author: SHEVIN, Judge.

text:
    Lisette Arellano BISSON, Randolph J. Bisson, Fulvia A. Morris, and Fulvia A. Morris, P.A., Appellants, v. Jorge ARELLANO and Ana Laura Arellano, Appellees.
    No. 3D01-2085.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Rehearing, Rehearing En Banc and Clarification Denied May 14, 2003.

      Fulvia A. Morris, Coral Gables, for appellants.
    Gary Pollack, Coral Gables; Linda L. Carroll, Miami, for appellees.
    Before JORGENSON, GERSTEN and SHEVIN, JJ.
   On Motion For Rehearing

SHEVIN, Judge.

We treat appellants’ motion for rehearing en banc as a motion for rehearing, grant the motion and substitute the following opinion for that of August 28, 2002.

We affirm the final judgment awarding attorney’s fees under section 57.105, Florida Statutes (1995), insofar as it awards fees to be paid to defendants by the plaintiffs pursuant to this court’s holding in Arellano v. Bisson, 761 So.2d 365 (Fla. 3d DCA 2000). However, we reverse the fee award ordering plaintiffs’ attorney to pay fees as this attorney did not file the initial complaint in this action. See Rosenberg v. Morales, 804 So.2d 622 (Fla. 3d DCA 2002); Inc. v. Party Prods., II, Inc., 738 So.2d 515 (Fla. 3d DCA 1999).

It is undisputed that this case is controlled by the 1995 version of section 57.105, that stated:

The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint [.]

(Emphasis added). Courts interpreted this language as requiring the court to make “a finding that the lawsuit was frivolous ‘from its inception,’ ” before a fee award can be imposed against counsel. Rosenberg, 804 So.2d at 623-24.

In 1999, chapter 99-225, section 4, at 1406, Laws of Florida, amended section 57.105 to provide that

the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

(Emphasis added). There is no question that fees could be assessed against the attorney under the 1999 revision of section 57.105. “[T]he principal expansion of section 57.105 refocused the time for measurement of frivolity from merely the inception of the action, to the pendency of the case.” Vasquez v. Provincial South, Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001).

However, “[t]he effective date of the revision to section 57.105 is October 1, 1999. Thus, any sanction would have to be assessed under the [1995] statute, which required a finding that the lawsuit was frivolous ‘from its inception.’ ” Rosenberg, 804 So.2d at 628-24. In this case, there has been no determination that the initial complaint was frivolous.

Moreover, there was no basis for staying execution of the judgment, compare Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976)(error not to stay judgment for plaintiff when defendant’s counterclaim remains pending), and interest was properly awarded as of the date of the judgment triggering the defendants’ entitlement to fees. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla.1996).

Affirmed in part; reversed in part.


source: Caselaw Access Project

author: McINTOSH, D. L., Associate Judge.

license: Public Domain

text:
    SOUTHCHASE PARCEL 45 COMMUNITY ASSOCIATION, INC., Appellant, v. Judith Ann GARCIA, et al., Appellees.
    No. 5D02-818.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Rehearing Denied March 12, 2003.

      James E. Olsen of Wean & Malchow, P.A., Orlando, for Appellant.
    Alan B. Taylor and Paul E. DeHart of Litchford & Christopher, P.A., Orlando, for Appellees.
   McINTOSH, D. L., Associate Judge.

Appellant, Southchase Parcel 45 Community Association, Inh (the Association), appeals from an order denying a temporary injunction to keep a recalled board of directors in office and installing a newly elected replacement board of directors. We affirm.

This appeal begins with a prior lawsuit 0Southchase I) filed by the Association challenging, among other things, the lack of a quorum at a recall election held on October 22, 2001. During the Southchase I lawsuit, the Association and the newly elected replacement board of directors entered into a settlement that required a new recall election to be held on November 19, 2001, in lieu of the October 22, 2001, recall election. The procedures for the new recall election, including what constituted a quorum, were agreed upon by the parties and memorialized in a memorandum of settlement dated October 30, 2001. The November 19, 2001, recall election was held in compliance with the parties’ settlement. In accordance with the parties’ settlement, the Association filed its Notice of Voluntary Dismissal the day after the November 19, 2001, recall election.

Eight days after dismissing the Southchase I lawsuit, the Association filed the instant lawsuit claiming the quorum at the November 19, 2001, recall election was not valid, notwithstanding the Association’s position in the Southchase I lawsuit. Under the circumstances in this case, we find the Association was estopped from taking a position inconsistent with the position taken by the Association, in the Southchase I lawsuit. Proceedings in a former suit estop a litigant from occupying an incon-, sistent position in another and subsequent suit. J. Schnarr & Co. v. Virginia-Carolina Chem. Corp., 118 Fla. 258, 159 So. 39 (1934).

In Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001), the Florida Supreme Court stated:

Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position:
“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy.”
The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury.

Id. at 1076 (quoting State ex rel. Watson v. Gray, 48 So.2d 84, 87-88 (Fla.1950) (quoting 3 Pomeroy’s Equity Jurisprudence § 804 (5th ed.1941))).

The Association could have sought the particular relief that the Association now seeks in this case in its previous litigation, the Southchase I lawsuit. However, the Association did not do so. The same subject matter and the same parties involved in the instant case were involved in the Southchase I lawsuit. A party is not permitted to maintain pleadings inconsistent "with its prior positions. Lambert v. Nationwide Mut. Fire Ins. Co., 456 So.2d 517 (Fla. 1st DCA 1984)

We hold the Association is now precluded by the doctrine of estoppel against inconsistent positions from taking an inconsistent position against the same board of directors in this subsequent case.

AFFIRMED.

GRIFFIN, J., concurs.

SAWAYA, J., concurs in result only.


author: COPE, J.

text:
    Shirley CORONA and Anthony Corona, Appellants, v. COSTA CROCIERE S.P.A., Costa Cruise Line N.V., n/k/a Costa Cruise Lines, N.V., L.L.C., Foreign Business Entities, Appellees.
    No. 3D02-2111.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Rehearing and Rehearing En Banc Denied May 14, 2003.
    Ruden, McClosky, Smith Schuster & Russell and John H. Pelzer and Antar K. Vaughan, for appellants.
    Rodriguez, Aronson & Essington and Domingo Rodriguez, Coral Gables, and Andre M. Picciurro, for appellees.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   COPE, J.

Shirley and Anthony Corona appeal an adverse summary judgment in a premises liability case arising on a cruise ship. We conclude that disputed issues of material facts remain, and remand for further proceedings.

The plaintiffs, Shirley and Anthony Corona, were passengers on the M/V Costa Romántica. This is a cruise ship operated by defendant-appellee Costa Cruise Lines.

Mrs. Corona walks with the assistance of a cane. During the first night at sea, she used the bathroom which was within their cabin. While emerging from the bathroom she leaned on the door handle, which came out of its housing. She lost her balance and fell, suffering serious injuries.

Subsequently, a member of the maintenance staff came to inspect the door. He found that the screws which fasten the door handle assembly to the door had come out and were lying on the floor. The maintenance person restored the door handle to its proper position and fastened it with the screws.

The plaintiffs brought this lawsuit claiming negligence on the part of the cruise line in its maintenance of the bathroom door handle. The cruise line moved for summary judgment, contending that there was no evidence that the cruise line was at faylt. The trial court granted summary judgment for the cruise line, and the plaintiffs have appealed.

Based on the record now before us, we conclude that the defendant cruise line has not carried its burden of demonstrating the nonexistence of any disputed issue of material fact. See Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999); Roll v. Talcott, 191 So.2d 40, 43 (Fla.1966).

Common experience would indicate that doorknob or door handle assemblies do loosen up from time to time, but typically this is a slow process which should be noticeable to those who use the door. Certainly the cruise line has a cleaning staff, and undoubtedly they move this door from time to time in order to clean behind it. It is reasonable to assume that this type of problem would have existed, and worsened, over a period of time such that the cruise line staff discovered, or reasonably should have discovered, it. The fact that the maintenance person was able to repair the problem using the existing fixture and screws would tend to rule out the possibility that there was any manufacturing defect in the door handle assembly itself.

For the stated reasons, we reverse the summary judgment and remand for further proceedings. In light of the rationale just stated, we need not reach the plaintiffs’ argument that res ipsa loquitur should apply in this case.

The cruise line suggests that the plaintiffs were as well positioned as anyone to notice the problem with the door handle. If the cruise line contends that the plaintiffs were themselves negligent, that would create an issue of comparative negligence but would not absolve the cruise line of responsibility.

Reversed and remanded for further proceedings consistent herewith.


author: WELLS, J.

text:
    MK ENTERPRISES, LLC, a Florida limited liability company, Appellant, v. Richard W. WOLFE, Appellee.
    Nos. 3D02-2011, 3D02-1729.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Rehearing Denied May 14, 2003.

      Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellant.
    Craig J. Trocino, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   WELLS, J.

MK Enterprises, LLC., plaintiff below (herein MK), appeals from a trial court order on defendant’s motion for stay pending payment of costs and attorney’s fees, order awarding attorney’s fees, and order awarding expert witness fees. Richard W. Wolfe, defendant below, appeals the fees amounts awarded.

On March 16, 2001, MK and Wolfe entered into an agreement whereby Wolfe was to purchase a residence on Miami Beach owned by MK. Wolfe claimed that certain promised repairs had not been performed, and in May of 2001, Wolfe’s attorney advised MK that due to this alleged breach, the contract was terminated.

