text:
    Dan STORK and Irving Hyams, on their own behalf and on behalf of class of similarly situated persons, Appellants, v. BELLSOUTH CORPORATION, a Georgia corporation, and BellSouth Telecommunications, Inc., a Georgia corporation, and Palm Beach County, a political subdivision of the State of Florida, Appellees.
    No. 4D02-2341.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Lawrence S. Klitzman of Law Offices of Lawrence S. Klitzman, P.A., Weston, and Jonah Orlofsky of Law Offices of Jonah Orlofsky, Chicago, IL, for appellants.
    John R. Hargrove of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Fort Lauderdale, and Ashley B. Watson, Atlanta, GA, for appellees-BellSouth Corporation and BellSouth Telecommunications, Inc.
    Amy Taylor Petrick, Assistant County Attorney, West Palm Beach, for appellee-Palm Beach County.
   TAYLOR, J.

Appellants, Stork and Hyams, brought this class action against BellSouth Corporation, Bell South Telecommunications, Inc. (collectively “BellSouth”), and Palm Beach County claiming that the defendants collected excessive public service taxes on their telephone service. We affirm the trial court’s dismissal of their complaint for failure to exhaust administrative remedies, as required by section 166.235(2), Florida Statutes (1999).

Section 166.235(2) states:

This section provides the sole and exclusive procedure and remedy for a purchaser who claims that a seller has collected municipal public service taxes that were not due. No action arising as a result of the claimed collection of municipal public service taxes that were not due may be commenced or maintained by or on behalf of a purchaser against a seller or municipality unless the purchaser pleads and proves that he or she has exhausted the procedures in subsection (1) and that the defendant has failed to comply with said subsection....

Appellants argue that because section 166.235 specifically refers to municipalities, it does not apply to counties. We disagree. Under the Florida Constitution charter counties are deemed to be equivalent to municipalities. As such, the public service tax regulatory scheme applies equally to both municipalities and charter counties.

In Palm Beach County v. BellSouth Telecommunications, Inc., 819 So.2d 876 (Fla. 4th DCA 2002), we recently addressed the constitutional authority of a charter county to impose fees where general law provides municipalities with such authority. We stated:

[C]ase law has long held that charter counties are akin to municipalities and have the same powers and authority to implement ordinances as municipalities unless an intention to exclude them is plainly discernable. McLeod v. Orange County, 645 So.2d 411 (Fla.1994); State v. Broward County, 468 So .2d 965 (Fla.1985); State ex rel. Volusia County v. Dickinson, 269 So.2d 9 (Fla.1972).
When section 1(g), Article VIII and Section 9(a), Article YII are read together, it will be noted that charter counties and municipalities are placed in the same category for all practical purposes. That upon a county becoming a charter county it automatically becomes a metropolitan entity for self-government purposes.
Volusia County, 269 So.2d at 10-11. The court held that when read together, these sections “clearly connote the principle that unless precluded by general or special law, a charter county may without more under authority of existing general law impose by ordinance any tax in the area of its tax jurisdiction a municipality may impose.” Id. at 11.

819 So.2d at 877.

Appellants contend that, while counties may have the same power to tax as municipalities, counties need not follow the same rules as municipalities in requiring taxpayers to pursue administrative remedies. We reject this argument. The section 166.235 administrative remedy is an integral component of the statute conferring authority to levy the public service tax. Because municipalities and counties “are placed in the same category for all practical purposes,” it is unreasonable to interpret the statute as conferring on the county the same power to tax that a municipality is given, without similarly affording counties administrative procedures for resolving tax issues.

Accordingly, we affirm the trial court’s dismissal of plaintiffs’ complaint.

AFFIRMED.

GUNTHER and KLEIN, JJ., concur.

      . Section 17-223 of the Palm Beach County Code permits a tax of seven percent (7%) of the total amount billed for such telecommunications service to a customer’s billing address located within the unincorporated area of the county. Section 17-229 of the Code requires that the amount of the public service tax be stated separately from other governmental charges and shall not be levied on such taxes and charges. Plaintiffs argued that BellSouth collected the 7% tax on amounts that included governmental charges and taxes (a tax upon a tax), in violation of the ordinance.

      . All parties agree that effective October 1, 2001, sections 166.231 et seq. were amended and the tax no longer applies to telecommunications services. Effective that date, section 202.19, Florida Statutes, governs local imposition of communications service taxes of both counties and municipalities.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2792.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges his sentence on the ground that the court deviated from a plea offer by imposing a higher sentence than bargained for. However, appellant failed to preserve the issue by moving to withdraw his plea or correct a sentencing error (if any). See Ruff v. State, 840 So.2d 1145, 1146 (Fla. 5th DCA 2003) (noting defendant who pleads nolo contendere must file motion to withdraw the plea in order to preserve claim that sentence was imposed in violation of plea agreement); Garrett v. State, 788 So.2d 328, 329 (Fla. 4th DCA 2001) (holding defendant may not seek review of sentencing errors on direct appeal unless an objection was lodged at trial or a motion for postcon-viction relief was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)). Appellant also complains that the court adjudicated him guilty of driving while license revoked (“DWLR”), rather than driving while license suspended (“DWLS”). He was charged with DWLR and all of the sentencing documents refer to DWLR, but his written plea agreement refers to DWLS. Again, appellant failed to preserve this issue. Furthermore, he has not shown how he was prejudiced, as the two ■violations are similar crimes with identical punishments. See § 322.34(2)(e), (5), Fla. Stat. (2001). We therefore affirm.

POLEN, C.J., WARNER and GROSS, JJ., concur.


author: STEVENSON, J.

text:
    Laurence ZIMMERMAN and Kimberly Zimmerman, Appellants, v. OLYMPUS FIDELITY TRUST, LLC and PaineWebber, Inc., Appellees.
    No. 4D02-2843.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Richard P. Zaretsky of Richard P. Zar-etsky, P.A., West Palm Beach, for appellants.
    Alfred A. Lasorte of Shutts & Bowen, LLP, Jane Kreusler-Walsh of Jane Kreus-ler-Walsh, P.A., and Michael T. Kranz of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee Olympus Fidelity Trust, LLC.
   STEVENSON, J.

This is an appeal from a final summary judgment of foreclosure in a mortgage case. We reverse.

Palm Beach National Bank filed a complaint for foreclosure against Laurence and Kimberly Zimmerman, seeking to foreclose on two mortgages in which the Zimmermans had failed to make timely payments. The Zimmermans and Palm Beach National entered into a settlement agreement which was accepted by the trial court. Among other conditions, the Zim-mermans were required to bring the past mortgage payments current and to remain current with future payments. Pursuant to the terms of the agreement, the suit was dismissed with prejudice. The trial court retained jurisdiction to enforce the terms and conditions of the settlement agreement.

Approximately five months later, Palm Beach National filed a motion for default and for entry of final judgment, alleging that the Zimmermans defaulted under the terms of the settlement agreement by failing to remain current with future payments. Based on an uncontested affidavit that the Zimmermans had failed to remain current with the mortgage payments, the trial court entered a final summary judgment of foreclosure. This appeal followed.

We must reverse because the settlement agreement did not contain a provision which provided for summary foreclosure as a remedy for the Zimmermans’ default. In making its ruling, the trial court did not have the benefit of the recent Florida Supreme Court case of Paulucci v. General Dynamics Corp., 842 So.2d 797 (Fla.2003), wherein the court clarified that:

[WJhen a court incorporates a settlement agreement into a final judgment or approves a settlement agreement by order and retains jurisdiction to enforce its terms, the court has the jurisdiction to enforce the terms of the settlement agreement even if the terms are outside the scope of the remedy sought in the original pleadings. However, the extent of the court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement. Thus, if a party is claiming a breach of the agreement and is seeking general damages not specified in the agreement, the appropriate action would be to file a separate lawsuit.

Id. at 803 (footnote omitted)(emphasis added).

Settlement agreements are interpreted and governed by the law of contracts. See Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002). Here, the parties did not provide that foreclosure would occur automatically if the Zimmermans failed to remain current with their payments. In fact, no default provisions were provided in the contract at all. Thus, this case is distinguishable from those in which summary judgments of foreclosure have been affirmed on appeal where the settlement agreements provided for the entry of final judgment in the event of a breach by the borrowers. See BAC Inti Credit Corp. v. Macia, 626 So.2d 1037 (Fla. 3d DCA 1993); Fed. Deposit Ins. Corp. v. Hemmerle, 592 So.2d 1110 (Fla. 4th DCA 1991).

Accordingly, the final judgment of foreclosure is reversed. As our supreme court further stated in Paulucei, quoting from the Fifth District’s decision in that case:

“By enforcing a contract, it is assumed that the contract has continuing validity and a party is ordered to comply with its terms. A breach of contract action presupposes that the contractual relationship is at an end because of a material breach by one party and damages are sought by the non-breaching party as a substitute for performance.”

842 So.2d at 803 (quoting Gen. Dynamics Corp. v. Paulucci, 797 So.2d 18, 20 (Fla. 5th DCA 2001)). In the instant case, Palm Beach National was not seeking to enforce performance of the settlement agreement, but instead, was seeking a remedy of foreclosure for the Zimmermans’ breach of that agreement. Foreclosure was not an option under the agreement. Because the lawsuit was dismissed, foreclosure is only possible if a new lawsuit is filed. On remand, the trial court is free to consider other available measures to “enforce” the parties’ settlement agreement.

REVERSED and REMANDED.

GUNTHER and TAYLOR, JJ., concur.

      . After the appeal was filed, this court issued an order allowing Olympus Fidelity Trust, LLC to be substituted in place of Palm Beach National Bank as appellee.

      . Although the settlement agreement provided that the Zimmermans "acknowledged” that they had defaulted under the terms of the mortgage and that they "agreefd]” to waive any defenses to the foreclosure of the mortgage, there was still a missing link. The agreement fell short of providing that if the payments were not made when due, a final judgment of foreclosure could be entered against the Zimmermans.

