author: TAYLOR, J.

text:
    The CITY OF POMPANO BEACH, Appellant, v. YARDARM RESTAURANT, INC., Appellee.
    Nos. 4D99-977, 4D00-591 and 4D00-2499.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2002.
    Rehearing Denied Feb. 4, 2003.
    Henry Latimer and Caran Rothchild of Greenberg Traurig, P.A., Fort Lauderdale, for appellant.
    Margaret L. Cooper of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Randolph W. Adams, Fort Lauderdale, for appellee.

      Frank A. Shepherd, Miami, for Amicus Curiae Pacific Legal Foundation.
   TAYLOR, J.

This case concerns § 1983 due process claims by a developer against a city for obstruction and delay in the issuance of building permits for construction of a hotel and marina on the developer’s property. The City of Pompano Beach (“City”) appeals a judgment holding it liable for violation of substantive and procedural due process rights of Yardarm Restaurant, Inc. (“Yardarm”). The City also appeals, and Yardarm cross-appeals, the award of damages, attorney’s fees, and costs. We have consolidated these cases for review.

I. BACKGROUND

In City of Pompano Beach v. Yardarm Restaurant, Inc., 641 So.2d 1377 (Fla. 4th DCA 1994) (“Yardarm I ”), we reversed a judgment finding the City liable for inverse condemnation of property owned by Yardarm. The judgment was based on the trial court’s finding that the City’s history of obstructing the issuance of Yardarm’s permits for a hotel and marina effected a permanent taking of its property. In reversing, we concluded that Yardarm failed to establish a “taking,” because the City did not deprive Yardarm of substantially all use of its property. Id. at 1384-87. We further ruled that any “taking” claim was barred by the statute of limitations. Id. at 1388.

We observed, however, in Yardarm I that the facts found by the trial court might support a claim for a due process violation under 42 U.S.C. § 1983. Accordingly, we remanded the case for reconsideration of the summary disposition of ap-pellee’s due process claim. Id. at 1389. We expressly declined to rule on the merits of a due process claim on the record then before us. Id. at 1389.

On remand, the trial court reinstated Yardarm’s due process claim and the case proceeded to trial in 1998. The court held a non-jury trial on the issue of liability and bifurcated the damages portion. Following a two-week trial, the court found that the City violated Yardarm’s procedural and substantive due process rights by its obstructionist conduct in connection with Yardarm’s application for building permits. The court ruled alternatively that the City effected a federal taking of Yardarm’s property. After determining that recovery was not barred by the statute of limitations because of the “continuing violation” doctrine, the court entered a liability judgnent for Yardarm.

Thereafter, a jury returned a verdict assessing damages against the City in the amount of $7,601,920. The trial court later entered a final judgment for damages totaling $19,203,491, which included its calculation of pre-judgment interest through the verdict. The court also awarded attorney’s fees and costs to Yardarm. The City appealed both the final judgment on damages and the attorney’s fee and cost award. Yardarm cross-appealed portions of both and sought clarification on the post-judgment interest.

II. THE 1998 TRIAL

During the liability phase of the second trial, Yardarm presented numerous witnesses and exhibits to prove that the City willfully obstructed the development of its hotel project from 1973 through 1981 and that its conduct resulted in Yardarm’s inability to obtain financing for its expansion plans, ultimately causing Yardarm to lose its property through foreclosure. In addition to presenting much of the evidence from the first trial, Yardarm introduced some new evidence relating to the unofficial “policy” of the Commission and secret meetings and discussions among City officials about plans to repeal the special exception.

Yardarm, which was owned by James and Thomas Stephanis, had operated a successful restaurant in Pompano Beach since 1959 on the east side of its property overlooking the Hillsborough Inlet. In 1972, Yardarm decided to build an eighteen-story hotel tower and marina on this site (the “East Side”). Shortly after its plans became known, political opposition to the hotel began to mount. The Hillsboro Shores Improvement Association (“Association”), a homeowners group located on the south side of the inlet, objected to the hotel’s construction because it would block their view of the ocean and the lighthouse at the inlet. The local Pompano Beach Republican Club was also an active opponent of the project.

On May 1,1973, before Yardarm applied for a building permit for its East Side project, the City enacted an ordinance imposing a ten-story height restriction on new buildings in the city. In response, Yardarm applied for a special exception to construct its eighteen-story hotel. On October 2, 1973, the City passed Ordinance No. 73-96, which granted Yardarm a special use exception for the project. The Association vigorously opposed the special exception and filed suit to set it aside. Ultimately, the circuit court upheld the special exception, finding that the Hills-boro Shores residents had no legal right to unobstructed views of the lighthouse and inlet.

On February 8, 1974, Yardarm applied for a building permit. The Building Official, Walter C. Williams, issued the permit on February 14,1974. However, four days later, the Building Official revoked the permit, citing noncompliance with applicable codes and regulations, failure to obtain necessary approvals from other regulatory agencies, the existence of an easement on the property, and certain deficiencies in the application and plans, including inadequate parking spaces.

Yardarm responded by filing suit against the City for re-issuance of the permit. This litigation resulted in an order that acknowledged the City’s right to rescind the permit but ruled that Yardarm could apply for a new permit upon plans that complied with the building and zoning laws in effect on February 14, 1974, the date the permit was originally issued, together with approvals from the regulatory agencies required by the City at that time.

In February 1977, after the City denied Yardarm’s re-application for a building permit because of inadequate parking spaces, Yardarm sought supplemental relief from the circuit court. The court ruled in Yardarm’s favor, reiterating that the “February 14, 1974 regulations apply.” On March 15, 1977, the day following the court’s ruling, Yardarm was issued a new building permit.

In April 1977, having finally resolved the parking issues and obtained the permit for its hotel, Yardarm closed its restaurant and demolished the building. At the time, the restaurant was free and clear of any encumbrances or mortgages and had just experienced its most profitable year. Though Yardarm needed permanent financing to build the East Side project, it proceeded with preliminary site work.

Soon thereafter, Yardarm became aware that its new permit issued in 1977 did not include the seawall, dock, and quays that had been included in the former, revoked permit. Yardarm continued site preparation while filing for approval of the seawall and docks. The City ultimately approved the seawall, but refused a permit for the docks, as did the board of appeals. In January 1978 Yardarm sought supplemental relief from the circuit court. Almost a year later, following trial, the parties stipulated to an order which permitted Yardarm to build a dock and directed the City to give the Corps of Engineers any required written assurances. However, when Yardarm sought approval from the Corps of Engineers for construction of the dock, the City Manager wrote the Corps opposing the dock permit and demanding a public hearing if the Corps was undecided on the matter.

The Corps eventually issued the dock permit. However, in July 1979, while the matter was still pending, the City determined that Yardarm’s building permit had lapsed because there had been no construction on the site for ninety days. This determination was based on a recently enacted rule that litigation' between the parties would not toll work requirements. Yardarm went to court, again contending that the applicable rules were those in place in 1974, when it first applied for a permit. Ultimately, in July 1981, after an appeal to this court, the Yardarm’s permit was reissued.

In the meantime, construction costs increased dramatically from $5 million to over $9 million. Hoping to make the project more attractive to institutional lenders and obtain a management contract with a major hotel chain, Yardarm decided to expand the project. In February 1981, Yardarm purchased a second parcel, west of the property Yardarm already owned (the “West Side”). To finance this additional land, Yardarm mortgaged the East Side parcel. Yardarm then abandoned the East Side project and redrew plans for a completely different hotel project on both the East and West Sides (the “East/West Project”).

Yardarm sought financing for the expanded project. One potential deal turned out to be a scam that cost Yardarm $205,000. Because Yardarm had been required to take on a partner, it continued to seek a loan which would fully compensate it up front for the value of property and its costs — a total of about $6 million. Yardarm received two substantial offers to buy its stock in 1983: one for $4.25 million and one for approximately $8 million. Yardarm rejected the first offer, and the second offer was withdrawn when the of-feror discovered that Yardarm had given someone else an option to buy the property. Meanwhile, to fund enough construction on the existing project to prevent the permit from lapsing, Yardarm took out a number of short term loans. The last of these was a $2.8 million loan obtained in January 1984 from Sunrise Savings and Loan Association.

During this time, Yardarm obtained “B-2” plan approvals from the City’s Planning Department for the West Side project from 1981 through 1984. However, Yardarm never took the next step of applying for a building permit for the West Side before Sunrise filed for foreclosure on May 8, 1985. The foreclosure proceedings caused the work to stop, and the permit for the East Side project lapsed due to lack of progress. The Building Official informed Yardarm that it could get the permit reinstated if it re-filed plans within 180 days, or by October 30, 1985. Rather than apply for reinstatement of the permit, Yardarm submitted new plans for preliminary site plan review of its East/West project.

Around the time that the building permits for the East Side project elapsed, the City began to consider repealing the ordinance which granted Yardarm the special use exception to build its 18-story hotel. The ordinance was given its first reading on September 3, 1985. A second reading was scheduled for October 29, 1985. On October 10, 1985, Yardarm submitted a consolidated plan for a project on both the old and the new parcels. When it learned of the prospective repeal of the special exception ordinance, and with the deadline for permit reinstatement about to run, Yardarm filed suit for an injunction against the repeal. The injunction was granted on November 20,1985.

The City appealed from the injunction. In July 1987, we ruled in favor of the City in its appeal from the order enjoining it from repealing the eighteen-story ordinance. City of Pompano Beach v. Yardarm Restaurant, Inc. 509 So.2d 1295 (Fla. 4th DCA 1987). We held, inter alia, that the City was not estopped from revoking the ordinance, notwithstanding the City’s purported obstructionist tactics, because Yardarm had failed to make any real effort to construct the building during the period following cessation of any obstructionist activity. Id. at 1297.

By February 26, 1986, when Yardarm received tentative approval for its consolidated plan on both parcels, a final judgment of foreclosure had already been entered on the properties. A foreclosure sale was set for March 21, 1986. On March 4, 1986, the City gave Yardarm site approval, with 180 days to obtain a building permit. Yardarm filed for bankruptcy protection. The bankruptcy stay was subsequently lifted and the property was sold in foreclosure to FSLIC, as receiver for Sunrise. Years later, the City purchased the land from FSLIC at auction.

