author: KAHN, J.

text:
    Paul R. WILLIAMS and James F. Williams, Jr., on Behalf of Brown & Stanford Company, Inc., a Florida Corporation d/b/a J.C. Stanford & Company, Inc., Appellants, v. John C. STANFORD, Jr., an Individual; Victoria B. Stanford, an Individual; Brown & Stanford Company, Inc., a Florida Corporation d/b/a J.C. Stanford & Company, Inc.; J.C. Stanford & Son, Inc., a Florida Corporation; and Henderson Keasler Law Firm, P.A., a Florida Professional Corporation, Appellees.
    Nos. 1D06-3701, 1D06-4808.
    District Court of Appeal of Florida, First District.
    March 25, 2008.

      J. Michael Lindell and Roger K. Gan-nam of Lindell, Farson & Pincket, P.A., and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellants.
    Alan D. Henderson of Henderson & Maxwell, Jacksonville for Appellees John C. Stanford, Jr., Victoria B. Stanford, J.C. Stanford & Son, Inc., and Henderson Keasler Law Firm, P.A.
    William G. Cooper, Jacksonville for Ap-pellee Brown & Stanford, Inc.
    Bryan S. Gowdy of Mills & Creed, P.A., Jacksonville, for Appellees.
   KAHN, J.

This case calls upon us to navigate the relatively uncharted terrain of a recently revised portion of Florida’s statutory corporations law. We decide here whether minority shareholders who object to a total transfer of corporate assets, and who allege that the majority shareholder has engaged in a ■ course of conduct involving improper self-dealing and malfeasance over time, are limited to the statutory remedy of offering up their shares for a fair price. We conclude that Florida law does not so constrain minority shareholders’ rights in the limited cases where such shareholders raise facially sufficient and serious allegations of unfairness. In such cases, minority, shareholders may seek remedies beyond appraisal. Accordingly, we partially reverse the summary judgments entered in appellees’ favor and remand for further proceedings; we affirm without comment the grant of summary judgment as to appellants’ claim for trade name infringement. Quite obviously, we express no view on whether appellants will ultimately be entitled to the remedies they seek.

BACKGROUND

These two consolidated appeals reflect a soured business relationship between appellants Paul and James Williams (“the Williams brothers”) and appellee John C. Stanford. The Williams brothers together held a thirty percent stake in Brown and Stanford, Inc. (“B & S”), at one time a successful construction company in Jacksonville; Mr. Stanford held the remaining seventy percent of the close corporation’s shares. The Williams brothers worked as carpenters for B & S from 1997 until 2002.

At some point, the Williams brothers began to harbor suspicions about Mr. Stanford’s management of B & S finances. When, despite increasing revenues, the once-profitable company recorded a net loss for calendar year 2001, the Williams brothers asked Mr. Stanford to permit them to examine B & S’s financial records. Mr. Stanford initially made limited records available, but two days later, on May 6, 2002, he summarily fired the brothers.

Subsequent investigation — much of it in the form of discovery — procured evidence that Mr. Stanford and his wife had charged numerous personal expenses to the company’s credit card (including charges totaling approximately $48,000 to a popular home-shopping network), and had used B & S funds to build a 3,200-square-foot home for themselves and to improve property belonging to Mr. Stanford’s father. The Williams brothers allege that, in all, the Stanfords , misappropriated at least $250,000 in corporate funds and credit and, either intentionally or not, concealed those expenditures by hiding them in existing customers’ accounts over a period of years.

On July 31, 2002, the Williams brothers demanded that Mr. and Mrs. Stanford, as B & S’s directors, initiate a suit to recover the corporate funds they used for personal benefit. Not surprisingly, the Stanfords balked at such a suit. On October 23, 2002, the Williams brothers filed a shareholder-derivative action on behalf of B & S, naming the Stanfords as defendants. As this controversy matured, the Williams brothers added numerous claims and amended their complaint several times. The complaint ultimately included two counts — a claim that the Stanfords breached their fiduciary duty by paying personal expenses with company monies, and a claim that they breached their common law duty of loyalty — which are not on appeal.

In July 2003, the Stanfords retained ap-pellee Henderson Keasler, a Florida law firm, to represent themselves individually and to represent B & S in defense of the derivative action. Sometime afterward, Mr. Stanford apparently expressed his desire to stop working for B & S, in counsel’s words, as “an indentured servant to [the Williams brothers,] who had accused him of stealing and pilfering his own company.” On the advice of his attorneys, he resigned as B & S’s qualifying agent in October 2003, but continued to collect B & S paychecks. Mr. Stanford’s resignation as B & S’s qualifying agent prevented B & S from conducting continued business as a construction company. Consequently, on October 31, 2003, B & S shut down its operations.

Henderson Keasler and the Stanfords, with the consult of B & S’s accountant, evaluated several strategic options to effectuate Mr. Stanford’s goals, including filing for bankruptcy and dissolving B & S. The Stanfords and their counsel determined, based on a 2002 appraisal that considered the company’s financial situation at the time, but did not account for corporate funds used for the Stanfords’ benefit, that B & S’s assets were roughly equal to its liabilities. They then decided upon a transaction by which the Stanfords would form a new company, appellee J.C. Stanford & Son, Inc., and transfer B & S’s assets to Stanford & Son in exchange for the latter’s assumption of B & S’s liabilities. The asset transfer, which appellees have loosely characterized as a merger, began on November 1, 2003; the Williams brothers happened upon the news of the asset transfer during a November 24, 2003, deposition of Mr. Stanford, at which time the transaction was well under way. Mr. Stanford, through counsel, notified appellants by letter dated December 4, 2003, that the company would purchase each brother’s B & S stock for $25,000, and that appellants had a statutory right to have their shares appraised. The asset transfer to Stanford & Son, which Mr. Stanford solely owned, was completed by December 31, 2003. Stanford & Son forged • ahead, commencing on November 1, 2003, the day after B & S shut down, conducting the business known as J.C. Stanford' & Co., just as B & S had done' up until the merger. The company maintained the same location, the same telephone number, and the same staff, equipment, and vehicles as previously used by B & S.

Appellants were now faced with a dilemma. They could exercise their appraisal rights as to all their shares (twenty-one each) and thereby seek compensation, but in the process they would divest their holding in B & S and would lose standing to maintain their derivative action. They could, in the alternative, forego their appraisal rights and risk defeat in the derivative action. The brothers chose a middle course, fashioning what they termed a “conditional election of appraisal rights.” Each brother tendered twenty of his twenty-one shares with the contention that twenty shares were worth $125,000, substantially more than the $25,000 price Mr. Stanford offered, for all twenty-one. In a subsequent declaratory action filed by ap-pellees, the trial court ruled in May 2004 that the Williams brothers’ “conditional” exercise of their appraisal rights was a nullity — that a shareholder entitled to appraisal must elect appraisal as to all or none of the shareholder’s interest. Appellants do not challenge that ruling in this appeal.

Meanwhile, in the still-pending derivative action, the Williams brothers, having learned of the asset transfer, moved to disqualify Henderson Keasler, citing the firm’s conflicted representation of B & S and the Stanfords individually. The trial court granted the motion as to Henderson Keasler’s representation of B & S.

On February 26, 2004, appellants filed a verified amended complaint, alleging the following claims: (I) breaches of fiduciary duty by the Stanfords, stemming from their alleged personal use of corporate assets and corporate funds; (II) breaches of fiduciary duty by the Stanfords in conjunction with their transfer of B & S’s assets to Stanford & Son; (III) breaches of common law duty of loyalty by the Stanfords; (IV) trade name infringement by the Stanfords, stemming from the use of B & S’s trade name by Stanford & Son; (V) breaches of fiduciary duty by Henderson Keasler, which, as B & S’s corporate counsel, improperly facilitated the transfer of B & S’s assets ■ to Stanford & Son. In a second amended complaint filed in 2005, appellants added Stanford & Son as. a defendant as to. count II, and two Henderson Keasler lawyers as individual defendants as to count V. Appellants filed a third amended complaint in 2006, adding a sixth count for rescission and cancellation of the transfer of B & S’s assets to Stanford & Son.

On March 27, 2006, the trial judge granted the defendants’ motions for partial summary judgment as to counts IV and V, and granted their motion to strike the prayer for relief in count II, the claim against the Stanfords and Stanford & Son for breach of fiduciary duty stemming from the asset transfer and which sought imposition of a constructive trust on Stanford & Son’s profits. On June 21, 2006, the trial court granted summary judgment as to count VI, the rescission claim, and, without further hearing, granted the Stan-fords’ and Henderson Keasler’s motions for attorney’s fees pursuant to section 57.105, Florida Statutes (2006), on the ground that counts IV and V were essentially frivolous. The court also granted appellees’ motion pursuant to section 607.1331(2)(b), Florida Statutes (2006), for attorney’s fees that accrued during the declaratory action regarding appellants’ appraisal rights.

Appellants have appealed the summary judgments' as to counts IV, V, and VI, the trial court’s decision to strike the demand in count II for imposition of a constructive trust, and the awards of attorney’s fees. We affirm the summary judgment as to the trade name infringement claim, but, for the reasons that follow, we reverse the trial court’s rulings as to the other claims presented on appeal and remand" for further proceedings.

