text:
    Mark Anthony HUGHES, Petitioner, v. Richard M. WEISS, as Clerk of the Circuit Court for the Tenth Judicial Circuit, Respondent.
    No. 2D03-3803.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.

      Mark Anthony Hughes, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Mark Anthony Hughes contends that the Clerk of Court for the Tenth Judicial Circuit improperly refused to accept his petition for writ of mandamus for filing without his compliance with the Prisoner Indigency Statute, section 57.085(2), Florida Statutes (2003). Although Hughes’ petition in this court seeks a writ of prohibition, we treat the petition as one seeking a writ of mandamus and grant relief.

Hughes is an inmate at Polk Correctional Institution. He attempted to file a petition for writ of mandamus in the Tenth Judicial Circuit, seeking the circuit court’s review of a disciplinary action that resulted in a loss of gain time. However, the clerk of circuit court refused to accept the petition. Relying on Administrative Order 3-28.1 entered by the Chief Judge of the Tenth Circuit, the clerk returned Hughes’ pleading for failure to comply with section 57.085(2). That statute requires that a prisoner initiating a judicial proceeding in which he seeks to proceed in forma pau-peris must file an affidavit setting forth specified information about his financial ability, along with reports from the institution regarding the inmate’s prison trust account. Hughes refused to comply with the statute and submitted his pleading once again. Upon the clerk’s refusal to accept the petition for the second time, Hughes sought relief in this court.

Based on Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d -, 2003 WL 1987971 (Fla. May 1, 2003), Hughes is entitled to relief. In Schmidt, the Florida Supreme Court determined that the review that Hughes is seeking in the circuit court is a “collateral criminal proceeding” and, as such, falls outside the requirements of section 57.085(2). However, the general indigency provisions of section 57.081 still apply. Therefore, if Hughes desires to proceed in forma pauperis, he must prove his inability to pay by filing an affidavit with the information required according to that section. See Schmidt, 28 Fla. L. Weekly at S369 n. 7, — So.2d at -n. 7; Williams v. Dep’t. of Corr., 851 So.2d 229 (Fla. 1st DCA 2003). Hughes is entitled to have the clerk process his filing as prescribed by Schmidt. Because this is a ministerial task, mandamus is appropriate.

Accordingly, we grant Hughes’ petition and issue the writ of mandamus.

NORTHCUTT, CASANUEVA, and STRINGER, JJ., Concur.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    CPI MANUFACTURING CO., INC., Appellant, v. INDUSTRIAS ST. JACK’S, S.A. DE C.V., ETC., Appellee.
    Nos. 3D02-3169, 3D02-3315.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing and Rehearing En Banc Denied April 14, 2004.

      Stanley Jay Bartel, Miami, for appellant.
    Markowitz, Davis, Ringel & Trusty, and Joseph I. Davis, Miami, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

This case concerns the applicability of Florida Rule of Civil Procedure 1.090(b)(2) in the context of a dismissal for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). Appellant/Plaintiff CPI Manufacturing Co., Inc. claims that the trial court erred in entering a Final Judgment of Dismissal and an Order Denying Plaintiffs Motion for Extension of Time in Which to File Notice for Trial. We affirm because we conclude that the trial court properly applied the procedure delineated in rule 1.420(e), which specifically deals with the failure to prosecute, instead of rule 1.090(b)(2), which generally deals with enlargements of time.

In 1998, CPI, a Florida corporation, sued appellee/defendant Industrias St. Jack’s, S.A. de C.V., a company incorporated in El Salvador, for breach of contract. CPI’s counsel does not dispute that there was a period of one year without record activity. He alleges, however, that before he left on his yearly three-week vacation in August-September 2002, he instructed his long-time secretary and paralegal to prepare and file a Notice of Unavailability and Motion for Extension of Time in all his pending cases. In addition, he alleges that he reviewed the pleadings binder in this case and discovered that it had been pending for ten months without record activity. He then dictated a motion seeking an extension of time in which to file a formal Notice for Specifically Set Trial.

CPI’s counsel alleges that due to a mix-up in his office, his seeretary/paralegal could not handle the transcription of all the motions and counsel’s notices of extension of time, so part-time help was hired for these tasks. One of the part-time secretaries assigned to the file failed to type the dictated motion and instead typed the standard Notice of Non-Availability and Motion for Extension of Time, placed them back in the file and returned the file back into the filing cabinet.

On September 18, 2002, St. Jack’s filed its Motion to Dismiss for Failure to Prosecute and a notice of hearing setting the motion for September 26, 2002. On September 19, 2002, CPI’s counsel requested that the September 26 hearing be continued due to a conflict, so the hearing was renoticed for October 1, 2002.

On September 27, 2002, CPI filed 1) a Request for nunc pro tunc Extension of Time, which attached CPI counsel’s Notice of Absence from Jurisdiction and Motion for Extension of Time; 2) Affidavit of Maria Alfaro (CPI’s attorney’s secretary/paralegal); 3) Response to Motion to Dismiss for Failure to Prosecute; 4) Notice for Jury Trial and Request for Special Setting; and 5) Notice of Hearing for October 1, 2002 on CPI’s Request for Nunc Pro Tunc Extension of Time. CPI never availed itself of rule 1.420(e) by attempting to show good cause.

On October 1, 2002, the trial court held the hearing on St. Jack’s Motion to Dismiss and CPI’s Request for Nunc Pro Tunc Extension of Time. The trial judge entered a Final Judgment of Dismissal and denied Plaintiffs Motion for Extension of Time.

On appeal, CPI contends that the trial court erred by dismissing its action without prejudice and not applying the provisions of rule 1.090(b)(2) to extend the one-year time limitation in rule 1.420(e), St. Jack’s answers that rule 1.090(b)(2)’s permissive time enlargement should not be available to extend the mandatory one-year failure to prosecute period in rule 1.420(e). St. Jack’s contends that rules 1.090(b)(2) and 1.420(e) are not in conflict, thus the trial court was correct by dismissing the action without prejudice for failure to prosecute. We agree with St. Jack that the specific provisions of rule 1.420(e) take precedence over the general provisions of rule 1.090(b)(2).

Rule 1.420(e) specifically sets out the procedure for dismissing a case for lack of prosecution. It requires that the trial court dismiss a case where no activity appears on the face of the record for one year, unless the party moved against demonstrates in writing, at least five days before the hearing on the motion to dismiss, good cause as to why the action should remain pending. The rule states, in pertinent part:

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in uniting at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute. (Emphasis added).

Rule 1.420 is a mandatory rule. Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001). Unless a party can satisfy the exceptions provided for in the rule, it specifically states “shall dismiss,” and there is no discretion on the trial court’s part if it is demonstrated to the trial court that no action toward prosecution has been taken within a year.

In addition, the resolution of a motion to dismiss for failure to prosecute involves a two-step process. First, the defendant is required to show there has been no record activity for one year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should remain pending. See National Enters., Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191, 1193 (Fla. 3d DCA 2001). CPI would have us rewrite the rule to change the “good cause” criteria to an “excusable neglect” standard.

In contrast to the mandatory provisions of rule 1.420(e), rule 1.090(b)(2) is a discretionary rule. It states the following:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict. (Emphasis added).

The standard for relief under rule 1.090(b)(2) is “excusable neglect,” unlike the “good cause” standard provided under rule 1.420(e). In the trial court’s Order Denying Plaintiffs Motion for Extension of Time in Which to File Notice for Trial, the court found that even under a finding of excusable neglect in this case, the extension of time of the one-year statutory period in which to affirmatively prosecute an action was not available as a matter of law. We agree with the trial court in its application of rule 1.420(e).

CPI argues that by dismissing its case against St. Jack’s for failure to prosecute, the trial court created an eighth exception to rule 1.090(b)(2). However, CPI cites no case law suggesting that the seven exceptions are the only exceptions allowed. At the same time, CPI argues that the trial court erred by failing to create a fourth exception to rule 1.420(e) (a rule 1.090(b)(2) time enlargement due to excusable neglect). We cannot agree with CPI’s reasoning. However, we agree with St. Jack’s that if we relieve CPI from the mandatory dismissal under rule 1.420(e), we are effectively deleting the “good cause” showing provision of rule 1.420(e). Basically, a party who fails to make a timely written good cause showing five days before a hearing on a failure to prosecute motion to dismiss can then avoid dismissal simply by filing a motion for nunc pro tunc enlargement of time. There is no support for CPI’s position, nor do we find it logical.

CPI had from September 19, 2002, when it received St. Jack’s Motion to Dismiss for Failure to Prosecute, to file its written good cause showing as to why the case should not be dismissed. CPI did not file anything in response to the motion to dismiss until September 27, 2002. Under rule 1.420(e), the written good cause showing needed to be filed no later than September 24, 2002. As such, CPI has failed to make a showing that the trial court abused its discretion in dismissing the case as it was required to do under the rule.

