author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Andrew John ANTHONY, Appellant, v. Raquel ANTHONY, Appellee.
    No. 3D06-473.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Rehearing Denied Feb. 6, 2007.
    Law Offices of Anthony & Associates, PA., Miami, and Bradley A. Silverman, Coral Gables, for appellant.
    Perez-Abreu & Martin-Lavielle, P.A., and Javier Perez-Abreu, and Andy W. Acosta, Coral Gables, for appellee.

      Before COPE, C.J., and GREEN, J. and SCHWARTZ, Senior Judge.
   PER CURIAM.

Former husband Andrew John Anthony appeals an order enforcing a settlement agreement requiring him to sign the former wife’s proposed release. We reverse.

The parties were divorced in 2005. The final dissolution judgment incorporated a memorandum of settlement between the parties. Paragraph 20 of the memorandum stated:

The Husband shall execute full and complete releases to the Wife and Javier Perez-Abreu [her attorney] through the date of the Final Judgment; the Wife shall execute a full and complete release to the Husband through the date of the Final Judgment; Javier Perez-Abreu, Esq., shall execute a full and complete release to the Husband through the date of the Final Judgment.

The parties subsequently were unable to agree on the language of the releases required under this paragraph. The former husband filed a motion to enforce final judgment. His main contention was that the release contemplated by paragraph 20 included only the former wife and her attorney, Perez-Abreu, but not her attorney’s law firm. He further argued that the firm was never mentioned when the releases and settlement were being negotiated between the parties. Each party then submitted their own proposed versions of the releases. The former husband prepared a general release between himself and the former wife, and one between himself and her lawyer individually. The former wife prepared a release that included her attorney’s law firm. After hearing evidence from both sides, the court ordered the former husband to sign the wife’s proposed releases. The former husband now appeals.

We cannot endorse the trial court’s interpretation of paragraph 20 in the agreement based upon the plain language utilized therein. The unambiguous terms in a contract should be given their plain meaning. State Farm, Fire & Cas. Co. v. Metro. Dade County, 639 So.2d 63 (Fla. 3d DCA 1994). “When a contract is clear and unambiguous, “the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls.” ” Maher v. Schumacher, 605 So.2d 481, 482 (Fla. 3d DCA 1992). In this case, paragraph 20 clearly and unambiguously states that the “former husband shall execute full and complete releases to the Wife and Javier Perez-Abreu,” her attorney. There is no ambiguity here allowing for an interpretation that permits a release of the law firm as well. Hence, it was error to order the former husband to sign a release that was wider in scope than that agreed to and specified by the parties. On remand, the parties shall execute the former husband’s proposed agreement, which does not include the law firm.

Reversed and remanded.

SCHWARTZ, Senior Judge

(dissenting).

For two reasons, I cannot agree with reversal. First, the most basic requirement for judicial activity does not exist in this case. This is because no one has been able to explain how the purported relea-sors can, let alone will, ever be the subject of a claim against them so that the extent or existence of any release is nothing more than academic. Thus, there is simply no “case or controversy” between the parties presented by this appeal. See Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994) (“[E]very case must involve a real controversy as to the issue or issues presented.”), cert. denied, 515 U.S. 1158, 115 S.Ct. 2608, 132 L.Ed.2d 853 (1995); Warren Tech., Inc. v. Carrier Corp., 937 So.2d 1141 (Fla. 3d DCA 2006). To rule on the case at all, therefore, has no practical effect whatever and serves no purpose but the unworthy one of encouraging parties, in this case the appellant, who seem to desire to litigate domestic cases only for the sake of litigation and to harass the former spouse.

Even on the merits, however, I think there is no showing, as required, that the trial court abused its discretion in interpreting, under the circumstances, the phrase “full and complete release” to include the parties’ law firms. See McDonald v. McDonald, 731 So.2d 132 (Fla. 4th DCA 1999) (holding that trial court did not abuse its discretion in interpreting the parties’ settlement agreement which was susceptible of two reasonable interpretations).

Thus, I would dismiss the appeal; failing that, I would affirm the order under review; failing both, as is lamentably the case, I dissent.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Michael HUNT and Hippo Holdings Ltd., Appellants, v. CORNERSTONE GOLF, INC., John Daly Enterprises, Inc., John Daly, an individual, and Hippo Golf Company, Inc., Appellees.
    No. 4D06-1920.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Rehearing Denied March 19, 2007.

      Frederick H.L. McClure and S. Douglas Knox of DLA Piper Rudnick Gray Cary U.S. LLP, Tampa, and Carol A. Witschel of White & Case LLP, New York, New York, for appellants.
    Thomas A. Dye of Carlton Fields, P.A., West Palm Beach, for appellee Cornerstone Golf, Inc.
   POLEN, J.

Appellant Michael Hunt (“Hunt”) timely appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction. Hippo Holdings, Ltd. (“Hippo”), of which Hunt is part owner, successfully moved to join Hunt’s appeal on Hunt’s behalf pursuant to Florida Rule of Appellate Procedure 9.360(a). We find that the state of Florida lacks personal jurisdiction over Hunt as regards this dispute, and therefore reverse the trial court’s non-final order and instruct the court to dismiss Cornerstone Golf, Inc.’s (“Cornerstone”) tortious interference complaint against Hunt.

An appellate court must conduct a de novo review of a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

This case arose because it was alleged that John Daly (“Daly”), a golfer and resident of Tennessee, granted two different companies, Cornerstone, a Georgia corporation, and Hippo, a British corporation, the exclusive rights to use his name, likeness and signature in connection with the advertising and sale of golf merchandise, during overlapping time periods. The conflict allegedly occurred because, at the same time that Daly’s agent was negotiating an exclusive trademark license agreement with Hippo, and unknown to Hippo, Mark Chamberland, on behalf of John Daly Enterprises (“JDE”), a Florida corporation, was negotiating an exclusive trademark license with Cornerstone.

Approximately six months before Cornerstone’s trademark rights were scheduled to expire, JDE terminated its contract with Cornerstone. Cornerstone proceeded to file a complaint against JDE, Daly, Hippo, Hippo’s subsidiary in California, and Hunt, as an individual. The complaint alleged, inter alia, that Hunt, a resident of England, tortiously interfered with Cornerstone’s exclusive trademark license rights through a series of emails and telephone calls which he made into the state of Florida. These communications consisted of two emails and various phone calls from Hunt to JDE, which Cornerstone now argues conferred personal jurisdiction over Hunt upon courts of this state.

Florida has a two-step inquiry for determining whether there is long-arm jurisdiction over a nonresident defendant in Florida. First, a court must determine whether the plaintiffs complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Wendt, 822 So.2d at 1257. Second, it must determine whether there are sufficient minimum contacts between the defendant and Florida to satisfy the Fourteenth Amendment’s due process requirements. Id.; see also Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989).

Cornerstone alleges a statutory basis for jurisdiction under section 48.193(l)(b), Florida Statutes (2006), which states:

Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
Committing a tortious act within this state.

The determinative issue for this court is not whether Cornerstone has proven that tortious interference actually occurred, but rather whether the tort, as alleged, occurred in Florida. See Seabra v. Int’l Specialty Imports, Inc., 869 So.2d 732, 733 (Fla. 4th DCA 2004) (“In determining whether a Florida court has personal jurisdiction over a nonresident ... the court must [first] consider whether the complaint alleges sufficient jurisdictional facts to bring the action within the control of Florida’s long-arm statute”); see also Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA 2001) (“In the present case the trial court did hold an evidentiary hearing, but the purpose was not, as the court correctly recognized, to resolve whether the defendants had committed the torts. That would have required a full-blown trial, not the limited evidentiary hearing contemplated by Venetian Salami.”).

Hunt’s relevant contacts with Florida, as noted above, include telephone calls and two emails to Chamberland in which Hunt discussed JDE’s contract with Cornerstone. Although Hunt never physically entered Florida, Wendt held that “committing a tortious act” in Florida under section 48.193(l)(b) can occur through a nonresident defendant’s telephonic, electronic or written communications into Florida, the physical presence of the defendant not being required. Wendt, 822 So.2d at 1260. However, Wendt further held that “the cause of action must arise from the communications ... because of the connexity requirement contained in section 48.193(1).” Id. In the instant case, we find that Hunt’s communications into Florida did not give rise to a cause of action against him for tortious interference with Cornerstone’s business relationship with JDE. Hunt initially sent correspondence to Daly’s agent in Washington, D.C., as well as to Daly himself in Tennessee, relating Hippo’s desire that it hold the rights to the John Daly trademark exclusive of all other companies, including Cornerstone. The emails and telephone calls which Hunt sent to Chamberland in Florida took place after Hunt sent these communications. Therefore, any claim for tortious interference should be made where those initial communications took place, rather than Florida. Furthermore, the second email from Hunt to Chamberland, in which Hunt thanked JDE for terminating its contract with Cornerstone, was sent a week after JDE terminated the contract and is therefore irrelevant to this analysis. As such, we find that Cornerstone has failed to allege sufficient jurisdictional facts to bring this cause of action within the control of Florida’s long-arm statute. See Seabra, 869 So.2d at 733.

