author: PER CURIAM. SHAW, Judge,

text:
    Ex parte David WOODARD. (In re State of Alabama v. David Woodard).
    CR-02-2177.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.

      Richard D. Jensen, Foley, for petitioner. William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, David Woodard, filed this petition for a writ of mandamus directing Judge Robert Earl Wilters to grant his motion to “redact” a portion of Woodard’s statement this Court has previously held was improperly admitted in Woodard’s first trial. Woodard was convicted of felony murder, and he appealed that conviction to this Court. We reversed Woodard’s conviction and ordered a new trial. Woodard v. State, 846 So.2d 1102 (Ala.Crim.App.2002). We held that the trial court erroneously admitted a portion of Woodard’s statement that referred to a prior criminal act — a killing in North Carolina — for which Woodard had never been charged. The statement, originally made orally, was reduced to a narrative writing by police officers. In preparation for Woodard’s second trial on the same charges, Woodard filed a motion in limine and a motion to “redact” his statement. He requested that the circuit court delete from his prior oral statement to police any reference to the killing in North Carolina. Judge Wilters held a hearing and denied that motion. Woodard then filed this mandamus petition. Woodard’s retrial was scheduled for October 6, 2003; however, we stayed all action in the circuit court pending the resolution of this mandamus petition.

Woodard argues in this mandamus petition that this Court in Woodard stated “emphatically” that the evidence of the prior killing was not probative, that it was highly prejudicial, and that it should not have been admitted into evidence at Woodard’s felony-murder trial. He asserts that the law already pronounced by a higher court supports the granting of his motion to “redact.”

The State argues in its response to this petition that mandamus cannot be used as a substitute for an appeal. It further argues:

“[Ajlthough the State failed to provide sufficient evidence under Rule 404(b) of the Alabama Rules of Evidence at Woodard’s first trial, it should not be foreclosed from presenting such evidence in the retrial. The State may be able to present a fact witness from North Carolina who gives testimony regarding Woodard’s first killing that establishes relevant evidence that makes such evidence admissible as an exception to the exclusionary rule. A granting of Woodards’s motions would preemptively cut off evidence that might be admissible.”

The State cites no caselaw in support of this argument.

To determine the validity of the issue presented in this case we must evaluate the substance of our opinion in Woodard. In Woodard’s first trial, over defense counsel’s objection, the State introduced the following statement Woodard made to a deputy sheriff, “ T killed a nigger one time and I can’t get the face out of my dreams.’ ” 846 So.2d at 1105. The trial court also denied Woodard’s repeated attempts to offer evidence that he had never been indicted or convicted for the killing and that the killing was committed in self-defense. Holding that the trial court erred in allowing this evidence to be admitted, we stated:

“The prior killing was not relevant to, or probative of, any issue in the case; it was completely collateral to the crime with which Woodard was charged. Therefore, we agree with Woodard that the portion of his statement referring to the North Carolina killing was inadmissible character evidence under Rule 404(b)[, Ala.R.Evid.].
“Furthermore, the statement itself was highly inflammatory and prejudicial. The jury was permitted to hear that Woodard had admitted to killing a man previously, but was not informed that Woodard had said the prior killing was in self-defense or that Woodard had never been indicted for the killing. This suggested to the jury that the prior killing was not merely a collateral ‘bad act,’ but was, in fact, a prior-crime.”

846 So.2d at 1108-09.

The question presented here is whether our holding in Woodard constitutes the “law of the case” and bars, in Woodard’s second trial, the introduction of evidence we held in Woodard, supra, was inadmissible.

In 1912, Justice Holmes in Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912), first cited the “law of the case” doctrine. This doctrine, he wrote, “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Id. at 444, 32 S.Ct. 739. We have also recognized this doctrine. In State v. Whirley, 530 So.2d 861 (Ala.Crim.App.1987), we stated:

“[T]he term ‘ “law of the case” ... designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case.’ 5 Am.Jur.2d Appeal and Error § 744 (1962).”

“ ‘[I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court.” O’Shea v. Mignone, 50 Conn.App. 577, 590, 719 A.2d 1176, 1183 (1998), cert. denied, 247 Conn. 941, 723 A.2d 319 (1998), quoting Dacey v. Connecticut Bar Ass’n, 184 Conn. 21, 23, 441 A.2d 49, 50 (1981). As the Florida Supreme Court so aptly stated in State v. Owen, 696 So.2d 715 (Fla.1997):

“Generally, under the doctrine of the law of the case, ‘all questions of law which have been decided by the highest appellate court become the law of the case which must be followed in subsequent proceedings, both in the lower and appellate courts.’ Brunner Enters., Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla.1984). However, the doctrine is not an absolute mandate, but rather a self-imposed restraint that courts abide by to promote finality and efficiency in the judicial process and prevent relitigation of the same issue in a case.”

696 So.2d at 720.

In Hull v. State, 607 So.2d 369 (Ala.Crim.App.1992), this Court considered whether identification evidence we had held was erroneously admitted at Hull’s first trial was admissible at Hull’s retrial. Finding that the State had one opportunity to meet its burden of proving that the identification was independently reliable and that the State failed to meet that burden, we held that the Double Jeopardy Clause barred the State from offering the identification evidence at the retrial. Quoting extensively from the Supreme Court’s opinion in Ex parte Hergott, 588 So.2d 911 (Ala.1991), we stated:

“The most significant portion of Ex parte Hergott, however, is the ‘decision regarding] how to dispose of the case.’ 588 So.2d at 915. Citing Rule 11(A)(2), Fed.R.Crim.P. (authorizing a conditional guilty plea reserving the right to appeal any adverse determination of any specified pretrial motion), for the proposition that Hergott would be allowed to withdraw his guilty plea, and Lockhart v. Nelson, [488 U.S. 33 (1988)], for the proposition that the State would be entitled to retry Hergott, our Supreme Court held that the State would not be allowed to use the fruits of the warrant-less search against Hergott upon retrial:
“ ‘[T]he State failed to produce sufficient evidence in opposition to the motion to suppress to overcome the presumption of unreasonableness that attached to the warrantless search of Hergott’s property. Therefore, the fruits of the search should not have been admitted. Hergott is allowed to withdraw his guilty plea and the State may proceed to trial. However, the evidence seized incident to the war-rantless search of his property may not be used against him, because the State, when presented with the opportunity to establish its case against him, failed to do so, and under the Double Jeopardy Clause, the State does not get a second change.’
“Ex parte Hergott, 588 So.2d at 916 (emphasis added [in Hull]). Compare Reimnitz v. State’s Attorney of Cook County, 761 F.2d 405, 411 (7th Cir.1985) (wherein the court assumed that an appellate court determination of a suppression issue has double jeopardy implications on retrial); United States v. McKim, 509 F.2d 769, 775-76 (5th Cir.1975) (government estopped from asserting, in trial of accused for escape from jail in which he was incarcerated following arrest for possession of marijuana, that arrest was lawful, where lawfulness of arrest had already been litigated between same parties and decided in accused’s favor on direct appeal of marijuana conviction); State v. Therrien, 110 N.M. 261, 265, 794 P.2d 735, 739 (App.1990) (wherein the court assumed that, on retrial after reversal for insufficient search warrant affidavit, fruits of search were inadmissible); State v. Henderson, 109 N.M. 655, 664, 789 P.2d 603, 612 (1990)(when State failed to establish proof of statutory aggravating circumstance, double jeopardy clause barred State from ‘attempting to prove on remand that independent facts exist which support’ the aggravating circumstance); State v. Post, 109 N.M. at 181—82, 783 P.2d at 491-92 (when conviction reversed for admission of confession in violation of Edwards v. Arizona, [451 U.S. 477 (1981),] confession was inadmissible on retrial and prosecution must introduce other evidence of guilt. ‘Whether the state can replace [the confession] with other evidence is not to be decided on this appeal’).
“We find ho discernible difference between the present case and Ex parte Hergott. In both cases, the State had a well-established burden of proof with regard to the admissibility of certain evidence necessary to establish its case. In both cases the State failed to meet that burden of proof. Because Ms. Ryan’s in-court identification was not shown to be independently reliable at the first trial, it should have been suppressed. Under the holding in Ex parte Hergott, the State should not have been given a ‘second chance’ to muster the necessary proof, and Ryan’s identification testimony should not have been admitted at the second trial.”

607 So.2d at 376-77 (footnote omitted).

• The Alabama Supreme Court’s holding in Lindley v. State, 728 So.2d 1153 (Ala.1998), also supports excluding this evidence. Citing with approval the holdings in Hergott and Hull, the Alabama Supreme Court stated, “On remand, the State cannot premise a second prosecution of Lindley on the same evidence that on this appeal has been held inadmissible (Scott’s prior inconsistent statement), but must offer additional evidence of guilt.” 728 So.2d at 1159.

Here, the burden was on the State in Woodard’s first trial to prove that the prior collateral criminal act fell within any recognized exception to the general exclusionary rule. See Rule 404(a), Ala.R.Evid. The State failed to meet that burden, and, according to established caselaw, the State does not have a second opportunity to relitigate this issue.