III. FEDERAL TAKINGS CLAIM

In addition to trying appellee’s § 1983 due process claims at the 1998 trial, the trial court reinstated the federal takings claim. In Yardarm I, we had reversed the trial court’s finding that the City, through its conduct in obstructing the issuance of Yardarm’s permit, had effected a permanent taking of Yardarm’s property under the state constitution. 641 So.2d at 1387. We ruled that the facts did not support a takings claim because Yardarm was not deprived of substantially all use of its property. Id. at 1384-86.

Our holding, in addition to being the law of the case with respect to the state law takings claim, was issue preclusion, or res judicata, on Yardarm’s federal takings claim under the United States Constitution and § 1983. Because this claim is identical to the state claim previously adjudicated by this court, the trial court erred in concluding that a taking had occurred. See Brunner Enters., Inc. v. Dep’t. of Revenue, 452 So.2d 550, 552 (Fla.1984)(citing Greene v. Massey, 384 So.2d 24 (Fla.1980)(discussing that, except in extraordinary circumstances, all quéstions of law which have been decided by the highest appellate court become the law of the case, which must be followed in subsequent proceedings)); see also Treister v. City of Miami, 893 F.Supp. 1057, 1067 (S.D.Fla.1992)(“We have no doubt that the issues raised by a claim for a taking, and the elements of the claim, under the Florida Constitution, are sufficiently similar to the parallel claim under the United States Constitution so as to constitute identical claim for res judicata purposes, and that the issues necessarily litigated therein are sufficiently identical for issue preclusion purposes.”).

IV PROCEDURAL DUE PROCESS

The trial court concluded that the City’s actions in delaying and obstructing Yardarm’s attempts to obtain building permits violated both Yardarm’s procedural and substantive due process rights. The City urges reversal of the ruling with respect to procedural due process, contending that the 1998 trial proceeded only on Yardarm’s substantive due process claim. The City points out that in the eleven-year history of this case, Yardarm never asserted a procedural due process claim in any of its pleadings, nor litigated a procedural due process claim during the trial. The City further argues that even if a procedural due process claim had been properly pled or tried, such claim should still fail because: (1) Yardarm was not deprived of any property right; and (2) even if it had been, the City provided Yardarm with all the process it was due.

Yardarm responds that it is irrelevant that it failed to use the words “procedural due process” in its pleading or at trial; that evidence of the City’s actions on its building permits without advance notice or hearing, pattern of dilatory litigation, and secret discussions on repeal of its special use exception established procedural due process violations. We disagree.

As the trial court recognized, procedural due process prevents the government from depriving a person of a significant property interest without due process of law. See First Assembly of God of Naples, Fla., Inc. v. Collier County, 20 F.3d 419, 422 (11th Cir.1994). Here, Yardarm has not shown any procedural due process violations. With respect to actions taken by the Building Official on Yardarm’s building permit applications, Yardarm was afforded, and actually utilized, full judicial procedures to challenge these administrative decisions. See, e.g., Boatman v. Town of Oakland, 76 F.3d 341 (11th Cir.1996) (holding that property owners’ civil rights action against a town for its refusal to issue them a certificate of occupancy did not fall under the procedural component of § 1983 because the state provided them all the process they were due, i.e., the right to repair to the circuit court and seek an order compelling a final inspection).

With respect to the City’s attempts to repeal Yardarm’s special use exception, Yardarm could and did seek an injunction in the circuit court. Moreover, since the ordinance to repeal the special exception was never actually enacted, Yardarm’s special exception was never repealed. Hence, assuming, for the sake of argument, that Yardarm had an interest in the special exception, it was never deprived of it.

V. SUBSTANTIVE DUE PROCESS

Yardarm’s substantive due process claim under § 1983 is predicated upon its claim of a vested property right in the building permits that the City improperly withheld, revoked, and delayed. Essentially, Yardarm asserts a constitutionally protected property right in the building permits arising from its change of position or expenditure of large sums of money in reliance on them and based on its position that the City lacked discretion to deny the permits. The trial court agreed that Yardarm had a federally protected interest in the building permits and found that the City acted arbitrarily and in bad faith for political and personal reasons in the permitting process. Based on these findings, the court concluded that Yardarm’s substantive due process rights were violated and entered judgment for Yardarm.

The City seeks reversal of the judgment, arguing that Yardarm had no substantive due process protection in its building permits. The City asserts that Yardarm’s purported property rights in these permits, even if vested, were state created property rights, which do not enjoy substantive due process protection under § 1983. It points out that the cases mainly relied upon by Yardarm and the trial court, Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374 (11th Cir.1994), and Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557 (S.D.Fla.1991), are no longer good law, having been overturned by McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994)(en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), and Sullivan Prop., Inc. v. The City of Winter Springs, 899 F.Supp. 587 (M.D.Fla.1995).

In the Reserve case,' the developer sued the Town of Longboat Key for revoking its building permit. On remand from the Eleventh Circuit Court of Appeals, the federal district court granted the town’s motions for summary judgment as to the developer’s substantive due process claims. The court referred to the Eleventh Circuit’s holding in McKinney v. Pate, stating:

Attempting to correct our circuit’s jurisprudence regarding the Fourteenth Amendment’s Due Process Clause, McKinney holds that Section 1983 substantive due process claims arising from non-legislative deprivations of state-created property interests are no longer cognizable. Contrary to the plaintiffs’ suggestion, the effect of McKinney extends beyond employment disputes. At least one other district court has applied McKinney to a substantive due process claim involving a building permit....
First, the purported property interest (i.e., Reserve’s interest in the revoked building permit) is created by. state law and falls comfortably short of a fundamental right ... Second, both the issuance and revocation of the building permit constitute “executive” and not “legislative” acts. Whether rendered by Longboat Key’s legislative body or executive branch (e.g. its public works director and town manager), both decisions affect only a small group of individuals and not the general population. Accordingly, McKinney precludes Reserve’s asserting a substantive due process claim based on the revocation of its building permit.

Reserve, 933 F.Supp. 1040, 1043-44 (M.D.Fla.1996) (footnotes and citations omitted).

In McKinney, which involved a wrongful termination case brought by an employee against a public employer, the Eleventh Circuit distinguished between procedural and substantive due process claims in the context of state-created rights and clarified that:

The substantive component of the Due Process Clause protects those rights that are “fundamental,” that is, rights that are “implicit in the concept of ordered liberty”... [AJreas in which substantive rights are created only by state law ... are not subject to substantive due process protection under the Due Process Clause because “substantive due process rights are created only by the Constitution.” As a result, these state law based rights constitutionally may be rescinded so long as the elements of proeedural-not substantive — due process are observed.

20 F.3d at 1556 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)) (citations omitted).

Other courts have also extended McKinney beyond employment disputes and applied it in land use cases. However, in this case, the trial court found McKinney inapplicable. In its Judgment Determining Liability, the court wrote that the “rights involved in this case are more fundamental than mere employment interests.” Further, the court rejected the City’s position that the acts Yardarm complained of were “executive,” rather than legislative. The court distinguished this case from those involving “run-of-the-mill” administrative acts and ruled that this case involved legislative acts, “egregious and deliberate acts orchestrated by members of the highest legislative body of the city, under extreme circumstances involving bad faith and institutional bias.”

Specifically, the court determined that the City engaged in unreasonable, protracted litigation; repeatedly ignored court orders to apply the February 14, 1974 regulations to Yardarm’s permit applications; and engaged in stonewalling tactics to block the Yardarm project. The court set out in detail the actions taken by various City officials and employees on Yardarm’s building permits and special exception. In concluding that these actions represented an official policy, custom, or practice of the City, the court noted the testimony of a City Commissioner, Emma Lou Olsen, that, several commissioners had an “unstated policy to kill the Yardarm project.”- In addition, the court referred to testimony concerning secret meetings between two commissioners held on Sunday mornings to discuss Yardarm, testimony that certain City officials directed and/or interfered with the activities of the Building Official, and interoffice memos between non-elected City officials concerning plans to repeal the 18-story special exception.

The City argues that, even assuming that these acts occurred, the substantive due process claim fails as a matter of law, because no evidence was presented that the acts were done in a legislative, rather than an executive capacity..

According to McKinney, the distinction between “legislative” and “executive” acts is key in the substantive due process analysis. McKinney explained that substantive due process protects against arbitrary legislative action, not arbitrary executive action. See Williams v. Goldsmith, 905 F.Supp. 996, 1000 (M.D.Ala.1995). It observed that executive acts characteristically apply to a limited number of persons— often to just one person — and typically arise from the ministerial or administrative activities of members of the executive branch, whereas “legislative acts” generally apply to a larger segment of society, if not to the entire .society. McKinney, 20 F.3d at 1557 n. 9.

For Yardarm to prevail under McKinney on its. substantive due process claim under 42 U.S.C. § 1983, it had to show that the governmental activities in this case constituted “legislative” conduct. Based on our review of the record, we conclude that Yardarm failed to establish that the acts for which it claimed damages were legislative, rather than executive acts. The evidence shows that these acts were done by various City employees and administrators applying existing rules and ordinances specifically to Yardarm, not by the Commission as a body enacting legislation and policy decisions affecting the general public. See Reserve, 933 F.Supp. at 1043-44 (concluding that whether rendered by a legislative body or the executive branch, e.g., a public works director and city manager, decisions affecting only a small group of individuals and not the general population constitute executive and not legislative acts). Yardarm did not present any evidence that the City Commission or a City official with “final policy-making authority” acted against Yardarm, and that such action was taken pursuant to a policy adopted by the City Commission. The acts complained of consisted of delays in issuing building permits, wrongful revocation of building permits, delays in B-2 Reviews, and an attempted repeal of a special exception. The record is devoid of any evidence that adverse actions taken on Yardarm’s permits by the administrative officials, such as the Building Official, City Manager, and other department heads and employees, were directed or required approval by the City Commission. See Reserve, 933 F.Supp. at 1043-44 (M.D.Fla.1996)(“[B]oth the issuance and revocation of the building permit constitute ‘executive’ and not ‘legislative’ acts.”); Raben-Pastal v. City of Coconut Creek, 573 So.2d 298 (Fla.1990)(holding that building official did not possess the type of policy-making authority that would make city liable under 42 U.S.C.A. § 1983 for his decision on stop work order on developer’s project). Further, the record does not show that the Commission as a body adopted any official policy, custom, rule, resolution, or ordinance opposing Yardarm or made a final vote on any permit, site plan, or variance concerning the Yardarm property. In fact, the only land-use decision which the City Commission ever made as a body with respect to Yardarm’s project was the granting of the special exception, which made the project possible.