We are further guided by the rules of statutory construction in holding that the dismissal was warranted here. Similar to statutory construction rules, “the rules of civil procedure on a given subject are intended to be an integrated whole in which all provisions relating thereto are to be construed in light of each other.” Jones v. Seaboard Coast Line R. Co., 297 So.2d 861, 864 (Fla. 2d DCA 1974). As in statutory construction, the rules must be read as a cohesive whole, and a rule should not be construed in such a way as to render another rule meaningless. In addition, a more specific statutory provision governs over a more general provision. See Gretz v. Florida Unemployment Appeals Comm’n, 572 So.2d 1384, 1386 (Fla.1991); T.S. v. Clemons, 770 So.2d 197, 199 (Fla. 2d DCA 2000); C.S. v. S.H., 671 So.2d 260, 268 (Fla. 4th DCA 1996) (specific statute covering particular subject area controls over statute covering same and other subjects in more general terms, as more specific statute is considered to be exception to general terms of more general statute).

In sum, dismissal here was properly entered because there was no prosecution for a period of one year or more. CPI showed no good cause in writing at least five days prior to the hearing on the motion to dismiss for failure to prosecute as to why the action should remain pending. As such, the trial court did not abuse its discretion in entering the two orders under review. Accordingly, where no good cause is shown, the trial court is bound to dismiss the case. See Nesbitt v. Community Health of South Dade, Inc., 566 So.2d 1, 2 (Fla. 3d DCA 1989), Heinz v. Watson, 615 So.2d 750, 753-4 (Fla. 5th DCA 1993) and Golden Triad Carriers, Inc. v. Paco American Corp., 553 So.2d 247 (Fla. 3d DCA 1989).

Affirmed.

      . In addition, we note that CPI's "good cause” showing was questionable. See FPL v. Gilman, 280 So.2d 15 (Fla. 3d DCA 1973) (an officer by the plaintiff's attorney and that attorney's inadvertent failure to prosecute is not such good cause as is contemplated by the rule) (citation omitted). We further point out that the trial court correctly entered the dismissal without prejudice. A dismissal without prejudice is not an adjudication on the merits. See Hamilton v. Millnul Assocs., 443 So.2d 485, 486 (Fla. 2d DCA 1984). Thus, the plaintiff can refile the suit. Id.


author: BENTON, J.

text:
    BENNETT’S LEASING, INC., Creditor, Appellant, v. FIRST STREET MORTGAGE CORPORATION, etc., Appellee.
    No. 1D02-4856.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.

      Glenn K. Allen, of Glenn K. Allen, P.A., Jacksonville, for Appellant.
    David E. Otero and Jacob A. Brown, of Akerman Senterfitt, Jacksonville, for Ap-pellee.
   BENTON, J.

Bennett’s Leasing, Inc. (Bennett’s), is a creditor of First Street Mortgage Corporation (FSMC), an insolvent corporation whose assets were assigned for the benefit of creditors under chapter 727, Florida Statutes (Supp.1998), originally to Michael Moecker and Associates, Inc. After a superseding assignment to Michael Moecker, individually, and three months after entry of an interlocutory order confirming the superseding assignment, Bennett’s moved to vacate the interlocutory order. Eventually the trial court entered the amended order denying the motion to vacate from which (along with the order denying rehearing) Bennett’s now appeals. We dismiss the appeal for lack of jurisdiction.

Proceedings below began on December 15, 1998, when FSMC assigned its assets for the benefit of creditors to Michael Moecker and Associates, Inc. On January 11, 1999, Bennett’s filed a claim (for $89,476.99 for services rendered and equipment sold or leased to FSMC) and its “Motion to Dismiss Chapter 727 Action,” in which, arguably, it alluded to the statutory prohibition against non-bank corporate assignees “under any assignment for the benefit of creditors.” § 660.41(3), Fla. Stat. (1997) (prohibiting a corporation that is neither a bank, an association as defined in chapter 665, nor a trust company from acting “[a]s assignee ... of any insolvent ... corporation or under any assignment for the benefit of creditors.”). On February 17, 1999, however, Bennett’s withdrew its motion to dismiss “without prejudice [to] ... its[] objection to Assignor’s/As-signee’s Chapter 727 action.”

On May 22, 2002, the corporate assignee filed a motion to substitute “Michael Moecker, individually, for Michael Moecker & Associates, Inc., as Assignee.... ” The trial court granted the motion the following day, entering an order substituting “Michael Moecker, individually, ... for Michael Moecker & Associates, Inc., as Assignee in this assignment for the benefit of creditors nunc pro tunc to the Filing Date of December 15,1998.”

On August 25, 2002, Bennett’s moved to vacate this order, in hopes apparently of securing another, completely independent assignee who would undo everything the corporate assignee had done. Bennett’s argued that the assignment to the corporate assignee on December 15, 1998, and every action taken since the date of the assignment, including each sale of assets, all payments of professional fees, and the motion to substitute assignee itself were void under section 660.41(3), Florida Statutes (1997).

The trial court denied the motion to vacate, ruling in an amended order entered on October 28, 2002:

4. By failing to assert its defense to these proceedings during the nearly four years for which it has been pending, Bennett has waived its right to assert that defense.... [T]he right to raise this issue existed at the time this case was filed by MMA [Michael Moecker and Associates, Inc.] on December 15, 1998. Bennett either actually knew and raised the argument of the capacity of MMA to serve as an assignee on January 11, 1999, or because of the existence of § 660.41(3), Fla. Stats., had constructive knowledge of the argument. Bennett signified its intention to relinquish such argument either in its withdrawal of its motion to dismiss on February 17, 1999, or in its failure to raise this issue throughout the pendency of the case. Viewed from another perspective, Bennett’s silence as to the issue of MMA’s capacity all these years, constitutes grounds for finding a procedural waiver....
6.... Regardless of whether MMA or Michael Moecker, individually, served as the assignee of First Street Mortgage Corp., the Court Approved Acts were necessary to enforce or carry out the provisions of Chapter 727. If the Court were to try to und[o] the process at this time, it would be contrary to the provisions of Chapter 727.

Bennett’s filed a motion for rehearing, which the trial court denied on November 12, 2002. Bennett’s filed its notice of appeal on November 18, 2002.

On January 16, 2003, we issued an order to show cause “why this appeal should not be redesignated as an appeal of a nonfinal order.” Bennett’s responded, contending that the amended order entered October 28, 2002, is in fact a final order since it “permits the illegal assignee(s) to conduct transactions which will and have divested the rights of [Bennett’s].” We rejected this contention by order entered February 5, 2003, and do so again today.

The basic rule is that a judgment or order is final if it brings to a close all judicial labor in the lower tribunal. See GEICO Fin. Servs., Inc. v. Kramer, 575 So.2d 1345, 1346 (Fla. 4th DCA 1991); Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983). Since the order entered May 23, 2002, approving the substitution of assignees did not bring judicial labor to an end, it was not a final order. A fortiori, the amended order entered October 28, 2002, denying the collateral attack on the interlocutory order entered May 23, 2002, did not bring judicial labor to an end, either, and is also non-final. FSMC’s assets remain to be distributed in the proceeding still pending below, as Bennett’s acknowledged in its initial brief when it stated “that a final judgment/order has not occurred in this proceeding with a final distribution of assets and discharging the assignee.”

Bennett’s, which has been afforded two opportunities to address the jurisdictional question in the present case (most recently by order entered September 15, 2003), has argued that the amended order entered October 28, 2002, was, even if a non-final order, nevertheless appealable

pursuant to Fla. R.App. P. 9.130(a)(5), as an Appeal of a non-final order entered on a motion filed under Fla. R. Civ. P. 1.540(b), reason (4) “that the judgment or decree is void”, pursuant to Florida Statute, § 660.41(3), which prohibits corporations from acting as an assignee. ... In addition, pursuant to Fla. R.App. P. 9.130(3)(C)(i) which allows review of non-final orders which have determined “the jurisdiction of the person”. Appellant maintains that the assignment to a corporation was illegal pursuant to Florida law and that this prevented the corporation from being able to serve as an assignee. In personam jurisdiction is based on the particular court having legal authority over the person. As the corporation was prevented by Florida law from serving as an assignee, the corporation did not have the ability to appear or be recognized by the lower court or to Motion to Substitute the Assignee which is a material argument of the Appellant’s Appeal.

Although at one point we deemed these proceedings “an appeal of a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) (2002),” closer analysis persuades us that we lack jurisdiction under Florida Rule of Appellate Procedure 9.130, just as we lack jurisdiction under Florida Rule of Appellate Procedure 9.110.

To take the second argument Bennett’s makes first, this appeal is not cognizable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which authorizes review of non-final orders that “determine ... the jurisdiction of the person.” As explained in Nat’l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass’n, Inc., 395 So.2d 592, 593 (Fla. 2d DCA 1981),

the term ‘jurisdiction of the person’ refers to [issues such as defects in] service of process or the applicability of the long arm statute to nonresidents [and] .... in the present case [Bennett’s] ha[s] not raised such matters. Indeed, it would not even be their place to do so on behalf of [other parties]. The right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.

Bennett’s participated voluntarily below, seeks to continue to do so, and complains (belatedly) in effect only that the new, individual assignee has a conflict of interest on account of his affiliation with the prior corporate assignee that Bennett’s contends was statutorily disqualified. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) does not apply in these circumstances.