MK thereafter filed an action (MKI) against Wolfe, alleging Wolfe’s anticipatory breach of the parties’ agreement. By order dated November 19, 2001, the lower court granted Wolfe’s Motion to Quash Service of Process, Motion to Dismiss or in the Alternative, Motion for Change of Venue, observing that service of process of the initial pleading was not made within 120 days, and that MK did not object to the entry of the order. Wolfe did not file any motion seeking attorney’s fees or costs in that action. No such award was entered, and the case was dismissed.

In December of 2001, MK filed a second action against Wolfe (MKII), claiming breach of contract. MK alleged breach of the same agreement, stating Wolfe had failed to appear at closing and failed to pay the agreement’s purchase price. On March 14, 2002, Wolfe filed a Motion to Stay Pending Payment of Costs, claiming that pursuant to Florida Rules of Civil Procedure 1.420(a)(2)(b), and (d), the second action, MKII, could not proceed until the payment of costs in the anticipatory breach action, MKI, was made. In that motion, Wolfe also sought an award for the attorney’s fees that he had incurred in MKI. By order dated March 25, 2002, the lower court granted this motion, stating that costs would be awarded pursuant to the Florida Rules, and that attorney’s fees would be awarded pursuant to the parties’ contract.

On March 26, 2002, MK filed a Motion to Release Stay, stating that Rule 1.420(d) related to the stay of costs only. Wolfe responded by stating that the stay should not be released and that the attorney’s fees should be included as part of the costs to be paid prior to releasing the stay. On May 13, 2002, the lower court denied MK’s Motion to Release Stay.

Thereafter, on conflicting evidence, the trial court in MKII entered an order awarding Wolfe $7,150.00 in fees incurred in MKI, and providing that the stay would continue until MK paid all amounts due. Wolfe subsequently filed a Motion for Award of Expert Witness Fees, seeking $1,664.00 for 6.4 hours for preparation, research and attendance by his expert witness at the fee hearing. The court allowed 3.2 hours and awarded fees of $832.00.

MK argues that the trial court in MKII was without authority to award fees and costs incurred in MKI and points out that Rule 1.420 provides that the award of costs for any action dismissed be assessed “in that action,” and does not authorize a court in a subsequent action to award attorney’s fees and costs for a prior action in the subsequent case. We agree. The recent Supreme Court decision in Caufield v. Cantele, 837 So.2d 371 (Fla.2002), confirms this analysis. As Canfield observes:

Costs are not assessed by the court in which subsequent litigation is commenced; rather, rule 1.420(d) provides that costs are to be assessed immediately after a dismissal is entered by the court issuing the voluntary dismissal and that any subsequent lawsuit on the same claim must be stayed by the second court until all of the costs awarded in the initial lawsuit are fully paid. See City of Hallandale v. Chatlos, 236 So.2d 761, 763 (Fla.1970) (construing rule 1.420(d) “to mean that costs, including attorneys’ fees, are to be assessed and judgment entered for them in the same action which is the subject of voluntary dismissal”).

Here, Wolfe should have secured a ruling on whatever costs and/or fees he was entitled to for MKI, whether pursuant to contract, section 57.105 or otherwise, in the MKI action. Having failed to do so, the motion for stay pending payment of costs, sought in MKII, should have been denied. Of course, this analysis makes consideration of Wolfe’s cross-appeal related to the amount of attorney’s fees and the expert witness fees awarded, unnecessary.

Accordingly, the Order on Defendant’s Motion for Stay Pending Payment of Costs, the Order on Defendant’s Attorney’s Fees and Costs, and the Order on Defendant’s Motion for Award of Expert Witness Fee are reversed, with this case remanded for further proceedings.


author: PER CURIAM.

text:
    Leonardo DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1486.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing, Rehearing En Banc and/or Certification Denied May 14, 2003.
    Paul Morris; Robert A. Rosenblatt, Miami, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General (Fort Lauderdale), for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986); Commonwealth v. Roth, 437 Mass. 777, 776 N.E.2d 437 (2002); A Juvenile v. Commonwealth, 392 Mass. 52, 465 N.E.2d 240 (1984).


author: COVINGTON, Judge.

text:
    Karyen P. JOST, as Personal Representative of the Estate of Arthur Myers, deceased, Appellant, v. LAKELAND REGIONAL MEDICAL CENTER, INC., a corporation; American Continental Insurance Company, a corporation; Amir Ahmad, M.D. and Amir Ahmad, M.D., P.A., a professional association, Appellees.
    No. 2D01-4549.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      W.C. Gentry and Corinne C. Hodak, Jacksonville, for Appellant.
    Raymond T. Elligett, Jr. of Schropp, Buell & Elligett, P.A., Tampa, for American Continental Ins. Co., Appellee.
    Trida B. Valles of Hahn, Morgan & Lamb, P.A., Tampa, for Lakeland Regional Medical Center, Appellee.
    No appearance for Appellees Amir Ahmad, M.D. and Amir Ahmad, M.D., P.A.
   COVINGTON, Judge.

The alleged spoliation of evidence in a medical malpractice case provides the framework for this appeal. Ms. Jost, in her amended complaint, claimed that Lakeland Regional Medical Center (LRMC) had rendered negligent medical treatment to Arthur Myers and that both LRMC and American Continental Insurance Co. (ACIC) had concealed or destroyed evidence. ACIC moved to dismiss the amended complaint while LRMC moved to dismiss the four counts dealing with the spoliation of evidence. The trial court entered an order granting with prejudice both ACIC’s and LRMC’s motions to dismiss. We affirm the dismissal, with respect to LRMC, of the four counts of the amended complaint concerning the spoliation of evidence. As to ACIC, while we affirm the trial court’s dismissal of the concealment of evidence claims, we reverse the dismissal with prejudice of the destruction of evidence charges and find that the dismissal of those claims should have been without prejudice.

This is not the first time the parties have been before this court. Initially Ms. Jost, then acting as plenary guardian of Mr. Myers, filed a medical malpractice lawsuit alleging that the permanent brain damage suffered by Mr. Myers occurred as a result of the negligence of Dr. Amir Ahmad and LRMC. The case was tried before a jury and resulted in a verdict in favor of the defendants. One of the grounds on appeal was the trial court’s exclusion of communications between Dr. Walter Gray, a fact witness called by Ms. Jost, and the risk management officer where Dr. Gray worked. Finding that the trial court committed reversible error in excluding the communications, this court ordered that a new trial be held. Jost v. Ahmad, 730 So.2d 708, 711 (Fla. 2d DCA 1998).

After remand, but before a retrial could occur, Mr. Myers died. In her capacity as personal representative of Mr. Myers’ estate, Ms. Jost filed the amended complaint at issue which presented the same claims for medical malpractice previously asserted. In addition, the amended complaint joined ACIC, the insurer for LRMC, and added the counts for spoliation of evidence against both LRMC and ACIC.

ACIC and LRMC moved to dismiss the spoliation counts arguing, in part, that Ms. Jost had failed to state a cause of action. The trial court dismissed with prejudice the spoliation counts while allowing the medical malpractice charges to go forward. On appeal, Ms. Jost submits that a cause of action for spoliation has long been authorized under Florida law and that it was error for the trial court to dismiss her claims for spoliation. In a recent opinion, this court acknowledged that “[sjpoliation is a recognized cause of action in Florida.” Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. 2d DCA 2002). In order to establish a cause of action for spoliation, a party must show:

(1) [the] existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088, 1091 (Fla. 4th DCA 2001) (quoting Continental Ins. Co. v. Herman, 576 So.2d 318, 315 (Fla. 3d DCA 1990)).

In her amended complaint, Ms. Jost has intertwined her claims of concealment and destruction of evidence as the basis for the spoliation charges. Concealment of evidence, however, does not form a basis for a claim of spoliation. See, e.g., Florida Evergreen Foliage v. DuPont, 165 F.Supp.2d 1345, 1360 (S.D.Fla.2001) (concluding that “ ‘concealment’ of evidence is not actionable under Florida law”). Thus, we affirm the trial court’s dismissal with prejudice as to that portion of the amended complaint alleging concealment of evidence.

The Fourth District recently had the opportunity to address the issue of spoliation of evidence in Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251 (Fla. 4th DCA 2003). Certifying conflict with the Third District’s opinion in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), the Martino court held that “an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same.” We align ourselves with the Fourth District and agree that the plaintiff can avail itself of “the adverse inferences and the myriad of other available sanctions” to address the harm that it may have suffered due to the destruction of the evidence. Martino, 835 So.2d at 1256. Since LRMC is the defendant in the underlying cause of action, we affirm the dismissal of the four counts of the amended complaint dealing with spoliation of evidence. However, on remand, we direct the trial court to apply Martino and to determine what negative inferences, sanctions, or jury instructions, if any, may be appropriate.

Without reaching the merits of whether the destruction of evidence claims state a cause of action for spoliation, we believe that Ms. Jost’s claim against ACIC is premature. “[A] spoliation claim is an ‘independent cause of action for negligence’ that ‘does not arise until the underlying action is completed.’ “ Townsend, 832 So.2d at 167-68 (quoting Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433, 434-35 (Fla. 3d DCA 2001)). Thus, Ms. Jost’s spoliation allegations against ACIC will not be ripe until the underlying medical malpractice ease has been resolved. Accordingly, the trial court is directed to dismiss these claims without prejudice so that, if appropriate, they can be raised at a later date.

Affirmed in part, reversed in part, and remanded in accordance with instructions.

CASANUEVA, J., and GALLEN, THOMAS M., ASSOCIATE JUDGE, Concur.


text:
    Eric PIERRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2762.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Rehearing, Rehearing En Banc or Certification Denied May 14, 2003.

      J.C. Elso and Andrew M. Teschner, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Eric Pierre appeals his convictions for armed robbery and armed sexual battery.