VI. CONCLUSION

In sum, Yardarm may not recover for damages under its federal substantive due process claim that the City denied or delayed its building permits for improper reasons. Applying McKinney to the facts of this case, we conclude, as a matter of law, that the developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive and not legislative acts. Further, as discussed above, Yardarm received such procedural due process as was due. Accordingly, we reverse the Judgment Determining Liability in its entirety, rendering the appeal and cross-appeal on damages, attorney’s fees, and costs moot. We remand with instructions to enter judgment in favor of the City of Pompano Beach.

REVERSED AND REMANDED.

STEVENSON, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.

      . This permit remained in effect well into 1985, until it again lapsed due to lack of progress.

      . A footnote in the Liability Determining Judgment stated the judge's belief that the facts presented at trial supported judgment for Yardarm not only on its due process claims, but also on the takings claim, as alternative relief, based upon principles not addressed by our court in Yardarm I.

      . When the § 1983 claim was reinstated, counsel for Yardarm stated in open court: "Count II. That's what we're here on ... substantive due process ... under 1983 ... this is substantive due process ... what we've got is not a taking.” Then at the pretrial conference, just two months before the 1998 trial, the trial court confirmed that "[Yardarm]’s going to proceed on the theoiy of breach of substantive due process.... As encompassed in 42 U.S.[C.] 1983. Yardarm does not dispute the City's charge that in the 3,153 pages of transcript covering the ten days of trial and numerous arguments of counsel, there is no mention whatsoever of "procedural due process.”

      . The City disputes that Yardarm legally had any vested rights in its building permits, noting that "Florida law since 1945 had been clear that [possession of a building permit does not create a vested right ...” City of Boynton Beach v. Carroll, 272 So.2d 171, 173 (Fla. 4th DCA 1973). It further argues that Yardarm did not have a vested right factually, because we found that the record does not "demonstrate such a change in position as to justify the application of equitable estoppel in this case.” City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295, 1298 (Fla. 4th DCA 1987). Finally, the City asserts that, assuming arguendo that Yardarm had a vested right in its permit, the record demonstrated that it abandoned any such right. Id. at 1297 (finding that the City’s alleged obstructionist activities ceased after July 1979, and Yardarm failed to make any real progress on construction of the hotel in the intervening years).

      . See Baggs v. City of S. Pasadena, 947 F.Supp. 1580 (M.D.Fla.1996); Jacobi v. City of Miami Beach, 678 So.2d 1365, 1366-67 (Fla. 3d DCA 1996); Kantner v. Martin County, 929 F.Supp. 1482, 1486-87 (S.D.Fla.1996), aff'd, 142 F.3d 1283 (11th Cir.1998); and Boatman v. Town of Oakland, 76 F.3d 341 (11th Cir.1996); see also Ammons v. Okeechobee County, 710 So.2d 641, 645 (Fla. 4th DCA 1998) (applying McKinney and holding that a decision to revoke an unlawfully issued occupational license did not strike at fundamental rights under the constitution and thus did not violate substantive due process rights under § 1983); Paedae v. Escambia County, 709 So.2d 575 (Fla. 1st DCA 1998) (applying McKinney and holding that the interpretation of the zoning code which disallowed the use of appellants' property in one particular manner was not a legislative action, but rather in the nature of a denial of a development permit, which would not support a federal action for damages under § 1983 because a property owner has no protectable property interest in a building permit under Florida law).

      . Olsen testified that several commissioners made derogatory remarks about Yardarm in private conversations outside of City Commission meetings and seemed to have "a policy of stopping anything that Yardarm was doing.”

      . Yardarm's first permit was revoked in 1974 by Walter C. Williams, Building Official, as instructed by John Cartwright, the City Manager, chief executive officer and head of the administrative branch of the City government. Williams also revoked a second permit due to lack of work on the project. Subsequent reviews of Yardarm's building permit applications were done by Williams’ successor, Eugene Guydosik, Fred Peterson, Assistant Planning Director, Fred Kleingartner, Planning Director, and Regan Yarbrough of the Planning Department and Planning and advisor to the Planning and Zoning Board. The City Engineer, Richard Mills, rendered advice concerning application for the dock permit The City Attorney and City Manager ■were involved in matters concerning the drafting of an ordinance to repeal Yardarm’s special exception.

      . The City presented evidence that, under the City Charter, "all powers of the city and the determination of all matters of policy [are] vested [solely] in (he Commission.” § 10, City Charter. Thus, only the City Commission can set policy, and it can do so only through a duly enacted ordinance or resolution. In Florida, an ordinance is the "official legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law.” § 166.041 (l)(a), Fla. Stat. (1983).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SIMON, PIPES & ROSS, INC., a Florida Corporation d/b/a Hialeah Radiology Associates; Mark Fasbinder, M.D.; and Zachary Schlaff, M.D., Appellants, v. Jaime CUARTAS, M.D., Appellee.
    No. 3D-01-3571.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2002.
    Rehearing, Rehearing En Banc and/or Certification Denied Jan. 22, 2003.

      Shook, Hardy & Bacon, and Courtney B. Wilson, for appellants Simon, Pipes & Ross, Inc. and Mark Fasbinder, M.D.; William J. Berger (Boca Raton), for appellant, Zachary Schlaff, M.D.
    Alice E. Warwick, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and FLETCHER  JJ.

       Judge Fletcher did not participate in oral argument.

   PER CURIAM.

Appellants Simon, Pipes & Ross, Inc., Mark Fasbinder, M.D., and Zachary Schlaff, M.D. (hereafter collectively referred to as “SPR”) appeal an adverse final judgment in a wrongful termination claim brought by a former employee/shareholder. We reverse.

In January of 1990, SPR hired appellee, Jamie Cuartas, M.D. (“Cuartas”), to practice radiology with their medical group. Cuartas and SPR signed an employment agreement under which Cuartas had a one year trial period followed by a four-year tenure period of employment. Cuartas completed the tenure period and became a shareholder in SPR.

Nine years later, SPR terminated Cuar-tas, and Cuartas sued the corporation, as well as Drs. Fasbinder and Schlaff individually. The initial complaint alleged wrongful termination based upon breach of the employment agreement. The trial court dismissed the complaint finding the four-year employment agreement had expired and did not set forth any terms or conditions of the parties’ relationship after Cuartas became a shareholder.

Eventually, Cuartas filed a fourth amended complaint containing a promissory estoppel count which alleged a verbal promise was made that Cuartas would not be terminated except “for cause.” In support of the verbal promise claim, Cuartas referred to the employment agreement. SPR moved to dismiss the promissory es-toppel count arguing it represented an attempt to indirectly resurrect the previously dismissed written contract claim.

At the hearing on the motion to dismiss, Cuartas conceded the employment agreement was not binding on the parties and did not govern his rights and obligations as a shareholder. The motion to dismiss was denied and the ease proceeded to trial on Cuartas’s promissory estoppel and breach of fiduciary duty claims.

At trial, SPR moved to exclude evidence of the employment agreement on the basis the document was prejudicial, confusing, and irrelevant. The trial court, however, denied the motion. Thereafter, over SPR’s objection, the trial court granted Cuartas’s ore terms motion to amend the complaint to conform to the evidence introduced at trial.

The jury returned a verdict finding SPR hable for promissory estoppel and awarded $813,000 in lost wages. Additionally, Fas-binder and Schlaff were found liable for breach of fiduciary duty. When asked to specify the amount of unspecified damages, “if any,” that were caused by Fasbin-der’s and Schlaff s breaches, the jury answered: “$0 lost wages” and “$0 loss of reputation.” A final judgment was entered holding SPR and the individual defendants Fasbinder and Schlaff jointly and severally hable for $813,000.

Where an objection is raised by the defendant, it is reversible error to permit a plaintiff to amend at the close of evidence to allege a new theory of recovery. See Designers Tile Int'l Corp. v. Capitol C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla.1987); see also Freshwater v. Vetter, 511 So.2d 1114 (Fla. 2d DCA 1987) (trial court should not allow amendment over objection). Here, the trial court allowed Cuar-tas to amend the promissory estoppel and breach of fiduciary duty claims at the conclusion of trial, and to argue that the employment contract was the basis for wrongful termination. Particularly where the judge ruled the contract had expired and where Cuartas acknowledged the contract did not apply, we find this change in the cause of action was clearly material and greatly prejudiced SPR. See Allett v. Hill, 422 So.2d 1047 (Fla. 4th DCA 1982); Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977).

Moreover, there was no evidence presented to support Cuartas’s claims of promissory estoppel and breach of fiduciary duty. Thus we find SPR was entitled to a directed verdict in its favor. See Designers Tile International Corp. v. Capitol C Corp., 499 So.2d at 4; Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA), cert. denied, 125 So.2d 878 (Fla.1960). Accordingly, the final judgment is reversed, and the cause is remanded to the trial court with directions to enter final judgment in favor of SPR.

Reversed and remanded with directions.


author: MINER, J.

text:
    Lawanda BYRD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D01-4683.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2002.
    Rehearing Denied Jan. 17, 2003.
    Nancy A. Daniels, Public Defender; Ed Harvey, Assistant Public Defender, Tallahassee, for Petitioner.
    Robert A. Butterworth, Attorney General, Tallahassee; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   MINER, J.