We turn now to the remaining theory Bennett’s advances in support of its position that the court has jurisdiction to review the amended order entered on October 28, 2002. In this branch of its argument, Bennett’s relies on Florida Rule of Appellate Procedure 9.130(a)(5), which authorizes review of orders entered on motions filed under Florida Rule of Civil Procedure 1.540: “Orders entered on motions filed under Florida Rule of Civil Procedure 1.540 ... are renewable by the method prescribed by this rule.” Fla. R.App. P. 9.130(a)(5)(2002). But Bennett’s motion to vacate was not “filed under Florida Rule of Civil Procedure 1.540.” See supra note 1. Importantly, apart from the fact that the motion to vacate did not state that it was being filed under Florida Rule of Civil Procedure 1.540, rule 1.540 authorizes motions seeking relief only from “a final judgment, decree, order, or proceeding.” Fla. R. Civ. P. 1.540(b) (emphasis supplied). Since the order allowing the substitution of assignees is a non-final order, a motion addressed to it is not a motion seeking relief from a final judgment, order, decree or proceeding. An order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(5). See Hi-Tech Mktg. Group, Inc. v. Thiem, 659 So.2d 479, 479 (Fla. 4th DCA 1995) (“Appellant seeks review of a non-final order denying its motion to vacate a non-final order striking its pleadings as a discovery violation sanction. This is not a ‘final order’ as contemplated by rule 1.540(b) Florida Rules of Civil Procedure; therefore, this appeal must be dismissed sua sponte for lack of jurisdiction.”).

Bennett’s has not asked that its notice of appeal be treated as a petition for writ of certiorari, nor would we be inclined to grant such a request. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098-99 (Fla.1987) (“[Cjommon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.... A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances.”); Malone v. Costin, 410 So.2d 569, 570 (Fla. 1st DCA 1982) (“It is anticipated that since only the most urgent interlocutory orders are appealable under rule 9.130 ..., there will be very few cases where common law certiorari will provide relief.”).

Accordingly, the appeal is dismissed.

BARFIELD and VAN NORTWICK, JJ., concur.

      . In its motion to vacate, Bennett’s also argued that the order substituting assignees should be vacated on the ground that the "Motion to Substitute Assignee” was untimely under Rule 1.540(b), Florida Rules of Civil Procedure (2002), because it had been filed more than a year after the order confirming the original assignment. But the order confirming the original assignment, which was entered on December 15, 1998, the day the proceedings began, was not a final order. Florida Rule of Civil Procedure 1.540(b) (2002), provides:
      [T]he court may relieve a party ... from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.”
      The trial court recognized that a purpose of the motion to vacate the order granting the "Motion to Substitute Assignee” was the desire to substitute an assignee willing to challenge virtually everything the corporate as-signee had done in the proceeding, stating:
      5. ... In addition, under Fla. R. Civ. P. 1.540(b), after one year, a court may not set aside a voidable judgment. Thus, the Motion is [in effect] a tardily filed collateral attack o[n] the Court Approved Acts.
      Responding to this characterization in its motion for rehearing, Bennett’s asserted that "contrary [t]o the Court’s finding in [the amended order] ... the Motion is not a tardily filed collateral attack of the Court Approved Acts.” Despite these allusions to the rule, the record is clear that Bennett's did not, as a technical matter, file its motion to vacate under Florida Rule of Civil Procedure 1.540.

      . On October 14, 2002, the trial court inadvertently entered two separate orders on the single motion to vacate that Bennett's filed. The trial court entered an amended order replacing and consolidating the two earlier orders on October 28, 2002.

      . All the amended order Bennett’s asks us to review did was leave intact a non-final order entered some five months earlier. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) (2002) provides:
      (3) Appeals to the district courts of appeal of non-final orders are limited to those that
      (C) determine
      (i) the jurisdiction of the person;....
      Bennett's does not argue that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) (authorizing review of non-final orders determining “the right to immediate possession of property”) or Florida Rule of Appellate Procedure 9.130(a)(3)(D) (authorizing review of non-final orders that “grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership”) applies.

      . Unlike a final judgment, the order substituting assignees did not "determined the rights of the parties and dispose^ of the cause on its merits leaving nothing more to be done other than to enforce the judgment.” Donaldson Eng’g, Inc. v. City of Plantation, 326 So.2d 209, 210 (Fla. 4th DCA 1976).
      Even in probate proceedings, where appeals are allowed "from judgments and orders finally determining the substantial right of a party to pursue a claim even though the last order of the probate court may not have been entered,” Howard v. Baumer, 519 So.2d 679, 681 (Fla. 1st DCA 1988), it is not clear that an order merely substituting fiduciaries is appealable. See Tyler v. Huggins, 175 So.2d 239, 240 (Fla. 2d DCA 1965) (disallowing appeal from an "order ... setting aside and declaring void ab initio letters of administration”); In re Estate of Maxcy v. Stulting, 165 So.2d 446, 447 (Fla. 2d DCA 1964) (disallowing appeal from an order accepting the resignation of the administratrix).
      At issue is whether the order substituting assignees is final, not whether it was itself appealable, before the thirty days for appeal ran. We note that appeals may lie from analogous orders in bankruptcy proceedings. See 28 U.S.C. § 158(a) (2003) (“The district courts of the United States shall have jurisdiction to hear appeals ... with leave of the court, from interlocutory orders and decrees”); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-75[, 101 S.Ct. 669, 66 L.Ed.2d 571] (1981) (explaining that the collateral order doctrine, which permits review of non-final orders that "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment,” is a "practical rather than a technical construction” of 28 U.S.C. § 1291, which vests the federal courts of appeals with "jurisdiction of appeals from all final decisions of the district courts ... except where a direct review may be had in the Supreme Court”); In re Plaza de Diego Shopping Ctr., 911 F.2d 820, 826 (1st Cir.1990) (holding that district court’s order appointing Mr. Fuste as trustee, contrary to the United States Trustee's wishes, is an ap-pealable "final decision of a significant and discrete dispute”); Blinder, Robinson & Co., Inc. v. Keller, 131 B.R. 872, 876 (D.Colo.1991) (granting leave to appeal bankruptcy court’s order denying creditor’s objection to the retention of trustee by treating appellant's notice of appeal as a motion for leave to appeal under rule 8003, Federal Rules of Bankruptcy Procedure, or alternatively, under the collateral order exception); In re United States Lines, Inc., 1991 WL 67464, at *4 (S.D.N.Y. April 22, 1991) (allowing appeal from order appointing successor co-trustees since "even if this order is interlocutory” the district court judge was willing to "treat appellants’ papers as an application” for leave to appeal); In re St. Charles Pres. Investors, Ltd., 112 B.R. 469, 472 (D.C.1990) (allowing appeal from order denying appellants’ motion to confirm the election of the permanent trustee because the order denied appellants’ "their status as creditors to assert claims and their right to participate in the election of a trustee,” thereby "conclusively determin[ing] a separable dispute over a creditor's claim or priority,” or alternatively, because the order is collateral and final under the collateral order exception).
      This pragmatic approach parallels that taken by section 120.68(1), Florida Statutes (2002), which provides: "A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”
      Appeals from orders in proceedings under chapter 727, Florida Statutes (2002) are governed, however, by Florida Rules of Appellate Procedure 9.110 and 9.130 (2002). See Art. V, § 4(b)(1), Fla. Const. Our opinion in Moecker v. Antoine, 845 So.2d 904 (Fla. 1st DCA 2003) does not say otherwise. The Antoine opinion does not, indeed, even mention the jurisdictional question. See generally P.B. v. State, 852 So.2d 226, 228-29 (Fla.2003).

      . See also Native Hammock Nursery, Inc. v. DuPont de Nemours & Co., 774 So.2d 727, 728 (Fla. 3d DCA 2000) ("With no judgment to attack, a 1.540(b) motion is an exercise in futility.”); Nolans Towing & Recovery v. Marino Trucking, Inc., 581 So.2d 644, 645 (Fla. 3d DCA 1991) ("[A] motion for relief from judgment under Rule 1.540(b), Florida Rules of Civil Procedure, may only be directed to a 'final judgment, decree, order or proceeding .... ’ As the order granting summary judgment was not a final order, the motion filed by appellant could not be brought under Rule 1.540(b) ....”) (citations omitted).


author: PER CURIAM. ERVIN, J.,

text:
    U-CAN-II, INC., a Florida corporation, Appellant, v. Richard SETZER, et al., Appellees.
    No. 1D03-2150.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 14, 2004.
    R. Dan Boulware and R. Todd Ehlert of Shugart, Thomson, Kilroy, Watkins, Boul-ware, P.A., St. Joseph, Missouri; and Joel Settembrini, Jr., of Smith, Hulsey & Bu-sey, Jacksonville, for Appellant.
    Gaspare J. Bono of McKenna, Long & Aldridge, LLP, Washington, D.C.; John L. Watkins of McKenna, Long & Aldridge, LLP, Atlanta; and Betsy C. Cox of Rogers Towers, Jacksonville, for Appellees.
   PER CURIAM.