The issue here is governed by the law-of-the-case doctrine. The lower court is bound to comply with the dictates of our holding in Woodard. We agree with the eloquent words of the Superior Court of Pennsylvania:

“ ‘A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal.... Under any other rule, litigation would never cease, and finality and respect for orderly process of law would be overcome by chaos and contempt.’ ”

Hutchison v. Luddy, 763 A.2d 826, 835 (Pa.Super.2000), appeal denied, 567 Pa. 743, 788 A.2d 377 (2001) (quoting Haefele v. Davis, 380 Pa. 94, 98, 110 A.2d 233, 235 (1955)).

Moreover, mandamus is the proper means by which to consider whether a lower court has complied with a higher court directive. As the Alabama Supreme Court stated in Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988):

“We have repeatedly held that mandamus is not a substitute for appeal. Ross v. Luton, 456 So.2d 249 (Ala.1984). We have also held, however, that a petition to this Court for a writ of mandamus constitutes a proper method for reviewing the question of whether a trial judge, after remand, has complied with our mandate. Town of Daphne v. City of Fairhope, 284 Ala. 556, 226 So.2d 383 (1969); Ex parte Utility Service Corp. of Huntsville, 435 So.2d 1259 (Ala.1983). In fact, this Court, on at least two occasions, has granted writs of mandamus to compel a trial judge to enter an order in conformity with a prior decision of this Court. Ex parte Utility Service Corp. of Huntsville; Ex parte Jim Walter Corp., 283 Ala. 295, 216 So.2d 183 (1968). In granting the writ, this court, in Ex parte Utility Service Corp. of Huntsville, stated:
“ ‘When this Court has been presented with a petition for writ of mandamus when the trial court has refused to enter an order consistent with a prior order of this court, this court has granted the writ....’

435 So.2d at 1260.

“In the case at hand, because the petition for a writ of mandamus requires us to determine whether Judge Pearson has complied with the mandate of our prior decision, mandamus is a proper remedy.”

523 So.2d at 1068-69.

This petition is due to be, and is hereby, granted. The trial court is directed to delete that portion of Woodard’s statement that refers to his participation in a prior killing in North Carolina as to which no indictment issued.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, P.J., and COBB and WISE, JJ., concur.

SHAW, J., dissents, with opinion, which BASCHAB, J„ joins.

SHAW, Judge,

dissenting.

In Woodard v. State, 846 So.2d 1102 (Ala.Crim.App.2002), this Court unanimously held that “none of the exceptions to the exclusionary rule applies” to the evidence Woodard alleged had been improperly admitted. 846 So.2d at 1107. This Court also held that the improper admission of Woodard’s statement was not harmless. We stated that “the prejudicial effect of Woodard’s statement substantially outweighed any conceivable probative value.” 846 So.2d at 1109. Although I agree with the majority that “[t]he lower court is bound to comply with the dictates of our holding in Woodard,” 883 So.2d at 260, I believe the majority’s issuance of a writ of mandamus is nonetheless premature and unnecessarily interjects this Court into the trial court’s discretionary handling of a pretrial motion to exclude evidence. The filings before this Court do not indicate that the State has affirmatively stated that the statement will be offered under Rule 404(b), Ala. R.Crim. P., at the second trial and they do not indicate that the trial court has affirmatively stated that it will admit the statement if it is in fact offered. I am not unsympathetic to the majority’s unstated desire to avoid the expense and delay that would result if a third trial is rendered necessary by the State’s insistence on introducing, and the trial court’s willingness to admit, Woodard’s statement. However, the fact remains that this Court is governed by the standards that are applicable to a mandamus petition. I do not believe that the trial court was under an imperative duty to grant Woodard’s motion to redact, which, it seems, is nothing more than a restyled motion in limine, or that Woodard has a clear legal right to have the trial court do so. See Ex parte Eubank, 871 So.2d 862 (Ala.Crim.App.2003) (issuance of a writ of mandamus requires 1) a clear legal right in the petitioner to the relief sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) no adequate remedy at law; and 4) the properly invoked jurisdiction of the reviewing court); see also Nash v. Cosby, 574 So.2d 700, 701 (Ala.1990), wherein the Alabama Supreme Court, quoting C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1,15 (1981), stated:

“ ‘Most courts addressing the issue have concluded that a trial judge does not commit reversible error when he denies or overrules a motion in limine. Indeed, a trial judge’s decision to take the motion under advisement until the matter arises at trial or simply to refuse to entertain the motion at all is generally deemed not to constitute reversible error. Considerable discretion is vested in the trial court regarding these matters. Consequently, in order to show reversible error, the unsuccessful moving party has the nearly insurmountable task of proving that the trial judge abused his discretion. Filing a motion in limine has its advantages as discussed earlier in this article, but the motion is unlikely to be valuable as grounds for reversal on appeal.’ ”

Because any reviewable error will occur only if, and when, the trial court admits Woodard’s statement at trial, see Moody v. State, [Ms. CR-96-0994, April 18, 2003] — So.2d - (Ala.Crim.App.2003), and Grimsley v. State, 678 So.2d 1197, 1208 (Ala.Crim.App.1996), and because Woodard has the right to then challenge that ruling on appeal, I respectfully dissent.

      . Woodard styled his motion in the circuit court as a motion to redact; however, Woodard made no written statement. Woodard gave an oral statement to the police, which was later reduced to a narrative by police officers, and Woodard seeks to delete the portion of that statement that referenced a prior killing in North Carolina.

      . It appears that Woodard filed two motions on the same day in the circuit court. One was styled a motion in limine and the other was styled a motion to redact. Both motions addressed the issue that is presented in this petition.

      . Cf. Callahan v. State, 767 So.2d 380 (Ala.Crim.App.1999), cert. denied, 767 So.2d 405 (Ala.2000) ("law of the case” doctrine does not apply to predicate for admittance of confession as the predicate is based on questions of fact); Hull v. State, supra, n. 5 (the law-of-the-case doctrine applies only to legal questions and not factual questions).

      . The majority’s reliance on Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988), is, in my view, misplaced. In that case, the Alabama Supreme Court issued a writ of mandamus to enforce its decision that, the Court held, constituted a final adjudication in regard to the issue of INA's liability for bad faith refusal to pay an insurance claim. The Supreme Court held that the writ should issue because there was nothing for the trial court to do on remand but to enter a judgment for INA on the bad faith claim. In other words, the trial court had no discretion to reopen the pleadings. In the present case, the trial court, at least at this juncture, has, for reasons that are not clear (this Court has not been provided with a transcript of the pretrial hearing that was held on Woodard's motion), merely made a discretionary ruling on a pretrial motion to exclude evidence at the retrial. I see a material distinction between these two cases.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Edward BISHOP. (In re City of Tuscaloosa v. Edward Perry Bishop).
    CR-02-2295.
    Court of Criminal Appeals of Alabama.
    Dec. 12, 2003.

      Donnis Cowart, Tuscaloosa, for petitioner.
    William H. Pryor, Jr., atty. gen., Beth Slate Poe, asst. atty. gen., and Glenda Gamble, assoc, city atty., for respondent.
   PER CURIAM.

Edward Bishop filed this petition for a writ of mandamus directing Judge Charles R. Malone to reinstate the “not guilty” verdict returned by the jury in this case.

The City of Tuscaloosa (“the City”) charged Bishop with driving under the influence of alcohol. On August 24, 2003, his trial began in the circuit court. During a break in the jury deliberations Bishop was seen talking with one of the jurors in his case. The trial court found Bishop in contempt of court and stated that it would set aside the verdict if the jury returned a “not guilty” verdict. The jury returned a verdict of “not guilty.” The trial court then set aside the verdict and ordered that Bishop be retried on the same charges. Bishop filed a motion to reconsider; the trial court has not yet ruled on that motion. Bishop argues that retrying him on the same charge violates double jeopardy principles. (His retrial has been scheduled for February 23, 2004.) This petition followed.

The Alabama Supreme Court in Ex parte Ziglar, 669 So.2d 133 (Ala.1995), recognized that mandamus is the appropriate vehicle to seek redress of a circuit court’s ruling on an allegation óf a double-jeopardy violation. The Ziglar Court stated:

“We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial judge’s erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. See Rule 21(e), Ala. R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651 (1977) ], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial.”

669 So.2d at 135. See also Ex parte Spears, 621 So.2d 1255 (Ala.1993). This case is correctly before this Court by way of a mandamus petition.

Bishop argues that once the jury returned a not-guilty verdict, his further prosecution for the same offense was barred by the Double Jeopardy Clause. He further argues that the trial court, to support its order for a new trial, would have to meet the requirements for granting a motion for a mistrial and that the facts of this case do not constitute the manifest necessity that is necessary to warrant the trial court’s granting a motion for a mistrial.

The City argues that this petition is premature because Judge Malone has not disposed of Bishop’s motion to reconsider its order setting aside the jury’s verdict. It further argues that jeopardy does not attach when a mistrial is granted because of a manifest necessity. The City contends that the fact that one of the jurors had a conversation with Bishop before deliberations constitutes a manifest necessity justifying a new trial.