Petitioner, Lawanda Byrd, filed a petition for writ of certiorari to review the trial court’s decision to deny her motion to dismiss without prejudice, which was filed pursuant to section 916.303(1), Florida Statutes (1999). We agree with the trial court’s finding that Florida Rule of Criminal Procedure 3.213(a) supersedes the statute and required denying the motion to dismiss. However, given the Legislature’s clear intention to differentiate between defendants who are incompetent to proceed due to mental illness, which is often curable, and those whose incompetence is due to mental retardation or autism, for which there is no “cure,” the Florida Supreme Court may find it appropriate to consider amending Rule 3.213 to reflect such a distinction.

DENIED.

BENTON and LEWIS, JJ., concur in result.


author: DAVIDSON, LISA, Associate Judge.

text:
    AVATAR DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. De PANI CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 4D01-3249.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2002.
    Rehearing Denied Feb. 7, 2003.

      John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    Robert E. Ferencik, Jr. of Ferencik, Libanoff, Brandt and Bustamante, P.A., Fort Lauderdale, for appellee.
   DAVIDSON, LISA, Associate Judge.

Avatar Development Corporation (Avatar) is the developer of Harbor Islands, a residential community in Hollywood, Florida. Avatar entered into a contract with De Pani Construction, Inc. (De Pani), a stucco contracting company, for De Pani to perform stucco work on various parts of the development. On March 22, 1995, the parties executed a Master Construction Contract (Master Contract) which set forth the parties’ obligations. The Master Contract contained a termination clause, Article 67, which provided in pertinent part:

67.1 The Company [Avatar] may terminate this Agreement at any time for any reason by giving at least ten (10) days prior written notice.
67.2 Upon any termination of this Agreement, the Contractor [De Pani] shall be entitled to payment for work finished, installed or in process which is acceptable to the Company.
67.3 The Contractor, upon termination of the Agreement, shall forthwith peaceably and quietly surrender to the Owner all premises, facilities, machinery and equipment furnished to or belonging to the Owner.
67.4 Notwithstanding the above, the Owner at its discretion shall have the right to require Contractor to complete any or all work underway which is subject to a notice to proceed.

In an effort to expand De Pani’s work on the Harbor Islands project, the parties entered into four subsequent addenda to the Master Contract. Each addendum contained the following clause:

All of the terms and conditions of the Master Construction Contract Agreement which do not directly conflict with the above shall remain of full force and effect and be incorporated in this Addendum.

In Addenda 3 and 4, the following clause was added:

All of the above mentioned prices shall stay in full force and effect until December 31, 1997. The Contractor and the Owner will mutually agree upon any changes to the above mentioned prices, if required. This Agreement shall automatically renew for one (1)' additional year unless written notice is received by the Owner from the Contractor thirty (30) days prior to its expiration.

On September 17, 1997, Avatar notified De Pani by letter that, pursuant to Article 67 of the Master Contract, it had decided to terminate the Master Contract and all addenda ten days from the date of the letter. De Pani filed suit against Avatar seeking to foreclose on a construction lien (Count I), requesting damages for breach of contract (Count II), and for declaratory relief asking the court to determine whether the termination provisions of Article 67 were modified by the addenda to eliminate Avatar’s right to terminate De Pani without cause (Count III).

The trial was bifurcated and the parties agreed to present the issues contained in the count for declaratory relief to the trial judge. In the Order on Count for Declaratory Relief, the trial judge ruled in favor of De Pani. Specifically, the lower court determined that: (1) the specific language in the addendum controlled over the general rights for termination in the Master Contract; (2) an ambiguity existed between Article 67 in the Master Contract and the language of Addenda 3 and 4; (3) the ambiguity must be resolved against Avatar; (4) the unilateral, termination provision contained in Article 67 was illusory and unfair because it lacked in mutuality of obligation; (5) Avatar violated the implied covenant of good faith; and (6) Avatar was precluded by equitable principles from exercising the termination provision of Article 67.' We find that the case must be reversed on the claim for declaratory relief.

Article 67 is a valid and enforceable unilateral termination clause as it required Avatar to provide “at least ten (10) days prior written notice,” which constituted sufficient consideration. See Sugar Cane Growers Coop. of Fla., Inc. v. Pinnock, 735 So.2d 530 (Fla. 4th DCA 1999). Moreover, the termination clause contained in Article 67 of the Master Contract and the language, of Addenda 3 and 4 do not conflict. Rather, the two clauses create mutuality of termination. The language in Addenda 3 .and 4 permits De Pani to avoid the contract in the eyent that the price term is rendered onerous by the passage of time. If the price term does become onerous, then De Pani can terminate the contract by providing 30 days notice. Avatar needed no similar escape clause in the event of declining prices because it already had its rights under Article 67. Even if there was no mutuality of termination, Florida courts - have upheld the unilateral right of one party to cancel a contract as long as consideration exists. See Rollins Servs. v. Metro. Dade County, 281 So.2d 520 (Fla. 3d DCA 1973); see also Murry v. Zynyx Mktg. Communications, Inc., 774 So.2d 714, 715 (Fla. 3d DCA 2000).

Each addendum provided for “all of the terms and conditions of the Master Construction Agreement” that do not directly conflict with the addenda to remain in full force and effect and be incorporated in' the addenda. All terms in the Master Contract and addenda can co-exist without conflict; therefore, there is no need to elevate one provision over another. The subsequent addenda, which contained prices fixed for a period of time, provided a term of years for the addenda and included an automatic renewal provision, did not modify or eliminate the termination provision in Article 67.

The trial judge found that Avatar violated the implied covenant of good faith and fair dealing in terminating the contract pursuant to Article 67. However, the covenant of good faith cannot be used to create a breach of contract on Avatar’s part, where there was no breach of any express term of the contract. As this Court explained in Indian Harbor Citrus, Inc. v. Popped, 658 So.2d 605 (Fla. 4th DCA 1995), an implied covenant of good faith cannot be used to vary the unambiguous terms of a written contract and when parties negotiate “a fully specified, unambiguous contract, this court is not at liberty to change their bargain.” Id. at 607. The “duty of good faith must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.” Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 574 (Fla. 4th DCA 1998). The language of Article 67 was plain and unambiguous: Avatar could terminate the contract at any time for any reason. It was a valid contract with an enforceable termination clause. Avatar complied with the terms of Article 67 in the Master Contract when it terminated De Pani. Avatar’s ulterior motive for De Pani’s termination has no relevance as Article 67 of the Master Contract provided Avatar with the right to terminate De Pani at any time. See A.J. Temple Marble & Tile, Inc. v. Long Island R.R., 256 A.D.2d 526, 682 N.Y.S.2d 422 (N.Y.App.Div.1998). Florida law required nothing more of Avatar.

REVERSED and REMANDED.

POLEN, C.J. and STONE, J., concur.

      . This count was subsequently settled and voluntarily dismissed.

      . The interpretation of a contract is a matter of law for the court, and is therefore a subject of de novo review. DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428 (Fla.1990); Gilman Yacht Sales, Inc. v. FMB Inv., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000). "In construing a contract, the legal effect of its provisions should be determined from the words of the entire contract.” Sugar Cane Growers Coop, of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999). "All the various provisions of a contract must be so construed, if it can reasonably be done, as to give effect to each.” Paddock v. Bay Concrete Indus. Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963). In the event that the language of a contract is clear and unambiguous, the court will enforce such contract according to its terms. Id. at 316.


text:
    K & M SHIPPING, INC., Caribbean Barge Line, Inc., and Samir Mourra, Appellants, v. Seden PENEL, Mona Louis, and Jean Joseph Calixte, Appellees.
    No. 3D01-1896.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Rehearing and/or Rehearing En Banc Denied Jan. 22, 2003.

      Robert A. Ader and Elizabeth B. Hitt, for appellants.
    Cassidy & Black and Michael Black, for appellees.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

K & M Shipping, Inc., Caribbean Barge Line, Inc., and Samir Mourra appeal an adverse judgment after jury verdict.

As a preliminary matter, the appellant dissolved corporations have standing to proceed in this appeal. See National Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002) (en banc); Cygnet Homes, Inc. v. Kaleny Ltd. of Florida, 681 So.2d 826 (Fla. 5th DCA 1996). Those cases analyze the current version of chapter 607, Florida Statutes, relating to dissolved corporations, see National Recovery Agency, Inc., 826 So.2d at 1034-36; Cygnet Homes, Inc., 681 So.2d at 826, which became effective July 1, 1990. See Levine v. Levine, 734 So.2d 1191, 1197 (Fla. 2nd DCA 1999).

On the merits, under the unusual circumstances of this case, the trial court properly allowed it to proceed, inter alia, on a cause of action for unjust enrichment. See Hillman Construction Corp. v. Wainer, 636 So.2d 576 (Fla. 4th DCA 1994). We have carefully considered the appellants’ argument to the contrary but are not persuaded thereby. We find that no reversible error has been demonstrated by the appellants’ remaining points on appeal.

Affirmed.

       Under the facts of this case, we need not address the discussion in Levine v. Levine, 734 So.2d at 1197, regarding after-acquired claims of a dissolved corporation.


text:
    The STATE of Florida ex rel., Lawrence R. METSCH, and Daniel L. Metsch, Petitioners, v. Pamela TRAEGER, Respondent.
    No. 3D02-2094.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Rehearing Denied Jan. 22, 2003.

      Metsch & Metsch, and Lawrence R. Metsch, Miami, for petitioners.
    Norkin & Drucker, and Jeffrey A. Nor-kin, Miami, for respondent.
    Before COPE, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Petitioners Lawrence R. Metsch and Daniel L. Metsch seek a writ of prohibition to prevent the trial court judge from presiding over the case subsequent to the judge’s appointment to serve as a referee in a disciplinary action before the Florida Bar and filed against respondent Pamela Traeger’s counsel below. We deny the petition. Canon 3(E)(1), Florida Code of Judicial Conduct, requires that a judge disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. See Tower Group, Inc. v. Doral Enters. Joint Ventures, 760 So.2d 256 (Fla. 3d DCA 2000) (disqualification appropriate where attorney had been the trial judge’s opponent in acrimonious re-election campaign); Town Centre of Islamorada, Inc. v. Overby, 592 So.2d 774 (Fla. 3d DCA 1992) (extrajudicial dispute between counsel and the trial judge warranted disqualification). Generally, the trial court judge’s duties as a referee in a disciplinary action filed against an attorney would be insufficient grounds for disqualification unless it can be shown that “the judge has a personal bias or prejudice concerning a party or a party’s lawyer[.]” Fla.Code Jud. Conduct, Canon 3E(1)(a). See 5-H Corp. v. Padovano, 708 So.2d 244, 248 (Fla.1997). This case is further removed because it is respondent’s counsel, not the petitioners’ counsel, who has the pending disciplinary proceeding.