We conclude that the trial court’s denial of the defendant-appellant’s motion to suppress evidence is supported by the record. “[A] trial court’s ruling on the voluntariness of a confession will not be overturned unless clearly erroneous.” Chambers v. State, 742 So.2d 466, 468 (Fla. 3d DCA 1999).

Regarding closing arguments, we conclude that the trial court’s rulings were within its discretion. “[T]he trial court’s ruling on these matters will not be overturned unless a clear abuse of discretion is shown.” Hooper v. State, 476 So.2d 1253, 1257 (Fla.1985) (citations omitted).

Affirmed.


author: LEVY, Judge.

text:
    The STATE of Florida, Appellant, v. Jean R. GELIN, et al., Appellee.
    Nos. 3D02-722, 3D02-721, 3D02-724, 3D02-725, 3D02-723.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Rehearing Denied May 14, 2003.

      Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before LEVY, GERSTEN, JJ., and NESBITT, Senior Judge.
   LEVY, Judge.

The State appeals from an Order granting defendants’ Motion to Suppress. We agree with the State that Porter v. State, 765 So.2d 76 (Fla. 4th DCA 2000) is controlling and, accordingly, reverse.

A trial court’s ruling on a Motion to Suppress is clothed with a presumption of correctness and the reviewing Court must view the evidence, any reasonable inferences, and any deductions in a manner according great deference to the trial court’s ruling. See Connor v. State, 803 So.2d 598, 605 (Fla.2001)(quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997), and citing Walker v. State, 707 So.2d 300, 311 (Fla.1997)); State v. Perez, 789 So.2d 527, 528 (Fla. 3d DCA 2001); Shannon v. State, 753 So.2d 148, 149 (Fla. 3d DCA 2000). However, where, as in the instant case, the Court’s inquiry involves mixed questions of law and fact that ultimately determine constitutional rights, appellate courts must use a two-step approach, deferring to the trial court on the questions of fact, but conducting a de novo review of the constitutional issue. See Connor v. State, 803 So.2d 598, 605 (Fla.2001).

At the outset, we conclude that the BOLO provided Detective King, a Miami Beach police officer, and his colleagues with the reasonable suspicion necessary to follow and ultimately stop the defendants. See Hunter v. State, 660 So.2d 244, 249 (Fla.1995); see also State v. Goebel, 804 So.2d 1276, 1277 (Fla. 5th DCA 2002). The Florida Supreme Court has previously outlined several factors relevant in assessing the legitimacy of a vehicle stop pursuant to a BOLO, including: “(1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information.” Goebel, 804 So.2d at 1277 (citing Hunter, 660 So.2d at 248). In the instant case, Detective King received a BOLO regarding a crime committed within Miami Beach City limits when he had traveled less than one mile outside the Miami Beach city limits. At the time of the BOLO, Detective King was headed westbound on the MacArthur Causeway on his way home from an off-duty detail. The detective was in an unmarked police van, in full uniform and in possession of a police radio. The BOLO description identified a white van with two black males who were involved in a robbery inside the City of Miami Beach city limits.

In response to the BOLO, Detective King pulled over on the MacArthur Causeway because he believed, in light of the location of the robbery, that the individuals would leave the beach area through the MacArthur Causeway. As expected, a white van, meeting the BOLO description, and heading westbound on the MacArthur Causeway, passed the detective. The detective immediately began to pursue the van. The detective testified that he advised the dispatcher that he was behind the vehicle described in the BOLO. The dispatcher then advised him that “intercity” (back-up) would be notified. The detective continued to follow the van until it came to a dead end where the detective stopped his vehicle behind the white van, exited his vehicle, and identified himself as the police. He testified that the van began to back up until it hit a curb, at which point the detective saw the headlights of other police officers’ vehicles. Upon the arrival of the other officers, the driver and passengers surrendered. Defendants were immediately removed from the vehicle and handcuffed. The defendants were in a white van as described in the BOLO, the only variation being that there were additional suspects in the back cargo area of the vehicle.

The issue thus becomes whether, in light of his location at the time of the BOLO, Detective King was in fresh pursuit of the defendants within the meaning of Section 901.25, Florida Statutes. We conclude that he was. Generally, an officer does not have any official power to make an arrest outside the officer’s jurisdiction. See Porter v. State, 765 So.2d 76, 78 (Fla. 4th DCA 2000); State v. Sobrino, 587 So.2d 1347, 1347 (Fla. 3d DCA 1991). However, pursuant to Section 901.25, Florida Statutes, an arrest made outside the officer’s jurisdiction can be validated.

Section 901.25, Florida Statutes, governing the concept of fresh pursuit and arrests outside the jurisdiction, provides:

(1) The term “fresh pursuit” as used in this act shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. It shall also include the pursuit of a person who has violated a county or municipal ordinance or chapter 316 or has committed a misdemean- or.
(2) Any duly authorized state, county, or municipal arresting officer is authorized to arrest a person outside the officer’s jurisdiction when in fresh pursuit. Such officer shall have the same authority to arrest and hold such person in custody outside his or her jurisdiction, subject to the limitations hereafter set forth, as has any authorized arresting state, county, or municipal officer of this state to arrest and hold in custody a person not arrested in fresh pursuit.

§ 901.25, Fla. Stat. (emphasis added). Thus, under the fresh pursuit doctrine, an officer may pursue a suspect beyond the jurisdictional limit so long as certain conditions are met. Fresh pursuit encompasses: “1) that the police act without unnecessary delay; 2) that the pursuit be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of the offense and the commencement of the pursuit and apprehension of the suspect.” Porter, 765 So.2d 76, 80 (Fla. 4th DCA 2000). As already noted, Detective King spotted the defendants within minutes of hearing the BOLO about a crime that occurred within his jurisdiction, and immediately contacted dispatch to advise that he was in pursuit. Detective King maintained close pursuit of the defendants until they came to a dead end,.which forced them to stop.

In Porter, which we find to be persuasive, the Fourth District affirmed the trial court’s findings that Pompano Beach officers were in fresh pursuit of the defendants at the time they made the arrest outside of their jurisdiction in Fort Laud-erdale. See Porter, 765 So.2d at 78-79. Porter involved Pompano Beach on-duty officers who responded to a BOLO regarding a robbery that occurred within their jurisdiction, but a few miles from the entry into the City of Fort Lauderdale. Based on information from dispatch and an off-duty police officer that the BOLO-de-scribed vehicle was observed getting on I-95 in a southbound direction, the officers entered 1-95 to locate the vehicle. The officers did not initially observe the vehicle and the defendants until they were inside Fort Lauderdale city limits. The trial court noted that the area was not far in time or distance from where the robbery occurred and that the route pursued by the officers was a logical travel route for the perpetrators to take. The court therefore found that “[o]nce in pursuit of the vehicle due to its match of the description given in the BOLO, the officers were in hot or fresh pursuit.” Porter, 765 So.2d at 79.

It is undisputed that Detective King’s off-duty status in the instant case is irrelevant to his authority and obligation as an officer. See, e.g., Huebner v. State, 731 So.2d 40, 43-44 (Fla. 4th DCA 1999); Metropolitan Dade County v. Norton, 543 So.2d 1301, 1302 (Fla. 3d DCA 1989). Nevertheless, defendants argue that Porter is distinguishable because the BOLO in Porter was received by officers located within the jurisdictional limits. We conclude that these facts are a distinction without a difference. If, as defendants’ counsel concedes, Detective King’s stop would have been appropriate if Detective King received the BOLO while within Miami Beach city limits, to conclude that the stop was illegal where Detective King was just outside the city limits when he heard the BOLO, and where his testimony reflects that he contacted fellow officers who ultimately effectuated the detention of the defendants, is illogical.

In our view, the instant case is on all fours with Porter. First, as in Porter, an off-duty officer, Detective King here, observed the BOLO-described vehicle and contacted his department regarding the suspects’ direction. Moreover, as in Porter, the responding officers, or on-duty officers, did not locate the suspects until they were outside their jurisdiction. The only fact not present, but not necessarily absent, in Porter is the role of the off-duty officer who initially observed the suspects. In the instant case, Detective King was the first officer to locate the suspects and immediately contacted his department which, at the direction of Detective King, arrived to effectuate the stop at the instant the suspects were cornered by their own actions, i.e., driving into a dead-end. In sum, we conclude that the stop of the defendants was proper in light of the fresh pursuit doctrine. Accordingly, the trial court’s Order granting defendants’ Motion to Suppress is reversed and' the matter remanded for further proceedings.

Reversed and remanded.


text:
    Inalvis CASERO, Appellant, v. Edith B. MARTINEZ, Appellee.
    No. 3D02-1271.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Rehearing Denied May 14, 2003.
    Joseph F. Lopez, Coral Gables, for appellant.
    Hinshaw & Culbertson and Gina E. Caruso and Nickolas C. Berry, for appellee.
    Before COPE, GERSTEN and WELLS, JJ.
   PER CURIAM.

The summary judgment is affirmed on authority of Spector v. Ahrenholz, 107 So.2d 34, 36 (Fla. 3d DCA 1958); see also Mills v. Mills, 112 So.2d 298 (Fla. 2d DCA 1959); Rappaport v. Kalstein, 156 Fla. 722, 24 So.2d 301 (1946). It is our view that the trial court correctly applied the principles described in those decisions to the case now before us.