ANALYSIS

I.

Permeating the causes of action advanced here are the Williams brothers’ specific allegations (though as yet unproven) of unfair dealing and breaches of fiduciary duty on the Stanfords’ part, which culminated from several years of alleged value-destroying activities. Although appellants present numerous issues for review, the essential issue is whether Florida’s “appraisal rights” statute thwarts the Williams brothers in their efforts to obtain judicial scrutiny of the transfer of B & S assets from B & S to J.C. Stanford & Son, a company Mr. Stanford created with the admitted intention of withdrawing from the business relationship with the Williams brothers. The Williams brothers also seek recovery against Henderson Keasler, alleging the law firm served the Stanfords’ interest at the expense of B & S, the firm’s corporate client. We conclude that appellants raise allegations which, if . true, are sufficient to trigger remedial rights beyond mere appraisal. Accordingly, these allegations withstand appellees’ motions for summary judgment.

A.

Section 607.1302, Florida Statutes (2003) — Florida’s “appraisal rights” statute — generally requires minority shareholders who dissent from a major transaction or disposition of assets to seek the remedy of tendering their shares for appraisal and buy-back at a fair price:

(I) A shareholder is entitled to appraisal rights, and to obtain payment of the fair value of that shareholder’s shares, in the event of any of the following corporate actions:
(c) Consummation of a disposition of assets pursuant to s. 607.1202 if the shareholder is entitled to vote on the disposition, including a sale in dissolution but not including a sale pursuant to court order or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within 1 year after the date of sale;
(d) Any other amendment to the articles of incorporation, merger, share exchange, or disposition of assets to the extent provided by the articles of incorporation, bylaws, or a resolution of the board of directors, except that no bylaw or board resolution providing for appraisal rights may be amended or otherwise altered except by shareholder approval. ...

§ 607.1302(1), Fla. Stat. (2003). Appraisal must determine the “fair value” of the dissenting shareholder’s shares. See id. “ ‘[F]air value’ means the value of the corporation’s shares determined: (a) Immediately before the effectuation of the corporate action to which the shareholder objects.” § 607.1301(4)(a), Fla. Stat. (2003). The trigger here is Mr. Stanford’s disposition of all B & S assets. See § 607.1302(l)(d), Fla. Stat. (2003) (providing that appraisal rights are triggered by, inter alia, “disposition of assets”).

In most cases, the statute denominates appraisal as a dissenting shareholder’s exclusive remedy. See id. The exclusivity rule does not apply, however, where the minority shareholder has alleged that the challenged transaction “[w]as procured as a result of fraud or material misrepresentation.” § 607.1302(4)(b), Fla. Stat. (2003). The Williams brothers argue their allegations of corporate malfeasance on the Stanfords’ part fall under the ambit of subsection (4)(b) and constitute facially sufficient allegations that raise factual issues for resolution by a finder of fact. The argument has fprce. Pending a fact-finder’s determination as to the truth of the Williams brothers’ allegations, the brothers suggest they have shown “fraud or material misrepresentation” entitling them, in their shareholder-derivative stance, to rescission or such other curative remedies as might restore the parties to the status quo ante. We reject the concept, implicit in appellees’ argument, that a buy-back at the fair value of the stock immediately before the Stanfords’ disposition of corporate assets would suffice as a complete remedy.

B.

To date, no Florida court has had occasion'to interpret the governing provisions of section 607.1302 in its 2003 form. As is often true, however, Delaware case law provides guidance to our construction of the statute. See, e.g., Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1459 n. 22 (11th Cir.1989) (‘We rely with confidence upon Delaware law to construe Florida corporate law. The Florida courts have relied upon Delaware corporate law to establish their own corporate doctrines.”); Boettcher v. IMC Mortgage Co., 871 So.2d 1047, 1052 (Fla. 2d DCA 2004) (observing that Florida courts routinely consult Delaware case law when construing Florida statutory law governing corporations). Our review of pertinent Delaware cases supplies principles of corporate law that ought to control in this case. The most significant of these holds that dissenting minority shareholders should be entitled to remedies beyond appraisal when challenging corporate transactions as allegedly not entirely fair, and certainly where such transactions have fraudulently devalued the stock.

In Weinberger v. UOP, Inc., the Delaware Supreme Court sketched, in broad strokes, the principle that a shareholder can challenge a corporate transaction premised on unfair dealing by exercising rights beyond mere appraisal. 457 A.2d 701, 711 (Del.1983). The Weinberger court wrote, in the context of a proposed merger between a parent and its subsidiary:

The concept of fairness has two basic aspects: fair dealing and fair price. The former embraces questions of when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of the directors and the stockholders were obtained. The latter aspect of fairness relates to the economic and financial considerations of the proposed merger, including all relevant factors: assets, market value, earnings, future prospects, and any other elements that affect the intrinsic or inherent value of a company’s stock.

Id. The court held that, in some cases where transactions raise questions of procedural unfairness, appraisal should not constitute a dissenting shareholder’s sole remedy:

[W]hile a plaintiffs monetary remedy ordinarily should be confined to the more liberalized appraisal proceeding ..., we do not intend any limitation on the historic powers of the Chancellor to grant such other relief as the facts of a particular case may dictate. The appraisal remedy we approve may not be adequate in certain cases, particularly where fraud, misrepresentation, self-dealing, deliberate waste of corporate assets, or gross and palpable overreaching are involved.

Id. at 714 (emphasis added).

The Delaware court elaborated on the Weinberger approach two years later, holding in Rabkin v. Philip A. Hunt Chemical Corp. that appraisal would be an inadequate remedy for dissenting minority shareholders who alleged that corporate directors and officers, inter alia, manipulated the timing of a merger to artificially depress the cash-out price that minority stockholders would be paid for their shares post-merger. 498 A.2d 1099, 1105 (Del.1985) (“While a plaintiffs mere allegation of ‘unfair dealing,’ without more, cannot survive a motion to dismiss, averments containing ‘specific acts of fraud, misrepresentation, or other items of misconduct’ must be carefully examined in accord with our views expressed both here' and in [Weinberger ],” citing Weinberger, 457 A.2d at 703, 711, 714). Because the plaintiffs in Rabkin alleged specific acts of unfair dealing — the defendant-directors of the acquiring company were “charged with bad faith which goes beyond issues of ‘mere inadequacy of price’ ” —the court concluded that summary judgment in the defendants’ favor was inappropriate and that, if their claims of unfair dealing were true, the plaintiffs would have been entitled to equitable remedies beyond an appraisal of their shares. Id. at 1107 (quoting Cole v. Nat’l Cash Credit Ass’n, 156 A. 183, 187-88 (Del.Ch.1931)).

Beyond the Delaware Supreme Court’s exposition of persuasive common law tenets, we note that a Delaware chancery court has now applied the Weinberger-Rabkin framework to its own construction of the 2003 version of section 607.1302(4)(b), Florida Statutes (2003). Berger v. Intelident Solutions, Inc., 911 A.2d 1164 (Del.Ch.2006). The Delaware chancellor interpreted the Florida statutory phrase “fraud or material misrepresentation” as implicating the same entire-fairness analysis contemplated in Weinberger and Rabkin. Id. at 1171. We are inclined to align our interpretation of section 607.1302(4)(b) with that of the Berger court, which interpreted the phrase “fraud or material misrepresentation” in the statute essentially synonymously with “unfair dealing.” Id.

C.

In the present case, the Williams brothers alleged sufficient acts of unfair dealing to withstand appellees’ motion for summary judgment, which the trial court should have denied. Appellants alleged that Mr. Stanford suddenly and secretively transferred B & S assets to a newly created company — J.C. Stanford & Son, Inc.— with, admittedly, the intention of effectuating a squeeze-out of the Williams brothers. Shortly before the disposition of B & S assets, Mr. Stanford resigned as B & S’s qualifying agent, depriving B & S of its ability to conduct an ongoing construction business. The complaint raises more than a specter that, at the time appraisal rights would have arisen, the Williams brothers’ shares could not have been worth much.

In cases such as the present controversy, involving dissenting shareholders who seek more than appraisal of their shares in the wake of objectionable transactions, courts must balance the principle that an adequate remedy should exist for a dissenting shareholder in an unfair transaction against the consideration that courts should not become bogged down in a wide range of disputes over the fairness of cash-out prices offered to minority shareholders who object to corporate transactions. We have no question that, in the present case, we are not dealing with “a fair price complaint artfully disguised in the camouflage of procedural unfairness.” Berger, 911 A.2d at 1171. As appellants’ counsel pointed out during oral argument, the Williams brothers’ complaint over the fairness of the transfer of B & S assets stems from the fact that, at the time appellants’ statutory appraisal right crystallized, the company’s treasury — and thus the corresponding value of their shares — had been all but eviscerated through several years of the Stanfords’ alleged misappropriations and mismanagement of corporate funds, activities the Williams brothers did not detect until the company recorded a net loss in 2001. Contingent upon proof of the allegations, appraisal at the time of the November 2003 transfer of B & S assets, effectuated after years of allegedly value-destroying activities on the Stanfords’ part, would not have afforded the Williams brothers adequate recourse in this particular case. We find the allegations of the Stanfords’ various activities analogous to those advanced against the defendants in Rabkin, who allegedly manipulated the timing of a merger to reduce the cash-out price paid to minority shareholders upon appraisal. See Rabkin, 498 A.2d at 1107.