      . PaineWebber, Inc., the holder of a third mortgage on the property, was also a named defendant and was included in the final sum-maiy judgment. The court’s final judgment is reversed in toto.


author: WARNER, J.

text:
    R.M., The Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-3416.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.

      Kathleen K. Pena, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

An incarcerated father appeals the termination of his parental rights to his two children, claiming that the trial court erred in relying on section 39.806(l)(d)3, Florida Statutes (2001), as a ground for termination. That section permits the court to terminate the rights of an incarcerated parent when the court determines by clear and convincing evidence that “continuing the parental relationship would be harmful to the child.” The father contends that the Department of Children and Famüies (“DCF”) faded to prove that actual contact with the father was detrimental to the chüdren. We hold that the statute does not require proof that actual contact is detrimental. DCF relied upon the testimony of the chüdren’s therapists to meet its burden in proving the father’s continuing relationship was detrimental to the children. Each testified to the chüdren’s mental state, their present lack of a relationship with their father, and their need for permanency. They each stressed that the possibility of the father reclaiming his chüdren after his incarceration would be extremely detrimental to the chüdren’s mental health. The daughter’s therapist even stated that reunification several years in the future would “completely destroy” the little girl. The trial court found this evidence compelling. We distinguish In re J.D.C., 819 So.2d 264, 266 (Fla. 2d DCA 2002), because in that case, DCF apparently offered no evidence regarding the effect continuing the parental relationship would have on the child.

Affirmed.

POLEN, C.J., and GROSS, J., concur.


author: SHAHOOD, J.

text:
    Frank SCHNEIDER, Appellant, v. Florence CRISTOL, Appellee.
    No. 4D02-3502.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Hala A. Sandridge, Burton W. Wiand and Elaine M. Rice of Fowler White Boggs Banker, P.A., Tampa, for appeUant.
    No appearance for appellee.
   SHAHOOD, J.

Appellant, Frank Schneider, appeals from a final judgment confirming an arbitration award which struck an expungement provision from the final judgment. We reverse and remand with directions that the trial court enter an amended final judgment confirming the arbitration award in its entirety in accordance with section 682.12, Florida Statutes.

Section 682.12, Florida Statutes (2001) provides:

Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14.

In Moya v. Board of Regents, State University System of Florida, 629 So.2d 282, 284 (Fla. 5th DCA 1993), the Fifth District held that the trial court does not have any discretion and must confirm an arbitrator’s award unless one of the parties seeks to vacate, modify or correct the award within 90 days of delivery of the arbitrator’s award, or unless there is an issue presented to the trial court in the motion to confirm which was not submitted to the arbitrator.

The Third District in American Reliance Insurance Co. v. Devecht, 820 So.2d 378, 379 (Fla. 3d DCA 2002), followed Moya, and held that in the absence of a motion to vacate, modify or clarify the award pursuant to section 682.13, Florida Statutes, an arbitrator’s award must be confirmed.

As in Moya and American Reliance, none of the parties moved to vacate, modify or clarify the award. Cristol did not appear or oppose the petition. Thus, there was no basis for the trial court to strike the expungement provision since that provision was included in the stipulated award approved by the arbitration panel.

REVERSED AND REMANDED.

FARMER and KLEIN, JJ., concur.


author: PER CURIAM. STONE, J.,

text:
    Robert O. POWELL and Ann S. Powell, Appellants, v. William MARKHAM, Judith M. Fink, and James A. Zingale, Appellees.
    No. 4D02-3754.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.

      Harry S. Raleigh, Jr. of Niles, Dobbins, Meeks, Raleigh & Dover, L.L.P., Fort Lauderdale, for appellants.
    Gaylord A. Wood, Jr. and B. Jordan Stuart of the Law Offices of Wood & Stuart, P.A., Fort Lauderdale, for appel-lees William Markham and James A. Zin-gale.
   PER CURIAM.

The Powells filed suit against the Bro-ward County Property Appraiser, the Bro-ward County Revenue Collection Division, and the state Department of Revenue (“the Defendants”) challenging the failure to apply the Article VII, Section 4 value assessment cap (“Save Our Homes” cap) to the increase in the assessed value of their home. The Defendants won a motion for judgment on the pleadings and the Powells appeal.

The Powells purchased their Fort Laud-erdale home in 1990. Since the time of the purchase, it has been their primary residence and they have occupied the home continuously. In 2001, the Powells received notice that their ad valorem property taxes would increase more than $10,000. On September 17, 2001, they filed their first application for homestead exemption on the property. Their homestead exemption application was approved for tax year 2001.

The Save Our Homes provision states:
[a]ll persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1 of the year following the effective date of this amendment.

Fla. Const, art. VII, § 4(c) (amended 1998).

The Powells contend that the trial court erred in concluding that they could not seek the Save Our Homes cap. They argue that the cap applies to persons “entitled to” a homestead exemption, and they were entitled to a homestead exemption from the time they bought the home, even though they never filed papers. The Defendants argue that entitlement to the homestead exemption is governed by statute, which requires that an application be made by March 1 of the year for which the taxpayer intends to claim the exemption, and the failure to timely file results in a waiver for the given year. Accordingly, the resolution of this case depends on the meaning of the word “entitled” as used in the Save Our Homes provision.

The fundamental object in construing a constitutional provision is to ascertain and give effect to the intentions of the framers and adopters, and constitutional provisions must be interpreted in such a manner as to fulfill this intention rather than to defeat it. In construing particular constitutional provisions, the object sought to be accomplished and the evils sought to be remedied should be kept in mind by the courts, and the provisions should be so interpreted as to accomplish, rather than to defeat such objects.

State ex rel. Dade County v. Dickinson, 230 So.2d 130, 135 (Fla.1970); accord Metropolitan Dade County v. City of Miami, 396 So.2d 144, 146 (Fla.1980).

The purpose of the Save Our Homes cap “is to encourage the preservation of homestead property in the face of ever increasing opportunities for real estate development, and rising property values and assessments.” Smith v. Welton, 710 So.2d 135, 137 (Fla. 1st DCA 1998); Op. Att’y Gen. Fla. 02-28 (2002). With that in mind, we conclude that entitlement to a homestead exemption, for the purpose of seeking application of the Save Our Homes cap, is not limited to homeowners that have actually applied for and been granted a homestead exemption, but includes all homeowners who qualify for and thus are entitled to a homestead exemption.

We reject Defendants’ argument that Horne v. Markham, 288 So.2d 196 (Fla.1973) is controlling here. As set forth in Home, a property owner seeking a homestead exemption must comply with requirements “prescribed by law,” such as filing: a timely application. 288 So.2d at 200. That is not the issue before this court. The Powells do not seek a homestead exemption for the year 2000; they seek application of the Save Our Homes cap to the increase in the assessed value of their home in that year. Thus, their compliance with the filing requirements of section 196.011 is irrelevant here. See § 196.011, Fla. Stat. (2002).

REVERSED and REMANDED with instructions to reinstate the Powells’ complaint.

GUNTHER and FARMER, JJ., concur.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would affirm. In my judgment, the Powells do not qualify for “save our homes” treatment for the 2001 tax year because they did not timely apply for a homestead exemption.

While the benefits of article VII, section 4(e) of the Florida Constitution apply to all persons “entitled to” a homestead exemption under section 6, section 196.011(l)(a), Florida Statutes, provides that the homestead exemption is available only to those who apply for it by March 1. The statute also states that failure to timely file results in a waiver.

Although referencing a different provision of article VII, the supreme court, in Horne v. Markham, 288 So.2d 196 (Fla.1973), rejected the assertion that article VII, section 6 creates an absolute right to the exemption, recognizing that section 6

clearly provides that taxpayers who otherwise qualify shall be granted an exemption only “upon establishment of right thereto in the manner prescribed by law”. In this case, of course, “the manner prescribed by law” is set forth in Chapter 196, Florida Statutes ....

Id. at 199. I would not impose a more restrictive reading of article VII here.

By failing to timely apply for the exemption, the Powells waived their right to any constitutional tax benefits they would otherwise be entitled to because they faded to establish their right thereto, “in the manner prescribed by law.”


author: HAZOURI, J.

text:
    Joy SMITH, Kimberly Johnson and James Webb, Appellants, v. GLEN COVE APARTMENTS CONDOMINIUMS MASTER ASSOCIATION, INC., and Neighborhood Housing Corp., Dewitt Investment, Inc., R.C. Properties International, Inc., Richard C. Weit, Constance Jefferson, Daisy Henry, and all others similarly situated, Appellees.
    No. 4D02-4592.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.

      William J. Cornwell of Weiss & Handler, P.A., Boca Raton, and Mikel Jones, Fort Lauderdale, for appellants.
    Julie A. Porter of Thomas J. Morgan, P.A., Coconut Grove, for appellee Glen Cove Apartments Condominiums Master Association, Inc.
   HAZOURI, J.

Appellants, Joy Smith, Kimberly Johnson, and James Webb, appeal from the non-final order of the trial court denying their motion for class action certification. They argue that the trial court abused its discretion in denying their motion in that the evidence they presented met the prerequisites to class representation as provided in Florida Rule of Civil Procedure 1.220. We agree.

Appellants filed a class action complaint against appellee, Glen Cove Apartments Condominium Association, Inc., and other defendants who were owners/lessors of the Glen Cove Condominium units occupied by appellants and other class members. Appellants filed their complaint against ap-pellee for failure to maintain the roofs of two buildings in the Glen Cove complex. As a result, the leaking roofs collapsed and the two buildings were condemned by the City of Lauderdale Lakes resulting in the constructive eviction of appellants.

The claims against the owners/lessors were subsequently dismissed and there remained three claims against appellee: (I) breach of statutory duty under section 718.110, Florida Statutes (2000), for appel-lee’s failure to maintain the common elements of the condemned condominium buildings; (IV) negligence, gross negligence and/or negligence per se for appel-lee’s failure to manage, maintain and repair the roofs; and (V) constructive and wrongful eviction as a result of the condemnation order.