Affirmed.


text:
    Norris HARDEMON, Appellant, v. The BANK OF NEW YORK TRUST CO., etc., Appellee.
    No. 3D02-1000.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Rehearing Denied May 14, 2003.
    Norris Hardemon, in proper person.
    Steel, Hector & Davis, and Clay Craig, for appellee.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Day v. Department of Health, 790 So.2d 1212 (Fla. 1st DCA 2001) (holding that the litigant would be prohibited from appearing before the court unless represented by counsel); Attwood v. Eighth Circuit Court, Union County, 667 So.2d 356 (Fla. 1st DCA 1995).


text:
    Maria HERRERA and Catherine Herrera, Appellants, v. C.A. SEGUROS CATATUMBO, a foreign corporation, Appellee.
    No. 3D02-2175.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Rehearing Denied May 14, 2003.

      Hardeman & Associates and Richard A. Warren, Miami, for appellants.
    Schreiber Rodon-Alvarez and Gerhardt A. Schreiber, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Maria and Catherine Herrera appeal a final judgment denying their Motion for Supplemental Declaratory Relief against Appellee, C.A. Seguros Catatumbo. For the following reasons, we reverse.

In a related action, the Herreras filed suit against a Venezuelan airline, Zuliana de Aviación, for intentional infliction of emotional distress,- negligence, and false imprisonment. All three claims stemmed from a verbal altercation between the Herreras and the airline’s personnel at the point of embarkation, following which the Herreras were removed from Zuliana’s airplane during a scheduled stop-over and strip/eavity searched. The facts are more fully set forth in Zuliana de Aviacion v. Herrera, 763 So.2d 499 (Fla. 3d DCA 2000).

While this action was pending, Catatum-bo, the airline’s insurance carrier, which had initially denied coverage, undertook the airline’s defense under a reservation of rights.

In March 1999, a jury returned a general verdict in the Herreras’ favor on all three claims. Specifically, the jury awarded $60,000 to Maria Herrera and $110,000 to Catherine Herrera in compensatory damages without allocating a specific dollar amount to any of the three claims. The jury also awarded $1,000,000 in punitive damages to the Herreras. These awards were affirmed on appeal. See id.

In the meantime, the Herreras brought the instant declaratory judgment action against Catatumbo seeking a declaration regarding coverage. In July 1999, the trial court issued a declaratory judgment stating that Catatumbo’s policy covered bodily injuries and death to passengers arising from accidents and negligence by the airline, but not malicious acts.

The Herreras then sought to amend the final judgment in the related action against the airline to add Catatumbo as an additional defendant pursuant to section 627.4136(4), Florida Statutes (1999), and to obligate Catatumbo to pay the judgment rendered against the airline. The trial court granted the motion, and judgment was entered against Catatumbo. On appeal, this court reversed for procedural reasons, without prejudice for the Herrer-as to file an application for supplemental relief in the declaratory judgment action. See C.A. Seguros Catatumbo v. Herrera, 812 So.2d 576, 578 (Fla. 3d DCA 2002).

The Herreras subsequently filed a Motion for Supplemental Declaratory Relief in the instant action, seeking a declaration that the subject insurance policy covered the jury’s verdict against the airline. Ca-tatumbo argued below that its policy with the airline would not afford coverage for the incident at issue. The trial court, reviewing the event and the policy, ultimately agreed with Catatumbo and denied the supplementary relief sought. Based on the following analysis, we cannot agree.

Initially, we observe that issues pertaining to insurance coverage present questions of law subject to de novo review. See Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1029 (Fla. 4th DCA 2000).

Catatumbo advances here a number of theories as to why it should not be compelled to pay for the damages suffered by the Herreras. Specifically, it argues: 1) the Herreras were not passengers and therefore the policy afforded them no coverage; 2) no bodily injury occurred under the terms of the policy; 3) the event that caused the injuries was not an accident and therefore not covered by the policy; 4) the actions of the airline’s employees were malicious and therefore not covered under the terms of the policy; and 5) because some of the theories advanced by the Herreras might have afforded them coverage and some would not, the failure to differentiate the claims properly resulted in a denial of coverage. Having reviewed each of the claims made by Catatumbo, we reject the no coverage claim.

I. THE HERRERAS WERE COVERED THIRD PARTIES

The liability policy issued by Catatumbo covers Zuliana for bodily injuries incurred by both passengers and third parties arising from accidents:

LIABILITY FOR BODILY INJURY TO PASSENGERS OR FOR THEIR DEATH
Under this coverage, the Company [Ca-tatumbo] undertakes to take charge of any payment derived from the Insured’s [Zuliana’s] extracontractual Liability for bodily injury to passengers, or for their death, resulting from an accident....
* * • * *
LIABILITY FOR BODILY INJURY TO THIRD PARTIES, OR FOR THEIR DEATH (EXCLUDING PASSENGERS).
Under this coverage, the Company [Ca-tatumbo] undertakes to take charge of any payment derived from the Insured’s [Zuliana’s] extracontractual Liability for bodily injury to third parties, or for their death ... resulting from an accident. ...

Thus, although Catatumbo argues here that there is no coverage because the Herreras were not passengers after they were removed from the aircraft and placed in a terminal bathroom where they were cavity searched, Catatumbo may still be liable to them as “third parties.”

II. THE HERRERAS SUFFERED BODILY INJURIES

Bodily injury under this policy is defined as “any illness or loss of health that may result as a direct and sole consequence of [a] bodily injury.” In the initial action against Zuliana, the Herreras alleged that they had suffered both physical and emotional injury. In that action, the Herreras testified that they had endured substantial pain when the individual who conducted the cavity searches inserted her entire hand, covered by a rag, into their vaginal cavities. They also testified as to their subsequent loss of health as a direct consequence of these physical intrusions. Specifically, Maria testified that she suffered from headaches and an inability to sleep as a consequence of the search, and testimony confirmed that Catherine became depressed and withdrawn and ultimately suffered a nervous breakdown.

Under the facts of this case, the Herrer-as sufficiently demonstrated that they suffered a “bodily injury” under the policy. See Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177, 1178 (Fla. 3d DCA 1997)(to recover damages for emotional distress caused by a defendant’s negligence, the impact rule requires that the emotional distress flow from physical injuries).

III. THE INSTANT INCIDENT WAS AN ACCIDENT

The injuries sustained by the Herreras also resulted from an “accident” under the policy. The policy, while purporting to define this term, in actuality does not:

“ACCIDENT”: The term “accident,” whenever it appears in the text of this Policy, means any accident ... provided that such damage [injury] has been caused accidentally....

Recently, the Florida Supreme Court held that “where the term ‘accident’ in a liability policy is not defined, the term, being susceptible to varying interpretations, encompasses not only ‘accidental events,’ but also injuries or damages neither expected nor intended from the standpoint of the insured.” State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998). As the Supreme Court explained, under this formulation, “if the resulting damages are unintended, the resulting damage is ‘accidental even though the original acts were intentional.’ ” Id. at 1075; see also McCreary v. Florida Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 694 (Fla. 4th DCA 1999); Sunshine Birds & Supplies, Inc. v. U.S. Fid. & Guar. Co., 696 So.2d 907, 910 (Fla. 3d DCA 1997) (concluding that an accident is “an unfortunate event resulting from carelessness, unawareness, ignorance, or a combination of causes”).

While there is evidence that airline employees intentionally had the Herreras removed from the aircraft and either asked that they be searched or failed to object to the body searches, there is no evidence that the employees had them removed for the purpose of subjecting them to cavity searches or for the purpose of subjecting them to physical harm. While having them removed and permitting the searches was, as alleged by the Herreras and found, by the jury, negligent, it also was an “accident” under Catatumbo’s policy-

IV. THE JURY’S AWARDS ARE NOT EXCLUDED BY THE POLICY

Catatumbo argues that the Herrer-as cannot recover any damages whatsoever under the policy, compensatory or punitive, on any of their claims, because the Catatumbo/Zuliana policy contains an exclusionary provision disallowing coverage for malicious acts. In the underlying action the Herreras advanced three theories for recovery: intentional infliction of emotional distress; negligence; and false imprisonment. The insurer argues that it should be relieved of all liability because malice is inherent in all three of these counts and alternatively because the general verdict returned on these three claims precludes a determination of applicability of the malicious acts exclusion to one or possibly two of these three claims. We do not agree with either proposition.

Malicious behavior was not implicit in all three of the Herreras’ theories of recovery. There was no specific finding below that the airline acted in a malicious manner, and the jury found the airline liable on the negligence count for failing to protect the Herreras from a physical search, a count in which malice neither had to be, nor was, alleged. See, e.g., Florida Power & Light Co. v. Lively, 465 So.2d 1270, 1273 (Fla. 3d DCA 1985) (stating the essential elements of negligence as duty, breach of duty, legal cause and damage). Malice was not, therefore, implicit all three counts.

Malice also was not implicit in the punitive damage awards. The Florida standard jury instruction on punitive damages was given in this case. That instruction authorizes a punitive damage award where the defendant is guilty of either intentional misconduct or gross negligence. See Standard Jury Instructions Civil Cases, No. 96-1, 689 So.2d 1042, 1044 (Fla.1997); § 768.72(2), Fla. Stat. (2001). Under this standard, malice did not'have to be alleged or demonstrated to obtain a punitive damage award on any count alleged. Neither the negligence claim, nor any damage award stemming from it, were excluded from coverage by the policy’s malicious acts provision.

The general verdict returned on the Herreras’ three claims also does not preclude recovery. Because the entire amount awarded to the Herreras may have been awarded on the negligence claim, a claim for which the malicious acts exclusion was inapplicable, we need go no further to affirm the order under review. See Morrison v. Hugger, 369 So.2d 614, 615 (Fla. 2d DCA 1979)(“Because the facts are susceptible to a version which would fully support the insurance coverage and because there is no way to tell upon which basis the jury rendered its verdict ... the judgment ... must fall on the insurance company.”)