Appellants’ right to appraisal would have been as of the November 2003 asset transfer; we find nothing in the statute that would allow a valuation before the November 2003 transfer of assets from B & S to Stanford & Son. We thus reject any suggestion that the appraisal remedy would allow appellants to recoup the diminished value represented by the alleged wrongful transactions over a period of time before the assets transfer. Moreover, we are unable to conclude that appellees’ alleged mismanagement and misappropriations of corporate funds, followed by a de facto merger, not only triggered the appraisal right, but also cemented that right as the Williamses’ sole remedy. See § 607.1302(l)(c), Fla. Stat. (2003) (providing that appraisal right is triggered upon, inter alia, “[consummation of a disposition of assets”). Because the appraisal must be conducted with regard to the shares’ value “[i]mmediately before the ef-fectuation of the corporate action to which the shareholder objects,” Section 607.1301(4)(a), Florida Statutes (2003), appraisal would likely have yielded an inequitable result. The-2003 asset transfer represents precisely the type of transaction contemplated in Rabkin and Weinberger— one so procedurally and-structurally unfair that a fair price would be unattainable without independent equitable relief outside an appraisal proceeding.

D.

We interpret the “fraud or material misrepresentation” exception in section 607.1302(4)(b) to mean that a minority shareholder who alleges specific acts of “fraud, misrepresentation, self-dealing, [or] deliberate waste of corporate assets,” Weinberger, 457 A.2d at 714, may be entitled to equitable remedies beyond an appraisal proceeding if those allegations are proven true and if the alleged acts have so besmirched the propriety of the challenged transaction that no appraisal could fairly compensate the aggrieved minority shareholder. We adopt the entire fairness analysis developed in Weinberger and Rabkin to assess whether a corporate transaction avails aggrieved minority shareholders • of rights beyond appraisal. The trial court erred in granting summary judgment as to appellants’ claim for rescission of the transfer of assets; we reverse summary judgment and remand for factual determinations as to the truth of appellants’ allegations of fraud, misrepresentation, and breaches of fiduciary duty on the Stan-fords’ part.

II.

Resolution of the remainder of appellants’ claims on appeal largely flows from our resolution of the threshold issue above. Because we conclude that appellants alleged facts sufficient to withstand summary judgment and that, if true, entitle them to remedies other than appraisal, we also conclude the trial court erred in dismissing their claim against the Henderson Keasler law firm for breach of fiduciary duty to B & S. Citing the fact that the Stanfords waived Henderson Keasler’s conflict between the firm’s representation of them and its representation of B & S, the trial court relied on Rudolf v. Gray, a case from the Fifth District in which all shareholders collectively waived the conflict of interest for corporate counsel to continue its representation of individual shareholders. 901 So.2d 148 (Fla. 5th DCA 2005). Assuming Rudolf supplies the controlling rule, we find the present case distinguishable, in that only the Stanfords, instead of all shareholders, acting for B & S, approved the conflict waiver. Any conflict of interest that arose from Henderson Keasler’s representation of the Stanfords individually and its concomitant representation of B & S was therefore not properly waived, and the trial court should not have dismissed appellants’ claim against the firm alleging breach of fiduciary duty.

We likewise reverse the trial court’s decision to strike the Williams brothers’ demand that Stanford & Son place its profits in a constructive trust for the benefit of B & S. A constructive trust is an equitable remedy available in cases dealing with breaches of fiduciary duty; such an instrument restores property to its rightful owner and prevents unjust enrichment. See, e.g., Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 422 (1927); see also Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla. 4th DCA 1996). In particular, a court may impose a constructive trust when property is acquired through fraud. See id. (quoting Quinn, 113 So. at 422). Because appellants have established that genuine issues of material fact existed which cast a pall upon the transfer of B <& S assets to Stanford & Son, they advanced a viable claim for the imposition of a constructive trust. The trial court dismissed their claim in part because he believed appellants sought the imposition of a trust pursuant to their claim for trade name infringement, when in actuality they sought the trust in conjunction with their claim alleging breach of the Stanfords’ fiduciary duty to B & S. Accordingly, we reverse and remand with instructions that the trial court consider both appellants’ claim against Henderson Keasler and their demand for the imposition of a constructive trust in light of their allegations of fraud and unfair dealing surrounding the transfer of B & S assets.

III.

Because we conclude appellants presented legally sufficient claims and reverse the summary judgment entered for appellees, we also reverse the trial court’s order awarding attorney’s fees to appellees pursuant to section 57.105, Florida Statutes (2006), which permits a trial court, in its discretion, to award attorney’s fees to the prevailing party if it finds that “(1) ... the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.” § 57.105, Fla. Stat. (2006). For attorney’s fees to be awarda-ble, a claim must have been frivolous when filed. See Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 524 (Fla. 1st DCA 2003). Appellants advanced a potentially meritorious claim supported by both their factual allegations, some of which are not in serious dispute, and the law. Because we reverse summary judgment as to count V, the claim of breach of fiduciary duty against Henderson Keasler, we also reverse the fee award pursuant to section 57.105. Although we affirm summary judgment as to Count IV, we reverse the fee award, concluding that the claim for trade name infringement, though unsuccessful, did not fall below the bar set by section 57.105.

Appellants have also appealed the award to appellees of attorney’s fees incurred during the declaratory action, at the conclusion of which the court determined that election as to some shares does not constitute a valid exercise of the appraisal right. The court awarded attorney’s fees to appellees pursuant to section 607.1331(2)(b), Florida Statutes (2006), which provides that, in an appraisal proceeding, the court may assess fees against the shareholder demanding appraisal “if the court finds that the party ... acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this chapter.” The trial judge abused his discretion in assessing fees against appellants because the declaratory action was not an appraisal proceeding in which the statute would apply. Rather, it was merely a proceeding, brought by appellees, to clarify appellants’ rights and to determine whether they could initiate an appraisal proceeding as to twenty of their twenty-one shares. Moreover, although the trial court ruled against appellants in the declaratory action, nothing in the record would support a finding that appellants, in seeking to clarify their rights in respect of appraisal and a simultaneous shareholder-derivative action, acted “arbitrarily, vexatiously, or not in good faith.” We conclude the judge erred in finding otherwise and awarding attorney’s fees pursuant to section 607.1331(2)(b), Florida Statutes (2006).

CONCLUSION

In light of the foregoing, we AFFIRM the summary judgment for appellees on the Williams brothers’ claim for trade name infringement. We REVERSE, however, the summary judgments entered on appellants’ claim for rescission of the asset transfer and appellants’ claim against Henderson Keasler for breach of fiduciary duty. We also REVERSE the order striking appellants’ demand for the establishment of a constructive trust for the benefit of B & S, as well as the trial court’s assessment of attorney’s fees against appellants with respect to the declaratory action and counts IV and V of their complaint in the shareholder-derivative action. Appellants shall enjoy the benefit of a trial on the merits of their facially sufficient claims. The cause is REMANDED for further proceedings consistent with this opinion.

BROWNING, C.J. and ROBERTS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shane G. MAYO, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1063.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Shane G. Mayo, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Shane Mayo, appeals the trial court’s order denying his motion for extension of time and appointment of counsel, his motion for postconviction relief, and his motion to proceed without prepayment of court costs and fees. The trial court denied the appellant’s motion for postconviction relief as untimely and denied his motion to proceed without prepayment of court costs and fees as moot. We disagree and reverse. Because we find the appellant’s motion for postconviction relief was timely filed, we decline to address the trial court’s denial of his motion for extension of time and appointment of counsel.

The appellant’s judgment and sentence became final on December 17, 2004, when this Court issued its mandate to the trial court. The appellant had until December 17, 2006, two years after this Court issued its mandate, to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. However, because December 17, 2006, fell on a Sunday, the appellant had until December 18, 2006, to file such motion. See Fla. R.Crim. P. 3.040. Under the mailbox rule, the appellant’s motion was deemed filed on December 18, 2006, when the appellant handed it over to prison officials for mailing. See Haag v. State, 591 So.2d 614 (Fla.1992). The appellant’s motion was therefore timely filed. Accordingly, we reverse the trial court’s order and remand for reconsideration of the appellant’s motion for postcon-viction relief and his motion to proceed without prepayment of court costs and fees.

REVERSED and REMANDED.

