author: STEVENSON, C.J.

text:
    Leonid TUROVETS, Rostislav Turovets and Alina Turovets, Appellants, v. Rita KHROMOV, Appellee.
    No. 4D05-2517.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Rehearing Denied Jan. 2, 2007.

      Warren B. Kwavnick and John H. Richards of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellants.
    Todd A. Armbruster of Moskowitz, Man-dell, Salim & Simowitz, P.A., Fort Lauder-dale, for appellee.
   STEVENSON, C.J.

In this ease involving a disputed quitclaim deed to a condominium unit, appellants, Leonid Turovets and his children, Rostislav and Alina Turovets, appeal the trial court’s orders assessing section 57.105 attorney’s fees to appellee, Rita Khromov, and granting summary judgment in Khro-mov’s favor on the counterclaim filed by Rostislav Turovets. We reverse because the record does not support the award of attorney’s fees based on Florida Statutes section 57.105 and a disputed issue of fact precluded the trial court from entering summary judgment on the counterclaim.

On July 29, 2002, appellee, Rita Khro-mov, filed a complaint alleging that Leonid, with whom she had shared a fourteen-year marital-like relationship, forged her signature on a deed that conveyed to him her interest in their jointly-acquired condominium unit. Khromov sought the deed’s rescission, the ejectment of Leonid and his children, and attorney’s fees pursuant to section 57.105. In their answer, appellants denied forging Khromov’s signature. Rostislav also filed a counterclaim seeking damages for unjust enrichment, contribution for the purchase and maintenance of the condominium, and to quiet title because the deed transferring Khro-mov’s interest was valid.

During discovery, Linda Hart, a handwriting expert, testified that based on the absence of variations between Khromov’s signature and the potential forgery, a probability existed that someone forged Khromov’s signature. The expert further opined that although there was not a “high probability” of forgery, the opportunity to examine the original deed might provide a more definite conclusion. Leonid refuted the alleged forgery, maintaining that he saw Khromov sign the deed. Alex Katz, who is not a party to these proceedings, corroborated Leonid’s testimony, stating he too observed Khromov and Shalom Sil-verman, the notary, sign the deed. The notary, who was also deposed, stated he was between sixty and seventy percent positive someone forged his signature because although portions of the purported signature were “exactly like” his signature, his first name was misspelled and a few letters were written differently.

Before the trial commenced, Khromov filed an affidavit by the notary reiterating he was “all but certain” someone forged his signature. Thereafter, the parties entered into a settlement agreement which awarded Khromov one half of the condominium. Khromov subsequently filed an amended complaint seeking a partition of the condominium, compensatory damages for Leonid converting the property, and attorney’s fees pursuant to sections 64.081 and 57.105, Florida Statutes. The trial court granted summary judgment in Khro-mov’s favor on both the amended complaint and Rostislav’s counterclaim for contribution and unjust enrichment on the ground that Rostislav had “unclean hands” due to his assertion throughout the litigation that Khromov signed the deed.

Furthermore, based on the record and arguments presented, the trial court awarded Khromov attorney’s fees pursuant to section 57.105, reasoning that when the litigation commenced, Leonid and his children knew or should have known no material facts supported their assertion that Khromov signed the deed. Additionally, Leonid and his children “squander[ed] a ‘last clear chance’ to withdraw their factually meritless position” by insisting throughout the litigation that Khromov executed the deed. The trial court also granted Khromov’s motion for additional attorney’s fees related to the partition and as a prevailing party for purposes of section 57.041. In this appeal, appellants challenge the attorney’s fees award and the summary judgment on the counterclaim.

We begin our analysis by recognizing that “the award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.” DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992). “ ‘The purpose of [section 57.105] is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorneys’ fees awards on losing parties who engage in such activities.’ ” Renfro v. Dodge, 520 So.2d 690, 692 (Fla. 4th DCA 1988) (quoting United Cos. Fin. Corp. v. Hughes, 460 So.2d 585, 587 (Fla. 2d DCA 1984)).

“In determining whether a party is entitled to statutory attorney’s fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.”

Yakavonis v. Dolphin Petroleum, Inc., 934 So .2d 615, 619 (Fla. 4th DCA 2006) (quoting Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003)).

Claims which are frivolous because they are not supported by the facts include those asserting material factual statements and assertions known to be false and contradicted by overwhelming evidence. See Yakavonis, 934 So.2d at 619. Here, the trial court’s findings that appellants “produced no evidence corroborating them allegation that [Khromov] executed the deed” and that the allegation “was not supported by any material facts” are belied by the record. The deed bore a signature which was purportedly Khro-mov’s. The handwriting expert explicitly stated there was not a high probability that someone forged Khromov’s signature. Moreover, Alex Katz, who was not a party to these proceedings, testified that he witnessed Khromov and the notary sign the deed. While the notary found discrepancies between his signature and his purported signature on the deed, he was not positive that someone forged his name. On the record in this case, the trial court could not properly conclude that the appellants’ factual assertion that Khromov signed the deed was a known false statement or was contradicted by overwhelming evidence. See id.; United Cos. Fin. Corp. v. Hughes, 460 So.2d 585, 587 (Fla. 2d DCA 1984) (stating “to justify an award against an unsuccessful plaintiff [based on section 57.105], the action must be so clearly devoid of merit, both on the facts and the law, as to be completely untenable”). Accordingly, we reverse summary judgment on Rostislav’s counterclaim as a disputed issue of fact remains as to whether Khromov in fact signed the deed. Likewise, we reverse the trial court’s assessment of section 57.105 fees to Khromov and remand the case to the trial court for recalculation of attorney’s fees.

Reversed and Remanded.

STONE and POLEN, JJ., concur.

      . Hart explained that "[t]here are always variations” to a person’s signature as no one signs their name the same way every time. Thus, the absence of variations would indicate that the signature was traced.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patrick PENN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2182.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Patrick Penn, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    John TAGGART, Appellant, v. Gary MORGAN and Prima Capital Growth Fund, LLC, Appellees.
    No. 3D05-1593.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Gary Barcus, Pembroke Pines, for appellant.
    Richard Lee Ruben, Miami, for appel-lees.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

John Taggart (“Taggart”) appeals the trial court’s denial of his motion for summary judgment. We dismiss this appeal for lack of jurisdiction.

The plaintiff below, Taggart, and defendants, Gary Morgan (“Morgan”) and Pri-ma Capital Growth Fund (“Prima Capital”), filed cross-motions for summary judgment. The trial court denied both motions without prejudice. Taggart argues that the trial court’s denial of his motion should be reversed because Morgan and Prima Capital failed to file affidavits in opposition to his summary judgment motion. Morgan and Prima Capital assert that this appeal should be dismissed because it is taken from an unappealable non-final order.

The rules of appellate procedure do not permit interlocutory appeals of non-final orders denying motions for summary judgment. Fla. R.App. P. 9.130(a)(3). Taggart fails to explain how any exception applies in the instant case. Accordingly, this appeal is dismissed for lack of jurisdiction. See Mathews v. Urezzio, 788 So.2d 1133 (Fla. 5th DCA 2001); Vermette v. Ludwig, 707 So.2d 742 (Fla. 2d DCA 1997); Aetna Cas. & Sur. v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980).

Appeal dismissed.


text:
    Christopher WILBON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1578.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.

      Christopher Wilbon, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Fla. R.Crim. P. 3.850; Maxwell v. State, 937 So.2d 216 (Fla. 3d DCA 2006).


text:
    Lloyd Anthony MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2050.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Lloyd Anthony Medina, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Fla. R.Crim. P. 3.850(b); Morgan v. State, 912 So.2d 642 (Fla. 5th DCA 2005), review denied, 929 So.2d 1053 (Fla. 2006).


text:
    Eugene ALLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2180.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Dec. 14, 2006.
    Eugene Allen, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Horn v. State, 775 So.2d 1007 (Fla. 3d DCA 2001)(elaim of incorrect calculation in sentencing guidelines score-sheet need not be reached if defendant was sentenced as a habitual offender).


text:
    Christopher James GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-938.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing Denied Nov. 30, 2006.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera and Laura Moszer, Assistant Attorneys General, for appel-lee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Pender v. State, 700 So.2d 664 (Fla.1997); Richardson v. State, 246 So.2d 771 (Fla.1971); Kiser v. State, 921 So.2d 28 (Fla. 1st DCA 2006); State v. Rodriguez, 907 So.2d 564 (Fla. 3d DCA 2005); Frazier v. State, 467 So.2d 447 (Fla. 3d DCA 1985), review dismissed, 475 So.2d 694 (Fla.1985).


text:
    Simon D. KOPEL, Appellant/Cross-Appellee, v. Dulce M. BERNARDEZ-KOPEL, Appellee/Cross-Appellant.
    No. 3D05-783, 3D05-1743.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Daniel Kaplan, Aventura, and Cathi Gordon Graham, for appellant/cross-appel-lee.
    Simon, Schindler & Sandberg and Neal Sandberg, Miami, and Anthony Falzon, for appellee/cross-appellant.
    Before WELLS, and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We find no abuse of discretion in the trial court’s attorney’s fees award or in its equitable distribution determination. See Reynolds v. Reynolds, 664 So.2d 1131, 1131 (Fla. 3d DCA 1995) (requiring former husband to pay all of former wife’s attorney’s fees where he earned greater income than wife and where wife’s share of equitable distribution was primarily an illiquid asset); Kelly v. Kelly, 491 So.2d 330, 330 (Fla. 1st DCA 1986) (reversing denial of a fee award to a spouse with a non-liquid asset award and income substantially smaller that the other spouse); Hirst v. Hirst, 452 So.2d 1083, 1085 (Fla. 4th DCA 1984) (finding the former wife was entitled to “the full amount of her attorney’s fees since at the time of the final judgment [she] had little or no liquid assets and only minimal income from which she could pay her attorney’s fees”).


author: ROTHENBERG, Judge.

text:
    Andres MONTOYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2136.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Andres Montoya, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Andres Montoya (“Montoya”), appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As the current motion, which attacks the legality of the sentence imposed, would be successive if treated as a rule 3.850 motion, the trial court, as requested by Montoya, treated the motion as a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Montoya also requests that this court treat his motion as filed pursuant to rule 3.800, if we determine that his motion is barred as untimely under rule 3.850. We, therefore, treat the instant appeal as an appeal from the trial court’s order denying relief pursuant to rule 3.800, and for the reasons that follow, affirm.