The City argues that this mandamus petition is premature because Bishop still has a remedy — the trial court may grant his motion for reconsideration. Here, the trial court set aside the jury’s verdict on August 26, 2003. According to established precedent, a trial court retains jurisdiction to modify a ruling for 30 days. See Moore v. State, 814 So.2d 308 (Ala.Crim.App.2001). This is consistent with Rule 24.4, Ala.R.Crim.P., which provides that a motion for a new trial may be filed within 30 days from the date of sentencing. The motion to reconsider was filed on September 22, 2003 — within the 30-day period. Section 12-22-133, Ala.Code 1975, provides that a trial court retains jurisdiction to dispose of a timely filed motion for a new trial. Rule 24.4, Ala.R.Crim.P., further provides that a posttrial motion for a new trial and a motion in arrest of judgment are deemed denied by operation of law if no ruling is entered on the motion within 60 days from the date of sentencing. However, we have held that a motion to reconsider does not fall within the category of motions recognized in Rule 24.4, Ala. R-Crim-P. See Martinez v. State, 602 So.2d 504 (Ala.Crim.App.1992). We can find no case that holds that a timely filed motion to reconsider, filed at the end of a criminal case, extends the jurisdiction of the lower court beyond 30 days. Judge Malone had jurisdiction to consider the motion to reconsider, but that jurisdiction ended 30 days from August 26, 2003 — the date of the ruling that is the subject of this petition. Therefore, this petition is not premature.

The United States Supreme Court has long recognized the basic legal premise that once a jury returns a “not guilty” verdict all criminal proceedings against the defendant are at an end. See Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the United States Supreme Court stated:

“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded:
“ ‘... the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offense.’
“Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at 169:
“ ‘The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.’
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
“In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offense.’ United States v. Ball, 163 U.S. 662, 671 [(1896)]. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U.S. 331, 344-345 [(1955)]. Cf. Kepner v. United States, 195 U.S. 100 [(1904)]; United States v. Sanges, 144 U.S. 310 [(1892)].”

355 U.S. at 187-88, 78 S.Ct. 221 (footnotes omitted).

It is understandable that Judge Malone was distressed that one of the jurors had had contact with Bishop during the trial; however, at the time this misconduct was brought to his attention Judge Malone had two options. According to § 12-16-232, Ala.Code 1975, after obtaining the consent of all of the parties, Judge Malone could have discharged this juror and continued with the 11 remaining jurors. Judge Malone also could have declared a mistrial under § 12-16-233, Ala.Code 1975. That section provides:

“The court or presiding judge in all cases of jury trial may discharge the jury without giving a verdict, with the consent of all parties to the trial or without the consent of the parties, when, in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated. In all cases in which the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial, and no person shall gain any advantage by reason of such discharge of the jury.”

However, Judge Malone allowed the jurors to continue to deliberate and the jury returned an unanimous verdict of not guilty. “Because the jury had reached an unanimous decision on that charge, no ‘manifest necessity’ existed for the trial judge to declare a mistrial on the charge.” Ex parte Tribble, 783 So.2d 69, 73 (Ala.2000).

A jury has acquitted Bishop of driving under the influence of alcohol. All criminal proceedings against him are concluded. The Double Jeopardy Clause clearly forbids Bishop’s retrial on these same charges.

Accordingly, this petition is due to be, and is hereby, granted. Judge Malone is directed to reinstate the jury’s not-guilty verdict and to enter a judgment acquitting Bishop of the charged offense.

PETITION GRANTED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . We note that in a civil context motions to reconsider are considered posttrial motions and are deemed denied by operation of law if no ruling is made within 90 days of the date of the filing of the motion. See Rule 59, Ala.R.Civ.P.

      . Under Alabama law, a trial court has the authority to set aside a "guilty” verdict on the basis that the evidence is insufficient to support the verdict. See Rule 20.3, Ala. R.Crim.P. The trial court may also grant a motion for a new trial. See Rule 24.4, Ala. R.Crim.P.


text:
    Ex parte Johnny HOLLEY. (In re State of Alabama v. Johnny Holley).
    CR-02-2286.
    Court of Criminal Appeals of Alabama.
    Dec. 12, 2003.

      Johnny Holley, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for respondent.
   PER CURIAM.

Johnny Holley filed this petition for a writ of mandamus directing Judge Tracy S. McCooey to vacate her September 15, 2003, order dismissing his petition for a writ of certiorari and directing the Department of Corrections (“DOC”) to withhold 50% of all moneys deposited to his inmate account until the $149.00 fee for filing the petition in the circuit court was collected and to allow him to proceed in forma pau-peris.

In July 2003, Holley filed a petition for a writ of certiorari in the Montgomery County Circuit Court attacking the actions of the Alabama Board of Pardons and Paroles. The certiorari petition was also accompanied by application to proceed in forma pauperis. Judge McCooey denied Holley’s in forma pauperis request and then issued an order addressing the merits of and dismissing the certiorari petition. The order also directed DOC to withhold 50% of all moneys deposited to Holley’s inmate account until the filing fee was satisfied. This petition for a writ of mandamus followed.

Holley argues that Judge McCooey should set aside her order insofar as it orders DOC to withhold 50% of all moneys deposited to his inmate account because he is indigent. Holley also argues that we should grant this mandamus petition because, he argues, Judge McCooey had no jurisdiction to issue the order.

Initially, we note that this case is correctly before this Court by way of a mandamus petition. Judge McCooey’s order was void because she had no subject-matter jurisdiction of the case.

“ ‘[AJbsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a postconviction petition.’ Carpenter v. State, 782 So.2d 848, 849 (Ala.Crim.App.2000) (citing Goldsmith v. State, 709 So.2d 1352, 1352-53 (Ala.Crim.App.1997)).”

Ex parte McWilliams, 812 So.2d 318, 322 (Ala.2001). Holley’s only remedy is to file a mandamus petition. Holley could not appeal the ruling entered by Judge McCooey because that ruling was “void,” and a void judgment will not support an appeal. See Underwood v. State, 439 So.2d 125 (Ala.1983); Hamilton v. State, 828 So.2d 957 (Ala.Crim.App.2002); Carpenter v. State, 782 So.2d 848 (Ala.Crim.App.2000).

The State argues that the McWilliams holding does not apply in this case because Holley filed a petition for a writ of certio-rari in the circuit court, not a postconviction petition as was the case in McWil-liams.

Prior caselaw, however, does not support the State’s argument. This Court in Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), dismissed the appeal because the trial court never ruled on Goldsmith’s in forma pauperis request. Goldsmith had filed a petition for a writ of certiorari in the circuit court challenging the actions of the Alabama Board of Pardons and Paroles. The circuit court addressed the merits of the petition and denied relief. We dismissed the appeal, stating that the certiorari petition was never properly before the trial court because the trial court had not ruled on the in forma pauperis application. The filing-fee requirement applies to a petition for a writ of certiorari filed in the circuit court.

Moreover, Judge McCooey had no statutory authority to deny the affidavit of substantial hardship and then assess a filing fee at the end of the proceedings. Section 12-19-70, Ala.Code 1975, specifically provides:

“(a) There shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court or in district court.
“(b) The docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship. A verified statement of substantial hardship, signed by the plaintiff and approved by the court, shall be filed with the clerk of court.”

(Emphasis added.) Judge McCooey exceeded the authority granted to her by § 12-19-70, Ala.Code 1975.

However, we agree with Judge McCooey that Holley is not indigent. Holley’s affidavit of substantial hardship contains a summary of deposits to his inmate account for the last 12 months. The summary shows monthly balances as high as $185. The Alabama Rules of Criminal Procedure define “indigent” as “a person who is financially unable to pay for his or her defense.” Rule 6.3(a), Ala.R.Crim.P. We cannot say that Judge McCooey abused her discretion in finding that Holley fails to meet this definition.

For the foregoing reasons, this petition for a writ of mandamus is due to be, and is hereby, granted to the extent that Judge McCooey is directed to set aside her September 15, 2003, order disposing of the certiorari petition and directing DOC to withhold moneys from Holley’s inmate account. All other relief requested in this petition is hereby denied.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.,

      . It is unclear from the materials before this Court what those "actions” are.

      . The Alabama Supreme Court has stated the following concerning § 12-19-70(a):
      "The use of the term 'shall in this provision [§ 12-19-70(a)] makes the payment of the filing fee mandatory. See Prince v. Hunter, 388 So.2d 546, 547 (Ala.1980). It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing. No doubt the purpose behind the passage of this provision was to discourage the filing of frivolous suits and to insure that the clerks of the circuit courts do not become 'credit men.’ Cf. Turkett v. United States, 76 F.Supp. 769 (N.D.N.Y.1948) (holding that payment of the filing fee is a prerequisite to filing an action under Rule 3, Fed.R.Civ.P., which is identical to our Rule 3, and 28 U.S.C.A., § 549 (now 28 U.S.C.A., § 1914), which provides that the party instituting a civil action must pay a filing fee, and commenting, 'Any other construction would open the door to actions without merit by irresponsible parties, and make the clerk a credit man, whose accountability might result in his personal loss, 76 F.Supp. at 770).’’