We therefore deny the petition.


text:
    Darren O. WOOLBRIGHT, Petitioner, v. DEPARTMENT OF REVENUE, Respondent.
    No. 1D02-3189.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2002.
    Rehearing Denied Jan. 17, 2003.
    Darren O. Woolbright, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

BOOTH, BENTON and Van NORTWICK, JJ., concur.


text:
    Sean Parrish WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3410.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Rehearing and Rehearing En Banc Denied Jan. 22, 2003.
    Sean Parrish Wright, in proper person.
    Richard E. Doran, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Sean Parrish Wright appeals an order denying his motion to correct illegal sentence. We affirm in part and reverse in part.

Defendant-appellant Wright was charged with committing four robberies between April 19 and April 22, 1993. There were four separate victims on four separate dates. The crimes were charged as second degree felonies. See § 812.13(2)(c), Fla. Stat. (Supp.1992).

The defendant entered into a plea bargain for a sentence as a habitual violent felony offender (“HVO”). It was agreed that the defendant would be sentenced to a term of thirty years incarceration with a ten-year mandatory minimum sentence. The thirty-year period of incarceration was to be followed by a period of ten years of probation.

The trial court imposed the sentences as agreed. It did so by imposing the agreed sentence on each of the four counts, with all of the sentences to run concurrently.

By his motion, the defendant correctly points out that the legal maximum for a habitualized second degree felony is thirty years, with a mandatory minimum of ten years. § 775.084(4)(b)2., Fla. Stat. (1991). Thus the defendant is correct in saying that a sentence of thirty years incarceration, followed by ten years probation, exceeds the legal maximum.

Under the circumstances of this case, however, this is a mere technical error. Because each of the four counts involved a separate victim and a separate crime date, it is permissible for the habitual offender sentences to run consecutively. Hale v. State, 630 So.2d 521, 525 (Fla.1993); Sprow v. State, 639 So.2d 992, 993 (Fla. 3d DCA 1994).

It is therefore appropriate to remand the case to the trial court to enter a corrected sentencing order such that one of the now-concurrent counts will be resen-tenced to provide instead for a consecutive period of ten-years probation. In this way the original sentencing intent will be achieved. Blackshear v. State, 531 So.2d 956, 958 (Fla.1988); Fasenmyer v. State, 457 So.2d 1361, 1365 (Fla.1984).

Relying on Jeffries v. State, 610 So.2d 440 (Fla.1992), and Johnson v. State, 765 So.2d 914 (Fla. 2d DCA 2000), the defendant argues that he does not actually qualify as an HVO. The defendant misunderstands those cases.

In the present case, the defendant’s predicate convictions were several armed robbery cases, in which the convictions occurred on October 17, 1988. We interpret the defendant’s motion as asserting that he was still serving his sentences for those offenses, having been placed on work release, at the time of the current crimes.

Assuming that the defendant was on •work release for all of the predicate offenses, the Jeffries decision does not provide any relief for him. That is so because the defendant committed the current offenses within five years of the adjudication dates of the predicate offenses, where the adjudications occurred on October 17, 1988. Since the new crimes were committed within five years of the adjudication of the predicate offenses, it follows that the defendant qualifies as an HVO. See § 775.084(l)(b)2., Fla. Stat. (1991); Barnes v. State, 634 So.2d 230 (Fla. 1st DCA 1994). In Jeffries, by contrast, the defendant committed his new crime in prison, more than five years after the adjudication of the predicate offense. 610 So.2d at 440. There was likewise a gap of more than five years in the Johnson case. 765 So.2d at 915-16.

The defendant also claims that he was never actually sentenced as an HVO. To the contrary, the plea colloquy is very clear that this was a plea bargain for an HVO sentence, which was agreed to by the defendant and clearly approved by the trial court. The defendant’s remaining points are without merit.

For the stated reasons, the order denying the motion to correct illegal sentence is affirmed in part, reversed part, and remanded for correction of the sentencing order. The defendant need not be present.

       We interpret the plea colloquy in the present case as stating that October 17, 1988 was the adjudication date for the predicate offenses.


author: SHEVIN, Judge.

text:
    William PARKER and Taino Farms, Ltd., Appellants, v. GRAHAM & JAMES, n/k/a Graham & James L.L.P., Appellee.
    No. 3D01-2384.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Rehearing Denied Jan. 22, 2003.
    Tilghman & Vieth and Robert C. Tilgh-man; Stewart Tilghman Fox & Bianchi, and James Tilghman, Jr., Miami, for appellants.
    Holland & Knight, and Daniel S. Pearson and Christopher N. Bellows, Miami, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   SHEVIN, Judge.

William Parker and Taino Farms, Ltd. [“plaintiffs”], appeal a defense judgment in a legal malpractice action. We affirm.

Plaintiffs, who raise papayas in Free-port, Grand Bahamas, bought improperly treated fertilizer from Miami-Dade County. The fertilizer destroyed the crop. Plaintiffs and a lender sued the County in federal court asserting breach of contract, negligence and strict liability. Plaintiffs were represented by Graham & James [“G & J”], and Frank Sexton. At trial, the jury returned an inconsistent verdict-finding liability on all theories but awarding damages on only two. Sexton accepted the court’s offer to re-instruct the jury with the same instructions. The second verdict was also inconsistent. The trial court entered a judgment on that verdict. The Eleventh Circuit Court of Appeals reversed and remanded the case for a new damages trial, because of the confusing verdict. Overseas Private Invest. Corp. v. Metropolitan Dade County, 47 F.3d 1111 (11th Cir.1995). Plaintiffs discharged their attorneys and settled with the County.

Thereafter, plaintiffs sued G & J and Sexton in Dade County Circuit Court for malpractice asserting various deficiencies in counsel’s trial performance, including failure to proffer an adequate special verdict form with one damages question. Sexton settled with the plaintiffs. After discovery, the court granted summary judgment on that claim. At trial, the court charged the jury that G & J was liable for Sexton’s negligence, but declined to include the issue of Sexton’s separate negligence on the verdict form. The jury found that G & J was not negligent. Plaintiffs appeal.

We find no merit in plaintiffs’s issues on appeal. Notwithstanding the summary judgment in G & J’s favor on the failure to proffer a proper verdict form, plaintiffs were still permitted to argue this theory extensively to the jury. Any possible error in granting the summary judgment is harmless. See Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla.1951); Canto v. J.B. Ivey & Co., 595 So.2d 1025 (Fla. 1st DCA 1992); Sansing v. Firestone Tire & Rubber Co., 354 So.2d 895 (Fla. 4th DCA 1978). Therefore, reversal on this basis is not required.

Turning to plaintiffs’s second issue, the propriety of the verdict form, here, the jury was instructed to charge Sexton’s negligence to G & J, and the verdict form mirrored the instruction. Hutton v. Sussman, 504 So.2d 1372 (Fla. 3d DCA 1987). When we consider the verdict form and instructions, as a whole, it is apparent that the court did not commit reversible error in the verdict form üsed. Gallagher v. Federal Ins. Co., 346 So.2d 95 (Fla. 3d DCA 1977). Thus, this issue does not provide a basis for reversal.

Based on the foregoing, the defense judgment is

Affirmed.


text:
    Miguel PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2202.
    District Court of Appeal of Florida, Fourth District.
    Nov. 27, 2002.
    Rehearing Denied Feb. 6, 2003.
    Carey Haughwout, Public Defender, Benjamin W. Maserang, Assistant Public Defender, West Palm Beach, and Miguel Perez, Crestview, for appellant.
    No appearance required for appellee.
   PER CURIAM.

In this case, appellant moved in the circuit court to vacate his plea under Florida Rule of Criminal Procedure 3.850 while his direct appeal was pending. Paragraph thirteen of his motion recognized that the trial court was without jurisdiction to rule on the motion while the direct appeal was pending. The trial court dismissed the motion relying on Wilcher v. State, 805 So.2d 74 (Fla. 4th DCA 2002). Wilcher indicates that dismissal is the appropriate remedy under these circumstances, concluding that the trial court could not rule on a 3.850 motion filed while an appeal is pending, even after the appeal is concluded and a mandate is issued returning jurisdiction to the trial court.

We ñnd nothing in the criminal rules which requires dismissal under these circumstances. We believe that when the trial court is precluded by a pending appeal from ruling on a motion for post-conviction relief, the better procedure is to stay the post-conviction relief motion rather than dismiss it for lack of jurisdiction. See Washington v. State, 823 So.2d 248 (Fla. 4th DCA 2002). We recede from our prior opinion in Wilcher to the extent that it holds that the proper remedy is dismissal.

Reversed and remanded for further proceedings.

POLEN, C.J., GUNTHER, STONE, WARNER, FARMER, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR and MAY, JJ., concur.

HAZOURI, J., recused.


author: PLEUS, J.

text:
    Jerome S. RYDELL, et al., Petitioners, v. Gorham RUTTER, Jr., et al., Respondents.
    No. 5D02-3280.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Richard E. Whitaker and Jack W. Shaw, Jr., P.A., of Motes and Carr, P.A., Orlando, and Joseph H. Spiegel of Joseph H. Spiegel, P.C., Ann Arbor, MI, for Petitioners.
    Kenneth D, Morse, Orlando, for Respondent Gorham Rutter, Jr.