Case law confirms that while an insured or beneficiary carries the burden of proving coverage under a policy, the insurer bears the burden of proving applicability of a claimed policy exclusion. See U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1065 (Fla.1983) (“burden of proving an avoidance ... since it comes within a specific exclusion contained in the policy is upon the insurer”); Assurance Generale de France v. Cathcart, 756 So.2d 1055 (Fla. 4th DCA 2000)(coneluding that insurer of a fishing vessel, that one insured intentionally tried to sink, had the burden of demonstrating that the conduct of another insured fell within an exclusion from coverage once a covered loss was shown); New York Life Ins. Co. v. Coll, 568 So.2d 1306 (Fla. 3d DCA 1990); Allstate Ins. Co. v. Coin-O-Mat, Inc., 202 So.2d 598 (Fla. 1st DCA 1967)(concluding that insurer whose policy included coverage against vandalism and malicious mischief to contents of insured’s automatic coin-operated laundry had the burden of proving that loss came under some exclusionary clause of the policy); 1 Lee R. Russ, Couch on Insurance 3d, § 254:12 (1997)(“The insurer bears the burden of proving the applicability of policy exclusions and limitations or other types of affirmative defenses, in order to avoid an adverse judgment after the insured has sustained its burden and made its prima facie case.”)(Footnotes omitted). Thus the burden falls on the insurer to take those steps which would allow consideration of an exclusionary provision.

In Bould, the Florida Supreme Court explained that where, as here, the issue is whether the entire claim is beyond coverage, the burden falls on the insurer to obtain a verdict from which it may be determined that there is no coverage. Bould, 437 So.2d at 1065; see also Morrison, 369 So.2d at 616 (confirming that where any single claim will support coverage, the insurer’s failure to obtain a verdict segregating the damage awards amongst the claims, mandates payment of the entire damage award).

In the instant case, Catatumbo, aware of the terms of its own policy, made no effort to have the final disposition result in a verdict that would provide a basis for consideration of the exclusionary clause. The Herreras are, therefore, entitled to recover the unsegregated damage awards on all three of it claims.

Y. CONCLUSION

Upon careful review of the record, and consideration of each of the theories under which the insurer claims its policy with the airline did not afford these parties coverage, we find that the insurer’s arguments fail. Accordingly, the final order denying the Herreras’ Motion for Supplemental Declaratory Relief is reversed and this cause remanded with directions to award compensatory and punitive damages under Catatumbo’s insurance policy to the Herr-eras to the full extent awarded by the jury.

      . The term "passenger” is defined in this policy as "any person aboard the aircraft or who is boarding the same for the purpose of travel-ling [sic] on the same or is descending after a flight or attempted flight....”


author: SAWAYA, J.

text:
    Jeffrey DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-410.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Rehearing Denied May 13, 2003.
    Jeffrey Davis, Orlando, pro se.
    No Appearance for Appellee.
   SAWAYA, J.

Jeffrey Davis appeals the summary denial of his sixth postconviction motion or petition. We affirm the denial of his latest motion as frivolous and meritless. In the present case, the trial court observed:

In the past eleven months, Defendant has filed two motions pursuant to Rule 3.850 and two others pursuant to Rule 3.800(a). None has had merit. At some point, “enough is enough.” Werts v. State, 722 So.2d 982 (Fla. 5th DCA 1999) (prohibiting defendant who had filed five Rule 3.800(a) motions from filing further pro se pleadings). Defendant is rapidly approaching that point.

We agree. See, e.g., Rahymes v. State, 730 So.2d 420 (Fla. 5th DCA), appeal dismissed, 733 So.2d 516 (Fla.1999); Werts v. State, 722 So.2d 982 (Fla. 5th DCA 1999); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). Defendant is warned that filing any additional successive and frivolous pro se petitions or appeals attacking his convictions and sentences in Ninth Judicial Circuit Court Case No. 00-7844-CF will result in the issuance of an order to show cause why he should not be denied further access to this court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED.

PLEUS and ORFINGER, JJ., concur.


text:
    In the Interest of T.K.M., Jr., Appellant, v. E.H. and S.H., Appellees.
    No. 3D02-2028.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Rehearing Denied May 14, 2003.

      Merrell F. Sands, III (Key West), for appellant.
    Leighton G. Morse (Key West), Attorney Ad Litem, for appellant.
    Dent & Cook and Joe D. Dingess and Michele Santi (Sarasota), for appellees.
    Before LEVY and GODERICH, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

This proceeding was commenced by E.H. and S.H., paternal grandparents of a juvenile, against his natural father T.K.M., Sr. The petition alleged that the juvenile was under substantial risk, imminent harm and/or abused or neglected. The natural father filed a denial. A status conference precipitated a mediation agreement with expanded visitation. Almost a year later petitioners filed a voluntary dismissal of the petition requesting that the court retain jurisdiction to enforce the mediation agreement which contained expanded visitation rights. The court thereafter entered an order dismissing the petition, retaining jurisdiction to enforce the mediation and expanded visitation rights. The natural father filed a notice of appeal to this Court.

When we examined the case we concluded it was nothing more than father representing himself. As a consequence we required the appointment of an attorney ad litem to represent the juvenile, T.K.M., Jr. The appellant points to Florida Rule of Juvenile Procedure 8.310(e) which in part provides:

VOLUNTARY DISMISSAL. The petitioner without leave of court, at any time prior to entry of an order of adjudication, may request a voluntary dismissal of the petition by serving a notice requesting dismissal on all parties, or, if during a hearing, by so stating on the record. The petition shall be dismissed and the court loses jurisdiction unless another party adopts the petition within 72 hours.

The petitioners, appellees, having voluntarily dismissed the petition, we can only conclude that the plain language of the rule automatically divested the court of jurisdiction after the specified time had elapsed. Consequently, the retention of jurisdiction must be stricken from the court’s last order.

Appellees assert that the mediation agreement constituted a contract over which the court had the right to retain jurisdiction for enforcement purposes. Without determining whether such a contract exists or not, we nonetheless agree with appellant. If contractual provisions are violated, either party may bring an independent action to enforce the contract, in which case the trial judge may determine to transfer the matter back to the juvenile court. In the alternative, the petitioners are not foreclosed from filing a new dependency action pursuant to Chapter 39, Florida Statutes.

For the foregoing reasons, that portion of the order which retains jurisdiction must, on issuance of the mandate, be stricken.

It is so ordered.


text:
    Darrell DUNN, as Former Personal Representative of the Estate of Dorothy Lee Weaver, Appellant, v. Mona Lisa KEAN, Appellee.
    No. 1D03-0474.
    District Court of Appeal of Florida, First District.
    April 10, 2003.
    Rehearing Denied May 14, 2003.
    Appellant, pro se.
    Claire A. Duchemin, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 26, 2003, the Court has determined that it lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

DAVIS, BENTON, and PADOVANO, JJ., concur.


author: POLSTON, J.

text:
    MORRIS COMMUNICATIONS COMPANY, LLC, etc., et al., Petitioners, v. STATE of Florida and Stephen Lee Edmonds, Respondents.
    No. 1D03-23.
    District Court of Appeal of Florida, First District.
    April 14, 2003.
    Rehearing Denied May 12, 2003.

      George D. Gabel, Jr. and Katherine N. Lewis, of Holland & Knight, LLP, Jacksonville; Edward L. Birk, of Marks Gray, P.A., Jacksonville, for Petitioners.
    Charlie Crist, Attorney General, Tallahassee; Elizabeth A. Senterfitt, Assistant State Attorney, Jacksonville; William J. Sheppard and D. Gray Thomas and Matthew R. Kachergus, of Sheppard, White & Thomas, P.A., Jacksonville, for Respondents.
   POLSTON, J.

Petitioners Morris Communications Company, LLC, d/b/a The Florida Times-Union, Multimedia Holdings Corporation d/b/a First Coast News, WTLV Channel 12, and Post-Newsweek Stations Florida, Inc. d/b/a WJXT-TV4 argue that the trial court erred by granting defendant Stephen Lee Edmonds’ motion for protective and closure order. We agree with petitioners that the record does not warrant the granting of defendant’s motion. Therefore, we quash the trial court’s order.

After an in camera review, the trial court ordered that the following discovery materials be sealed and not disclosed to petitioners:

1. Two (2) search warrants dated April 15, 2002, one for Defendant’s home, one for Defendant’s business.
2. Numerous print outs of instant messages sent to and from the Defendant and victim between April 5 and April 12, 2002.
3. One (1) recorded telephone conversation and transcript dated April 9, 2002.
4. April 17, 2002 videotaped interview of alleged victim.
5. April 23, 2002 videotaped interview of alleged victim.
6. General offense report number 279646.

The trial court ruled that these items are so “graphic, shocking, damning and distressing” so as to cause grave concern that defendant will have any chance of receiving a fair trial. Although the trial court found that “there has not been substantial hostile pretrial publicity,” the disclosure of these documents would “aggravate the adverse publicity already in the media” and be “potentially damning.”

As noted by the trial court, pretrial proceedings may be closed only if the party seeking closure demonstrates that (i) closure is necessary to prevent a serious and imminent threat to the administration of justice, (ii) there are no less restrictive alternative measures than closure available, and (iii) there is a substantial probability that closure will be effective in protecting against the perceived harm. See Miami Herald Publ’g Co. v. Lewis, 426 So.2d 1, 7-8 (Fla.1982); Florida Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32, 35 (Fla.1988)(holding that the factors set out in Lewis should be considered in determining whether public access to pretrial discovery material should be restricted).