        De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1220 (Ala.1985).


author: PER CURIAM. PER CURIAM.

text:
    PHILIP MORRIS USA INC., Appellant, v. John P. HINES and Delores Howell, Individually and on behalf of all others similarly situated, Appellees.
    No. 4D02-941.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.
    Order Denying Rehearing and Certification Oct. 6, 2004.
    Tom Warner, Joseph Ianno, Jr., and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, and Robert C. Heim, Ezra D. Rosenberg, Judy L. Leone and Ronni E. Fuchs of Dechert, Price & Rhoads, Philadelphia, PA, and Stephen N. Zack of Boies, Schiller & Flexner, LLP, Miami, for appellant.
    Gary M. Farmer, Jr. of Freedland, Glassman, Farmer & Sheller, P.A., Fort Lauderdale, and Stephen A. Sheller of Sheller, Ludwig & Badey, Philadelphia, PA, for appellees.
    Roy C. Young of Young, van Assenderp, Yarnadoe & Anderson, P.A., Tallahassee, for Amicus Curiae Florida Chamber of Commerce.
   PER CURIAM.

Philip Morris USA Inc. (Philip Morris) seeks review of an order granting appel-lees’ motion for class certification. We reverse and remand for decertification of the class.

Appellees sought certification of a class consisting of all persons who purchased Marlboro Lights and Ultra Lights “low tar” cigarettes in Florida between 1971 and the present. The key issue is whether Philip Morris violated Florida’s Deceptive and Unfair Trade Practices Act (FDUT-PA) by its conduct in designing, selling and marketing “Lights” as being substantially lower in tar and nicotine than regular, or non-light, cigarettes. The claim is that Philip Morris engaged in a course of deceptive and unlawful conduct in connection with the manufacture, distribution, promotion, marketing and sale of Marlboro Ultra Lights and Marlboro Lights. Through their action, plaintiffs seek to recover only the return of the purchase price of the Lights, on the theory that they did not receive what they paid for.

In summary, appellees claim that because of published scientific studies in the 1960’s linking cigarette smoking to cancer, Philip Morris was under pressure to “create doubt about the health charge without actually denying it.” As a result, “light” cigarettes were introduced. The “light” designation is related to tar and nicotine test results generated by the “Cambridge Filter System” method. Appellees allege that Philip Morris knew that this system, which was not regulated by any government entity, was neither a valid nor reliable way to measure the amount of tar and nicotine inhaled by an actual smoker. Notwithstanding, based on the results of such test, Philip Morris markets “light” cigarettes to consumers.

According to appellees, Philip Morris, knowing how the “smoking Machine works,” made “deceptive changes” in cigarette design and composition. As a result, the test results were artificially low. The deceptive design included the placement of ventilation holes in the filter of the cigarette to dilute the smoke from the cigarette with air from the outside. Appellees alleged that this was deceptive as Philip Morris knew that some smokers cover the ventilation holes with their lips or fingers when they smoke, which results in the smoker receiving the same amount of tar and nicotine as that produced by regular Marlboro cigarettes. Additionally, appel-lees claim that, whereas the smoking machine finishes the cigarette at a certain point, actual smokers do not. Furthermore, appellees maintain that “light” cigarette smokers may “compensate” to obtain the same level of tar or nicotine either by taking more puffs on each cigarette, by taking larger, longer or deeper puffs, or by smoking more cigarettes.

Contributing to the deceptive design of the “light” cigarette, according to appel-lees, is the addition of chemicals such as ammonia. The addition of chemicals alters the form of the tar and nicotine such that it escapes detection under the Cambridge Filter System testing method. Appellees maintain that Philip Morris was also able to manipulate tar and nicotine levels by using reconstituted tobacco as well as by modifying rod length, circumference of the cigarette, and the porosity and burn rate of the cigarette papers.

To oppose class certification Philip Morris argued that an individual’s smoking behavior and motivation for smoking “light” cigarettes would be a significant aspect of its defense to appellees’ FDUT-PA claims. As to those defenses, Philip Morris contends that some of the plaintiffs did not suffer a loss and essentially got what they wanted and paid for. Those plaintiffs would include smokers who purchased “lights” for the distinctive “taste.” Philip Morris presented evidence that studies show that a substantial number of smokers purchase low tar products for the “taste,” rather than for any perceived health related reasons. With respect to those “light” consumers who purchased the product for health reasons, Philip Morris maintains that smokers who do not cover the vent holes when smoking would indeed have a product which delivers lower tar and nicotine than regular cigarettes.

We find that the trial court erred in certifying this lawsuit as a class action as to “all persons who purchased Marlboro Lights and Marlboro Ultra Lights cigarettes in Florida” between the dates specified in the order. Despite a common nucleus of facts concerning a prospective class-action-defendant’s conduct, a lawsuit may present individualized plaintiff-related issues which make it unsuitable for class certification. See Hutson v. Rexall Sundown, Inc., 837 So.2d 1090, 1093 (Fla. 4th DCA 2003)(affirming the trial court’s denial of class certification while essentially finding that the defendant’s conduct is not the sole focus of “the typicality require ment” where the claims of individual class members raise different and substantial issues as to their right to recover); Stone v. Compuserve Interactive Servs., Inc., 804 So.2d 383 (Fla. 4th DCA 2001)(affirming the trial court’s denial of class certification in a breach of contract case for failure to timely pay promised rebate where each individual applicant’s history would need to be explored); see also Liggett Group Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003)(reversing a verdict and decertifying a class in tobacco-related tort litigation where issues concerning proximate cause as to each claimant frustrated the predominance of common issues as to the defendant’s alleged misconduct).

Among other cases, appellees rely on Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA 2000), rev. denied, 794 So.2d 605 (Fla.2001). There, Powertel sold cellular telephones without disclosing to the consumers that the telephones had been programmed to work only with its wireless communications service. The plaintiffs brought an action pursuant to FDUTPA on behalf of a class of those persons who purchased the modified phones. The trial court denied class certification because the plaintiffs could not show that all of the purchasers had relied on Powertel’s alleged failure to disclose that the phones had been modified. The First District reversed, holding:

All of the claims share one essential common feature; that is, the alleged defective practice reduced the value of the telephones. Because proof of reliance is unnecessary, the plaintiffs’ inability to show reliance in every case cannot be used to justify a finding that individual issues will predominate over the class claims. Issues pertaining to the proof of the alleged deceptive practice and issues relating to causation and damages will be common to all members of the class.

Id. at 975.

While we question whether Davis gives fair consideration to the principle of causation within section 501.211(2), Florida Statutes (2000), we also find the case distinguishable. All of the class members in Davis purchased a phone of reduced market value because of the alleged deceptive practice. In the instant case, whether or not a smoker reaped the benefits of a lower tar and nicotine cigarette depended upon how the cigarettes were smoked and even why the “light” cigarettes were chosen by the particular smoker. Thus, to some smokers, there was no reduced value.

Here, the record supports Philip Morris’s contention that the manner in which the cigarettes were smoked and the smoker’s reasons for choosing to smoke “light” cigarettes could preclude an individual smoker’s entitlement to damages and, thus, would be legitimate issues raised in defense. See Gen. Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th DCA 1998)(reversing a verdict in favor of the plaintiff in a FDUTPA claim upon concluding that “to be actionable an unfair or deceptive trade practice must be the cause of loss or damage to a consumer”); see also § 501.211(2), Fla. Stat. (2000)(providing in part that under FDUT-PA “[i]n any individual action brought by a consumer who has suffered a loss as a result of a violation of this part, such consumer may recover”); Himes v. Brown & Co. Sec. Corp., 518 So.2d 937, 938 n. 1 (Fla. 3d DCA 1987)(legislature left enforcement of FDUTPA “in the hands of state agencies in cases where the victims have not suffered actual damages”).

The trial court stated in the final order that “neither the individual purchasers’ subjective motivation, nor their smoking habits are relevant to the central issues in this case” and that “one body of evidence will resolve the issue for all class members.” As the foregoing illustrates, this was error. In the instant case, an individual’s smoking behavior will be relevant, and the common questions of law and fact in this case will not predominate over the individual issues. Therefore, the claims do not satisfy the requirements of rule 1.220. See Fla. R. Civ. P. 1.220(a), (b)(3). Here, the trial court’s class certification was an abuse of discretion on this record. Accordingly, we reverse and hold that the class of plaintiffs created by the trial court should be decertified.

STONE, STEVENSON and HAZOURI, JJ., concur.

ON MOTION FOR REHEARING & CERTIFICATION

PER CURIAM.

We deny appellees’ motion for rehearing and certification. In clarification, we note that our initial opinion was without prejudice for the appellees to return to the trial court and request certification of a modified class. We have not considered the merits of entitlement to any such request.

STONE, STEVENSON and HAZOURI, JJ., concur.


author: WELLS, Judge.

text:
    DOLLAR SYSTEMS, INC. d/b/a Dollar Rent-A-Car, Appellant/Cross-Appellee, v. O’CONNOR & MEYERS, P.A. Appellee/Cross-Appellant.
    No. 3D02-3015.
    District Court of Appeal of Florida, Third District.
    June 16, 2004.
    Rehearing and Rehearing En Banc Denied Oct. 13, 2004.

      Weinstein, Bavly & Moon and Alvin N. Weinstein, Miami; Arthur J. Morburger, Miami, for appellant/cross-appellee.
    Cole, Scott & Kissane and Scott A. Cole, for appellee/cross-appellant.
    Before GERSTEN, SHEVIN, and WELLS, JJ.
   WELLS, Judge.