Reversed.

KLEIN and MAY, JJ., concur.

      . Florida Rule of Appellate Procedure 9.360(a) states that "[a] party to the cause in the lower tribunal who desires to join in a proceeding as a petitioner or appellant shall file a notice to that effect within 10 days of service of the petition or notice or within the time prescribed by rule 9.110(b), whichever is later.”

      . Due to our holding regarding lack of long-arm jurisdiction, we do not address whether there are sufficient minimum contacts between Hunt and Florida to satisfy the Fourteenth Amendment’s due process requirements. See Wendt, 822 So.2d at 1257.


author: PER CURIAM.

text:
    Jack Leroy ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1377.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2007.
    Rehearing Denied Feb. 14, 2007.
    Jack L. Allen, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Cole v. State, 933 So.2d 1261 (Fla. 3d DCA 2006); Baldwin v. State, 743 So.2d 78 (Fla. 3d DCA 1999); McFadden v. State, 711 So.2d 1350 (Fla. 1st DCA 1998).

PLEUS, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Henry ARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4899.
    District Court of Appeal of Florida, First District.
    Jan. 11, 2007.
    Rehearing Denied Feb. 28, 2007.
    Henry Ard, pro se, Petitioner.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(5)(C).

BROWNING, C.J., WOLF and KAHN, JJ., concur.


author: PALMER, J.

text:
    Donald Wayne SHEPARD, Appellant, v. Thomas A. BARNARD, M.D., et al., Appellee.
    No. 5D05-1447.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.
    Barbara Green of Barbara Green, P. A., Coral Gables, and Timothy M. Martin of Martin, Lister & Alvarez, P.A., Miami Lakes, for Appellant.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee.
   PALMER, J.

In this medical malpractice lawsuit, Donald Shepard appeals the trial court’s final order entering summary final judgment in favor of the appellees. Because we agree with the trial court that Shepard’s proffered expert testimony did not meet the Frye standard for admissibility, we affirm.

Shepard’s complaint averred that appel-lee, Dr. Thomas Barnard, rendered negligent medical treatment to Shepard by administering photodynamic therapy with the drug, Verteporfin. Shepard’s complaint averred that Shepard suffered a permanent photoallergy as a result of Barnard’s administration of Verteporfin.

Shepard’s two causation experts were deposed pretrial. Dr. Wurpel, an associate professor of pharmaceutical sciences, testified he had never engaged in any research with regard to photosensitizing drugs or with Verteporfin. He further stated that, prior to this case, he had never heard of anyone suffering a photoallergy as a result of being exposed to Verteporfin. Wurpel testified that there was no mention in any of his research of any patient ever suffering a permanent photoallergy from Verteporfin, nor had any such phenomenon ever been reported in any scientific literature. He nonetheless concluded that, in his opinion, Dr. Barnard’s use of Ver-teporfin lead to a photoreaction in Shepard. When asked to explain the basis for his opinion, Wurpel stated that it was the “temporal relationship” between the date Shepard took the drug and the date he sustained his injuries, combined with the fact that Verteporfin is a “photosensitizing drug.”

Shepard’s second expert was his treating physician, Dr. Chun, a physician specializing in dermatology. Chun explained that Shepard came to his office complaining he was suffering from severe sunburns after having ingested Verteporfin. Chun stated he had not had any experience with Verteporfin and therefore he began to do some reading. He did not, however, read anything about a direct relationship between Verteporfin and skin sensitivity. Chun further stated he was not aware of any scientific studies of Verteporfin where there had been a permanent photosensitive reaction. Chun stated that he had never done any research on Verteporfin and he never used the drug in his practice, but that he believes that the Verteporfin did play a role in Shepard’s condition.

The defendants filed a motion to strike the causation testimony of both Dr. Wurpel and Dr. Chun, pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), arguing that their opinions that use of Verteporfin could cause permanent pho-toallergy were not generally accepted in the relevant scientific community and, as such, the opinions did not have sufficient reliability to permit admission at trial. Additionally, the motion alleged that, since these two witnesses were the only witnesses to provide opinions regarding any causal link between Shepard’s alleged injury and the medical treatment rendered by Dr. Barnard, entry of summary judgment against Shepard was warranted.

Following the hearing, the trial court granted the motion to strike Shepard’s expert causation testimony and, accordingly, entered summary judgment in the defendants’ favor. This appeal timely followed.

Shepard first argues that the trial court erred in applying the Frye test to the facts of this case. We disagree. As the court noted in Cerna v. South Florida Bioavailability Clinic, Inc., 815 So.2d 652 (Fla. 3d DCA 2002): “In pharmaceutical and chemical ingestion cases, Florida courts uniformly test a proposed expert’s opinion under Frye.” Id. at 655. This court has cited with favor to Cema in the recent case of Marsh v. Valyou, 917 So.2d 313 (Fla. 5th DCA 2005), review granted, 940 So.2d 1125 (Fla.2006) wherein we held that expert testimony that a party’s fibro-myalgia was caused by trauma sustained in several car accidents was properly excluded because it did not meet the Frye test for admissibility.

Shepard next argues that the trial court reversibly erred by refusing to permit him to receive a second evidentiary hearing on the Frye issue. We again disagree.

Shepard maintains that he was not aware that the trial court intended to conduct an evidentiary hearing when the instant summary judgment motion was called up for hearing. However, the notice of hearing filed in this matter specifically stated that the issue before the court during the hearing would be the defendants’ motion to strike the causation testimony as being inadmissible pursuant to Frye. As such, counsel for Shepard should have been prepared to defend against such a claim during that hearing. In addition, Shepard’s expert testimony was already memorialized in the depositions of the witnesses and the record contains no indication that any additional information is available for presentation as to the general acceptability of the causation theory put forth in this case.

AFFIRMED.

THOMPSON and LAWSON, JJ., concur.

      . Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).


author: WOLF, J. PAJDOVANO, J.

text:
    A.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0162.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

A.H. challenges her adjudication of delinquency for producing, directing or promoting a photograph or representation that she knew included sexual conduct of a child in violation of section 827.071(3), Florida Statutes. She filed a motion to dismiss the charges alleging that the statute was as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the sexual act was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest. The trial court ruled that there was a compelling state interest in preventing the production of these photographs and criminal prosecution was the least intrusive means of furthering the State’s compelling interest. We agree with this analysis and further determine that the privacy provision of the state constitution does not protect the behavior of appellant. We, thus, affirm.

By Amended Petition of Delinquency, 16-year-old appellant, A.H., and her 17-year-old boyfriend, J.G.W., were charged as juveniles under the child pornography laws. The charges were based on digital photos A.H. and J.G.W. took on March 25, 2004, of themselves naked and engaged in sexual behavior. The State alleged that, while the photos were never shown to a third party, A.H. and J.G.W. emailed the photos to another computer from AH.’s home. A.H. and J.G.W. were each charged with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child, in violation of section 827.071(3), Florida Statutes.

A.H. filed a motion to dismiss on October 24, 2005, arguing that section 827.071(3), Florida Statutes, was unconstitutional as applied to her. She contended that her privacy interests were implicated in the charges, that she was actually younger than her alleged victim, J.G.W., and that criminal prosecution was not the least intrusive means of furthering a compelling state interest. A hearing was held on the motion to dismiss on November 30, 2005, after which the trial court issued an order denying the motion. The order included the following conclusions:

Assuming that the child’s right to privacy is implicated, the standard for evaluating whether the State may regulate the sexual conduct of minors, articulated in B.B. v. State, 659 So.2d 256, 258-59 (Fla.1995), requires the State to show both that it has a compelling interest and that it is furthering this interest in the least intrusive manner.
As to the first prong of the test, whether the State has a compelling interest in regulating the sexual behavior of minors, this Court recognizes a compelling state interest in protecting children from sexual exploitation, particularly the form of sexual exploitation involved in this case. This compelling interest exists whether the person sexually exploiting the child is an adult or a minor and is certainly triggered by the production of 117 photographs of minors engaging in graphic sexual acts. State v. A.R.S., 684 So.2d 1388, 1387 (Fla. 1st DCA 1996).
The Court further finds that prosecuting the child under the statute in question is the least intrusive means of furthering the State’s compelling interest. Not prosecuting the child would do nothing to further the State’s interest. Prosecution enables the State to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child. The Court finds that the State has shown that Section 827.071(3), Florida Statutes, as applied to the child, is the least intrusive means of furthering the State’s compelling interest in preventing the sexual exploitation of children, rendering the statute constitutional.