The Florida Supreme Court stated in Lewis that “[ajbsent a showing of widespread adverse publicity, the trial court should not grant a motion to close the hearing.” Lewis, 426 So.2d at 7 (discussing whether the closure is necessary to prevent a serious and imminent threat to the administration of justice). In this case, the trial court ruled that there has not been substantial hostile pretrial publicity.” Accordingly, petitioners argue that on this finding alone under Lewis, the trial court should not have granted the defendant’s motion. We disagree because this reference in Lewis to widespread adverse publicity, in context, applies not only to prior widespread publicity, but also to future publicity aggravated by the disclosure. Id.

However, after this court’s in camera review of the sealed documents, we hold that the record does not support a finding that release of the requested materials would pose a serious and imminent threat to the administration of justice under Lewis. See Florida Publ’g Co. v. Shorstein, 20 Media L. Rep. 2102 (Fla. 1st DCA 1992); Times Publ’g Co. v. State, 827 So.2d 1040, 1042 (Fla. 2d DCA 2002)(reversing trial court’s order sealing criminal discovery documents after an in camera review of the sealed documents).

Therefore, we grant the petition, quash the trial court’s order, and direct the trial court to provide petitioners access to the discovery documents to the extent that they are not exempted from public records disclosure. See e.g., § 119.07(3)(f), Fla. Stat. (2002)(exempting documents which may reveal the identity of specified crime victims).

DAVIS and VAN NORTWICK, JJ., concur.

      . Although petitioners appear to request a reversal of the trial court’s ruling preventing all public comment by counsel, we do not find such a ruling in the trial court’s order. The trial court specifically denied defendant’s request to "gag” the prosecutors, law enforcement officers or investigators.

      . "A change of venue should not be considered as an alternative to closure.” Lewis, 426 So.2d at 6.

      . Although documents turned over to the defendant during discovery are generally public records subject to disclosure under Chapter 119, the courts have authority to manage pretrial publicity to protect the defendant s constitutional rights as described in Lewis, and as specifically provided by § 119.01 l(3)(c)5., Fla. Stat. (2002). See WESH Television, Inc. v. Freeman, 691 So.2d 532, 534 (Fla. 5th DCA 1997).


text:
    Sheldon W. HEPBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-854.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing Denied May 14, 2003.
    Sheldon W. Hepburn, in proper person.
    Charles J. Crist, Jr., Attorney General, appellee.
    Before SCHWARTZ, C.J., and, GREEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. Although rule 3.800(a) allows a claim of illegal sentence to be raised at any time, it does not obviate the law of the case doctrine. See Brown v. State, 813 So.2d 132, 134 (Fla. 5th DCA 2002); Vaughan v. State, 765 So.2d 56 (Fla. 4th DCA 2000); Raley v. State, 675 So.2d 170, 173-74 (Fla. 5th DCA 1996).


author: WELLS, Judge.

text:
    Marcela Delvalle ESPRIELLA, etc., Appellant, v. Jacobo DELVALLE, Appellee.
    No. 3D02-1786.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing Denied May 14, 2003.

      Hunton & Williams and Vanee E. Salter, Miami, for appellant.
    Bill Ullman, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   WELLS, Judge.

Marcela Delvalle Espriella appeals from a final judgment quieting title to real property in the name of her brother, Jacobo Delvalle, following involuntary dismissal of her partition and accounting action. On the following analysis, we reverse.

In 1977, Ayda Delvalle, Marcela and Ja-cobo’s mother, purchased a duplex located in southwest Miami-Dade County. Rather than taking title in her own name, Mrs. Delvalle, who resided in Cartagena, Columbia, had the duplex titled in the names of her daughter, Marcela, and Marcela’s husband at the time. In 1980, title was transferred to Mrs. Delvalle, and in 1992, Mrs. Delvalle executed a quit claim deed transferring title from herself alone to herself and her son, Jacobo, as joint tenants with right of survivorship.

In 1997, Marcela traveled to Cartagena, taking with her an unexecuted quit claim deed that she had obtained from a local attorney. The purpose of the deed, when executed, was to convey Mrs. Delvalle’s interest in the duplex to Marcela.

On April 8, 1997, an official from the Fifth Notary of Cartagena appeared at Mrs. Delvalle’s residence, along with two witnesses, and secured a signature on the quit claim deed. The official affixed Mrs. Delvalle’s fingerprints to the front of the deed and to the back of the deed next to a stamped block of text completed by the official. That stamped text stated that Mrs. Delvalle did not know how to sign the deed. The notary also affixed an official ink seal of the Fifth Notary of Cartagena to the deed. The two witnesses also signed the deed, attesting to the fact that Mrs. Delvalle had signed, sealed and delivered the deed in their presence. The following day, a Vice Consul of the United States Consulate in Barranquilla authenticated the signature of the Colombian notary.

This quit claim deed subsequently was recorded in the Miami-Dade County property records. Approximately eight months after the quit claim deed was executed, Mrs. Delvalle died. In June, 1999, Marce-la filed suit against Jacobo seeking partition of the duplex and an accounting of funds relating to it. Jacobo counterclaimed alleging that the 1997 deed was invalid and sought to quiet title to the duplex pursuant to the earlier executed 1992 quit claim deed.

At trial, Marcela testified that she was present at her mother’s apartment in Cart-agena on April 8, 1997, with an official from the Fifth Notary of Cartagena and two subscribing witnesses when the deed was signed. Athough Marcela did not hear her mother say anything at the time the deed was being executed, she did observe the official from the notary office holding her mother’s hand, presumably to help her to sign. That deed was introduced into evidence.

Following this testimony, Marcela rested her case. The trial court, concluding that there was “no admissible testimony that the mother wanted this to be done,” granted an involuntary dismissal. Judgment was then entered invalidating the April 8, 1997 deed to Marcela on the finding that the deed “was not executed according to the requirements of Florida Statutes sections 689.01 and 695.03(3).” Title to the property was quieted in Jaco- . bo. For the following reasons, we reverse.

Section 689.01 of the Florida Statutes in general provides that creation or transfer of an interest in Florida real property must be in writing and signed in the presence of two subscribing witnesses by the party creating or transferring the interest. Section 695.03 provides that instruments concerning real property must be “acknowledged by the party executing [the instrument], proved by a subscribing witness to it, or legalized or authenticated by a civil-law notary or notary public who affixes her or his official seal.” § 695.03(1), Fla. Stat. (2002) (emphasis added). In a foreign country, a “certificate legalizing or authenticating the signature of a person executing an instrument concerning real property and to which a civil-law notary or notary public of that country has affixed her or his official seal is sufficient as an acknowledgment.” § 695.03(3)Fla. Stat. (2002).

During her case in chief, Marcela introduced a recorded deed, executed in Columbia, to which a certificate of authentication was attached. That deed was presumptively valid and established a prima facie case. See Howell v. Fiore, 210 So.2d 253 (Fla. 2d DCA 1968) (confirming that there is a strong presumption in favor of validity of deeds as executed, a presumption that prevails until overcome by clear, strong and convincing evidence). Under the circumstances, Marcela’s action should not have been involuntarily dismissed. See Bottalico v. Antonelli, 695 So.2d 363 (Fla. 4th DCA 1997) (involuntary dismissal is properly entered only when the evidence, considered in a light most favorable to the non-moving party, fails to establish a pri-ma facie case on the non-moving party’s claim).

Accordingly, the order under review is reversed and the cause remanded to reopen the record and resume the bench trial.

       Appellant's testimony at trial indicated that her mother was "arthritic” and needed assistance in making her signature.


author: POLEN, C.J.

text:
    THE STEPHAN COMPANY, Old 97 Company, and Frank F. Ferola, Appellants, v. FAULDING HEALTHCARE (IP) HOLDINGS, INC., and Faulding Consumer, Inc., Appellees.
    No. 4D02-2889.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied May 30, 2003.

      Curtis Carlson and Ronald J. Lewittes of Payton & Carlson, P.A., Miami, for appellants.
    Joseph P. Goldberg of Bondy & Schloss LLP, New York, .New York, and Jason M. Murray of Carlton Fields, P.A., Miami, for appellees.
   POLEN, C.J.

This appeal arises from a trial court’s entry of a temporary injunction. We conclude that the entry of the injunction was erroneous and for the reasons set forth below we reverse the ruling of the trial court.

A brief discussion of the facts is necessary. On August 25, 2000, Faulding entered into a three year manufacturing agreement with The Stephan Company, whereby Stephan agreed to manufacture “Sea & Ski” products for three years pursuant to the specific terms of the agreement.

During the first year of the agreement, problems arose between the parties when Faulding rejected some of the product as not meeting its specifications. In an attempt to rectify the situation, in the summer of 2001 Faulding reached an agreement with Stephan allowing Stephan to explore whether there was a market for the rejected product. The agreement allowed Stephan to explore the market, but not to sell the product.

As a result of this agreement, a Stephan employee contacted two potential buyers to see if there was any interest in the rejected product. The Stephan employee contacted the buyers by phone and by email and explained he had the products for sale, describing the products by name and bar code number, and went so far as to ask whether the buyer was interested.

As a result of what Faulding considers the attempted sale of the rejected goods, Faulding filed a complaint against Stephan alleging numerous trademark violations, breach of contract, and seeking declaratory and monetary relief.

One day later, Stephan sent Faulding a letter explaining that Stephan had explored the potential market for the rejected product and concluded that there was none. In addition, the letter explained they were tendering the product back to Faulding.

Thereafter, Faulding filed a motion for temporary injunction which was granted by the trial court. This appeal followed and we now reverse the entry of the temporary injunction.