The disputed sentence was imposed on March 25, 2003, as a result of a finding by the trial court that Montoya violated his probation. At the time of sentencing, a sentencing scoresheet was prepared which, based upon Montoya’s current and prior convictions, placed the sentencing range at 77.8 months (6.487 years) to 36 years. The trial court sentenced Montoya to ten years incarceration, which was neither at the bottom of the guidelines, nor at the top.

Montoya claims that the inclusion of several misdemeanor convictions in computation of his sentencing guidelines range was error, as his convictions in those cases were as a result of uncounseled pleas. We agree. See State v. Beach, 592 So.2d 237 (Fla.1992); Brye v. State, 677 So.2d 1357 (Fla. 1st DCA 1996) (finding that defendant presented a prima facie showing of entitlement to relief on the ground of ineffective assistance of counsel by alleging that counsel knew or should have known that prior uncounseled convictions were unscoreable). He also claims that by removing these improperly scored misdemeanor convictions, the scoreable points would be reduced from 131.8 points to 130.0 points, a 1.8 point reduction, which places him in a somewhat different sentencing range, and therefore, requiring re-sentencing.

While we agree that the 1.8 point reduction alters the defendant’s sentencing range, we disagree that under the circumstances herein presented that resentencing is required. If we were to compute the 1.8 point variance, Montoya’s sentencing v range would be 6.377 to 36 years, as opposed to 6.487 to 36 years, a difference of just over one month. As the sentence imposed was ten years, we conclude that the one month change to the bottom of the sentencing guidelines is minimal and harmless beyond a reasonable doubt.

In support of this conclusion, we rely upon the Florida Supreme Court’s decision in State v. Anderson, 905 So.2d 111 (Fla.2005), which while not conclusive, is instructive. In Anderson, the Court addressed the standard which should be applied when determining whether a score-sheet calculation error raised in a 3.850 motion warrants resentencing. The issue was whether to apply a “would-have-been-imposed” standard or a “could-have-been-imposed” standard. Under the “would-have-been-imposed” standard, a score-sheet error requires resentencing unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet, whereas, under the “could-have-been-imposed” standard, a scoresheet error does not require resen-tencing if the sentence could have been imposed (absent a departure) with a correct scoresheet. Id. at 111. The Court ultimately concluded that a properly calculated scoresheet is important when deciding the sentence to impose, and thus, “the would-have-been-imposed standard should apply to motions filed under rule 3.850 to correct scoresheet error.” Id. at 118. In reaching this conclusion, the Court, however, limited its holding to motions filed under Rule 3.850, stating:

Because it is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence, we agree that the would-have-been-imposed standard should apply to motions filed under rule 3.850to correct scoresheet error. Rule 3.850places numerous burdens upon defendants, who largely file such motions pro se. The motion must be sworn and must meet certain pleading requirements. Importantly, the motion must be filed within two years after the conviction and sentence are final.
Because the defendant in this case timely filed his motion under rule 3.850, meaning he filed it within two years after his conviction was final, we need not decide whether the would-have-been-imposed harmless error standard also should apply to motions filed under rule 3.800(a), the rule under which Hum-mel filed her claim in the conflict case.7 We do note, however, that rule 3.800(a) permits a motion to be filed “at any time” after a conviction and sentence are final-even decades later. After the time for filing 3.850 motions has passed, the State’s interests in finality are more compelling. See, e.g., Maddox v. State, 760 So.2d 89, 100 n. 8 (Fla.2000) (noting that “clearly the class of errors that constitute an ‘illegal’ sentence that can be raised for the first time in a post-conviction motion decades after a sentence becomes final is a narrower class of errors than those termed ‘fundamental’ errors that can be raised on direct appeal even though unpreserved”). Moreover, the would-have-been-imposed test, which requires a sentencing court to determine whether it would have imposed the same sentence using a correct scoresheet, may lose its effectiveness when a judge must decide the issue several years after the original sentencing. Therefore, the would-have-been-imposed standard may be too speculative and subjective for purposes of rule 3.800(a). Because Anderson’s motion was timely filed within the two-year period under rule 3.850, however, we need not reach that issue. We simply note that our decision in this case applies only to scoresheet error raised on direct appeal or in a motion filed under rule 3.850.

Id. at 118.

In light of the Florida Supreme Court’s holding in Anderson, including the cited to passage above, we conclude, as did the Fourth District Court of Appeal in Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006), that the “would-have-been-imposed” harmless error test should not be applied to motions filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

In Brooks, the Fourth District Court, sitting en banc, read rule 3.800(a) to allow relief to a narrower class of cases than rule 3.850, in part, because there is no time limit for the filing of a 3.800(a) motion, noting that “ ‘[a]fter the time for filing 3.850motions has passed, the State’s interests in finality are more compelling.’ ” Id. at 836 (quoting Anderson, 905 So.2d at 118). The court, therefore, applied the “could-have-been-imposed” standard when determining whether the error was harmless. Thus, the court affirmed the trial court’s denial of Brook’s motion to correct his sentence, which was imposed on an incorrectly calculated sentencing score-sheet.

In the instant ease, Montoya could have been sentenced to thirty-six years in prison. Under the corrected scoresheet the lowest sentence which could have been imposed, absent a departure sentence, is 76.5 months or 6.377 years. The score-sheet relied upon by the trial court in sentencing Montoya, placed the bottom of the sentencing range at 77.8 months or 6.487 years, which is the difference of 1.3 months. As the trial court did not sentence the defendant near the bottom of the scoresheet and the difference is diminimis, we conclude that the calculation error was harmless beyond a reasonable doubt. See Brooks, 930 So.2d at 835 (finding that a thirty-six point error to the scoresheet, which when corrected resulted in a change of the lowest permissible sentence from 66.3 months to 39.3 months, was harmless error not requiring resentencing where the defendant was sentenced to ten years and could have been sentenced to thirty years); Perez v. State, 840 So.2d 1179, 1180 (Fla. 5th DCA 2003) (remanding for a scoresheet correction only to delete 1.2 points from the score, reducing the maximum sentence from 182.7 to 181.25 months); Eppert v. State, 712 So.2d 461, 462 (Fla. 2d DCA 1998) (remanding for a two-point correction of the scoresheet but not for resen-tencing where the error resulted in only a lower range from 40.95 to 39.45 months and the defendant was sentenced to forty-eight months).

As did the Fourth District in Brooks, we certify conflict with Wilson v. State, 913 So.2d 1277 (Fla. 2d DCA 2005).

Affirmed.

      . On August 19, 2005, Montoya filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. The trial court denied the motion on September 29, 2005, denied rehearing on December 1, 2005, and this court affirmed on March 23, 2006. Montoya v. State, 923 So.2d 1178 (Fla. 3d DCA 2006). The instant 3.850 motion was filed on May 26, 2006, and, is therefore, successive and, thus, procedurally barred.

      . Footnote 7 of the Anderson opinion provides as follows: "The opinion in Hummel does not reveal when the defendant filed her motion or when her sentence became final. [Hummel v. State,] 782 So.2d at 451 (Fla. 1st DCA 2001).”


author: WELLS, Judge.

text:
    Juan BOGARDUS, Appellant, v. JUSTICE ADMINISTRATIVE COMMISSION and Florida Unemployment Appeals Commission, Appellee.
    No. 3D06-1127.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 20, 2006.

      Juan Bogardus, in proper person.
    John Maher, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   WELLS, Judge.

Juan Bogardus appeals from a final order of the Unemployment Appeals Commission affirming a decision of an appeals referee disqualifying Bogardus from receiving unemployment compensation benefits. We affirm.

Bogardus became an OPS employee of the Broward County Guardian ad Litem Program in March 2004. In late October 2005, the GAL’s offices sustained heavy damage from Hurricane Wilma. As a consequence, for several weeks, according to Bogardus, he was working reduced hours and receiving some unemployment compensation.

When the employees finally returned to work, they were asked on a voluntary basis to assist in moving into temporary office space. Bogardus, who had an existing medical condition, volunteered to assist in these tasks but after a few days began to notice a decline in his health.

On November 14, 2005, Bogardus approached his supervisor, Patty Walker, and told her that because of his medical condition and the stress of the drive from his home in Miami-Dade to work in Bro-ward County, he was quitting his job:

REFEREE: Okay. And was the claimant discharged, or did he quit?
WALKER: He quit.
REFEREE: Okay. Did he give notice to you that he was leaving?
WALKER: He — on November — I believe it was on November 14th, he approached me, and we were in temporary quarters in another building after — you know, our building was damaged by the hurricane. He approached me and— and Annette Hutchings, our HR liaison was with me as well, to let me know that he had, you know, spoken to his family and, due to his medical condition that seemed to be worsening and the drive was putting extra stress on that situation, that he felt it was best to leave his position to take care of his medical issues. You know, to be able to address those.

