from prison"), rev. denied , SC15-1325 (Fla. Jan. 3, 2017); Austin v. State , 127 So.3d 1286, 1287 (Fla. 1st DCA 2013) (upholding 45-year sentence). And similarly, the sentence is not inconsistent with Miller because there was no life sentence, mandatory or otherwise. See Davis , 214 So.3d at 799 ; see also Landrum v. State , 192 So.3d 459, 460 (Fla. 2016) (applying Miller to discretionary life sentence for second-degree murder). Without an unconstitutional sentence to start with, McCrae is not entitled to resentencing under the new statute. See Abrakata , 168 So.3d at 252 ("[A]bsent a violation of Graham , there is no legal basis to retroactively apply section 921.1402 (or any other provision of the juvenile sentencing legislation enacted in 2014) to the 2011 offense in this case."); cf. Kelsey v. State , 206 So.3d 5, 8 (Fla. 2016) (holding new sentences under new statutes appropriate for "all juveniles who have sentences that violate Graham "); Henry , 175 So.3d at 680 (affording resentencing under new statutes "[b]ecause we have determined that Henry's sentence is unconstitutional under Graham "); Horsley , 160 So.3d at 395 (affording resentencing under new law to those "whose sentences are unconstitutional in light of Miller ").

In arguing otherwise, McCrae points to Thomas v. State , 177 So. 3d 1275 (Fla. 2015) (table), an unpublished, one-paragraph Florida Supreme Court decision. In that decision, the court quashed this court's decision and directed resentencing under the new law, citing Horsley . Id. In the opinion quashed, this court had affirmed concurrent thirty- and forty-year sentences for armed robbery and first-degree murder. Thomas v. State , 135 So.3d 590, 590 (Fla. 1st DCA 2014). Unlike McCrae, however, the defendant in Thomas was resentenced after Miller , and our now-quashed decision was affirming his new sentence. Id. This was in an era when the appropriate remedy for Miller violations was uncertain, and before Horsley announced that the remedy must be resentencing under the new law. 160 So.3d at 401 (noting that courts had not found consensus on how to address Miller violations and announcing new rule). Therefore, the Thomas decision on which McCrae relies is best read as rejecting the remedy this court approved for the earlier Miller violation. That remedy was unquestionably inconsistent with the remedy Horsley later dictated, so it is unsurprising that the Florida Supreme Court commanded another resentencing in Thomas . In McCrae's case, by contrast, there was no Miller violation to start with, so there is no remedy to consider.

It is perhaps somewhat ironic that McCrae might have been better off with a life sentence at the outset, rather than only thirty years. A life sentence for McCrae's second-degree murder likely would have led to resentencing under Miller , as it did in Landrum , 192 So.3d at 460. And resentencing under the new juvenile-sentencing law would have meant McCrae would be eligible for a sentence review after twenty-five years. § 921.1402(2), Fla. Stat. We also note that in Landrum , the supreme court relied on the fact that it would seem unfair to grant new sentences for first-degree murder (which carried mandatory life sentences) but not for second-degree murder (which allowed only discretionary life sentences). 192 So.3d at 468. But it also relied on the fact that the sentencing court did not conduct the type of review Miller contemplated, id. at 469, and it certainly did not hold that any juvenile who might benefit from the new juvenile sentencing scheme must be resentenced. Unless and until the Florida Supreme Court announces that every juvenile defendant is entitled to a sentence under the new laws-regardless of when the defendant was sentenced or whether the original sentence violated Graham or Miller -we will follow the rule that resentencing only applies when there was a Graham or Miller violation. Cf. Hart v. State , 255 So.3d 921, 928 (Fla. 1st DCA 2018) ; Abrakata , 168 So.3d at 252.

AFFIRMED .

Lewis And M.K. Thomas, JJ., Concur.

      We say "likely," because the supreme court acknowledged in Landrum "the possibility that a sentencer could have exercised discretion under [the former statutes] in a manner that demonstrated the sentencer considered the factors Miller has since deemed constitutionally significant-and [that] the resulting sentence would therefore not violate Miller . " 192 So.3d at 469. It concluded, though, that this did not happen in that case. Id.


author: PER CURIAM.

text:
    Terrance J. ZICH, Appellant, v. Mario BAUTISTA-DIAZ and Anibexy Miranda; and Citizens Property Insurance Corporation, Appellees.
    Case No. 2D17-5076
    District Court of Appeal of Florida, Second District.
    Opinion filed March 13, 2019.
    David L. Ross of the Law Offices of David L. Ross, P.A., Miami, for Appellant.
    Jonathan D. Franklin of Franklin Legal Group, P.A., Miami, for Appellee Citizens Property Insurance Corporation.
    No appearance for Appellees Mario Bautista-Diaz and Anibexy Miranda.
   PER CURIAM.

This proceeding is converted to a petition for writ of certiorari. See Winderting Invs., LLC v. Furnell, 144 So.3d 598, 602 (Fla. 2d DCA 2014) ("An order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal.").

Denied.

KELLY, KHOUZAM, and SLEET, JJ., Concur.


author: LUCAS, Judge.

text:
    Michael M. GRDIC, Appellant, v. HSBC BANK USA, N.A., AS TRUSTEE, in Trust FOR the REGISTERED HOLDERS OF ACE SECURITIES CORP., Home Equity Loan Trust, Series 2006-NC3, Asset Backed Pass-Through Certificates, Appellee.
    Case No. 2D17-818
    District Court of Appeal of Florida, Second District.
    Opinion filed March 13, 2019
    Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing); Latasha Scott of Lord Scott, PLLC, Tampa (withdrew after briefing), for Appellant.
    Michael Grdic, pro se.
    Charles E. Stoecker and William L. Grimsley of McGlinchey Stafford, Fort Lauderdale, for Appellee.
   LUCAS, Judge.

Michael Grdic appeals a final judgment of foreclosure entered in favor of HSBC Bank USA, N.A., as Trustee, in Trust for the Registered Holders of ACE Securities Corp., Home Equity Loan Trust, Series 2006-NC3, Asset Backed Pass-Through Certificates (HSBC). We affirm the final judgment in all respects. We write to explain why HSBC was not precluded from obtaining a judgment for the entire unpaid debt due under Mr. Grdic's mortgage loan, including payment amounts that had accrued more than five years before HSBC filed its complaint.

In April 2006, Mr. Grdic executed an adjustable rate note and mortgage over his Clearwater home in favor of Home123 Corporation. Mr. Grdic's note reflected that he had borrowed the principal sum of $ 161,250 and agreed to make monthly payments of principal and interest over a forty-year amortization period. Like most mortgage loan promissory notes, Mr. Grdic's note permitted the holder to accelerate the entire unpaid amount and interest in the event of a default. By endorsement and subsequent transfers, the note eventually became HSBC's.

Mr. Grdic made payments on the note until June of 2008. The next month, a default letter was sent to him. HSBC filed a complaint for foreclosure in October of 2009.

For reasons that do not pertain to this appeal, that lawsuit was involuntarily dismissed without prejudice on August 9, 2012. Mr. Grdic, however, had made no further payments on the note. On October 2, 2013, Select Portfolio Servicing, Inc. (SPS), HSBC's servicer, sent Mr. Grdic a new default letter, informing him that he was now in default in the amount of $ 105,846.82. That amount included all of his missed payments since June of 2008, the date of Mr. Grdic's original default. On October 16, 2014, HSBC filed the instant foreclosure action against Mr. Grdic.