Three weeks later, A.H. entered a nolo contendere plea to the charge and was placed on probation. Based on the supplemental record that has been filed, we find appellant specifically reserved her right to appeal the issue raised on the motion to dismiss.

A.H. argues that the trial court erred in denying her motion to dismiss below because the statute is unconstitutional as applied to her. She relies, in part, on the 1995 Florida Supreme Court decision in B.B. v. State, 659 So.2d 256 (Fla.1995), in which she alleges the court held that a child’s privacy interests under article I, section 23 of the Florida Constitution are triggered by engaging in sexual conduct.

According to A.H., given the lack of a significant age difference or of any allegation that the pictures were shown to a third party, the only compelling state interest that could be involved here was the protection of the co-defendants from engaging in sexual behavior until their minds and bodies had matured. A.H. argues that prosecuting her for the second-degree felony of promoting a sexual performance by a child was not the least intrusive means of furthering this interest. Therefore, she maintains that section 827.071(3), Florida Statutes, is unconstitutional as applied to her, and the trial court’s ruling to the contrary must be reversed.

Implicit in A.H.’s argument is that article I, section 23 protects a minor’s right to have sexual intercourse and that this right of privacy extends to situations where the minor memorializes the act through pictures or video. We cannot accept this argument.

In State v. A.R.S., 684 So.2d 1383 (Fla. 1st DCA 1996), we addressed the constitutionality of section 827.071(3), Florida Statutes, the same statute at issue in this case. In that case, the court assumed “that a minor’s privacy interests were implicated.” Id. The court went on to hold that the State had a compelling interest “to protect minors from exploitation by anyone who induces them to appear in a sexual per-Romance and shows that performance to other people.” Id. at 1387.

As Judge Allen noted in his concurrence in A.R.S., the law relating to a minor’s right of privacy to have sex with another minor is anything but clear. See also State v. Raleigh, 686 So.2d 621 (Fla. 5th DCA 1996). It is unnecessary, however, for us to enter that quagmire. The question before us is, even assuming that the privacy provision of article I, section 23 of the Florida Constitution extends to minors having sexual intercourse, whether that right extends to them memorializing that activity through photographs.

“Florida’s right to privacy is a fundamental right that requires evaluation under a compelling state interest standard. However, before the right to privacy attaches and the standard is applied, a reasonable expectation of privacy must exist.” Bd. of County Comm’rs of Palm Beach County v. D.B., 784 So.2d 585, 588 (Fla. 4th DCA 2001). Whether an individual has a legitimate expectation of privacy is determined by considering all the circumstances, especially objective manifestations of that expectation. City of N. Miami v. Kurtz, 653 So.2d 1025,1028 (Fla.1995).

A number of factors lead us to conclude that there is no reasonable expectation of privacy under these circumstances.

First, the decision to take photographs and to keep a record that may be shown to people in the future weighs against a reasonable expectation of privacy. See Four Navy Seals v. Associated Press, 413 F.Supp.2d 1136 (S.D.Cal.2005) (holding active duty military members who allowed photographs to be taken of prisoner abuse did not have reasonable expectation of privacy under state constitution).

Second, the photographs which were taken were shared by the two minors who were involved in the sexual activities. Neither had a reasonable expectation that the other would not show the photos to a third party. Minors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally. One motive for revealing the photos is profit. Unfortunately, the market for child pornography in this country, according to news reports, appears to be flourishing. See, e.g., “Child porn ring busted, 27 face charges,” March 15, 2006, http://www. msnbc. msn.eom/id/11839832; Jeremy W. Peters, Another Arrest in Webcam Pornography Case, N.Y. Times, May 16, 2006, available at http://www.nytimes. com (search the NYT Archive since 1981 for “Webcam Pornography Case,” then click on title). These 117 sexually explicit photographs would undoubtedly have market value.

In addition, a number of teenagers want to let their friends know of their sexual prowess. Pictures are excellent evidence of an individual’s exploits. A reasonably prudent person would believe that if you put this type of material in a teenager’s hands that, at some point either for profit or bragging rights, the material will be disseminated to other members of the public.

Distribution of these types of photos is likely, especially after the relationship has ended. It is not unreasonable to assume that the immature relationship between the co-defendants would eventually end. The relationship has neither the sanctity of law nor the stability of maturity or length. The subjective belief of these co-defendants that the photos might not be shared is not dispositive. In fact, the defendant in this case expressed her concern to law enforcement that her co-defendant might do something disagreeable with the photographs.

The mere fact that the defendant may have subjectively believed that the pictures would remain private does not control; it is whether society is willing to recognize an objective expectation.

As this court previously stated in State v. Conforti, 688 So.2d 350, 358-59 (Fla. 4th DCA 1997):
Although a person’s subjective expectation of privacy is one consideration in deciding whether a constitutional right attaches, the final determination of an expectation’s legitimacy takes a more global view, placing the individual in the context of a society and the values that the society seeks to foster. The right to privacy has not made each person a solipsistic island of self-determination.

Bd. of County Comm’rs of Palm Beach County v. D.B., 784 So.2d 585, 590 (Fla. 4th DCA 2001).

The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.

Even assuming, arguendo, that a reasonable expectation of privacy existed, the statute in the instant case serves a compelling state interest. In A.R.S., 684 So.2d at 1387, this court addressed the statute in question where a minor had videotaped himself involved in sexual conduct with a female minor and played the videotape for a third party.

Assuming that a minor’s privacy interests are implicated in the instant case, we recognize that the state’s compelling interest in section 827.071 is different. The statute is not limited to protecting children only from sexual exploitation by adults, nor is it intended to protect minors from engaging in sexual intercourse. The state’s purpose in this statute is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people. See Schmitt v. State, 590 So.2d 404, 412 (Fla.1991) (stating that the “obvious purpose” of section 827.071 “is to prohibit certain forms of child exploitation”), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992). The State’s interest in protecting children from exploitation in this statute is the same regardless of whether the person inducing the child to appear in a sexual performance and then promoting that performance is an adult or a minor.

Id.

Appellant asserts that the State only has a compelling interest when the photograph or video is shown to a third party. The Legislature has, however, recognized a compelling interest in seeing that the videotape or picture including “sexual conduct by a child of less than 18 years of age” is never produced. § 827.071(3), Fla. Stat.

As previously stated, the reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material. In addition, the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.

Without either foresight or maturity, appellant engaged in the conduct at issue, then expressed concern to law enforcement personnel that her co-defendant may do something inappropriate, i.e., disseminate sexually explicit photos that were lodged on his computer. Appellant was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved.

Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.

In addition, the two defendants placed the photos on a computer and then, using the internet, transferred them to another computer. Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date. The State has a compelling interest in seeing that material which will have such negative consequences is never produced.

The decision of the trial court is affirmed.

THOMAS, J., concurs; PADOVANO, J., dissents with opinion.

PAJDOVANO, J.

dissenting.

Section 827.071(3) Florida Statutes was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child’s right to privacy under Article 1, Section 23 of the Florida Constitution. For this reason, I would reverse.

The supreme court held in B.B. v. State, 659 So.2d 256 (Fla.1995), that a statute prohibiting unlawful carnal intercourse is unconstitutional as applied to a minor. In support of this holding, the court reasoned that the citizens of Florida had issued a “clear constitutional mandate in favor of privacy” by adopting Article 1, Section 23 of the Florida Constitution. B.B. 659 So.2d at 259. The court went on to say that the right of privacy is not limited to adults, but that it applies to children, as well.

I am not able to reconcile the supreme court’s holding in B.B. with the court’s decision in this case. The majority points out that the child in B.B. was charged with unlawful sexual intercourse while the child in this case was charged with photographing an act of sexual intercourse, but I think this a distinction without a difference. As in B.B., the child in this case had sex with another minor. The only additional fact is that, in this case, the two took photographs of themselves and shared the photos with each other. There is no indication that the photos were intended to be any less private than the act itself. Consequently, I am unable to conclude that Article 1, Section 23 is inapplicable or that it somehow offers the child in this case less protection.

The majority is correct to say that B.B. involved a prosecution under a different statute. However, the principle of constitutional law articulated in the opinion is not one that applies only to a particular statute. To the contrary, it is a principle that would apply to any statute that is used in a way that violates the right of privacy. If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor. Although I do not condone the child’s conduct in this case, I cannot deny that it is private conduct. Because there is no evidence that the child intended to show the photographs to third parties, they are as private as the act they depict.

