text:
    Michael Curtis DONOVAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3343.
    District Court of Appeal of Florida, Fifth District.
    March 29, 2004.
    Michael Curtis Donovan, Wewahitckha, pro se.
    No Appearance for Respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

In this ten year old ease, Michael Curtis Donovan entered a knowing, voluntary plea to the crime of sexual battery. For the twelfth time, Donovan seeks relief in this court. This time, Donovan seeks a belated appeal.

Evidently, Donovan attempts to achieve by volume filing that which cannot be done by meritorious argument. Since Donovan has been “filing documents faster than this court can dispose of them,” Rooney v. State, 699 So.2d 1027, 1028 (Fla. 5th DCA 1997), and since we have found his arguments and numerous filings to be without merit, we issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), which held that a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond. In response, Donovan reiterates the grievances and arguments previously made. Donovan claims this court is mistaken about the facts, which it is not. He also asserts this court is mistaken about the law, which it is not. Donovan does not realize how well this court knows the facts of his 1994 case and its extensive history. See Demo v. State, 833 So.2d 168 (Fla. 5th DCA 2002) (“This court retains copies of its criminal appeals, including bench memos, dating back to 1989 ... and earlier. Thus our determination that a post-conviction motion is successive need not depend solely on attachments by the trial court”).

We do not take the action of barring a defendant from further pro se pleadings lightly. However, we find no merit in Donovan’s response to the order to show cause. Therefore, we hold that his successive challenges to his judgment and sentence constitute an abuse of the judicial system. See, e.g., Baker v. State, 29 Fla. L. Weekly S105, — So.2d --, 2004 WL 439879 (Fla. March 11, 2004) (holding that a limit on successive claims is necessary to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice); Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (re-raising arguments “heard, considered, and rejected ... is an abuse of process”). Further, we warn Donovan that he cannot ignore this procedural bar by attacking, in his case no. 99-29181, his conviction in case no. 94-19184.

In accordance with the Criminal Appeal Reform Act of 1996, we prohibit Donovan from any additional pro se filing relating to his conviction and sentence in the underlying case. Any further filings in this court relating to his conviction and sentence must be reviewed and signed by an attorney licensed to practice law in the State of Florida. The Clerk of the Court of the Fifth District Court of Appeal is directed not to accept any further pro se filings from Michael Curtis Donovan regarding his Brevard County case identified as 18th Judicial Circuit Court Case No. 94-19184.

GRIFFIN, THOMPSON, and MONACO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. BENTON, J.,

license: Public Domain

text:
    Gregory JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3871.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Clifford L. Davis, Esquire, Monticello, for Appellant.
    Charles Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

ALLEN and WEBSTER, JJ., concur; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

Gregory Jones appeals an order civilly committing him as a sexually violent predator under the Jimmy Ryce Act, section 394.917, Florida Statutes (2002). On appeal, he argues that his conviction should be reversed because the trial court did not instruct the jurors that he ought not be committed unless they found that the State had proven either that he was unable to control his dangerous behavior altogether, or that it was “difficult, if not impossible,” for him to control his dangerous behavior. The trial judge instructed the jury:

To prove that the respondent, Gregory Jones, is a sexually violent predator, the State must prove each of the following four elements by clear and convincing evidence: (a) Gregory Jones has been convicted or adjudicated delinquent of a sexually violent offense; and, (b), Gregory Jones suffers from a mental abnormality or personality disorder; and, (c), the mental abnormality or personality disorder makes Gregory Jones likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care and treatment; and, (d), Gregory Jones has serious difficulty controlling his dangerous behavior.

The second prong of appellant’s contention is preserved because the trial court denied defense counsel’s request “that the fourth element, D, read that Gregory Jones’ dangerousness was caused by or linked to a mental abnormality or personality disorder that makes it difficult, if not impossible, for Gregory Jones to control his dangerous behavior.”

The State is not just required to prove that it is “difficult, if not impossible,” for the subject of Jimmy Ryce Act proceedings to control his behavior. The requirement is that “there must be proof of serious difficulty in controlling behavior,” Crane, 534 U.S. at 413, 122 S.Ct. 867 (emphasis supplied), a more onerous burden for the State than mere “difficulty.” See Hudson v. State, 825 So.2d 460, 471-72 (Fla. 1st DCA 2002) (remanding to give “the state ... an opportunity to prove, at a new trial, that appellant suffers from ‘serious difficulty in controlling his [dangerous] behavior’ ” because the Crane decision came down during the pendency of Mr. Hudson’s trial); White v. State, 826 So.2d 1043, 1044 (Fla. 1st DCA 2002) (“In Crane, the Court added a fourth element of proof ... that the person has ‘serious difficulty’ in controlling his or her behavior.”). Just as the cases require, the instruction given at Mr. Jones’s trial required clear and convincing proof of serious difficulty in controlling his behavior.

      . The United States Supreme Court has rejected this first, unpreserved prong of the argument appellant makes here, holding that "the State ... [is not required] to prove that a dangerous individual is completely unable to control his behavior." Kansas v. Crane, 534 U.S. 407, 411, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).

      . Despite the position trial counsel took, Mr. Jones has not argued on appeal that the instruction the trial court gave was deficient for failure to require the jury to find that the difficulty in controlling his behavior is attributable "to the existence of a 'mental abnormality' or 'personality disorder.' " Kansas v. Hendricks, 521 U.S. 346, 358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).


author: WOLF, C.J.

text:
    Donald CARROLL Appellant, v. NORTH FLORIDA SWEEPING/SUNSHINE COMPANIES/UNISOURCE ADMINISTRATION, INC. Appellees.
    No. 1D02-4414.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    Terry P. Roberts, Esq., of Anderson, Culliton & Sullivan, P.A., Tallahassee, for appellant.
    Paul A. Vasquez, of Christmas & Associates, P.A., Tallahassee, for appellees.
   WOLF, C.J.

Claimant, Donald Carroll, challenges a final order denying him workers’ compensation benefits based on the statute of limitations. Finding no competent substantial evidence on the record before us to support the judge of compensation claims’ determination concerning claimant’s knowledge that his physician was deauthorized after the carrier’s payment for visits to his physician in 1998, we reverse the determination that the claim was barred by the statute of limitations and remand for further proceedings.

PADOVANO and POLSTON, JJ., concur.


author: PER CURIAM.

text:
    Judith WHITMORE, as Personal Representative of the Estate of Robert Andrew Devries, deceased; on Behalf of Judith Whitmore, individually as a survivor, and the Estate of Robert Andrew Devries, Appellant, v. FIDELITY & CASUALTY INSURANCE COMPANY OF NEW YORK, Appellee.
    No. 1D03-2669.
    District Court of Appeal of Florida, First District.
    March 30, 2004.
    James H. Daniel of Coker, Myers, Schickel, Sorenson & Green, P.A., Jacksonville, Attorney for Appellant.
    William T. Stone and David J. Anderson of Cole, Stone, Stoudemire & Morgan, P.A., Jacksonville, Attorney for Appellee.
   PER CURIAM.

AFFIRMED. See Martin v. St. Paul Fire & Marine Ins. Co., 670 So.2d 997 (Fla. 2d DCA 1996), review denied 682 So.2d 1100 (Fla.1996).

BOOTH, POLSTON and HAWKES, JJ., concur.


author: VILLANTI, Judge.

text:
    Sabir Abdul-Haqq YASIR, Appellant, v. Richard HANCOCK, Ricky Slaughter, S. Liebowitz, and Michael Gallemore, Appellees.
    No. 2D03-2459.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.

      Sabir Abdul-Haqq Yasir, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for Appellee.
   VILLANTI, Judge.

Sabir Abdul-Haqq Yasir appeals from the orders denying two motions he filed in connection with his Religious Freedom Restoration Act (RFRA) suit against various prison officials. We affirm in part and reverse in part.

Yasir sued the defendant prison officials under the RFRA after he was allegedly removed from his vocational plumbing program because its schedule conflicted with his prayer services’ schedule. The prison officials filed a motion to dismiss Yasir’s action. A year and a half after Yasir filed suit but while the motion to dismiss was still pending, Yasir was transferred to another prison facility. At that facility, the schedule for the vocational plumbing program did not conflict with Yasir’s prayer services; therefore, he was reenrolled in the plumbing program. Once at the new facility, Yasir filed a motion for leave to file a supplemental pleading and a proposed supplemental pleading in which he alleged facts to support a claim of “retaliatory transfer” under 42 U.S.C. § 1983. In that supplemental pleading, Yasir claimed that he had been transferred to the second prison in retaliation for filing his RFRA suit.