The case proceeded to trial on January 20, 2017. Throughout the trial, Mr. Grdic maintained that the statute of limitations, section 95.11(2)(c), Florida Statutes (2014), barred HSBC's right to foreclose on the defaulted monthly payments that had accrued more than five years prior to its October 2014 complaint. Relatedly, Mr. Grdic also argued that the default letter SPS had sent did not substantially comply with paragraph 22 of his mortgage because the letter overstated the amount Mr. Grdic owed by including sums which had accrued more than five years earlier. The circuit court disagreed, denied Mr. Grdic's motion for involuntary dismissal, and entered a final judgment on January 23, 2017. The circuit court's judgment included the entire unpaid principal, accrued interest, and other fees and costs. Mr. Grdic now appeals that judgment.

The issue before us is one that can be succinctly stated by posing the rule Mr. Grdic proposes in his brief. According to Mr. Grdic,

this [c]ourt should rule that any payment defaults occurring more than five years before a foreclosure lawsuit is filed ... should not be included in the amount the lender can recoup. Instead, any taxes, interest, and monthly payments from more than five years before suit must be eliminated from any foreclosure judgment.

It is a proposal that has been addressed by three of our sister district courts of appeal.

In Gonzalez v. Federal National Mortgage Ass'n, 43 Fla. L. Weekly D1739, D1741, --- So.3d ----, ----, 2018 WL 3636467 (Fla. 3d DCA Aug. 1, 2018), the Third District concluded that Fannie Mae was not barred from obtaining a final foreclosure judgment that included default amounts that had accrued outside of the five-year statute of limitations. In so holding, the Gonzalez court considered the nature of the mortgage debt and what a default on an installment payment of that debt necessarily entails:

In a typical residential loan, the terms of the note and mortgage split the entirety of the debt owed by the borrower into a series of periodic installment payments. If a borrower defaults, the note holder could choose to seek a judgment only for that missed installment payment. More typically, and as occurred here, the note holder can choose to exercise its contractual right to accelerate the entirety of the borrower's obligation under the note and mortgage and seek a judgment on that amount. By exercising its contractual right to acceleration, the note holder is not seeking to collect a series of individual past and future installment payments due to it. Instead, the holder elects to accelerate the entirety of the obligation owed to it under the terms of the note and mortgage, such that the entire sum owed-including principal, interest, advances, costs, and fees-will be included in the judgment. It is that entire debt-not individual installments of it-that comes due upon acceleration and that is sought to be liquidated in a foreclosure action. Thus, when considering an accelerated obligation, while the triggering default must occur within the five year limitations period, the debt that is subject to judgment and collection is the accelerated debt, i.e., the entire amount due under the mortgage loan. See Bartram [v. U.S. Bank, Nat. Ass'n], 211 So.3d [1009,] 1019 [ (Fla. 2016) ]. Because Fannie Mae was seeking a judgment on the accelerated obligation, the trial court properly entered a Final Judgment of Foreclosure in favor of Fannie Mae in the full amount of that obligation.

Id. at D1741, at ---- (footnote omitted). The Third District affirmed the trial court's judgment for the entire accelerated debt amount. Id.

Two weeks later, the Fourth District issued a decision in which it reached the same conclusion. In Bank of America, N.A. v. Graybush, 253 So.3d 1188, 1193 (Fla. 4th DCA 2018), the court aligned itself with the Third District in Gonzalez to hold that "the Bank was entitled to all sums alleged and proven due under the note and mortgage-even those sums due more than five years from the date of filing the complaint." The Graybush court cited with approval to Justice Lawson's concurring opinion in Bollettieri Resort Villas Condominium Ass'n v. Bank of New York Mellon, 228 So.3d 72, 73 (Fla. 2017) :

Justice Lawson's opinion noted that "[u]nder the terms of most long-term notes and mortgages ... the total amount due under the note does not become due until maturity-most commonly thirty years after signing." Bollettieri, 228 So.3d at 74 (Lawson, J., concurring). Given that a long-term note is just that, a promise to pay a determinate sum by a determinate date, Justice Lawson concluded that the failure to pay the entire amount due by the final due date-i.e., maturity date-is the last element of a foreclosure cause of action accruing the applicable statute of limitations. Id.

Id. (alteration in original). The Graybush court concluded:

When a note contains an optional acceleration clause, a lender only runs out of opportunities to foreclose, under the applicable statute of limitations, after five years of the latest default, or after five years of the date of maturity of the note. But, should a lender bring a timely action under either scenario, it is entitled to all sums due under the note and mortgage-should the note and mortgage contractually provide.

Id. at 1195.

Recently, an en banc Fifth District receded from a prior panel opinion so that it, too, could adopt Justice Lawson's Bollettieri concurring opinion on this issue. See Grant v. Citizens Bank, N.A., 263 So.3d 156, 159, 2018 WL 6816805 (Fla. 5th DCA Dec. 26, 2018) ("[W]e recede from Velden [v. Nationstar Mortgage, LLC, 234 So.3d 850 (Fla. 5th DCA 2018) ] and adopt the view articulated in Justice Lawson's concurring opinion in Bollettieri regarding the statute of limitations in installment obligation cases.").

We agree with the sound rationale set forth in Grant, Gonzalez, and Graybush. Like in those cases, Mr. Grdic's note afforded the holder the right to accelerate the entire unpaid debt in the event of a default. And, like in those cases, Mr. Grdic remained in a continued state of default from the time of his first missed monthly payment up until the date when HSBC filed the instant foreclosure action. HSBC was entitled to seek recovery of the entire amount of Mr. Grdic's unpaid debt because, "with each subsequent default," HSBC would have "had the right to file a subsequent foreclosure action-and to seek acceleration of all sums due under the note-so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default." Bartram, 211 So.3d at 1021 ; cf. Desylvester v. Bank of N.Y. Mellon ex rel. Holders of Alt. Loan Tr. 2005-62, Mort. Pass-Through Certificates Series 2005-62, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) (following Bartram and holding that "the dismissal of the Bank's earlier foreclosure action did not trigger the statute of limitations to bar the Bank's subsequent foreclosure action based on separate defaults"). Because that is what happened in Mr. Grdic's case, we affirm the judgment of the circuit court.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.

      Because this appeal comes to us on review of a trial court's ruling on a motion for involuntary dismissal, we employ a mixed standard of review. "To the extent the trial court's final judgment of foreclosure 'is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.' " Gonzalez v. Fed. Nat'l Morg. Ass'n, 43 Fla. L. Weekly D1739, D1740, --- So.3d ----, ----, 2018 WL 3636467 (Fla. 3d DCA Aug. 1, 2018) (quoting Verneret v. Foreclosure Advisors, LLC, 45 So.3d 889, 891 (Fla. 3d DCA 2010) ).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Richard Alan SAMAD, Appellant, v. Stella PLA and Raymond Albert Pla, Jr., Appellees.
    Case No. 2D18-709
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2019
    Richard Alan Samad, pro se.
    Scott A. Kuhn of Kuhn Law Firm, P.A., Fort Myers, for Appellee Stella Pla.
    No appearance for remaining Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Richard Alan Samad appeals from an order that granted Stella Pla (Pla), the surviving spouse of Raymond Albert Pla (the decedent), an extension of time to file her election to take an undivided one-half interest in the decedent's homestead property as a tenant in common under section 732.401(2), Florida Statutes (2017), and deemed Pla's homestead election timely. We reverse because the trial court erred as a matter of law in granting the extension and deeming the election timely. Our review is de novo. See Hill v. Davis, 70 So.3d 572, 575 (Fla. 2011) ("Because this issue is one of statutory interpretation, review is de novo.").

Pursuant to section 732.401, a surviving spouse takes a life estate in the homestead unless he or she elects to take an undivided one-half interest in the homestead as a tenant in common. § 732.401(1), (2). The surviving spouse must make such an election within six months of the decedent's death, § 732.401(2)(b), and that time limit "may not be extended except ... [upon a] petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election," § 732.401(2)(b), (c). The petition itself, however, must be timely filed within those six months. § 732.401(2)(c).