Bogardus admitted that he did not provide a doctor’s note stating that he should or could not perform his work nor did he ask for some other work that would not affect his health:

REFEREE: Okay. Did a doctor tell you you could not work?
BOGARDUS: ... Not exactly, but I was advised that my — my health should be one of the most important things before I considered employment on fields that might [affect] my health.
* * * *
THE REFEREE: And there was no other place that they can put you ... anywhere else?
* * * *
BOGARDUS: well — well, it could’ve been a possibility. It could’ve been a possibility.... But I’m sure it could’ve been possible to place me somewhere that would be not a hazardous condition.
REFEREE: Did you ask?
BOGARDUS: I don’t recall asking officially. ...

As his supervisor testified, she thought highly of Bogardus and would have found some appropriate work for him to do had he asked rather than quit:

WALKER: You know, I — this has nothing to do — I want to make sure [Bogar-dus] understands, this is not any kind of situation where he should feel that you know it’s punitive or anything like that, that he was a good employee, but he absolutely made it clear to me that he could no — -know, no longer work for us at that time. And he approached me. I would’ve definitely found things for him to do, even if it was some — a little bit out of the parameters from what he was doing. We would’ve sat down, discussed new responsibilities, anything that he could’ve helped with, you know, in the office. But actually renovating the building would definitely not have been his responsibility. That’s not my responsibility either. That’s the building owner’s responsibility. So he would have been given work, yes.

Based on this evidence, the hearing officer found that Bogardus “voluntarily quit on November 14, 2005, when claimant informed the director that he was leaving the job due to his health and due to the long drive.” The hearing officer also correctly concluded that under such circumstances “the burden [was] on the claimant to show ... that he had good cause to quit.” As explained in Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990) (citations omitted):

An appeals referee is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence.... The question of whether a claimant,left work voluntarily is a question of fact.... But the question is whether she voluntarily left for good cause. “Good cause” for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment.

Here, the hearing officer concluded that Bogardus failed to meet the burden of demonstrating good cause because he “never presented any doctor notes to inform the employer that he could no longer work due to his health conditions,” and because he “was aware of the drive from his house to the job site.”

Because the referee’s conclusion that Bogardus voluntarily quit his job without good cause attributable to his employer was supported by competent substantial evidence, we affirm. See § 443.101(l)(a), Fla. Stat. (2005) (disqualifying an individual from receipt of benefits for that period “in which he or she has voluntarily left his or her work without good cause attributable to his or her employing unit”); Fink v. Florida Unemployment Appeals Comm’n, 665 So.2d 373, 374 (Fla. 4th DCA 1996)(“an administrative agency’s action should be sustained on appeal if based upon any acceptable view of the evidence”); David Clark & Assocs., Inc. v. Kennedy, 390 So.2d 149, 151 (Fla. 1st DCA 1980) (as trier of fact, the hearing officer is privileged to weigh and reject conflicting evidence).

Affirmed.

      . As defined in section 216.01 l(dd), Florida Statutes (2006), provides in part:
      "Other personal services” means the appropriation category used to fund the compensation for services rendered by a person who is not filling an established position. This definition includes, but is not limited to, services of temporary employees, student or graduate assistants, persons on fellowships, part-time academic employees, board members, and consultants and other services specifically budgeted by each agency, or by the judicial branch, in this category-


text:
    CITY OF SWEETWATER FLORIDA, a municipal corporation, Appellant, v. Allen B. ST. GERMAIN and George Ignacio Alvarez, Appellees.
    No. 3D06-1626.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 21, 2006.
    Irizarri & Gersten, Miami, and Ramon Irizarri and Judith L. Gersten, Miami, for appellants.
    Jorden Burt and Janice Burton Sharp-stein; Hartman & Comely and Douglas C. Hartman, Miami, for appellees.
    Before WELLS, CORTINAS and ROTHENBERG, JJ.
   WELLS, Judge.

The City of Sweetwater appeals from an order denying its motion to dismiss, on service of process and personal jurisdiction grounds, the applications of two of its police officers who sought payment of attorneys’ fees and costs after being found not guilty of criminal charges. We affirm.

On July 7, 2004, Sweetwater police officers Allen B. St. Germain and George Ignacio Alvarez were charged with felony battery and official misconduct. Following a jury trial, St. Germain and Alvarez were found not guilty on all charges. Pursuant to section 111.065(4) of the Florida Statutes, St. Germain and Alvarez applied to the City for payment of the fees and costs that they had incurred in their defense. § 111.065(4)(b)l, Fla. Stat. (2006)(provid-ing that “[t]he officer shall submit an application for payment of reasonable attorney’s fees and costs to the employing agency no later than 30 days after termination of the criminal action”). The City Commission addressed the officers’ applications on two occasions, and although on one of these occasions the Mayor commented that the attorneys had done an “outstanding job” and “deserve[d] to get paid,” the applications were denied.

Alvarez and St. Germain then submitted their applications to the circuit court as authorized by section 111.065:

If the officer and the employing agency do not reach an agreement or if payment is not provided within the specified time, the officer requesting payment of attorney’s fees and costs may submit the application to the court having jurisdiction over the criminal action within 30 days after the termination of the criminal action, failure to reach an agreement, or failure to pay the fees or costs, whichever is later. The court shall retain jurisdiction of the matter in order to determine entitlement to payment and the amount of reasonable attorney’s fees and costs.

§ 111.065(4)(b)(3), Fla. Stat. (2004).

Alvarez mailed copies of his application to the City’s mayor, the City attorney, the attorney who prosecuted the criminal case against him, and counsel for St. Germain. St. Germain mailed copies of his application to the City attorney, the attorney who prosecuted the criminal case against him, and counsel for Alvarez.

Rather than responding to the applications as provided by section 111 .065(4) (b)(4), the City filed a Rule 1.140 motion claiming that the trial court lacked in personam jurisdiction because the City had not been served with process as purportedly required by the Florida Rules of Civil Procedure and Chapter 48 of the Florida Statutes. The trial court correctly denied this motion.

The “Law Enforcement Fair Defense Act,” section 111.065 of the Florida Statutes, revised existing law governing the provision and payment of law enforcement officers’ attorneys’ fees and costs in criminal and civil actions. This Act requires an employing agency to provide and pay for the legal representation of law enforcement officers against whom criminal actions have been brought where (1) the actions giving rise to the charges arose within the course and scope of the officer’s duties; (2) the officer materially complied with the employing agency’s policies and procedures or generally recognized criminal justice standards where no written policies or procedures exist; and (3) where the actions giving rise to the charges occurred either in response to what the officer reasonably believed to be an emergency; in an effort to protect the officer or others from imminent death or bodily harm; or while in fresh pursuit, apprehending, or attempting to apprehend a suspect reasonably believed to have perpetrated, or attempted to perpetrate, a forcible felony as defined in section 776.08, or the offense of escape. § 111.065(3), Fla. Stat. (2006).

The Act also provides “an alternative process” by which an acquitted officer, who did not plead guilty or nolo contende-re or who was not found guilty at trial, may obtain reimbursement of fees and costs when the employing agency does not provide an attorney or when the officer does not use an agency attorney. See Criminal Justice Committeei SB226: Senate Staff Analysis and' Economic Impact Statement (Fla. January 28, 2004). That process, which is clearly and unambiguously delineated in section 111.065(4)(b), requires only that the officer submit a fee and cost application to the employing agency and if the agency and the officer cannot agree, to submit the application to the court with jurisdiction over the criminal action in which the officer was charged:

(b) If legal representation is provided in accordance with paragraph (a), the amount of reasonable attorney’s fees and costs shall be determined as follows: 1. The officer shall submit an application for payment of reasonable attorney’s fees and costs to the employing agency no later than 30 days after termination of the criminal action. Thereafter, the employing agency and the officer must agree on reasonable attorney’s fees and costs to be paid within 30 days after submitting the application for payment. The officer may only apply for attorney’s fees and costs incurred in the actual defense of the prosecution of criminal charges, and the officer is not entitled to seek or collect attorney’s fees and costs related to efforts to collect attorney’s fees and costs under this section.
2. The application for reasonable attorney’s fees and costs must include an itemization statement from an attorney or expert witness representing or appearing in behalf of the officer which states the actual time expended and the rate at which fees and other expenses were computed.
3. If the officer and the employing agency do not reach an agreement or if payment is not provided within the specified time, the officer requesting payment of attorney’s fees and costs may submit the application to the court having jurisdiction over the criminal action within 30 days after the termination of the criminal action, failure to reach an agreement, or failure to pay the fees or costs, whichever is later. The court shall retain jurisdiction of the matter in order to determine entitlement to payment and the amount of reasonable attorney’s fees and costs.

§ 111.065(4)(b)l-3, Fla. Stat. (2006).

The Act also accords the employing agency the right to respond to the application, should judicial determination be necessary, and details the criteria that may be considered by the court in determining whether to enter a fee and cost award:

4. If the officer files an application for attorney’s fees and costs with the court, the employing agency shall have the right to respond to the application. The court shall make its determination as to entitlement and amount of reasonable attorney’s fees and costs based on:
a. Whether the officer’s actions complied with the requirements of paragraphs (3)(a), (b), and (c); and
b. Prevailing market rates in the appropriate market area for defense of similar actions, as well as other relevant factors.
(c) A lodestar or fee multiplier provision may not be used in any criminal prosecution defended under this subsection and the attorney’s fees and costs awarded may not exceed $100,000.