The majority relies on the decision of this court in State v. A.R.S., 684 So.2d 1883 (Fla. 1st DCA 1996), but that case does not support the decision the court has made here. In A.R.S., the child made a videotape of himself and a younger female child engaging in a sexual activity and then played the videotape to a third person at a time when the female was not present. The act of displaying the videotape was the main reason the court gave for its decision. As the court explained, “The state’s purpose in [section 827.071] is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people.” A.R.S., 684 So.2d at 1387. In contrast, the child in this case did not show the photographs to anyone. Nor has she been charged with doing so. She stands accused of nothing more than taking photographs of herself and her boyfriend.

The fact that the delinquent child in A.R.S. showed the videotape to a third party is significant for the reasons given by the court and for another reason not mentioned in the opinion. The voluntary publication of the videotape to a third party completely undermined the delinquent child’s claim of privacy. Unlike the accused child in this case, A.R.S. was not in a good position to claim that his actions were protected by the constitutional right of privacy. Whatever privacy rights he had in the videotape he made of himself and another child engaging in an intimate act, he gave up entirely when she showed the tape to another person.

The majority concludes that the child in this case did not have a reasonable expectation that the photographs would remain private. To support this conclusion, the majority speculates about the many ways in which the photographs might have been revealed to others. The e-mail transmission might have been intercepted. The relationship might have ended badly. The boyfriend might have wanted to show the photo to someone else to brag about his sexual conquest. With all due respect, I think these arguments are beside the point. Certainly there are circumstances in which the photos might have been revealed unintentionally to third parties, but that would always be the case.

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

The method the child used to transmit the photos to her boyfriend carries some danger of disclosure, but so do others. If the child had taken a printed photograph and placed it in her purse, it might have been disclosed to third parties if her purse had been lost or stolen. If she had mailed it to her boyfriend in an envelope, it might have been revealed if the envelope had been delivered to the wrong address and mistakenly opened. As these examples illustrate, there is always a possibility that something a person intends to keep private will eventually be disclosed to others. But we cannot gauge the reasonableness of a person’s expectation of privacy merely by speculating about the many ways in which it might be violated.

The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. Certainly, an argument could be made that she was foolish to expect that, but the expectation of a sixteen year old cannot be measured by the collective wisdom of appellate judges who have no emotional connection to the event. Perhaps if the child had as much time to reflect on these events, she would have eventually concluded, as the majority did, that there were ways in which these photos might have been unintentionally disclosed. That does not make her expectation of privacy unreasonable.

For these reasons, I believe the court has committed a serious error. The statute at issue was designed to protect children, but in this case the court has allowed the state to use it against a child in a way that criminalizes conduct that is protected by constitutional right of privacy. In the process, the court has rendered a decision that expressly and directly conflicts with the decision of the Florida Supreme Court in B.B. on the same point of law. The child in that case was prosecuted under a different statute, but the constitutional principles are the same and they should be applied in the same way in this case.

      . J.G.W. was also charged with one count of possession of child pornography under section 827.071(5), Florida Statutes (2005).


text:
    Luis HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-4419.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2007.
    Rehearing Denied Feb. 26, 2007.
    Luis Harris, Defuniak Springs, pro se.
    No Appearance for Respondent.
   PER CURIAM.

We dismiss the petition for habeas corpus filed with this court by the petitioner, Luis Harris. Habeas corpus may not be used as a substitute for an appeal. See Bryan v. Dugger, 641 So.2d 61 (Fla.1994). Mr. Harris’s motion for post-conviction relief was untimely, and was summarily denied by the trial court for that and other reasons. The review of an order summarily denying a motion filed pursuant to rule 3.850 must be by appeal, as indeed the order of the trial court denying him relief specifically stated. See Fla. R.App. P. 9.141(b)(2). As Mr. Harris improperly seeks habeas review from such an order, we dismiss the petition.

PETITION DISMISSED.

PLEUS, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Derek W. PELTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4272.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2007.
    Rehearing Denied Feb. 28, 2007.

      James T. Miller, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cornil v. State, 523 So.2d 562 (Fla.1988).

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    John W. HAMILTON, Appellant, v. CITRUS COUNTY, Appellee.
    No. 5D06-4276.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2007.
    Rehearing Denied Feb. 28, 2007.
    John W. Hamilton, Crystal River, pro se.
    No appearance by Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, ORFINGER and TORPY, JJ., concur.


author: BENTON, J.

text:
    Dawn ARNOLD, Appellant, v. FLORIDA’S BLOOD CENTERS, INC. and AIG Claim Services, Inc., Appellees.
    No. 1D05-4749.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.

      Samuel S. Henderson of Henderson and Futchko, P.A., Melbourne, for Appellant.
    Margaret E. Sojourner and Philip R. Augustine of Langston, Hess, Bolton, Shepard & Augustine, P.A., Maitland, for Appellees.
   BENTON, J.

Dawn Arnold appeals an order of a judge of compensation claims denying her temporary partial disability benefits on grounds she left her employment voluntarily. Viewed in light of the record as a whole, however, the judge’s finding that she left voluntarily lacks any substantial support. Accordingly, we reverse and remand.

That Ms. Arnold’s employment at Florida’s Blood Centers, Inc. (FBC) was the major contributing cause of her bilateral carpal tunnel syndrome and tenosynovitis is not in dispute here. At issue is whether this concededly work-related condition caused a disability that actually resulted in a loss of wages. The order under review attributes Ms. Arnold’s wage loss to her putative decision to forgo work available to her. But competent, substantial evidence does not support this view.

Ms. Arnold left FBC because her employer, concerned her new work restrictions would complicate scheduling, refused to allow her to continue working. The evidence provides no support for the view that she left her employment “without just cause.” § 440.15(7), Fla. Stat. (2004) (“If the employee leaves her ... employment while receiving temporary partial benefits without just cause.... ”). She left her employment because she was told she no longer had a job. This is both “just cause,” and a reason directly attributable to her employer.

Despite overwhelming evidence to the contrary, the order under review states that she voluntarily left her employment. On this basis, the order concludes that FBC is entitled, pursuant to section 440.15(7), Florida Statutes (2004), to impute to her the income she would have earned, if she had not (according to the order) quit her job at FBC. On the same, unsupported factual premise, the order states that Ms. Arnold is not entitled to temporary partial disability benefits under the (inapposite) rationale of Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998) (denying disability benefits on grounds that “the reduction in the claimant’s income below the minimum statutory level was caused by her termination for misconduct, not her disability”).

Ms. Arnold worked as a “lab specialist” for FBC from May 18, 2002, until November 28, 2004, operating a centrifuge and packaging blood and blood products. Toward the end of this period, her normal work schedule was five days per week, eight hours per day, but she typically worked weekends, as well, by herself. Earlier in her time with FBC, she had worked four weekdays per week, ten hours per day, also working weekends.

Her duties included preparing whole blood and plasma to be sent to area hospitals, and platelets for shipping either to area hospitals or overseas. After FBC began using a different type of bag for packaging blood (products), Ms. Arnold began to suffer from what proved to be bilateral carpal tunnel syndrome and teno-synovitis. She reported pain she had experienced on the job to her supervisor, Jon Nickey, on November 10, 2004, telling him that she had been experiencing symptoms including “shooting pains” for six months, and that they had intensified greatly recently.

Mr. Nickey said that he would let FBC’s Orlando office know. He later told her that the Orlando office had been notified and would get in touch with her. Ms. Arnold continued to work her regular hours, including the weekend shift by herself, performing all her regular duties without accommodation. She testified that her hands were “in severe pain” as a result and that she was experiencing numbness.

When she called the office of Dr. Homi Cooper, attempting to obtain medical care, she was told that FBC or its insurance carrier had to schedule the appointment, and had not done so yet. She placed other calls to FBC personnel, FBC’s insurance carrier, and the doctor’s office in an effort to obtain medical care until, on November 17, 2004, FBC’s Orlando office informed her that an appointment had been scheduled for her with Dr. Cooper on November 18, 2004.

Ms. Arnold testified that, by the time she was notified of the appointment, she was “just physically furious” because her hands had become so painful, and that she was “up to wit’s end just because my hands hurt so bad, I had to work the whole weekend by myself and I really didn’t see that changing” and that she had “decided it would be best if I just gave my resignation.” She did “give her resignation” in a letter dated November 17, 2004, “to be effective 11/28/2004.”

Dr. Cooper examined and evaluated Ms. Arnold, and placed restrictions on her working, including limiting performance of her regular duties at FBC to no more than forty-five minutes to an hour at a stretch, to be followed by modified duty devoid of forceful pushing, pulling, twisting or gripping of the hands for forty-five minutes to an hour. Dr. Cooper also prescribed medication and bilateral wrist splints, and ordered EMG and nerve conduction studies. Hopeful her medical problems were manageable, Ms. Arnold thought better of resigning.