Pla neither made the election nor filed such a petition within the six-month period. Instead, approximately seven-and-a-half months after the decedent's death, she moved pursuant to Florida Probate Rule 5.042(b)(2) for an extension of time to make the election, claiming excusable neglect. Samad argued, among other things, that rule 5.042(b) is inapplicable to extend the time prescribed in section 732.401(2). The trial court, however, agreed with Pla that excusable neglect could warrant an extension, and it determined that Pla had made the requisite showing.

Samad's argument, which he reiterates on appeal, is well taken; rule 5.042(b) is inapposite to the application of section 732.401(2). The rule provides, in pertinent part, that "[w]hen an act is required or allowed to be done at or within a specified time by these rules, by order of court, or by notice given thereunder," the court may grant a request for enlargement of time to accomplish the required act if (1) a request for enlargement is made before the expiration of the specified time or (2) after expiration of the time if "the failure to act was the result of excusable neglect." (Emphasis added.) By its own terms, therefore, rule 5.042(b) does not apply to acts required to be done within a specified time by statute, and there is no probate rule relating to a surviving spouse's right to elect an undivided one-half interest in the decedent spouse's homestead as a tenant in common.

Indeed, the cases that Pla cites on appeal actually underscore the inapplicability of the rule here. In re Estate of Cummins, 979 So.2d 984, 986 (Fla. 3d DCA 2008), involved an untimely notice under Florida Probate Rule 5.401(d) and, therefore, implicated "an act ... required ... within a specified time by these rules." Accordingly, rule 5.042(b) governed the trial court's authority to grant an extension for that untimely notice. May v. Illinois National Insurance Co., 771 So.2d 1143, 1145 (Fla. 2000), Dohnal v. Syndicated Offices Systems, 529 So.2d 267, 268-69 (Fla. 1988), Delgado v. Estate of Garriga, 870 So.2d 912, 913-15 (Fla. 3d DCA 2004), and Dimick v. Estate of Barry, 787 So.2d 198, 199 (Fla. 4th DCA 2001), involved statutorily required notices that were untimely but for which extensions were specifically authorized by statute; rule 5.042(b) simply did not come into play and was not even mentioned.

Because Pla failed to satisfy the requirements set forth in section 732.401(2), the trial court erred as a matter of law in granting her an extension of time to file her notice of election under that section and in deeming her election timely.

Reversed.

CASANUEVA and BADALAMENTI, JJ., Concur.

      The option to elect an undivided one-half interest in homestead property as a tenant in common was added effective October 1, 2010. See ch. 2010-132, § 7, Laws of Fla.


text:
    DYCK-O'NEAL, INC., Appellant, v. Teresa NORTON and Samuel Norton, Appellees.
    Case No. 2D17-4968
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2019
    David M. Snyder of David M. Snyder, P.A.; Tampa; Susan B. Morrison of Law Offices of Susan B. Morrison, Tampa; and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, for Appellant.
    Alexander Allred of Castle Law Group, P.A., Largo, for Appellees.
   LUCAS, Judge.

Dyck-O'Neal, Inc. (DONI), appeals a final summary judgment entered in favor of the Nortons. For the reasons explained below, we reverse and remand for further proceedings.

In 2006, the Nortons executed a promissory note and mortgage on their home in Hendry County, Florida, in favor of Bank of America, N.A. When the Nortons failed to make an installment payment, Bank of America initiated foreclosure proceedings and eventually obtained a final judgment of foreclosure in 2009 for $ 197,586.52. A year later, the Federal National Mortgage Association (Fannie Mae) purchased the subject property at a foreclosure sale for $ 100. At the time of the sale, a real estate appraiser had appraised the property's value at $ 60,000. In 2014, Fannie Mae assigned the final judgment and note to DONI.

Two months later, DONI initiated a deficiency action against the Nortons, seeking a deficiency judgment in the amount of $ 137,586.52 plus interest, costs, and attorney's fees. It is undisputed that DONI filed this lawsuit before July 1, 2014, but more than five years from the date the Nortons first defaulted on their promissory note.

In response to DONI's complaint, the Nortons raised several affirmative defenses, two of which are relevant to this appeal. In their first affirmative defense, the Nortons claimed that Fannie Mae issued a Form 1099-A tax filing stating that the value of the Nortons' property was $ 205,285.35. The Nortons did not receive an amended 1099-A stating that the value of the property was actually $ 60,000. The Nortons claimed that they "relied on" the amount represented in the Form 1099-A Fannie Mae had filed when they prepared their individual tax returns. Accordingly, they argued, estoppel should prevent DONI from bringing its deficiency action against them. In their second affirmative defense, the Nortons argued that DONI's lawsuit was barred by the statute of limitations. Citing to Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), the Nortons also argued that DONI should have brought its lawsuit within five years of the date of their default on their promissory note. As the Nortons defaulted in 2008, but DONI did not file its complaint until 2014, the Nortons claimed that DONI's lawsuit was barred by section 95.11(2)(c), Florida Statutes (2014).

DONI and the Nortons filed competing motions for summary judgment. The trial court denied DONI's motion, ruling that the Nortons had raised the "affirmative defense of the statute of limitations which raises a question of law and may be a viable defense." The trial court granted the Nortons' motion for summary judgment. The court's judgment cited two bases for its ruling: (1) under Bush v. Whitney Bank, 219 So.3d 257 (Fla. 5th DCA 2017), the statute of limitations barred DONI's lawsuit, and (2) summary judgment was proper because DONI was estopped from pursuing a deficiency action against the Nortons. DONI now appeals the circuit court's summary judgment.

We review a circuit court's entry of summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So.3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) ). A party is entitled to summary judgment only "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c).

With respect to the first basis the trial court relied upon when it granted summary judgment for the Nortons, our court has definitively answered the question of when a deficiency action accrues for purposes of the statute of limitations-and it is not the date of default on the underlying note. As we explained at length in Aluia v. Dyck-O'Neal, Inc., 205 So.3d 768, 774-75 (Fla. 2d DCA 2016) :

The final judgment is the instrument on which the deficiency action is based because the note and mortgage merge into the foreclosure judgment where the foreclosure suit is both an action at law for the balance due under the note and an action in equity to foreclose the mortgage. See Manley v. Union Bank of Fla., 1 Fla. 160, 214 (Fla. 1846) ("[A] [person entitled to enforce the note] has, at common law, three remedies, all of which he may pursue at the same time, viz: that he may bring suit at law, upon the bond or note secured by the mortgage; institute an action of ejectment, to put himself in possession of the rents and profits of the estate [;] and file a bill in Chancery, to foreclose the mortgage." (emphasis added) ); Royal Palm[ Corp. Ctr. Ass'n, Ltd. v. PNC Bank, NA], 89 So.3d [923,] 929-30 [ (Fla. 4th DCA 2012) ] (concluding that the action on a promissory note and the action to foreclose the mortgage may be done simultaneously in one action, as is the common case in Florida, leaving only the deficiency action if the sale fails to satisfy the final judgment)....
"Thus, any action based upon the mortgage note in this case was extinguished by the judgment of foreclosure and, consequently, an action for deficiency is not based upon the mortgage note, but instead arises from the final judgment entered and subsequent foreclosure sale." Chrestensen[v. Eurogest, Inc.], 906 So.2d [343,] 345 n.4 [ (Fla. 4th DCA 2005) ] ....
... A plaintiff seeking a deficiency must establish "1) entry of final judgment of foreclosure; 2) sale of the foreclosed property pursuant to the judgment; [and] 3) issuance of a certificate of title for the property." Frohman v. Bar-Or, 660 So.2d 633, 636 (Fla. 1995).