      Philip J. Snyderburn and William M. Rishoi of Snyderburn, Rishoi & Swann, Orlando, for Respondents Snyderburn, Rishoi & Swann and K Michael Swann.
   PLEUS, J.

The plaintiffs seek certiorari review of a pre-trial order finding that the defendants were entitled to attorney’s fees and costs as a result of' the plaintiffs’ misconduct during discovery. We deny the petition.

Plaintiffs filed suit in 1999. Defendants served discovery requests in March of 2000, and the plaintiffs, after failing to comply with discovery, were ordered by the court to comply fully with the requests by May 4, 2000. Plaintiffs failed to adequately answer interrogatories or provide the requested documents by May 4, 2000, and defendants filed a motion to dismiss.

The trial court dismissed the action with prejudice as a sanction against the plaintiffs for their misconduct in discovery. On appeal, this court agreed with the trial court that the plaintiffs had not fully complied with the lower court’s discovery order. Nevertheless, we reversed the order of dismissal, holding that the lower court should have devised sanctions short of the ultimate sanction of dismissal. See Surf Tech International, Inc. v. Rutter, 785 So.2d 1280 (Fla. 5th DCA 2001).

On remand to the trial court, the plaintiffs continued to disregard the court’s discovery order, not complying with the discovery requests until August, 2002, after defendants filed a motion for a stay and for attorney’s fees and costs. The trial court found that the plaintiffs’ continuing disregard of the trial court’s order rose to the level of bad faith, willful disregard and gross indifference towards the judiciary. The court also noted that those who initiated the amended complaint committed a fraud on the court by listing two corporations as plaintiffs, even though the individual plaintiffs were never officers, directors, or shareholders of those corporations. The two spurious plaintiff corporations were not dropped as parties until after 26 months had lapsed from the filing of the amended complaint. The court ruled that defendants were entitled to attorney’s fees and costs as a result of the plaintiffs’ misconduct. The court further ordered that it would hold a hearing in the near future to determine the amount of the attorney’s fees and costs, and that the case would be stayed until the attorney’s fees and costs were determined and then paid in full.

Plaintiffs now seek certiorari review, claiming that the trial court departed from the essential requirements of law. The plaintiffs assert that the court erred in staying the proceedings, and erred in finding that the plaintiffs acted in bad faith and committed a fraud upon the court.

We conclude that certiorari review of the pretrial order is inappropriate at this time. Under review is a pre-trial order determining that an award of attorney’s fees to the defendants should be made. The determination that an award of fees is appropriate does not in itself demonstrate material harm or irreparable injury. The ultimate monetary amount of the sanction could be an important factor in determining if there is material harm resulting in irreparable injury. Although the plaintiffs argue that they will suffer material harm as a result of the court-ordered stay, this argument is not convincing as the record shows the plaintiffs have unnecessarily delayed the case by their own discovery misconduct.

In Avril v. Civilmar, 605 So.2d 988 (Fla. 4th DCA 1992), the trial court imposed pre-trial sanctions against defendants in a civil action for failure to negotiate in good faith during court-ordered mediation. The fourth district held that certiorari review was appropriate because the order imposing sanctions in the form of attorney’s fees and costs had immediate effect and was not conditioned on the outcome of the case. The court found that the order of sanctions constituted a departure from the essential requirements of law because the only basis for sanctions was the defendants’ unwillingness to make a satisfactory offer of settlement. Similarly, in Tuccicaselli v. Greene, 474 So.2d 1288 (Fla. 4th DCA 1985), a trial court imposed attorney’s fees as a sanction for failing to take a deposition that had been scheduled. The fourth district held that certiorari review was proper as the trial court had prohibited the petitioner from taking any additional depositions until the sanction was paid.

A more restrictive view of certiorari as a remedy for pre-trial sanctions was expressed in Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982). In Malone, the first district held that an interlocutory order granting attorney’s fees and costs on a motion to compel discovery was not a non-final order which could be reviewed by appeal or certiorari. The first district noted that when seeking a writ of certiorari, petitioner has a heavy burden of showing that there was a clear departure from the essential requirements of law which would result in irreparable harm. The first district stated that even if compliance with a court order is costly, that in and of itself would not provide a basis for certiorari review.

In Powell v. Wingard, 402 So.2d 532 (Fla. 5th DCA 1981), this court was asked to review by certiorari a pre-trial order imposing sanctions totaling $600 in attorney’s fees and $154 in costs, and directing the petitioner to pay such sums within thirty days or have its pleadings stricken. We observed that it was not essential to the integrity of the legal system that all alleged interlocutory errors of the trial court be immediately reviewable by an appellate court. This court found that the trial court’s error, if any, would not overtax petitioner’s financial ability or constitute irreparable injury. It was also noted that petitioner had a choice, to either pay and participate, or seek an appeal from a final judgment entered after the pleadings are stricken due to petitioner’s noncompliance with the court order.

There is no irreparable injury at this point, as the fees and costs have not yet been reduced to a fixed amount. If the amount of fees and costs subsequently determined by the court is unreasonably high in relation to the misconduct, thereby leading to financial hardship or effectuating a “permanent” stay due to plaintiffs’ inability to make payment, certiorari review might be appropriate to consider whether there has been a departure from the essential requirements of law.

PETITION DENIED.

HARRIS and PALMER, JJ., concur.


text:
    Lino ALONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1874.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 2002.
    Rehearing, Rehearing En Banc and/or Certification Denied Jan. 22, 2003.

      Bennett H. Brummer, Public Defender, and Dorothy F. Easley, Special Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Lino Alonso appeals his convictions for sexual battery on a minor less than twelve years old and for lewd, lascivious, indecent assault upon a child. We affirm.

Alonso argues that the Information should have been dismissed for vagueness because it does not specify exactly when he molested the child. We disagree. The Information does not lack specificity and does not require dismissal under Florida Rule of Criminal Procedure 3.140(d)(3). See State v. Jones, 539 So.2d 535, 537 (Fla. 3d DCA 1989) (“It is not necessary that the exact date of the offense be alleged in an information if that date is not known. It is sufficient to allege that the offense occurred within stated specific time limits.”).

Alonso next argues that his convictions on both counts violate double jeopardy. Alonso is mistaken; the acts charged were distinct, occurred at different times, and the charges were supported by evidence. See Morman v. State, 811 So.2d 714, 717 (Fla. 2d DCA 2002) (similar acts sufficiently separated by time did not involve double jeopardy); see also Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991).

Alonso further argues that his statements to the polygraph examiner and the detective should have been excluded as evidence. This argument also lacks merit. Alonso’s statements were voluntary. Before Alonso made any statements to the polygraph examiner, he was read his Miranda rights and signed a Miranda waiver form. We further find that Alonso was not coerced. See La Rocca v. State, 401 So.2d 866 (Fla. 3d DCA 1981).

Affirmed.


author: BROWNING, J. VAN NORTWICK, J.,

text:
    Louise Ann WISE, Appellant, v. Michael Glen WISE, Appellee.
    No. 1D01-0939.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    Rehearing Denied Jan. 17, 2003.
    R. John Westberry, of Holt & Westber-ry, P.L., Pensacola, for Appellants.
    James L. Chase, of Chase, Quinnell, Mclver, Jackson & Marks, P.A., Pensacola, for Appellee.
   BROWNING, J.

Louise Ann Wise, the former wife, appeals an order of the trial court denying her request to revisit the equitable distribution scheme in the parties’ divorce decree. For the reasons that follow, we reverse.

In 1991, while the parties were still married, appellee, the former husband, retired from military service and became a participant in the United States Armed Forces Survivor Benefit Plan (SBP). This plan allows a military service member to select a beneficiary to receive a Navy plan annuity after the death of the military service member. The annuity premiums are deducted from the member’s retirement pay. The former husband and the former wife concurred in an election to designate their daughter, rather than the former wife, as SBP beneficiary when the former husband became a participant in the SBP.

In 1993, the parties divorced. Pursuant to the terms of their Stipulated Final Judgment of Dissolution of Marriage (Final Judgment), the former husband was ordered to elect SBP benefit coverage for the former wife. The parties expressly waived their rights to receive alimony in the final judgment. According to the former husband, the parties entered into the final judgment with a mutual, good-faith belief that the former husband could elect SBP benefit coverage for the former wife.

On July 9, 1999, the former wife filed a motion for contempt and enforcement, whereby she sought to hold the husband in contempt because he had not named her the SBP beneficiary. The trial court entered an order requiring the former husband to designate the former wife as beneficiary of his SBP within 60 days.

On appeal this court reversed, ruling the former husband was barred by controlling federal law-from electing SBP beneficiary status for the former wife because the parties, prior to the divorce, had named their minor daughter as the sole SBP beneficiary. Wise v. Wise, 765 So.2d 898, 900 (Fla. 1st DCA 2000) (Wise I). However, this court stated that “it is apparent that an annuity was awarded to the former wife as part of the overall scheme of equitable distribution in the final judgment”; therefore, “the lower court has authority to revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment.” Id. at 901.

Upon remand, the former wife filed a motion seeking to have the trial court revisit the parties’ equitable distribution scheme. The former husband argued that revisiting the equitable distribution scheme would be directly contrary to Florida Supreme Court precedent holding that if property rights of the parties have been adjudicated in a final judgment of dissolution of marriage, the doctrine of res judica-ta bars subsequent actions to redetermine the property rights. Finston v. Finston, 160 Fla. 985, 37 So.2d 423, 423-24 (1948); Davis v. Dieujuste, 496 So.2d 806, 809-10 (Fla.1986). The former husband argued that the grant of authority in this court’s Wise I decision was invalid because the allowed revisitation was barred as violative of the law announced in Davis and Fin-ston. The trial court agreed and entered an order denying the former wife’s motion to revisit the parties’ equitable distribution scheme on the basis of the Florida Supreme Court decisions in Davis and Fin-ston. By so doing, the trial court erred by failing to follow the dictates of Wise I that directed the trial court to “revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment.” Id. at 901.