§ 111.065(4)(b)(4) and (4)(c), Fla. Stat. (2006).

This “alternative process,” mandates neither the filing of an independent claim, petition or action nor formal service of process. The trial court, therefore, correctly rejected the City’s claim that the trial court lacked jurisdiction over it because this provision mandated Chapter 48 service of process.

We also find unpersuasive the City’s reliance on Florida Dept. of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004), to support its argument that formal service of process was mandated in this case. At issue in Sun-Sentinel, was a petition filed pursuant to then section 119.07(7)(a) of the Florida Statutes in the civil division of the circuit court to obtain public but confidential DCF records relating to a pending criminal action in which two parents had been charged with criminal child neglect. Section 119.07(7)(a), in pertinent part provided:

Any person or organization, including the Department of Children and Family Services, may petition the court for an order making public the records of the Department of Children and Family Services....

See § 119.07(7)(a), Fla. Stat. (2002).

The Sun-Sentinel made no attempt to formally serve DCF with the petition but only faxed a copy of the petition to DCF. DCF moved to dismiss claiming, in part, that service by facsimile was insufficient to invoke jurisdiction over it.

The trial court denied DCF’s motion. The Florida Supreme Court disagreed, holding that although this provision was silent with regard to service of process, the filing of a petition to make public records held by DCF commenced a civil action that required The Sun-Sentinel to comply with the rules and statutes governing formal service of process:

We ... hold that a section 119.07(7)(a) petitioner must serve DCF with the petition. The Florida Rules of Civil Procedure apply to “all actions of a civil nature.” Fla. R. Civ. P. 1.010. Rule 1.050 provides that civil actions are commenced when the complaint or petition is filed. Rule 1.070 provides that “[u]pon the commencement of the action, summons or other process authorized by law shall be issued.” Section 48.031(l)(a), Florida Statutes (2002), states that “[s]erviee of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading.” (Emphasis added.) Section 48.111(2), Florida Statutes (2002), provides that “[pjroeess against any public agency, board, commission, or department not a body corporate ... shall be served on the public officer being sued or the chief executive officer of the agency, board, commission, or department.”

Sun-Sentinel, Inc., 865 So.2d at 1285.

None of this remotely applies to section 111.065 which neither mandates filing of a complaint, petition or any other initial pleading nor contemplates institution of an independent civil action for an officer to secure fees and costs.

In sum, section 45.021 provides that “[e]hapters 45-51 [addressing service of process] ... apply to all actions ... unless specifically provided otherwise in such chapters or parts thereof.” § 45.021, Fla. Stat. (2006). Here, the Legislature has “specifically provided otherwise.”

Accordingly, the order under review is affirmed.

      . The district court did not reach the merits of the service of process/personal jurisdiction issue because it held that DCF waived its objection by seeking a transfer of venue.

      . Unlike the express language of section 111.065, which authorizes an officer requesting the payment of fees and costs to submit his application to the court having jurisdiction over his criminal action, the Florida Supreme Count in Sun-Sentinel specifically noted that a section 119.07 petition should not be filed in a pending criminal action:
      We also note that Sun-Sentinel should not have filed the petition in the pending criminal action to which neither it nor DCF was a party. The proper procedure would have been to file the petition as a separate action. It then could have requested that the "good cause” proceeding be conducted by the same judge that was presiding over the criminal action.

        Sun-Sentinel, 865 So.2d at 1286 n. 10.


text:
    Clarence BELL, a/k/a Willie C. Dean, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2095.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 28, 2006.
    Clarence Bell, a/k/a Willie Dean, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. § 775.084(l)(d)3b, Fla. Stat. (2005).


text:
    Patrick K. THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1872.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 7, 2006.
    Patrick K. Thompson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.850 as a successive motion. The State confesses that the trial court erred in relying on the successive motion bar since the prior denial of appellant’s 3.850 motion was not “on the merits.” On appeal, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A) & (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing, or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(A) & (D); see also Fla. R.Crim. P. 3.850(d).

Reversed and remanded for further proceedings.


text:
    Maitel AGUIAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1339.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Dec. 14, 2006.

      De Fabio & Fenn and Leonard P. Fenn, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002).


text:
    AMERIL CORPORATION, Appellant, v. NEW YORK REGIONAL RAIL CORPORATION f/k/a Best Sellers Group, Inc., Appellee.
    No. 3D06-242.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rones and Navarro and Victor K. Rones, North Miami Beach, for appellant.
    Stormie Stafford, Miami, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

Ameril Corporation filed a three count complaint against N.Y. Regional Rail Corporation seeking recovery on three promissory notes. N.Y. Regional answered the complaint arguing that Ameril had no right to enforce the notes due to an earlier assignment, and also that recovery on one of the notes was barred by the statute of limitations. Notwithstanding evidence submitted by Ameril putting into question both of these assertions, the trial court entered final summary judgment in N.Y. Regional’s favor. Because we conclude that questions of fact remain as to both ownership of the notes and application of the statute of limitations, we reverse the summary judgment ordered below:

The law regarding summary judgment is well-established:
[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought... A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law...
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.
Moore v. Morris, 475 So.2d 666, 668 (FIa.1985) (citations omitted). Succinctly put, “[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.” Jones v. Directors Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991) (citations omitted).

Norman S. Cohen, M.D., P.A. v. Vining, 917 So.2d 1013, 1014 (Fla. 1st DCA 2006); see also Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999)(“It is a well-settled principle of Florida jurisprudence that summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.”); University of Miami v. Bogorff, 583 So.2d 1000, 1005 (Fla. 1991)(“A summary judgment is properly rendered only upon showing a complete absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”).

Reversed and remanded.


text:
    Jose Sergio MILIAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2192.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Jose Sergio Milian, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Gethers v. State, 838 So.2d 504 (Fla.2003).


author: STONE, J.

text:
    Valorie QUAREGNA and Joseph Quaregna, Appellants, v. STRATEGIC PERFORMANCE FUND II, INC.; Healthgrades, Inc. f/k/a Specialty Care Network, Inc. d/b/a Park Place Therapeutic Center; Miami Elevator Company; and Greenfield Properties, Inc., Appellees.
    No. 4D05-4263.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Nov. 29, 2006.

      Russell S. Adler, Shawn L. Birken and Matthew S. Sackel of Rothstein Rosenfeldt Adler, Fort Lauderdale, for appellants.
    Richard A. Sherman, Sr. of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Jay H. Novak of Law Offices of James A. Keating, Hollywood, for Appel-lee-Healthgrades, Inc.
    Dennis R. Schutt and Jeffrey D. Devon-chik of Schutt, Schmidt, Burnett, & Noey, Jacksonville, for Appellee-Greenfield Properties, Inc.
   STONE, J.

Quaregna, a personal injury plaintiff, appeals a final summary judgment entered in favor of the tenant (Healthgrades) and the property manager (Greenfield) of the premises where the injury occurred. As to Greenfield, we affirm the judgment. As to Healthgrades, we reverse and remand for entry of a judgment in accordance with the arbitration order. The record reflects that following an arbitration order in favor of Quaregna, Healthgrades failed to file a motion for trial de novo, thus precluding the court from entering summary judgment in Healthgrades’ favor.

Section 44.103, Florida Statutes, provides, in pertinent part,

5) The arbitration decision shall be presented to the parties in writing. An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court.... If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision....

§ 44.103, Fla. Stat. (2005).

Rule 1.820, Florida Rules of Civil Procedure, Hearing Procedures for Non-Binding Arbitration, provides, in relevant part,

(h) Time for Filing Motion for Trial. Any party may file a motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision as provided by section 44.103(5), Florida Statutes.

Fla. R. Civ. P. 1.820(h).

When Healthgrades did not move for a trial de novo within the twenty-day period, the arbitration order became binding and the plaintiff was entitled to judgment accordingly. Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992) (citations omitted) (holding if no motion for trial de novo is made within the twenty-day period under the rule, “the trial court is required to enforce the award and lacks discretion to do otherwise”); Bacon Family Partners, L.P. v. Apollo Condo. Ass’n, 852 So.2d 882 (Fla. 2d DCA 2003) (finding same). Therefore, summary judgment in favor of Healthgrades was improper.

Healthgrades asserts that it was not required to file a motion for trial de novo because Greenfield filed a motion, and the statute and rule do not require each party to file a separate motion for new trial. However, in Department of Transportation v. BellSouth Telecommunications, Inc., 859 So.2d 1278, 1281 (Fla. 4th DCA 2003), we clarified, because the statute and rule do not provide applicable procedures for requesting a trial de novo in a multiparty case, “each party seeking a trial de novo must file an individual timely request for trial de novo." We also note that in Stowe v. Universal Property & Casualty Insurance Co., 937 So.2d 156 (Fla. 4th DCA 2006), we took a restrictive view of the twenty-day limitation, holding that a motion for trial de novo filed after an arbitration hearing, but before the rendition of the decision of the arbitrator, fails to comply with rule 1.820(h).

We have considered and reject Heal-thgrades’ several arguments that its failure to comply with the twenty-day window is waived, or that the strict application of the rule is invalid, or otherwise inapplicable. Therefore, as to Healthgrades, we reverse and remand for entry of judgment on the arbitration order.