On November 24, 2004, she gave her supervisor, Mr. Nickey, a letter disavowing her resignation and seeking to withdraw her letter of November 17, 2004. The later letter stated:

I would like to ask that you allow me to withdraw my [letter of] resignation. I did some research on our benefits, etc and I feel it is in my best interest to stay at least until the new year. I would however like to ask that after the Jan. 1, 05 I be allowed to go back to my schedule of 4 days a week (Thurs-Friday-Sat-Sun).

She explained at trial that “maybe I was going to start to be able to see some relief,” and that she had become concerned about losing her job and benefits, including health insurance for her children.

When Ms. Arnold spoke to Mr. Nickey about continuing to work for FBC, he told her (perhaps disingenuously) that he would submit the matter to FBC’s Orlando office, who would decide. Eventually, Mr. Nick-ey informed her that FBC would not permit her to work after November 28, 2004. FBC has offered her no employment since, and her efforts to find work elsewhere have been unsuccessful, although she has received a total of $6,764.00 in unemployment compensation benefits. Her efforts to find work included applying and interviewing with other “medical entities” in Brevard County, such as Wuesthoff Pharmacy, Melbourne Internal Medicine Asso-dates, and Wuesthoff Hospital, as well as at various retail stores, induding Kohl’s and Wal-Mart, the Brevard County Schools, and various agencies of the State of Florida. Neither FBC nor its insurance carrier has challenged the evidence on this point or questioned the adequacy of Ms. Arnold’s job search.

But they contend she is not entitled to benefits because, they say, the only reason she was out of work was that, frustrated with how long it took to get a doctor’s appointment, she rashly wrote the letter of November 17, 2004. But Mr. Nickey explained that his decision not to keep her on at FBC involved “looking at the [medically imposed, work] restrictions” she was under, which were “all kind of factored together” with the possibility she would leave on January 1, 2005, in deciding to let her go. He testified specifically that keeping her would reduce scheduling flexibility in that “the weekend position working alone ... didn’t fall within ... the scope of her doctor’s restrictions.” Alternatively, FBC and its insurance carrier contend that, if Ms. Arnold’s resignation letter does not bar payment of temporary partial disability benefits outright, they were entitled to impute “deemed earnings” based on amendments to section 440.15(7), Florida Statutes.

The judge of compensation claims acknowledged Ms. Arnold’s effort to withdraw her letter of November 17, 2004, but found “that the claimant did not express an unconditional willingness to return to work” because the letter of November 24, 2004, stated: “I feel it is in my best interest to stay at least until the new year. I would however like to ask that after the Jan. 1, 05 I be allowed to go back to my schedule of 4 days a week.” Based on this language alone, the order under review found that Ms. Arnold’s “express[ed] ... willingness to return to work” should be disregarded because it was conditioned on a change in her work schedule FBC could not accommodate. These letters, although competent evidence, fall far short of proof that she left voluntarily. As purported evidence that Ms. Arnold left FBC of her own accord, the letter of November 17, 2004, is not “substantial.” See Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”).

Mr. Nickey, who testified the decision “to have November 28th be her last day” “was made primarily on my part,” had no doubt that her schedule would be “extended to the first of the new year” before any possible change, if he let her keep her job. The condition she supposedly laid down had, therefore, no conceivable relevance to her continued employment “at least until the new year,” i.e., for the period before January 1, 2005. Only at that point could any question of a possible schedule change become a real factor. The plainly precato-ry language she used (“I would ... like to ask that ... I be allowed ....”) bespeaks, moreover, not an ironclad condition for her agreeing to work beyond January 1, 2005, but a request by one who well understands that the request may be denied. The judge of compensation claims never found (and the record would not support a finding) that Ms. Arnold ever refused any work (however painful) that FBC asked or permitted her to perform.

Remarkably, the order under review erroneously transformed FBC’s refusal to allow Ms. Arnold to work after November 28, 2004, into a refusal to work on her part. FBC had not accepted her inchoate resignation when she rescinded it. There is no evidence that Ms. Arnold actually left her employment for any reason other than FBC’s refusal to allow her to remain. The order must be reversed insofar as it makes the unsupported finding that Ms. Arnold left her job with FBC without just cause attributable to FBC.

Because the analysis below did not proceed beyond the erroneous finding that Ms. Arnold left her job voluntarily, the case must be remanded for further proceedings. To be entitled to temporary partial disability benefits, “[a] claimant must show a causal connection between his or her injury and a subsequent wage loss.” Interim Servs. v. Levy, 843 So.2d 915, 916 (Fla. 1st DCA 2003). “To determine whether an injury and a subsequent wage loss are causally connected, a JCC is to consider the totality of the circumstances.” Id. The claimant’s burden to show causation “may be met by proof which encompasses medical evidence or evidence of a good-faith work search.” Nickolls v. Univ. of Fla., 606 So.2d 410, 412 (Fla. 1st DCA 1992) (applying prior version of the Workers’ Compensation Act).

Having erroneously found that Ms. Arnold left FBC voluntarily, the judge of compensation claims ignored the evidence she presented regarding her medical restrictions and her six-month, unsuccessful job search in finding:

The claimant presented no testimony or evidence that her disability caused her to lose any earnings. The employer was ready, willing and able to accommodate the claimant within her physician assigned restrictions and the claimant resigned this employment. The claimant has failed to prove that her disability status resulted in a loss of earning capacity.

The order’s treatment of medical restrictions and a diligent job search as anything other than “evidence that her disability caused her to lose any earnings” is an unjustified departure from precedent.

Even when a disabled employee does lose a job for an extraneous reason, a good faith job search may serve as important proof that the employee is unable thereafter to find suitable employment on account of the disability. Coupled with medical restrictions, a good faith job search is not infrequently more than adequate proof of eligibility for temporary disability benefits. In Ahles, where we upheld the denial of disability benefits to an injured employee because “the reduction in the claimant’s income below the minimum statutory level was caused by her termination for misconduct,[] not her disability,” 727 So.2d at 969, the claimant made no attempt to secure other employment and presented no medical evidence that she was unable to obtain other employment on account of her injury and the medical restrictions that resulted. For that reason, the Ahles claimant did not meet her “burden to prove that the com-pensable injury caused continued unemployment.” Id, at 971 (Benton, J., concurring) (emphasis supplied). Here Ms. Ahles put on proof both of medical restrictions and of a good faith job search.

“Since wage loss involves a periodic inquiry, [moreover, a] claimant’s failure to make the required showing for one period does not preclude wage loss benefits for subsequent periods.” Id. at 970 (quoting Garrick v. William Thies & Sons, 547 So.2d 232, 234 (Fla. 1st DCA 1989)).

Indemnity benefits are not automatically foreclosed when an injured employee loses a job for reasons unrelated to her injury.... But the claimant has the burden to prove that the compensable injury caused continued unemployment. Although no longer statutorily required as a precondition to receiving temporary indemnity benefits, an unsuccessful job search may help provide such proof.
“Whatever temporary period of unemployment might be attributable solely to unrelated dislocation would logically end upon proof of a prima facie injury connection by continued wage loss after a good faith job search by one whose employment status [capacity to earn wages] has been ... altered by a compensable impairment which affects his competitive position in the labor market.” Whalen v. U.S. Elevator, 486 So.2d 670, 671 (Fla. 1st DCA 1986).

Id. at 971 (alteration in original) (citations omitted). Here, there was uncontroverted evidence that an authorized treating physician placed her on work restrictions because of her on-the-job injury, and that she tried to find work over a period of months, diligently but not successfully.

On remand, the judge of compensation claims should consider all relevant evidence, including evidence of work restrictions and Ms. Arnold’s job search, in ascertaining her entitlement to the temporary partial disability benefits she seeks. As the claimant concedes, FBC is entitled to offset the unemployment compensation benefits that Ms. Arnold has already received against any award of temporary partial disability benefits.

Reversed and remanded.

PADOVANO and LEWIS, JJ., concur.

      .For this reason, section 440.15(6), Florida Statutes (2004), does not apply in the present case.
      (6) EMPLOYEE REFUSES EMPLOYMENT. — If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable.
      § 440.15(6), Fla. Stat. (2004) (emphasis supplied). FBC and its insurance carrier do not contend that section 440.15(6) applies here.

      . See generally § 440.15(7), Fla. Stat. (2004) (providing that "temporary partial benefits shall be payable based on the deemed earnings of the employee as if she or he had remained employed” if an "employee leaves her or his employment while receiving temporary partial benefits without just cause as determined by the judge of compensation claims”). Ms. Arnold never actually received temporary partial (or any other disability) benefits.