After losing an indemnification action, Dollar Systems, Inc., brought the instant action for attorney malpractice against its trial counsel. Here, Dollar appeals the summary judgment entered in the law firm’s favor. The law firm (not counsel in this appeal) cross appeals, arguing that while, initially, the trial court correctly dismissed the malpractice action for failure to prosecute, the court thereafter erred when it vacated that ruling. We conclude that the case should have been dismissed for lack of prosecution and reverse the order on cross appeal making it unnecessary to reach the points raised in the main appeal.

Florida Rule of Civil Procedure 1.420(e) provides:

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 writing 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.

This rule expressly provides that an action shall be dismissed if it appears from the face of the record that no activity has occurred within the past year. As the Florida Supreme Court has made clear, this “requires only a review of the record. There is either activity on the face of the record or there is not. If a party shows that there is no activity on the face of the record, then the burden moves to the non-moving party to demonstrate ... one of the three bases that would preclude dismissal. ...” Metro. Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001).

The face of the record in this case reveals no activity between June 12, 2000, when Dollar noticed the taking of William Lemos’ deposition, and June 18, 2001, when the law firm filed its 1.420(e) motion. Thus, the burden shifted to Dollar to demonstrate either a stipulation staying the action approved by the court, a stay order, or good cause why the action should remain pending. Hall 784 So.2d at 1090. Dollar attempted to demonstrate good cause by pointing to Lemos’ deposition which both parties concede was actually taken on June 23, 2000. See Hall, 784 So.2d at 1091 (holding that taking a deposition constitutes “good cause to avoid dismissal [under rule 1.420(e) ] ... [if] made in good faith to move the ease forward to a conclusion.... ”).

The law firm maintains that while its motion to dismiss was premature, the case nonetheless should have been dismissed because there was no activity designed to move the case forward for one year after June 23, 2000 (the date of Lemos’ deposition). Dollar seeks to avoid this result arguing first that it filed Lemos’ deposition on June 18, 2001, within one year of its taking and second that the time for reading and signing the deposition extended the one year period beyond June 23, 2001. We disagree with both contentions.

Record activity sufficient to avoid dismissal is more than “a mere passive effort” to keep the suit on the court docket. It is “any act reflected in the court file ... designed to move the case forward toward a conclusion on the merits or to hasten the suit to judgment.” Barnett Bank of East Polk County v. Fleming, 508 So.2d 718, 720 (Fla.1987); Florez v. City of Miami, 858 So.2d 378, 379 (Fla. 3d DCA 2003) (observing that to defeat a motion to dismiss for failure to prosecute, “it must be shown that there was affirmative record activity during this time by pleading or order which was reasonably calculated to advance the case toward resolution”)(citing Kearney v. Ross, 743 So.2d 578, 580 (Fla. 4th DCA 1999)).

Dollar cites to Eastern Elevator, Inc. v. Page, 263 So.2d 218, 219 (Fla.1972), and argues that just as the filing of interrogatories was sufficient activity for the plaintiff to avoid dismissal in that case, the filing of Lemos’ deposition in the instant case also precludes dismissal. However, Dollar acknowledges that at the time Eastern Elevator was decided, the rule as to discovery filings was different, and that the filing of interrogatories was a required act. Dollar maintains that as observed in Hall, 784 So.2d at 1090 n. 3, the rule change deleting automatic filing of discovery was no more than a “housekeeping matter” which should not lead to a different result here.

Clearly, as observed in Hall, “[t]he intent of the amendment was to relieve the document storage burden experienced by Florida courts while maintaining integrity of court records.... The change of the record activity status of depositions was ... a collateral consequence.” Id. Nonetheless, the rule change did make such a filing unnecessary and, in fact, unauthorized unless the conditions now stated in the rule exist.

More to the point, the Florida Supreme Court in Hall confirmed that neither the taking nor the filing of a deposition, or any discovery, avoids dismissal for lack of prosecution unless these activities are undertaken “in good faith to move the case forward to a conclusion.” Id. at 1091; see also Del Duca v. Anthony, 587 So.2d 1306, 1309 (Fla.1991) (trial court must determine whether discovery was filed in bad faith and without any design to move the case forward toward a conclusion on the merits); Florez, 858 So.2d at 379 (citations omitted)(observing “[a] trial court ‘has discretion to dismiss an action when the only record activity for the previous year was bad faith activity, which means activity that is ‘frivolous or clearly useless’ to further prosecute the case’ ”); Sheen v. The Time Inc. Magazine Co., 817 So.2d 974, 977 (Fla. 3d DCA 2002) (concluding that documents filed of record concerning discovery “may, but do not always, constitute sufficient record activity”); Otero v. Gastroenterology Group of South Florida, P.A., 710 So.2d 148, 149 (Fla. 3d DCA 1998)(“[n]ot every document filed in a court file qualifies as record activity”).

While it was undisputed that the taking of Lemos’ deposition clearly constituted activity designed to move the case forward to conclusion, there was no evidence that its filing almost a year later did anything to advance that goal. The record confirms that the deposition was not filed to address any matter pending before the court as currently required by Florida Rule of Civil Procedure 1.310(f). Rather it was filed solely in response to the law firm’s premature motion to dismiss. Thus, we conclude that while the filing of a notice of deposition has been held sufficient record activity to avoid dismissal, and the taking of a deposition may establish good cause by which to avoid dismissal, Hall, 784 So.2d at 1091, the instant filing of a deposition for no purpose and in contravention of Rule 1.310(f), is neither sufficient record activity nor good cause to avoid dismissal. See National Enters., Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001) (confirming that neither filings that constitute nullities nor filings made for the purpose of avoiding dismissal circumvent a rule 1.420(e) dismissal).

We also reject Dollar’s argument that Lemos’ deposition was not concluded for rule 1.420(e) purposes until the time for reading and signing had expired (according to Dollar, August 9, 2000). The record reflects that the deposition was “concluded” on June 23, 2000, and although Lemos was given the opportunity, he neither read nor signed the deposition. This unexer-cised right did not make this deposition any less concluded. There was simply no purposeful use of the deposition within a year of its taking.

In sum, Dollar’s filing of the Lemos deposition, which accompanied its response to the law firm’s motion to dismiss and which served no purpose, in no manner hastened the suit to final resolution, and in so failing, was insufficient as either record activity or as a basis for finding good cause not to dismiss. Accordingly, we reverse the order vacating the trial court’s earlier dismissal of the action and remand for reinstatement of the dismissal. This determination makes our consideration of the points raised in the main appeal unnecessary.

Reversed and Remanded.

      . The filing of the motion to dismiss was not record activity and does not deprive the law firm of claiming no record activity from June 23, 2000 to June 23, 2001 rather than from June 12, 2000 to June 13, 2001. See Barnett Bank of East Polk County v. Fleming, 508 So.2d 718, 719-20 (Fla.1987)(concluding that movant's premature motion to dismiss did not constitute record activity which would prevent the movant's ultimate right to a dismissal. Moreover, "[as] long as the motion is not ruled upon until after the expiration of the one-year period, ... it is unnecessary to file a second or subsequent motion”).

        . Florida Rule of Civil Procedure 1.310(f), provides:

        Filing; Exhibits.

      (3) A copy of a deposition may be filed only under the following circumstances:
      (A) It may be filed by a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition shall be given to all parties unless notice is waived. A party filing the deposition shall furnish a copy of the deposition or the part being filed to other parties unless the party already has a copy.
      (B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party.
      (Emphasis added).

      . Other than noting the filing of Lemos' deposition, citing to Hall, and arguing that the deposition was not concluded until it had been read and signed, Dollar made no attempt to demonstrate good cause to avoid dismissal. See Foodtech Hialeah, Inc., 777 So.2d at 1195 (stating that a showing of good cause requires some contact with the opposing party and some form of excusable conduct or occurrence which arose other than through negligence or inattention to pleading deadlines).

      . Rule 1.310(e) governing reading and signing, in pertinent part, provides:
      ... Any changes in form or substance that the witness wants to make shall be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes shall be attached to the transcript. It shall be signed by the witness unless the parties waived the signing or the witness is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within a reasonable time after it is furnished to the witness, the officer shall sign the transcript and state on the transcript the waiver, illness, absence of the witness, or refusal to sign with any reasons given therefor. The deposition may then be used as fully as though signed unless the court holds that the reasons given for the refusal to sign require rejection of the deposition wholly or partly, on motion under rule 1.330(d)(4).


text:
    Patricia Pollak WEISS, Appellant, v. Phyllis Pollak BERKETT, Individually and as the Successor Interim Trustee of the Trusts Under the Will of Albert Pollak, Deceased, Appellee.
    No. 3D03-3171.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.
    Rehearing and Rehearing En Banc Denied Oct. 13, 2004.
    Patricia Poliak Weiss (Sag Harbor, NY), in proper person.
    Hirschhorn & Bieber, P.A., and Joel Hirschhorn and Brian H. Bieber, for ap-pellee.
    Before SCHWARTZ, CJ., and SHEVIN, J., and DAUKSCH, JAMES C., Jr., Senior Judge.
   PER CURIAM.

This is an appeal from an order dismissing a complaint in a probate matter.