SHAHOOD and HAZOURI, JJ., concur.


text:
    Jorge TEJEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2350.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Jorge Tejeda, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. The claims appellant raised did not render the sentence “illegal” for the purposes of a rule 3.800 petition. The claims should have been raised via 3.850 and are now time barred.


author: COPE C.J.

text:
    DIAMOND DRYWALL SYSTEMS, INC., Appellant, v. MASHAN CONTRACTORS, INC. and Villas of Vizcaya, LLC, Appellee.
    No. 3D06-350.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.

      Warren Diener, for appellant.
    Lauri Waldman Ross; Michael Schiffrin, Miami, for appellee.
    Before COPE, C.J., and WELLS and CORTIÑAS, JJ.
   COPE C.J.

The underlying issue in this appeal is whether the plaintiffs filing of a nonmeri-torious motion for default counts as record activity so as to defeat a motion to dismiss for failure to prosecute. We conclude that the answer is yes and reverse for further proceedings.

Diamond Drywall Systems Inc. (“Diamond”) was a subcontractor on a construction project where Mashan Contractors, Inc. was the general contractor and Villas of Vizcaya, LLC was the owner. Diamond filed suit against Mashan and Villas (collectively “the defendants”) to recover payment for work which it had performed. The defendants appeared in the action by filing motions to dismiss which were denied.

Diamond filed an amended complaint, but neither defendant ever filed an answer. Diamond took no further action for just over a year.

On October 11, 2005, Diamond moved ex parte for clerk’s defaults against both defendants, but the clerk refused to enter the defaults citing the prior appearance of counsel for the defendants. On October 17, 2005, the defendants, unaware of the filing of motions for default, moved to dismiss the case for lack of prosecution. Diamond filed a response to the motion to dismiss, but failed to appear at the November 8, 2005 hearing on the motion.

At the hearing, the trial court granted the motion. It is undisputed that Diamond’s counsel did not receive a copy of the dismissal order until December 15, 2005, more than thirty days after the entry thereof. This meant that the rehearing and appeal times expired before Diamond received the dismissal order.

Diamond filed two motions which were in substance motions for relief from judgment. From the denial of both motions, Diamond appeals.

As a preliminary matter, where a litigant does not receive a final order until after the appeal time has run, the litigant is entitled to have the order re-entered so as to allow the filing of a timely motion for rehearing or a notice of appeal. See Kanecke v. Lennar Homes, 543 So.2d 784, 785 (Fla. 3d DCA 1989).

Turning to the merits of the dismissal, the parties agree that the dispositive issue in this case is the meaning of Wilson v. Salamon, 923 So.2d 363 (Fla.2005). The stated purpose of Wilson is to simplify the determination of dismissals under Florida Rule of Civil Procedure 1.420(e) for failure to prosecute. In that case the court stated:

[T]he language of the rule is clear — if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed.... This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court.... There is either activity on the face of the record or there is not.

Id. at 368.

In this case the defendants filed their motion on October 17, 2005. Under Wilson, the trial court’s first inquiry is to examine the face of the record to see whether there was any record activity within the year prior to October 17, 2005. In this case, there was record activity: Diamond filed ex parte motions for default. That being so, the motion to dismiss for failure to prosecute should have been denied.

Our ruling is consistent with other decisions interpreting Wilson. Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute. See Reddy v. Farkus, 933 So.2d 595, 598 (Fla. 5th DCA 2006) (notice of cancellation of hearing precludes dismissal); Walker v. McDonough, 929 So.2d 1127, 1128 (Fla. 4th DCA 2006) (notice of change of address and notice of absence from jurisdiction preclude dismissal); Hunnewell v. Palm Beach County, 925 So.2d 468, 470 (Fla. 4th DCA 2006) (entry of order denying motion to dismiss precludes dismissal); Richards v. Sheriff of Palm Beach County, 925 So.2d 1166, 1168 (Fla. 4th DCA 2006) (filing of motion to withdraw precludes dismissal); Nie v. Beaux Gardens Assoc., Ltd., 923 So.2d 1200 (Fla. 3d DCA 2006) (filing of notices for pretrial conference and notice for case management conference preclude dismissal).

The defendants argue that Wilson did not affect the holding of National Enterprises Inc. v. Foodtech Hialeah, Inc., 777 So.2d 1191 (Fla. 3d DCA 2001), that certain types of filings can be considered invalid and therefore nullities for purposes of determining whether record activity has occurred. Respectfully, we cannot agree. The Wilson decision clearly states its intention to overturn prior precedent under which a trial court was “to look behind the face of the record to subjectively determine whether the activity reflected of record is merely passive and therefore insufficient to preclude dismissal under the rule....” Wilson, 923 So.2d at 369. The Wilson opinion explained that the subjective analysis of the content of litigants’ pleadings has led to inconsistent results and “has simply proven unworkable.... ” Id. at 368.

It is clear that this court’s decision in National Enterprises does not survive Wilson. Indeed, National Enterprises relied on Barnett Bank v. Fleming, 508 So.2d 718 (Fla.1987), see National Enterprises, 777 So.2d at 119A-95, and in Wilson the Florida Supreme Court singled out Barnett Bank v. Fleming as one of the cases it wished to overturn. Wilson, 923 So.2d at 366. As National Enterprises does not survive Wilson, the trial court erred in entering the dismissal order.

For the stated reasons, we reverse the orders now before us and remand with directions to reinstate the action.

      . The procedural history regarding the motions for relief from judgment is somewhat complicated and need not be recited here.

      . Wilson was decided shortly before the proceedings below.


author: COPE, C.J.

text:
    REAL ESTATE WORLD FLORIDA COMMERCIAL, INC., Appellant, v. Louis GURKIN and Patricia Gurkin, Appellees.
    No. 3D05-2593.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Law Offices of Steven Friedman and Steven Friedman, Pembroke Pines, for appellant.

      Stuart L. Koenigsberg, for appellees.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   COPE, C.J.

This is an appeal from a summary judgment in a real estate commission case. The trial court ruled that the alleged oral commission agreement was too vague and indefinite to be enforced. We respectfully disagree with that legal conclusion and remand for further proceedings.

There is a sharp disagreement between the parties about all of the facts of this case. Because this is an appeal from a summary judgment, we accept for present purposes the version of the facts most favorable to the nonmoving party, plaintiff-appellant Real Estate World Florida Commercial, Inc. (“broker”).

The plaintiff is a real estate brokerage firm. The plaintiff asserts that one of the firm’s agents, Mr. Chemaissem, entered into an oral brokerage agreement with defendants-appellees, Louis and Patricia Gurkin, for the sale of two commercial properties owned by the Gurkins.

According to Mr. Chemaissem, he followed up his conversation with the Gurkins with a letter stating what he believed had been agreed to. The letter stated in part:

Dear Mr. and Mrs. Gurkin:
It was a pleasure speaking with you on November 27, 2001. As per our conversation, it is my understanding that in the event Real Estate World Florida Commercial, Inc. (R.E.W.F.C.I.) obtains a purchaser for your property at the terms stated below, you will pay R.E.W.F.C.I. a professional fee of six percent (6%) of the sales price stated below or at any other price or terms upon which you agree.
Price: $4,000,000
Property: 7430 SW 59th Court (29 Apartment Building) 7500 SW 59th Avenue (18 Apartment Building)
Terms: All cash or Buyer to obtain new financing
IT IS UNDERSTOOD AND AGREED THAT YOU ARE FREE TO SELL YOUR PROPERTY YOURSELF OR THROUGH ANY OTHER BROKER WITHOUT ANY OBLIGATION TO R.E.W.F.C.I.
This agreement shall expire in twelve (12) months. R.E.W.F.C.I. is working in a non-representative capacity.

(Emphasis added; some emphasis deleted).

For present purposes we assume that the letter correctly stated the parties’ understanding. As stated, the alleged agreement called for a six percent commission if the broker produced a buyer ready, willing, and able to purchase the identified properties for $4 million all cash or with new financing. Alternatively, if the Gur-kins reached an agreement to sell the properties to the buyer at a different price, then the commission agreement would be six percent of the different price.

The trial court entered summary judgment for the owners finding the agreement unenforceable because the language “or at any other price or terms upon you which agree” was too vague and indefinite. The trial court reasoned that since the sale price was subject to negotiation between the Gurkins and any buyer, the commission amount would vary according to the sale price and would be too indefinite an amount to enforce. We disagree.

If the parties provide a practicable method for determining compensation there is no indefiniteness or uncertainty that will prevent the agreement from being an enforceable contract. See May v. Sessums & Mason, P.A., 700 So.2d 22, 27 (Fla. 2d DCA 1997) (quoting 1 Corbin on Contracts, § 4.3, at 567 (Joseph M. Perillo, Rev. ed.1993)). The agreement here provided a “fee of six percent (6%) of the sales price stated below or at any other price or terms upon which you agree.” The agreement was sufficiently definite to be enforced. See also Fisch v. Radoff, 353 So.2d 160, 162 (Fla. 3d DCA 1977) (“The fact that the details of the sale might be difficult or even impossible to work out between the seller and ultimate buyer does not, as a matter of law, necessarily preclude the viability of a contract which merely grants a broker the right to a commission if and when he is able to produce a purchaser.... ”).