      . There was testimony that, after she saw Dr. Cooper, "[h]er coworkers ... [k]new of her limitations and were asked to assist her.” For the final four days of her employment, however, she continued to work her regular shift, and the last two days of her employment — a Saturday and Sunday. — she worked by herself with no assistance from any coworkers.

      . She received benefits after she lost her job at FBC to which she was legally entitled only if FBC discharged her or if she had good cause under the unemployment compensation statute in leaving. See § 443.101(2), Fla. Stat. (2004) ("An individual shall be disqualified for [unemployment compensation] benefits: ... [i]f the [agency] finds that the individual has failed without good cause ... to accept suitable work when offered to ... her....”).

      . Since October 1, 2003, see ch.2003-412, § 18, at 3926-27, Laws of Fla., section 440.15(7) has provided:
      (7) EMPLOYEE LEAVES EMPLOYMENT. — If an injured employee, when receiving compensation for temporary partial disability, leaves the employment of the employer by whom she or he was employed at the time of the accident for which such compensation is being paid, the employee shall, upon securing employment elsewhere, give to such former employer an affidavit in writing containing the name of her or his new employer, the place of employment, and the amount of wages being received at such new employment; and, until she or he gives such affidavit, the compensation for temporary partial disability will cease. The employer by whom such employee was employed at the time of the accident for which such compensation is being paid may also at any time demand of such employee an additional affidavit in writing containing the name of her or his employer, the place of her or his employment, and the amount of wages she or he is receiving; and if the employee, upon such demand, fails or refuses to make and furnish such affidavit, her or his right to compensation for temporary partial disability shall cease until such affidavit is made and furnished. If the employee leaves her or his employment while receiving temporary partial benefits without just cause as determined by the judge of compensation claims, temporary partial benefits shall be payable based on the deemed earnings of the employee as if she or he had remained employed.

      § 440.15(7), Fla. Stat. (2004) (emphasis supplied). Deeming earnings in the present case would preclude an award of temporary partial disability benefits.

      . The determination in the order under review that Ms. Arnold “failed to prove that her disability status resulted in a loss of earning capacity” and "failed to satisfy her burden of proving a causal connection between her work related injury and her resulting wage loss” hinges on this erroneous, unsupported finding. Evidence of work restrictions that "factored into” the loss of her job with FBC and of her extensive search for employment elsewhere went unrebutted.

      . In Ahles, the misconduct was theft. The same principle has been applied to other misconduct:
      Workers' compensation benefits are not precluded merely because some portion of the wage loss is attributable to a reason unrelated to the injury.... Even [where] a claimant [is] terminated from his or her employment for insubordination, the claimant may still be entitled to benefits if he or she satisfies the burden of demonstrating that the injury contributed to the wage loss after the termination.

        Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173, 1177 (Fla. 1st DCA 2003). But see Ch.2003-412, § 18, at 3925, Laws of Fla. (adding to section 440.15(4)(e), Florida Statutes, effective October 1, 2003: "If the employee is terminated from post injury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”).
      Nobody suggests that Ms. Arnold was guilty of misconduct of any kind.

      . Even if the claimant in Ahles had presented evidence of a job search, the record would have supported a finding that the theft — the cause of the termination of her employment— not her compensable injury, prevented her from securing new employment and caused her continuing unemployment. Vencor Hosp. v. Ahles, 727 So.2d 968, 968 (Fla. 1st DCA 1998).


text:
    Alan M. O’NEAL; William H. Smith; Pelican Real Estate & Development Company, Inc.; and Donald I. Marden, Nancy S. Marden, and Anthony Brown, Appellants, v. BEACH RENTALS OF SOUTH WALTON, INC.; Mary Brown; Al Brown and Deborah Lewis, individually and as next friend to Andrew Lewis, a minor, Appellees.
    No. 1D06-1985.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Rehearing Denied Feb. 28, 2007.
    Lawrence Keefe, A. Benjamin Gordon, III, of Anchors Smith Grimsley, Ft. Walton Beach, and Susan L. Kelsey, of Anchors Smith Grimsley, Tallahassee, for Appellants Alan M. O’Neal, William H. Smith, Pelican Real Estate & Development Company, Inc.
    Charles Wiggins of Beggs and Lane, Pensacola, for Appellants Donald I. Mar-den, Nancy S. Marden and Anthony Brown.
    Samuel B. Taylor of Matthews & Hawkins, P.A., Destín, for Beach Rentals of South Walton, Inc., Mary Brown, A1 Brown, Deborah Lewis, individually and as next friend to Andrew Lewis, a minor, Appellees.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s show cause order of May 26, 2006, the Court has determined that the appeal is premature. The appellants have sought review of an order of the lower tribunal disposing of Counts I and II of a six-count complaint filed by the appel-lees. The lower tribunal specifically reserved jurisdiction to consider the Second Amended Complaint’s remaining four claims. In response to the Court’s show cause order the appellants concede that the order is not final. However, the appel-lees have suggested that the order is a partial final judgment with regard to appellant Alan M. O’Neal, and that the appeal must be pursued at this time. The appellees also suggest that the notice of joinder filed by defendants Donald Mar-den, Nancy Marden, and Anthony Brown is premature because counterclaims filed by those parties remain pending at this time.

The appellees have asserted that their voluntary dismissal of the claims reserved by the order on appeal renders the order final with regard to appellant O’Neal. Contrary to the appellees’ assertion, their attempts to voluntarily dismiss Counts III, V, and VI, and Count IV of the Second Amended Complaint, were ineffective. Florida Rule of Civil Procedure 1.420(a) provides that an action may be voluntarily dismissed without order of the court under limited circumstances. Specifically, the action may be unilaterally dismissed by the plaintiff before trial by serving, or during trial by stating on the record, a notice of dismissal. After that point, a voluntary dismissal by the parties can be accomplished only by filing a stipulation of dismissal signed by all of the parties who have appeared in the action. Here, the appellees attempted to voluntarily dismiss the remainder of their claims after trial by filing a notice of voluntary dismissal, rather than a stipulation of dismissal signed by all parties. Therefore, the Court concludes that Counts III through VI of the Second Amended Complaint remain pending at this time.

The appellees have also suggested that the notice of joinder in the appeal filed by Donald Marden, Nancy Marden and Anthony Brown is premature because counterclaims filed by those three defendants remain pending at this time. The appel-lees are correct. A motion to dismiss the counterclaims remains pending at this time and resolution of those counterclaims is inextricably linked with the matters disposed of by the order on appeal. Because claims and counterclaims that are related to those disposed of by the order on appeal remain pending, the appeal is premature and the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

ALLEN, WEBSTER, and THOMAS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Gary BARNARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2370.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing and Rehearing En Banc Denied March 15, 2007.

      Gary Barnard, in proper person.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Gary Barnard, was convicted of aggravated battery as a lesser included offense of attempted first degree murder, and burglary with an assault, for which he was sentenced as an habitual offender. Since his convictions in 1996, he has filed the following: (1) a direct appeal, which was affirmed on May 20, 1998, and mandate issued on June 5, 1998, see Barnard v. State, 717 So.2d 1021 (Fla. 3d DCA 1998); (2) a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging various claims of ineffective assistance of trial counsel plus claimed errors at trial, which was denied on March 11, 1999, and affirmed by this court on June 30, 1999, see Barnard v. State, 740 So.2d 546 (Fla. 3d DCA 1999); (3) a petition for writ of habeas corpus, which was denied by this court on December 15, 1999, see Barnard v. Moore, 748 So.2d 278 (Fla. 3d DCA 1999); (4) a petition for federal writ of habeas corpus, which was denied on March 21, 2003; and (5) an appeal with the United States Court of Appeals, which was dismissed.

The instant appeal from the denial of a petition for writ of habeas corpus is Barnard’s sixth postconviction proceeding and, as such, is both untimely and procedurally barred. His allegations regarding the charging document and jury instructions are clearly collateral attacks that could have been raised on direct appeal or in a 3.850 postconviction relief motion. Habeas corpus may not be used to file successive 3.850 motions or to raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla.2004).

Affirmed.


author: SHEPHERD, J.

text:
    ESTATE OF Peter P. BASALYGA, Appellant/Cross-Appellee, v. ESTATE OF Geneva M. BASALYGA, Appellee/Cross-Appellant.
    Nos. 3D04-2069, 3D04-2028.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing Denied March 15, 2007.

      Greene Smith McMillan and Cynthia Greene; Stanley M. Newmark, Miami, for appellant.
    Sinclair, Louis, Heath, Nussbaum & Za-vertnik and John Zavertnik, Miami; Hall & Hendrick, Coral Gables, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Before their deaths, Peter P. Basalyga, the Former Husband, and Geneva M. Ba-salyga, the Former Wife, appealed multiple orders arising out of their pending dissolution proceedings. Although both parties are now deceased, it remains necessary for us to dispose of the issues raised.