(Alterations in original.) Ours is not the only district court of appeal to have reached this conclusion. See Chrestensen, 906 So.2d at 346 ("[W]e hold that the statute of limitations for a deficiency judgment does not begin to run until the foreclosure judgment and foreclosure sale, not at the default date of the underlying mortgage note."); see also Sueter v. Wells Fargo Bank, N.A., 5D17-3821, 263 So.3d 254, 254, 2019 WL 405601, *1 (Fla. 5th DCA Jan. 29, 2019) (citing and quoting Aluia, 205 So.3d at 775, for the elements of a deficiency cause of action); Dyck-O'Neal, Inc. v. Germany, 236 So.3d 1194, 1194-95 (Fla. 5th DCA 2018) (reversing summary judgment and citing Chrestensen's holding that "the statute of limitations to seek a deficiency judgment does not begin to run until after the entry of foreclosure judgment and subsequent foreclosure sale").

The trial court mistakenly relied on Bush, 219 So.3d at 259, a case that held that a breach of contract claim following an approved short sale transaction was not subject to section 95.11(5)(h). Bush, however, does not apply to the kind of claim DONI has alleged. The "shortfall" the bank was contractually permitted to pursue following the short sale in Bush is not the same as a deficiency claim that would arise following a foreclosure judgment and sale. Rather, as Bush made clear in its opening sentence, the claim before that court was one that sounded in breach of contract. Id. at 257. This distinction between the breach of contract claim in Bush versus the deficiency claim in Aluia-between a breach of contract cause of action following a short sale and an in rem or quasi in rem claim arising from a deficiency after a foreclosure sale-is both readily apparent and critically important because "a deficiency does not exist without a foreclosure judgment and sale." Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P., 222 So.3d 647, 652 (Fla. 2d DCA 2017). In its context, we would have no cause to disagree with Bush's analysis at all. But section 95.11(5)(h) does apply here, where a plaintiff seeks a deficiency judgment, a foreclosure judgment has been entered, and the clerk of the circuit court has issued a certificate of title. See Aluia, 205 So.3d at 774-75 ; Sueter, 263 So.3d at 254, 2019 WL 405601, *1 ; Germany, 236 So.3d at 1194-95.

As a matter of law, DONI's deficiency claim could not accrue for purposes of the statute of limitations until the entry of a foreclosure judgment and subsequent foreclosure sale. Therefore, DONI's action was timely under section 95.11(5)(h), and the trial court's entry of summary judgment on the basis that the statute of limitations had expired was incorrect.

Turning to the trial court's second basis for granting summary judgment in favor of the Nortons, we agree with DONI that the record before us does not "conclusively demonstrate that no genuine issue of material fact exists" such that the Nortons were entitled to judgment as a matter of law. See Maldonado v. Publix Supermarkets, 939 So.2d 290, 293 (Fla. 4th DCA 2006) (further observing that "[t]he proof [for summary judgment] must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party" (quoting Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966) ) ). The Nortons' motion, memorandum, and affidavit asserted only that the Nortons "relied" (in some unspecified way) on DONI's predecessor's filing of a Form 1099-A when they prepared their individual tax returns. But an equitable estoppel defense requires pleading and proof of (1) a representation about a material fact that is contrary to a later asserted position; (2) reliance on that representation; and (3) a detrimental change in position as a result of that reliance. See Winans v. Weber, 979 So.2d 269, 274-75 (Fla. 2d DCA 2007) ; Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002) ; MDS (Canada) Inc. v. Rad Source Techs., Inc., 720 F.3d 833, 852 (11th Cir. 2013) (applying Florida law). A party asserting equitable estoppel must show more than mere reliance; the reliance must also yield some manner of an adverse or detrimental change in the party's position. Verzosa, 816 So.2d at 835. The Nortons proffered no evidence whatsoever showing how or why the filing of this tax form caused them any detrimental change. Thus, they did not meet their initial burden of presenting a "crystallized, conclusive" record that would support their defense, Lucey v. 1010 Logic, Inc., 208 So.3d 1236, 1238 (Fla. 2d DCA 2017) (quoting Hastings v. Demming, 682 So.2d 1107, 1110 (Fla. 2d DCA 1996) ), and so the trial court's summary judgment cannot be affirmed on that basis.

Accordingly, we reverse the judgment below and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

LaROSE, C.J., and LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE, Concur.

      Until July 1, 2013, section 95.11(2)(b), Florida Statutes' five-year limitation for actions on a contract founded on a written instrument would have applied to DONI's cause of action. On July 1, 2013, section 95.11(5)(h) came into effect, which reduced the limitation period for deficiency claims related to notes secured by a mortgage against certain kinds of residential property to one year "after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure." See ch. 2013-137, § 1, at 1627, Laws of Fla. (2013). The legislature specified that any action that would have been timely under section 95.11(2)(b) before July 1, 2013, would have to be commenced within five years after the action accrued or by July 1, 2014, "whichever comes first." Id.

      The Nortons never really explain how Bush advances their argument about accrual. As best as we can gather from their brief and oral arguments, the Nortons appear to be applying Bush along the following line: (1) if Bush's holding applies to their case, then (2) section 95.11(5)(h) would not apply to DONI's claim, so that, by implication, (3) DONI's claim would be subject to section 95.11(2)(b)'s five-year statute of limitations, which (4) "begins to run by default when the last elements of the cause of action accrues," which (5) the Nortons maintain would be the breach of their promissory note. That argument would not carry them very far, though, as it is over-weighted with inference. The Bush opinion only discussed why a breach of contract claim following a short sale would not be subject to section 95.11(5)(h) ; the opinion was silent about deficiency claims.

      We would agree with DONI that the Nortons' affidavit, which furnished the only evidence that the Nortons "relied" on this tax form's filing, appears irregular, perhaps even ineffective, in several respects. However, DONI failed to provide a transcript of the summary judgment hearing, and there is no written motion or memorandum filed below challenging the affidavit's propriety. We have no way of knowing whether DONI ever brought this issue to the trial court's attention, and thus we cannot consider the argument in this appeal. See Johnson v. Deutsche Bank Nat'l Tr. Co. Ams., 248 So.3d 1205, 1211 (Fla. 2d DCA 2018) (observing that although "a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved").


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

text:
    KANTER REAL ESTATE, LLC, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, City of Miramar, and Broward County, Florida, Appellees.
    No. 1D17-5096
    District Court of Appeal of Florida, First District.
    March 19, 2019 Rehearing Denied March 19, 2019
    Douglas P. Manson, Brian Bolves, William S. Bilenky, Paria Shirzadi Heeter and Christine Senne of Manson Bolves Donaldson Varn, P.A., Tampa, for Appellant.
    Robert A. Williams, General Counsel, Jeffrey Brown, Office of General Counsel, State of Florida Department of Environmental Protection, Tallahassee, for Appellee Florida Department of Environmental Protection.
    Daniel L. Abbott, Jamie A. Cole, Richard B. Rosengarten, and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for Appellee City of Miramar.
    Andrew J. Meyers, Broward County Attorney, Michael C. Owens, Senior Assistant County Attorney, and Rocio Blanco Garcia, Assistant County Attorney, Fort Lauderdale, for Appellee Broward County.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Mara Shlackman of Law Offices of Mara Shlackman, P.L., Fort Lauderdale, for Amicus Curiae South Florida Wildlands Association, Inc.
    OPINION ON MOTION FOR REHEARING , REHEARING EN BANC , AND TO CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE
   B.L. Thomas, C.J.

We deny Appellees' motions for rehearing, rehearing en banc, and to certify a question of great public importance. To clarify our holding regarding our standard of review of the agency's conclusions of law, we withdraw our prior opinion and substitute the following in its place.