The trial court subsequently dismissed Yasir’s RFRA suit as “moot with prejudice.” Yasir then moved to be declared the prevailing party, arguing that even though his suit had been dismissed he had prevailed because he received the relief he sought when he was placed into a comparable plumbing program. The trial court denied this motion. The trial court also denied Yasir’s motion to file a supplemental pleading and recommended that Yasir’s gain time be forfeited as a sanction for filing a frivolous pleading. Yasir now appeals both the order denying his motion to be declared the prevailing party and the order recommending that he be sanctioned.

We find Yasir’s prevailing party argument to be without merit and affirm the trial court on that issue. However, we reverse the recommendation of sanctions because the trial court made no finding, and there is nothing in the record to show, that Yasir’s motion for leave to file a supplemental pleading was frivolous.

The statutory basis for the trial court’s recommendation that Yasir be sanctioned for filing a frivolous suit is found in section 944.279(1), Florida Statutes (2003):

At any time, and upon its own motion or on motion of a party, a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state or in any federal court, which is filed after June 30,1996, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.

(Emphasis added.) The statute does not define frivolous. However, this court has interpreted “frivolous appeal,” in the context of the statute, to mean one that

is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error [or briefs, in keeping with modern practice], that its character may be determined without argument or research.

Mercade v. State, 698 So.2d 1813, 1315 (Fla. 2d DCA 1997) (quoting Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883, 883 (1935)) (alteration in original), disapproved on other grounds, Hall v. State, 752 So.2d 575 (Fla.2000). By analogy, a frivolous pleading is one that, on its face, is “so readily recognizable as devoid of merit ... that there is little, if any, prospect whatsoever that it can ever succeed.” See id.

The face of Yasir’s motion for leave to file a supplemental pleading and proposed pleading does not clearly reveal it to be devoid of merit. It fully set forth the elements that would be necessary to establish a claim under 42 U.S.C. § 1983 that the prison officials retaliated against him for exercising his constitutional rights. See Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.1986) (indicating that actions taken against prisoner in retaliation for filing lawsuit may give rise to 42 U.S.C. § 1983 claim). Although the prison officials disputed the factual basis for his claim— arguing instead that he was transferred because he was encouraging other prisoners to confront auditors who were planning a visit to the prison — such dispute does not necessarily mean the pleading itself was frivolous.

Furthermore, the trial court did not follow the statutory procedure for recommending sanctions. There is no indication in the record that the trial court conducted any inquiry into whether Yasir’s motion was brought in good faith, and the only “finding” provided by the trial court is a mere legal conclusion that the motion was frivolous. We therefore reverse the trial court’s recommendation that Yasir be sanctioned with the loss of gain time.

Affirmed in part and reversed in part.

ALTENBERND, C.J., and KELLY, J., Concur.


text:
    Patrick CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2700.
    District Court of Appeal of Florida, First District.
    March 31, 2004.

      Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Maynard, 783 So.2d 226 (Fla.2001).

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    W. Robinson FRAZIER and Max T. Watson, Jr., as Successor Co-Trustees of the Martha S. Brechler Amended and Restated Revocable Trust Agreement dated February 18, 1999, Appellants, v. Robert A. BRECHLER, Personal Representative of the Estate of Martha S. Brechler, Deceased, Appellees.
    No. 1D03-290, 1D03-1718.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    John F. Callender, Jacksonville, Attorney for Appellants.
    Robert C. Gobelman of Gobelman, Love, Gavin, Blazs & Wasilenko, Jacksonville, Attorney for Appellees.
   PER CURIAM.

We have before us a ease involving the refund of federal income tax to Appellee as the surviving spouse of Martha S. Bre-chler. We affirm all issues raised in this appeal, except one. We reverse and remand to the trial court to conduct an evi-dentiary hearing to determine the appropriate amount of interim attorney’s fees for non-litigation services due to Appellee, as personal representative, pursuant to the factors contained in section 733.6171, Florida Statutes (2001).

AFFIRMED in part; REVERSED in part, and REMANDED.

ERVIN and BOOTH, JJ., and SMITH, LARRY G., Senior Judge, concur.


text:
    Jay KAFKA, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1798.
    District Court of Appeal of Florida, First District.
    March 31, 2004.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Bautista v. State, 863 So.2d 1180 (Fla.2003).

ALLEN, PADOVANO and HAWKES, JJ., concur.


text:
    CEM ENTERPRISES, INC. d/b/a Sunshine Painting, Appellant, v. STATE of Florida, DEPT. OF TRANSPORTATION, Appellee.
    No. 1D03-2589.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Mike Piscitelli, Esq. and Alejandro Espi-no, Esq. of Vezina, Lawrence & Piscitelli, P.A., Ft. Lauderdale, for Appellant.
    Pamela S. Leslie, General Counsel; Marianne A. Trussell, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, CEM Enterprises, Inc. d/b/a Sunshine Painting, appeals the trial court’s summary judgment order and final judgment entered in favor of appellee, the Florida Department of Transportation. Summary judgment is appropriate only in situations where there is no genuine issue of material fact and where the moving party is entitled to a judgment as a matter of law. Strama v. Union Fid. Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001) (citation omitted). “Where the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties’ intent which cannot properly be resolved by summary judgment.” Id. (quoting Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc., 513 So.2d 218, 219 (Fla. 1st DCA 1987)). Because certain provisions in the parties’ contract are disputed and are reasonably susceptible to more than one construction, an issue of fact remains in the instant case. As such, the trial court erred in entering summary judgment. See Strama, 793 So.2d at 1132 (“When ‘there is a genuine issue of material fact as to the interpretation that the parties gave the ambiguous contract provision,’ summary judgment is inappropriate.”) (quoting Hancock v. Brumer, Cohen, Logan, Kandell & Kaufman, 580 So.2d 782, 784 (Fla. 3d DCA 1991)); see also Birwelco-Montenay, Inc. v. Infilco Degremont, Inc., 827 So.2d 255, 257 (Fla. 3d DCA 2001) (holding that where each side ascribes a different meaning to what the sides claim is the unambiguous language in a contract, the contract is ambiguous and summary judgment is improper).

Accordingly, we REVERSE and REMAND for further proceedings.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    J.J.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3558.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit; P. Douglas Brink-meyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

J.J.L., a child, appeals from her adjudication of delinquency and commitment to the Department of Juvenile Justice. We reverse J.J.L.’s commitment to a high risk residential program because the trial court proceeded with J.J.L.’s disposition with an incomplete predisposition report in which the Department failed to recommend a commitment level as required by section 985.23(3)(b), Florida Statutes (2003) and J.E.W. v. State, 672 So.2d 72, 73-74 (Fla. 1st DCA 1996) (reversing a juvenile’s commitment to a moderate risk facility where the trial court considered a predisposition report that did not recommend a commitment level, but rather recommended continuing the disposition). There is no evidence that the child knowingly waived the requirement of a predisposition report that complies with the statute. Therefore, we vacate J.J.L’s commitment and remand for a new disposition hearing.

REVERSED and REMANDED.

ALLEN, KAHN and POLSTON, JJ., concur.


text:
    Wallace Reid HURT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5163.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Barbara J. Yates, and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order summarily denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800.

Because the trial court failed to attach portions of the record to conclusively refute Appellant’s claim that the sentence contained in the written judgment is inconsistent with the orally pronounced sentence, we reverse.

Appellant alleges that the sentence pronounced in open court was a 5-year term of imprisonment to be followed by a 5-year term of probation. The sentence recorded in the written judgement is a 15-year term of imprisonment with credit for time served, followed by a 5-year term of probation. Such an allegation is a facially sufficient claim cognizable in a motion filed pursuant to rule 3.800. See Ashley v. State, 850 So.2d 1265 (Fla.2003); Greene v. State, 853 So.2d 1114 (Fla. 1st DCA 2003). Because the trial court failed to attach any portion of the record to refute this claim, the trial court’s summary denial is reversed and remanded for attachment of the record portions to conclusively refute Appellant’s claim or Appellant’s sentence must be corrected to reflect the orally pronounced sentence.

REVERSED AND REMANDED.

BOOTH, POLSTON and HAWKES, JJ., concur.

      . Appellant’s motion purported to be filed pursuant to rule 3.700(a), the trial court correctly treated the motion as a motion to correct an illegal sentence pursuant to rule 3.800.


text:
    Warnell ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5525.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the final judgment and sentence rendered on August 19, 2003, in the Leon County Circuit Court case number 1997CF2199A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    FLORIDA HOUSE OF REPRESENTATIVES, Appellant, v. HAYES E-GOVERNMENT RESOURCES, INC., d/b/a Hayes Computer Systems; Imager Software, Inc. d/b/a I.S. Consulting; and Microsoft Corporation, Appellees.
    No. 1D04-0170.
    District Court of Appeal of Florida, First District.
    March 31, 2004.