In order to qualify for class certification, a party must meet the prerequisites of rule 1.220. The prerequisites as provided by the rule are:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (8) the claim or defense of the representative party is typical ■ of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

These prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy of representation.

Under rule 1.220(d)(1) the trial court is required to state in its order findings of fact and conclusions of law “[ijrrespective of whether the court determines that the claim or defense is maintainable on behalf of the class.... ” The trial court entered a lengthy order denying the motion for class certification. We find, however, that the trial court relied on allegations and evidence that were not relevant to appellants’ motion as will be discussed below.

NUMEROSITY

Appellants asserted in their complaint and in testimony at the hearing that the proposed class consists of more than 100 tenants and their family members who were evicted from their Glen Cove residence when the buildings were condemned. Appellee does not specifically respond to whether the members of the class are so numerous that separate joinder of each member is impracticable. The trial court’s order does not make a finding on the issue of numerosity except to the extent that it states that each of the tenants had individual leases with his/her landlord.

Rule 1.220(a)(1) requires that the court first conclude that the members of the class are so numerous that separate join-der of each member is impracticable. In Fifth Moorings Condominium, Inc. v. Shere, 81 F.R.D. 712 (S.D.Fla.1979), the court was presented with allegations asserting the class had 144 members. The court stated in considering whether the allegations were sufficient:

It is widely recognized that members alone are but one factor to consider in determining whether the “numerosity” requirement is satisfied ... The judgment as to whether a given number is sufficient is not susceptible to hard and fast standards “since ‘numerosity’ is tied to ‘impracticability’ of joinder under specific circumstances.”
“Impracticability” does not mean impossibility. It is sufficient if it is inconvenient or difficult to join all members of the class.

Id. at 715-16 (citations omitted). The court concluded as follows in holding that sufficient impracticability of joinder exists:

The Court views the size of the class, the inconvenience of proceeding as a non-class action, and the nature of the case as being determinative facts in this holding.

Id. at 716.

As the class in this case has approximately 100 members who were residents of low income housing indicating that they lacked the resources to bring separate actions, we find that separate joinder would be impracticable and the numerosity requirement of the rule is met. See, e.g., Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 853 (Fla. 3d DCA 1997).

COMMONALITY

In their complaint, appellants list fourteen questions of fact they allege are common to the claims of the representative parties as well as the claims of the individual members of each class. In its order, the trial court cited to four of these allegations and held that these allegations show a lack of commonality. The trial court also held that appellants stated fraud claims based upon separate contracts which is not appropriate for class action certification, citing Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d 599 (Fla.1977), and Lance v. Wade, 457 So.2d 1008 (Fla.1984).

The allegations in the complaint against appellee do not allege fraud or misrepresentation by appellee and they are not based upon the leases appellants had with their landlords. The common questions of law and fact against appellee are whether appellee violated its statutory duty or was negligent in its failure to maintain the roofs causing damages to appellants and the members of the class.

“The primary concern in determining commonality is whether the representative members’ claims arise from the same course of conduct that gave rise to the other claims, and whether the claims are based on the same legal theory.” Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002). We find that these allegations raise issues of law and fact which are common to all potential class members.

TYPICALITY

Rule 1.220(a)(3) requires that the class representative’s claims be typical of the claim of each member of the class. Appellants allege that they all sustained damages when they were required to vacate their rental properties due to hazardous conditions which resulted from the ap-pellee’s failure to maintain the common elements. The trial court’s finding on typicality was again based upon the fact that the appellants had separate leasing agreements with different landlords, that appel-lee was not a party to these leases and that only some of the 120 units suffered water damage to the interior. As discussed above, appellants’ claims against appellee are not based upon the leases and the finding that the claims were not typical because of this was an abuse of discretion.

In Broin v. Philip Morris Cos., 641 So.2d 888 (Fla. 3d DCA 1994), the court held with respect to typicality:

All class members seek the same remedy. The representatives’ claims and the class members’ claims are not antagonistic in any way. The mere presence of factual differences will not defeat typicality.

Id. at 892 (citations omitted). Appellants’ claims meet this requirement in that they all claim that appellee was negligent and violated the statute causing damages to them.

ADEQUATE REPRESENTATION

Quoting Pottinger v. City of Miami, 720 F.Supp. 955, 959 (S.D.Fla.1989), the court in Broin held that “[t]he ‘adequacy of representation’ requirement is met if the named representatives have interests in common with the proposed class members and the representatives and their qualified attorneys will properly prosecute the action.” Broin, 641 So.2d at 892.

In this case the trial court held that appellant could not adequately represent the interests of the class. It held:

Not one of the purported class members entered into a lease agreement with Glen Cove, but with different unit owners. The rights and/or obligations of the purported class members and/or their landlords would be determined by the lease agreement which they negotiated. The damages suffered by each tenant would also vary depending upon whom [sic] their landlord was and what actions were taken by their respective landlords to assist them when the buildings were shut down, such as: providing them with reimbursements of rent and/or security deposits, finding them alternative housing, assisting with storage of their belongings and/or moving and any other type of assistance which may have been provided. Due to the variables present, based upon the individual contracts, the named Plaintiffs cannot adequately protect and represent the interests of the purported class members.

The trial court has again made its decision on an incorrect basis. In this case, the representatives seek the same relief as the class members and they have suffered the same injury as the class members.

In addition to meeting the requirements of rule 1.220(a), appellants must demonstrate the class action is maintainable under rule 1.220(b)(1), (2) or (3). Appellants assert that they qualify for certification under subsection (3). To qualify for certification under that subsection of the rule, a class must meet two requirements: 1) the common questions predominate over any questions affecting only individual members, and 2) the class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

Appellants meet the first requirement in that the questions common to both the representatives and the members of the class, whether the appellee violated the statute and whether it was liable for negligence, predominate over other questions such as, for example, damages, which may be different for each member of the class.

Finally, appellants also meet the second requirement that the resolution of the liability of appellee in one proceeding with respect to all possible plaintiffs is a superi- or means of adjudicating this case than individual suits by each member of the class.

Based upon this analysis, we conclude that the trial court abused its discretion in denying appellants’ motion for class certification. We reverse and direct the trial court to certify the class.

REVERSED.

FARMER and MAY, JJ., concur.


text:
    Mary V. HAMILTON and Robert D. Burgett, Appellants, v. Alice DONAHUE and Eileen H. Matta, Appellees.
    No. 4D02-4730.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    James P. Covey of James P. Covey, P.A., Vero Beach, for appellants.
    Norman L. Paxton, Jr. of Paxton & Williams, Fort Pierce, for appellees.
   PER CURIAM.

Appellants, who are distributees of a terminated marital trust, challenge an order appointing a successor trustee to the trust. The trust provided for income to the settlor for life and termination of the trust upon the income beneficiary’s death. The income beneficiary is now deceased. A trustee is needed to wind up the trust because the previous trustees resigned. Appellants’ main complaint is that the court failed to follow the trust’s provisions regarding the appointment of a successor trustee. They cite to the trust provision which provides first for the income beneficiary or beneficiaries to try to agree on a successor trustee. Because the income beneficiary is deceased, however, that provision of the trust was inoperative. Instead, the operative provision provides for the appointment of a successor trustee by the court upon the trustee’s resignation. Therefore, there was no error in the trial court’s order appointing a successor trustee.

As to appellants’ claim that the appointed trustee was biased, appellants have failed to supply us with a record of the hearing on this issue. Therefore, the trial court’s ruling is presumed to be correct. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Affirmed.

WARNER, KLEIN and SHAHOOD, JJ., concur.


text:
    Renee Sharon KATZIN, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and Shells of Brandon, Inc., Appellees.
    No. 4D02-5144.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Renee Sharon Katzin, Sunrise, pro se.
    No appearance for appellees.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    TRAVELERS INDEMNITY CO. OF ILLINOIS, etc., Appellant, v. Carol HUTSON and Jerry Hutson, etc., et al., Appellees.
    No. 1D02-3804.
    District Court of Appeal of Florida, First District.
    June 19, 2003.

      Dennis P. Dore and Charles G. Eich-horn, Jr., of Dore, Lanier, Noey & Fannin, Chartered, Jacksonville, for Appellant.
    Robert E. O’Quinn, Jr., and Harold A. DePalma of Webb & O’Quinn, P.A., Jacksonville, for Appellee Jacksonville Port Authority.
   PER CURIAM.

Appellant, Travelers Indemnity Co., seeks review of a summary final judgment entered against it and in favor of appellee Jacksonville Port Authority on a contractual indemnity claim. Absent an ambiguity, interpretation of a contract is a question of law to be decided by the court. E.g., Gainesville-Alachua County Reg’l Airport Auth. v. R. Hyden Constr., Inc., 766 So.2d 1238, 1239 (Fla. 1st DCA 2000). Whether an ambiguity exists in a contract is also a question of law. E.g., Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 565-66 (Fla. 1st DCA 2000). The trial court correctly concluded that the provisions of the contract between the Port Authority and Travelers’ insured are not ambiguous; and that they require Travelers’ insured to indemnify the Port Authority for any claim “in any way resulting from or arising out of, directly or indirectly,” the “operations” of, or “use or occupancy of any portion of Jacksonville International Airport” by, the insured or its “officers, [sjuboperators, employees, representatives, suppliers, invitees, customers, guests, patrons, contractors, and agents,” unless the claim resulted solely from the “negligence of officers, agents or employees of the [Port] Authority.” The trial court also correctly concluded that no genuine issue regarding any material fact existed as to whether the claim “in any way resulted] from or aros[e] out of’ the “operations” of, or “use or occupancy of any portion of Jacksonville International Airport” by, Travelers’ insured or a “[s]u-boperator[ ]” of the insured. However, because our review of the record establishes that Travelers correctly contends that disputed issues of material fact do exist as to whether the claim resulted solely from the “negligence of officers, agents or employees of the [Port] Authority,” we are constrained to reverse, and remand for further proceedings. See, e.g., Moore v. Morns, 475 So.2d 666, 668 (Fla.1985) (“[i]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it”); Jones v. Dirs. Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991) (“if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied”).

