author: HAZOURI, J.

text:
    Elena WHITBY a/k/a Jennifer Ross, James Crystal Licenses, LLC, James Crystal Holdings, Inc., and James Crystal Enterprises, LLC, Appellants, v. INFINITY RADIO INC., Appellee.
    No. 4D05-3888.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied April 13, 2007.

      Robert G. Haile, Jr., of Haile, Shaw <& Pfaffenberger, P.A., North Palm Beach, for appellants James Crystal Licenses, LLC, James Crystal Holdings, Inc., and James Crystal Enterprises, LLC.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellant Elena Whitby a/k/a Jennifer Ross.
    Alan Rosenthal and Natalie J. Carlos of Adorno & Yoss, LLP, Miami, for appellee.
   HAZOURI, J.

James Crystal Licenses, LLC (“Licenses”), James Crystal Holdings, Inc. (“Holdings”), James Crystal Enterprises, LLC (“Enterprises”), and Elena Whitby (“Whit-by”) (“Appellants”) appeal the trial court’s entry of partial summary judgment in favor of Infinity Radio Inc. (“Infinity”) on the enforceability of a non-compete covenant, the trial court’s grant of a directed verdict in Infinity’s favor on Appellants’ counterclaim for wrongful injunction damages, and a verdict awarding Infinity compensatory and punitive damages. Infinity cross-appeals the trial court’s denial of its request for prejudgment interest on its damages award for breach of contract against Whitby and the trial court’s granting of Appellants’ motion to strike the punitive damages claim against Holdings and Enterprises. We reverse and remand for a new trial.

Whitby, who is known on-air as “Jennifer Ross,” was employed as a radio personality by WRMF-FM 97.9 (“WRMF”), in West Palm Beach, for fifteen years, beginning in 1980. On May 19, 1995, Whitby entered into an employment agreement with OmniAmerica Group (“1995 Agreement”), the owner of WEAT-FM 104.3 (“WEAT”). The 1995 Agreement provided for a five-year term and gave WEAT the right to two options to renew for five years each, with a right of first refusal provision. The 1995 Agreement also contained a non-compete covenant, which prohibited Whit-by from appearing on radio or television and from working for any competing business within 125 miles of WEAT, for 12 months after leaving WEAT. Further, the 1995 Agreement contained an exclusivity provision, preventing Whitby from discussing or entering into any agreement with any other entity concerning her present or future services during her employment with WEAT.

Whitby started broadcasting at WEAT on September 25, 1995. OmniAmerica sold WEAT to Chancellor Broadcasting, which in turn sold the station to American Radio Systems in 1996. American Radio then merged with CBS Radio in 1998, which has since changed its name to Infinity-

In February 1999, Whitby and Infinity signed an “Amendment to Letter Agreement” (“1999 Amendment”), which gave Whitby a pay increase, but contained language providing that the 1995 Agreement remained in full force and effect and was ratified and confirmed.

The 1995 Agreement was set to expire on September 25, 2000, but in January 2000, Lee K. Strasser, Vice President/General Manager of WEAT, sent a certified letter to Whitby notifying her that Infinity was exercising its option to renew the 1995 Agreement, as amended by the 1999 Amendment, for an additional five-year term. Whitby and Infinity engaged in several months of contract negotiations, which did not result in a new agreement.

In August 2000, Russ Morley, an employee and on-air personality for Holdings, met with Whitby to discuss the possibility of her working as an on-air personality for WRMF, Whitby’s former station and a direct competitor of WEAT. James Hilli-ard, Sr., WRMF’s president and owner, asked Morley to meet with Whitby and discuss her potential employment with WRMF. In September 2000, Tim Reever, Vice President of Sales of James Crystal Radio Group, sent a letter to Whitby’s attorney outlining prospective terms for Whitby’s employment with WRMF.

On September 21, 2000, Holdings executed a three-year employment agreement with Whitby, in which she agreed to broadcast the WRMF morning show. On September 25, 2000, when the 1995 Agreement terminated, Whitby ceased her employment with WEAT. Later that day, she began broadcasting on WRMF. Whitby never advised Strasser of the negotiations or employment agreement with WRMF.

In September 2000, Infinity sued Whit-by and Licenses seeking injunctive relief, and simultaneously filed an Emergency Motion for Temporary Injunction. At a hearing, the trial court denied the temporary injunction, finding that Infinity failed to establish that it was an assignee or direct successor to OmniAmerica, that the 1999 Amendment executed by Infinity and Whitby failed to expressly incorporate the 1995 Agreement, and that Infinity failed to carry its burden of substantial likelihood of success on the merits as to the enforceability of the non-compete covenant. The trial court found further that the non-compete covenant did not expressly authorize enforcement by OmniAmerica’s assignee or successor, as required by section 542.335(l)(f)2., Florida Statutes, and the 1999 Amendment between Infinity and Whitby contained no restrictive covenant.