Here, the broker’s affidavits assert that it entered into the oral commission agreement described above, and procured a purchaser ready, willing and able to buy the properties at the listing price and terms. According to the broker, the transaction was not completed, not for any fault of the broker or purchaser but solely because the owners refused to complete the transaction. If such should be established at trial, the broker would be entitled to his commission. See Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384, 385-86 (1945).

The owners maintain that they never agreed to sell the properties and pay the broker a commission. That is a factual issue that must be resolved by a jury. See Burton v. Merritts Props., Ltd., 484 So.2d 1328, 1330 (Fla. 3d DCA 1986).

Accordingly, we reverse the summary final judgment and remand for further proceedings.

       Florida law recognizes oral brokerage agreements. See St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla.2004).


text:
    Eddie WOODS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-167.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Eddie Woods, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed without prejudice to filing a properly sworn Florida Rule of Criminal Procedure 3.850 motion.


text:
    C.L., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-1652.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.

      Kenneth M. Kaplan, for appellant.
    Karla Perkins, Miami; Hillary S. Kamb-our, for appellee.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   PER CURIAM.

C.L. appeals a final judgment terminating her parental rights. We affirm.

Contrary to the arguments advanced by the appellant/mother, we find that the order terminating her parental rights to her minor child pursuant to sections 89.811(6)(d), .812, Florida Statutes (2004), was supported by competent and substantial evidence in the record before us. See F.A.F. v. Dep’t of Children & Family Sews., 804 So.2d 616 (Fla. 3d DCA 2002). We therefore affirm the order under review.

Affirmed.


text:
    ALL REFINISH SERVICES, LLC, Donal Gainza, Eddar Gainza, Hector Josue Navarro, Jose A. Morales, Jose Javier Morales, and Rafael Tovar, Appellants, v. SONSHINE COUNTERTOP AND TUB REPAIR, LLC, Appellee.
    No. 3D06-1728.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 2006.
    Dorta Ortega and Omar Ortega; Lillia-na Real, Coral Gables, for appellants.
    Paul K. Silverberg and Kraig S. Weiss, for appellee.
    Before COPE, C.J., and FLETCHER and SUAREZ, JJ.
   PER CURIAM.

We affirm the order denying the appellants’ motion to dissolve a temporary injunction entered in order to enforce a covenant not to compete. We conclude that the trial court’s ruling is supported by the terms of the contract and the record made at the evidentiary hearing.

We do not reach the appellants’ claim that the five-year period is unduly lengthy for the covenant not to compete. The appellee states, and the record supports, that this claim was not squarely presented or adjudicated at the hearing below. Accordingly our affirmance of the order now under review is without prejudice to the appellants to present their challenge to the length of the noncompetition agreement in further proceedings in the trial court.

Affirmed.


author: CORTIÑAS, Judge.

text:
    MIAMI RESCUE MISSION, INC., Appellant, v. Fair Ellen ROBERTS, Appellee.
    No. 3D06-1037.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Tew Cardenas and Jeffrey Tew, Miami, for appellant.
    H.C. Palmer, III; George W. Chesrow, Coral Gables, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

On January 19, 2005, Ethel Manucy (“Mrs. Manucy”) executed a will (“2005 will”) while hospitalized with severe pain and under the influence of very strong medication. The following day she passed away. The effect of Mrs. Manucy’s 2005 will was to disinherit her longtime caregiver and friend, Fair Ellen Roberts (“Roberts”), and, instead, leave her residuary estate to four charities, in equal shares. Appellant, Miami Rescue Mission, Inc., was one of the charities.

When Mrs. Manucy’s attorney offered her 2005 will for probate, Roberts petitioned the circuit court for revocation of Mrs. Manucy’s 2005 will from probate and for administration of Mrs. Manucy’s previously executed 2003 will (“2003 will”). Roberts argued that Mrs. Manucy was suffering from an insane delusion at the time she executed her 2005 will, and, therefore, lacked the requisite testamenta--ry capacity. Specifically, Mrs. Manucy’s delusion involved Roberts’ continued care of Mrs. Manucy, her dog, and her finances. Mrs. Manucy believed that Roberts had abandoned her, “let her dog die,” and was stealing from her. The trial court found Roberts’ position supported by clear and convincing evidence and granted Roberts’ petitions. This appeal followed.

In a probate case, we review the trial court’s conclusions to determine whether they are supported by substantial and competent evidence and, also, whether the trial court misinterpreted the legal effect of the evidence. Raimi v. Furlong, 702 So.2d 1273, 1286 (Fla. 3d DCA 1997) (citation omitted). Here, we find that the trial court’s findings of fact were supported by competent and substantial evidence and that the trial court correctly interpreted the legal effect of the evidence.

In its twenty-two page order, the trial court carefully explained the evidence upon which it relied in reaching its conclusions. Specifically, the trial court’s order highlighted the testimony of Drs. Ubeda, Delgadillo, Currier, and Haber, and detailed how the medication given to Mrs. Manucy affected her in the days leading up to her passing. Additionally, the trial court explained how Mrs. Manucy’s mental condition deteriorated from January 16, 2005 until her death on January 20, 2005. The trial court found that Nurse Fortin’s testimony was consistent with that of the doctors who testified. Similarly, the trial court found Roberts’ testimony that she and her daughter continued to visit Mrs. Manucy daily and continued to care for Mrs. Manucy’s dog and finances to be credible.

The trial court noted that the chronology established by Dr. Ubeda’s testimony was consistent with Roberts’ testimony. Specifically, Dr. Ubeda testified that Mrs. Manucy’s personality completely changed on January 16, 2005. Roberts testified that beginning on January 16, 2005, Mrs. Manucy failed to recognize her and, instead, referred to her by her daughter’s name. The trial court noted that the nurses’ notes in Mrs. Manucy’s medical chart indicate that Mrs. Manucy first began to voice her concerns about Roberts on January 16, 2005.

In fact, Dr. Ubeda was so concerned about the changes in Mrs. Manucy’s personality on January 16, 2005 that he sought a psychiatric consultation from Dr. Delgadillo. Dr. Delgadillo met with Mrs. Manucy on January 18, 2005, and she told him that she was feeling sad and depressed because she thought her caretaker had abandoned her and was failing to care for her dog. When Dr. Delgadillo learned from Dr. Ubeda that this was not the case, he concluded that Mrs. Manucy was either hallucinating or delusional.

Because these findings of fact are amply supported by the record and because the trial court is in a superior position to gauge witness credibility, we affirm the trial court’s findings of fact.

We also find that the trial court correctly interpreted the legal effect of the evidence presented to it. Appellant cites to evidence in the record that Mrs. Manucy was found to be alert by the nurses treating her throughout her hospitalization. Dr. Ubeda, however, testified that he disagreed with the nurses’ classification, and Dr. Currier explained that certain forms of delirium are often mistaken as cooperativeness in a patient. Further, a nurse’s observation that a patient is alert does not equate to a legal finding that the patient possesses testamentary capacity.

“Where there is an insane delusion in regard to one who is the object of the testator’s bounty, which causes him to make a will he would not have made but for that delusion, the will cannot be sustained.” Newman v. Smith, 77 Fla. 633, 667 and 688, 82 So. 236, 236 (1919). Further, “an insane delusion has been defined as a spontaneous conception and acceptance as a fact of that which has no real existence except in imagination. The conception must be persistently adhered to against all evidence and reason.” Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 856 (1933).

Appellant contends that Mrs. Manucy had a factual basis for believing Roberts had abandoned her. Upon Mrs. Manucy’s request, Nurse Fortin called Mrs. Manu-cy’s house and could not reach Roberts. Nurse Fortin reported this to Mrs. Manu-cy and Mrs. Manucy decided to call her lawyer to change her will. If this were all the evidence regarding Roberts’ involvement with Mrs. Manucy, it may have been reasonable for Mrs. Manucy to rely on it when changing her will. However, it was undisputed that Roberts visited Mrs. Ma-nucy each and every day and that each visit began with Roberts reassuring Mrs. Manucy that her dog was doing fine. This reality, when contrasted with Mrs. Manucy’s continued belief that Roberts was not visiting her and not caring for her dog, coupled with her misidentification of Roberts, was sufficiently unreasonable to permit the trial court to determine Mrs. Manucy was suffering from an insane delusion.

We find that the trial court correctly determined that Mrs. Manucy was suffering from an insane delusion regarding Roberts and that she executed her 2005 will based on this delusion. Accordingly, we affirm the trial court’s order revoking the 2005 will from probate and submitting the 2003 will for probate administration.

Affirmed.

      . The Humane Society of Greater Miami and the American Cancer Society — Florida Division, Inc. were two of the other charities named as residuary beneficiaries. They joined this appeal and adopted the arguments of Miami Rescue Mission, as presented in Miami Rescue Mission's initial brief. Their joinder is proper under Rule 9.360 of the Florida Rules of Civil Procedure, as they filed timely Notices of Joinder in the Appeal, and have indicated that they adopt Miami Rescue Mission's brief.


text:
    Andrew MARSHALL, Appellant, v. AMERISYS, INC., Appellee.
    No. 3D06-1112.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Andrew Marshall, in proper person.
    Cole, Scott & Kissane and Scott A. Cole, Miami, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The plaintiff, Andrew Marshall (“Mr. Marshall”), appeals a final order dismissing with prejudice Counts I-VI of his first amended complaint against the defendant, Amerisys, Inc. (“Amerisys”), based upon the trial court’s conclusion that Amerisys is immune from liability pursuant to Florida’s Workers’ Compensation Law, found in section 440.11, Florida Statutes (2004). Because we find that the allegations in Mr. Marshall’s first amended complaint do not truly rise to the level of a separate and independent intentional tort, we affirm.