REVERSED and REMANDED, with directions.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


text:
    Aaron C. HARTZOG, Jr., Appellant, v. NEW YORK YANKEES and TIG Insurance, Appellees.
    No. 1D02-1412.
    District Court of Appeal of Florida, First District.
    June 19, 2003.
    John Moneyham, Panama City; and Bill McCabe, Longwood, for appellant.
    Patrick E. Weaver and Timothy R. Whitney, of McConnaughhay, Duffy, Coon-rod, Pope & Weaver, P.A., Panama City, for appellees.
   PER CURIAM.

Appellant, Aaron C. Hartzog, Jr., received skilled services provided by a physician in October 1999, and therefore, he received “remedial treatment or attention” as defined by the relevant workers’ compensation statute in effect at the time he was injured, section 440.19(l)(c), Florida Statutes (1991). As such, under the specific facts of this case, the Judge of Compensation Claims erred in denying appellant’s claim based on the statute of limitations, section 440.19(l)(b), Florida Statutes (1991).

We reverse and remand for further proceedings consistent with this opinion.

BARFIELD, WOLF and DAVIS, JJ., concur.

      . This section was substantially and materially amended effective January 1, 1994. See Ch. 93-415, § 23 at 135-136, Laws of Fla. We note that it is unlikely that appellant's Octo-her 1999 visit would qualify as "remedial treatment” under the post-1994 workers' compensation statute. See § 440.19(2), Fla. Stat. (Supp.1994).


author: WOLF, J.

text:
    MILLENNIUM GROUP I, L.L.C. and the Dock at Pensacola, Inc., Appellant, v. ATTORNEYS TITLE INSURANCE FUND, INC. and Dewitt DeWeese, Jr., Appellee.
    No. 1D02-0631.
    District Court of Appeal of Florida, First District.
    June 19, 2003.

      Lisa Minshew, Pensacola; and Connie Montgomery, Kenner, Louisiana, for appellant.
    Bruce A. McDonald, of McDonald, Fleming, Moorhead, Ferguson, Green & Smith, LLP, Pensacola, for appellee.
   WOLF, J.

We review an order granting summary judgment in favor of Dewitt DeWeese, Jr. as to a counterclaim which he filed and the partial final judgment allowing execution to issue against appellants. The dispute between the parties arises out of the sale of The Dock at Pensacola, Inc. (“The Dock”). Because we find that there are genuine issues of material fact relating to the affirmative defenses to the counterclaim, and that the trial court erred as a matter of law in allowing the execution of judgment to be entered without resolving the issue of whether there were damages arising out of appellant’s original claim, we reverse and remand.

Appellant, Millennium Group I, L.L.C. (“Millennium”) filed suit against the appel-lee, Dewitt DeWeese (“DeWeese”) alleging that DeWeese had made fraudulent misrepresentations regarding the title of The Dock. In response, DeWeese filed an answer, affirmative defenses, and counterclaim alleging that Millennium had executed and delivered a promissory note in the amount of $200,000 plus interest which Millennium failed to pay.

Subsequently DeWeese filed a motion for summary judgment on his counterclaim, along with an affidavit and proof of indebtedness. After a hearing on the motion for summary judgment, the trial court rendered an order in favor of DeWeese on his counterclaim. The trial court entered a partial final judgment allowing execution to issue in the amount of the note, with interest.

Regarding the execution, courts have repeatedly held that where summary judgment is granted for one party and a counterclaim (or in this case the original claim) remains pending, the trial court should stay the execution of the judgment pending the resolution of the remaining claim. See Tooltrend, Inc. v. C.M.T. Utensili, S.r.l., 707 So.2d 1162 (Fla. 2d DCA 1998); Howell v. Miller, 638 So.2d 544 (Fla. 2d DCA 1994); Carpenter v. Super Pools, Inc., 534 So.2d 426 (Fla. 5th DCA 1988); Zanathy v. Beach Harbor Club Ass’n, Inc., 343 So.2d 625 (Fla. 2d DCA 1977). Here, the trial court erred in allowing the execution of the judgment without resolving the issue of whether DeWeese was hable for damages on appellant’s claim of fraudulent misrepresentation.

We also find that the trial court erred in granting partial summary judgment on DeWeese’s action for indebtedness. Here, Millennium asserted fraud as an affirmative defense to DeWeese’s counterclaim. See Hinton v. Brooks, 820 So.2d 325 (Fla. 5th DCA 2001) (reversing judgment on foreclosure; holding purchaser’s affirmative defense of fraud in the inducement was not barred by economic loss rule); Norris v. Paps, 615 So.2d 735 (Fla. 2d DCA 1993). The facts in Paps are similar to this appeal. There, the mortgagor filed an action for foreclosure and the mortgagee filed a counterclaim for fraud. The appellate court reversed the judgment entered for the mortgagor because the trial court had erred in failing to address the claims of fraud:

By severing the counterclaim in this case, the court either determined the factual issues of fraud without evidence and without a jury, or it entered a final judgment for the plaintiff before it resolved the affirmative defense of fraud. Either option would be error.
Since the trial court could not sever the affirmative defense of fraud from this foreclosure action, it is obvious that a judgment on the pleadings was not warranted. In reviewing such a judgment, all material allegations of the opposing party are taken as true, and all those of the moving party that have been denied are taken as false. The court is not permitted to consider any matter outside the pleadings.

Id. at 737 (citations omitted).

Based on the deposition testimony of Jan Scruggs, Millennium’s sole stockholder, there is a factual issue as to whether DeWeese knew or should have known about the title defects despite DeWeese’s representations to the contrary to Millennium. There is also an issue of whether Millennium incurred any damages as a result of the title defects or the fraudulent misrepresentation. Because issues of fact remain as to the affirmative defenses in appellant’s original claim, we reverse the order granting summary judgment as to the counterclaim and subsequent execution. See Moultrie v. Consolidated Stores Int’l. Corp., 764 So.2d 637 (Fla. 1st DCA 2000) (noting that the party moving for summary judgment must demonstrate conclusively that no genuine issues exist as to any material fact, even after all reasonable inferences are drawn in favor of the party opposing the summary judgment).

REVERSE AND REMAND.

BARFIELD and DAVIS, JJ., concur.

      . Attorneys Title Insurance Fund, Inc. was voluntarily dismissed from this action.


text:
    FLORIDA EAST COAST RAILWAY, L.L.C. Petitioner, v. Paul S. JONES Respondent.
    No. 1D02-4591.
    District Court of Appeal of Florida, First District.
    June 19, 2003.
    Eric L. Leach and James T. Bailey, Jr., of Milton, Leach, Whitman, D’Andrea, Charek & Milton, P.A., Jacksonville, for Petitioner.
    Willard J. Moody, Jr., of Moody, Stro-ple, Kloeppel, Basilone & Higginbotham, Inc., Portsmouth, Virginia; and William Earl Higginbotham, of Moody, Strople, Kloeppel, Basilone & Higginbotham, Inc., Jacksonville, for Respondent.
   WOLF, J.

Petitioner, Florida East Coast Railway, L.L.C. (“the Railway”), seeks cer-tiorari review of a discovery order requiring it to produce photographs, measurements, and a diagram purportedly taken in anticipation of litigation to Respondent, Paul S. Jones (“Jones”). Jones was employed by the Railway when he was involved in an accident with a railway car. “Non-final orders that permit discovery are a classic example of the type of interlocutory order that may be reviewed by writ of certiorari.” Procter & Gamble Co. v. Swilley, 462 So.2d 1188, 1192 (Fla. 1st DCA 1985). Certiorari intervention is appropriate especially when, as here, the trial court’s order departs from the essential requirements of law, thereby causing material harm — disclosure of privileged work-product — for which there is no adequate remedy on final appeal. See Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002); 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935 (Fla. 4th DCA 2002).

After the Railway objected to Jones’ request for photographs, measurements, and a diagram prepared by it after the accident, the respondent filed a motion to compel. No sworn testimony was taken at the hearing, nor did respondent submit any affidavits or other evidence. The trial court stated at the hearing on the motion to compel, and again in its order, that Jones was not required to show by affidavit his need or inability to obtain the substantial equivalent of the requested materials. This was a departure from the essential requirements of Florida law. Before a party can obtain discovery of work product material, it must show that it “has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3). The bare assertions of counsel are clearly inadequate to show the “need” and “undue hardship” required for production of work product documents. See Procter & Gamble Co., 462 So.2d at 1195 (Fla. 1st DCA 1985); CSX Transp., Inc. v. Carpenter, 725 So.2d 434 (Fla. 2d DCA 1999).

The trial court made its ruling based on the assertion by counsel that the environment and conditions at the scene of the accident had changed. This alone cannot justify compelling disclosure of work-product photographs. See CSX Transp., Inc., 725 So.2d at 435. Even if the conditions had changed since the time of the accident, there is nothing in the record, including the arguments by Jones’ counsel to explain why it is impractical for Jones to obtain or recreate the diagram through the testimony of the noted witnesses, or why he cannot take the measurements now as suggested by the Railway. Moreover, there was no showing as to the extent of respondent’s own diligence.

Regarding the photographs, although the conditions at the site of the accident may have changed, the Railway seems to have conceded that it may have to produce certain photographs if plaintiff establishes that these changes have occurred. The pictures are not in the record before us, and therefore, it is impossible to know whether the substantial equivalent could be produced.

We do not determine whether respondent can or cannot make the requisite showing. Rather, we hold that respondent failed to make the requisite showing before the trial court. In quashing this order we direct the trial court to hold an evidentiary hearing to determine whether the plaintiff could make the requisite showing of need and undue hardship. In doing so the trial court should review the materials in camera to determine whether Jones can meet his burden under rule 1.280(b)(3). See generally, Hamilton v. Ramos, 796 So.2d 1269 (Fla. 4th DCA 2001) (quashing order compelling discovery; noting trial court should have conducted in camera hearing to determine whether deposition questions elicited information protected by work product privilege).