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


text:
    Robert WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2948.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Robert Williams, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has appealed an order denying what appears to be a second rule 3.850 motion in which he raises two claims of ineffective assistance of trial counsel, one claim of prosecutorial misconduct, and one claim of an illegal sentence due to the trial court’s sentencing him to a six-year split sentence of three years’ imprisonment to be followed by three years’ probation for third-degree felony convictions. We affirm the trial court’s summary denial of the claims of ineffective assistance and prosecutorial misconduct. However, the appellant’s claim challenging the six-year split sentence appears to have merit since the statutory maximum for a third-degree felony is five years. See § 775.082(3)(d), Fla. Stat. (2004). Along with the other three claims, the trial court denied the illegal sentence claim as successive and, to support its ruling, attached a December 2006 order indicating that the appellant had raised claims of ineffective assistance of trial counsel in a previous rule 3.850 motion. The record does not indicate that the appellant had previously raised the illegal sentence claim. As such, the trial court erred in determining it was successive. Therefore, we treat the illegal sentence claim as having been filed pursuant to rule 3.800(a), see Robinson v. State, 916 So.2d 974 (Fla. 1st DCA 2005), and remand for the trial court to address the merits of this claim. See Weeks v. State, 696 So.2d 1319 (Fla. 1st DCA 1997).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

BENTON, LEWIS, and ROBERTS, JJ., concur.


text:
    FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Winter Park Imports, Inc., d/b/a Lexus of Orlando, Florida Automobile Dealers Association, and South Florida Auto-Truck Dealers Association, Inc., Appellants, v. JM AUTO, INC., d/b/a JM Lexus, Appellee.
    No. 1D07-2662.
    District Court of Appeal of Florida, First District.
    March 25, 2008.

      Michael J. Alderman, Department of Highway Safety and Motor Vehicles, Tallahassee; John W. Forehand, Walter E. Forehand and M. Christopher Lyon of Lewis, Longman & Walker, P.A., Tallahassee; Ladd H. Fassett of Fassett, Anthony & Taylor, P.A., Orlando; A. Edward Quinton, III, of Adams, Quinton & Paretti, P.A., Miami; Alex Kurkin and Marc E. Brandes of Pathman Lewis, LLP, Miami, for Appellants.
    Dean Bunch and J. Andrew Bertron Jr., of Sutherland Asbill & Brennan LLP, Tallahassee; David S. Kurtzer-Ellenbogen of Williams & Connolly LLP, Washington, D.C., for Appellee.
   PER CURIAM.

Appellants challenge a final order of the administrative law judge finding Florida Administrative Code rule 15C-7.005 invalid. We affirm.

We review the ALJ’s conclusions of law de novo. See, e.g., Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). Rule 15C-7.005 purports to regulate “unauthorized additional motor vehicle dealerships” and “unauthorized supplemental dealership locations,” and identifies section 320.011, Florida Statutes, as the specific authority for its adoption. That law provides, in full: “The Department shall administer and enforce the provisions of this chapter and has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement them.” We agree with the ALJ’s determination that this general grant of authority was insufficient under sections 120.52(8)(b) and 120.536(1), Florida Statutes, which allow an agency to adopt “only rules that implement or interpret the specific powers and duties granted by the enabling statute.”

The ALJ relied on decisions from this court wherein we have recognized the legislature’s intent to restrict the scope of agency rulemaking and consequently have approved a rule only when there is statutory language authorizing the agency to adopt rules to implement the subject matter of the statute. See, e.g., Hanger Prosthetics & Orthotics, Inc. v. Dep’t of Health, 948 So.2d 980 (Fla. 1st DCA 2007); Hennessey v. Dep’t of Bus. & Prof'l Regulation, 818 So.2d 697 (Fla. 1st DCA 2002); Bd. of Trs. of the Internal Improvement Trust Fund v. Day Cruise Ass’n Inc., 794 So.2d 696 (Fla. 1st DCA 2001); Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000). Consistent with the reasoning of these cases, we find that the broadly worded language of section 320.011 did not authorize the department to enact a rule deeming certain conduct to be the unauthorized establishment of additional or supplemental motor vehicle dealerships. We do not decide any other arguments or issues raised in the parties’ briefs on appeal.

AFFIRMED.

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    Donald Eugene HUMPHRIES, Petitioner, v. Kathleen M. PORPORA, Respondent.
    No. 1D07-1380.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Nina R. Price of Price & Johnson, P.A., Jacksonville, for Petitioner.
    Deborah Marks, Miami, for Respondent.
   PER CURIAM.

DISMISSED. McGee v. McGee, 487 So.2d 412 (Fla. 4th DCA 1986).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Jermaine JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3996.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2008.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See White v. State, 974 So.2d 1184 (Fla. 5th DCA 2008).

PLEUS, MONACO and EVANDER, JJ., concur.


text:
    Justin Scott BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2977.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2008.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Terry v. State, 111 So.2d 1093 (Fla. 5th DCA 2001).

MONACO, LAWSON and EYANDER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Aaron Rodriguez HENSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3575.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Aaron Rodriguez Henson appeals two judgments: one judgment for obstructing or resisting an officer without violence, for which Mr. Henson was sentenced to time served, and one judgment for fleeing to elude and felony driving while license revoked, for which he received concurrent sentences of two years in prison on each charge. Although the notice of appeal referenced both judgments, Mr. Henson has raised no issue on appeal regarding the judgment for obstructing or resisting an officer without violence, and we therefore affirm that judgment without further comment. As to the judgment for fleeing to elude and felony driving while license suspended, we also affirm. However, as to these charges, if Mr. Henson elects to withdraw his plea on remand, he must be allowed to do so.

This case involves an attempt by the trial court to enter into the same type of deferred sentencing plea agreement similar to the one we addressed in Neeld v. State, No. 2D06-1731, 977 So.2d 740, 2008 WL 782885 (Fla. 2d DCA Mar. 26, 2008). In this case, although Mr. Henson orally agreed to avoid “trouble” as a condition for his deferred sentences, there was no written plea agreement and he was not informed — nor did he agree — that his timely appearance for sentencing was a condition of his plea agreement. Mr. Henson is therefore entitled to withdraw his plea.

On January 26, 2006, Mr. Henson did not voluntarily stop for a traffic infraction. He was arrested for fleeing to elude, felony driving while license revoked, and obstructing or resisting an officer without Violence. He was released on bond. At his pretrial hearing on May 1, 2006, he indicated a desire to plead no contest to the fleeing to elude and felony driving while license revoked charges, but to defend against the misdemeanor charge of resisting an officer without violence. The trial court indicated that it was willing to accept a plea to these two counts in exchange for a sentence of 330 days in jail and a five-year revocation of driving privileges. The trial on the misdemeanor was scheduled for a later date.

In order to allow Mr. Henson time to get his affairs in order, the trial court was also willing to defer sentencing on the two felonies until the conclusion of the misdemeanor trial. When Mr. Henson’s counsel confirmed this was agreeable with Mr. Henson, the trial judge continued:

THE COURT:_ Now, he understands how sentencings [sic] work? He would admit today, he would plea[d] today, give up all his rights. If he gets in trouble between now and then, all bets are off.
DEFENSE COUNSEL: All bets are off.
THE COURT: He could get 20 years in prison that day. He knows that, right?
(Whereupon, the defense attorney and the defendant have a conversation.)
THE COURT: And trouble could be something as small as a neighbor who comes in and says, Judge, you know I just want you to be aware of what I saw him doing. Even if the police weren’t involved. I mean, trouble can be trouble at any level. Somebody comes in and says something bad about him. Okay?
Mr. Henson, do you understand all that, sir?
THE DEFENDANT: Yes, sir.
THE COURT:. Okay. You ready to do this?
THE DEFENDANT: Yes.
THE COURT: Raise your right hand, please, sir.

The trial court then conducted a typical plea colloquy and obtained a factual basis for the plea. Thereafter, the court concluded:

THE COURT: Okay. Accept your plea as knowingly and' voluntarily entered. Find there’s a factual basis for it. We’re going to adjudicate you guilty on the fleeing and eluding and the driving while license suspended or revoked. We’re going to set your sentencing for the 24th of May, as previously indicated. We’ll see you then, okay?
THE DEFENDANT: Okay.
THE COURT: All right.
DEFENSE COUNSEL: Okay.
THE DEFENDANT: (Indiscernible).
DEFENSE COUNSEL: No. Just make sure you’re here on time, okay?
THE DEFENDANT: 8:30?
DEFENSE COUNSEL: Yes.
(Whereupon, the proceedings were concluded.)

As luck would have it, Mr. Henson overslept on May 24 and did not arrive in court at 8:30. He claims that he went to the county jail at approximately 11 a.m. on that day and the jailors would not take him into custody without a capias. He then reported to his bondsman and apparently turned himself in to the jail as soon as the jailors had the capias allowing him to be held. The State does not dispute his version of these events.

On July 6, 2006, Mr. Henson was taken before the trial court for sentencing. He explained how he overslept and his efforts to turn himself in. The assistant state attorney indicated that the State was asking for a sentence of a year and a day because of his tardiness. The trial court indicated that it “could give [Mr. Henson] twenty-one years right now just for oversleeping.” After further discussion, the trial court imposed two concurrent terms of five years in prison for these offenses. On July 24, 2006, the trial court reconsidered this sentence and reduced it to two concurrent terms of two years in prison.