This cause is before us on appeal of a non-final order compelling arbitration. On review of the record, we hold that the trial court erred in holding that Appellant was the alter ego of certain non-parties and that, on that basis, Appellant’s corporate veil could be pierced.

The Florida Supreme Court has held that the corporate veil may not be pierced absent a showing of improper conduct. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1119-21 (Fla.1984); see also French v. F.F.O. Financial Group, Inc. 651 So.2d 727 (Fla. 1st DCA 1995). It must be shown that the corporation was organized or used to mislead creditors. Sykes, 450 So.2d at 1119-21. Here, the trial court did not make the requisite specific finding of improper conduct. Appellees also did not present any evidence showing improper conduct or that Appellant was organized or used to mislead creditors. Thus, Appellees failed to establish a basis for piercing Appellant’s corporate veil.

Appellees also failed to show that Appellant was the agent of certain non-parties to this appeal. The record contains no express contract of agency, and Appellees presented no evidence of apparent authority. See, e.g., Almerico v. RLI Ins. Co., 716 So.2d 774, 777 (Fla.1998).

Accordingly, we reverse the trial court’s determination that Appellant is the alter ego and/or agent of certain non-parties. We affirm the other issues raised on appeal without further discussion and remand for further proceedings consistent herewith.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

BOOTH and KAHN, JJ., concur; ERVIN, J., concurs with written opinion.

ERVIN, J.,

concurring.

Although I concur with the majority’s disposition of the issue that it has decided, I would also address an issue it summarily affirms, relating to the question of whether the trial court misapplied the law in ruling that defendants/appellees did not waive their right to arbitration by acting inconsistently with such right by, among other things, filing an answer and a counterclaim to the civil action before moving to arbitrate. Appellees defend the lower court’s order, relying upon both Florida and federal case law holding that before waiver may be found a showing of prejudice resulting from the inconsistent acts must be made by the party opposing arbitration. See Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238, 1240-41 (Fla. 1st DCA 2003); GLF Constr. Corp. v. Recchi-GLF, 821 So.2d 372 (Fla. 1st DCA 2002); Lane v. Sarfati, 691 So.2d 5 (Fla. 3d DCA 1997); Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir.1990).

Benedict, an opinion of the First District, did so hold, and I consider myself bound by that decision. I am of the firm belief, however, that Benedict was incorrectly decided because the Florida Supreme Court, in its interpretation of Florida’s Arbitration Code, imposed no requirement of prejudice in concluding that waiver had occurred due to a party’s acts inconsistent with arbitration. See Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 681 (Fla.1973) (“A party’s contract right may be waived by actively participating in a lawsuit or taking action inconsistent with that right.”). The rule established in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), is clear that appellate district courts have no authority to overrule precedential decisions of the Florida Supreme Court. Although Benedict did certify conflict with other district courts of appeal, my independent research does not reveal that review of .the Benedict decision has been sought in the supreme court.

In deciding that a demonstration of prejudice is an essential prerequisite to a determination of waiver, Benedict relied in part upon a recent Florida Supreme Court decision, Seifert v. U.S. Home Corporation, 750 So.2d 633, 636 (Fla.1999), which stated that both the Florida and federal arbitration codes recognize three elements for courts to consider in ruling on whether a motion to compel arbitration should be granted. One of the elements mentioned was waiver. Interestingly, however, Sei-fert did not involve any issue of waiver; therefore, it did not address the question of prejudice. Instead, it held that the subject of the action at law, wrongful death, was not encompassed by the first two elements involved in the analysis, i.e., whether a valid written agreement to arbitrate exists, or whether an arbitrable issue exists. As a result, the supreme court approved the trial court’s denial of the defendant’s motion to arbitrate.

The Florida cases outlined in the Benedict opinion requiring a showing prejudice cite the similarity between the federal and Florida arbitration codes, and have elected to follow “federal decisions ... [holding] that a showing of prejudice is indispensable to a conclusion that the maintenance of a position inconsistent with arbitration waives that remedy.” Lane v. Sarfati, 691 So.2d at 5. I find this analysis incomplete. The correct test recognizes that if a Florida statute is patterned after a federal statute on the same subject, it will take the same construction in Florida courts as its prototype is given in federal courts insofar as such interpretation is harmonious with the spirit and policy of Florida legislation on the subject. See Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556 (1929).

In addition to the unanswered question of whether the federal and Florida arbitration statutes are consistent in seeking the same goals, it should be observed, as the Second District did in ruling a showing of prejudice was not required, that the federal courts of appeal are not unanimous in holding that such showing must be made, and, more to the point, this is an issue that has not been addressed by the United States Supreme Court. See Donald & Co. Secs. v. Mid-Florida Cmty. Servs., Inc., 620 So.2d 192, 194 (Fla. 2d DCA 1993). The Second District continued that “Florida courts are bound only by the United States Supreme Court in interpreting acts of Congress.” Id. at 193. Indeed, the Supreme Court itself has said, regarding the interpretation of state legislation, “Only [state] courts can supply the requisite construction, since of course ‘we lack jurisdiction authoritatively to construe state legislation.’ ” Gooding v. Wilson, 405 U.S. 518, 529, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting U.S. v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971)).

Finally, it appears to me from a reading of the very case relied on by Benedict to support its conclusion that a demonstration of prejudice is essential, i.e., Seifert v. U.S. Home Corporation, that the construction given the comparable federal arbitration statute by a majority of the federal circuits is not harmonious with the spirit and policy of the Florida legislation on the subject. Although, as I previously noted, Seifert did not address the issue of waiver, some of the comments made by the court in regard to the question of whether an arbitration contract mandates arbitration of certain types of claims appear to be equally applicable to the question of whether waiver bars a party’s agreement to arbitrate:

Moreover, public policy also supports the result we reach in this case. As noted by the trial court, to require petitioner to submit her tort claim to binding arbitration would deprive her of her rights to a trial by jury, due process and access to the courts. See generally Jean R. Sternlight, Rethinking the Constitutionality of the Supreme Court’s Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns, 72 Tul. L.Rev. 1, 48 (1997). As Sternlight notes:
In particular, lower courts have failed to consider the visibility and clarity of the purported agreement, the relative strength and knowledge of the parties, the voluntariness of the agreement, and the substantive fairness of the agreement. Rather than ignoring these factual variations, courts should use them to craft a balancing test to determine whether parties waived their constitutional rights by agreeing to arbitration. It is wrong to stretch contractual interpretations to uphold a purported arbitration agreement where such an agreement would waive constitutional rights.
Id. Neither the statutes validating arbitration clauses nor the policy favoring such provisions should be used as a shield to block a party’s access to a judicial forum in every case.

Seifert, 750 So.2d at 642.

One important public policy consideration in a court’s decision of whether to require arbitration in Florida cases, briefly alluded to in Seifert, is the fact that the Florida Constitution, unlike the federal, specifically confers on all persons the right to access to courts. Art. I, § 21, Fla. Const. As a result, it seems to me that a fair reading of Seifert strongly suggests that when an important constitutional right, such as one’s right of action in the courts, is abrogated by an arbitration agreement, the contract should be narrowly — not expansively — construed.

In my judgment, the question of waiver of a party’s contractual right to arbitrate is an important, recurring issue — one that Florida courts continue to be divided over — notwithstanding that the supreme court has never receded from its earlier decision in Klosters, and, indeed, there appears to be language in Seifert supporting the Klosters result. I would therefore not only certify conflict with those Florida appellate decisions that hold no prejudice need be demonstrated in order for waiver to occur, as referenced in Benedict v. Pensacola Motor Sales, Inc., 846 So.2d at 1242-43, but I would certify as well the following question as one of great public importance to the Florida Supreme Court:

WHETHER THE FLORIDA ARBITRATION CODE, WHICH IS SIMILAR TO ITS FEDERAL COUNTERPART, MUST BE CONSTRUED IN A MANNER CONSISTENT WITH THAT GIVEN THE FEDERAL CODE BY A NUMBER OF FEDERAL APPELLATE COURTS, THEREBY REQUIRING THAT BEFORE WAIVER OF AN ARBITRATION AGREEMENT CAN BE ESTABLISHED, A SHOWING MUST FIRST BE MADE THAT THE PARTY OPPOSING ARBITRATION WAS PREJUDICED BY THE ACTS OF THE OTHER PARTY?

      . I question the precedential authority of GLF Construction as requiring a demonstration of prejudice as applied to this case, because the issue in GLF Construction is clearly distinguishable, in that it involved a dispute as to which of two arbitrators under the contract would conduct the arbitration proceeding.


author: WALLACE, Judge. CANADY, Judge,

text:
    V.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-657.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

V.W. challenges a disposition order adjudicating him delinquent of trespass of a dwelling and grand theft of the third degree. V.W. raises two points on appeal; however, the only issue meriting discussion is his assertion that the evidence was not sufficient to prove he committed the crime of grand theft. We affirm the adjudication of delinquency and disposition for trespass, but we reverse the adjudication of delinquency and disposition for grand theft because the State failed to meet its evidentia-ry burden.