PETITION FOR WRIT GRANTED; ORDER QUASHED; REMANDED FOR FURTHER PROCEEDINGS.

BARFIELD and DAVIS, JJ., concur.


text:
    Wyon Dale CHILDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2154.
    District Court of Appeal of Florida, First District.
    June 19, 2003.
    Richard G. Lubin and John Olea of Richard G. Lubin, P.A., West Palm Beach, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER ON EXPEDITED MOTION FOR BOND PENDING APPEAL

PER CURIAM.

Appellant has filed a motion seeking review of the trial court’s denial of his request for bond pending appeal. See Fla. R.App. P. 9.140(h). In the motion, appellant asserts that the trial court abused its discretion by applying the incorrect standard in determining whether to grant post-trial release. We agree and grant appellant’s motion on that basis.

The threshold question presented in a motion for bond pending appeal is whether the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. See Fla. R.Crim. P. 3.691(a); Younghans v. State, 90 So.2d 308 (Fla.1956). In Baker v. State, 213 So.2d 285, 287 (Fla. 4th DCA 1968), the court explained “[g]ood faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist.”

In the present case, the trial court found that the appeal was not frivolous and was taken in good faith. However, the trial court noted that the grounds for appeal had been raised in motions for a new trial and judgment of acquittal and those motions had been denied as being without merit. Accordingly, the trial court found that appellant had failed to establish that the appeal was taken on grounds fairly debatable. In explaining its decision, the trial court stated “I think the Court would be hypocritical in doing what he did and then say at the same time that there are grounds fairly debatable.”

This standard applied by the trial court imposes a higher burden on appellant than is required by rule 3.691 and the caselaw. Post-trial release is not dependent on whether the appellate issues have been raised before the trial court and rejected. The standard is whether the issues raised are open to debate and involve reasonable questions. See Baker. After all, most issues raised on appeal have been presented to the trial court and rejected. Application of an incorrect standard in a bond proceeding is an abuse of discretion requiring reversal. See Boles v. State, 388 So.2d 581 (Fla. 5th DCA 1980)(reversing the trial court’s denial of bond pending appeal where the trial court applied an incorrect standard requiring the appeal to be very likely to succeed). Therefore, we grant appellant’s motion in part and remand this matter to the trial court for further consideration.

VAN NORTWICK and BROWNING, JJ., concur; WEBSTER, J., concurs in result only.


text:
    Melvin PACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0824.
    District Court of Appeal of Florida, First District.
    June 19, 2003.
    Teresa J. Sopp, P.A., Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Melvin Pack seeks a belated appeal of the judgment and sentence rendered on October 10, 2002, in Duval County Circuit Court case number 2002-3084-CF-A. According to Pack, he timely requested that counsel file a notice of appeal, but counsel inadvertently failed to do so. In response to an order to show cause, the state has conceded that Pack is entitled to a belated appeal. Accordingly, Pack’s petition is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BARFIELD, WOLF and DAVIS, JJ., concur.


author: SHARP, W., J.

text:
    STATE of Florida, Appellant, v. C.R.K., A Child, Appellee.
    No. 5D02-3525.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   SHARP, W., J.

The state appeals from an order of the trial court which dismissed a criminal information because the state lacked familiarity with the charges and evidence, which caused a delay, and because when the hearing resumed, the state’s witness (the arresting officer) was across the hall watching a video. We reverse.

Florida Rule of Criminal Procedure 3.220(n) empowers the trial court to dismiss an information as a sanction. However, dismissal is an extreme sanction, and should be used only when a lesser sanction would not accomplish the desired result. State v. Theriault, 590 So.2d 993 (Fla. 5th DCA 1991). A court must find that the prosecutor’s violation resulted in prejudice to the defendant. Theriault. In this context, prejudice means the action affects the defendant’s ability to properly prepare for trial. Theriault.

This case commenced with a traffic stop which resulted in the arresting officer’s discovery that the driver (C.R.K.) had drug paraphernalia in the car. He was charged with use and possession of drug paraphernalia. When C.R.K. and his attorney appeared for trial, October 21, 2002, the attorney moved for a statement of particulars because there was no indication as to the nature of the drug paraphernalia. The prosecuting attorney did not know. The court adjourned the proceeding and handled other matters from 10:22 a.m. to 10:39 a.m.

When the court resumed the proceedings, defense counsel said he was ready to proceed. The court asked if the arresting officer was present. The prosecutor said he was. She also said the paraphernalia consisted of a glass pipe, a plastic bag, and a pipe. The court handled unrelated matters from 10:41 a.m. to 10:59 a.m.

The proceeding resumed. The court asked defense counsel if there was still going to be a trial. He said yes. The court handled unrelated matters from 10:59 to 11:14 a.m.

The court called the case. The prosecutor said the arresting officer was watching a video, and as soon as he returned, the state was ready to proceed. No doubt, on reflection, the prosecutor wishes now that she had offered to fetch her witness “immediately.”

The court responded, “no, you’re going now.” The prosecutor asked if she could send her co-counsel “to go see if he’s ...” She was cut off by the following:

COURT: You better get him because I’m about to dismiss the case. What is this? What is this? This case has been set for 9:30, and it’s 11:15. What is this? I mean, you know, even needless, — I mean, Neiman Marcus isn’t like this. This is not a — okay. Guess what. At this point, you’ve got four minutes-aetually, you’ve got less than that. No. Tell you what. Motion?
MR. MEAD (defense counsel): Move to dismiss.
COURT: Response?
MS. MOORE (prosecutor): We would object, Your Honor. As soon as we get the witness here ...
COURT: The witness is not in the courtroom. It’s 11:15. The case was set for 9:30. We’ve sounded it twice. Case dismissed ... based on the failure of the witness to appear.

The trial judge’s frustration with the delay, in getting this trial under way is understandable. But dismissal of this case appears to us an over-reaction. The delays were not long and some were caused by the trial judge’s busy calendar and his having to deal with unrelated matters. Nor was it established that more than a few minutes would have been required to bring the state’s witness back to the courtroom, since he had left the room some 30 minutes earlier, and was close by.

A lesser sanction would have accomplished the desired result of promptly proceeding with the trial, and the failures on the part of the state were minor. Dismissal was a breach of discretion in this case. See State v. Thomas, 622 So.2d 174 (Fla. 5th DCA1993);. Theriault.

REVERSED.

GRIFFIN and PALMER, JJ., concur.

      . § 893.147(1), Fla. Stat. (2002).


author: NESBITT, Senior Judge.

text:
    Guillermo SOSTCHIN, Trustee, d/b/a Demeris # 2, Appellant, v. DOLL ENTERPRISES, INC., Appellee.
    Nos. 3D01-3392, 3D01-2490.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.

      Ponzoli Wassenberg & Sperkacz and Lauri Waldman Ross and Philip D. Parrish, for appellant.
    Stabinski & Funt and Lawrence & Daniels and Adam H. Lawrence, for appellee.
    Before SCHWARTZ, C. J., and WELLS, J., and NESBITT, Senior Judge.
   On Clarification Granted

NESBITT, Senior Judge.

On March 24, 1998, a fire destroyed the multi-tenant commercial building in downtown Miami in which Appellee Doll Enterprises, Inc. (“King Shoes”) rented space from Appellant Guillermo Sostchin, Trustee (“Landlord”). A jury verdict found Landlord liable in negligence for causing the fire and awarded King Shoes $1,300,000 in damages, including $1,180,000 in “future lost profits” from the date of the fire to July 31, 2004, the end of King Shoes’ ten year lease. On appeal, Landlord challenges certain evidentiary rulings made by the trial court in connection with Landlord’s liability for causation of the fire and challenges the legal sufficiency of the damages award.

We conclude there was no reversible error as to the finding of liability. However, we find that the lost profits damages award was improperly based upon gross profits, rather than net profits, and was, to say the least, speculative. The damages award must, accordingly, be vacated and a new trial conducted as to damages only.

The evidence shows that Bang Shoes commenced operations selling inexpensive shoes at Landlord’s property in 1994. During the first three years of operation King Shoes incurred an accumulated net loss, its tax returns indicating a loss of $16,220 in 1994, a profit of $11,833 in 1995, and a loss of $1,513 in 1996. In 1997, the year immediately preceding the fire, King Shoes had its best year, and its tax return indicates it made a net profit of $31,762. Within 6 weeks of the fire King Shoes reopened in a different building approximately a block and a half away with the same employees, and was still in business when this lawsuit was filed in 1999. King Shoes closed its business in the summer of 2000, about a year prior to the trial, and claims it incurred losses at the new location.

Despite the modest and short term nature of King Shoes’ pre-fire profits, King Shoes’ expert accountant opined that the fire had resulted in lost prospective profits in the following amounts: 1998: $199,397; 1999: $170,056; 2000: $164,195; 2001: $169,121; 2002: $174,195; 2003: $179,421; 2004: $130,356. The accounting alchemy by which this humble enterprise was transformed into an engine of commerce is made possible only by first improperly failing to include officer compensation as part of the corporation’s expenses, and thereby basing all assumptions upon gross profits, rather than net profits as the law requires.

In interrogatory answers, King Shoes explained the methodology by which it concluded that its lost profits resulting from the fire were approximately $1.2 million:

These figures were arrived by calculating the growth rate of the company’s generated net income from 1996 to 1997 which amounted to 35.26%. Using this growth rate, the company’s projected net income was calculated for the years 1998, 1999, and 2000. A five year average of the net income for the years 1996 through 2000 was taken which amounted to $159,413. This five year average represents the business’ stabilization point. This figure was then increased by 3% which represents the estimated annual inflation.

The interrogatory answers further stated:

In reaching the above calculations, all expenses were deducted except that of compensation to officers. This amount was not deducted because it was not an expense of the corporation but anticipated profits.