While this case was pending on appeal, Mr. Henson filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) claiming that he had been sentenced in error because, although he had agreed that “all bets were off’ if he got into “trouble” prior to the sentencing hearing, he never agreed that he could be sentenced to any lawful sentence if he did not appear in court at the scheduled time for sentencing. In other words, Mr. Henson never entered into either an oral or a written Quartermcm agreement. See Quarterman v. State, 527 So.2d 1380 (Fla.1988) (affirming the enforcement of a plea agreement that provided for the release and liberty of the defendant between entry of plea and sentencing but permitted an upward departure sentence if the defendant failed to appear for sentencing). The trial court did not rule on this motion within the allotted sixty days, and thus the motion is deemed denied.

A motion to correct sentencing error pursuant to rule 3.800(b) is not the proper vehicle to challenge this type of error. See Taylor v. State, 919 So.2d 669 (Fla. 2d DCA 2006); see also Barber v. State, 901 So.2d 364 (Fla. 5th DCA 2005). Instead, the defendant must file a motion to withdraw plea. See Taylor, 919 So.2d 669; Barber, 901 So.2d 364. In both Taylor and Barber, the district courts could conceive of no possible tactical explanation for the trial attorney’s failure to file a motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(1) and concluded that the defendant had been prejudiced by this failure. Accordingly, in both of those cases, the courts reversed to give the defendant an opportunity to withdraw the plea.

In this case, it is not so obvious that Mr. Henson would wish to withdraw his plea at this time. He is nearly finished serving this sentence. The facts of the criminal episode were more fully developed at the hearings following the plea hearing, and there is little to suggest that the trial court would choose to abide by the original plea agreement in imposing sentence rather than choose to withdraw from any plea agreement. This might subject Mr. Henson to the possibility of a longer sentence. On the face of this record, we cannot find indisputable evidence of ineffective assistance of counsel.

Nevertheless, the oral plea agreement did not contain a provision allowing the trial judge to sentence Mr. Henson to any lawful sentence if he did not appear on time for his sentencing hearing. The trial court had the option to withdraw from the agreement at that time and proceed with preparations for trial, see Rollman v. State, 887 So.2d 1233 (Fla.2004), but it could not simply proceed to sentencing as if the plea had been an open plea. Thus, although we affirm the judgment and sentences on these two counts, Mr. Henson is entitled to withdraw his plea and proceed to trial on these offenses if he files a timely postconviction motion.

Accordingly, we affirm this case without prejudice to Mr. Henson’s right to seek to withdraw his plea by ñling a motion pursuant to rule 3.850 on remand.

Affirmed.

DAVIS, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . Neither the trial court nor the State ever contended that Mr. Henson had breached the "trouble” condition in the plea agreement— that is, that Mr. Henson’s tardiness for the sentencing hearing was a form of "trouble” permitting a greater sentence. We fully appreciate the trial judge’s efforts to underscore to the defendant the importance of good comportment during his period of liberty. On the other hand, both "trouble” and “all bets are off” are perhaps open to interpretation. If the judge is telling the defendant that the judge is likely to withdraw from the plea agreement if the defendant misbehaves during this period, the cautionary statement is probably in accordance with the law and a reasonable warning. If the judge is attempting to establish his right to impose any lawful sentence in response to "trouble,” this agreement may itself be more trouble than it is worth. As pointed out in Neeld, a written deferred sentencing plea agreement may be useful to any judge who seeks to use this approach in resolving cases.


text:
    Roger Curtis NEELD, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1731.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    Roger Curtis Neeld, pro se.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Roger Curtis Neeld appeals his judgment for felony petit theft (third or subsequent offense), see § 812.014(3)(c), Fla. Stat. (2004), and sentence of three years’ imprisonment. The sentence was imposed after Mr. Neeld allegedly violated the terms of a deferred sentencing plea agreement. We reverse the sentence and remand for additional proceedings because the trial court did not require the State to present evidence that Mr. Neeld violated the terms of his plea agreement.

This opinion and the opinion issued simultaneously in Henson v. State, No. 2D06-3575, 977 So.2d 736, 2008 WL 782883 (Fla. 2d DCA Mar.26, 2008), both involve a plea agreement that occurs with some regularity in the Sixth Judicial Circuit and perhaps elsewhere. The plea agreement allows the defendant to be released from jail or remain at liberty pending his or her sentencing hearing under a condition that the defendant behave during this period. The agreement is not reduced to writing, and its oral pronouncement at the plea hearing varies. Sometimes, as in Henson, the defendant is told not to get into “trouble.” Other times the defendant is told not to get “arrested.” In this case, Mr. Neeld promised that he would not “commit any new crime” during this period.' This agreement is similar to a Quarterman plea agreement or to the usual conditions of pretrial release. As discussed below, however, we conclude that the enforcement of this deferred sentencing plea agreement requires proceedings somewhat more extensive than those typically required to enforce a Quarterman plea agreement. We are hesitant to create procedural impediments to plea agreements that permit a furlough prior to deferred sentencing for defendants who can reasonably be expected to return for sentencing and not commit new offenses while on furlough. On the other hand, the procedures currently used in the Sixth Judicial Circuit appear more streamlined than due process may permit.

I. THE FACTS IN THIS CASE

Mr. Neeld attempted to shoplift a fishing reel. He was apprehended at the store and charged with felony petit theft because he had a prior record of shoplifting. He entered into a written negotiated plea agreement in which he agreed to plead guilty to the charge in exchange for a sentence of 364 days in county jail. The written agreement states merely that he will receive “364 days jail — delayed sentence.” The written agreement contains no information about when the sentencing hearing will be held or what the consequences might be for any misconduct by Mr. Neeld in the period between the plea hearing and the sentencing hearing.

At the conclusion of the plea hearing on November 7, 2005, the trial judge stated:

If the defendant fails to appear for court on Thursday morning, December 8, 2005, at 8:30 a.m., in this courtroom or if the defendant commits any new crime between now and that court date, the sentence stated in the plea agreement would not be binding on the Court and the Court could sentence the defendant to any lawful sentence in the Court’s discretion. Do you understand that, sir?

Mr. Neeld responded that he understood and agreed to these conditions.

Mr. Neeld reported for sentencing at 8:30 a.m. on December 8, 2005. Unfortunately, he did so with the assistance of the sheriff because he had been arrested on November 10, 2005, and charged with shoplifting a pair of shoes and a jacket at a thrift store. The trial court ordered that he receive a psychological evaluation and did not sentence Mr. Neeld at that time. Although our record does not contain all of the trial court records relating to the new charges, it is clear that Mr. Neeld’s defense counsel in this case was also appointed to represent him to defend against the new charge.

The court scheduled sentencing in this case and a pretrial conference on the new charge for January 17, 2006. Just prior to that date, Mr. Neeld’s counsel filed a motion to withdraw the plea-in the first case, alleging that his client was under the influence of medication at the plea hearing. Mr. Neeld filed a pro se document seeking in part to discharge his counsel.

At the hearing on January 17, the court first considered Mr., Neeld’s pro se motion to discharge counsel. After listening to Mr.. Neeld’s reasons for seeking discharge, the court concluded there was no evidence of ineffective representation and asked Mr. Neeld if he wanted to persist in the request to remove counsel in order to proceed pro se. Despite extensive discussion between the court and Mr. Neeld attempting to determine whether Mr. Neeld wanted to proceed pro se, Mr. Neeld avoided making an unequivocal request to represent himself. The court thus denied the motion to discharge counsel and proceeded to consider the motion to withdraw plea. At the conclusion of the hearing, the court took the motion to withdraw plea under advisement. With the consent of the parties, it set the newer case for trial and this case for sentencing on March 9, 2006.

At the end of January, the trial court entered an order denying the motion to withdraw plea. Thereafter, Mr. Neeld filed some lengthy handwritten “emergency” motions seeking a pretrial hearing, another Nelson hearing, a Faretta hearing, and a hearing on the “noncompliance” issue. The motions suggest that Mr. Neeld is bright, educated, somewhat familiar with legal procedures, but laboring under the pressures of some emotional difficulties.

On March 9, 2006, both the prosecutor and defense attorney suggested the court consider sentencing in the first case prior to a trial in the second. When the court asked whether there was lawful cause not to proceed with sentencing, Mr. Neeld interjected. He asserted specifically:

[Tjhere’s no factual basis to it. I didn’t commit a new offense, and it hasn’t been established that I have, an arrest alone, as I explained in my motion, shouldn’t be sufficient grounds to trigger a violation of non-compliance because I didn’t willfully and substantially violate anything. I didn’t commit a new offense.

Initially, the court considered proceeding with the scheduled trial in the latter case before sentencing Mr. Neeld in the former, thus avoiding the issue raised by Mr. Neeld. Then, however, the Nelson and Faretta issue arose again. The court passed the ease and recalled it later in the day, at which time the court made extensive inquiry of Mr. Neeld pursuant to Nelson and Faretta. The court again determined there was no basis shown to discharge counsel based upon ineffective assistance and indicated it was going to proceed with sentencing in the first case, citing as authority for this decision Quarterman v. State, 527 So.2d 1380 (Fla.1988), and McFord v. State, 877 So.2d 874 (Fla. 3d DCA 2004). The court provided Mr. Neeld the option of proceeding pro se with the sentencing, which Mr. Neeld rejected. After hearing argument, the trial court concluded that the arrest affidavit in the second case was proof that Mr. Neeld had committed a new offense and violated the plea agreement, and thus the court sentenced Mr. Neeld to three years in prison in this case.