On his appeal, the Former Husband claimed the trial court abused its discretion or erred as a matter of law by invalidating the parties’ prenuptial agreement. Upon careful review of the record, we find that the trial court committed no error of law and that there is substantial competent evidence in the record to support the trial court’s decision to invalidate the prenuptial agreement. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). On the same basis, we conclude the trial court committed no error of law and did not abuse its discretion on any of the multiple property distribution decisions contested by the parties either on the direct appeal or the cross-appeal. Id. Accordingly, on the merits issues raised on the appeal and cross-appeal, we affirm in all respects.

At the same time, the trial court reversibly erred in awarding attorney fees to the Former Wife for the services of her trial counsel. Although a trial court may consider many factors in granting statutory attorney fees to a litigant under section 61.16 of Florida’s dissolution statutes, the “primary factor” the trial court must consider is the party’s financial resources. Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997). The relevant context in which to make this judgment “is after the dissolution proceeding has concluded, based upon the financial circumstances in which it has left the parties.” Kelly v. Kelly, 925 So.2d 364, 368-69 (Fla. 5th DCA 2006).

In this “golden years” marriage gone awry, the Former Wife claimed a net worth of $851,377 at the outset of the proceeding, and the Former Husband $2,075,433. After invalidating the prenuptial agreement, in the amended final judgment, the trial court equitably distributed approximately $1.3 million to each party. For her part, the Former Wife received a half-interest in the couple’s Sevilla home, with an option to acquire the complete interest in exchange for $320,000 in cash or stock. After electing this option, the Former Wife possessed approximately $790,000 in real estate, $188,000 in cash, and $350,000 in securities. Neither party received alimony. Although the Former Wife had no net income, the Former Husband’s was substantially consumed by incipient nursing home expenses.

The amended final judgment placed the Former Husband and the Former Wife on “nearly equal footing” for the purpose of paying fees. Freid, v. Freid, 717 So.2d 145, 145 (Fla. 5th DCA 1998) (Sharp, J., specially concurring). Neither party was disproportionately hindered in the type of representation available to each to resolve the contested issues between them. See Rosen, 696 So.2d at 699 (“A significant purpose of [section 61.16 of the Florida Statutes] is to assure that one party is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party.” (citing Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 835 (Fla. 1990))). For this reason, we conclude the trial court breached its discretion by awarding fees to the Former Wife.

Affirmed in part, reversed in part, and case remanded with directions to the trial court to pretermit the fee award to the Former Wife.


author: HAZOURI, J.

text:
    Kayan Emmanuel SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4021.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied March 19, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Kayan Emmanuel Smith appeals his conviction and sentence for one count of sale of cocaine within 1,000 feet of a park. Smith raises three points on appeal. We affirm on all points and choose to discuss the merits of his first point on appeal; that the trial court erred in failing to grant his motion for judgment of acquittal which asserted that the state failed to establish that the transaction took place within 1,000 feet of a park.

The charged crime in question occurred on April 19, 2005 at the intersection of Spruce Avenue and 16th Street in the City of West Palm Beach, Florida. Officer Thomas Breneman was working in the street narcotics unit of the Palm Beach County Sheriffs Office when he encountered Smith. Breneman told Smith that he needed to “get forty,” indicating forty dollars worth of crack cocaine. Smith told Breneman to pull around the corner, which he did. Smith rode up on his bicycle, took crack cocaine out of his mouth, and handed it to Breneman. Breneman gave him two twenty dollar bills and left. Smith was later apprehended. The transaction was videotaped and entered into evidence at the time of trial. The trial took place on September 20, 2005, approximately five months after the sale of the cocaine.

Smith’s argument that he was entitled to a judgment of acquittal on the crime of the sale of cocaine within 1,000 feet of a park centers around his argument that there was not sufficient evidence presented that the park in question, Nathaniel James Adams Park, was in existence on the date of the crime. As part of the proof, the state presented the testimony of City of West Palm Beach Police Officer Donde who, approximately five weeks prior to trial, with the use of an ultra light laser, measured the distance from the intersection of 16th Street and Spruce Avenue to Nathaniel James Adams Park to be 750 feet. In addition to the introduction of the measurement, the state also introduced, without objection, a photograph of the park showing the existence of mature trees and a sign, designating the park to be named in honor of Nathaniel James Adams.

In Johnston v. State, 863 So.2d 271 (Fla. 2003), the Florida Supreme Court recognized:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan, 830 So.2d at 803 (citing Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So.2d 1065 (Fla.1999). “A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Orme v. State, 677 So.2d 258, 262 (Fla.1996).

Johnston, 863 So.2d at 283.

“When evidence adequately supports two conflicting theories, [an appellate court’s] duty is to review the record in the light most favorable to the prevailing theory.” Johnson v. State, 660 So.2d 637, 642 (Fla.1995) (citing Wuornos v. State, 644 So.2d 1012, 1019 (Fla.1994), cert. denied, 514 U.S. 1070, 115 S.Ct. 1708, 131 L.Ed.2d 568 (1995)). The relevant question on appeal is, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict, whether there is competent, substantial evidence to support the jury’s verdict and judgment. Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

Section 893.13(l)(c) governs the sale of cocaine within 1,000 feet of a park. The statute states, in part:

Except as authorized by this chapter, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a child care facility as defined in s. 402.302 or a public or private elementary, middle, or secondary school between the hours of 6 a.m. and 12 midnight, or at any time in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility. For the purposes of this paragraph, the term “community center” means a facility operated by a nonprofit community-based organization for the provision of recreational, social, or educational services to the public....

§ 893.13(1)(c), Fla. Stat. (2005).

Smith relies on Cox v. State, 764 So.2d 711 (Fla. 1st DCA 2000), to support his assertion that the trial court erred in failing to grant the motion for judgment of acquittal. Cox is distinguishable from the case at bar. In Cox, the appellant was convicted of sale of crack cocaine within 1,000 feet of a school. The state presented evidence that the appellant sold crack cocaine to undercover narcotics detectives. The state also introduced evidence that a structure called the Academy of Excellence was across the street at a distance of 137 feet from the area where the drug transaction took place. Nonetheless, the state failed to adduce evidence which proved that the Academy of Excellence was a school at the time of the drug transaction. Id. at 712. The state presented evidence which established that two years before the charged offense, the Academy of Excellence was a school within the meaning of section 893.13(l)(c), Florida Statutes. However, the only competent evidence that the academy was a school when the offense occurred consisted of an officer’s testimony that he observed children playing outside the building with adults present. Id. at 713. Thus, the First District concluded that “the state failed to prove an essential element of the charged offense, i.e., that the offense was committed within 1,000 feet of a school.” Id.

However, unlike Cox, the state in the instant case presented competent evidence of the element in question. Here, the state presented competent evidence that the park existed at the time appellant sold crack cocaine to the undercover agent. The photograph of the park indicated that the landscaping of the park was not new. The trees were fully grown and there was no indication that they had been recently planted. Additionally, unlike Cox, in which the testimony concerning the existence of the school was made from observations two years after the commission of the crime, in the instant case, the trial took place five months after the sale of the cocaine and the measurement was made within four months of the sale. Further, the photograph introduced into evidence on the existence of the park was admitted without objection. Smith’s counsel did not assert the photograph was irrelevant or immaterial, nor did counsel assert that the photograph failed to fairly and accurately depict the park at the time of the crime. Therefore, there was competent evidence in the case at bar that the park existed when the offense occurred.

Affirmed.

KLEIN and MAY, JJ., concur.

      . The First District also inferred that the status of the Academy of Excellence as a school was not common knowledge within the territorial jurisdiction of the Circuit Court in Du-val County.


text:
    Rodney ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-241.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied March 16, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Roman v. State, 786 So.2d 1220 (Fla. 4th DCA 2001).

STONE, FARMER and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    William CERNAK, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4528.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      Jeffrey A. Haynes of Haynes and Miller, P.A., Sarasota, for Appellant.
    William Cernak, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

William Cernak seeks review of the amended sentence that was entered after the trial court granted his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We find merit only in Cernak’s argument that the trial court erred in failing to issue a written amended sentence for counts two and three. We therefore reverse and remand for entry of a written amended sentence on all three counts that comports with the trial court’s oral pronouncement.