At trial, King Shoes’ expert accountant testified that his lost profit calculations involved adding up his estimates of the projected “Net Profit Available to Owner” for each remaining year on the lease after the fire. He explained what was included in “Net Profit Available to Owner”:

Q: What does the second line of the chart mean?
A: The second fine [“Net Profit Available to Owner”] is after you record the costs of sales and all of the fixed and variable expenses for this business, this is the net profit available to the owner to pay himself however he wishes in either salary or as a dividend. (Emphasis added).

King Shoes’ tax returns and its accountant’s trial testimony and demonstrative exhibits clearly show that officer compensation paid to the corporation’s owner was not excluded from the calculation of net profits as it is required to be, and these improperly inflated figures were used as a jumping off point to extrapolate continued rapid growth. Such proof of future lost profits is inadequate as a matter of law. We addressed this issue in Southern Bell Tel. And Tel. Co. v. Kaminester, 400 So.2d 804 (Fla. 3d DCA 1981):

[T]he trial court erred in denying.. the motion for new trial because the corporation failed to deduct the compensation it paid to Dr. Kaminester in computing net profits rendering its proof of lost profits inadequate. In proving damages caused by lost net profits, a corporation, in arriving at the net loss, must deduct the expense of salaries paid to its officers ... We also reject appellee’s argument that when the corporation is a professional association whose officer is a physician, an exception should be made to the general rule that a showing of loss of net profits requires a corporation to deduct the compensation paid to its officer ... A practitioner who incorporates should not be allowed to enjoy the benefits of the corporate form, then, because it would be economically advantageous to the practitioner in a suit brought by the corporation seeking damages, be free to disregard that corporate form. We hold that the failure to deduct the compensation of Dr. Kami-nester in the computation of net profits rendered the proof of damages inadequate as a matter of law, and that the court erred in not granting Southern Bell’s motion for a new trial.

400 So.2d at 807 (citations omitted). See also Fu Sheng Indus. Co., Ltd. v. T/F Systems, Inc., 690 So.2d 617, 628 (Fla. 4th DCA 1997)(lost profit damages must reflect net profits deducting all costs); State Dept. of Transp. v. Murray, 670 So.2d 977, 979 (Fla. 1st DCA 1996)(determination of lost profits must deduct salary paid to owner/supervisor); State Dept. of Transp. v. Manoly 645 So.2d 1093, 1094 (Fla. 4th DCA 1994)(where salary paid to business owner was not deducted before calculating lost profits expert testimony was based on misconception of law and was inadmissible); Indian River Colony Club, Inc. v. Schopke Const. & Engineering, 592 So.2d 1185, 1187 (Fla. 5th DCA 1992)(lost profits analysis must deduct the actual supervisory salary paid); Physicians Reference Laboratory, Inc. v. Daniel Seckinger, M.D. and Associates, P.A., 501 So.2d 107, 109 (Fla. 3d DCA 1987)(all fixed and variable costs must be deducted from proceeds in determining lost profits); Born v. Goldstein, 450 So.2d 262, 264 (Fla. 5th DCA 1984)(lost profit damages must be based on net profits); E.T. Legg & Associates, Ltd. v. Shamrock Auto Rentals, Inc., 386 So.2d 1273, 1274 (Fla. 3d DCA 1980)(where evidence only pertains to gross receipts or fails to account for expenses lost profits award will be reversed); Ed Skoda Ford, Inc. v. P & P Paint & Body Shop, Inc., 277 So.2d 818, 819 (Fla. 3d DCA 1973) cert. den. 284 So.2d 395 (Fla.1973)(officers’ salaries must be accounted for on corporation’s income statement, thereby reducing calculation of annual profit).

Whether, as King Shoes’ argues, the compensation of its owner/officer included corporate proceeds that were paid as salary for “tax planning” reasons is of no moment. “[T]he officers of the plaintiff corporation cannot avail themselves of the corporate shield when it suits their purpose and discard the same when it does not appear advantageous.” Ed Skoda Ford, supra, 277 So.2d at 819.

In addition to improperly using gross profit figures, an error which permeated and invalidated all other conclusions of King Shoes’ expert, the damages claimed were highly speculative and conjectural. King Shoes’ expert testified that the business “had a positive trend” based on a 25% increase in sales from 1996 to 1997 and the purported 35% increase in profits for the same time period. Using this small slice of time to define the trend for the entire six and a half year remainder of the lease term, the expert projected that, but for the fire, the profitability of the business would have continued to escalate dramatically. Based upon 1997’s perceived 35% increase in profits, an increase in profits of an additional 35% was projected for 1998. Then an additional 10% increase in profits beyond that was projected for 1999, and then, the business having “stabilized,” increasing profits at the rate of 3% per year, to account for inflation, were projected through mid-2004.

In W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348, 1350-51 (Fla.1989), the guidelines for the recovery of lost prospective profits were succinctly stated:

The two seminal Florida cases on recovery of prospective profits are Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936), and New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1935). In New Amsterdam this Court held that prospective business profits are generally too speculative and dependent on changing circumstances to be recovered. New Amsterdam provided an exception allowing the plaintiff to show the amount of his loss by competent proof. However, this exception only applied to the interruption of an established business. Twyman, on the other hand, did not limit recovery to established businesses. There, the Court stated that, if there is a “yardstick” by which prospective profits can be measured, they will be allowed if proven. 123 Fla. at 6, 166 So. at 217. The Court provided further that the “uncertainty which defeats recovery in such cases” is the cause of the damage rather than the amount. “If from proximate estimates of witnesses a satisfactory conclusion can be reached, it is sufficient if there is such certainty a satisfies the mind of a prudent and impartial person.” Id. at 7-8, 166 So. at 218. See also Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla. 3d DCA), cert. denied, 322 So.2d 913 (Fla.1975).
We follow the holding in Twyman. A business can recover lost prospective profits regardless of whether it is established or has any “track record.” The party must prove that 1) the defendant’s action caused the damage and 2) there is some standard by which the amount of damages may be adequately determined. (emphasis added).

On remand, to recover for lost profits, King Shoes must “provide competent evidence sufficient to satisfy the mind of a prudent impartial person as to the amount of profits lost as a result” of the fire. North Dade Community Development Corp. v. Dinner’s Place, Inc., 827 So.2d 352 (Fla. 3d DCA 2002). Any “yardstick” used to show the amount of profits must be reasonable, and the loss of the profits as a result of the fire must be reasonably certain. Halliburton Co. v. Eastern Cement Corp., 672 So.2d 844 (Fla. 4th DCA 1996). Lost profits must be established with a reasonable degree of certainty and must be a natural consequence of the wrong. Brevard County Fair Ass’n, Inc. v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002); Schonfeld v. Albert Alpert & Sons, Ltd., 427 So.2d 1035 (Fla. 3d DCA 1983); Beverage Canners v. Cott Corp., 372 So.2d 954 (Fla. 3d DCA 1979). Such an award cannot be based upon speculation or conjecture. Stensby v. Effjohn Oy Ab, 806 So.2d 542 (Fla. 3d DCA 2001); Shadow Lakes, Inc. v. Cudlipp Const. and Development Co., Inc., 658 So.2d 116 (Fla. 2d DCA 1995); Himes v. Brown & Co. Securities Corp., 518 So.2d 937 (Fla. 3d DCA 1988).

The term of the parties’ lease does not define the duration of lost profit damages incurred as a result of the fire. To repeat, the loss of profits must be shown with reasonable certainty, and the mere existence of a leasehold interest for six and half years following the fire does not establish that profits would have been realized for that entire time. In light of the fact that King Shoes closed at a nearby location two years after the fire, and given its modest and sporadic pre-fire profits, an award of lost profits for the entire remaining six and half years of the lease term is too remote and speculative to satisfy the reasonable certainty requirement as to causation required by Wharfside, supra, and its progeny.

The fundamental principle of the law of damages is that the person injured by breach of contract or by wrongful or negligent act or omission shall have fair and just compensation commensurate with the with the loss sustained in consequence of the defendant’s act which gave rise to the action. In other words, the damages awarded should be equal to and precisely commensurate with the injury sustained.

Hanna v. Martin, 49 So.2d 585 (Fla.1950). See also Pahokee Housing Authority, Inc. v. South Florida Sanitation, Co., 478 So.2d 1107, 1108 (Fla. 4th DCA 1985) (lost profit award must be commensurate with what is fair and just and limited to actual damages sustained). In short, this fire was not the purchase of a winning lottery ticket for King Shoes, and any lost profits award must be limited to the actual damages sustained.

Affirmed in part, reversed in part, and remanded for a new trial as to damages only.

      . We reverse only the lost profits portion of the damage award and do not disturb the jury verdict as to damages for inventory and fixtures lost in the fire.

      . King Shoes introduced evidence (in connection with liability issues) that the building was in an area that, as of 1998, was a high crime area, was deserted and dangerous at night, and that all store owners in the area installed shutters, iron bars, accordion gates or alarm systems.

      . For example, in 1996 King Shoes’ tax return showed a net loss of $1,513, and its expenses included compensation of officers in the amount of $81,18.0. In 1997, King Shoes’ tax return showed a net profit of $31,762, and its expenses included compensation of officers in the amount of $76,000. However, King Shoes’ accountant used so-called "net profit” figures (which were actually gross profits) of $79,667 for 1996 and $107,762 for 1997 as the baseline for predicting future lost profits.

      . King Shoes' further suggestion that its election of S corporation status as of 1998 somehow avoids the applicability of Kaminester, supra, is incorrect. First, all of King Shoes’ pre-fire tax returns, which reflected officer compensation, were filed as a standard Florida corporation, and any net profits analysis must deduct such officer compensation. Second, the mere fact that an S corporation passes through income to its owner for taxation purposes would not alter the necessity to deduct the reasonable value of the owner/officer’s salary for the services provided in determining the actual net profits of the corporation. Network Publications, Inc. v. Bjorkman, 756 So.2d 1028, 1034 (Fla. 5th DCA 2000)(Harris, J. concurring in part, and dissenting in part, with opinion). See also Trailer Ranch, Inc. v. Levine, 523 So.2d 629, 631 (Fla. 4th DCA 1988)(S corporation’s payment of dividend via pass-through income does not necessarily mathematically relate to the amount of real profit the business made during the year).

