Fourth DCA:  Trial Court Order of Juvenile Detention Pending Placement in Residential Program Did Not Violate Florida Law

V.P. v. State
Case No. 4D11-3001

The trial court adjudicated V.P. delinquent on a first-degree petit theft count, and revoked V.P.’s probation for counts of battery, second-degree petit theft, and grand theft. Pending placement in a moderate risk residential program, the trial court put V.P. on home detention with electronic monitoring and an 8 p.m. curfew. V.P. brought a petition for writ of habeus corpus, arguing the trial court’s order violated the requirement of section 985.27(1)(b), Florida Statutes (2011) because “there is no statutory authority for unlimited home detention and . . . the phrase ‘must be removed from detention within 5 days’ in the first sentence [of section 985.27(1)(b)] limits all forms of detention to five days,” unless extended an additional ten days upon request of the Department of Juvenile Justice.

The Fourth District Court of Appeal stressed that the statute needed to be read in its entirety. The court reasoned that (1) home detention pending placement in a residential program was the least restrictive form of detention care available, (2) the “detention” that the statute referred to and limited to fifteen days is secure detention rather than home detention, and (3) parts of the statute would be rendered meaningless if the child had to be removed from home detention within five days. The Fourth DCA also noted that post-commitment juveniles have been found guilty of an offense and therefore no longer enjoy the presumption of innocence. The court concluded:

The legislature has structured the post-commitment detention statute in a manner that ensures that all committed juveniles awaiting placement in residential programs are physically detained or supervised in some fashion, not released without restrictions. The statute insures that those juveniles who are awaiting placement in low or moderate risk facilities do not languish in secure detention.

The court therefore denied V.P.’s petition.

Rahabi v. FIGA
Case No. 4D10-846*

The issue on appeal was whether our clients were entitled to an award of attorney’s fees because FIGA affirmatively denied our clients’ claim under the insurance policy prior to paying the appraisal award.

Our clients’ roof was damaged by Hurricane Wilma in 2005. Our clients sought coverage under the insurance policy to repair their roof. FIGA took over our clients’ insurance policy with Atlantic Preferred. In 2007, our clients filed a complaint and, initially, FIGA moved for dismissal. Later, FIGA filed an answer with affirmative defenses, and, after several months of discovery, FIGA decided to send the dispute for appraisal. An appraisal award was issued to our clients and FIGA paid the appraisal award. Our clients requested an award of attorney’s fees and costs from the trial court. The trial court denied the request reasoning that FIGA never affirmatively denied coverage of our clients’ claim. Our clients appealed arguing that FIGA affirmatively denied their claim by its actions.

The Fourth District Court of Appeal agreed. The court held that FIGA affirmatively denied our clients’ claim by asserting, in several of its affirmative defenses that our clients’ damages “were not caused by a covered loss.” The court disagreed with FIGA’s argument that its actions amounted to no more than a delay in payment of the claim. The court distinguished our clients’ decision from its recent decision in Ehrlich in which it held that FIGA did not affirmatively deny the party’s claim by filing its affirmative defenses because it was forced to file the pleading by a court order and sought an extension of time to complete its investigation. The court held that, in our clients’ case, FIGA neither sought an extension to complete its investigation nor had a court order compelling it to file a responsive pleading. The Fourth District Court of Appeal reversed and remanded with instructions that the trial court set an evidentiary hearing to determine our clients’ reasonable sum of fees and to determine whether our clients were entitled to a reimbursement of their costs.

* The Mandate has yet to be issued.

Fourth DCA:  Trial Court Erred in Holding Mother in Contempt Without Finding of Ability to Comply With Order

Harris v. Hampton
Case No. 4D11-966

The Fourth District Court of Appeal wrote to address an appeal of a non-final order of contempt entered after a final order in a post-dissolution of marriage case. The trial court had entered an order containing the parties’ agreement to enroll their minor child at a certain private school. The father then filed a motion for contempt, alleging the mother had failed to register the child in the school as required by the court’s order. The court granted the motion for contempt and ordered the mother to enroll the child immediately. The father later filed another motion for contempt and enforcement based on the mother’s failure to enroll the minor child in the school. The court granted the motion and ordered the mother to enroll the child within fifteen days or face ten days in the Broward County Jail, and to pay the father’s attorney’s fees.

On appeal, the Fourth District stated that “Florida courts . . . require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Dep’t of Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002). The Fourth DCA noted that the trial court failed to make a finding that the mother had the ability to comply with the previous order by sending the child to the private school and paying the associated tuition and fees. Additionally, the court noted that the original order where the parties agreed to enroll the child at the school had failed to specify that the mother was the party responsible for enrolling the child. The Fourth District reversed and remanded the case based on the order’s failure to find the mother had the ability to comply.

Shinitzky v. Shinitzky
Case No. 4D10-137

We represented a former husband whose marriage was dissolved by a final judgment in 2007. The final judgment ordered the former wife to pay our client half “of the value” of certain investment accounts held by the parties. The former wife appealed. The trial court denied the former wife’s motion for stay pending appeal and granted our client’s motion to enforce the final judgment to distribute the funds. The former wife obtained a temporary stay in the appellate court that was eventually extended until the appeal became final, but that did not require the former wife to post a bond. The Fourth District Court of Appeal (“Fourth DCA”) affirmed the final judgment in its totality prior to our involvement in the case. Our client again brought a motion to enforce. A successor judge granted our client’s motion but ruled that he was entitled to a division of the accounts in kind, rather than half of the value of the accounts as of the date previously specified in the final judgment. This interpretation of the final judgment by the trial court was significant because the accounts had significantly decreased in value.

On appeal, the Fourth DCA agreed with our argument that the trial court had misinterpreted the final judgment. The Fourth DCA noted that it was improper for the successor trial judge to have taken new evidence at the hearing, including expert testimony, that eventually led to the successor judge significantly altering the final judgment and enforcement order.

The Fourth DCA reversed and remanded for the effectuation of the final order, including (1) payment to our client of one half of the value of the investment accounts as of the date specified in the final judgment, and (2) payment of a $193,479.50 equalizing payment by the former wife to our client with interest from its original 2007 due date.