Although the order is not explicit in its reasons^ we are not convinced that any proper grounds for dismissal were presented by appellee. Therefore, the order is reversed and this cause remanded for further proceedings toward the end of a trial on the merits.

Reversed and remanded.


text:
    FRONTIER INTERNATIONAL BUSINESS GROUP, INC., formerly known as Frontier International Marketing Group, Inc., a Florida corporation, Appellant, v. MIAMI FREE ZONE CORPORATION a Florida corporation, and German Leiva, individually, Appellees.
    Nos. 3D03-2435, 3D03-2079.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 2004.
    Rehearing Denied Oct. 13, 2004.
    Warren P. Gammill, Miami, for appellant.
    Josephs, Jack and Miranda, and Susan S. Lerner, Miami, for appellees.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Star Fruit Co. v. Eagle Lake Growers, 160 Fla. 130, 33 So.2d 858 (1948).


author: HAWKES, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, Petitioner, v. Johnny Joseph FOUNTAIN, Respondent.
    No. 1D03-5488.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.

      Michael J. Alderman, Dept, of Highway Safety & Motor Vehicles, Tallahassee, for Petitioner.
   HAWKES, J.

The Department of Highway Safety and Motor Vehicles (Department) petitions for a writ of certiorari to quash the circuit court’s order requiring it to issue Johnny Fountain, a hardship driver’s license. We grant the petition and quash the order.

On January 29, 1991, the Department permanently revoked Fountain’s driving privileges pursuant to section 322.28 Florida Statutes, because he had been convicted of driving under the influence (DUI) four times. The 1991 through 1997 versions of the statute permitted Fountain to request reinstatement upon meeting certain criteria. See § 322.271(4)(a), Fla. Stat. (1997). However, in 1998, the Legislature amended section 322.28, to provide that a person convicted of four DUIs could no longer have driving privileges for any reason. See § 322.28(2)(e), Fla. Stat. (Supp.1998).

In March 2003, the Florida Supreme Court ruled chapter 98-223, Laws of Florida, which created, in part, the 1998 versions of sections 322.271 and 322.28, Florida Statutes, violated the single subject rule. See Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). This ruling resulted in reinstatement of the 1997 version of the statute until the constitutional defect was cured. See e.g., Jackson v. Dep’t of Highway Safety & Motor Vehicles, 848 So.2d 1165 (Fla. 2d DCA 2003) (holding when a statutory amendment is declared unconstitutional, statutes as they existed before amendment become effective by operation of law).

In May, 2003, Fountain reapplied for a driver’s license, as permitted under the 1997 version of the statute. The Department denied the application, relying on the 1998 version of the statute.

On July 10, 2003, Fountain sought cer-tiorari review in the circuit court. The Department assumed the 1997 version of the statute applied, and requested the court remand for it to consider Fountain’s application. Instead, the court found Fountain met the 1997 statutory requirements for a hardship driver’s license, and ordered the Department issue the license for one year under enumerated conditions. The circuit court departed from the essential requirements of law by granting the hardship license. No matter which version of the statute applied, the circuit court is without authority to order the Department to issue the license.

Based on the plain language of the 1997 version of the statute, it is within the Department’s discretion to decide whether to reinstate the license of a petitioner who meets the statutorily specified requirements. See § 322.271(4)(a)-(b), Pla. Stat. 1997. Thus, had the 1997 version of the statute been applicable, the court should have remanded the case for the Department to conduct a hearing to determine whether Fountain met the statutory requirements for a hardship license. See Bailey, 870 So.2d at 49. Under the 1998 version of the statute, neither the circuit court nor the Department had discretion to issue the hardship license.

The petition for certiorari is GRANTED and the circuit court’s order is QUASHED.

ERVIN and ALLEN, JJ., CONCUR.

      . We would note that, by the time Fountain sought certiorari review, the Legislature had reenacted the 1999 version of the Florida Statutes, effective July 1, 2003, curing the previous constitutional defect to the 1998 version of the statutes. See Envtl. Confed. of S.W. Fla., Inc. v. Dep’t of Envtl. Prot., 852 So.2d 349 (Fla. 1st DCA 2003); 2003 Fla. Laws ch. 25; Tormey v. Moore, 824 So.2d 137(Fla.2002) (noting single subject violation cured when Legislature reenacts the provision as part of a re-adoption of the Florida Statutes).


text:
    A.M.T., father of A.D.T., A.D.T. and A.M.T., et al, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2830.
    District Court of Appeal of Florida, First District.
    Aug. 25, 2004.

      Marsha W. Montgomery, Pensacola, for Appellant.
    Katie George and Richard D. Cserep, Dept, of Children & Families, Pensacola, for Appellee.
   HAWKES, J.

We are confronted with a situation where a trial court: 1) sheltered minor children without taking sworn testimony to establish a factual basis justifying shelter; and 2) adjudicated children dependent without competent, substantial evidence to support the only allegation in the petition for dependency that would justify a finding of dependency. Because of these errors, we reverse.

Background

Appellant was the custodial parent of his 16-year-old stepson, 14-year-old son, 12-year-old daughter, and 10-year-old son. On January 16, 2003, Appellant left his 16-year-old stepson in charge while he went for an anticipated one-day trip to Jacksonville. He instructed his stepson to contact neighbor and long-time family friend, Chantel Harper, if they needed anything. It was alleged that while in Jacksonville, Appellant concluded it was necessary to take immigration papers to his fiancee in the Dominican Republic. He called to let his children know he would be away for a few days, then left the country.

The next morning the children got into an argument, and the daughter called her mother. When the mother learned the children had been left alone, she called the Department of Children and Family Services (DCF). When Appellant called home, he learned his former wife and a DCF investigator were there.

DCF filed a dependency petition alleging inadequate supervision and threatened harm, specifically, that Appellant had a history of leaving the children alone, and had left them for four days on this occasion, January 2003, without making adequate arrangements. Two arraignment hearings were held. Pursuant to orders entered following each hearing, Appellant retained custody of the children. Notably, there were no instructions regarding supervision of the children should Appellant again leave the country.

Subsequently, Appellant again went to the Dominican Republic. He left his sons with Chantel Harper and his daughter with Christy Slack, the mother of his daughter’s best friend. Appellant gave Harper written authorization to act on his behalf to get each child from school and get them medical treatment, if necessary. While Appellant was away, his 14-year-old son became ill at school. Because school personnel could not contact Appellant, they called Harper to get the child.

The Shelter Order

Shortly after the second trip, a preliminary hearing was held on the petition for dependency. The court took no sworn testimony or evidence of any kind, and made no inquiry regarding the allegations contained in the dependency petition.

Instead, the DCF attorney informed the court that DCF recently learned Appellant had been out of the country again, and DCF did not know who had been taking care of the children. The 14-year-old son had been sick at school during that time, and DCF alleged the school could not reach anyone to take him home. The DCF investigator learned the 16-year-old stepson had been arrested for fighting at school and for driving without a license, and the 14-year-old had vandalized a house on the military base where Appellant and his children lived. When the court asked what DCF was requesting, DCF’s attorney stated “that he [Appellant] not leave the country, and supervise these kids.” DCF did not seek to shelter the children.

The court then questioned Appellant regarding the new allegations. Appellant responded that, at the time of the most recent trip, he left his children with Harper and Slack. Appellant explained his 14-year-old son had thrown rocks at a boarded-up house on the base, which a neighbor reported. Appellant further stated the fight his 16-year-old stepson had been arrested for occurred almost a year previously, and his stepson had received a ticket for driving without a license. Appellant only allowed him to drive “up the street.”

Immediately after hearing Appellant allowed his stepson to drive without a license, the trial court stated she wanted the children sheltered and would allow Appellant only supervised visitation. This was done sua sponte, without notice to Appellant.

Appellant’s attorney asked why the court was allowing only supervised visitation when there was no physical threat to the children. The court replied Appellant allowed his stepson to drive without passing the written test. Appellant’s attorney stated that did not constitute a threat of physical harm from visiting Appellant. The court responded there were “allegations of him not being able to supervise, and then he goes off and leaves them once again, and when I ask him who the babysitter is, he can’t even remember who his daughter is staying with.” With no notice, no sworn testimony, and without even inquiring as to the allegations contained in the dependency petition, the court sheltered the children, allowing Appellant only supervised visitation.

A few days later, a shelter review hearing was held. However, the only sworn testimony taken at this hearing related to Appellant’s income for purposes of child support. The court’s order continued the children in shelter, and found probable cause to believe the children were dependent based on allegations of abuse, abandonment, or neglect. The court found DCF’s appraisal of Appellant’s “home situation” indicated a substantial and immediate danger to the children which could not be mitigated by the provision of services, and the children could not safely remain in the home. Appellant was again allowed only supervised visitation. By entering these shelter orders, the trial court erred.

Sections 39.401(1) and 39.402(1), Florida Statutes, require that, before a court may order a child taken into custody or sheltered, it must receive sworn testimony to establish probable cause to support a finding that the child has been abused, abandoned, or neglected, or is in imminent danger of illness or injury as a result of abuse, abandonment or neglect. Here, although two hearings were held, the court did not place anyone under oath or take sworn testimony of any kind before ordering the children sheltered. Significantly, the court did not even inquire about the allegations contained in the dependency petition, but instead focused only on new allegations, primarily the driving, that DCF admitted were under investigation.