The applicable standard of review is abuse of discretion. See Nastasi v. Thomas, 766 So.2d 462 (Fla. 4th DCA 2000). “A trial court’s ruling on a motion for temporary injunction is clothed with a presumption of correctness.” Infinity Radio Inc., v. Whitby, 780 So.2d 248 (Fla. 4th DCA 2001).

This court has recently reviewed an order granting a temporary injunction and reiterated that in order to obtain an injunction a party must show “(1) irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.” Net First Nat. Bank, v. First Telebanc Corp., 834 So.2d 944(Fla. 4th DCA 2003)(quoting Yachting Promotions, Inc., v. Broward Yachts Inc., 792 So.2d 660 (Fla. 4th DCA 2001)).

Stephan asserts there can be no finding of irreparable harm where there is no continuing threat of injury or any indication that harm will come in the future. We agree.

A temporary injunction is an extraordinary remedy that should be granted sparingly. State v. Beeler, 530 So.2d 932 (Fla.1988). Where there is no indication the harm is likely to continue in the future, an injunction is not warranted. See Burger King Corp. v. Weaver, 33 F.Supp.2d 1037, 1039 (S.D.Fla.1998)(“When conduct sought to be enjoined has ceased and is unlikely to resume, federal courts should not grant injunctive relief’).

In response to the argument that this case does not demonstrate any threat of future harm, Faulding points to cases that have held that mere cessation of infringing activity does not necessarily render injunc-tive relief inappropriate. See, e.g., Clayton v. Howard Johnson Franchise Syst., Inc., 730 F.Supp. 1553 (M.D.Fla.1988). While true, Faulding’s position does not eliminate the need to demonstrate the threat of future harm in order to justify the entry of this extraordinary remedy.

For example, in Clayton, as well as the other cases Faulding relies upon, the facts support a conclusion that the infringing activity is likely to continue. In fact, although Clayton had assured the Howard Johnson company that no future infringing activity would occur, there was a long history of repeated infringing activity and the court concluded that there was “a cognizable danger of future violations.” Id. at 1558. This cannot be said in the case at bar. Not only is there no history of repeated infringing activity on the part of Stephan, there is no basis to conclude that there is a danger of future violations.

In conclusion, there is no indication in the record that the harm or threat of harm, will continue. The court’s order does not identify any potential harm in the future, nor does it conclude this situation is likely to repeat itself. Therefore, we conclude that the conduct Faulding sought to enjoin has ceased, is unlikely to resume, and the injunction was unnecessary. As a result we hold that the trial court abused its discretion in ordering the temporary injunction and we hereby reverse that order.

GUNTHER and SHAHOOD, JJ„ concur.


text:
    Terry McINTYRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3336.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Terry McIntyre, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and the order denying his motion for rehearing. We reverse and remand.

After entering a nolo contendere plea, appellant was sentenced to ten years as a habitual offender on two counts and to five years on three possession of cocaine counts, all concurrently. His first ground for relief was that he lacked the sequential predicate convictions to support his sentencing as a habitualization felony offender, a legally sufficient ground for relief under rule 3.850. See Prince v. State, 684 So.2d 850 (Fla. 2d DCA 1996). The trial court’s denial was based on the state’s response which, rather than attaching portions of the record in the case, attached a print-out from the State of Florida Department of Corrections’ Corrections Offender Network, purporting to demonstrate, from appellant’s history of incarceration, that he had the requisite prior convictions.

Such a print-out does not constitute a portion of the files and record in this case so as to satisfy the requirements of rule 3.850(d) (“If the motion, files and records in the case conclusively show that the mov-ant is entitled to no relief, the motion shall be denied without a hearing”) (emphasis added). See generally King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991).

Appellant’s second ground was that • the state failed to present a guideline scoresheet for the possession of cocaine offenses which were not subject to habitual sentencing, and that only one scoresheet was prepared, consolidating three cases into one for habitualization. The state has conceded that this was not refuted by the state’s response, but argues it was harmless. We disagree.

Accordingly, we reverse and remand as to both grounds for relief, either for an evidentiary hearing or the attachment of portions of the record that conclusively refute them.

We agree with the state that if appellant did not previously contest his qualification for sentencing as a habitual offender, the state should be given the opportunity to attempt to so qualify him. See Bover v. State, 797 So.2d 1246, 1251 (Fla.2001).

Reversed.

KLEIN, SHAHOOD and GROSS, JJ., concur.


author: PER CURIAM.'

text:
    Flavio Jose GAVINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-759.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Rehearing Denied May 14, 2003.
    Flavio Jose Gavino, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.'

The appellant’s motion for post sentence relief under Florida Rule of Criminal Procedure 3.800 was correctly denied as improperly successive to at least two prior cases. See Gavino v. State, 827 So.2d 1112 (Fla. 3d DCA 2002); Gavino v. State, 693 So.2d 985 (Fla. 3d DCA 1997); Francois v. State, 470 So.2d 687 (Fla.1985), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); Carter v. State, 832 So.2d 247 (Fla. 5th DCA 2002).


author: STONE, J.

text:
    SUN CRUZ CASINOS, L.L.C., Casino Cruises, Inc., and 6024 North Ocean Drive, Inc., Appellants/cross-appellees, v. CITY OF HOLLYWOOD, FLORIDA, M.R. Acquisition Corporation, and WLD Restaurateurs, Inc., Appellees/cross-appellants.
    No. 4D02-224.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Rehearing Denied May 29, 2003.

      Ace J. Blackburn, Jr. and Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., and Martin B. Woods of Sterns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for Appellants/cross-ap-pellees-Sun Cruz Casinos, L.L.C. and 6024 North Ocean Drive, Inc.
    Daniel L. Abbott, City Attorney, Hollywood, and Jamie Alan Cole and Douglas R. Gonzales of Weiss Serota Helfman Pastori-za & Guedes, P.A., Fort Lauderdale, for Appellee/cross-appellant-City of Hollywood.
    Vanessa A. Reynolds and Douglas T. Marx of Conrad & Scherer, LLP, Fort Lauderdale, for Appellees/cross-appel-lants-M.R. Acquisition Corporation and WLD Restaurateurs, Inc.
   STONE, J.

Sun Cruz Casinos, L.L.C. (Sun Cruz) appeals, and the City of Hollywood, M.R. Acquisition Corporation and WLD Restaurateurs, Inc. cross-appeal a final judgment which found the city was estopped from enforcing its zoning code as to the operation of two ships in a “cruise to nowhere” gaming ship operation while failing to find estoppel as to the same parties’ operation of a third ship. We affirm as to all issues raised.

Sun Cruz operates “cruise to nowhere” gaming ships from the dock of Martha’s Restaurant on the intracoastal waterway in Hollywood, Florida. The restaurant on the waterway is a permitted use in an otherwise hotel-motel multiple family residential section of Hollywood. M.R. Acquisition Corporation and WLD Restaurateurs, Inc., through a managing partner, George Zinkler (Martha’s, collectively), lease the Martha’s property from Mr. Gus Boulis.

In 1995, Martha’s entered into an agreement and sublease with Mr. Boulis and Sun Cruz for the cruise ship operation from its dock. Martha’s also obtained additional lots, for approximately $500,000, to provide parking sufficient to satisfy the city’s parking requirements. Martha’s Restaurant also provides food and beverage consulting services to Sun Cruz.

In 1995, prior to entering into the dock lease, Mr. Zinkler met with city officials to determine if a gaming boat would be an allowable use of the property. He met with George Keller, the city’s director of development administration, and Jud Kur-lancheek, the city’s director of community planning. By letter dated November 1, 1995, Jud Kurlancheek notified- Mr. Zink-ler that a large gaming boat would, in fact, be a permitted accessory use at Martha’s. This expression by the planning director was authorized by section 4.20 of the city’s zoning code which gave the community planning director the express authority to make an accessory use determination. An “accessory use” is defined in the zoning code as “any use that is customarily associated with a Main Permitted use.”

Subsequently, and pursuant to these discussions, the city approved Mr. Zinkler’s request for an administrative variance allowing Martha’s Restaurant to utilize a temporary parking lot opposite Martha’s to accommodate the additional parking that would be required for Sun Cruz’s passengers. The parking lot was also deemed to be an accessory use.

An occupational license application was submitted by Sun Cruz for the operation of the first boat, the Sun Cruz III, with a capacity of 375 persons. Before issuing the occupational license, the city made a determination that the applicant’s business complied with zoning requirements. The city’s approval of the license confirms that the city determined that the Sun Cruz operation was a valid accessory use to Martha’s.

In 1997, Sun Cruz submitted a second application for an occupational license for a larger boat, the Sun Cruz V, with a capacity of 460 passengers. The city approved the application, again finding that Sun Cruz was an accessory use that complied with the city’s zoning requirements.

In 1997, the city amended portions of the city’s zoning code, for the benefit of Sun Cruz, slightly altering the definition of “accessory use” and changing the parking regulations so that the Sun Cruz operation could utilize off-site parking to meet the city’s parking requirements. Sun Cruz then-bought several buses to shuttle passengers from off-site parking lots to the property. A third, larger boat, the Sun Cruz VI, arrived in 1998. The city, however, did not issue a license for the Sun Cruz VI.

In late 1998, shortly after the Sun Cruz VI began operation without a license, the city sought to remove the Sun Cruz operation from the marina, contending that Sun Cruz VI did not meet the definition of an “accessory use” to the property. The city filed a complaint seeking declaratory and injunctive relief to prevent the property from being used in connection with the Sun Cruz operation. The complaint alleged that the only permitted use for the property was as a “restaurant with frontage on the Intracoastal,” and that the Sun Cruz operation was neither a “main” permitted use nor a valid accessory use.