A ruling on a motion to dismiss for failure to state a cause of action involves an issue of law reviewable on appeal by the de novo standard of review. Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). In determining the merits of a motion to dismiss, the court is confined to the four corners of the complaint, including the attachments thereto, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. Id.; Coriat v. Global Assurance Group, Inc., 862 So.2d 743, 743 (Fla. 3d DCA 2003).

Considering the allegations in the first amended complaint, including the attachments thereto, in the light most favorable to Mr. Marshall and accepting them as true, the claims against Amerisys are based upon the following pertinent facts.

On March 20, 2002, Mr. Marshall, while under the employ of the City of Miami (“City”), was involved in a motor vehicle accident. As a result of the accident, Mr. Marshall suffered substantial multiple injuries and became significantly disabled. Shortly after the accident, Mr. Marshall began receiving workers’ compensation benefits through the City’s Risk Management Department, which handled the City’s workers’ compensation claims at the time. Sometime in late October 2003, Am-erisys became the managed care systems administrator for the City’s ongoing workers’ compensation claims and Gallagher Basset Services, Inc. (“Gallagher Bassett”) became the claims administrator for the City’s new claims. On October 31, 2003, Amerisys thus took over the handling of Mr. Marshall’s workers’ compensation claims and assigned Chandra Wilson (“Ms. Wilson”), as the nurse case manager for his claims.

In early November 2003, Mr. Marshall, frustrated with the handling of his claims, told Ms. Wilson that he had had many problems obtaining benefits and requested information regarding Amerisys’ grievance procedures. Ms. Wilson responded by requesting all of Mr. Marshall’s previous grievances and told him that she would review them and assist him accordingly. Mr. Marshall also informed Ms. Wilson that “he needed to talk out his anger resulting from [the] fraudulent administration of his workers’ compensation claim as he was concerned that he might become destructive if his anger got out of hand.” Ms. Wilson asked Mr. Marshall what he meant by “destructive,” to which he responded, “I know how to make bombs and silencers, how’s that for destructive[?]”

In an attempt to get help in the handling of Mr. Marshall’s claims, Ms. Wilson, via email, first contacted Angela Breadwood (“Ms. Breadwood”), a supervisor at the City’s Risk Management Department, and, in pertinent part, stated that Mr. Marshall was “pissed and is making bombs and silencers.” Ms. Breadwood forwarded this e-mail to Mimi Turin, an assistant city attorney for the City, who subsequently forwarded the e-mail to a detective at the Miami Police Department, and a formal police investigation into the matter commenced. Ms. Wilson also sent an e-mail to a claims adjuster at Gallagher Bassett requesting help with Mr. Marshall’s claims and stated in the e-mail that Mr. Marshall had informed her that he was home “building bombs.”

Mr. Marshall filed his first amended complaint against Amerisys, under the theory of respondeat superior for Ms. Wilson’s alleged misconduct, and asserted that Amerisys (1) committed a negligence per se violation of section 817.49, Florida Statutes, by falsely accusing him of a crime; (2) committed defamation by falsely accusing him of a crime; (8) committed libel per se by writing e-mails falsely accusing him of a crime; (4) committed fraud under section 440.105(4)(b)(l), Florida Statutes, by lying to him about not having formal grievance procedures; (5) committed a negligence per se violation of section 440.134(15), Florida Statutes, by failing to have a grievance procedure to address workers’ compensation claims; and (6) committed intentional infliction of emotional distress by falsely accusing him of a crime.

Amerisys moved to dismiss the first amended complaint for failure to state a cause of action, claiming statutory immunity under chapter 440, Florida Statutes, as Florida’s Workers’ Compensation Law provides the exclusive remedy for claims or grievances arising out of a workers’ compensation claim and claiming that the complaint further fails to state a cause of action under the theories of a negligence per se violation of section 817.49, Florida Statutes, defamation, and libel, as the statements forming the basis of these counts are substantially true. The trial court agreed with Amerisys and dismissed with prejudice all six counts of Mr. Marshall’s first amended complaint.

Looking, as we must, solely to the allegations of the first amended complaint and the attachments thereto, accepting them as true, and considering them in the light most favorable to Mr. Marshall, we affirm the dismissal of all counts as Mr. Marshall’s allegations do not truly rise to the level of a separate and independent intentional tort. As Mr. Marshall correctly asserts on appeal, the Florida Supreme Court in Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005), held that Florida’s Workers’ Compensation Law does not provide statutory immunity from an employee’s valid intentional tort claims. Aguilera, 905 So.2d at 91-93. However, the Aguilera Court emphasized that in reaching this conclusion, it did not “discredit the long established rule that the conduct alleged by an employee must rise to the level tantamount to intentional tortious conduct to preclude an insurance carrier from prevailing with statutory immunity. An employee’s complaint must, indeed, allege conduct that is or is tantamount to an independent tort.” Id. at 95. Furthermore, “[m]inor delays in payments, and conduct amounting to simple bad faith in claim handling procedures of the employee’s compensation claim” are captured within the statutory immunity. Id. at 91. Florida’s “workers’ compensation legislation does immunize an insurance carrier for mere negligent conduct, simple bad faith, and minor delays in payment.” Id. at 93 (emphasis added).

Thus, in analyzing Mr. Marshall’s allegations, we must determine whether such allegations amount to mere negligent conduct, a mere delay in payments, simple bad faith, or if they truly rise to the level of a separate and independent intentional tort. We conclude that Ms. Wilson’s alleged misconduct does not rise to the level of a separate and independent intentional tort. At best, Ms. Wilson’s alleged conduct amounts to simple negligence. Ms. Wilson’s statements about Mr. Marshall “making bombs and silencers,” read in context, do not demonstrate tortious intent or bad faith, but instead demonstrate concern regarding Mr. Marshall’s statements to her and a request or inquiry from her superiors on how to best handle Mr. Marshall and his grievances. In any event, Ms. Wilson’s statements, although not quoting verbatim what Mr. Marshall admits he said, are substantially true. See Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 706 (Fla. 3d DCA 1999)(“Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the ‘gist’ or the ‘sting’ of the statement is true.”). Similarly, as to Ms. Wilson’s statements, or lack thereof, to Mr. Marshall about Amerisys’ grievance procedures, we conclude that Mr. Marshall’s allegations again fail to rise to the level of an independent intentional tort.

As to Mr. Marshall’s claim against Amerisys for intentional infliction of emotional distress, we conclude that Mr. Marshall has also failed to state a cause of action sufficient to amount to an independent intentional tort. Looking at the factual allegations in the light most favorable to Mr. Marshall, we conclude that Ms. Wilson’s conduct “is not the type of conduct that is so outrageous in character and extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a civilized society.” Valdes v. GAB Robins N. Am., Inc., 924 So.2d 862, 866 (Fla. 3d DCA 2006); see also Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985)(specifying that liability for intentional infliction of emotional distress “has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”). Accordingly, we agree that Mr. Marshall’s first amended complaint was properly dismissed with prejudice.

Affirmed.

      . The attachments to the first amended complaint establish that the Miami Police Department did not find sufficient evidence to file criminal charges against Mr. Marshall for the statements he made to Ms. Wilson concerning "making bombs and silencers.”

      . Mr. Marshall alleges that because Amerisys is a “managed care arranger,” it cannot avail itself of the statutory immunity available under section 440.11, Florida Statutes, as this statutory immunity only applies to employers, employees, and insurance carriers. Without reaching any conclusion as to whether or not Amerisys is in fact a "managed care arranger” or an "insurance carrier/' Mr. Marshall throughout his first amended complaint complains about Amerisys not authorizing certain payments for his workers' compensation claims and rejecting others. Thus, it seems disingenuous to us that he even attempts to use this argument. When it is convenient for Mr. Marshall, Amerisys is the insurer responsible for making payments that it "wrongfully” rejected or denied, yet, he argues that Amerisys is not an insurance carrier for purposes of the statutory workers’ compensation immunity.


text:
    John Ceasar HAZELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-792.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Rehearing Denied Dec. 22, 2006.

      Harold Long, Jr., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The trial court denied John Ceasar Ha-zelton’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800. After a careful review of the record, we affirm the trial court’s thorough and well-written order and adopt it as our own opinion. The trial court’s order reads as follows:

ORDER DENYING MOTION FOR POST CONVICTION RELIEF

THIS CAUSE having come before this Court on the defendant’s, John Ceasar Hazelton’s, Motion and Supplemental Motion for Post Conviction Relief, pursuant to Rule 3.800(a), Fla. R.Crim. P., and this Court having reviewed the motion, the supplement, the State’s response thereto, the court files and records in this case, having heard argument of counsel, and being otherwise fully advised in the premises this Court hereby:

FINDS AND ORDERS as follows:

Defendant’s Motion for Post Conviction Relief, appropriately filed pursuant to Rule 3.800(a), Fla. R.Crim. P., is DENIED.

On July 20, 1994, Defendant entered into a plea on four cases, including the following three cases that are the subject of the instant motion. In Case No.: F93-18108D Defendant was charged with 1st degree attempted premeditated felony murder and armed robbery with a firearm. In Case No.: F93-18139B, Defendant was charged with armed burglary; 3 counts of armed robbery with a weapon; and 1st degree attempted felony murder. In Case No.: F93-18141B, Defendant was charged with armed burglary; 3 counts of kidnapping with a weapon; 3 counts of armed robbery with a weapon; and 4 counts of sexual battery with a weapon or serious injury.