Even if the facts relied upon by the trial court had been presented through sworn testimony, they were insufficient to establish a basis to shelter the children, because they did not evidence abuse, abandonment or neglect, as those terms are defined by statute.

We also note that even if the trial court had evidence before it which would have warranted sheltering the children, which it did not, there was absolutely no evidence that Appellant’s visits should be supervised. There was neither evidence nor allegation that Appellant had endangered the children in any way when they were in his care.

The Dependency Order

An adjudicatory hearing was later held where sworn testimony was taken. Following the hearing, the trial court adjudicated the children dependent. In its order of adjudication, the court found it was in children’s best interest to remain in the mother’s custody under DCF supervision. The court allowed Appellant only supervised telephone contact with the children, and permitted the mother to tape record Appellant’s conversations with the children.

As support for the adjudication, the trial court adopted the allegations contained in the dependency petition, and found: (1) Appellant went to the Dominican Republic in January, leaving the children without supervision or a contact number; (2) the 14-year-old son became involved in criminal mischief while playing outside his home; (3)' Appellant failed to provide the babysitters a contact number when he went on a trip in April; (4) Appellant failed to provide a medical release to his daughter’s babysitter; and (5) Appellant permitted his 16-year-old stepson to drive without passing the written driving test.

“A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” In the Interest of M.F. and M.F. and R.F. v. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). “Competent substantial evidence is tantamount to legally sufficient evidence.” Id. Reversal is required where the evidence is legally insufficient to sustain the trial court’s findings. See D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000). In the case at bar, none of the facts cited by the trial court, either alone or in combination, are legally sufficient to sustain an adjudication of dependency.

An adjudication of dependency is not merely an inquiry by the trial court as to what may be in the best interest of the child. See W.T. v. Dep’t of Children & Families, 787 So.2d 184, 185 (Fla. 5th DCA 2001). It is an interference with the fundamental right of a parent to raise their children. See Padgett v. Dep’t of Health & Rehabilitative Serv., 577 So.2d 565, 570 (Fla.1991) (noting “this Court and others have recognized a longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism.”). Such an interference is allowed only when a child is found to be dependent pursuant to Florida law.

Florida law defines a dependent child as one who the court has found by a preponderance of the evidence: “(a) To have been abandoned, abused or neglected by the child’s parent or parents or legal custodians; ... or (f) To be at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians.” § 39.01(14), Fla. Stat. (2003). These are not generic terms without meaning. Florida Statutes give these terms specific and distinct definitions. Therefore, we must examine the allegations in the case, and the evidence presented at the hearing, to determine if the statutory criteria exist to support a finding of dependency.

ABANDONMENT

Under Florida law, an abandoned child is one whose parent or caregiver “while being able makes no provision for the child’s support and makes no effort to communicate with the child.” § 39.01(1), Fla. Stat. (2003). There is no evidence that Appellant failed to make provision for his children’s support, or that he made no effort to communicate with them. In fact, the evidence was to the contrary.

When Appellant went to the Dominican Republic the first time, he left his 16-year-old (almost 17-year-old) stepson in charge, and told him to contact neighbor and long-time family friend, Chantel Harper, if they needed anything. There was no evidence that the arrangement for his stepson to contact Harper was inadequate. In the absence of evidence to the contrary, we cannot assume Appellant failed to make appropriate provision for his children’s support.

As for Appellant’s failure to provide the babysitters with a telephone number to contact him while he was traveling in the Dominican Republic, there was no evidence as to why this would be required or that it was even possible for him to do so. Failure to provide a babysitter a contact number cannot constitute abandonment under these facts. The uncontested evidence was that Appellant called his children regularly when he was gone. Thus, he communicated with his children, even if they did not have a telephone number to contact him.

Because there is no allegation or record support that Appellant failed to provide for his children’s support, or that he failed to communicate with them, there is no competent, substantial evidence to support dependency based on abandonment.

NEGLECT

The next ground to consider is neglect. Under Florida law, a neglected child is one who is “deprived of ... necessary food, clothing, shelter, or medical treatment or ... permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(45), Fla. Stat. (2003).

Here, again, there is neither evidence nor allegation that Appellant failed to provide his children with food, clothing, shelter or medical treatment. The court found Appellant’s failure to provide his daughter’s babysitter with a medical release supported an adjudication of dependency. However, at that time, Appellant had provided Harper with medical releases for each child, in case of an emergency. It would not be necessary to provide a duplicate release to his daughter’s babysitter. In fact, the evidence revealed his daughter had a military card so that if she needed emergency medical treatment, her babysitter could take her directly to the military base. Thus, there is no record support for an adjudication of dependency based on neglect.

ABUSE

The last ground to consider is abuse. An abused child is one who is subjected to “any willful act or threatened act that results in any physical, mental or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2003). Here, because there is no allegation or evidence that Appellant caused his children physical, mental, or sexual injury, we must determine whether Appellant caused his children “harm.”

Pursuant to Florida law, “ ‘[h]arm’ to a child’s health or welfare can occur when any person: (a) Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury.... Such injury includes ... 3. Leaving a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition, so that the child is unable to care for the child’s own needs or another’s basic needs or is unable to exercise good judgment in responding to any kind of physical or emotional crisis.” § 39.01(30)(a)3., Fla. Stat. (2003).

Harm, or leaving the children without appropriate supervision “that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired” appears to be the most colorable basis upon which the trial court could have based its adjudication of dependency. To find the children dependent on this ground would require the court to conduct an inquiry and make a determination, based on competent, substantial evidence, that a child was left: (1) without adult supervision or other arrangements (2) that were inappropriate considering the child’s age, or mental or physical condition, such that (3) the child is unable to care for its needs or another’s basic needs or is unable to respond in a crisis. If the court finds inappropriate supervision, it must then have evidence that the inappropriate supervision “cause[d], or is likely to cause,” the child’s health to be significantly impaired. See § 39.01(2), Fla. Stat. (2003).

There are, therefore, two prongs that must be established. The first relates to supervision inappropriate for the child’s age, and the second relates to the significantly impaired health of the child as a consequence. Here, however, the trial court failed to make this inquiry. There was no evaluation of the evidence presented as to the factors necessary to establish the first prong, and there was absolutely no evidence offered to establish the lack of supervision “causefd] or [wa]s likely to cause” the children’s physical, mental or emotional health to be significantly impaired. § 39.02(2), Fla. Stat. (2003). The only evidence presented related to the first prong, and favored Appellant.

We now turn to the specific findings of the trial court. The triggering event resulting in the filing of the dependency petition was Appellant’s first trip to the Dominican Republic. When Appellant made this trip, his 16-year-old (almost 17-year-old) stepson was left in charge and told to contact neighbor and long-time family friend, Chantel Harper, as needed. There was no evidence offered nor any evaluation made by the trial court to indicate this was inappropriate for the children’s ages, mental or physical condition or that the children were unable to meet their basic needs while he was gone. See § 39.01(30)(a)S., Fla. Stat. (2003).

In fact, the uncontested evidence was that the 16-year-old (almost 17-year-old) was mature and responsible, and that the 12-year-old babysat for other children. Moreover, from the evidence presented, this was a one-time occurrence. However, even if the supervision on this trip was inappropriate, when a court is interfering in fundamental rights, it is not free to assume, without evidence, the second prong, i.e., that there was resulting significant physical, mental or emotional health consequences. Again, this record is devoid of such evidence. Thus, no competent, substantial evidence exists to support dependency as a consequence of this event.

The trial court also found the fact that Appellant’s 14-year-old son threw rocks one time at an abandoned, boarded-up house on the military base contributed to the adjudication of dependency. While a delinquent act, a 14-year-old throwing rocks does not automatically lead to the conclusion that the child was “without supervision or arrangement appropriate for the child’s age or mental or physical condition, ...or that such lack of supervision resulted in significant harm to the child’s health. Many 14-year-olds may have been left without direct supervision and committed similar acts. They are not all dependent children requiring the State of Florida to become involved in their upbringing. The statute requires evidence of inappropriate supervision, causing or likely to cause significant harm to the child’s health. There is simply no evidence to show that in this instance.

Similarly, although Appellant may have exercised poor judgment by allowing his 16-year-old stepson to drive “up the street” without a license, there was no evidence this caused or was likely to cause the health of this child, or the health of the other children, to be significantly impaired physically, mentally or emotionally. “The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, . or abused.” M.F., 770 So.2d at 1193.

In sum, there was no competent, substantial evidence to support a finding that Appellant abused, abandoned or neglected his children, as those terms are defined by statute. Because there was no factual basis upon which to shelter the children, the trial court’s order removing the children from Appellant’s custody and placing them with their mother under DCF’s supervision is REVERSED. Similarly, because the trial court’s adjudication of dependency is not supported by competent, substantial evidence, it is also REVERSED and REMANDED for proceedings consistent with this opinion.

BOOTH and POLSTON, JJ., concur.

      . A review of the transcript indicates Appellant hesitated very briefly before giving the name of the person with whom his daughter was staying.