Martha’s filed a counterclaim against the city claiming estoppel and seeking declaratory relief, asserting that the city should be prevented from challenging Sun Cruz’s use of the property in light of the history of approvals. An expert for the city testified that the Sun Cruz operation was neither a permitted use or accessory use of the property, while an expert for Martha’s testified that it was a valid accessory use.

Following an evidentiary hearing, the court made extensive findings of fact and went on to find in favor of Martha’s and Sun Cruz as to the Sun Cruz vessels III and V, but in favor of the city as to Sun Cruz VI. The court found that the clear weight of the evidence showed that the city represented to Martha’s that the Sun Cruz business would be a permitted accessory use at the restaurant and that Martha’s relied to its detriment on the city’s prior acts of authorization and approval as to Sun Cruz III and V.

In reaching its decision, the trial court concluded that, absent the city’s estopping conduct, there is no “customary” association between gaming boat operations and waterfront restaurants. Therefore, such an operation is not an accessory use under the city’s zoning code, but only as founded on an estoppel against the city.

The trial court, therefore, ordered that, as to Sun Cruz III and V, the city’s claims for declaratory and injunctive relief were denied and that Martha’s counterclaim, founded on the city being estopped from changing its position, be granted. As to Sun Cruz VI, however, there was no finding of estoppel against the city. The court enjoined Martha’s and Sun Cruz from allowing the use of the property for the gaming cruise uses as they relate to Sun Cruz VI.

With respect to the Sun Cruz appeal, we conclude that the trial court did not err in determining that the Sun Cruz operation, but for the estoppel, was not a lawful accessory use as to any of the Sun Cruz vessels.

The trial court had competent, substantial evidence to support its finding that the ship related uses were not customarily associated with the main permitted use, a restaurant with frontage on the intracoas-tal. The definition of “accessory use” as provided by the city’s zoning code and adopted by the trial court is “any use that is customarily associated with a main permitted use.” The zoning code does not provide a standard to follow in determining what is “customarily associated” with a main permitted use. The evidence, however, produced by the city showed that out of all the other restaurants on the intracoas-tal in Broward county, only Martha’s has a large, ocean-going vessel associated with it and the expert for Sun Cruz could only identify a possibility of one other restaurant having a large vessel of any kind associated with it.

The trial court’s final judgment is somewhat confusing at one point in that the final judgment states that “the Sun Cruz operation was an accessory use to Martha’s Restaurant, as opposed to any other restaurant with intracoastal frontage.” A reading of the entire judgment, however, clearly reflects that the judgment was predicated upon a finding of estoppel, not a finding of accessory use. The term “accessory use” as used by the trial court was obviously intended as a term to describe the relationship between Martha’s and Sun Cruz rather than as defined in the zoning code. Rather than finding the Sun Cruz operation to be an accessory use, the trial court found that the city had found it to be an accessory use and was, therefore, es-topped from the subsequent denial of that use as to Sun Cruz III and V.

With respect to the city’s cross-appeal as to this finding of estoppel, we conclude that there is no reversible error or abuse of discretion. The general rule is that “the doctrine of equitable estoppel may be invoked against a municipality as if it were an individual.” Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15 (Fla.1976). In order to demonstrate the existence of estoppel, a party must establish (1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance upon that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance. Lewis v. Dep’t of Health and Rehab. Servs., 659 So.2d 1255, 1256-57 (Fla. 4th DCA 1995). Although the party raising estoppel must prove the required elements by clear and convincing evidence, see Watson Clinic, LLP v. Verzosa, 816 So.2d 832 (Fla. 2d DCA 2002), the trial court’s findings should not be overturned on appeal unless the findings are clearly erroneous or lacking in evidentiary support. In re D.N.O., 820 So.2d 1064 (Fla. 2d DCA 2002). Here, it cannot be said that the trial court’s finding is clearly erroneous or lacking in evidentiary support.

The city correctly argues that the issue of an occupational license, without more, is not representation of material fact. See Dreamland Ballroom and Social Dance Club, Inc. v. City of Fort Lauderdale, 789 So.2d 1099 (Fla. 4th DCA 2001). Here, however, in addition to the occupational license, there was other evidence of approval for the operation of the Sun Cruz ships as permissible accessory uses. There is evidence of extensive communications, negotiations, and agreements between the parties, from 1995 through early 1998, to ensure that the city’s requirements (primarily related to parking) were satisfied. For example, the city passed a resolution allowing Mr. Zinkler additional time to obtain permanent parking for the Sun Cruz operation. At considerable expense, Mr. Zinkler, Mr. Boulis, and Sun Cruz obtained additional lots and improved them in reliance on the city’s approvals of the gaming boat operation as an accessory use to Martha’s Restaurant. There was also competent, substantial evidence of reliance and a detrimental change in circumstances.

The city argues for application of a more stringent standard in order to invoke the doctrine of estoppel on a government entity. See Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992). We note that this court has agreed with Alachua that the “theory of estoppel requires ‘affirmative conduct’ by the governmental entity, not merely negligence.” Martin County v. Indiantown Enters., Inc., 658 So.2d 1144, 1145-46 (Fla. 4th DCA 1995). However, we find no conflict between that opinion and the trial court’s application of es-toppel here.

Finally, we cannot conclude that there was an abuse of discretion in the trial court’s failing to find an estoppel as to Sun Cruz VI. The trial court could conclude on this record that there was no representation by the city as to material fact as to Sun Cruz VI that is contrary to a later-asserted position. There was never approval of the ship related uses as they relate to Sun Cruz VI. The initial approvals and licenses that were issued as to the other vessels do not, as a matter of law, create an estoppel as to the Sun Cruz VI. Although the city expressed its approval of the Sun Cruz III and V, it never did so for VI, a ship significantly larger in size and capacity.

Furthermore, the city’s reason for not issuing the permit as to VI was, in part, because it believed the use had changed. Although not the cited basis for the trial court ruling, it is apparent that Sun Cruz III and V were clearly smaller vessels with capacities of 375 and 480 passengers, respectively. The capacity of the Sun Cruz VI, on the other hand, was for 600 passengers, plus 150 crew. Sun Cruz III was 100' X 30', while Sun Cruz VI is 165' X 65'. Under the Sun Cruz’s theory, there would virtually be no limit as to how much its accessory usage of the property could grow.

As to all other issues raised on appeal or cross-appeal, we also find no reversible error or abuse of discretion.

WARNER and FARMER, JJ., concur.


author: MAY, J.

text:
    John MOSES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1091.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant has appealed his sentence for the third time. Twice this court has reversed and remanded the case to the trial court for a new sentencing hearing. While this appeal was pending, the defendant filed a motion to correct sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b). He now argues that the trial court erred in denying his latest motion to correct sentence by not rendering a ■written order granting the motion within sixty (60) days. We disagree and affirm.

Initially, the defendant appealed the sentence imposed on February 22, 2001. On October 23, 2001, the defendant filed a rule 3.800(b) motion in the trial court. He argued that the court had failed to provide him with a “de novo” sentencing hearing and that the State had failed in its burden of proof to justify the imposition of an habitual felony offender sentence. The trial court verbally granted the motion, and set a new sentencing hearing for December 13, 2001. The court did not enter a written order.

On December 13, 2001, the State requested a continuance of the sentencing hearing so that it could obtain judgments on the defendant’s prior Lee County convictions. The court reset the hearing for January 9, 2002. On that date, the court gave the defendant a “de novo” sentencing hearing. The court found that the defendant qualified as an habitual felony offender and pronounced sentence. The defendant received the same sentence that had been previously imposed. At the time of sentencing, the defendant made no objection to the lack of findings of fact that now serve as one of the bases of his appeal.

We have reviewed the evidence and find it legally sufficient to support the sentence imposed. This leaves the issue of whether the trial court’s failure to enter a written order on the defendant’s motion within sixty (60) days of October 23, 2001, nullifies the new sentence. In other words, should the sentence be reversed even though it was entered in response to the defendant’s request for a new sentencing hearing? We see no reason to exalt form over substance. As the State noted in its brief, to reverse and remand this case for the defendant to be resentenced, when the trial court has already given the defendant exactly what he asked for, defies common sense.

We choose to follow the reasoning of the Second District Court of Appeal in McGuire v. State, 779 So.2d 571 (Fla. 2d DCA 2001). We hold that the trial court has the authority to extend the sixty (60) day period set forth in Florida Rule of Criminal Procedure 3.800(b), upon a showing of good cause as long as the court acts within the sixty days to extend the time.

Florida Rule of Criminal Procedure 3.800(b)(1)(B) provides: ‘Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.” The rule was designed to provide parties with an opportunity to correct sentencing errors in the trial court without the need to pursue the more costly and time-consuming appellate process. Its time limitation was designed to insure that such motions receive prompt attention. Even though the rule does not contain a provision which expressly authorizes extensions, it also does not prohibit them. As long as the trial court extends the time for good cause within the requisite sixty (60) days, we see no reason to restrict the court from correcting its own error.

In this case, the trial court granted the State’s request for an extension of time within 60 days, and set the sentencing hearing shortly beyond the 60 days provided for in the rule. At that time, the trial court gave the defendant exactly what he asked for, a new sentencing hearing. We therefore affirm.

STONE and GROSS, JJ., concur.

      . We urge the Criminal Procedure Rules Committee to consider adding language to rule 3.800(b)(1)(B) to explicitly authorize an extension of time if such an extension is sought and granted within the sixty (60) day time frame provided for in the rule.