After Wise I was decided, the former husband had two options: move for rehearing or petition the Florida Supreme Court for discretionary review. He did neither, and Wise I became the law of the case. This rule was succinctly stated by Judge Webster in Parker Family Trust I v. City of Jacksonville, 804 So.2d 493 (Fla. 1st DCA 2001), as follows:

“The doctrine of the law of the case is ... a principle of judicial estoppel.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 102 (Fla.2001). It applies when “successive appeals are taken in the same case.” Id. It requires that questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceeding. Id. Its purpose is “to lend stability to judicial decisions and the jurisprudence of the state, as well as to avoid ‘piecemeal’ appeals and to bring litigation to an end as expeditiously as possible.” Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965). Although the doctrine is “a self-imposed restraint that courts abide by,” State v. Owen, 696 So.2d 715, 720 (Fla.1997), once made by the appellate court, such decisions “will seldom be reconsidered or reversed, even though they appear to have been erroneous.” McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 728, 162 So. 323, 327 (1935). Reconsideration will occur only when “ ‘manifest injustice’ will result from a strict and rigid adherence to the rule.” Strazzulla, 177 So.2d at 4. “Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case.” Juliano, 801 So.2d at 102.

Parker, 804 So.2d at 497-98.

In this case, after remand, no additional facts were developed, and the former husband has not argued “manifest injustice.” Rather, the trial court entered its order on “arguments presented by counsel for both parties, and review! ] of the memorandum of law presented by counsel for both parties.” However, in any case, the trial court was bound by this court’s mandate to implement Wise I, rather than express its opinion that the Wise I panel erred.

In reversing the trial court we make no ruling on whether the trial court correctly applied Davis and Finston. We hold only that those precedents were or should have been considered in Wise I, and on remand the trial court was compelled to follow this court’s mandate as the law of the case.

REVERSED AND REMANDED.

WOLF, J. CONCURS; VAN NORTWICK, J., DISSENTS WITH OPINION.

VAN NORTWICK, J.,

dissenting.

Based on the doctrine of law of the case, the majority opinion reverses the trial court’s order denying a motion to revisit the entire equitable distribution scheme contained in the parties 1993 final judgment of dissolution of marriage. In the prior appeal in this matter, Wise v. Wise, 765 So.2d 898 (Fla. 1st DCA 2000) (Wise I), the former wife did not challenge the overall equitable distribution scheme or argue the necessity to revisit the scheme. As a result, I conclude that our language in Wise I that “the lower court has authority to revisit the equitable distribution in this case” is pure dicta and, thus, the doctrine of law of the case does not apply. Accordingly, I respectfully dissent.

Doctrine of Law of the Case

In its most recent pronouncement on the doctrine of law of the case, the Florida Supreme Court held that the doctrine “bars consideration only of those legal issues that were actually considered and decided in a former appeal.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 107 (Fla.2001). In Juliano, the court reaffirmed its holding in U.S. Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla.1983), in which the court had limited the doctrine “to rulings on questions of law actually presented and considered on a former appeal.” Juliano, 801 So.2d at 106. (Emphasis in original). The court resolved any possible confusion with Airvac, Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla.1976), where the court appeared to suggest that the law of the case also applied where an issue could have been raised in the prior appeal, but was not raised. The Juliano court explained:

To the extent that Airvac has been construed broadly to stand for the proposition that the law of the case doctrine bars consideration of issues that were neither raised by the parties nor decided by the appellate court in the prior appeal, it is in conflict with our subsequently decided case of U.S. Concrete, which restricts application of law of the case to issues that were decided in a prior appeal. Therefore, we recede from Airvac to the extent that it is inconsistent with U.S. Concrete. '

Juliano, 801 So.2d at 107.

Thus, for the doctrine of law óf the case to apply, the issue must have been raised as an'issue or expressly argued by one of the parties in a prior appellate proceeding in the same case and must have been actually considered by the appellate court. See also McBride v. State, 810 So.2d 1019, 1022 (Fla. 5th DCA 2002), rev. granted, No. SC02-627, 825 So.2d 935 (Fla. Aug. 20, 2002).

Wise I involved an appeal from an order in enforcement action and not a direct appéal of the final judgment of dissolution. The only issue raised in Wise I was whether the application of certain federal statutes precluded compliance with the 1993 final judgment that required the former husband to name the former wife as the beneficiary under the armed forces benefit plan. Upon reviewing the briefs filed in Wise I, it is clear that the parties did not challenge the overall equitable distribution scheme or argue that the trial court should or could revisit the entire equitable distribution scheme on remand. In the Wise I opinion, this court gratuitously stated that the trial court could revisit equitable distribution, apparently to avoid a harsh result. The Wise I panel’s advice concerning revisiting ' ■ the equitable distribution scheme was not necessary to a disposition of the appeal in Wise I. See Hart v. Stribling, 25 Fla. 435, 6 So. 455, 459 (1889). As a result, the statement in Wise I that “it is apparent that an annuity was awarded to the former wife as part of the overall scheme of equitable distribution in the final judgment” and that, therefore, “the lower court has authority to revisit the equitable distribution in this case or otherwise effect the terms of the dissolution judgment,” Wise I, 765 So.2d at 901, is pure dicta. See Myers v. Atlantic Coast Line Railroad Co., 112 So.2d 263, 267 n. 6 (Fla.1959)(“The dictum of the reviewing court is not within the rule of the law of the case and is, therefore, not conclusive on a subsequent appeal”).

Doctrine of Res Judicata

Even though doctrine of law of the case may not grant the trial court authority to revisit the equitable distribution scheme, may the trial court nevertheless revisit the overall equitable distribution scheme under the current circumstances? I agree with the trial court that the doctrine of res judicata under established Florida precedent bars the trial court from revisiting the parties’ property rights on remand of a proceeding that sought to enforce the 1993 final judgment. See Davis v. Dieujuste, 496 So.2d 806, 809 (Fla.1986); Finston v. Finston, 160 Fla. 935, 37 So.2d 423, 423-24 (1948). Thus, in my view, the trial court was correct in denying the former wife’s motion to revisit the parties’ equitable distribution scheme on the basis of Davis and Finston.

In Finston, the final judgment of dissolution was affirmed by the Florida Supreme Court on March 30, 1948. See Finston v. Finston, 160 Fla. 343, 34 So.2d 745 (1948). In August 1948, the former husband petitioned the trial court for a supplementary final decree which would have required the former wife to release or waive her rights to certain property. The trial court denied the former wife’s motion to dismiss the petition on res judicata grounds. On review, the Supreme Court concluded that the parties’ property rights had been at issue before the trial court at the time the final divorce judgment was entered and held that the petition for supplementary final decree seeking further adjudication of property rights was barred by the doctrine of res judicata. The Court explained:

The rule seems well settled that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.... It further appears from the pleadings in the main suit that the property rights in question were before the court when the final decree was entered and were adjudicated, so the doctrine of res adjudicata was a proper defense to raise here and should have been permitted. (citations omitted)

Finston, 37 So.2d at 423-424. In Davis, 496 So.2d at 809-810, the Florida Supreme Court reiterated the principle announced in Finston, holding that

where a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations.

This court has followed Davis in a similar case. See Love v. Love, 770 So.2d 256 (Fla. 1st DCA 2000)(court could not modify final judgment of dissolution entered several years earlier to equitably distribute the former husband’s military retirement benefits).

I recognize that in Juliano the court explained that, under the doctrine of res judicata, a judgment on the merits in a former suit bars a subsequent action between the same parties on the same cause of action, Juliano, 801 So.2d at 105, and that, thus, “[wjhere successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one is involved.” Id. (citing Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 607 (Fla.1953)). Both Juliano and Beverly Beach involved questions of the application of the doctrine of res judicata on successive appeals in the same continuous proceeding. Neither Ju-liano nor Beverly Beach involved the question of whether res judicata applied to a subsequent enforcement action, filed in the same docket number substantially after the final judgment has become final, in which a party raises issues regarding division of property rights that were adjudicated in the final judgment of dissolution. Thus, I do not believe that the Juliano court intended to overturn the long line of Florida authority, including Finston, founded on the doctrine of res judicata, which holds that, in a dissolution action, courts are barred from modifying a final adjudication of property rights in a subsequent proceeding, even though the action is filed in the same docket as the dissolution action. De Santis v. De Santis, 714 So.2d 637, 638 (Fla. 4th DCA 1998)(“Once the final judgment awarded each party the interest in his or her own pension plan, those assets were no longer marital property but the sole property of the individual spouse.” Therefore, trial court could not enter qualified domestic relations order (QDRO) against the wife’s pension plan to enforce the provision in the final judgment that she make a payment to her former husband as part of that property division.); Thruston v. Conley, 693 So.2d 1070 (Fla. 4th DCA 1997)(“re-shuffling of property rights, which were settled in final judgment of dissolution” is error even though styled as an enforcement proceeding); see, e.g., Hamilton v. Hamilton, 508 So.2d 760, 761 (Fla. 1st DCA 1987)(“Beeause this is an appeal from denial of modification, not an appeal from the final judgment of dissolution that effected equitable distribution of marital assets, neither the trial court nor this court can reach back and modify the original judgment to effect a different distribution of property rights, including the former husband’s military pension benefits”); see also Vandervoort v. Vandervoort, 277 So.2d 43, 45 (Fla. 3d DCA 1973) quoting Mabson v. Christ, 96 Fla. 756, 119 So. 131, 133 (Fla.1928)(“While a court of equity retains the power to modify by subsequent order the time or manner of the enforcement of a final decree ... after it has become final and absolute under our rules, it does not retain the power to amend, modify or alter the principles of such final decree.”); compare Janovic v. Janovic, 814 So.2d 1096, 1101 (Fla. 1st DCA 2002)(a court, as part of an enforcement proceeding, may order a different but equivalent benefit to that provided in the final judgment of dissolution “where one spouse takes a voluntary action which defeats the intent of the parties” in then-property settlement agreement (emphasis supplied)).