      Steven G. Burton, Charles G. Geitner, Joseph B. Donnelly and Mark M. Barber of Broad and Cassel, Tampa, and M. Stephen Turner of Broad and Cassel, Tallahassee, for Appellant.
    G. Donovan Conwell, Jr., G. Wrede Kirkpatrick, and Suzanne R. Eschrich, Tampa, and Kenneth W. Sukhia, Tallahassee, for Hayes E-Government Resources, Inc., d/b/a Hayes Computer Systems, Inc.
    Julius F. Parker, III, of The Douglas Law Firm, Tallahassee, for Imager Software, Inc. d/b/a I.S. Consulting; Karen D. Walker and Jeffery M. Schumm of Holland & Knight, Tallahassee, for Microsoft Corporation, Appellees.
   PER CURIAM.

The appellant brought this appeal seeking review of a partial final order that dismissed its breach of contract action against Imager Software, Inc. However, because both this action and the pending claims for trademark infringement and deceptive and unfair trade practices are interrelated, we must dismiss this appeal for lack of jurisdiction. See Fla. R.App. P. 9.030(b)(1); S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).

DISMISSED.

BOOTH, WEBSTER and BENTON, JJ., concur.


text:
    Otis GODWIN, Appellant, v. APALACHEE CORRECTIONAL INSTITUTION c/o Marianna Service Center and York STB, Inc., Appellees.
    No. 1D04-0393.
    District Court of Appeal of Florida, First District.
    March 31, 2004.
    Jayson A. Chizick of Anderson, Culliton & Sullivan, P.A., Tallahassee, for appellant.
    William W. Blue, and Debra June Byers of Cooper, Byrne, Blue & Schwartz, LLC, Perry, for appellees.
   PER CURIAM.

Having considered appellant’s response to our order to show cause concerning the appealability of the JCC’s Order Granting Employer/Carrier’s Motion for Sanctions, we dismiss this appeal for lack of jurisdiction. Because the JCC dismissed the petition for benefits without prejudice, judicial labor is obviously not at an end. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). The portion of the JCC’s order which denied appellant’s request for penalties and interest from July 1, 2002, to December 22, 2003, and relieved the e/c from arranging or providing transportation for claimant does not make the order final. The JCC was not ruling on the merits of appellant’s petition for benefits, but rather on a motion for sanctions. Therefore, the order on appeal is neither a final order nor an appealable nonfinal order.

DISMISSED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    John P. LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2739.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

We reject the sole claim of trial error, that the prosecutor’s (mostly unobjected to) final argument requires reversal. As to the sentence, we affirm on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).


text:
    Todd FOGEL, Appellant, v. Paul VIGIL, Appellee.
    No. 4D04-920.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Michael J. Styles, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Although this was filed as a Petition for Writ of Certiorari, we treat it as a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a), and affirm.

POLEN, GROSS and MAY, JJ., concur.


text:
    Mario VENERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3387.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Ileana Haedo, for appellee.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

We reverse, in part, the order denying defendant’s post-conviction relief motion. The record does not conclusively refute defendant’s claim that counsel was ineffective for failing to move to sever the possession of a firearm by a violent career criminal charge. Therefore, we reverse the portion of the order denying relief on that basis and remand for an evidentiary hearing.

Affirmed in part; reversed in part and remanded.


text:
    Carlos Ernesto RENDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-77.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr.,. Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Card v. State, 453 So.2d 17 (Fla.1984) and Singleton v. State, 783 So.2d 970 (Fla.2001).


text:
    Eduardo TAPANES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3593.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued opinion and substitute the following in its place.

Affirmed, without prejudice to appellant raising the claim of ineffective assistance of counsel in postconviction proceedings.

STONE, WARNER and STEVENSON, JJ., concur.


text:
    Magela ELOISAINT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-581.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Ana M. Davide, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Magela Eloisaint appeals from the trial court’s denial of relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

This is Eloisaint’s second petition for 3.850 relief, filed beyond the two-year window set forth in that rule. See also Peart v. State, 756 So.2d 42 (Fla.2000). The petitioner’s claim for relief sets forth facts that were or could have been known at the time of her first 3.850 petition, which was also filed beyond the two-year filing window. See Foster v. State, 614 So.2d 455, 458 (Fla.1992)(“A successive motion may be dismissed if it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the failure to raise those issues in a prior motion constitutes an abuse of process. To overcome this bar, a movant must allege that the grounds asserted were not known and could not have been known to him at the time of the earlier motion.”).

Affirmed.


text:
    Jean G. LEVERT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D03-1723.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.

      Jean G. Levert, in proper person.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Claimant Jean G. Levert appeals an order of the Unemployment Appeals Commission which affirmed the appeals referee’s dismissal of his untimely appeal from a claims adjudication denying unemployment compensation benefits. We agree that the late filing deprived the referee of jurisdiction to consider the merits of Levert’s claim. See § 44S.151(3)(a), (4)(b), Fla. Stat. (2003); Fla. Admin. Code, R. 60BB-5.007. As in Leon v. Unemployment Appeals Com’n, 476 So.2d 761 (Fla. 3d DCA 1985), Levert does not dispute that the notice of appeal was untimely. We therefore accept the appeals referee’s finding of untimeliness. The failure to comply with applicable review procedures compels us to affirm the Commission’s order.

Affirmed.


text:
    Roberto BARNES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2690.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Roberto Barnes, in proper person.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and GREEN, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the State’s proper confession of error, we remand with instructions to correct the appellant’s sentence to reflect the 945 days actually served, in addition to the time credited to appellant in the trial court’s order granting motion to correct illegal sentence. See Fla. R.Crim. P. 3.800(a); Andrews v. State, 822 So.2d 540, 541 (Fla. 2d DCA 2002).

We affirm all other aspects of the trial court’s order.

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


text:
    Jean Gerard CAYMITTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4313.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.

      Jean Gerard Caymitte, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jean Gerard Caymitte appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings upon finding Caymitte’s motion legally sufficient and warranting a hearing to determine if DNA evidence existed. Hitchcock v. State, 866 So.2d 23 (Fla.2004); Zollman v. State, 854 So.2d 775 (Fla. 2d DCA 2003).

STONE, KLEIN and MAY, JJ., concur.


text:
    Stephen AUMENT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2146.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we find no preserved reversible error apparent on the face of the record. However, we do note that in Brevard County circuit court case No. 02-68939, the judgment in count I, imposing a seventeen-year prison term followed by five years of probation, fails to comply with the court’s oral pronouncement of a ten-year prison term followed by five years probation. We are unable to direct the trial court to correct that error as the issue was not preserved for review by the filing of a timely motion to correct sentence pursuant to Florida Rule Criminal Procedure 3.800(b). See e.g. Highberger v. State, 863 So.2d 1256 (Fla. 5th DCA 2004); Polite v. State, 847 So.2d 1156 (Fla. 5th DCA 2003).

Accordingly, we affirm the defendant’s convictions and sentences without prejudice to file a timely postconviction motion to correct the sentencing discrepancy.

AFFIRMED.

THOMPSON, ORFINGER and MONACO, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Andrew SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1378.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Andrew Smith appeals the amount of restitution imposed on him after pleading guilty to grand theft. Smith and his co-defendants burglarized the victim’s home, stealing a safe containing valuables. After a hearing, the trial court ordered restitution in excess of $40,000 for the items taken.

We find merit only in Smith’s contention that the trial court imposed restitution for the safe based upon the replacement cost of a new and more secure safe. It is undisputed that the original safe cost only $350. There was no testimony as to the fair market value of the original safe at the time it was stolen.

Consistent with our holding in co-defendant Immon Nabil Ibrahim’s case, we reverse the ordered restitution for the stolen safe; fair market value, not replacement value is the correct measure of damages. See Ibrahim v. State, 866 So.2d 749, 29 Fla. L. Weekly D410 (Fla. 5th DCA Feb.13, 2004).

We affirm the restitution order except as to the stolen safe and remand to allow the State to request a new restitution hearing to establish the fair market value of the safe, if it chooses. See J.F.H. v. State of Florida, 849 So.2d 1151, 1152 (Fla. 5th DCA 2003). If the State does not request a new restitution hearing, the trial court shall reduce the amount of restitution by $1,007.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PETERSON, PALMER and ORFINGER, JJ., concur.


author: SHARP, W., J. MONACO, J.,

text:
    Charles W. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1762.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Moore appeals from a restitution order imposed by the trial court after he had been convicted in a DUI case which involved serious injuries to Janice Finley and caused her husband’s death. Although the criminal trial concluded in 1998, the restitution hearing did not take place until April 2003.

The state agrees with Moore that the restitution order must be reversed and the cause remanded for a new hearing because the trial court erred in failing to offer Moore assistance of counsel at the hearing. See Moment v. State, 645 So.2d 502 (Fla. 4th DCA 1994).

REVERSED and REMANDED.