The State filed a petition for delinquency charging V.W. with committing the crime of grand theft after he entered a home and removed numerous items, including a CD player, clothing, and cash. The victim’s testimony was the only evidence presented at trial concerning the value of the stolen items. The victim testified that the CD player cost more than $100 when it was purchased and that the cash taken totaled $20. Thereafter, the prosecutor asked the victim the following: “[Tjaking the total of all things that were taken from your house, what would you estimate the value of them at? Would it be more than $300?” The victim responded affirmatively. The State did not elicit any additional testimony from the victim concerning the value of the stolen items, either separately or collectively.

With certain exceptions not material here, one of the elements of grand theft of the third degree is that the value of the property stolen is $300 or more. § 812.014(2)(c)l, Fla. Stat. (2002). “Proof of the element of value is essential to a conviction for grand theft and must be established by the state beyond and to the exclusion of every reasonable doubt.” Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984) (citing Negron v. State, 306 So.2d 104 (Fla.1974), and Weatherspoon v. State, 419 So.2d 404 (Fla. 2d DCA 1982)); accord Pickett v. State, 839 So.2d 860 (Fla. 2d DCA 2003); Toler v. State, 779 So.2d 594 (Fla. 2d DCA 2001). In this case, the victim responded affirmatively to the prosecutor’s question that the estimated value of all of the stolen property was more than $300. The victim’s response, however, only established that $300 was an estimated, value. Based on this evidence, the items could have been valued at slightly less or more than $300. Therefore, the State failed to meet its evidentiary burden, and V.W.’s motion for judgment of acquittal of the crime of grand theft should have been granted.

Accordingly, we affirm the adjudication of delinquency and disposition for trespass of a dwelling. However, we reverse the adjudication of delinquency and disposition for grand theft, and we remand for entry of an adjudication of delinquency and appropriate disposition for petit theft of the second degree. See § 812.014(3)(a).

Affirmed in part, reversed in part, and remanded.

COVINGTON, J., Concurs.

CANADY, J., Concurs specially.

CANADY, Judge,

Specially concurring.

I agree with the majority’s conclusion concerning the disposition of this case. On the grand theft charge, I would, however, base the reversal on a deficiency in the proof not mentioned by the majority.

The testimony of the victim at trial established that her house had been burglarized on two separate days during July 2002. The victim’s testimony concerning the items stolen from her conflated the property stolen on the two separate days. The evidence linking the defendant to the burglary of the victim’s house, however, only related to one of the burglaries. The trial testimony did not show the value of the items stolen during the burglary in which the defendant participated. I would rely on this circumstance to support the reversal of the grand theft charge.

      . Under the Florida Rules of Juvenile Procedure, the motion should have been termed a “motion for judgment of dismissal.” See Fla. R. Juv. P. 8.110(k); see also J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003).


author: PER CURIAM.

text:
    HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center, Petitioner, v. Lynn HILLMAN, Mary Patricia Bosner, and Roberta James, Respondents.
    No. 2D03-1059.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.

      Marie Tomassi and Laura E. Prather of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Petitioner.
    Trida B. Valles and Lisa L. Cullaro of Hahn, Morgan & Lamb, P.A., Tampa, for Respondents.
   PER CURIAM.

HCA Health Services of Florida, Inc., d/b/a Blake Medical Center (Blake Medical), petitions for a writ of certiorari to quash a discovery order. By prior unpublished order, this court granted the petition and indicated that an opinion would follow. We now write to explain our reasoning. We conclude that the trial court departed from the essential requirements of law by ordering production of the time sheets and billing records of Blake Medical’s attorney in this case without some special showing that these records were relevant to a disputed issue and that the Respondents could not obtain substantially equivalent information without undue hardship.

In the underlying case, Lynn Hillman, Mary Patricia Bosner, and Roberta James (the Respondents) were the prevailing plaintiffs in a whistle-blower action against Blake Medical. Pursuant to section 448.104, Florida Statutes (1997), the judgment entered in favor of the Respondents also determined that they were entitled to attorney’s fees. The judgment is pending on appeal in this court. HCA Health Servs. of Fla., Inc. v. Hillman, Nos. 2D03-1534, 2D03-3349. Should it be reversed, the entitlement could be lost. While the judgment is pending on appeal, the Respondents are pursuing efforts to obtain a final judgment awarding fees. The Respondents served a subpoena duces tecum seeking production of the following records from Blake Medical’s attorneys: “time-sheets, invoices, bills, reimbursements, payments, correspondence, contract for services, fee agreement, hourly fee schedules, all computer generated records pertaining to attorneys’ fees, costs, expenses ..., or other related documents in the above-named case.” Blake Medical objected and sought to quash the subpoena. The Respondents filed a motion to compel. Following a hearing, the trial court granted the Respondents’ motion to compel and ordered Blake Medical to produce the actual bills submitted to it by its counsel including the date of legal service, the hours charged, and the nature of the services performed. The order allowed attorney-client privileged and work-product privileged material to be redacted and an unedited version to be submitted to the trial court for an in camera inspection. Blake Medical seeks relief from this order through a petition for writ of certiorari.

The fees of a prevailing party cannot be predicated upon the fees of one’s opponent. See Stowe v. Walker Builders Supply, Inc., 431 So.2d 180 (Fla. 2d DCA 1983). There are many sound reasons for this rule. For example, two competent attorneys handling opposite sides of a case will often, if not usually, spend substantially different amounts of time on the case. A deposition that may take one attorney a few minutes to prepare and attend may require hours of work on the part of the other lawyer. A production of documents by one side may require little time by that party’s attorney because the work was performed by the client’s staff. That same production may require days for the other attorney to review and analyze. Different clients have different reporting requirements and sometimes different expectations as to the time the attorney will spend on their case. Without belaboring the point, it should be self-evident that the records of one’s opponent are, at best, only marginally relevant to the general issue of determining an appropriate amount of attorney’s fees to be awarded in a given case.

While we suggest that the opponent’s time records are marginally relevant, a more accurate statement might be that the records may, on rare occasion, be relevant to resolve a dispute about a particular billable event. For example, if a party were to challenge whether a mediation session lasted three hours or two days and information could not be obtained from the mediator, it might be appropriate to examine that party’s own billing records as they pertain to the duration of the mediation session.

The limited relevance of the billing records of opposing counsel is reinforced by the applicable rule. Rule 4-1.5(b) of the Rules Regulating The Florida Bar sets forth the relevant factors to be considered in determining a reasonable fee. The amount of time spent by opposing counsel is not listed. Thus, the broad discovery requested in this case was not aimed at information directly relevant to any factor needed to establish fees.

Balanced against this limited relevance, one must consider the fact that billing records contain privileged, attorney-client information. Also, in this day and age, the final round in many lawsuits is the pursuit of prevailing party fees. To this end, time slips and billing records have become, at least to some degree, work product. Typically, work product and trial preparation materials can only be obtained upon a special showing that the records are needed for the trial and substantially equivalent information is not otherwise available. Fla. R. Civ. P. 1.280(b)(3). In certiorari review, material protected by privilege or work product is the kind of information that “ ‘may reasonably cause material injury of an irreparable nature.’ ” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987)).

In Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999), the Fifth District discussed some of the difficulties surrounding discovery of billing records and affirmed an order denying discovery. Judge Griffin accurately noted in that opinion that some jurisdictions bar this discovery but that Florida has not yet adopted a “hard and fast rule.” Id. at 724. “This reflects the salutary view that the discovery may be justified in some cases but not in others and that it is a matter that should rest within the sound discretion of the trial court.” Id. We agree.

In this case, we conclude that the trial court departed from the essential requirements of the law because it failed to appreciate and address whether the discovery was justified. Such records are not discoverable as a matter of course. Billing records of opposing counsel are to be treated as privileged work product. The party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantially equivalent material cannot be obtained from another source. We anticipate that such requests should be few and far between and should be carefully scrutinized by the trial courts.

Thus, while the trial court has discretion to permit this discovery, this discretion is quite restricted due to the nature of the material sought. In this case, the trial court abused its discretion because it required no special showing before ordering the production. For these reasons, we granted the petition and quashed the discovery order.

Remanded for proceedings consistent with this opinion.

ALTENBERND, C.J., and FULMER and CANADY, JJ., Concur.

      . This discovery order was entered after the final judgment. It is arguable that it is a postfinal judgment order that does not stay rendition, the review of which is by direct appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). On the other hand, the order was entered prior to entry of a final order awarding attorney's fees and may be characterized as an interlocutory order not subject to review under rule 9.130(a)(3), thus leaving certiorari as the appropriate vehicle for appellate review. See Int'l Bank of Miami, N.A. v. Shinitzky, 849 So.2d 1188 (Fla. 4th DCA 2003). We conclude that certiorari is the better avenue for review of this issue. We also observe that had we treated this matter as an appeal from a nonfinal order, the outcome would be the same.

      . Rule 4-1.5(b) sets forth the following factors to be considered:

        (1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
      (4) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
      (8) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.


author: WHATLEY, Judge.

text:
    Edward QUINONES, Appellant, v. Maybell Pineiros QUINONES, Appellee.
    No. 2D02-5299.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    Andrew J. Rodnite, Jr., of Reeser, Rod-nite & Zdravko, P.A., Palm Harbor, for Appellant.
    Patricia M. Lee, St. Petersburg, for Ap-pellee.
   WHATLEY, Judge.