      . The trial court should further consider whether King Shoes properly mitigated its damages. Zinn v. GJPS Lukas, Inc., 695 So.2d 499, 501 (Fla. 5th DCA 1997)(where business suffers from act of negligence, the amount of lost profits recoverable will depend, in part, upon whether the plaintiff discharged their duty to mitigate their damages).

      . King Shoes seeks to recover damages for its net profits lost as a proximate result of the fire, not damages for the destruction of its business. If a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of loss. Polyglycoat Corp. v. Hirsch Distributors, Inc., 442 So.2d 958 (Fla. 4th DCA 1983).

        Where, as here, a business continues after suffering from an act of negligence the business is entitled to recover the lost profits attributable to defendant’s negligent act, but cannot recover both lost profits, and the market value of the business. Aetna Life & Casualty Co. v. Little, 384 So.2d 213 (Fla. 4th DCA 1980).

      . Although, as a result of our disposition of the main appeal it is unnecessary to address the issues raised on cross-appeal, we agree with BCing Shoes that, if lost profits prior to the date of judgment are appropriately proven, prejudgment interest on such amounts is recoverable. Argonaut Ins. Co. v. May Plumbing, Co., 474 So.2d 212 (Fla.1985); Ulano v. Anderson, 703 So.2d 1149 (Fla. 3d DCA 1998); Indian River Colony Club, Inc. v. Schopke Const. & Engineering, Inc., 619 So.2d 6 (Fla. 5th DCA 1993); Pilkington PLC v. Metro Corp., 562 So.2d 709 (Fla. 3d DCA 1990).


author: SHEVIN, Judge.

text:
    Janelle M. AMADOR, Appellant, v. NORCROSS TELESERVICES, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-1469.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    Janelle M. Amador, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Florida Unemployment Appeals Commission.
    Before GERSTEN, FLETCHER and SHEVIN, JJ.
   SHEVIN, Judge.

Janelle Amador appeals the denial of unemployment benefits. We reverse. The referee found that Amador was discharged because she allowed her co-worker to log her password in at Amador’s telephone station when Amador returned to her car in the parking lot to retrieve her lunch. This may be serious enough to warrant dismissal; however, it is insufficient to justify denial of benefits. See Galletti v. Piedmont Airlines, Inc., 652 So.2d 408 (Fla. 3d DCA 1995); Bigler v. Florida Unemployment Appeals Comm’n, 841 So.2d 610 (Fla. 3d DCA 2003), and cases cited therein. “Mere exercise of poor judgment does not amount to misconduct sufficient to support the denial of unemployment benefits.” Navarrete v. Florida Unemployment Appeals Comm’n, 726 So.2d 833, 834 (Fla. 3d DCA 1999); Etienne v. Muvico Theatres, Inc., 792 So.2d 648 (Fla. 3d DCA 2001). See also Smith v. Krugman-Kadi, 547 So.2d 677 (Fla. 1st DCA 1989), review denied, 558 So.2d 20 (Fla.1990). Accordingly, the order is reversed and the cause remanded with directions to grant claimant unemployment benefits.

Reversed and remanded.


text:
    J.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-986.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Fla.RApp.P. 9.315(a).

GUNTHER, KLEIN and GROSS, JJ., concur.


text:
    Leon TITEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3575.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Appellant’s convictions for kidnapping and sexual battery. Appellant also asks to be sentenced for the sexual battery conviction, as the parties agree that the trial court vacated Appellant’s initial sentence on that conviction but never resentenced him. We therefore remand for imposition of sentence on the sexual battery conviction.

AFFIRMED and REMANDED for imposition of sentence.

GUNTHER, STONE and STEVENSON, JJ., concur.


text:
    John S. FAULKNER, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, Appellee.
    No. 4D02-1834.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    John S. Faulkner, Boca Raton, pro se.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, for appel-lee.
   PER CURIAM.

Affirmed. See Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040 (Fla. 4th DCA 2003).

WARNER, GROSS and MAY, JJ., concur.


author: TAYLOR, J.

text:
    George Christopher LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2988.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

George Livingston appeals his convictions for aggravated stalking (Count I) and violating an injunction against repeat violence (Count II). We affirm the conviction for aggravated stalking, but reverse the injunction violation.

Appellant was served with a temporary injunction on August 24, 1998. The temporary injunction ordered appellant to appear at a hearing for the extension of the injunction on August 31, 1998. Page three of the temporary injunction contained the following paragraph:

The respondent, upon service of this TEMPORARY INJUNCTION UPON HIM OR HER, SHALL BE DEEMED TO HAVE KNOWLEDGE OF AND TO BE BOUND BY ALL MATTERS OCCURRING AT THE EXTENSION HEARING SCHEDULED ON THE FACE OF THIS ORDER, AS WELL AS ANY FURTHER INJUNCTION THAT MAY BE ENTERED AT THAT HEARING. A COPY OF ANY SUCH INJUNCTION SHALL BE MAILED TO THE RESPONDENT AT THE LAST ADDRESS KNOWN TO THE CLERK, BUT FAILURE OF THE RESPONDENT TO RECEIVE THE MAILED COPY SHALL NOT EXCUSE RESPONDENT FROM BEING BOUND BY THAT INJUNCTION.

Appellant failed to appear at the hearing on August 31, 1998. The court then extended the injunction for one year. A copy of the permanent injunction was forwarded to the sheriffs office for service, but was not served on appellant. Although a copy of the permanent injunction was mailed to appellant in Georgia on September 1, 1998, the record does not reveal whether it was delivered or if appellant ever received it.

After the permanent injunction was in place, appellant continued his course of harassment and threatening behavior toward the victim. He was subsequently charged with aggravated stalking and violation of an injunction against repeat violence. The jury found appellant guilty of both counts as charged.

On appeal appellant argues that the court erred in denying his motion for judgment of acquittal because the evidence did not establish that he was ever personally served with the permanent injunction. Appellant relies on Suggs v. State, 795 So.2d 1028 (Fla. 2d DCA 2001), for his contention that personal service of the permanent injunction was essential to his conviction for aggravated stalking and violation of the injunction.

In Suggs, the trial court entered a temporary injunction for protection against repeat violence. Suggs was served with a copy of the temporary injunction, which notified her to appear for an evidentiary hearing on a specified date for a permanent injunction. Suggs did not attend the hearing. The court dissolved the temporary injunction and entered a permanent injunction. Suggs was not served with the permanent injunction. Later, Suggs was charged with aggravated stalking for violating the permanent injunction. She moved to dismiss the aggravated stalking charge and pled no contest to a misdemeanor violation of the permanent injunction, reserving her right to appeal denial of the motion to dismiss. The second district reversed because of the absence of any proof of service of the permanent injunction.

We agree that the failure to serve appellant with the permanent injunction is fatal to his conviction for violation of the injunction. This is so even though appellant was personally served with a temporary injunction, which notified him of the hearing for issuance of a permanent injunction. Family Law Rule 12.610(c)(3)(B)(ii), requires that the permanent injunction be personally served upon the respondent. Here, a copy of the permanent injunction was mailed to appellant. However, because it is undisputed that appellant was not personally served with the permanent injunction and there is no record proof that he received it or had actual knowledge of it, his conviction for violating the permanent injunction must be reversed.

We do not conclude, however, that failure to serve appellant with the permanent injunction dooms his conviction for aggravated stalking. Appellant was convicted of aggravated stalking in violation of section 784.048(4). This section provides:

Any person who, after an injunction for protection against repeat violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Under the statute, “ ‘harass’ means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). Conduct which constitutes a misdemeanor stalking offense is aggravated to a felony when, at the time of the conduct, an injunction for protection against repeat or domestic violence or some other court-imposed prohibition of conduct by the defendant is in existence. There is no requirement in the statute that the permanent injunction have been actually served on the defendant before he or she can be convicted of aggravated stalking. Actual notice of the injunction is not an essential element that must be proved by the state beyond a reasonable doubt, as is the case in a contempt proceeding for violation of the injunction. The state must prove only that an injunction or some other restriction for protection was in place when the accused repeatedly followed or harassed the victim.

Under the particular facts of this case, we hold that actual service of the permanent injunction was not critical to appellant’s prosecution for aggravated stalking. Here, the state presented competent substantial evidence that appellant engaged in stalking activity at a time when a permanent injunction was in place after appellant had been served with a temporary injunction, notified of the date and time of the hearing for extending the injunction, and, by language contained in the temporary injunction, made aware that he would be bound by issuance of a permanent injunction and any other matters determined at the hearing. Accordingly, we affirm denial of the motion for judgment of acquittal as to the aggravated stalking charge.

AFFIRMED in part; REVERSED in part; and REMANDED.

HAZOURI and MAY, JJ., concur.

      . § 784.048(4), Fla. StatJ

      . § 784.047(5), Fla. Stat.

      . Party not Present at Hearing. Within 24 hours after the court issues, continues, modifies, or vacates an injunction for protection against domestic or repeat violence, the clerk shall forward a copy of the injunction to the sheriff with jurisdiction over the residence of the petitioner for service.

      . While the instant case was pending on appeal, the Florida Supreme Court amended Rule 12.610. See Amendment to the Florida Family Law Rules of Procedure, 845 So.2d 174 (Fla. May 1, 2003). However, none of the amendments alter the result herein.

      .The Florida Supreme Court in Amendments to the Florida Family Law Rules, 713 So.2d 1, 5 (Fla. 1998), addressed whether the Rule should be amended to allow service of the permanent injunction by mail when the respondent has been personally served with the temporary injunction. The court concluded that the Rule should not be amended, because it "received many comments from both judges and prosecutors opposing any change that would allow service by mail due to concerns about enforcement of the injunction and prosecution of injunction violations.”