TORPY, J., concurs.

MONACO, J., concurs and concurs specially with opinion.

MONACO, J.,

concurring and concurring specially.

I fully concur in the majority decision remanding this cause for a new hearing because the trial court failed to offer the appellant the assistance of counsel at the restitution hearing. I write only because of my concern regarding the time it has taken for this restitution hearing to take place.

The Florida Supreme Court has indicated that while restitution must be imposed at the time of sentencing or within 60 days thereafter, the amount of restitution may be determined beyond the 60 day limit, but in a timely manner. State v. Sanderson, 625 So.2d 471, 473 (Fla.1993); see also L.O. v. State, 697 So.2d 1273 (Fla. 3d DCA 1997). The Sanderson court said that it assumed that the trial court would determine the amount “at the earliest possible date.” Id. at 473.

In the present case the appellant was originally sentenced in 1998, at which time restitution was imposed, but the amount not set. Instead, the trial court reserved jurisdiction to consider this matter. The amount of restitution ($358,747.36), was not imposed until 2003. In the interim there has been a direct appeal, a Heggs resentencing, and two 3.850 motions. I trust that the issue of timeliness will be thrashed out at the new hearing required by our opinion in this case.

      . At his 2001 resentencing hearing, Moore was represented by the Public Defender. Moore was declared indigent and the Public Defender was appointed to represent him in this appeal.

      . See Moore v. State, 731 So.2d 678 (Fla. 5th DCA 1999).

      . See Heggs v. State, 759 So.2d 620 (Fla.2000).


text:
    Ronald LANE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4179.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Ronald Lane, Madison, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the trial court’s order rejecting claims one, three, four and five of Roger Lane’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In claim two, Lane complains that his trial counsel should have called a DNA analyst to testify as a defense witness because the analyst’s testimony would have “convinced” the jury that someone other than Lane deposited the blood that was left on the victim’s shirt. In denying relief on this issue, the trial court made several references to the record in support of its findings and conclusions. However, the court failed to include supporting attachments, as is required under rule 3.850(d).

We recognize that in its order the trial court wrote: “If the defendant appeals from the denial of this order, the clerk of the court shall include volumes I, II and III of the October 30, 2000 and October 31, 2000 trial transcript and the November 14, 2000 motions and sentencing hearing.” However, attaching the entire record fails to comply with the rule and the supreme court’s pronouncement in Hoffman v. State, 571 So.2d 449 (Fla.1990), which recognized that a construction of rule 3.850 that would allow the attachment of the entire record would render the language of the rule meaningless. Our ability to review the trial court’s order is further hampered by the fact that volume III of the record goes through page 537, but, according to the State’s response filed with the trial court, relevant discussions between Lane and his counsel regarding the testimony of the DNA analyst appear on page 550 of the record and beyond, which for reasons not clear to us, were not transmitted.

Accordingly, because the trial court relied on specific portions of the record but failed to attach such portions, we remand this matter to the trial court to either attach the pertinent portions of the record relating to claim two or to conduct an evidentiary hearing.

REVERSED AND REMANDED.

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    C.L.C., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2613.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

C.L.C., a juvenile, was found guilty of possession of cannabis with intent to sell, and of the lesser included charge of misdemeanor possession of marijuana. He was adjudicated delinquent and committed concurrently to a Level Eight program for each of the two offenses. We affirm the adjudication of guilt with respect to the possession with intent to sell, there being no error shown. We reverse, however, with respect to the simple possession charge. As the crime of possession of marijuana contains no element not found within the crime of possession with intent to sell, we conclude that the adjudication and sentence on the simple possession charge must be vacated, as violative of the prohibition against double jeopardy. See Paccione v. State, 698 So.2d 252 (Fla.1997). The State agrees.

Accordingly, we vacate the adjudication and sentence for the simple possession of marijuana. We affirm the adjudication and sentence for possession of marijuana with intent to sell.

AFFIRMED in part; REVERSED in part.

SHARP, W., THOMPSON and ■ MONACO, JJ., concur.


author: THOMPSON, J.

text:
    Sharon TITUS, Appellant, v. SKILLS, TRAINING, ANALYSIS, etc., et al, Appellee.
    No. 5D03-1996.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Ronald A. Nour, Ormond Beach, for Appellant.
    Ronald W. Sikes and Gary M. Berkson of Moran & Shams, P.A., Orlando, for Ap-pellee.
   THOMPSON, J.

Sharon Titus appeals a temporary injunction. We quash the injunction because the court failed to make the requisite findings. This issue being dispositive, we do not address the other points raised by Titus.

A preliminary injunction is an extraordinary remedy which should be granted sparingly, and which may be entered if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest. Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002). In entering the injunction, the trial court must strictly comply with rule 1.610(c), Florida Rules of Civil Procedure, by specifying the reasons for entry of the injunction and describing in reasonable detail the act or acts restrained without reference to a pleading or another document. Id. (quoting Fla. R. Civ. P. 1.610(c)). Further, the trial court must set forth “[cjlear, definite, and unequivocally sufficient factual findings” in support of each of the four criteria. Milin v. Northwest Florida Land, L.C., 870 So.2d 135, 2003 WL 23094866 (Fla. 1st DCA Dec. 31, 2003).

INJUNCTION QUASHED.

PALMER and MONACO, JJ., concur.


author: WALLACE, Judge.

text:
    In re GUARDIANSHIP OF Sara H. SAPP. Lee O’Hare and Lynn Atherton, Appellants, v. Lalai Hamric, Appellee.
    Nos. 2D02-4010, 2D03-1404.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.

      Cathy S. Reiman of Roetzel & Andress, Naples, for Appellants.
    Melville G. Brinson, III, of Smoot Adams Edwards Doragh & Brinson, P.A., Fort Myers, for Appellee.
   WALLACE, Judge.

In these consolidated appeals, Lee O’Hare and Lynn Atherton challenge an order awarding compensation to their sister, Lalai Hamric, the guardian of the person of their mother, Sara H. Sapp (the Ward), and an order awarding attorney’s fees and costs to Hamric’s attorney, Melville G. Brinson, III. Because we conclude that the award of attorney’s fees and costs to Brinson was barred by the express terms of the parties’ settlement agreement, we reverse the order authorizing the payment of attorney’s fees and costs from the Ward’s estate to Brinson. We also reverse the order awarding compensation to Hamric and remand for further proceedings because Hamric’s records were insufficient to support the award and because the order in part impermissibly compensated Hamric for services outside the scope of her duties as guardian of the person of the Ward.

Facts and Procedural History

These proceedings began in November 2001 with the filing by O’Hare and Ather-ton of petitions to determine incapacity and for the appointment of a plenary guardian of the person and property of the Ward. At the time of the filing of the petitions, the Ward was eighty-five years of age. She resided at Health Park Care Center in Fort Myers, Florida. The Ward was widowed and had four children: Lee O’Hare of Fairbanks, Alaska; Lynn Ather-ton of Tierra Verde, Florida; James M. Sapp of Fort Myers, Florida; and Lalai Hamric, who also resided in Fort Myers. O’Hare and Atherton requested the appointment of a professional guardian, Harold A. Foy.

Hamric filed a response to the petition admitting that the Ward was totally incapacitated. Hamric also contended in her response that she should be appointed as guardian of the Ward. In support of her position, Hamric noted that she was already handling the medical needs and financial affairs of the Ward pursuant to a durable power of attorney executed by the Ward in 1996. In addition, Hamric pointed out that she was also acting as the trustee of the Ward’s existing trust and the trust established by the Ward’s deceased husband, James A. Sapp. Hamric alleged that the Ward’s only assets not held in trust were the contents of her condominium and her clothing. James M. Sapp also filed a response to O’Hare and Atherton’s petition, admitting that the Ward was totally incapacitated and requesting the appointment of Hamric as guardian.

The parties engaged in extensive discovery proceedings. The matter was ultimately tried before a general master. On January 10, 2002, the second day of trial, the parties reached a settlement agreement that was dictated into the record of the proceedings. The parties’ settlement agreement provided, in pertinent part, as follows:

(1) With certain provisions not relevant here, Hamric would be appointed as guardian of the person of the Ward.
(2) Northern Trust Bank or another mutually acceptable corporate or professional guardian would be appointed as guardian of the property of the Ward.
(3) The guardian of the property would send copies of the annual account-ings and periodic investment account statements to each of the Ward’s four children.
(4) Hamric would continue to serve as trustee of both the Ward’s trust and the James A. Sapp Trust, but she would enter into a custodial agreement with the guardian of the property whereby it would manage all of the Ward’s assets and pay her bills.
(5) The Ward’s trust would pay the sum of $25,000 to O’Hare and Atherton and $25,000 to Hamric toward their attorney’s fees and costs incurred for the litigation. Any additional fees and costs for the litigation would be the responsibility of the party who incurred them.
(6) The parties and the guardian of the property would execute releases necessary to effect “a complete global settlement.”