In November 2000, Infinity amended its complaint to add a count for breach of contract damages against Whitby (Count I) and a count against Licenses for tortious interference with the contract between Whitby and Infinity (Count II). The claim for injunctive relief remained as Count III. Infinity later amended its complaint to add a claim for punitive damages against Licenses. Infinity also later amended its complaint to join Holdings and Enterprises as defendants.

Infinity appealed the order denying its Emergency Motion for Temporary Injunction to this court. See Infinity Radio Inc. v. Whitby, 780 So.2d 248 (Fla. 4th DCA), rev. denied, 796 So.2d 539 (Fla.2001). This court reversed the trial court, reasoning that:

The 1999 “amendment” was not an assignment, but rather, a brand new agreement between Whitby and Infinity that incorporated all provisions of the 1995 agreement by reference. Therefore, and notwithstanding the provisions of section 542.335(l)(f)(2), Infinity, as party to the new agreement, was enti-tied to enforce the noncompete clause against Whitby.

Id. at 250.

Infinity moved the trial court to issue a temporary injunction pursuant to this court’s mandate. In response, Whitby and Licenses filed an emergency motion to stay entry of the injunction pending clarification of the scope of the injunction. After a hearing, the trial court determined that this court’s decision “by implication necessarily decided that the party seeking enforcement had established prima facie, that the specific non-compete covenant contained in the 1995 Agreement is reasonably necessary to protect the legitimate business interest or interests of the Plaintiff.” The trial court went on to conclude that: “However, the Defendant did not have the opportunity, either in the lower court before appeal or as part of the appeal, to establish that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect Plaintiffs established legitimate business interest or interests.”

The trial court entered a temporary injunction in the form originally contained in the 1995 non-compete covenant, but “without prejudice to consider properly raised issues concerning the reasonable scope of the injunction during the course of this litigation.” The injunction expired in twelve months, as contractually agreed to by the parties. The temporary injunction was extended to Licenses by order dated May 15, 2001.

Once the injunction was entered, seven months after she began broadcasting at WRMF, Whitby remained off the air for one year. However, she appeared at a promotional event, sponsored in part by WRMF, the day after the injunction. Infinity sought to have her held in contempt for violating the injunction. After several hearings, the trial court found Whitby guilty of indirect civil contempt because she participated in WRMF’s promotional event, and because she continued to receive regular, periodic payments from WRMF. Whitby was ordered to pay a $100,000 fine to Infinity, but the fine was suspended on the condition that she commit no further violations.

Infinity moved to liquidate the $100,000 sanction against Whitby, alleging that payments she received from WRMF during the expired injunction period, which were characterized as a loan, nonetheless violated the injunction. Hearings were held before a successor judge, who acknowledged that the previous judge had specifically declined to hold that a loan would violate the injunction until an evidentiary hearing could be held and the issue fully briefed. The successor judge acknowledged also that the injunction had expired, but ordered Whitby to pay the $100,000. The order directed that the fine be paid to the court registry, rather than Infinity.

In September 2003, Appellants filed a joint amended answer and affirmative defenses to Infinity’s third amended complaint, including a counterclaim against Infinity. Their common affirmative defenses included a defense that Infinity was barred from seeking damages because it had elected its remedy in obtaining an injunction against Whitby; that Infinity could not recover damages for the one-year period in which Whitby was enjoined, since any alleged damages would have been remedied by the injunction; and that the option clause in the employment agreement. was unenforceable for lack of a material term. Whitby also pled several separate affirmative defenses, including that the restrictive covenant was (1) unreasonable as to area, duration, and scope, and (2) an illegal restraint of trade. In Count III of Appellants’ counterclaim, they sought damages for wrongful injunction.