Appellant, Kanter Real Estate, LLC, challenges a Final Order of the Department of Environmental Protection denying a permit to drill an exploratory oil well, which complied with all environmental-protection requirements, in an "environmentally degraded" property located in the Florida Everglades. This Court has jurisdiction. Fla. R. App. P. 9.030(b)(1)(C). For the reasons set forth below, we reverse the Final Order and remand for entry of an order consistent with the Administrative Law Judge's Recommended Order, and we direct the Department to issue the requested oil and gas permit.

Appellant owns in fee simple the surface rights and subsurface mineral rights of a 20,000-acre parcel of land located in Broward County. The property, which is located in Water Conservation Area 3 of the Florida Everglades, is encumbered by a flowage easement held by the South Florida Water Management District. The easement reserved rights of ingress and egress to the grantor, including access "for the exploration or drilling for, or the developing, producing, storing or removing of oil ... in accordance with sound engineering principles."

In 2015, Appellant applied to construct and drill an exploratory oil well on five acres of the property. The Department granted Appellant an Environmental Resource Permit that defined and approved the design of a stormwater management system at the site to protect offsite lands from any stormwater discharges. Appellant also committed to a number of pollution prevention measures, including spill prevention and cleaning plans, a hydrogen sulfide plan, a construction pollution prevention plan, proposals for wildlife management, and a safety manual.

The Department sent Appellant three requests for information about issues such as the aquifer, the project site design, and protections for the surrounding area. After responding, Appellant demanded that the Department process the oil and gas permit application. The Department issued a Notice of Denial, stating that Appellant failed to provide information showing a balance of considerations in favor of issuance under section 377.241, Florida Statutes. Section 377.241 sets forth the following relevant criteria for the Department to consider when deciding whether to issue an oil and gas permit:

(1) The nature, character and location of the lands involved; whether rural, such as farms, groves, or ranches, or urban property vacant or presently developed for residential or business purposes or are in such a location or of such a nature as to make such improvements and developments a probability in the near future.
(2) The nature, type and extent of ownership of the applicant, including such matters as the length of time the applicant has owned the rights claimed without having performed any of the exploratory operations so granted or authorized.
(3) The proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis.

§ 377.241, Fla. Stat. (2018).

To challenge the Department's decision, Appellant filed a petition for an administrative hearing, which was referred to the Division of Administrative Hearings. The parties stipulated that Appellant's application met the minimum design standards for a permit and did not violate statutory setback requirements. Thus, the only issue for the Administrative Law Judge (ALJ) to determine was whether the statutory criteria of section 377.241 weighed in favor of or against issuance of an oil and gas permit.

Appellant presented evidence that the project site lies in an area called "the pocket," notable for its degraded natural habitat and lessened environmental values. Appellant also presented the environmental resource permit that was granted by the Department in acknowledgment of Appellant satisfying all necessary environmental precautions. Appellant also introduced evidence that the Department had allowed other oil wells in the Everglades, including one approximately twenty-four miles west of Appellant's project site that began operation in the late 1970s.

Appellant's expert testified that there was a 23% chance of discovering oil at the project site, and that in the oil exploration industry, a 23% chance of discovering oil constitutes a very good prospect. The expert further testified that Appellant's well would be commercially self-supporting at $50 per barrel of oil if only 100,000 barrels were discovered, and opined that the proposed well would generate between 180,000 to 10,000,000 barrels of oil if oil were discovered.

The ALJ concluded that the first statutory factor, the nature of the lands involved, did not weigh against issuance, as the factor was intended to address and balance the interests of subsurface mineral rights owners against any competing interests of surface owners, and that "[g]iven the unified title to the Well Site in Kanter, balancing of the interests of the fee simple owner against the interests of the mineral rights lessee is neither necessary nor appropriate." The ALJ cited a series of Whereas clauses to illustrate the legislature's concern over divided ownership interests. In addition, the ALJ found that even if the first factor was relevant in the absence of divided ownership interests, "[t]he property upon which the Well Site is to be located has no special characteristics that would make it susceptible to pollution."

The ALJ then concluded that the second statutory factor, the nature of ownership, including the length of time in which Appellant delayed exercising oil rights, did not weigh against issuance in this case, as Appellant owned both surface and mineral rights. As to the third factor, the likelihood of discovering oil on a profitable basis, the ALJ found there was a strong chance (17%) of Appellant discovering oil, meaning the third factor weighed in favor of issuance. Balancing the three factors, the ALJ recommended granting Appellant's permit request.

The Department filed twelve exceptions to the ALJ's Recommended Order, stating that there was no competent, substantial evidence to support the likelihood of discovering oil in sufficient quantities to be profitable, and that Appellant's delay in applying for a permit should have been considered. The Secretary entered a Final Order denying Appellant's request for an oil and gas permit.

As to the nature of the land, the Final Order states that section 377.241, Florida Statutes, requires an evaluation of the lands themselves, rather than a risk analysis of possible discharge, concluding:

The lands proposed for the Well Site are located in the endangered Everglades ecosystem, which is world renowned for its unique environmental characteristics. In accordance with the Everglades Forever Act, the Florida Legislature has dedicated the Everglades to long term restoration.

As to the second statutory factor, the Secretary reversed the ALJ's conclusions, declaring that Appellant's delay in seeking a permit was relevant to the balancing test and weighed against issuance. As to the third statutory factor, the Secretary accepted the ALJ's determination that there was a reasonable likelihood of discovering oil in commercially profitable quantities. The Secretary then concluded that, "using the same criteria in Section 377.241, Florida Statutes, the balance tips against issuance of an oil and gas permit to drill an exploratory well in the environmentally sensitive Everglades." The Secretary compared the facts to a case in which the statutory balancing test weighed against issuing a permit to drill in an environmentally sensitive location. See Coastal Petroleum Co. v. Florida Wildlife Fed'n, Inc. , 766 So.2d 226, 228 (Fla. 1st DCA 1999).

The Final Order discussed the Department's history of denying oil and gas permits in the Everglades, declaring:

[The Department] has not issued an oil and gas exploration permit since 1967 within the Everglades lands subject to conservation and restoration under § 373.4592, Florida Statutes. Thus, the last oil and gas exploration permit within such lands was 50 years ago, well before Section 373.4592 known as the Everglades Forever Act, was enacted by the Florida Legislature in 1991. The Florida Legislature has not amended its position regarding the need to preserve and restore the Everglades since 1991, nor has [the Department] issued an oil and gas exploration permit within this boundary of the Everglades once such lands became subject to restoration under the Everglades Forever Act.

(Internal citations omitted). The Secretary stated in a footnote that "this specific information did not form the basis of the agency's decision, but merely reflects that DEP has not changed its longstanding policy to deny oil and gas permits within lands subject to Everglades restoration."

Analysis

Section 120.57(1)(l ), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules. Barfield v. Dep't of Health , 805 So.2d 1008, 1010 (Fla. 1st DCA 2001). Before the recent passing of Amendment Six to the Florida Constitution, this Court afforded considerable deference to agency interpretations of statutes and rules, affirming such interpretations unless clearly erroneous. E.g. , Falk v. Beard , 614 So.2d 1086, 1089 (Fla. 1993) ; Addison v. Agency for Persons with Disabilities , 113 So.3d 1053, 1056 (Fla. 1st DCA 2013). Amendment Six declares that appellate courts may no longer defer to an agency's statutory interpretation, and must instead apply a de novo review. Amend. VI, Art. V, § 21, Fla. Const.