On February 6, 2002, the circuit court entered an order approving the settlement agreement.

With some modifications, the performance of the settlement agreement was ultimately completed. Hamric was appointed and qualified as guardian of the person of the Ward. Northern Trust Bank declined to serve as guardian of the property, and the parties agreed instead to the appointment of Harold A. Foy, who had originally been proposed for the position by O’Hare and Atherton. Northern Trust Bank did agree to serve as custodian of the Ward’s assets pursuant to a contract with Hamric, who continued to serve as trustee of the Ward’s trust. The final arrangements provided for the Bank to transfer money to Foy on a monthly basis upon court approval and on instructions from Hamric so that he could pay the Ward’s expenses.

The Ward died on November 23, 2003, during the pendency of these appeals.

CASE NO. 2D02-4010

The Award of Fees and Costs to Brinson

The settlement agreement that the parties reached on January 10, 2002, as announced to the general master by attorney Brinson, provided, in pertinent part, as follows:

The Petitioners[’] [O’Hare and Ather-ton’s] fees and costs will be paid by the trust for this litigation up to $25,000, beyond that that’s their responsibility. They agree the trust may pay Mrs. Hamrie’s fees and costs up to $25,000, beyond that it’s her responsibility. The trust will pay the examining committee fees and Mr. Lakeman’s fees. [Lake-man was the court-appointed attorney for the Ward.]
And I think also we agreed that the litigants plus the guardian will execute a wide variety of mutual releases so that this is a complete global settlement. I think what we are planning is that we would get a custodial agreement with the bank, which of course Ms. Reiman [counsel for O’Hare and Atherton] would review, and once we get everyone’s approval on it, present that to you with a comprehensive order approving all this and whatnot and making the appointments.

Pursuant to the court-approved settlement agreement, Brinson was paid the sum of $25,000 from the Ward’s funds toward Hamric’s fees and costs for the litigation.

For a variety of reasons not pertinent to our decision, the implementation of the settlement reached on January 10, 2002, proved to be more difficult and time consuming than the parties had anticipated. On June 6, 2002, Brinson filed a petition that acknowledged receipt of $25,000 in attorney’s fees and costs and requested an award of an additional $13,320.50 attorney’s fees and $459.56 costs for the period from January 11, 2002, through May 24, 2002. In his petition, Brinson alleged that he had rendered the services and incurred expenses on behalf of Hamric in her capacity as guardian of the person of the Ward.

At a hearing on Brinson’s petition, counsel for O’Hare and Atherton objected to an award of the fees and costs requested on the ground that the settlement agreement barred an additional award because “the fees that are being sought at this particular time are fees to consummate the settlement agreement and come within exactly what it was that we settled for.” Brinson responded: “Our position and contention is that the settlement agreement provision for fees provided for fees for handling the litigation through settlement and that subsequent to the settlement began the process of handling the guardianship and putting everything that we had agreed to in place, and that it’s not covered.” Brinson also argued that he was entitled to the requested fees and costs because his services were rendered on behalf of Hamric in her capacity as guardian of the person of the Ward and were beneficial to the Ward.

The circuit court entered an order that awarded Brinson all of the fees and costs he requested. On appeal, O’Hare and Atherton present three arguments. Because we agree that the settlement agreement barred the award of additional fees and costs to Brinson, we need not address O’Hare and Atherton’s two other arguments.

The Standard of Review

Settlement agreements are governed by contract law. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985); Schlosser v. Perez, 832 So.2d 179, 182 (Fla. 2d DCA 2002). Therefore, we apply a de novo standard of review. See Vollmer v. Key Fin. Corp., 810 So.2d 966, 968 (Fla. 2d DCA 2002); Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001). “It is well-settled that when entitlement to attorney’s fees is based on the interpretation of contractual provisions as a pure matter of law, an appellate court will undertake a de novo review to determine the appropriate construction of the contract.” Stevens v. Zakrzewski, 826 So.2d 520, 521 (Fla. 4th DCA 2002) (citing Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000)).

Analysis

An attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered and reimbursement on behalf of the ward. § 744.108(1), Fla. Stat. (2002); Cilley v. First Nat’l Bank of Mount Dora, 396 So.2d 808, 809 (Fla. 5th DCA 1981). In this case, however, the parties agreed to limit the attorney’s fees and costs payable from the assets of the Ward “for this litigation” to the sum of $25,000 per side (the limiting agreement). Counsel were not precluded from charging more than $25,000, but any fees and costs exceeding that amount were to be payable by the party who incurred the fees, not from the Ward’s funds.

Brinson argued that the limiting agreement applied only to fees and costs incurred through January 10, 2002 — the date the settlement agreement was reached. According to Hamric and Brinson, the limiting agreement did not apply to fees and costs incurred subsequent to January 10, 2002, for services to perform and conclude the settlement agreement. This controversy requires us to interpret the meaning of the phrase “for this litigation” as used in the parties’ settlement agreement.

A contract is ordinarily to be construed as a matter of law by giving effect to the intent of the parties as expressed by the terms of the agreement. Berry v. Berry, 550 So.2d 1125, 1126 (Fla. 3d DCA 1989). Words and phrases should be given their natural meaning or a meaning most commonly understood in relation to the subject matter and circumstances. Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514, 518 (Fla. 2d DCA 1967).

To “litigate” is “to make the subject of a lawsuit: contest in law: prosecute or defend by pleadings, evidence, and debate in a court.” “Litigation,” naturally, is “the act or process of litigating.” Webster’s Third New International Dictionary of the English Language Unabridged 1322 (Merriam-Webster, Ine.1986). When the participants in any litigated matter reach a settlement, there are invariably matters to be done in order to perform the settlement agreement and conclude the litigation. In a simple case, the items necessary to conclude the settlement may be limited to the delivery of funds, the exchange of releases, and the preparation and filing of a stipulation for dismissal. In a complicated matter, the legal work necessary to implement and complete a settlement may be extensive. Nevertheless, regardless of the complexity of the case, the legal work necessary to conclude a litigated matter is an integral part of the litigation process. Indeed, careful preparation of the appropriate documents is critical to concluding the litigation and ensuring a durable settlement in accordance with the intent of the parties. See generally Michael A. Kamen, Settlement, in Florida Civil Practice Before Trial § 4.22 (Fla. Bar CLE 6th ed.2000); Michael G. Tanner, Releases— Make Sure They Bring Finality, 72 Fla. B.J. 51 (Dec.1998). For this reason, we conclude that the parties intended in their settlement agreement to apply the limiting agreement not only to fees and costs incurred in the active contest of the matter, but also to fees and costs incurred in the performance and completion of the settlement agreement. Two additional reasons support our conclusion.

First, in the recitation by the attorneys of the settlement agreement into the record, the statement of the limiting agreement was immediately followed by a discussion that contemplated the preparation of “a wide variety of mutual releases” for a “complete global settlement,” “a custodial agreement with the bank,” and “a comprehensive order approving all this.” Thus the extensive nature of the legal work to be performed to conclude the litigation was apparent to all. Nevertheless, neither attorney suggested that the limiting agreement did not apply to the legal work which remained to be done to conclude the matter. If the parties had intended that the limiting agreement did not apply to this additional work, one would expect that such an exception to the limiting agreement would have been expressly stated. The omission to note such an exception strongly suggests that none was intended. In addition, the limiting agreement was not linked to services rendered and costs incurred through the date of the announcement of the settlement.

Second, O’Hare and Atherton agreed to the appointment of Hamric as guardian of the person of the Ward and dropped various claims against her as part of the agreed exchange for the limiting agreement. The limitation on fees and costs was mutual. The settlement agreement contemplated that both sides would be treated equally with regard to the payment of fees and costs, and any further depletion of the Ward’s funds for fees and costs related to the litigation would end. Although counsel for O’Hare and Atherton also performed legal services in connection with the implementation of the settlement agreement, their attorney has not petitioned for additional fees and costs. Thus the circuit court’s order for the payment of additional fees and costs to Brinson treats the parties unequally and deprives O’Hare and Atherton of part of the benefit of their bargain.

Hamric advances two additional arguments in support of the award of fees and costs to Brinson. First, she contends that the award was proper because it compensated Brinson for services rendered and expenses incurred on behalf of Hamric in her capacity as guardian of the person of the Ward. Nevertheless, a review of Brin-son’s detailed time records discloses that all of the services rendered and costs incurred related not to Hamric’s duties as guardian of the person of the Ward but, rather, to the assets and property of the Ward. The attorney for a guardian is not entitled to compensation for services rendered outside the scope of the guardian’s authority to act for the ward. See In re Guardianship of Jansen, 405 So.2d 1074, 1077 (Fla. 2d DCA 1981); Morgan v. (Guardianship of Turgeon, 755 So.2d 161, 162 (Fla. 4th DCA 2000); Panno v. Perry (In re Guardianship of Schoyahn), 687 So.2d 81, 82 (Fla. 4th DCA 1994).