The court then provided Mr. Neeld the option of proceeding pro se in the second case, which Mr. Neeld accepted. The trial in the second case was continued with Mr. Neeld’s approval. Our record does not reveal the disposition of the subsequent offense.

Mr. Neeld has represented himself in this direct appeal. He continues to argue that the court could not determine that he had violated the plea agreement without evidence that he committed a new offense. We conclude that he is correct.

II. THIS AGREEMENT IS NOT A QUARTERMAN AGREEMENT, AND IT IS NOT COMPARABLE TO A CONDITION OF PRETRIAL RELEASE

For more than twenty years, and particularly since the practice was approved by the Florida Supreme Court in Quarter-man, 527 So.2d 1380, trial courts in Florida have been granting furloughs between the plea hearing and the sentencing hearing for defendants who can reasonably be expected to obey the law while released and can be relied upon to voluntarily appear for sentencing. Such an arrangement can be beneficial to the defendant who is preparing to go to prison, and it can also be cost-effective for a county that has limited space in its local jail when a period of time must elapse between the plea and the sentence.

The plea agreement under which the defendant is released is essentially a civil contract. In consideration for the privilege to remain free, the defendant agrees that if he does not appear for sentencing at the agreed upon time and place, the trial court can sentence the defendant to any lawful sentence even if it is a sentence in excess of the sentence specified in the negotiated plea agreement. Under the original sentencing guidelines, such an agreement required the defendant to agree that he or she would allow the judge to impose an upward departure sentence based on the defendant’s failure to appear for sentencing. This practice was approved in Quarterman and thus the agreement became known as a Quarterman agreement. See, e.g., Boisvert v. State, 693 So.2d 652, 653 (Fla. 5th DCA 1997).

With the enactment of the Criminal Punishment Code, the concept of an “upward departure” sentence effectively disappeared. See § 921.0024(2), Fla. Stat. (2004). A Quarterman agreement was thus no longer an agreement to permit an upward departure sentence; the defendant merely agreed to a specific sentence with the caveat that the trial court could impose any greater lawful sentence if he or she did not appear. The first portion of Mr. Neeld’s oral agreement with the trial court is a classic Quarterman agreement.

If a defendant does not fulfill a Quarter-man agreement, his or her failure to appear is obvious. At the time and place of sentencing, when the case is called, the defendant is not present. This occurs in the same court of record where the contract was created. In many respects, the failure to appear is comparable to an act in direct contempt of court. See, e.g., Fla. R.Crim. P. 3.830. When the defendant does eventually appear before the court for sentencing, the State may often have no need to prove anything. The trial court can merely recite the facts of record that the defendant entered into the agreement and did not appear as promised and can then ask the defendant to show cause why he or she should not be sentenced to any lawful sentence. See, e.g., Haynes v. State, 944 So.2d 417 (Fla. 5th DCA 2006) (discussing procedure for direct criminal contempt when witness refuses to answer question despite express order from court to do so); Martinez v. State, 799 So.2d 313 (Fla. 2d DCA 2001) (discussing proof required to establish direct criminal contempt for subpoenaed witness’s failure to appear). Unless the defendant has some reasonable explanation or justification for the failure to appear, the trial court can use its discretion to impose an appropriate, lawful sentence.

In contrast, when a defendant agrees to stay out of “trouble” or avoid arrest or conviction in exchange for a furlough between the plea hearing and the sentencing hearing, the act that is a breach of contract does not occur in a public courtroom. Such an action is more comparable to an act of indirect criminal contempt. See Fla. R.Crim. P. 3.840. Just as an adjudication of indirect criminal contempt requires more notice, proof, and due process, see, e.g., Gidden v. State, 613 So.2d 457 (Fla.1993), we conclude that this type of plea agreement requires proof by the State that the defendant has breached the contract.

When a pretrial detainee is released on his or her own recognizance, section 903.047(l)(a), Florida Statutes (2004), requires that the release is conditioned upon the defendant refraining from criminal activity. Section 903.0471 provides that a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release. Thus the probable cause necessary to support the new charge is sufficient to also revoke the pretrial release on the prior charge. Although this condition is similar to the conditions of Mr. Neeld’s plea agreement, the consequences are far different. If a person violates a pretrial release agreement, the penalty for violation is merely loss of freedom prior to trial. By contrast, in this case, Mr. Neeld’s sentence was increased by two years of imprisonment, and the act that was the violation, if proven, could result in a consecutive sentence of five years’ imprisonment. Thus, because the loss of liberty associated with Mr. Neeld’s agreement is greater than the loss associated with a pretrial release agreement, one would expect that the due process required would also be greater.

III. THIS TYPE OF PLEA AGREEMENT REQUIRES A HEARING SIMILAR TO THE HEARING PROVIDED ON VIOLATION OF PROBATION

Unless a defendant like Mr. Neeld admits that he has breached the terms of his plea agreement, we conclude that the circuit court cannot declare that the defendant violated the terms of his plea agreement in the absence of competent, substantial evidence to support that finding. Cf. Mullin v. State, 571 So.2d 1382 (Fla. 3d DCA 1990) (reversing trial court’s finding that defendant violated terms of plea agreement because insufficient evidence was presented to support the finding); see also State v. Roberson, 118 Wash.App. 151, 74 P.3d 1208 (2003) (stating that an evidentiary hearing is required to establish breach of plea agreement); United States v. Simmons, 537 F.2d 1260, 1262 (4th Cir.1976) (“There would be manifest impropriéty in permitting the government, without satisfying a judge that the evidence proves that a defendant broke his promise, to escape from the obligation the government undertook in the plea bargain.”); United States v. Verrusio, 803 F.2d 885 (7th Cir.1986). Although the trial court relied upon McFord v. State, 877 So.2d 874 (Fla. 3d DCA 2004), in deciding to proceed with sentencing in this case without such proof, McFord is distinguishable because the defendant in McFord admitted violating his plea agreement by committing new crimes.

Although proof of a violation of the plea agreement is required, we conclude that the State need only present evidence establishing the breach by the preponderance of the evidence. This is the proof generally required to prove a violation of probation. See, e.g., Bowser v. State, 937 So.2d 1270 (Fla. 2d DCA 2006); Robinson v. State, 907 So.2d 1284 (Fla. 2d DCA 2005). The contract between Mr. Neeld and the State was similar to the promises exchanged for the privilege of probation. Further, the plea agreement between Mr. Neeld and the State was not conditioned on a formal “conviction” for a new offense but, like the standard. condition of probation, was conditioned on the requirement that Mr. Neeld not commit any new crime. Thus, it may not be necessary for the sentencing court to wait until the new criminal charge has been resolved if the State is willing to establish the offense in a manner similar to that in which it proves a new offense as a violation of probation.

We therefore reverse Mr. Neeld’s sentence and remand for further proceedings. On remand, the court may hold an eviden-tiary hearing and may again impose a sentence greater than 364 days in county jail if the State is able to establish that Mr. Neeld committed an offense in violation of his plea agreement.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.

      . Quarterman v. State, 527 So.2d 1380 (Fla.1988) (affirming the enforcement of a plea agreement that provided for the release and liberty of the defendant between entry of plea and sentencing but permitted an upward departure sentence if the defendant failed to appear for sentencing).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      .It is noteworthy that Mr. Neeld has previously had success in this court challenging an earlier judgment for felony petit theft on the ground that the trial court did not provide an adequate Faretta hearing. Neeld v. State, 729 So.2d 961 (Fla. 2d DCA 1999).

      . Given the complexity of these agreements, it may be useful to incorporate them into, a written plea agreement. By way of example, the written plea agreement currently used in Seminole County contains the following language at the end of the agreement:
      If I am not in custody, I acknowledge that part of the plea agreement in this case includes my continued release pending sentencing on bond, pretrial release or release on recognizance. I understand that this portion of the plea agreement is conditioned upon the following requirements:
      (1) If a presentence investigation has been ordered, I must appear at the Department of Corrections office as directed by the court and schedule a presentence investigation not later than the first business day following the entry of my plea. (2) I must obey the order of the court requiring me to undergo drug or alcohol screening or for other evaluation if such an order has been made in my case.
      (3) I must appear on time for all appointments with the assigned probation officer and not be under the influence of any illegal drugs or alcohol.
      (4) I must appear in court on time for sentencing and not be under the influence of any illegal drugs or alcohol.
      I realize that this agreement will be provisionally accepted upon entry of my plea and is subject to being accepted or rejected by the Judge at any time prior to the sentence being imposed, and if it is rejected for any reason other than for a breach of this agreement, I may withdraw my plea and go to trial.
      I acknowledge receipt of a copy of the notice for my sentencing date. I understand and agree that if I fail to comply with any of the conditions set forth above I will have breached my plea agreement. In that event, I will not be allowed to withdraw my plea and the Judge may sentence me to any sentence authorized by law for the offense(s) to which I have pled.

