        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              ROBERT LANE,
                                Appellant,

                                      v.

                       CHRISTOPHER CUNNIFFE,
                              Appellee.

                              No. 4D15-2969

                              [March 9, 2016]

  Appeal of a non-final order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; William Roby, Judge; L.T. Case No.
2014-CA-000123.

   Faequa A. Khan and Daryl L. Jones of Law Offices of Daryl L. Jones,
P.A., Miami, for appellant.

  Jennifer A. Powers and Brooke D. Austin of Austin & Powers Law
Group, P.L., Fort Pierce, for appellee.

PER CURIAM.

    Robert Lane appeals an order granting in part a motion for rehearing
and an amended order dissolving in part a writ of garnishment. We have
jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(ii). The effect of the two orders
is to limit the extent of Lane’s homestead exemption in the proceeds from
the sale of his home. Because we find that the trial court erred in
determining the amount of the exemption, we reverse and remand.

    In May 2013, Lane and appellee Christopher Cunniffe entered into a
contract for the sale of Lane’s home. In January 2014, Cunniffe sued Lane
for specific performance of the contract, alleging that Lane refused to close
on the property.1 The trial court granted Cunniffe’s motion for judgment
on the pleadings and entered a final judgment in August 2014. Cunniffe
was awarded $53,171.80 in attorney’s fees.

   1
    Lane claimed that the parties had executed a document voiding the sale
contract, but the document could not be found.
   At the court-ordered closing in May 2015, $53,171.80 of Lane’s
proceeds from the sale were escrowed into Cunniffe’s counsel’s trust
account to satisfy the fee judgment. The court subsequently released the
escrowed funds, finding that there was no valid lien on the property.
Cunniffe then obtained a writ of garnishment against Lane’s bank account.

   Lane filed a motion to dissolve the writ of garnishment arguing, that
the sale proceeds were exempt from garnishment because they were
constitutionally protected homestead property. At an evidentiary hearing
in June 2015, Lane testified that he had always intended to buy another
home with the proceeds from the sale of his home. He was considering a
specific property when he first listed his home for sale, but that property
was no longer available. At the time of the hearing, he was trying to secure
a property in Lake Placid, Florida for $54,000.2 Lane had set aside the
released escrow funds for this purpose, along with some other unspecified
funds. The court granted Lane’s motion and dissolved the writ of
garnishment, finding that Lane’s proceeds from the sale of his home were
protected homestead property because Lane intended to use them to
purchase another homestead.

   Cunniffe filed a motion for rehearing arguing, in part, that the court
should have limited Lane’s homestead exemption to the amount he
planned to invest in the Lake Placid property. The court granted the
motion for rehearing and entered an amended order dissolving the writ of
garnishment, limiting Lane’s exemption to $54,000. The court cited Lane’s
“essentially uncontroverted testimony” and found that he “had a good faith
intention prior to and at the time of the sale of the homestead to reinvest
$54,000 of the proceeds in another homestead within a reasonable time.”

    In Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201
(Fla. 1962), the Florida Supreme Court held that the homestead exemption
extends to the proceeds from the voluntary sale of a homestead “only if,
the vendor shows, by a preponderance of the evidence an abiding good
faith intention prior to and at the time of the sale of the homestead to
reinvest the proceeds thereof in another homestead within a reasonable
time.” Id. at 206. The court further stated:


   2Lane testified that he once owned the Lake Placid home and the mortgage
was still in his name. The current owner had stopped making payments. Lane
was trying to arrange a deal with the bank to pay off the mortgage balance of
$54,000 and take back the property.

                                     2
       Moreover, only so much of the proceeds of the sale as are
       intended to be reinvested in another homestead may be
       exempt under this holding. Any surplus over and above that
       amount should be treated as general assets of the debtor. We
       further hold that in order to satisfy the requirements of the
       exemption the funds must not be commingled with other
       monies of the vendor but must be kept separate and apart and
       held for the sole purpose of acquiring another home.

Id.; see also In re Furey, No. 13-bk-4538-JAF, 2014 WL 2119697, at *4
(M.D. Fla. May 22, 2014); JBK Assocs., Inc. v. Sill Bros., Inc., 160 So. 3d
94, 96-97 (Fla. 4th DCA 2015); Shawzin v. Donald J. Sasser, P.A., 658 So.
2d 1148, 1151 (Fla. 4th DCA 1995).

   We review the trial court’s factual findings for competent substantial
evidence. See Town of Lake Park v. Grimes, 963 So. 2d 940, 944 (Fla. 4th
DCA 2007); see also Hamilton v. Fla. Power & Light Co., 48 So. 3d 170, 172
(Fla. 4th DCA 2010).

    The court’s finding that Lane intended, prior to and at the time of the
sale, to reinvest only $54,000 of the proceeds in another homestead is not
supported by competent substantial evidence. Under Orange Brevard, the
court was required to determine how much of the sale proceeds Lane
intended, prior to and at the time of the sale, to reinvest in another
homestead within a reasonable time and how much of the proceeds he had
kept separate for that purpose. See 137 So. 2d at 206-07. Lane testified
that he always intended to buy another home with the proceeds from the
sale of his homestead, but there was no evidence that Lane intended, prior
to and at the time of the sale, to limit his reinvestment to $54,000. The
trial court improperly relied on Lane’s testimony regarding his intent, at
the time of the hearing, to try to secure the Lake Placid property for
$54,000. Additionally, the court failed to make any findings regarding how
much of the sale proceeds Lane had kept separate for the sole purpose of
purchasing a new homestead.

   Because we find that the trial court erred in determining the amount of
Lane’s homestead exemption, we reverse and remand. On remand, the
court is directed to determine how much of the sale proceeds Lane
intended, prior to and at the time of the sale, to reinvest in another
homestead within a reasonable time and how much of the proceeds he has
kept separate for that sole purpose.3

   3 We do not find that the court must wait until Lane closes on a new home to
determine the extent of his homestead exemption in the sale proceeds, as Lane

                                      3
   Reversed and remanded with instructions.

CIKLIN, C.J., MAY and LEVINE, JJ., concur.

                              *         *         *

   Not final until disposition of timely filed motion for rehearing.




contends. Such a requirement is not contemplated by Orange Brevard. Lane
relies on Rossano v. Britesmile, Inc., 919 So. 2d 551 (Fla. 3d DCA 2005), but this
case is distinguishable because Lane is not under contract to close on a specific
property by a certain date.

                                        4