Hamric also argues that Brinson was entitled to compensation without regard to the scope of Hamric’s authority as guardian because his services were of benefit to the Ward, citing Metzger v. First National Bank of Clearwater, 585 So.2d 372, 373 (Fla. 2d DCA 1991). This argument misses the mark. Although Brinson’s services may have been beneficial to the Ward, the limiting agreement precluded an award of fees and costs to Brinson from the Ward’s funds in excess of $25,000 for services and expenses related to the litigation. The fees and costs for which Brinson sought additional compensation were performed and incurred in connection with the litigation. Therefore, pursuant to the limiting agreement, they were not compensable from the Ward’s funds.

CASE NO. 2D03-1404

The Award of Fees and Costs to Hamric

Pursuant to the parties’ settlement agreement, Hamric was appointed guardian of the person of her mother. In October 2002, Hamric filed a petition for fees and costs for the period from February 26, 2002, through September 28, 2002. In her petition, Hamric requested $2818.75 in fees (51.25 hours at $55 per hour) and $428.15 reimbursement for mileage expense (1173 miles at $.365 per mile). O’Hare and Ath-erton objected to Hamric’s petition on three grounds: (1) Hamric had agreed not to charge for her services as guardian of the person; (2) the records of the services for which Hamric claimed compensation were inadequate; and (3) because Hamric was the daughter of the Ward, she was not entitled to compensation as guardian of the person of the Ward “for merely doing what any daughter does.” After a hearing, the circuit court entered an order awarding Hamric all of the fees she requested in the amount of $2818.75 and substantially all of the mileage expense in the amount of $413.55.

The Standard of Review

The amount of guardian’s fees to be' awarded as compensation for services rendered is in the discretion of the trial court, and its determination will not be disturbed unless there is a lack of competent, substantial evidence to support the award. Gamse v. Touby, 382 So.2d 115, 116 (Fla. 3d DCA 1980). Nevertheless, in guardianship cases, as in other cases, discretionary acts are subject to the test of reasonableness, i.e., they must' be supported by logic and justification for the result and founded on substantial, competent evidence. Valentini v. State (In re Guardianship of Sitter), 779 So.2d 346, 348 (Fla. 2d DCA 2000).

The Applicable Law

A guardian is entitled to a reasonable fee for services rendered. § 744.108(1); Lucom v. Atl. Nat’l Bank of W. Palm Beach, 97 So.2d 478, 481 (Fla.1957); Schacter v. Guardianship of Schacter, 756 So.2d 1075, 1076 (Fla. 4th DCA 2000); Ash v. Coconut Grove Bank, 448 So.2d 605, 607-08 (Fla. 3d DCA 1984). The criteria to be considered by the court in determining an award of fees to a guardian are set forth in section 744.108(2). Pursuant to section 744.108(5), a petition for guardian’s fees and expenses “must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.” The requirement of section 744.108(5) is mandatory.' An order for guardian’s fees based upon a petition that fails to include an itemized description of the services for which compensation is requested will be reversed. See Anderson v. Sun Trust Bank/North, 679 So.2d 307, 308-09 (Fla. 5th DCA 1996).

A guardian is not entitled to compensation for sendees rendered outside the scope of his or her appointment. In re Guardianship of Jansen, 405 So.2d at 1077; Poling v. City Bank & Trust Co. of St. Petersburg, 189 So.2d 176, 182-83 (Fla. 2d DCA 1966). This principle has been applied in cases involving guardians who have been in a close familial relationship with the Ward. Under such circumstances, the guardian of the person is not entitled to compensation for merely doing what any family member would do for their relative under the circumstances. Read v. Kenefick (In re Guardianship of Read), 555 So.2d 869, 870-71 (Fla. 2d DCA 1989). Nevertheless, a guardian in a close familial relationship with the ward is entitled to be compensated for reasonable and necessary services within the scope of his or her duties as guardian. Neher v. Neher (In re Guardianship of Neher), 659 So.2d 1294, 1297 (Fla. 2d DCA 1995); Read, 555 So.2d at 870-71; Osterman v. Copeland (In re Guardianship of Osterman), 515 So.2d 1066, 1067 (Fla. 4th DCA 1987).

Analysis

The first objection raised by O’Hare and Atherton to Hamric’s fee petition was that she had agreed not to seek fees if appointed. In support of their objection, O’Hare and Atherton relied on statements made by Hamric in response to their petition seeking the appointment of a professional guardian for their mother:

PETITIONER [Hamric] is well able to perform the services of Guardian for the proposed Ward, Sara H. Sapp, she has been performing all such functions already in her dual capacity of Trustee and Attorney in Fact. It would constitute an undue expense chargeable to the few remaining assets of Sara H. Sapp to retain a professional guardian, further, Sara H. Sapp would be subject to undue stress were she to be placed in the care of a complete stranger taking the place of her daughter who has been providing abundant and appropriate care for her for the past several years.

(Emphasis supplied.) O’Hare and Ather-ton assert that they relied on this representation in entering into the settlement agreement that provided for the appointment of Hamric as guardian of the person of their mother. In addition, O’Hare and Atherton observe that persons appointed to serve as guardian for a family member “rarely” seek compensation for their services.

An arrangement for a guardian to serve without compensation is inconsistent with our guardianship law. See § 744.108(1); Lucom, 97 So.2d at 481; Schacter, 756 So.2d at 1076; Ash, 448 So.2d at 607-08. Therefore, such an arrangement would require a specific agreement by the guardian not to charge for services in order to be enforceable. We interpret the statement relied upon by O’Hare and Atherton as an argument made by Hamric in support of her appointment as guardian and not as a promise or representation that she would not seek compensation for her services if appointed. The parties’ settlement agreement provided for the appointment of Hamric as guardian of the person of the Ward but did not include a promise by Hamric to serve without compensation. The parties made express provisions in the settlement agreement for limits on fees for the attorneys. If the parties intended that Hamric was to serve as guardian without compensation, one would expect that they would have included such a term in what they characterized as “a global settlement agreement.” The omission of a reference to any limits on compensation for Hamric in the settlement agreement persuades us that Hamric did not agree to serve without compensation.

We do agree with O’Hare and Atherton’s second argument that Hamric’s records were insufficient to support her fee petition. Hamric’s records were nothing more than mileage logs doubling as time records and containing uninformative entries such as “nursing home,” “Health Park,” and “mother.” Such cryptic entries were completely inadequate to satisfy the requirement of section 744.108(5) that the guardian’s petition for fees and expenses “must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.” In response, Hamric does not dispute the inadequacy of her time records. She argues instead that her testimony at the contested hearing provided the necessary supplemental information detailing her services that cured any deficiency in her petition.

We conclude that the insufficiency of Hamric’s petition for fees and expenses could not be cured by supplemental information presented at a hearing. Section 744.108(5) provides that the guardian’s petition for fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered. This requirement is mandatory. The production of the requisite information at a hearing is not an acceptable substitute for the inclusion in the fee petition of the itemized description of the services performed as required by the statute. See Anderson, 679 So.2d at 308-09.

The strict enforcement of the mandate of section 744.108(5) will promote the efficient and inexpensive administration of guardianship estates. The inclusion of an itemized description of the services performed for the fees and expenses requested in guardianships will, in most instances, enable both the court and interested parties to determine without a hearing the compensability of the services performed and the reasonableness of the fees and costs requested. A contrary rule would encourage the filing of incomplete petitions and require the court and interested parties to schedule hearings that might otherwise be avoided in order to obtain the necessary information. This would result in the inefficient use of scarce judicial resources and increased expense to everyone concerned, including the estates of the wards.

Because Hamric’s petition failed to comply with section 744.108(5), the trial court’s order awarding her guardian’s fees and costs must be reversed. On remand, if Hamric applies again for fees, she must provide adequate documentation with her petition.

Because Hamric may reapply for fees and costs on remand, we address O’Hare and Atherton’s third argument that the circuit court’s order improperly compensated Hamric “for merely doing what any daughter does” and for services outside the scope of her duties as guardian of the person. The mileage logs attached to Hamric’s fee petition reflect that from March 2002 through September 2002, Hamric visited the Ward at the nursing home seven or eight times per month. At the hearing on the fee petition, Hamric testified that she did the Ward’s laundry, spoke with the Ward’s nurses, sat with the Ward, and attended quarterly care plan meetings. The circuit court ruled that Hamric was entitled to compensation for all of the time and expenses she had claimed with the minor exception of certain mileage expenses. The circuit court also ruled that Hamric, who had no training or experience as a professional guardian, would be compensated for her services at the rate of $55 per hour, the prevailing hourly rate for professional guardians in Lee County, Florida.