      . We caution that our ruling in this case should not be interpreted to mean that the state can dispense with the need to personally serve permanent injunctions, as required by the rules governing domestic and repeat violence injunctions.


author: GROSS, J. KLEIN, J.,

text:
    Juan A. NEIRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2237.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Appellant was convicted of sexual activity "with a seventeen-year-old minor in violation of section 794.05(1), Florida Statutes (2001). He argues that the trial court erred in finding penetration for the purpose of completing his sentencing guidelines scoresheet, because it is contrary to State v. Overfelt, 457 So.2d 1385 (Fla.1984). We affirm, but certify the question as one of great public importance.

Briefly, the facts were that the victim testified that she had consensual sexual intercourse with appellant. Appellant denied actual penetration. He was convicted. At sentencing, he argued that the jury did not make a specific finding of penetration and the crime could have been committed by “penetration . by, or union with,” the sexual organ of another. § 800.04(l)(a), Fla. Stat. (2001). Therefore, he argued only 40 points should be assessed on the scoresheet for sexual contact, and not the 80 points assessed for penetration. With 40 points for sexual contact, the lowest permissible sentence would have been 36 months in prison. With 80 points for penetration, the lowest permissible sentence was 66.15 months, which the trial court imposed.

Overfelt and its progeny do not control this case. Overfelt was concerned with two statutory provisions: Section 775.087(1) and (2), Florida Statutes (1983). Section 775.087(1) increases the maximum sentence a court can impose when a defendant uses a firearm during the commission of a felony; for example, when the statute applies, a third degree felony is reclassified as a second degree felony. Section 775.087(2) involves a mandatory minimum sentence for the possession of a firearm during the commission of certain felonies.

The supreme court has characterized the Overfelt line of cases as requiring “a specific jury finding that a defendant used a firearm or weapon in the commission of an offense before a trial court may enhance the defendant’s sentence or apply a mandatory minimum sentence for the defendant’s use of a firearm or weapon in the commission of the offense.” State v. Estevez, 753 So.2d 1, 4 (Fla.1999).

This case involved neither an “enhancement” nor a “mandatory minimum” sentence, as the supreme court used those terms in Overfelt and Estevez. As a result of the finding of penetration on the guidelines scoresheet, the degree of the felony of which appellant was convicted did not rise. Nor did appellant receive a mandatory minimum sentence. The finding resulted only in placement in the scoresheet cell which set forth a range of sentence within the maximum sentence allowed for a second degree felony. Under the sentencing guidelines, the judge theoretically could have imposed a downward departure sentence. See Fla. R.Crim. P. 3.704(d)(27).

Traditionally, judges have taken various facts into consideration when imposing sentence. One function of the sentencing guidelines is to incorporate certain types of facts, the ones sentencing judges would likely consider, into the scoresheet to achieve uniformity in sentencing. For sexual offenses, the scoresheet characterizes the victim’s physical injury into four types: no contact, contact but no penetration, penetration or' slight injury, death or serious injury. See Fla. R.Crim. P. 3.988(b). When sentencing for a sexual offense, these are the types of facts judges have traditionally taken into consideration, even though they might come from observations at a trial or from a presentence investigation. We do not read Overfelt and Estevez as requiring that such factors be submitted to a jury, where they do not increase the degree of the felony or result in the imposition of a mandatory minimum sentence.

Judge Klein’s dissent demonstrates that this area is not entirely clear. We therefore certify the following question as one of great public importance:

DOES STATE V. OVERFELT, 457 So.2d 1385 (Fla.1984) REQUIRE THE JURY TO FIND PENETRATION FOR THE PURPOSE OF ASSESSING VICTIM INJURY POINTS?

SHAHOOD, J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

This is the first case I have seen in which the appellant admits that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) does not require the-jury to make the finding of fact and rests his entire argument on State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), in which our supreme court stated:

The district court held, and we agree, “that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.” [Overfelt v. State] 434 So.2d [945] at 948 [ (Fla. 4th DCA 1983) ].... The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury’s function to be the finder of fact with regard to matters concerning the criminal episode, (emphasis added.)

Our supreme court followed Overfelt in State v. Estevez, 753 So.2d 1 (Fla.1999), holding that the jury must make the finding as to the amount of cocaine, when the amount is the basis of a mandatory minimum. In Estevez our supreme court quoted from Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to the effect that when a judge finds a fact by a preponderance of the evidence, which increases the penalty, it implicates both due process and the right to jury trial. Estevez, 753 So.2d at 5.

In the present case the finding of penetration during the criminal episode resulted in an additional minimum sentence of thirty months. In Overfelt the finding that a weapon had been used during the criminal episode resulted in a minimum mandatory sentence of three years. If the latter must be found by a jury, it follows that so must the former. I therefore dissent.

      . Section 749.05(1) defines sexual activity as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another....” (Emphasis added).


author: KLEIN, J.

text:
    Janet COHEN, Appellant, v. Philip COHEN, Appellee.
    No. 4D02-3055.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    James A. Horland, Miami, for appellant.
    Stephanie R. Dupont of Mark Perlman, P.A., Hallandale Beach, for appellee.
   KLEIN, J.

The issue presented by this appeal is whether appellant can bring a separate action for intentional interference with an expectancy under a 1997 will, without seeking to invalidate a later will. We conclude she cannot and affirm.

Decedent, Ida Cohen, was the mother of Philip, the appellee, and the mother-in-law of Janet, the appellant. Ida executed a will in 1997 leaving Janet one-third of the net proceeds from the sale of a building she owned. In October 2000, Ida executed a power of attorney authorizing Philip to sell the building, and in December 2000, Ida revoked the 1997 will by executing a new will which made no reference to the building and left Janet $50,000. Philip and his sister Helen were residuary beneficiaries under the 2000 will.

Using the power of attorney Philip sold the building in January 2001. Four days later, Ida, who had been ill, died, and the 2000 will was submitted for probate.

Janet initially filed a petition to challenge the 2000 will, but then withdrew the petition and that will was admitted to probate. Janet then filed this action alleging that Philip unduly influenced Ida to execute the power of attorney and that he sold the building and pocketed the proceeds. Her theory of recovery is wrongful interference with a testamentary expectancy, which is a recognized cause of action. DeWitt v. Duce, 408 So.2d 216 (Fla.1981). Specifically, Janet claims that Philip wrongfully interfered with her inheriting her share of the proceeds from the sale of the building under the 1997 will.

Janet maintains that she can bring this action without seeking to revoke the 2000 will because obtaining a revocation of the 2000 will would be futile. She reasons that because Philip pocketed the money from the sale of the building, the money would not be in the estate to be distributed to her. She relies on Martin v. Martin, 687 So.2d 903 (Fla. 4th DCA 1997), in which this court held that a claim for tortious interference with inheritance rights could be brought against a widow without seeking to invalidate the decedent’s last will. Martin, however, is distinguishable in that in Martin the claim was that the widow had unduly influenced her husband as to a trust executed in 1991. The last will had been executed in 1989, and we held that under those circumstances it was unnecessary for the claimant to challenge the will. In Martin it was not the will, but rather the later trust, that allegedly interfered with the inheritance.

The only expectancy Janet seeks in this case is a share of the proceeds of the sale of the building under the 1997 will. Because the 2000 will has been admitted to probate, and the 1997 will has been revoked by the 2000 will, Janet has no expectancy under the 1997 will. We accordingly affirm the dismissal for failure to state a cause of action.

FARMER and SHAHOOD, JJ„ concur.


text:
    Chris N. DOWLING, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-653.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. However, we remand to correct scrivener’s error in the judgment to reflect that Dowling was convicted pursuant to verdict in a jury trial and not by way of plea.

GUNTHER, STONE, and STEVENSON, JJ., concur.


text:
    A.D.M. PRODUCTIONS, INC., Appellant, v. David SOLOMON, Appellee.
    No. 3D03-701.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    McClosky, D’Anna, Ioannou & Dieterle, LLP, and Gordon A. Dieterle, and David J. Pascuzzi (Boca Raton), for appellant.
    Jennifer G. Herskowitz, for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Pursuant to our previous mandate in A.D.M. Prods., Inc. v. Solomon, 831 So.2d 259 (Fla. 3d DCA 2002), the trial court conducted a Kinney hearing on the appellant’s motion to dismiss for forum non conveniens and denied the same. On this appeal, on the record before us, we cannot find that the denial of the motion was an abuse of discretion. See Fla. R. Civ. P. 1.061(a); Ira Mex, Inc. v. Southeastern Interior Constr., Inc., 777 So.2d 1107 (Fla. 4th DCA 2001) (decision to grant or deny motion to dismiss from inconvenient forum rests in sound discretion of trial court, subject to review for abuse of discretion). Accordingly, we affirm the same.

Affirmed.

      . See Kinney Sys., Inc. v. Cont'l Ins. Co., 674 So.2d 86 (Fla.1996).


text:
    Patrick S. TRAVAGLIA, Appellant, v. Johnna N. TRAVAGLIA, Appellee.
    No. 4D03-336.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Patrick S. Travaglia, Coleman, pro se.
    No appearance for appellee.
   PER CURIAM.

Patrick Travaglia, a pro se inmate, moved the circuit court to modify or stay his child support obligation while he is incarcerated. Travaglia alleged he is incarcerated in federal prison, he is indigent, and he currently has no ability to meet his support obligation. The circuit court denied his motion based on a recommendation from the general master. Travaglia filed a timely notice of appeal.

We reverse. The circuit court’s order is quashed and this cause is remanded for further proceedings. The circuit court shall hold Travaglia’s motion to modify child support in abeyance until he is released from prison in accordance with the Florida Supreme Court’s decision in Department of Revenue v. Jackson, 846 So.2d 486 (Fla.2003).

STONE, KLEIN, JJ., and OWEN, WILLIAM, C., JR., Senior Judge, concur.