I acknowledge the apparent harshness of the result here. The instant case does not involve one party taking a voluntary action which defeats the terms of the final judgment’s disposition of property rights. Compare Janovic, 814 So.2d at 1100-01. It would appear that, unfortunately, no one involved in this dissolution proceeding realized in 1993 that federal law prohibited the manner by which the final judgment addressed the benefits under the armed forces benefit plan. See Juliano, 801 So.2d at 105 (“the doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised.... ”). The case before us should serve to emphasize that specialized knowledge is required to represent a party in a dissolution proceeding in which one party is in the military. See, e.g., Peter Cushing, The Ten Commandments of Military Divorce: Representing the Non-Military Spouse, Part I, 69 Fla. B.J. 66 (July/August 1995). Although I would prefer the applicable law to be otherwise, I must conclude that, under Juliano and Finston, both the trial court and we are constrained in our authority to reopen the equitable distribution scheme.

For the above reasons, I respectfully dissent.

      . This court may take judicial notice of its own records in Wise I. McNish v. State, 47 Fla. 69, 36 So. 176 (1904).

      . I am not unaware of the case law which suggest that res judicata will not be applied where it will work an injustice. Appellant, however, does not argue that the manifest injustice exception should be applied here. Our research does indicate that a manifest injustice exception to the doctrine of res judi-cata has been applied in workers' compensation cases, see, e.g., deCancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla.1973); City of Miami v. Knight, 554 So.2d 549 (Fla. 1st DCA 1990); Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982); in certain types of paternity litigation, State Dep’t of Revenue Office of Child Support Enforcement v. Redding, 685 So.2d 1000 (Fla. 3d DCA 1997), and other limited situations. See, e.g., Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla.1953). I have found no authority, however, for the proposition that a party can avoid the res judicata effect of a final judgment of dissolution disposing of the parties’ property rights by bringing a subsequent action after the final judgment of dissolution becomes final and arguing that manifest justice requires that the equitable distribution scheme be revisited. While the parties were mistaken in 1993, when the settlement was reached and the final judgment entered, that the husband could change the beneficiary of his armed forces benefit plan, in my view, this mistake should have been addressed pursuant to rule 1.540(b), Florida Rules of Civil Procedure, within one year of the 1993 final judgment. See Seiffert v. Seiffert, 702 So.2d 273, 275 (Fla. 1st DCA 1997).


author: RAMIREZ, J.

text:
    Kenny GOODRICH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3413.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 15, 2003.
    George T. Pallas, P.A., and George T. Pallas, Miami, for appellant.
    Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   ON MOTION FOR REHEARING DENIED

RAMIREZ, J.

We deny appellant Kenny Goodrich’s motion for rehearing, withdraw our prior opinion rendered on November 6, 2002, and substitute the following opinion in its stead.

Kenny Goodrich appeals the denial of his petition for writ of prohibition in which he sought to bar trial, arguing that the trial court improperly denied his motion for discharge based upon a speedy trial violation. We affirm because Goodrich was unavailable for trial during the crucial “window” time period provided for in Rule 3.191(p) of the Florida Rules of Criminal Procedure.

Goodrich was arrested on January 5, 2001 and charged with one count of misdemeanor domestic battery. The case was first set for trial on February 27, 2001. Appellee State of Florida thereafter moved to continue and the case was re-set for trial for March 20, 2001. The State again moved for a continuance and the case was re-set for trial for April 17, 2001. Both parties announced that they were ready for trial on April 11, 2001. On April 17, 2001, the trial judge continued the case.

Goodrich filed his notice of expiration of speedy trial time on April 26, 2001. The fifteen day window period was to expire on May 11, 2001. At that point, the trial had apparently been previously scheduled for May 15, 2001, outside the window period. On May 9, 2001, the following transpired:

JUDGE TUNIS: Kenny Goodrich. Mr. Pallas, how are you going?
MR. PALLAS: Great.
JUDGE TUNIS: You got a call this morning about your other case?
MR. PALLAS: Yes, Judge. I was in another court.
JUDGE TUNIS: No, it’s no problem. So, I think it’s set for sounding tomorrow.
MR. PALLAS: That’s fine.
JUDGE TUNIS: Unless you wanted the Court to reflect now that you’re ready since you’re here?
MR. PALLAS: No, no.
JUDGE TUNIS: You’re going to come back tomorrow?
MR. PALLAS: Yes.
JUDGE TUNIS: Okay. All right.
MR. JACOBS: The State is announcing it’s ready, your Honor.
MR. PALLAS: Ready tomorrow.
JUDGE TUNIS: Okay. So, you’ll be in front of Judge Kelly next week. Okay. Take care.

(emphasis added). Neither counsel informed the court that the scheduled trial fell outside the window period.

Goodrich alleges that the State contacted the judge ex parte and brought to the trial court’s attention that the trial was scheduled outside the window period. Defense counsel was contacted on May 9th and informed that trial was to begin at 1:00 p.m. the following day.

Despite counsel’s representation that it would be “ready tomorrow,” he was in fact not ready because Goodrich did not appear for trial on May 10, 2001. Counsel stated that he had not had any contact with Goodrich since May 9th. The court re-set the case for trial for the following day, May 11th. On May 10th at 5:55 p.m., a witness subpoena posted on the front door of Goodrich’s home directed him to appear for trial on May 11th. Goodrich again did not appear for trial on May 11th. Goodrich’s counsel attempted to contact him by telephone but could not reach him. The trial court found that Goodrich had waived his speedy trial right, and once again reset the trial for May 15, 2001.

On May 15, 2001, Goodrich appeared and when the court inquired of his whereabouts the previous week, he answered somewhat mystically, “I was in the east,” and knew only that the case was to proceed to trial on May 15, 2001. Goodrich filed his motion for discharge that day, which the trial court denied. He also filed a petition for writ of prohibition in the circuit court which was also denied.

Under rule 3.191(p)(3), Florida Rules of Criminal Procedure, a defendant must be brought to trial within fifteen days of the filing of a notice of expiration of speedy trial. Goodrich argues that the State allowed the speedy trial period to expire and failed to set the case for trial upon the filing of the notice of expiration on April 26, 2001. .The fifteen day period in this case expired on May 11, 2001. We cannot agree with Goodrich’s argument.

It is obvious that Goodrich is trying to reap the benefit of the erroneous setting of the trial date beyond the window period, the type of “gotcha” tactics we have frequently condemned. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979) and its progeny.

On rehearing, Goodrich correctly points out that our original opinion confused a speedy trial without demand, covered under rule 3.191(a), and a speedy trial upon demand, encompassed in rule 3.191(b). See State v. Anderson, 781 So.2d 524, 526-27 (Fla. 5th DCA 2001) (stating that under a speedy trial without demand, there is no requirement that the accused be available for trial, had diligently investigated the case and is prepared or will be prepared for trial within 5 days). This does not mean, however, that a trial date set outside the window period permits a defendant to disappear until the trial date.

In State v. Koch, 605 So.2d 519 (Fla. 3d DCA 1992), we discussed rule 3.191 extensively, also in the context of a speedy trial without demand. We affirmed the discharge of the defendant where the county court only gave the defendant one and a half days’ notice of trial. In that case, however, the defendant alleged prejudice because the circuit court found that such short notice prevented the defendant from obtaining compulsory process over five defense witnesses, two of which resided outside the county. Goodrich has not alleged any prejudice. We thus refuse to extend the holding in Koch to a situation where the defendant disappears during the crucial window period and thus prevents the State from bringing him to trial in a timely manner.

Affirmed.


text:
    Fedell Tobias NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D99-1450.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Rehearing Denied Jan. 22, 2003.
    Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Fedell Tobias Nichols, claims error in the trial court’s denial of his motion for judgment of acquittal. Appellant was charged with armed robbery and armed kidnapping. The jury found him guilty of armed robbery and armed false imprisonment, a lesser included offense. Because a review of the record establishes that the evidence at trial was sufficient to support a conviction for false imprisonment, as a matter of law, we affirm. See Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002).

Appellant further claims error in the trial court’s imposition of consecutive habitual offender sentences. The State properly concedes that the offenses were part of a single criminal episode, and as a result, the trial court erred in ordering appellant’s habitual offender sentences to run consecutively pursuant to Hale v. State, 630 So.2d 521 (Fla.1993). We, therefore, remand for correction of the error and imposition of concurrent sentences. Appellant need not be present for resentenc-ing. Kinsey v. State, 728 So.2d 1199, 1200 (Fla. 2d DCA 1999) (citing Sinks v. State, 661 So.2d 303 (Fla.1995)).

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


text:
    Amy GREENHILL, as Personal Representative of the Estate of Ayden Greenhill, for the use and benefit of the Estate of Ayden Greenhill, Amy Greenhill and Phillip Greenhill, as surviving parents of Ayden Greenhill, deceased, Appellant, v. SHANDS TEACHING HOSPITAL & CLINICS, INC., Florida Board of Regents; Cardiovascular Perfusionists, Inc. and Rene Rivera-Santiago, Appellees.
    No. 1D01-1520.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Rehearing Denied Jan. 23, 2003.
    Nolan Carter and Joanna Holley of Law Office of Nolan Carter, P.A., Orlando, for Appellant.
    John D. Jopling and David M. Delaney of Dell Graham, P.A., Gainesville, for Ap-pellee Florida Board of Education.
   PER CURIAM.

The appellants challenge an order by which their medical malpractice action was dismissed, upon a finding that they failed to comply with a pretrial conference order. As indicated in cases such as Commonwealth Federal Savings & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990), dismissal is a severe sanction which should be used only in extreme circumstances. Tubero reiterated the description of such circumstances in Mercer v. Raine, 443 So.2d 944 (Fla.1983), referring to a deliberate and contumacious disregard of the court’s authority, or bad faith, willful disregard or gross indifference, or conduct which otherwise evinces deliberate callousness. Acknowledging the court’s discretion to sanction a party in these circumstances, Tubero requires that an order sanctioning a party by dismissal contain a finding which indicates that the party’s conduct was willful or deliberate. The appealed order in the present case does not contain such a finding, and in accordance with Tubero the order must be reversed. See, e.g., First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997). The appealed order is therefore reversed and the case is remanded.

ALLEN, C.J., DAVIS and PADOVANO, JJ., CONCUR.