The leading case in Florida on the recovery of fees by a guardian who is in a close familial relationship with the ward is Read v. Kenefick (In re Guardianship of Read), 555 So.2d 869 (Fla. 2d DCA 1989). In the Read case, one of two co-guardians of the person and property of the ward challenged an order awarding guardian’s fees and costs to the other co-guardian. The hearing in the trial court was unreported, and the appellant failed to furnish a stipulated statement of facts as a substitute for a transcript. In its discussion of the appellant’s challenge to the fee award to the co-guardian, this court said:

Mr. Read [the appellant] contends that the time records indicated that Mrs. Kenefick [the appellee] requested compensation for time spent performing duties which one would normally undertake as a daughter. He argues that a guardian who is in a close familial relationship with the ward may not recover compensation for all time spent with a ward under the guise that it was necessary in connection with her duties as guardian. We agree that a daughter is not entitled to compensation as guardian of the person of her mother for merely doing what any daughter does and that a guardian should not be paid for services outside the scope of his duties as a guardian. In this case, however, Mrs. Kenefick not only presented time records to the court but also testified concerning the necessity and scope of the services she performed on behalf of her mother. Based upon the records and testimony, the court found that the services were reasonable and necessary and that the hourly rate requested for these services was reasonable.

Id. at 870-71 (citations omitted). This court found the trial court’s award of guardian’s fees to the daughter of the ward to be “not erroneous on its face.” Id. at 871. Because the correctness of the trial court’s ruling depended not only on the daughter’s records but also upon the evidence presented at the hearing for which no transcript or acceptable substitute was available, this court affirmed the trial court’s award of fees and costs to the daughter.

The Read case was followed by Neher v. Neher (In re Guardianship of Neher), 659 So.2d 1294 (Fla. 2d DCA 1995). The Neh er case involved a mother who had been appointed as guardian for her daughter.The trial court refused to award the mother any compensation for her services as guardian. Finding that the mother performed some compensable services for the guardianship, this court said:

Sharon Neher [the mother] established a guardianship for her daughter, filed annual accountings, performed other services that were beyond the duties of a mother, and successfully thwarted an attempt to terminate the guardianship. Therefore, she should be compensated for some services.

Id. at 1297. This court reversed the trial court’s order and remanded for reconsideration of the guardianship fee issue. On remand, the circuit court was directed to “award a reasonable fee for the services properly performed.” Id.

Certain general principles may be derived from the Read and Neher cases. A guardian who is in a close familial relationship with the ward is entitled to compensation for the type of services performed on behalf of the ward for which a non-family member guardian would be entitled to compensation. However, a guardian who is in a close familial relationship with the ward is not entitled to be compensated for the performance of normal.family duties on behalf of the ward merely because of his or her status as guardian.

In order to properly consider O’Hare and Atherton’s argument, we must first survey the duties of a guardian of the person. The powers and duties of a guardian of the person include the exercise of the rights of the ward that have been delegated to the guardian. § 744.361(1). Depending upon the extent of the ward’s incapacity, those rights may include:

(1) At least in some instances, to apply for government benefits, section 744.3215(3)(c);
(2) To determine the ward’s residence, section 744.3215(3)(e);
(3) To consent to medical and mental health treatment on behalf of the ward, section 744.3215(3)(f); and
(4) To make decisions about the ward’s social environment or other social aspects of his or her life, section 744.3215(3)(g).

Pursuant to sections 744.362(1) and 744.363 and Florida Probate Rule 5.690(1), the guardian of the person must file with the court an initial guardianship report consisting of an initial guardianship plan within sixty days after the issuance of letters of guardianship. The guardian of the person is also responsible for filing with the court an annual guardianship report consisting of an annual guardianship plan. §§ 744.367(1), 744.3675; Fla. P.R. 5.695(a)(1). See generally Robert P. Scheb, Guardian of the Person: Duties, Responsibilities, and Liabilities, in Florida Guardianship Practice §§ 14.1-.31 (Fla. Bar CLE 4th ed.2002). The duties of a guardian of the person generally concern the assessment of the ward’s health and functioning, the development of a plan to promote the ward’s care and well-being, and the implementation of the plan by appropriate measures in the best interests of the ward.

If the ward does not reside with the guardian, the guardian of the person must visit the ward periodically. In many guardianship cases, as in this case, the ward resides in a care facility rather than in a private residence. The guardian must consult with the ward’s doctors, nurses, and the staff of the facility where the ward resides as may be appropriate. The guardian must also participate in care planning conferences for the ward and review pertinent records concerning the ward to ensure that the care plan is properly implemented.

Hamric’s fee petition sought compensation for an average of seven or eight visits per month to the Ward. O’Hare and Ather-ton’s challenge to the circuit court’s order requires a determination of the number of visits to the Ward per month that were properly compensable as part of Hamric’s duties as guardian of the person and how many were noncompensable because they were part of “merely doing what any daughter does.”

The circuit court’s order compensated Hamric for all of her visits to the Ward. Unfortunately, Hamric’s failure to include an itemized description of the services for which she sought compensation in her fee petition gave the circuit court little or no information concerning the extent to which her services may have been properly com-pensable. Nevertheless, we conclude that the circuit court’s order necessarily included compensation to Hamric for services outside the scope of her duties as guardian. We do not believe a professional guardian would need to visit a ward in a care facility seven or eight times per month in order to discharge his or her duties in the absence of a health emergency involving the ward or other special circumstances. On remand, the circuit court should establish the number of visits and other services that would reasonably be performed by a professional or other non-family member guardian in order to discharge a guardian’s duties to the Ward. To the extent that Hamric actually performed and properly documented such services, the circuit court should compensate her for those services at an appropriate rate of compensation. Hamric should not be awarded compensation for services that would not generally be undertaken by a professional or other nonfamily member guardian, i.e., “for merely doing what any daughter does.” Read, 555 So.2d at 870; see also Neher, 659 So.2d at 1297. In addition, the circuit court should not compensate Hamric for doing the Ward’s laundry. The performance of laundry services and similar tasks is outside the scope of Hamric’s duties as guardian of the person.

Finally, we agree with O’Hare and Ath-erton that the circuit court erred in compensating Hamric for a three-hour meeting held on April 9, 2002, at Northern Trust Bank concerning the settlement of the litigation between the parties. This service was outside the scope of Hamric’s duties as guardian of the person and was not properly compensable. See Poling, 189 So.2d at 181-83.

Conclusion

In case number 2D02-4010, we hold that attorney Brinson was not entitled to an award of additional attorney’s fees and costs. The circuit court’s order awarding such additional fees and costs to him is reversed. In case number 2D03-1404, we hold that the circuit court erred in awarding guardian’s fees and costs to Hamric based on a petition that did not comply with section 744.108(5) and in compensating Hamric for services outside the scope of her duties as guardian. The order awarding guardian’s fees and costs to Hamric is reversed, and the case is remanded to the circuit court for further proceedings.

Reversed and remanded for further proceedings consistent with this opinion.

NORTHCUTT and KELLY, JJ., concur.

      . We do not suggest that a party seeking fees and costs from a guardianship estate may not explain the petition and provide additional information at a hearing concerning the services and costs for which compensation is requested. On the contrary, such evidence will frequently be both necessary and appropriate. However, the presentation of such explanatory evidence at a hearing does not satisfy the mandate of section 744.108(5).

      . O’Hare and Atherton suggest, not unreasonably, that if Hamric is to be compensated at all, her compensation should have been set at a rate less than the rate for professional guardians. A professional guardian should be able to perform the duties of a guardian more efficiently than a family member. See generally Alison Barnes, The Virtues of Corporate and Professional Guardians, 31 Stetson L.Rev. 941, 954-58 (2002) (comparing the advantages and disadvantages of family guardians and professional guardians). The increased efficiency of a professional guardian should ordinarily command a higher rate of compensation than a guardian with little or no training or experience. Nevertheless, O'Hare and Atherton did not offer any evidence in the circuit court concerning what hourly rate for Hamric’s services would have been reasonable under the circumstances. Thus their assertion that the rate of compensation was excessive does not demonstrate reversible error.

      . The National Guardianship Association (NGA) has developed a set of standards of practice for guardians. These standards address in detail both the duties and the initial and ongoing responsibilities of a guardian of the person. National Guardianship Association, Standards of Practice 6-8 (NGA Standard 12 — Duties of the Guardian of the Person; NGA Standard 13 — Guardian of the Person: Initial and Ongoing Responsibilities) (2003), available at http://www.guardianship.org/pdFsofp.pdf.