For factual findings, "[a]n agency must accept the administrative law judge's factual findings unless they are not supported by competent substantial evidence." Stinson v. Winn , 938 So.2d 554, 555 (Fla. 1st DCA 2006) ; see also § 120.57(1)(l ), Fla. Stat. (declaring that an agency may not reject or modify an ALJ's findings of fact "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law"). In fact, "[i]f the ALJ's findings of fact are supported by competent, substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent, substantial evidence." Lantz v. Smith , 106 So.3d 518, 521 (Fla. 1st DCA 2013). Likewise, an agency may not "reject a finding that is substantially one of fact simply by treating it as a legal conclusion." Abrams v. Seminole Cty. Sch. Bd. , 73 So.3d 285, 294 (Fla. 5th DCA 2011).

Moreover, an agency is not permitted to consider evidence outside the record when reviewing exceptions to a recommended order. Walker v. Bd. of Prof'l Engineers , 946 So.2d 604, 605 (Fla. 1st DCA 2006). In addition, an agency "may not base agency action that determines the substantial interests of a party on an unadopted rule ...." § 120.57(1)(e)1., Fla. Stat. (2018). This "does not preclude application of valid adopted rules and applicable provisions of law to the facts." Id.

Section 377.241, Florida Statutes, governs the Department's decisions on oil and gas permits. In Coastal Petroleum , this Court held that the Department "correctly determined" that section 377.241 stated a multi-factor balancing test that "requires the agency to 'weigh' the criteria of section 377.241, balancing environmental interests against the right to explore for oil." 766 So.2d at 228. Under that balancing test, this Court affirmed the Department's denial of a permit to drill for oil off St. George Island, rejecting an ALJ's recommendation to grant the permit. Id.

Whether we afford deference to the Department's statutory interpretation, as we did when Coastal Petroleum was decided, or apply a de novo review, we hold that the Department and this Court were correct that the statute states a list of factors to be weighed, as opposed to a checklist of minimum requirements. See § 377.241, Fla. Stat. (2018) (declaring that the Department "shall give consideration to and be guided by" the listed criteria). The issue presented here is whether the Department correctly applied that balancing test in its Final Order, under the facts found by the ALJ. We hold that it did not.

The First Statutory Factor - The Nature, Character, and Location of the Lands Involved

Paragraph 109 of the Recommended Order reads:

109. The property upon which the Well Site is to be located has no special characteristics that would make it susceptible to pollution. Although the Well Site is in WCA-3, it is located in the Pocket, an area with existing road access that is hydrologically isolated from both surface and groundwater and is environmentally degraded and overrun with cattails. The area is far less likely to impact natural resources than other Department-permitted wells, notably those at Raccoon Point which exist in the Big Cypress National Preserve, in a far more ecologically intact area than here.

(Emphasis added.) Despite these findings, the Final Order denying Appellant's permit application stated that the first factor weighs against issuance because the project site lies within the Everglades ecosystem, which "is world renowned for its unique environmental characteristics." Appellant argues that it was reversible error for the Secretary to substitute its factual findings for the ALJ's factual findings.

The Department asserts it did not reject the ALJ's factual findings, but rather rejected the ALJ's legal conclusion that the land had no "special characteristics," and then gave more weight to the nature of the land factor when re-applying the balancing test. Appellees admit, however, that although the Secretary characterized Paragraph 109 as a conclusion of law, its second and third sentences are factual findings. Cf. Abrams , 73 So.3d at 294 (an agency may not "reject a finding that is substantially one of fact simply by treating it as a legal conclusion."). Appellant correctly asserts that Paragraph 109 is made up entirely of factual findings and that the Secretary improperly relied upon or created an unadopted rule by basing its decision on a "long-standing policy to deny oil and gas permits within lands subject to Everglades restoration."

Appellees insist that the Secretary's "longstanding policy" comment was merely meant to illustrate how rarely permits are issued in these circumstances, and that the Secretary's decision was made simply by reweighing the balancing test of section 377.241 to conclude that the sensitive nature of the land and Appellant's delay in seeking a permit outweighed the prospects of finding oil on a profitable basis. We disagree.

Appellees' argument fails to adequately explain how the Secretary could have accepted the ALJ's factual findings about the land and still concluded that the land was of such a sensitive nature that the first factor weighed against Appellant. We hold, therefore, that the Secretary improperly relied on an unadopted rule which would in practice prohibit all exploratory oil drilling in the Everglades, without statutory authority, as we note below.

Every sentence in Paragraph 109 is a factual finding. See J.J. Taylor Cos., Inc. v. Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Beverages & Tobacco , 724 So.2d 192, 193 (Fla. 1st DCA 1999) (declaring that to assess whether a statement is a factual finding or conclusion of law in order to determine what level of review to apply, "it is the true nature and substance of the determination or ruling by the ALJ that controls the Department's ability to reject the ruling."). In Goin v. Commission on Ethics , the hearing officer stated that "there is not sufficient evidence to persuade me that, as a typical consumer in such a transaction, he knew or should have known that it was such a good deal that he must have been receiving a break on the price because of his public position." 658 So.2d 1131, 1137 (Fla. 1st DCA 1995). The parties disagreed over whether this statement was a factual finding or a conclusion of law. Id. This Court held that the hearing officer's statement was an ultimate finding of fact, as it stated violations of a rule or statute. Id. at 1138.

Here, the ALJ's ultimate finding of fact was that the land in question did not have any qualities that would make it vulnerable to pollution of the land, aquifer or surface waters, a finding the ALJ supported with examples and facts introduced as evidence. This was a factual finding, because the "true nature and substance" of the statement was to provide a factual basis for the legal conclusion that the first statutory factor did not weigh against issuance of a permit. Because Paragraph 109 consisted of factual findings supported by competent, substantial evidence, we agree with Appellant that the Secretary improperly rejected these factual findings. See Stinson , 938 So.2d at 555.

In addition to rejecting factual findings supported by competent, substantial evidence, the Secretary also erred in relying on facts from outside the record by considering language from the Everglades Forever Act and inferences derived therefrom. Cf. Gen. Dev. Utils., Inc. v. Hawkins , 357 So.2d 408, 409 (Fla. 1978). Although the Secretary commented that the Everglades Forever Act demonstrates a legislative dedication to long-term Everglades restoration, the Everglades Forever Act does not prohibit exploratory-oil drilling. See generally § 373.4592, Fla. Stat. Moreover, language from the Everglades Forever Act was never discussed in the proceedings until the Final Order.

In Hawkins , an agency issued an order that applied a debt to equity ratio of 62% to 38%; the agency stated that this ratio, which did not appear in the record, was consistent with typical water company stocks and average ratios. 357 So.2d at 409. The supreme court held that "[t]he arbitrary selection of this ratio as a 'fact' comes from outside the record of the proceeding and plainly violates the notions of agency due process which are embodied in the administrative procedure act." Id. The supreme court declared that "[t]he Commission is not obliged to accept either the company's suggested hypothetical or its actual equity/debt ratio if there are valid reasons for rejecting them, but it is required to allow the company to know in advance and to challenge the data on which it chooses to rely." Id.

Similarly, in Lawnwood Medical Center, Inc. v. Agency for Health Care Administration , an agency reopened the record, reweighed evidence, and recast findings of fact as policy questions to be weighed. 678 So.2d 421, 425 (Fla. 1st DCA 1996). This Court declared that "[o]fficial recognition is not a device for agencies to circumvent the hearing officer's findings of fact by building a new record on which to make new findings." Id. This Court also noted the distinction between rebalancing statutory factors and recasting facts, stating: "Perhaps in a proper case [the agency] might attribute greater weight to certain of the review criteria than that attributed by the hearing officer. The fact is, however, that in this particular case [the agency] did not merely reprioritize the criteria; it recast the facts." Id. at 426.