In 1997, a jury found Cernak guilty of one count of kidnapping (count one) and two counts of sexual battery (counts two and three) for offenses that were committed on January 1, 1996. The court sentenced Cernak pursuant to the 1995 sentencing guidelines to three thirty-one-year concurrent prison terms followed by ten years of probation. Three years later, the supreme court declared the 1995 sentencing guidelines unconstitutional, see Heggs v. State, 759 So.2d 620 (Fla.2000), and Cernak subsequently filed a motion for post-conviction relief pursuant to rule 3.800(a). The trial court granted Cernak’s motion and resentenced Cernak under the 1994 sentencing guidelines.

The trial court orally sentenced Cernak to 203.5 months in prison followed by ten years’ probation on count one and to ten years’ probation on counts two and three to run consecutive to the incarceration in count one. However, the written amended sentence only pronounces a sentence on count one. Cernak noticed the discrepancy and filed a pro se “Motion/Request For Clarification” in the trial court in which he requested that the court “clarify and/or correct the problem created recently by the court’s resentencing.” The trial court subsequently granted Cernak’s motion for clarification but did not correct the error. Instead, the court indicated that the written amended sentence reflected a sentence of ten years’ probation on counts two and three to run consecutive to the incarceration in count one.

Cernak’s motion for clarification was the equivalent of a motion to correct sentencing error filed pursuant to rule 3.800(b)(1). Thus, Cernak preserved this issue for review. We conclude that the trial court’s interpretation of the written amended sentence was erroneous. As Cernak correctly asserts, the written amended sentence does not impose a sentence on counts two and three. Accordingly, we reverse and remand for entry of a written amended sentence on all three counts that comports with the trial court’s oral pronouncement.

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: STONE, J.

text:
    Tiffany GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4700.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Rehearing Denied March 21, 2007.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Claiming revocation was based solely on hearsay, Tiffany Gaines appeals a final order revoking her community control and imposing a sentence of seventy-six months in prison. We affirm.

Gaines’ probation officer filed an affidavit of violation, noting nine separate dates that Gaines allegedly failed to remain confined to her residence, the Women in Distress center. In support of these absences, the state presented admissible hearsay, in the form of the center’s sign-out logs redacted to protect the confidentiality of other shelter residents. The probation officer’s direct testimony was that Gaines was absent without consent each time. On the stand, Gaines admitted that she had signed out of the center two of the nine times, although she denied that the other logged absences were hers.

Hearsay is admissible in a revocation hearing but cannot be the sole basis. E.C. v. State, 675 So.2d 192, 193 (Fla. 4th DCA 1996). Here, we have Gaines’ admissions to support the probation officer’s testimony.

TAYLOR, J. and COLBATH, JEFFREY, Associate Judge, concur.

      . We do not consider another incident explained by a visit to an emergency room.


text:
    Patsy L. CAMPBELL, Appellant, v. COMMERCIAL SERVICE OF PERRY, INC., an Iowa corporation, Appellee.
    No. 4D05-3595.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Robert Lee Dennis, Okeechobee, for appellant.
    Steven L. Perry of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellee.
   BATEMAN, THOMAS H., Ill, Associate Judge.

The parties have been before this court once before. Commercial Serv. of Perry, Inc. v. Campbell, (Campbell I) 861 So.2d 1258 (Fla. 4th DCA 2003).

In the previous proceeding, we reversed an order awarding attorney’s fees and remanded to the trial court “for entry of an amended costs order without an award of attorney’s fees.” Id. at 1261. Campbell’s motion for stay of mandate pending review in the Florida Supreme Court was denied. Campbell’s petition for writ of certiorari in the supreme court was also denied, making our decision in Campbell I final. However, due to an oversight, this court never issued a mandate in the case.

In the meantime, Commercial Services filed a motion for judgment for costs in the trial court. A hearing was held and the trial court entered an amended order. A series of post-order motions by Campbell in the trial court were denied. Campbell timely appealed the trial court’s amended order to this court and raised two issues for our consideration.

Campbell first claims, and Commercial Services concedes, that the trial court lacked jurisdiction to enter the amended order because this court had not yet issued its mandate. See Brooks v. State, 937 So.2d 827 (Fla. 2d DCA 2006) (because the mandate had not issued the trial court lacked jurisdiction to resentence Brooks); State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001) (mandate functions to end the jurisdiction of the appellate court and to return full jurisdiction of the case to the trial court); Washington v. State, 637 So.2d 296 (Fla. 1st DCA 1994) (the judgment of an appellate court becomes final upon issuance of a mandate).

Campbell also argues that because this court did not issue its mandate within fifteen days of the Florida Supreme Court’s decision denying review of this court’s order in Campbell I, this court permanently lost jurisdiction over the case. We disagree.

This is not a situation in which the court is attempting to recall a mandate it issued after the term of the court in which the case was heard has expired, as in State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So.2d 980 (Fla.1981). In this case, as a result of an oversight, the mandate in Campbell I was not issued at the proper time. Therefore, jurisdiction remained in this court. After reviewing the instant appeal, we instructed the clerk of the court to issue the mandate in Campbell I, and the mandate issued on July 13, 2006.

The amended order which is the subject of this appeal is reversed and remanded due to the trial court's lack of jurisdiction when it entered the order.

Reversed and remanded.

STEVENSON, C.J., and STONE, J., concur.


author: MAY, J.

text:
    Barbara A. FACH nee Cain and Lauren K. Cain, Appellants, v. BROWN BROTHERS HARRIMAN TRUST COMPANY OF FLORIDA, as Trustees, et al., Appellees.
    Nos. 4D06-1941, 4D06-1942.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 19, 2007.

      Jan Douglas Atlas and Jeffrey A. Back-man of Adorno & Yoss, LLP, Fort Laud-erdale, for appellants.
    Robert J. Hauser and Patricia A. Leonard of Beasley, Hauser, Kramer, Leonard & Galardi, P.A., West Palm Beach, for appellees, Jenna Cain Brinkworth, individually and as the natural guardian and next friend of minors Dennis J. Brinkworth, Isobel C. Brinkworth, and Larkin P. Brinkworth.
   MAY, J.

In this consolidated appeal, Barbara A. Fach and her daughter Lauren K. Cain appeal two non-final orders denying, without hearing, their emergency motions for relief from orders, filed pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The orders from which they sought relief were entered in an adversarial proceeding in which the probate comet appointed U.S. Trust as the successor trustee to Brown Brothers Harriman Trust Company on an emergency basis in two separate cases. The appellees argue that this court lacks jurisdiction because the orders from which the appellants sought relief in the probate court were not final orders, and thereby not subject to Rule 1.540. We agree and dismiss the appeal.

At oral argument, the appellants essentially agreed that this appeal was taken to insure that the trial court had left certain issues open for consideration. In fact, in this case the probate court specifically asked whether it could appoint U.S. Trust as successor trustee and leave the situs of the trust in Palm Beach County, without prejudice to addressing the latter issue at a subsequent hearing. The court then dictated its order to counsel, again reiterating that the appointment was without prejudice to addressing the situs of the trust at a later time.

The orders in this case appointing U.S. Trust on an emergency basis without prejudice were not final orders. They were therefore not subject to review under Rule 1.540. We therefore lack jurisdiction to review the probate court’s order denying review. Our dismissal does not preclude the probate court from addressing those issues left open in its original orders.

Appeal Dismissed.

KLEIN and HAZOURI, JJ., concur.


author: WELLS, Judge.

text:
    Teresa M. RUIZ, Appellant, v. WARREN HENRY AUTOMOBILES, INC., d/b/a Land Rover North Dade, Appellee.
    No. 06-1017.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Scott R. McNary, Miami, and David R. Bolen, for appellant.
    Legón Ponce & Fodiman and Todd A. Fodiman and Jeffrey A. Sudduth, Miami, for appellee.
    Before WELLS and CORTINAS, JJ and SCHWARTZ, Senior Judge.
   WELLS, Judge.

While we acknowledge that the amended complaint and the documents attached to it demonstrate that the automobile at issue was not leased to Teresa M. Ruiz and that she has not, therefore, stated claims sounding in fraudulent inducement, negligent misrepresentation or violation of FDUPTA, we agree that this case should be remanded to permit the lessee of the vehicle, Ruiz’s mother, to be joined so that appropriate claim or claims may be stated. See Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251, 255 (Fla. 3d DCA 2005)(“In order to state a cause of action for fraud in the inducement, a plaintiff must allege that 1) the representor made a misrepresentation of a material fact, 2) the representor knew or should have known of the falsity of the statement, 3) the representor intended that the representation would induce another to rely and act on it, and 4) the plaintiff suffered injury in justifiable reliance on the representation”); Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993)(“To prove negligent misrepresentation, it must be shown that (1) there was a misrepresentation of material fact; (2) the repre-senter either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation.”) (emphasis added); § 501.211(2), Fla. Stat. (2005) (permitting recovery by “a person who has suffered a loss as a result of a violation of this part”).

Reversed and remanded with instructions.