      . NGA Standard 13 requires that "[t]he guardian shall visit the ward monthly.”


author: WHATLEY, Judge.

text:
    Reese W. WAUGH and George J. Othon, Appellants, v. Ralph J. PHILPOT, Dana L. Wever, and Fred T. Gritzenbach, individually and on behalf of others similarly situated, Appellees.
    No. 2D03-5102.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.
    Stephen A. Koch and Dale R. Sisco of Koch & Associates, P.A., Tampa, and David L. Hartsell and Tammy L. Adkins of McGuirewoods LLP, Chicago, and Jeffrey S. York of McGuirewoods LLP, Jacksonville, for Appellants.
    Jonathan L. Alpert of The Alpert Law Firm, Tampa, and Jennifer Beltz-McCam-ey of Beltz, Ruth, Magazine, Newman & Kohl, P.A., St. Petersburg, for Appellees.
   WHATLEY, Judge.

We reverse the nonfinal order denying the Appellants’ motion to dismiss for lack of personal jurisdiction because our de novo review of the record reveals that it fails to show a basis for the trial court’s exercise of long-arm jurisdiction over the Appellants, Reese Waugh and George Othon.

The Appellees, Ralph J. Philpot, Dana L. Wever, and Fred T. Gritzenbach, are individual debtors whose past-due debts were purchased by Capital Acquisitions and Management Company, Inc. (CAM-CO), an Illinois corporation engaged in the business of acquiring distressed, nonperforming consumer receivables and seeking to recover or collect on those receivables for its own behalf. In December 2002, the Appellees filed an amended class action complaint against CAMCO alleging that its collection efforts violated the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-.213, Florida Statutes (2002) (FDUTPA), as well as the Florida Commercial Collection Practices Act, sections 559.541-.548, Florida Statutes (2002) (FCCPA). The Appellees also alleged two counts for civil conspiracy against XYZ Venture Partners, LLC, the majority shareholder of CAMCO, and XYZ Venture’s three members/managers, Eric Wol-doff, Reese Waugh, and George Othon, who are also officers and/or employees of CAMCO. The Appellees alleged that Wol-doff, Waugh, Othon, and XYZ were involved in a conspiracy with CAMCO to violate the FDUTPA and the FCCPA. More specifically, the Appellees alleged that Woldoff, Waugh, and Othon met to discuss CAMCO’s collection business and activities in Florida; they either individually or through XYZ Venture directed CAMCO to engage in collection efforts in Florida; they and XYZ Venture met and agreed to collect debts barred by the Florida statute of limitations; and they either individually or through XYZ Venture directed CAMCO’s efforts to collect said barred Florida debts. All of these allegations were made “on information and belief.”

In response, Woldoff, Waugh, Othon, XYZ, and CAMCO filed a motion to dismiss which alleged, inter alia, that the trial court lacked personal jurisdiction over the Appellants, Waugh and Othon. Attached to the motion were the affidavits of Waugh, the executive vice president and chief operating officer of CAMCO, and Othon, the chairman of CAMCO, in which the Appellants asserted that they were residents of Illinois and had never resided in Florida; they have no personal involvement in the collection of accounts, including those of the Appellees; CAMCO’s principal place of business is in Illinois, but it registered with the State of Florida as a consumer collection agency in 2003; and in February 2002 they became members of XYZ, which owns 78% of CAMCO and was originally formed as a Florida limited liability company but changed its registration to the State of Delaware in December 2002. The Appellants further asserted that other than the previously described involvement with CAMCO and XYZ, they have never availed themselves of the privilege of conducting business or any other substantive activities in Florida, nor invoked the protection or benefits of Florida law; they do not have any regular or systematic business or personal interests or contacts with Florida; they do not and have never owned, leased, or maintained any property in Florida; they do not maintain bank accounts in Florida; they do not have a telephone listing or address in Florida; they do not maintain offices or places of business in Florida; and they do not have employees in Florida who act on their behalf.

Once a defendant challenges personal jurisdiction by filing an affidavit that is legally sufficient to challenge the jurisdictional allegations of the complaint, the burden shifts to the plaintiff to prove by affidavit the basis for long-arm jurisdiction over the defendant. Vencap, Inc. v. McDonald Sec. Corp., 827 So.2d 1061, 1062 (Fla. 2d DCA 2002). Here, the Appellants filed such legally sufficient affidavits, and the Appellees failed to file any sworn proof showing the basis for long-arm jurisdiction over them. Accordingly, the trial court was obligated to grant the Appellants’ motion to dismiss the Appellees’ amended complaint. Id. at 1063 (citing Tobacco Merchants Ass’n of U.S. v. Broin, 657 So.2d 939 (Fla. 3d DCA 1995)).

Reversed.

NORTHCUTT and STRINGER, JJ., concur.

      . Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002) (holding that standard of review of trial court's ruling on motion to dismiss for lack of jurisdiction is de novo).


text:
    Gene F. DURRANCE and Joyce Ann Durrance, Appellants, v. WINGATE CREEK ACQUISITION CORP., Mulberry Phosphates, Inc., and CRC Industries, Inc., Appellees.
    No. 2D00-4421.
    District Court of Appeal of Florida, Second District.
    April 2, 2004.
    Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach, for Appellants.
    No appearance for Wingate.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee Mulberry Phosphates.
    Charles W. Hall of Fowler, White, Gil-len, Boggs, Villareal and Banker, P.A., St. Petersburg, for Appellee CRC.
   WHATLEY, Judge.

Gene and Joyce Durrance appeal the dismissal of their suit for failure to prosecute. See Fla. R. Civ. P. 1.420(e). CRC Industries filed a confession of error, acknowledging that the trial court’s order was erroneously entered pursuant to Metropolitan Dade County v. Hall, 784 So.2d 1087 (Fla.2001), which decision was issued after the dismissal was entered in the present case. We therefore reverse the order dismissing the Durrances’ case and remand for further proceedings.

COVINGTON and VILLANTI, JJ., concur.

      . On December 19, 2001, this court ordered that the appeal proceed against all appellees except Mulberry Phosphates, Inc., as Mulberry filed a suggestion of bankruptcy.


text:
    BROADMOOR, L.L.C. v. ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY
    Nos. 2004-CC-0211, 2004-CC-0212.
    Supreme Court of Louisiana.
    Feb. 11, 2004.
    Gordon, Arata, McCollam, Duplantis & Eagan, Michael E. Botnick, Ewell, E. Ea-gan, Jr., Marcel Garsaud, Jr., Howard E. Sinor, Jr., New Orleans, Tina C. White; Phelps Dunbar, Michael D. Hunt, Baton Rouge, Harry A. Johnson, III, for applicant in No. 2004-CC-0211.
    Stone Pigman Walther Wittmann, Car-lelite M. Bertaut, Walter F. Wolf, III, Michael Quirk Walshe, Jr., Julie A. Richards, Phillip A. Wittmann, New Orleans; Herman, Herman, Katz & Cottar, Russ M. Herman, New Orleans; Marguerite K. Kingsmill, Mark S. Senter, Metairie; Harry T. Lemmon, Kenneth M. Carter, Robert J. Johnston, New Orleans, for respondent in No. 2004-CC-0211.
    Stone Pigman Walther Wittmann, Car-melite M. Bertaut, Walter F. Wolf, III, Michael Quirk Walshe, Jr., Julie A. Richards, Phillip A. Wittmann, New Orleans, for applicant in No. 2004-CC-0212.
    Gordon, Arata, McCollam, Duplantis & Eagan, Michael E. Botnick, Ewell E. Ea-gan, Jr., Howard E. Sinor, Jr., Tina C. White, Marcel Garsaud, Jr., New Orleans, Herman, Herman, Katz & Cottar, Russ M. Herman, New Orleans; Phelps Dunbar, Michael D. Hunt, Baton Rouge, H. Allston Johnson, III, Kingsmill Reiss, New Orleans Marguerit K. Kingsmill, Mark S. Senter, Metairie, Harry T. Lemmon, Kenneth M. Carter, Robert M. Johnston, New Orleans, for respondent in No. 2004-CC-0212.
   ORDER

In Re: W.G. YATES & SONS CONSTRUCTION CO., ET AL applying for Supervisory and/or Remedial Writs, No. 03-16247 on the docket of the Civil District Court for the Parish of Orleans, and No.2003-C-1996 on the docket of the Court of Appeal, Fourth Circuit, State of Louisiana.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.


text:
    In re Stevens Joseph WHITE.
    No. 2003-OB-3392.
    Supreme Court of Louisiana.
    March 9, 2004.
   In re White, Stevens Joseph; — Plaintiff; Applying for Petition to Transfer to Dis-

ability Inactive Status Office of Disciplinary Board, No. 03-DB-049.

Moot. See order in 2004-OB-324 and 325.