      . Although an issue of concern at the time the court ordered the children sheltered, ultimately, there was no allegation or finding by the court that the second trip to the Dominican Republic rendered the children dependent.


author: COVINGTON, Judge.

text:
    Terry W. MORGAN, Appellant, v. HERFF JONES, INC., Appellee.
    No. 2D04-1109.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2004.

      Gregory T. Elliott of Elliott-Berger, P.A., St. Petersburg, for Appellant.
    Joshua Magidson of Macfarlane Ferguson & McMullen, Clearwater; and Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellee.
   COVINGTON, Judge.

Terry Morgan challenges the circuit court’s order restraining him from competing with Herff Jones, Inc., or its designated agent, Timothy Trojnar, or using the trade name Delmar Studios. We reverse the temporary injunction as to the non-compete covenant but affirm the injunction against use of the trade name. Because the court failed to conduct an evidentiary hearing on the amount of the bond, Morgan’s damages for a wrongful injunction are not limited by the amount of the bond.

Herff Jones (“HJ”) sells photographic services and products to schools through independent contractors such as Terry Morgan. Morgan and HJ executed a Photography Agreement on July 5, 2001, by which Morgan agreed to exclusively sell and process HJ’s products in certain West Florida schools. The term of the agreement was indefinite. Either party could terminate it upon sixty days’ notice, and HJ could immediately terminate it upon Morgan’s breach of the terms of the agreement, malfeasance, or insolvency. Upon termination, any balance owed HJ would become immediately due and payable. Morgan also agreed that upon termination he would immediately and permanently cease to use the name Delmar Studios and return to HJ its samples and other property-

By agreement the same date, Timothy Trojnar, Morgan’s predecessor, acknowledged that his agreement with HJ terminated as of July 5, 2001; ratified all of the provisions of paragraph 10, including the noncompete covenant; and referenced an asset purchase agreement executed the same date between Trojnar and Morgan.

The Photography Agreement established a representative’s account or sweep account into which Morgan was to deposit all of his receipts and from which HJ would deduct its product and processing costs and loans to provide Morgan working capital. HJ’s representative testified that to his knowledge Morgan paid every penny of his receipts into the sweep account until the termination date.

HJ held a first right and option to purchase or to designate a purchaser to replace Morgan. Paragraph 10 provided that the option to purchase included the business, the representative’s services to implement the purchase, and a noncom-pete covenant as set forth in paragraph 10.02. If HJ did not exercise the option to purchase or designate a purchaser who then purchased the business, the agreement expressly provided that the noncom-pete covenant did not apply and Morgan could compete with HJ. Upon receipt of written notice to terminate the agreement, HJ had sixty days in which to exercise its option to purchase.

As consideration for the sale of the business, the representative’s services in facilitating the sale, and the noncompete covenant, Morgan agreed to pay Trojnar 50 percent of the gross profits, defined in the agreement as territory splits, for three consecutive fiscal years. The agreement described gross profits as the collected funds less state sales and use taxes, commissions actually paid to customers (schools), and HJ’s product and processing costs. During the two years the agreement between Morgan and HJ was in force, HJ paid over $750,000 in territory splits to Trojnar from the sweep account.

The noncompete covenant in paragraph 10.02 provides that the former representative:

will not compete, directly or indirectly (nor receive, in any form, benefit from a competitor of HJ) in the Territory against HJ, any of its sales representatives, employees or other authorized agents ... by selling, marketing, manu-faeturing, creating, servicing, leasing or purchasing Products ... in the Territory during the period of time Representative shall receive Territory Splits and for a period of one year thereafter.

The term “compete” includes servicing accounts, soliciting sales from customers, supervision of sales, recommendation of suppliers of products other than HJ, or in any manner contributing to the diminution of HJ’s goodwill with customers.

About two years after Morgan and HJ executed the agreement, Morgan received a letter from HJ itemizing a total of $946,720.18 that he allegedly owed it, including $752,020.06 paid to Trojnar as the territory purchase balance. The total included an accounts receivable balance of $178,370.56 and an equipment note balance of $16,329.56. HJ notified Morgan by letter dated August 26, 2003, that it was terminating his agreement effective immediately for “breach of the terms of our agreement and other violations of duties.” HJ added that it elected to exercise its first right to purchase and designated Trojnar as the replacement representative. The letter advised that $946,720.18 was immediately due and payable and requested that Morgan cooperate in returning all of HJ’s samples and property.

Morgan refused to cooperate with HJ. He disputed any debt to HJ based on territory splits it had paid Trojnar and contended that HJ had no right to a non-compete covenant unless it or its designee purchased his business. At no time did he receive an offer or any communication that HJ or Trojnar intended to purchase his business.

HJ filed suit, alleging Morgan’s breach of contract for failing to use his best efforts required under paragraph 5.01, misfeasance under paragraph 3.02 of the agreement, and replevin. At the replevin hearing on September 29, 2003, the court heard HJ’s allegations that Morgan did not use his best efforts in selling the product, failed to regularly contact customers, and was losing business dramatically commencing in the summer of 2003. Morgan responded that Trojnar was in violation of his noncompete agreement for which he had received substantial territory splits. Morgan provided the court with an affidavit from another individual to support his claim that Trojnar violated the noncom-pete agreement. The court granted the writ of replevin.

HJ amended its complaint in November 2003 to again allege breach of contract and replevin and to add counts for a temporary injunction to enforce the noncompete covenant and to enjoin Morgan’s use of the Delmar Studios trade name. Morgan filed a motion to dismiss the amended complaint and to strike certain claims, but at the time of the entry of the order on appeal, the court had not ruled on the motion to dismiss. Morgan had not yet filed any answer or counterclaim.

The court conducted evidentiary hearings on HJ’s motion for a temporary injunction. Much of the testimony was a prelude to the eventual trial; evidence not pertinent to determine the existence of the noncompete covenant and subject to further litigation is not detailed. Suffice it to say, considerable dispute exists whether the territory splits paid to Trojnar constitute any part of amounts ultimately due HJ. During the hearing, Morgan’s counsel indicated to the court that in two weeks Morgan would change the name of his business because it tended to confuse. Morgan’s counsel explained that he was not stipulating to a trade name injunction for the express reason that the court had to make specific findings that might affect future litigation.

To the extent an injunction rests on factual matters, the injunction lies within the sound discretion of the court and will be affirmed absent a showing of abuse of discretion. Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002). However, to the extent it rests on purely legal matters, the order is subject to full, de novo review on appeal. Id.; Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001). The general function of a temporary injunction is to preserve the status quo until full relief can be granted in a final hearing. Liberty Fin. Mortgage Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996). It should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to relief. Id. A court must interpret a contract as a matter of law. Paoli v. Natherson & Co., P.A., 750 So.2d 46 (Fla. 2d DCA 1999). When the terms of a contract are clear and unambiguous, the contracting parties are bound by those terms. Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000 (Fla. 2d DCA 1995). Here, the question whether a noncompete covenant arose under the contract is subject to de novo review.

This noncompete covenant is not a typical noncompete clause that arises upon mere termination of employment. Instead, after Morgan’s termination, it is triggered by HJ’s or its designee’s exercise of the option to purchase the business. Although HJ purported to elect the option to designate Trojnar as the purchaser of the business, neither he nor HJ purchased it or ever offered in good faith to do so. The plain meaning of the contract requires a purchase in order for an enforceable covenant not to compete to arise. HJ designated Trojnar as the successor representative and purchaser, but it is undisputed that no purchase occurred. In fact, the agreement provided that after written notice to terminate the agreement, HJ had sixty days in which to execute its option to purchase. In contrast, in 2001, the same parties executed agreements for Morgan’s purchase and Trojnar’s sale and agreement not to compete. HJ suggests its election is self-executing; however, it is not the election, but the exercise of the option to purchase that triggers the non-compete covenant. The condition precedent did not occur, and, therefore, the noncompete clause did not become effective. According to the agreement, then, Morgan may compete with HJ. We thus reverse the temporary injunction not to compete.

On the other hand, we affirm the injunction’s restraint on Morgan’s use of the trade name Delmar Studios. HJ proved and Morgan admitted that he was using the name. He agreed to stop using the name in two weeks’ time due to admitted confusion.

We also find merit to Morgan’s argument concerning the bond. Despite HJ’s counsel’s suggestion that a bond be set at $500, the court disagreed and set the bond amount at $5000. Morgan’s counsel wrote the court a lengthy letter including criticism of the proposed findings and the need for an evidentiary hearing to determine the amount of the bond. The court did not honor Morgan’s request for a hearing to present evidence on the sufficiency of the bond. Accordingly, any damages for the wrongful injunction will not be limited to the amount of the bond HJ posted. See Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 116-17 (Fla. 2d DCA 2003).

When a court initially sets an injunction bond, the amount of the bond should constitute the court’s determination of the amount of the foreseeable damages for a wrongful injunction. Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999). See also Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla.1989); Flickenger v. R.J. Fitzgerald & Co., 732 So.2d 33, 35 (Fla. 2d DCA 1999). Upon remand, Morgan’s damages for the wrongful injunction are not limited by the erroneously set bond. See Lotenfoe, 747 So.2d at 426.

Affirmed in part, reversed in part, and remanded for further proceedings.

CASANUEVA and WALLACE, JJ., concur.