      . Notably, this case does not involve a plea agreement to stay out of "trouble" or avoid "arrest.” Thus, we have no occasion to determine whether such an agreement is enforceable and under what circumstances. "Trouble” might be a rather ambiguous standard. "Arrest” is an action by a police officer based on that officer's evaluation of probable cause, not a willful action of the defendant.

      . The Florida Supreme Court held this statute constitutional in Parker v. State, 843 So.2d 871 (Fla.2003).


text:
    Gerald TOBIN, Appellant, v. Jonathan E. BURSCH, Appellee.
    No. 3D02-3294.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.

      Howard Brodsky, Miami, for appellant.
    Jonathan E. Bursch, in proper person.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

The defendant, Gerald Tobin (“Tobin”), appeals the denial of his motion for attorney’s fees pursuant to subsection 57.105(1), Florida Statutes (2002). We reverse and remand.

The plaintiffs, Jonathan E. Bursch, Raymond Bursch, and Deborah Bursch, filed a legal malpractice action against Tobin. Although Tobin’s appeal proceeded and was resolved in Tobin’s favor as to Raymond and Deborah Bursch, this Court granted Jonathan E. Bursch’s motion to stay the appeal as to him. We now issue this opinion regarding Tobin’s claim against Jonathan E. Bursch.

The plaintiffs alleged that Tobin represented them in a real estate transaction in which they purchased a five-acre parcel which was landlocked. They further alleged that they did not discover that the parcel was landlocked until they attempted to sell the property and that, if they had known that the parcel was landlocked, they would not have purchased it.

After the plaintiffs filed a voluntary dismissal, Tobin filed a motion for entitlement of attorney’s fees pursuant to subsection 57.105(1), seeking fees against the plaintiffs and plaintiffs’ counsel. Tobin presented the affidavit of an attorney who had represented the plaintiffs in this real estate transaction until being discharged by the plaintiffs. The attorney averred that in April 1989, Raymond Bursch contacted and hired a land surveyor to survey the property. After the survey was performed, Raymond gave the attorney a copy of the survey and correspondence received from the surveyor. Upon reviewing the survey and correspondence, the attorney immediately notified Raymond that the property was landlocked. The surveyor also filed an affidavit averring that there is no doubt that Raymond knew that the property was landlocked.

Following a hearing, the trial court entered an order denying Tobin’s motion for attorney’s fees. Tobin appealed the trial court’s order denying his motion for attorney’s fees, and on March 30, 2005, this Court reversed and remanded as to Raymond Bursch and Deborah Bursch.

Based on the affidavits of the plaintiffs’ previous attorney and of the surveyor who surveyed the parcel, the plaintiffs had no factual basis to support their allegations against Tobin. The affidavits state under oath that the plaintiffs purchased the five-acre parcel knowing that it was landlocked. Additionally, we note that in the pro se answer brief filed by Raymond and Deborah Bursch in the companion appeal, they confirmed that the plaintiffs knew that the property was landlocked.

Accordingly, as in the appeal against Raymond Bursch and Deborah Bursch, we reverse the denial of the motion for attorney’s fees as to Jonathan E. Bursch and remand. Upon remand, the trial court is directed to hold an evidentia-ry hearing to determine whether Jonathan E. Bursch’s attorney “acted in good faith, based on the representations of his or her client as to the existence of those material facts.” § 57.105(1), Fla. Stat. (2002). If the trial court determines that his attorney acted in good faith, fees are to be assessed only against Jonathan E. Bursch.

Reversed and remanded.

      . Subsection 57.105(1) provides as follows:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.
      However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

      . Raymond and Deborah Bursch were granted a stay regarding their pending motion for rehearing, based upon their request to carry the motion with Jonathan E. Bursch's appeal. Because we have now ruled on Tobin's appeal against Jonathan E. Bursch, we have ruled on Raymond and Deborah Bursch’s motion for rehearing, denying same.


author: SILBERMAN, Judge.

text:
    Dixie Lynn MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3996.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

In this Anders appeal, Dixie Lynn Murphy challenges her convictions and sentences resulting from charges for two counts of DUI manslaughter. After a thorough review of the record, we have found no harmful, reversible error. However, we remand for correction of a scrivener’s error in the judgment. On count two, the judgment reflects a conviction for homicide negligent manslaughter with a vehicle-DUI causing death to any human, rather than for DUI manslaughter. It is clear that Murphy was charged with, entered a plea to, and was sentenced for two counts of DUI manslaughter. In fact, with respect to both counts the judgment cites to the DUI manslaughter statute, section 316.193(3)(c)(3)(A), Florida Statutes (2004).

Thus, we affirm the convictions and sentences, but we remand for the correction of the written judgment to reflect the offense of DUI manslaughter for count two. See Green v. State, 956 So.2d 1278 (Fla. 2d DCA 2007) (remanding for correction of scrivener’s error in written judgment in an Anders appeal).

Affirmed and remanded with instructions.

NORTHCUTT, C.J., and YILLANTI, J., Concur.

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


author: SALCINES, Judge.

text:
    Vincent BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5446.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

We affirm Vincent Brunson’s withheld adjudication entered after he was found guilty of possession of cocaine and the probationary sentence imposed thereon. In order to prevent confusion in any future proceedings, however, we note that-the probation order contains a scrivener’s error. The probation order incorrectly reflects that Brunson entered a plea. Brun-son was found guilty by a jury.

Affirmed.

ALTENBERND and STRINGER, JJ., Concur.


author: STEVENSON, J.

text:
    COVELLI FAMILY, L.P., a Florida Limited Partnership, d/b/a Panera Bread, Appellant, v. ABG5, L.L.C., a Florida corporation, as successor in interest to Three Avenues, L.L.C., a Florida corporation; and Continental Casualty Company, an insurance company, Appellees.
    No. 4D06-4298.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.

      James P. Waczewski and Paul S. Jones of Luks, Santaniello, Perez, Petrillo & Gold, Orlando, for appellant.
    Fred L. Kretschmer, Jr., of Brennan & Kretschmer, P.A., and Lisa D. Harpring, Vero Beach, for appellee ABG5, L.L.C.
   On Motion for Rehearing

STEVENSON, J.

We grant appellant’s Motion for Rehearing in part, withdraw our previous opinion, and issue the following in its place.

Tenant, Covelli Family, L.P., d/b/a Pan-era Bread, appeals the trial court’s final judgment in favor of landlord, ABG5, L.L.C. After the leased property was damaged by two hurricanes, ABG5 gave Panera notice of its intent to terminate under the “damage or destruction” section of the lease. Panera thereafter initiated this action to contest ABG5’s right to terminate. ABG5 counterclaimed for eviction. The trial court granted Panera a temporary injunction and, following a three-day bench trial, ruled that, although ABG5 had breached the relevant termination provision of the lease, ABG5 was justified in terminating because the breach was not material. The trial court awarded possession to ABG5 along with double rent damages. We affirm the trial court’s ruling that ABG5 had the right to terminate the lease, but we reverse the double rent award.

In September of 2004, hurricanes Frances and Jeanne caused extensive structural damage to the building that Panera was leasing from ABG5. In November of 2004, while it was assessing its damages for insurance purposes, ABG5 determined that, due to the expense of repairing the building and the extent of repairs needed, it preferred to demolish the building and reconfigure the property. ABG5 gave timely notice to Panera of its intent to terminate the lease pursuant to the “damage or destruction” section of the lease agreement. The applicable clause permits the landlord to terminate the lease within 120 days following a casualty if the leased building is so damaged or destroyed that it will require “the expenditure (as estimated by a reputable contractor or architect designated by Landlord in its sole and absolute discretion) of more than twenty percent (20%) of the full insurable value of such Building immediately prior to the casualty.”

Shortly after receiving the termination notice from ABG5, Panera filed a complaint for declaratory and injunctive relief and breach of contract against ABG5. Panera argued, inter alia, that ABG5 had failed to establish proof that the cost to repair the hurricane damage to the building exceeded 20% of the building’s insurable value. Finding that Panera had a substantial likelihood of success on the merits, the trial court issued a temporary injunction that prevented ABG5 from evicting Panera and permitted Panera to continue to operate and maintain possession of the premises for the duration of the suit on the condition that Panera post a bond of double rent. ABG5 filed a counterclaim for eviction and damages.

Panera argued at trial that ABG5 breached the lease agreement by failing to obtain an estimate from a “reputable contractor or architect” to substantiate its claim that the hurricane damage to the building exceeded 20% of its insured value within the 120-day notice period. ABG5 steadfastly maintained that it's principal and sole owner, Scott Parker, who was not a licensed contractor but had substantial expertise in property maintenance and renovation, constituted a reputable contractor in conformity with the terms of the lease.