The Husband, Edward Quinones, appeals the final judgment of dissolution of his marriage to Maybell Pineiros Qui-nones. He argues that the trial court abused its discretion in imputing income to him, awarding the Wife permanent periodic alimony of $1000 a month, and allowing the Wife to testify telephonically at the final hearing.

The parties were married for twenty-four years, during which time the Wife, who does not have a high school diploma, did not work. We find no abuse of discretion in the determination that the Wife was entitled to permanent periodic alimony. However, we are compelled to reverse as to the amount of alimony awarded and as to the imputation to the Husband of net income in excess of $2700 per month. The Husband testified he had a minimum gross monthly income of $2040 representing a pension of $119 per month, social security of $921 per month, and income from American Eagle Mortgage of approximately $1000 per month.

In one portion of the final judgment, the trial court addressed the Husband’s income. The court correctly reflected pension income of $119 per month and social security benefits of $921 per month. However, the court also determined that the Husband had a current average gross monthly income of $2848.89 from outside employment. There is no discernable basis in this record to support current monthly income in that amount. The Husband was sixty-seven years of age at the time of the final hearing. His 2001 Internal Revenue Service tax return reflects wages, salaries, and tips of $18,748. On remand, if the trial court determines that the Husband had current monthly income from outside employment in excess of the approximately $1000 he testified he earned from American Eagle Mortgage, it must make specific findings as to the source and amount of that income.

The trial court apparently did not base the alimony award upon the income figures referenced above. In fact, in a separate paragraph of the final judgment, titled “Total Income,” the court imputed income to the Husband in a net amount in excess of $2700 per month. Once again, there is an absence of specific findings to support the imputation of this income. The absence of findings prevents meaningful appellate review. See Miller v. Miller, 589 So.2d 317 (Fla. 1st DCA 1991). Additionally, in LaFlam v. LaFlam, 854 So.2d 809, 810 (Fla. 2d DCA 2003), we stated:

A court may impute income to a spouse who is earning less than she could with the use of her best efforts.
Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). However, there must be competent, substantial evidence supporting the conclusion that the spouse could earn the imputed amount. See Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998)....

No reversible error is present in the limited record before us as to the Wife testifying by telephone at the final hearing. However, for future proceedings, the trial court must strictly follow the dictates of Florida Rule of Judicial Administration 2.071(d)(1), which states: “A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.” See also Russell v. State, 820 So.2d 1083 (Fla. 3d DCA 2002).

Accordingly, we reverse the final judgment of dissolution as to the amount of the alimony award and as to the imputation of income to the Husband. Upon remand, if the court once again imputes income to the Husband, it must make specific findings as to the source and amount. Likewise, if the trial court determines that the Husband’s gross monthly income is in excess of $2040, it must make specific findings in that regard as well. Once these findings have been made, the amount of alimony to be awarded will also need to be readdressed and redetermined. The final judgment of dissolution is affirmed in all other respects.

Affirmed in part; reversed in part; and remanded for proceedings consistent with this opinion.

STRINGER and SILBERMAN, JJ., Concur.

      . The final hearing was in May 2002.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Charles Francis GAMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3719.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    James Marion Moorman, Public Defender, and Eric J. Gottlieb, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Gamble appeals his convictions and sentences after jury trial for one count of lewd fondling of a child and a second count of lewd and lascivious molestation of the same child. We reverse the conviction and sentence for lewd and lascivious molestation because the evidence at trial was insufficient to prove the commission of the crime during the period alleged in the information.

The two-count information in this case alleged that Gamble committed two separate sexual offenses, one count of lewd fondling occurring before October 1, 1999, under the old statute, section 800.04(1), Florida Statutes (1993), and one count of lewd and lascivious molestation occurring after October 1,1999, until March 30, 2000, under the new statute, section 800.04(5)(b), Florida Statutes (1999). The new statute took effect October 1,1999.

The victim revealed her alleged abuse to her mother shortly before her eleventh birthday. She was twelve years old at the time of trial. Evidence revealed that the first time Gamble touched her in her private areas was when she was five years old and the last time was when she was “nine or eight.” She also testified on cross-examination that the touchings took place between the ages of five and eight.

The victim was unable to recall any specific or particular incident that occurred between the ages of nine and a half and ten. There was no other evidence presented to show any incidences of abuse during the period covered in count two, October 1, 1999, to March 30, 2000, other than the victim’s general response that the molestation occurred until she was eight or nine. The victim turned nine on April 27, 1999, so she would have been nine and a half to ten during the time period alleged in count two of the information.

In Skully v. State, 736 So.2d 730 (Fla. 2d DCA 1999), the defendant was charged with multiple counts of sexual battery and lewd and lascivious conduct. The victim specifically remembered and testified in detail regarding only three incidents. Id. at 731. The rest of the convictions were supported only by general allegations that the same abuse happened many times over a certain period. Id. This court found the evidence was legally insufficient to support the remaining convictions. Id. We held that while vagueness may be inherent in cases of this type, greater specificity is required as a foundation for individual counts. Id. Like the victim in Skully, the victim here could not remember more specific details because of her young age when the incidents occurred and because years had passed since the offense. See also Estey v. State, 751 So.2d 194 (Fla. 4th DCA 2000). Given the vagueness of her testimony, the evidence was insufficient to convict Gamble of molestation during, the time period alleged in count two.

We therefore reverse Gamble’s conviction for lewd and lascivious molestation. We affirm his conviction for lewd fondling and remand for resentencing.

Affirmed in part; reversed in part and remanded.

ALTENBERND, C.J., and DAVIS, J., Concur.


author: NORTHCUTT, Judge.

text:
    ADVANTAGE DIGITAL SYSTEMS, INC., Michael Knaus, James Geenen, and Andrew Foust, Appellants, v. DIGITAL IMAGING SERVICES, INC., Appellee.
    No. 2D02-2662.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    Rehearing Denied April 8, 2004.

      Gregory P. Abaray of Law Offices of Neal L. O’Toole, P.A., Bartow, for Appellants.
    William H. Drumm of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee.
   NORTHCUTT, Judge.

The circuit court entered a temporary-injunction restraining Michael Knaus, James Geenen, Andrew Foust, and Advantage Digital Systems, Inc., from competing, in various ways, with Digital Imaging Services, Inc. Knaus, Geenen, and Foust formerly worked for Digital but now are employed by Advantage. Digital filed suit against the three men and Advantage, seeking injunctive relief and damages for theft of trade secrets, confidential business information, and a client base; and for tortious interference with business relationships. Digital also sought an injunction against Geenen and Foust based on their alleged violations of noncompetition agreements. The temporary injunction prohibits Geenen and Foust from having any contact with Digital’s customers, forbids Knaus' to do business with any of Digital’s customers, and enjoins Advantage from soliciting present customers of Digital. As we will discuss, the court erred in enjoining Knaus and Advantage. Although it could properly enjoin Geenen and Foust, as to them the injunction is overly broad. The entire injunction must be reversed.

While the injunctions against the various parties involve different theories based on different facts, the history of the dispute is applicable to all. Digital is a company that sells and services wide-format analog and digital printing systems. In 2000, Knaus began working as an independent contractor for Digital, selling and servicing the printing systems. He did not sign a non-competition agreement. Digital hired Geenen and Foust as service technicians in April 2001. They each signed noncompetition agreements. Knaus met Jeffrey Long, a Digital customer, through his work. In September 2001, Knaus and Long incorporated Advantage. Advantage sells and services regular photocopying machines, as well as the wide-format systems. In February 2002, Knaus resigned from Digital and began working for Advantage. Geenen and Foust later joined him.

I. INJUNCTIONS AGAINST GEENEN AND FOUST.

The party seeking to enforce a noncompetition agreement must plead and prove the existence of one or more legitimate business interests. § 542.335(l)(b), Fla. Stat. (2000). Geenen and Foust contend that Digital failed to meet this requirement, but we disagree. One of the legitimate interests listed in the statute is “[substantial relationships with specific prospective or existing customers.” § 542.335(l)(b)3. Digital proved it has a customer base and, under the language of its agreements with Geenen and Foust, Digital has a right to protect itself from solicitation of those customers by its former employees. See Dyer v. Pioneer Concepts, Inc., 667 So.2d 961, 964 (Fla. 2d DCA 1996).