In accordance with the plea, the Defendant was sentenced to forty years in state prison on all of the sexual battery charges, all of the attempted murder charges and one of the armed burglary charges. The Defendant was sentenced to a consecutive thirty years in state prison on the rest of the charges. The other charges and their respective sentences are not relevant.

Defendant’s first claim is that his sentences to the two charges of attempted felony murder should be vacated because subsequent to him accepting a plea for attempted felony murder, the Florida Supreme Court held that there is no such crime. State v. Gray, 654 So.2d 552 (Fla.1995). Defendant claims that since there is no such crime his sentence is illegal. However, at the time of the decision, the Defendant’s cases were final. There were no pending motions or appeals. As a result, Defendant cannot avail himself of this decision.

Defendant’s second claim is that the holding in Gray should be applied retroactively. However, the Supreme Court’s decision clearly state that it must apply to all cases pending on direct review or not yet final. The Defendant’s cases were final. The fact that the Gray decision was not to apply retroactively to cases that were no longer pending was later confirmed by the Supreme Court in another decision. State v. Woodley, 695 So.2d 297 (Fla.1997).

Moreover, in case F93-18108D, the Defendant was charged and plead guilty to attempted 1st degree murder which alleged alternative claims of attempted felony murder as attempted premeditated felony murder. Therefore, even if the Defendant were entitled to retroactive application of Gray the sentence is still not illegal because it supports the charge of 1st degree murder and attempted premeditated felony murder. Miller v. State, 678 So.2d 465 (Fla. 3d DCA 1996).

Defendant also asserts that in not applying the Gray decision retroactively, his Due Process Rights have been violated, in accordance with the U.S. Supreme Court’s decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001). The Florida Supreme Court again addresses the issue of retroactively, specifically as affected by the decision in Fiore and determined “... that retroactivity will be adjudged solely through operation of the Witt standard with an overlay of the Fiore due process considerations.” State v. Barnum, 921 So.2d 513 (Fla.2005). However, even when using the retroactivity standard set out in Witt v. Florida, 387 So.2d 922 (Fla.1980), the egregiousness of the Defendant’s actions; the additional charges that he plead guilty to, including attempted 1st degree murder, attempted premeditated felony murder, 4 counts of sexual battery with a weapon or serious injury, armed robbery with a firearm, armed burglary and 3 counts of armed robbery with a weapon, does not warrant vacating the sentence of two charges of attempted felony murder.

Defendant’s third claim is that justice requires that he receive the same relief granted to Dominic Jackson, his co-defendant in cases F93-18139 and F93-18141. Mr. Jackson’s case was on appeal when the Gray decision was entered and as a result his conviction for attempted felony murder was vacated in case F93-18139. However, the co-defendant’s case was not final and therefore, properly vacated, pursuant to Gray. The Defendant was not similarly situated.

Defendant’s fourth claim is that the sentences are constitutionally disproportionate in relation to his co-defendants. However, Defendant’s involvement was more egregious in each case than any of his co-defendants. Defendant was the one who physically raped and in other ways sexually assaulted the victim in case F93-18141. Defendant was the one who shot the victim in the back in case F93-18108. Defendant plead to more counts in Case F93-18139. Defendant’s sentence is not disproportionate.

ORDERED AND ADJUDGED that the Defendant’s Motion for Post Conviction Relief is DENIED.

The defendant, John Ceasar Hazelton, is hereby notified that he has the right to appeal this order to the District Court of Appeal of Florida, Third District within thirty (30) days of the signing and filing on this order.

In the event that the defendant takes an appeal of this order, the Clerk of this Court is hereby ordered to transport, as part of this order, to the appellate court the following:

1. Defendant’s Motion and Pleading titled “Supplemental Sentencing Issues.”
2. The State’s response(s).
3. This order.

Affirmed.


text:
    Johnny BRADY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2555.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Johnny Brady, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: GREEN, J.

text:
    Fausto MARQUEZ, etc., Appellants, v. PANAMERICAN BANK, Appellee.
    Nos. 3D05-2756, 3D05-2667.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Duane Morris LLP, and Lida Rodriguez-Taseff, and Scott R. Jablonski, Miami, for appellants.
    Greenberg Traurig, P.A., and Stephen A. Mendelsohn, and Geoffrey M. Cahen, Boca Raton, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   GREEN, J.

The Marquez Group appeals from the dismissal with prejudice of two counts that it had brought against PanAmerican Bank, one for a creditor action pursuant to section 655.417, Florida Statute (1997), and the other for Tortious Interference with an Advantageous Business Relationship. We affirm.

According to the well-pled allegations, which we accept as true, in 2001, Gulf Bank, a struggling banking institution, entered into an agreed cease and desist order that obligated the bank to submit to oversight by the Florida Division of Banking and to raise its capital reserves. The bank eventually determined that the only way that it could abide by the order was to sell substantially all of its assets.

In December 2002, Gulf Bank solicited offers of purchase. The Marquez Group submitted an offer, as did PanAmeriean Bank. Negotiations between Gulf Bank and PanAmeriean Bank terminated in May 2003. In June 2003, Gulf Bank advised the Florida Division of Banking that, pending regulatory approval and proper financing, it had reached an agreement for sale with the Marquez Group. That summer, without notice to the Marquez Group, Gulf Bank invited PanAmeriean Bank to submit a new offer to purchase Gulf Bank’s assets. The new offer submitted by PanAmeriean Bank was accepted, and in February 2004, PanAmeriean Bank closed on its acquisition of Gulf Bank.

In its second amended complaint the Marquez Group attempted to hold Pa-nAmerican Bank liable, pursuant to section 655.417(3), Florida Statutes, for Gulf Bank’s alleged breach of contract. Under this statute, a financial institution that purchases a bank is responsible for the existing liabilities of the bank it purchased. The trial court dismissed this count with prejudice finding that the Marquez Group failed to state a cause of action. We agree.

Section 655.417(3) applies to creditors who had existing claims against the purchased bank prior to the bank being sold. The alleged breach in this case was the sale of the bank and thus by its very nature could not have existed prior to Pa-nAmerican Bank’s purchase of Gulf Bank. Accordingly, section 655.417(3) does not apply, and we therefore affirm the dismissal of this count.

In its third amended complaint, the Marquez Group alleged that PanAmer-ican Bank tortiously interfered with its business relationship with Gulf Bank. Under Florida law, to state a cause of action for tortious interference with a business relationship, the aggrieved party must show four things: 1) the existence of a business relationship with another, 2) the defendant’s knowledge of that relationship, 3) an intentional and unjustified interference with the relationship by the defendant, and 4) that the aggrieved party was damaged as a result of the defendant’s interference. Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985). Assuming, as we must, that all of the facts averred by the Marquez Group are true, we find only elements one, two, and four to be present in this case. We cannot find PanAmeriean Bank’s action of submitting an offer to Gulf Bank pursuant to Gulf Bank’s invitation to be an actionable or unjustified interference as a matter of law. The Marquez Group has cited no authority for such a proposition and we have located none. Accordingly, we affirm the trial court’s dismissal, with prejudice, of that claim. See e.g., Jay v. Mobley, 783 So.2d 297 (Fla. 4th DCA 2001) (competing offer to buy property and subsequent purchase of said property found (on motion to dismiss) not to be an actionable interference). See also Camel Invests., Inc. v. Webber, 468 So.2d 340 (Fla. 1st DCA 1985) (finding it proper to dismiss claim for tortious interference with business relationship where intent element of the action is not fulfilled).

Affirmed.

      . This statute provides that where a bank acquires substantially all of the assets of a selling bank that:
      The resulting financial entity in a merger, consolidation, conversion, or acquisition is liable for all obligations of the participating or converting financial entity which existed prior to such action; and the action does not prejudice the right of a creditor of the participating or converting financial entity to have his or her debts paid out of the assets thereof, nor may such creditor be deprived of, or prejudiced in, any action against the officers, directors, members, or other persons participating or converting financial entity for any neglect or misconduct.
      § 655.417(3), Fla. Stat. (1997).


text:
    Michael OZ, Appellant, v. Carolina WARTER, etc., et al., Appellees.
    No. 3D05-2578.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Scott Alan Orth, for appellant.
    Greenberg Traurig, P.A., and Alaine Greenberg and Jerold I. Budney, Fort Lauderdale for appellee Carolina Waiter.
    Before RAMIREZ and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979); C & M Ventures, Inc. v. Wolf, 587 So.2d 512 (Fla. 3d DCA 1991), review denied, 599 So.2d 661 (Fla.1992); Post Tensioned Eng’g Corp. v. Fairways Plaza Assocs., 412 So.2d 871 (Fla. 3d DCA 1982), review denied, 419 So.2d 1197 (Fla.1982).


text:
    Mohd WAHIDUZZMAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D06-395.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Mohd Wahiduzzman, in proper person, for appellant.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104 (Fla. 3d DCA 1984) (referee’s findings are affirmed on appeal if supported by competent substantial evidence); Hillsborough Co. Dep’t of Emergency Med. Servs. v. Unemployment App. Comm’n, 433 So.2d 24 (Fla. 2d DCA 1983) (employee’s continued absenteeism was misconduct per se and disqualified him from receiving unemployment benefits).


text:
    Johnny HARGREAVES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-830.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Robinson v. State, 761 So.2d 269 (Fla.1999); Lopez v. State, 536 So.2d 226, 229 (Fla.1988).