After considering the testimony and evidence from both sides, the trial court found that the repair estimate prepared by Parker did not constitute an estimate prepared by a “reputable contractor” as contemplated by the lease and that ABG5 had breached the notice provision by failing to obtain a qualifying contractor’s estimate prior to exercising its termination right. By the time of trial though, both ABG5 and Panera had obtained estimates from independent experts. The trial court calculated that, even according to the figures most favorable to Panera, the repair costs exceeded 20% of the building’s insurable value and, therefore, ABG5’s failure to obtain an estimate by a .reputable contractor or architect prior to sending the notice of termination to Panera was a harmless or technical breach because Panera was not damaged as a result of that failure.

The trial court entered final judgment in favor of ABG5 and granted the eviction as well as double rent for the period beginning thirty days from ABG5’s notice letter, until the date that Panera vacated the premises following the trial court’s order. The trial court awarded the double rent “in accord with the lease agreement.”

We have carefully considered all of the arguments submitted by both parties and write to address two principal issues. First, Panera maintains that the trial court erred by concluding that ABG5’s breach of the notice provision constituted a technical, rather than, a material breach. Second, Panera maintains that the trial court erred by awarding double rent because Panera was in possession of the leased premises under a claim of right.

/

Whether trial court erred in holding ABG5 did not commit material breach

The interpretation of a lease agreement is a question of law and the applicable standard of review is de novo. Leisure Resorts, Inc. v. City of W. Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003). In an appeal from a bench trial, “ ‘the trial judges findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.’ ” Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA) (quoting Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005)), review denied, 973 So.2d 1123 (Fla.2007). The issue of whether an alleged breach is vital or material is reviewed as a question of fact. Moore v. Chodorow, 925 So.2d 457, 461 (Fla. 4th DCA 2006); Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So.2d 853, 858 (Fla. 4th DCA 1972) (citing 17A C.J.S. Contracts § 630, p. 1268). To constitute a vital or material breach, a party’s nonperformance must “go to the essence of the contract.” Id. at 857. A party’s “failure to perform some minor part of his contractual duty cannot be classified as a material or vital breach.” Id.

The trial court, after finding that ABG5’s delay in procuring an independent repair estimate constituted a breach of the notice provision of the lease, looked to see if the breach was material and concluded that it was a technical or immaterial breach. As the trial court reasoned, “the outcome would be the same. Even if they had had this same evidence at the time that they issued the notice, it would be the same as what [Panera’s] up against now.” Panera argues on appeal that the damages increased over time and that they would not have exceeded 20% of the building’s insurable value if they were estimated within the 120 days after the hurricanes. The trial court did not make that finding.

Based upon the trial court’s findings regarding the actual extent of the hurricane damage, we affirm the trial court’s determination that any breach by AJBG5 was merely technical and hold that the trial court’s finding was not clearly erroneous. The trial court reasonably concluded that the vital issue here was whether the building required repairs exceeding 20% of the cost of the building, and that ABG5’s failure to obtain an estimate from a contractor prior to sending the notice of termination did not go to the essence of the contract.

We reject Panera’s argument that the termination clause at issue contained a “condition precedent” that conditioned ABG5’s right to terminate upon its obtaining a damage estimate within the notice period. “As a general rule, conditions precedent are not favored, and courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication.” In re Estate of Boyar, 592 So.2d 341, 343 (Fla. 4th DCA 1992) (citing 17A Am.Jur.2d Contracts § 471 (1991)); see also Gunderson v. Sch. Dist. of Hillsborough County, 937 So.2d 777, 779 (Fla. 1st DCA 2006) (holding provisions of a contract will be considered conditions precedent or subsequent only where the express wording employs conditional language (citing In re Estate of Boyar)). Accordingly, “a mere stipulation or covenant in a contract will not be construed as a condition precedent, particularly where a forfeiture would result and where it appears a condition precedent, if desired, could have been provided for by express agreement.” In re Estate of Boyar, 592 So.2d at 344. In the case at bar, the lease termination provision at issue does not expressly state that obtaining a contractor’s estimate is a condition precedent to ABG5’s right to terminate. Under the circumstances presented, in the absence of express conditional language, this court will not construe this stipulation to be a condition precedent to ABG5’s express right to terminate pursuant to the lease agreement. We conclude that ABG5’s obligation to obtain a contractor’s estimate prior to termination of the lease was simply one of the many promises and covenants contained within the overall lease contract.

II

Whether trial court erred in holding ABG5 was entitled to double rent

We hold that the trial court erred in ordering Panera to pay double rent to ABG5 because we find that Panera had a well-founded claim of possession and was not a “holdover tenant” under the terms of the lease. See Greentree Amusement Arcade, Inc. v. Greenacres Dev. Corp., 401 So.2d 915, 917 (Fla. 4th DCA 1981) (holding that where tenant remained on premises under a bona fide claim of right, tenant was not a “holdover tenant”). As in Greentree, the validity of the termination remained a genuine and justiciable issue “[u]ntil such time as the respective rights and obligations of the parties were fully litigated.” Id. at 917. In this case, three sources of authority support Panera’s right to continued possession of the premises: the trial court’s temporary injunction, which prohibited ABG5 from evicting Pan-era from the premises; the trial court’s finding of breach on the part of ABG5, which confirmed the legitimacy of Panera’s challenge to the termination; and ABG5’s own delay in providing a repair estimate, which necessitated Panera’s challenge to the validity of the termination in court.

Accordingly, we affirm the trial court’s final judgment in favor of ABG5 and reverse the trial court’s award of double rent against Panera.

Affirmed in part; reversed in part.

STONE, J., and TRAWICK, DARYL EVAN, Associate Judge, concur.

      . Section 30.03 of the lease governs "holding over.” The section applies to a tenant that "hold[s] over in possession of the Demised Premises after the expiration of the Term, or earlier termination of this Lease, without the execution by Landlord and Tenant of a new lease agreement, or extension or renewal agreement.” If the tenant holds over, the landlord can choose to convert the lease to a month-to-month tenancy and charge double rent, or "pursue any remedy available at law or in equity, or available pursuant to the terms hereof, or otherwise available ... to obtain possession of the Demised Premises.” We need not address whether this provision was properly applied because we hold that Panera was not a "holdover tenant.”

      . We note that early in the litigation, ABG5’s attorneys promulgated the misconception that the bond was issued under section 83.06, Florida Statutes, rather than under Rule 1.610(b). In its motion for enforcement of bond conditions and motion for release of registry deposits, ABG5 incorrectly stated that "the court required that Panera Bread deposit with the Registry of the Court double rent for the premises in accord with [section] 83.06 of the Florida Statutes.” Section 83.06, Florida Statutes (2005), does not apply where, as here, the landlord attempted to terminate the lease early. The statutory right of the landlord to demand double rent adheres only where the “tenant refuses to give up possession of the premises at the end of the tenant’s lease.” § 83.06, Fla. Stat. (emphasis added).


text:
    Dominic CUIZIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4214.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed, but sentencing documents are corrected to show that the offense was of the second degree, not the first.

STONE, WARNER and FARMER, JJ„ concur.


author: HAZOURI, J.

text:
    Gwendolyn R. DENTON, Appellant, v. SILLATO PROPERTIES, INC., d/b/a S & S Projects, Appellee.
    No. 4D07-2863.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Bradley E. Lolus of Bradley E. Lolus, P.A., Lauderhill, for appellant.
    Karey L. Bosack of Doumar, Allsworth, Laystrom, Voigt, Waehs, Mac Iver & Adair, LLP, Fort Lauderdale, for appellee.
   HAZOURI, J.

Gwendolyn Denton appeals the trial court’s granting of Sillato Properties, Inc. d/b/a S & S Projects’, motion to enforce settlement and final judgment for damages and attorney’s fees. We affirm.

In June 2002, Denton entered into a contract for construction and purchase of a single family home with the original developer. The development property changed ownership over the years. The contract was subsequently modified and assigned to numerous developers until a final contract (the Contingent Modification and Assignment Agreement) was entered into with Sillato Properties in December 2004, for the completion of the home and its purchase by Denton.

In December 2006, with the house finally nearing completion, disputes arose between the parties concerning the terms of the final contract, conditions and features of the house, and Denton’s willingness to close. This prompted Sillato Properties to file a suit against Denton alleging a breach of contract and seeking a declaratory judgment regarding the terms and obligations of the final contract. Thereafter, Denton filed a separate action against Sillato Properties alleging breach of contract and seeking specific performance of the final contract. These two lawsuits were consolidated and the parties were ordered to mediation. Following mediation, a comprehensive settlement agreement was reached which called for the parties to close on the subject residence within thirty days of the signing of the settlement agreement.

Denton failed to close at the appointed time, contending that Sillato Properties failed to timely complete certain requirements of the mediation agreement and therefore she was relieved from proceeding to the closing. At the time of closing, Sillato Properties had completed all of the requirements of the mediation agreement. The trial court found that the breaches alleged by Denton were not material and were cured within the thirty-day time period for closing. Therefore, Denton was in default and Sillato Properties was entitled to enforce the settlement. We agree that the alleged breaches asserted by Denton were not material and had been completed prior to the date of closing. We therefore affirm.

Affirmed.

KLEIN and DAMOORGIAN, JJ., concur.