Still, the injunction against Geenen and Foust is too broad. The noncompetition agreements on which the injunction was based each stated that the employee “will not solicit for sales, service or supplies from Digital Imaging Services, Inc. customers. This noncompete agreement will apply both during employment and for a period of five (5) years after separation from Digital Imaging Services, Inc. This agreement will apply to the State of Florida.” The injunction against Geenen and Foust goes far beyond prohibiting solicitation, however. Rather, the court enjoined each of the men from “having any contact, whatsoever, with any customers of [Digital] pursuant to the noncompete agreement.” Thus, the injunction essentially and impermissibly rewrites the parties’ agreements by disallowing any “contact” with Digital’s customers. See Twenty Four Collection, Inc. v. Keller, 389 So.2d 1062, 1064 (Fla. 3d DCA 1980); see also Sabina v. Dahlia Corp., 650 So.2d 96, 100 (Fla. 2d DCA 1995) (noting that an injunction prohibiting “procuring” of insurance when the plain language of the covenant proscribed “calling upon or soliciting” would not be proper). If a Digital customer approaches Geenen and Foust, that is not solicitation, see Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999), but would be proscribed “contact” under the injunction. Because the noncompetition agreements prohibit only solicitation, that is the only activity that can be the subject of an injunction based on the parties’ contracts.

Additionally, the injunction does not distinguish between Digital customers that existed at the time of Geenen’s and Foust’s employment and prospective Digital customers. Section 542.335(l)(b)3 protects substantial relationships with both types of customers, but it is Digital’s burden to plead and prove the existence of this “legitimate business interest.” § 542.335(l)(b). Digital’s complaint asserted only that Geenen and Foust had knowledge of its “existing commercial customer relationships” and had contacted Digital’s “existing customers.” Digital did not plead and prove the necessity of restraining its former employees from soliciting any “specific prospective” customers.

Finally, the court’s order is not clear concerning the life of the injunction. The written order recites that the court orally ruled the injunction would remain in effect for five years. But then the order states “to make the record as clear as possible, the Court enters the following Temporary Injunction.” The numbered paragraphs that follow this declaration do not address the length of time the injunction will remain in effect. Although the agreements themselves contemplated a five-year period, section 542.335(l)(d)l contains a presumption that a restraint in excess of two years is unreasonable. Where no evidence rebuts this presumption, it is error to enter an injunction in excess of two years. See Flickenger v. R.J. Fitzgerald & Co., 732 So.2d 33, 34 (Fla. 2d DCA 1999).

We reverse the injunction against Geenen and Foust and remand with directions to the circuit court that it may enjoin them only from soliciting Digital’s existing customers. If the court enters a new injunction, it must also limit the effectiveness of the injunction to a reasonable period.

II. INJUNCTION AGAINST KNAUS.

For approximately six months after Knaus and Long incorporated Advantage, Knaus continued to work as an independent contractor for Digital. At the hearing on the temporary injunction, Digital’s representative asserted that during this period Knaus sabotaged Digital’s customers’ machines, presumably to undermine the customers’ confidence in Digital and to gain business for Advantage. The circuit court enjoined Knaus “from doing business with any customers of [Digital] based upon the court’s finding that there is a substantial likelihood that he committed sabotage.”

Because Knaus did not sign a non-competition agreement with Digital, we assume the court granted the injunction against him based on the claim of tortious interference with business relationships. A party who seeks a temporary injunction based on this theory must generally show “(1) a clear legal right or interest in the subject matter of the suit, (2) a substantial likelihood of success on the merits, and (3) the likelihood of irreparable harm because of the unavailability of an adequate remedy at law.” Heavener, Ogier Servs. Inc. v. R.W. Fla. Region, Inc., 418 So.2d 1074, 1075 (Fla. 5th DCA 1982). For purposes of this analysis, we will assume that the circuit court correctly decided it was likely Digital would succeed on its claim of sabotage. But see Kozich v. DeBrino, 837 So.2d 1041, 1043 (Fla. 4th DCA 2002) (noting that the findings of fact and conclusions of law made at a temporary injunction hearing are not binding on the court on final hearing, where the parties can present their full case).

But even assuming Digital’s likelihood of success, an injunction is not an appropriate remedy. By its nature, an injunction restrains commission of a future injury; a court cannot prevent what has already occurred. Estate of Yerex, 651 So.2d 220, 222 (Fla. 4th DCA 1995). Knaus’s alleged sabotage happened while he still worked for Digital. But he ended his association with that company. Therefore, he can no longer sabotage the machines of Digital’s customers or adversely affect Digital’s relationships with those customers. Digital’s remedy for the alleged sabotage, if any, is damages. Accordingly, we reverse the injunction entered against Knaus.

III. INJUNCTION AGAINST ADVANTAGE.

Again, presumably the court enjoined Advantage based on Digital’s claim of tortious interference with business relationships. Competition for business by a competitor is not actionable, even if intentional, unless the competitor is attempting to induce a customer to breach a contract that is not terminable at will. See Sethscot Collection, Inc. v. Drbul, 669 So.2d 1076, 1078 (Fla. 3d DCA 1996); Greenberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc., 629 So.2d 252, 255 (Fla. 3d DCA 1993). Digital offered no proof that any of its contracts were other than terminable at will. As such, it failed to show a substantial likelihood of success on the merits. The court erred in enjoining Advantage from soliciting Digital’s customers, and we reverse the injunction.

Advantage cannot, however, assist Geenen and Foust in breaching their non-competition agreements with Digital. If the circuit court enters a new injunction against those employees, Advantage must insure that they do not violate that restraint.

IV. INJUNCTION BOND.

The enjoined parties also challenge the amount of the injunction bond and contend that the court erred in not holding a bond hearing. At the end of the hearing on the merits of the injunction, their counsel asked the court to set “an extraordinarily high bond.” Digital’s counsel requested that the bond amount be “minimal.” Immediately thereafter, the court set the bond at $2000. The enjoined parties filed a motion to dissolve, vacate, clarify, or modify the injunction ten days later. They argued that the court erred in setting the bond amount without a hearing concerning what their foreseeable damages would be if the injunction was wrongfully issued. The court denied relief. At that point, the enjoined parties pursued this appeal.

When a court sets an injunction bond, the amount should reflect the court’s determination of the foreseeable damages for a wrongful injunction. See Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla.1989). When the court fails to do so, the remedy is generally to remand for a new bond hearing. Lotenfoe, 747 So.2d at 425. But here, as in Lotenfoe, we are reversing the injunctions. In such a case, where the enjoined parties expeditiously proceed to exhaust their available remedies, the damages for the wrongful injunction will not be limited by the erroneously set bond. Id. at 426; SeaEscape, Ltd., Inc. v. Maximum Mktg. Exposure, Inc., 568 So.2d 952, 955 (Fla. 3d DCA 1990). The enjoined parties here diligently sought relief from the erroneously entered bond. As such, their damages for the wrongful injunctions will not be limited to the amount of the bond Digital posted.

Reversed.

FULMER and CASANUEVA, JJ., Concur.

      . Digital also sued other parties who were not enjoined and raised other theories for relief that are not the subject of the present injunction.


author: BARTON, JAMES M., II, Associate Judge.

text:
    Edward E. RODRIGUEZ and Linda M. Rodriguez, Appellants, v. TOMBRINK ENTERPRISES, INC., a Florida corporation; John W. Barco, an individual, and Britton & Associates, a Florida corporation, Appellees.
    No. 2D03-1880.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.

      Marie Tomassi, Richard J. McIntyre, Brigid A. Smith of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellants.
    David J. Murphy of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellees.
    No appearance for Appellees John W. Barco and Britton & Associates.
   BARTON, JAMES M., II, Associate Judge.

The trial court entered final summary judgment in favor of Appellee Tombrink Enterprises, Inc. (Tombrink), one of three defendants in an action arising out of the purchase of Pasco County real property by Appellants Edward and Linda Rodriguez (Rodriguezes). We affirm the final summary judgment entered on the Rodri-guezes’ claim for breach of an oral contract but reverse as to the claim for fraudulent inducement.

In this dispute, Tombrink, the owner, listed the property with a realty company, Britton & Associates, whose employee John Barco (Barco) showed the property to the Rodriguezes. The Rodriguezes indicated to Barco that they were seeking vacant land on which to build their home and emphasized that they were only interested in purchasing property where development of adjacent parcels would not permit mobile or manufactured homes. In showing the Tombrink property to the Rodriguezes, Barco, according to Mrs. Rodriguez’ affidavit, stated that Tombrink did not plan to allow mobile or manufactured homes on the surrounding property which Tombrink also owned.

The Rodriguezes purchased a thirteen acre parcel from Tombrink. The sales contract includes deed restrictions which preclude mobile or manufactured homes. Thereafter, Tombrink sold forty-five acres of its property adjoining the Rodriguez parcel to another individual without the restrictions regarding mobile or manufactured homes. The purchaser of the adjoining property plans to allow mobile homes.

In their complaint, the Rodriguezes asserted breach of an oral agreement by Tombrink based on the oral promises of its agent, Barco, concerning the use and restrictions governing the adjacent parcels of real estate owned by Tombrink. In a separate count, the Rodriguezes sued Marco and Britton & Associates for misrepresentation.

After the trial court granted Tombrink’s motion for summary judgment as to the claim for breach of an oral contract, the Rodriguezes were allowed to amend their complaint to add Tombrink as a defendant on their misrepresentation claim. The .successor trial judge granted Tombrink’s motion for summary judgment as to the misrepresentation theory and dismissed Tombrink from the case. The Rodri-guezes timely challenge in this appeal the trial court’s rulings on their breach of contract and misrepresentation claims.