Like in Lawnwood , the Final Order here goes beyond simply affording more weight to one statutory factor; rather, the Secretary completely set aside the ALJ's factual findings about the nature of the land. See § 120.57(1)(l ), Fla. Stat. ("The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law."). The Secretary described the lands completely differently, using facts from outside the record and without even suggesting that the ALJ's factual findings were unsupported by competent, substantial evidence. In so doing, the Secretary improperly recast factual findings to reach a desired outcome, contrary to law.

The Second Statutory Factor - The Nature of Ownership, Including Delay in Exercising Rights

As to the second statutory factor, the Secretary did not disagree with any of the ALJ's factual findings. Instead, the Secretary disagreed with the ALJ's interpretation of section 377.241(2), Florida Statutes, and with the ALJ's legal conclusion that the second factor had little to no weight in the balancing test because Appellant owned both the surface and mineral rights to the land. The Secretary stated that its interpretation - that the second factor weighs against an applicant who sits on his mineral rights, even when there is no divided ownership - was more reasonable than the ALJ's interpretation.

Whether we review the Secretary's interpretation under a de novo standard, as required by Amendment VI, Article V, section 21, Florida Constitution, or with the deference required by our prior decisions, we reach the same conclusion: we reject the Secretary's interpretation of section 377.241(2), as it was both incorrect and clearly erroneous. See Addison , 113 So.3d at 1056. The Whereas clauses cited in the Recommended Order demonstrate the legislature's overriding concern with divided ownership interests. See Act Relating to Conservation of Oil, Gas and Mineral Resources and to the Protection of Surface Rights of Landowners, Ch. 61-299, Laws of Fla. (1961) ("WHEREAS, the owners of fee simple titles to the surface rights in granting undivided fractional oil, gas and mineral rights had no intention that such grants should give their grantees the rights to unduly interfere with the potential surface development and use of such lands for farms, groves and ranches, or the building of homes, commercial buildings or other proper and appropriate use as might be indicated by the character or location of the land"); S. Fla. Racing Ass'n v. State, Dep't of Bus. & Prof'l Reg., Div. of Pari-Mutuel Wagering , 201 So.3d 57, 64 (Fla. 3d DCA 2015) (rejecting an agency's interpretation of a statute in part because "the whereas clauses in the 1980 enactment evince a legislative intent to allow a struggling entity to remain in business during the summer, thereby increasing tax revenues and tourism.").

The very purpose of section 377.241, Florida Statutes, "was to institute a permit process in order to protect landowners from undue burdens from mineral leases." Thomas G. Mosher & Matthew Schwartz v. Dan A. Hughes Co. & Dep't of Envtl. Prot. , Case Nos. 13-4254, 13-4920 (DOAH June 3, 2014) (application withdrawn by stipulation July 17, 2014) (internal citation omitted). Although section 377.241(2) does not explicitly mention divided ownership interests, the statute must be "construed in light of the evil to be remedied and the remedy conceived by the Legislature to cure that evil." Orlando Sports Stadium, Inc. v. State ex rel. Powell , 262 So.2d 881, 885 (Fla. 1972). Here, Appellant's delay could not interfere with any landowner's surface rights, because Appellant is the owner of the surface rights. There is no rational reason to be concerned about an applicant sitting on his drilling rights when there is no competing surface interest. Because the delay in exercising drilling rights served as the sole basis for the Secretary's conclusion that the second factor weighed against issuance, and because this conclusion was based on a misinterpretation of section 377.241(2), Florida Statutes, we reverse the Secretary's conclusion as to the second statutory factor.

The Third Statutory Factor - The Likelihood of Discovering Oil in Profitable Quantities

The third statutory factor requires the Department to assess the "indicated likelihood of the presence of oil ... in such quantities as to warrant the exploration and extraction ... on a commercially profitable basis." § 377.241(3), Fla. Stat. (2018). As the Secretary wholly accepted the ALJ's factual findings and conclusions, there is no basis for reversal on the third factor.

Conclusion

We hold that the Secretary improperly rejected the ALJ's factual findings on the first statutory factor, recast the facts, and relied on information from outside the record. It was an abuse of discretion to reject, modify, or substitute the ALJ's factual findings, and when " "the reasons for the change are legally insufficient, it is entirely appropriate to remand with instructions to approve the hearing officer's recommendations.' " Resnick v. Flagler Cty. Sch. Bd. , 46 So.3d 1110, 1113 (Fla. 5th DCA 2010) (quoting Dep't of Prof'l Regulation v. Bernal , 531 So.2d 967 (Fla. 1988) ). Moreover, we hold that the Secretary misinterpreted section 377.241(2), Florida Statutes, which the ALJ correctly determined is inapplicable when there is no divided ownership interest. Thus, there was no basis for the Secretary to conclude that the first or second factor weighed against issuance of Appellant's oil and gas permit. Accordingly, we reverse and remand for entry of a final order consistent with the Recommended Order and direct the Department to grant Appellant's permit application.

REVERSED and REMANDED .

Jay, J., and Long, Jr., Robert E., Associate Judge, concur.

      Broward County also filed exceptions to the Recommended Order, but the county's exceptions were untimely filed and the merits of the exceptions were not considered by the Department.


author: LaROSE, Chief Judge.

text:
    Sandrine Marie AKRE-DESCHAMPS, Appellant, v. Brendan SMITH, Appellee.
    Case No. 2D17-4837
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019.
    Thomas A. Burns and Arda Goker of Burns, P.A., Tampa, for Appellant.
    Adam G. Russo and Christopher H. Hunt of Myers, Eichelberger & Russo, P.L., Orlando, for Appellee.
   LaROSE, Chief Judge.

Sandrine Marie Akre-Deschamps (the Mother) challenges the trial court's order granting motions for child pickup, contempt, sanctions, and makeup time-sharing in favor of Brendan Smith (the Father). Because the trial court based one of its findings of contempt on conduct that did not violate any prior order, we reverse in part and remand with directions. We affirm the order in all other respects.

Background

The Mother is a French citizen who lives in France. The Father, who lives in Florida, is a U.S. citizen. Although they are not married, the Mother and Father have a preteen daughter who enjoys dual U.S. and French citizenship. In 2012, the parties obtained a foreign custody order from District of Montreal, Province of Quebec, Canada. At the time, the Mother lived in Canada on a student visa; the Father lived in Florida. In 2015, the Mother's visa expired and she returned to France. The child had been living with the Father since 2012. The Father subsequently filed a petition in Florida to domesticate and modify the Canadian custody order. After an evidentiary hearing, the trial court entered a final judgment granting the petition, domesticating the Canadian custody order, and modifying time-sharing provisions (hereinafter referred to as the "domestication order").

The domestication order provided full time-sharing to the Father during the school year, full time-sharing to the Mother during spring break and summer vacation, and rotating time-sharing for Thanksgiving and Christmas. Because the child would spend spring break in France, the domestication order provided for the child's return to Florida not less than twenty-four hours before the end of the break. The trial court admonished the Mother and Father not to make disparaging remarks about one another in front of the child.

The domestication order also specified terms for the "Transportation and Exchange of Minor Child." More specifically, the order provided that "[t]he parties shall have the [child] ready on time with sufficient clothing packed, and ready at the agreed upon time of exchange." Additionally, the child was to return "with the same items that accompanied the [child] when the [child] is released to the Party to exercise time-sharing with the [child]." The order specified the locations in the airport where the parties shall exchange the child. The party responsible for missing a travel connection was responsible for any costs incurred by the missed connection.

In 2017, the then-nine-year-old child spent spring break with the Mother in France. At a previously arranged time at the end of spring break, the Mother arrived with her sister and the child at the airport in Paris, France, to return the child to the Father. The Father and his girlfriend were at the airport for the exchange. The child refused to leave with the Father. Unfortunately, the domestication order did not contemplate how the parties should respond to such a situation. The transfer of custody did not occur.