STANDARD OF REVIEW

We review the orders of the trial court granting motions for summary judgment de novo. Howard v. Savitsky, 813 So.2d 978 (Fla. 2d DCA 2002). In evaluating the record, we, like the trial court, must construe the facts in the light most favorable to the Rodriguezes, the non-moving party. Castellano v. Raynor, 725 So.2d 1197 (Fla. 2d DCA 1999). The facts must be so clear and undisputed that only questions of law remain. Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000). Tombrink, the moving party, must demonstrate that it is entitled to entry of judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000).

BREACH OF ORAL CONTRACT

The trial court correctly entered summary judgment on the Rodriguezes’ breach of contract claim. The final written contract between the Rodriguezes and Tombrink contains a so-called integration clause. The purported oral agreement alleged by the Rodriguezes concerning Tombrink’s agreement to prohibit mobile and manufactured homes on adjoining property merged into the final written agreement. Titusville Assocs., Ltd. v. Barnett Banks Trust Co., 591 So.2d 609 (Fla.1991). Thus, the Rodriguezes may not enforce the oral contract alleged in the original complaint.

MISREPRESENTATION

The law requires a different result on the Rodriguezes’ misrepresentation claim against Tombrink. The existence of an integration clause does not bar a claim for fraudulent misrepresentation. Mejia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001). We agree with the conclusion of the Third District Court of Appeal in the Mejia opinion that an integration clause “does not affect oral representations which are alleged to have fraudulently induced a person to enter into the agreement.” Id. at 1178.

Tombrink argues that the record conclusively establishes that its agent Bar-co had no authority to misrepresent its intentions regarding adjoining property. We disagree. In a case involving the authority of a real estate agent, the owner of real estate is responsible for his agent’s unauthorized representations, if true representations as to the same matter were within the agent’s authority, and if the buyer had no notice that the representations were unauthorized. Outlaw v. McMichael, 397 So.2d 1009, 1010 (Fla. 1st DCA 1981).

The elements of both actual and apparent agency are set forth in Ilgen v. Henderson Properties, Inc., 683 So.2d 513 (Fla. 2d DCA 1996). Normally, the existence and scope of an agency relationship are questions of fact for the jury. Moore v. River Ranch, Inc., 642 So.2d 642 (Fla. 2d DCA 1994). The record in the instant ease reflects issues as to the scope of Barco’s authority as Tombrink’s agent.

CONCLUSION

The order granting the motion for summary judgment as to breach of oral contract against Tombrink is affirmed; the final judgment on the Rodriguezes’ claim for misrepresentation against Tombrink is reversed, and the cause is remanded for trial.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ„ Concur.

      . The Rodriguezes named both Barco and Britton & Associates as defendants in their initial complaint. The claims against Barco and Britton & Associates remain pending and are not involved in this appeal.

      . COMPLETE AGREEMENT: This Contract is the entire agreement between the Buyer and Seller, except for brokerage agreements, no prior or present agreements will bind Buyer, Seller or Broker unless incorporated into this Contract. Modifications of this Contract will not be binding unless in writing, signed and delivered by the party to be bound. Signatures, initials, documents referenced in this Contract, Counterparts and written modifications communicated electronically or on paper will be acceptable for all purposes, including delivery, and will be binding. Handwritten or typewritten terms inserted in or attached to this Contract prevail over pre-printed terms. If any provision of this Contract is or becomes invalid or unenforceable, all remaining provisions will continue to be fully effective. This Contract will not be recorded in any public records.

      . The elements of actual agency are:
      1. acknowledgment by the principal that the agent will act for him;
      2. acceptance of the undertaking by the principal; and
      3. control by the principal over the actions of the agent.
      Apparent agency requires proof of:
      1. representation by the purported principal;
      2. reliance on that representation by a third party; and
      3. a change in position by the third party in reliance upon such representation.


text:
    Benjamin McCLORA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3229.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.

      James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Benjamin McClora appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order, in part, for the trial court to address two matters raised by McClora’s motion.

McClora asserted in his motion for postconviction relief that his trial attorney was ineffective for failing to move for a judgment of acquittal after the close of all the evidence based on the lack of evidence to establish aggravated battery as charged in count three. He further asserted that he was prejudiced by his attorney’s failure, because the evidence was insufficient to support a finding of guilt. The trial court summarily disposed of this allegation by attaching pages of the trial transcript, which show that McClora’s attorney moved for judgment of acquittal at the close of the State’s case. However, the trial court failed to address the allegation that the attorney did not renew the motion at the close of all the evidence. See Fla. R.Crim. P. 3.380(b) (1997). Additionally, the trial court failed to address McClora’s assertion that his attorney was ineffective for failing to object to the use of the victim’s prior inconsistent statements as substantive evidence. See Rodriguez v. State, 753 So.2d 29 (Fla.2000).

We reverse the denial of these two claims and remand for the trial court to either attach documentation supporting the denial of the claims to its order or to conduct an evidentiary hearing on the issues. The trial court’s denial of the remaining claims raised in McClora’s motion is affirmed.

Affirmed in part; reversed in part.

FULMER and COVINGTON, JJ„ Concur.

      . We recognize that in Morris v. State, 721 So.2d 725, 727 (Fla.1998), the Florida Supreme Court held that a defendant is not required to renew a motion for a judgment of acquittal after the defendant has presented evidence to preserve the issue for appellate review. However, McClora’s trial was held in May 1997 before the release of the opinion in Morris.


text:
    Charles ORENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1779.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Orens may have to file a facially sufficient motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

CASANUEVA, STRINGER, and WALLACE, JJ., Concur.


text:
    David Felipe GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5425.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

We affirm David Felipe Garcia’s convictions and sentences without prejudice to any right he may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

NORTHCUTT and VILLANTI, JJ., Concur.


author: SALCINES, Judge.

text:
    STATE of Florida, Appellant, v. J.D. Travis MILLER, Jr., Appellee.
    No. 2D02-5221.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellee.
   SALCINES, Judge.

The State appeals the sentence which was imposed upon J.D. Travis Miller, Jr., following his guilty plea to robbery with a firearm for an offense occurring on April 21, 2002. Miller concedes error but asserts that upon remand the trial court should be allowed to impose any legal sentence, including either the minimum mandatory sentence or a youthful offender sentence if Miller, whose date of birth is November 18, 1983, otherwise qualifies for the youthful offender classification. We agree that the trial court imposed an illegal sentence and remand this case for resentencing. We also agree with Miller’s assertion that, upon remand, the trial court may impose any legal sentence for which Miller qualifies.

Reversed and remanded for resentenc-ing.

STRINGER and WALLACE, JJ., Concur.


author: STRINGER, Judge.

text:
    Justin MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3514.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Murray pleaded guilty to a trafficking in cocaine charge in exchange for a sentencing cap of the three-year minimum mandatory if applicable, or in the alternative, the bottom of the guidelines, 21.15 months in prison. Murray preserved his right to appeal the imposition of the three-year minimum mandatory sentence, arguing prior to sentencing that based on this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), he could not receive the minimum mandatory term for his offense committed on April 9, 2002. We agree.

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of minimum mandatory prison sentences for certain drug offenses, is unconstitutional because it violated the single subject rule of the Florida Constitution. 818 So.2d 544. In 2002, the Florida Legislature separately reenacted the provisions originally contained in chapter 99-188 as chapters 02-208 through 02-212, Laws of Florida. See Green v. State, 839 So.2d 748, 750 (Fla. 2d DCA 2003), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003). However, in Green, this court held that the reenacted sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the U.S. and Florida Constitutions.

The window period for asserting challenges based on the unconstitutionality of chapter 99-188 opened on July 1,1999, and closed on April 29, 2002, the effective date of chapters 02-208 through 02-212. See id. Because Murray committed his offense on April 9, 2002, within the Taylor window, we reverse his sentence and remand for resentencing to 21.15 months in prison, consistent with Murray’s plea agreement. As to Taylor, we certify that this decision conflicts with the Third District’s decision in State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, No. SC03-413 (Fla. Sept. 19, 2003). As to Green, we certify that this decision conflicts with the Fifth and Fourth Districts’ decisions in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002); Carlson v. State, 27 Fla. L. Weekly D2162 (Fla. 5th DCA Oct.4, 2002); and Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002).

Reversed and remanded.

NORTHCUTT and CANADY, JJ., Concur.


text:
    Bobby Lee HUBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2117.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2003.
    Kevin C. Shirley, Punta Gorda, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Bobby Lee Hubert appeals from the sentence imposed pursuant to his nolo con-tendere plea to lewd or lascivious battery. He challenges only a preserved scoresheet error for which the State concedes error. The error, however, is harmless as to trial court case number 01-558-CF, the single case which is the subject of this appeal. Accordingly, we affirm without prejudice to Hubert’s right to file a motion for correction of the sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(a).

Affirmed.

STRINGER and WALLACE, JJ., Concur.

      . The judgment erroneously described this offense as "lewd sexual battery.”


text:
    Sonya JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1249.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    R. John Cole, II, of R. John Cole, P.A., Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Ms. Jackson might have to file a motion pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.