The Father thereafter filed an emergency motion for child pick up and a verified motion for contempt, sanctions, and makeup time-sharing. The trial court held an evidentiary hearing on the emergency motion in April 2017, and an evidentiary hearing on the motion for contempt in September 2017.

At the contempt hearing, the trial court found that the Mother physically prevented the Father from picking up the child when the child refused to leave. It also found that the Father's girlfriend tried to convince the child to calmly board the plane but the Mother rebuked the girlfriend, telling her to stop talking to the child and to leave the child alone. The trial court held the Mother in contempt for willfully failing to comply with the domestication order when she (1) "physically and intentionally prevented [the Father] from causing the Minor Child to board the airplane back to Florida from France," (2) "intentionally prevented [the Father's] girlfriend from speaking to, coaxing and convincing the Minor Child to willingly board the airplane," and (3) "made no attempt to arrange pick-up of the Minor Child ... subsequent to the failed Paris, France, airport transfer on or about March 26, 2017." The Mother appeals this order.

Analysis

The Mother argues that the trial court erroneously held her in contempt for conduct that was not in clear violation of the trial court's domestication order. Specifically, she argues that the trial court's "prior orders did not explicitly set forth the conduct that would be expected of the parties if the child were to refuse to board the plane to Florida with her father." The Mother further argues that "[t]he transfer of custody was complete when [she] delivered her daughter to [the Father] at the airport," and that "[t]he trial court's prior orders simply did not contemplate anything that might occur after the moment in time when [she] brought the child to the airport and delivered custody to [the Father]." (Emphasis added).

Initially, we note that the Mother provided us only a transcript excerpt from the contempt hearing. This excerpt contains the trial court's summary of the evidence and oral ruling; it does not contain the evidence presented at the hearing. Absent a full transcript, we presume the trial court's factual findings are correct. See Speer v. Mason, 769 So.2d 1102, 1103-04 (Fla. 4th DCA 2000). Additionally, we may only reverse if an error of law appears on the face of the record. See Fugina v. Fugina, 874 So.2d 1268, 1269 (Fla. 5th DCA 2004) ("Because there is no transcript of the hearing in this contempt proceeding, our review is limited to errors of law that are apparent on the face of the record.").

An error may appear on the face of record where the trial court holds a person in contempt of an order based on noncompliance with something the order does not say. See, e.g., Kadanec v. Kadanec, 765 So.2d 884, 886 (Fla. 2d DCA 2000) (holding "[t]he characterization of the $ 20,945 as bridge-the-gap alimony [was] a legal error on the face of the order that warrant[ed] reversal," where the prior order awarded $ 20,945 as equitable distribution and expressly denied alimony, and the property division award could not be enforced by contempt). After all, the law is clear that the trial court may not hold a person in contempt of an order unless the language of the order was "clear and precise,"

and the person's conduct "clearly violate[d] the order." Reder v. Miller, 102 So.3d 742, 743 (Fla. 2d DCA 2012) (quoting Paul v. Johnson, 604 So.2d 883, 884 (Fla. 5th DCA 1992) ); see also Minda v. Ponce, 918 So.2d 417, 421 (Fla. 2d DCA 2006) ("The prior judge's intent ... cannot form the basis of a finding of contempt when that intent was not plainly expressed in the written order."); DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005) ("[A] judge cannot base contempt upon noncompliance with something an order does not say." (quoting Keitel v. Keitel, 716 So.2d 842, 845 (Fla. 4th DCA 1998) (Farmer, J., specially concurring) ) ).

We find no clear error on the face of the record regarding the trial court's first and second findings of contempt, i.e., (1) the Mother's physical and intentional conduct directed toward the Father at the airport, and (2) the Mother's intentional conduct directed toward the Father's girlfriend. The Father correctly concedes that the trial court's domestication order, which is in our record, and oral ruling did not discuss what to do when the child adamantly refused to leave with him. Nor does the domestication order discuss the parties' obligations in the event of a failed transfer, beyond cost obligations.

This is not a case like Marcus v. Marcus, 902 So.2d 259 (Fla. 4th DCA 2005), on which the Mother relies. In Marcus, the trial court held the mother in contempt for "not taking adequate steps to insure that, when it is the [father's] time with the children, the father gets to exercise his visitation." Id. at 262. The transfer failed after the children refused visitation with the father, and the mother refused to physically force the children to go with the father. Id. at 263. The Fourth District held that the trial court erred in holding the mother in contempt "[b]ecause the order setting visitation was not sufficiently explicit for the [mother] to determine what her obligation was" when the children simply refused visitation. Id. at 260, 263.

Unlike the mother in Marcus, the Mother did not simply refuse to physically force the child to board the plane. The trial court's first and second findings of contempt were not based on the Mother's failure to take adequate steps to ensure visitation where the child refused visitation. Instead, the trial court recognized at the contempt hearing that the child refused visitation but held the Mother in contempt because she actively interfered with the Father's and his girlfriend's attempts to retrieve the upset child for visitation with the Father. The trial court's written findings of contempt also focused on the Mother's intentional acts that prevented visitation; it made no mention of the child's refusal to visit the Father.

And, the domestication order required the Mother to return the child to the Father at the airport before the end of spring break. The order did not allow the parties to refuse to permit visitation simply because the child refused visitation. Cf. Minda, 918 So.2d at 421 (holding that trial court erred in finding father in contempt for transferring custody of child when child was ill where order did "not allow one party to refuse to permit visitation or to refuse to transfer custody simply because the child [was] ill"). Thus, the Mother may have initially made the child available, but she ultimately prevented the return of the child to the Father, in direct violation of the trial court's domestication order. Quite simply, she did not deliver custody of the child to the Father.

The fact that some of the Mother's conduct was directed at the Father's girlfriend does not affect our disposition; the Father was present at the airport, and his girlfriend's actions were intended to facilitate the Mother's return of the child to the Father. Cf. Cooley v. Moody, 884 So.2d 143, 144-45 (Fla. 2d DCA 2004) (stating mother could not be held in contempt for failing to leave child with father's wife where order directed mother to turn child over to father and father was not present for custody transfer). Again, the order required the Mother to return the child to the Father.

The trial court's third finding of contempt, failing to attempt to arrange pickup of the child after the failed transfer, was erroneous because the order did not direct the Mother to do so. See id. at 145 ("[T]he trial court erred by proceeding to find the Mother in contempt for failing to make attempts to effectuate the transfer of custody after August 11, 2003. It may have been the trial court's intent that the Mother find an alternative method to transfer custody if the August 11 transfer failed, but there is no language in the trial court's temporary custody order that directs the Mother to do so.").

Therefore, we affirm the trial court's contempt order but reverse and remand for the trial court to strike its finding that the Mother was in contempt for failing to make any attempt to arrange pickup of the child after the failed Paris airport transfer. See Simpson v. Young, 884 So.2d 186, 188 (Fla. 2d DCA 2004) ("We affirm the order of contempt, but remand to the circuit court to strike the finding that the Simpsons were in contempt for moving the children to South Carolina.").

Affirmed in part, reversed in part, and remanded with directions.

KELLY and SALARIO, JJ., Concur.

      The Fourth District also held that the mother's conduct did not constitute willfulness where there was no evidence that the mother undermined the father's visitation privileges or prevented the children's visitation. Id. at 263. The Mother mentioned this holding in her briefs. But the holding is not relevant to our disposition because the Mother does not contest the finding of willfulness on appeal and focuses on whether the trial court found contempt based on conduct not expressly prohibited in the trial court's domestication order or oral ruling.