In September 2004, Infinity filed a motion for partial summary judgment and motion to strike Appellants’ affirmative defenses relating to the enforcement of the non-compete covenant and temporary injunction. After a hearing on the motions on December 20, 2004, the court entered several orders on January 27, 2005. The trial court ruled that Infinity can seek both injunctive relief and damages. The trial court ruled further that the 1999 Amendment combined with the 1995 Agreement to form a new, legally enforceable non-compete provision, citing the law of the case as the basis for its ruling. Appellants requested reconsideration and clarification of the trial court’s ruling that the non-compete covenant was valid and enforceable as written. The trial court ruled that:

Notwithstanding whether the decisions rendered by the Fourth District Court of Appeal constitute “law of the ease” on the enforceability of the covenant not to compete in the 1995 Letter Agreement, as incorporated by the 1999 Amendment, based upon the evidence that Defendants presented to the Court and have presented in the past 4 1/2 years over multiple hearings, the Court finds that the covenant not to compete is enforceable by Infinity and is not overly broad in geographic area, scope or duration.

A jury trial was held from March 28, 2005 through April 8, 2005. At the end of Appellants’ case, Infinity moved for a directed verdict on Count III of the counterclaim, which sought damages for wrongful issuance of the temporary injunction. The trial court granted this motion, striking Appellants’ counterclaim for wrongful injunction.

The jury found that Whitby breached her contract, and as such, was liable to Infinity for $1 million in compensatory damages. The jury found further that Licenses, Holdings, and Enterprises tor-tiously interfered with the Whitby-Infinity contract, and awarded Infinity $1 million from each of the three companies. Finally, the jury awarded $13.2 million in punitive damages against Licenses.

Appellants filed a motion for remittitur and a motion for judgment notwithstanding the verdict, or alternative motion for new trial. After a hearing, the trial court denied Appellants’ motions but remitted the total compensatory damages to $2.3 million, to be divided among Appellants pro rata ($575,000 each). The trial court did not disturb the punitive damages award. Appellants objected to the remitti-tur.

The trial court entered final judgment on September 2, 2005, against each Appellant in the amount of $575,000, severally, for a total of $2.3 million in compensatory damages. The judgment also assessed punitive damages of $13.2 million against Licenses.

Infinity’s Motion for Partial Summary Judgment on Enforceability of Non-Compete Covenant

Appellants’ first argument on appeal is that the trial court erred in granting Infinity’s motion for partial summary judgment on the enforceability of the non-compete covenant. We agree.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)). The standard of review of an order granting summary judgment is de novo. Aberdeen, 760 So.2d at 130.

The trial court asserted two alternative bases for granting summary judgment in favor of Infinity on this issue: (1) the law of the case doctrine, and (2) the non-compete covenant was not unreasonable or overly broad in geographic area, scope, and duration. At the hearing held to reconsider its previous ruling, the trial court noted: “As far as the clarification is concerned, if, in fact, the appellate courts find that there wasn’t law of the case, I’m ruling based upon the evidence that has been presented to me over multiple hearings that the covenant not to compete is an enforceable clause within the agreement.” Later, over Appellants’ objection, the trial court instructed the jury that as a matter of law, the non-compete provision was valid and enforceable by Infinity against Whitby.

Appellants correctly argue that the law of the case doctrine does not bar the trial court’s consideration of the enforceability of the non-compete covenant, as a result of this court’s decision in Infinity. Appellants rely on Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001) and Kozich v. DeBrino, 837 So.2d 1041 (Fla. 4th DCA 2002).

In Juliano, the Florida Supreme Court recognized that the law of the case doctrine is “ ‘limited to rulings on questions of law actually presented and considered on a former appeal.’ ” 801 So.2d at 106 (citing U.S. Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla.1983)) (emphasis in original). The Juliano court further advised that “a lower court is not precluded from passing on issues that ‘have not necessarily been determined and become law of the case.’ ” 801 So.2d at 106 (citing Greene v. Massey, 384 So.2d 24, 27 (Fla. 1980)). In Infinity, this court held only that the trial court misinterpreted the law in denying Infinity’s motion for temporary injunction on the basis that Infinity could not enforce the non-compete covenant because it was not a party to the original agreement. 780 So.2d at 250. This court did not consider whether the non-compete covenant was reasonably necessary to protect a legitimate business interest, or whether the covenant was overly broad in scope. Moreover, on remand, the initial trial judge in this case, Judge Brown, entered the injunction “without prejudice to consider properly raised issues concerning the reasonable scope of the injunction during the course of this litigation.” Thus, Juliano dictates that the law of the case doctrine did not preclude the trial court from reaching these issues when ruling on Infinity’s motion for partial summary judgment on the enforceability of the non-compete covenant.

Further, in Kozich, this court held:

A trial court’s findings on a preliminary injunction do not constitute “law of the case” on final hearing. See Lorie v. C.L.N., 757 So.2d 610, 611 (Fla. 3d DCA 2000). The findings of fact and conclusions of law made at a preliminary injunction hearing are not binding on the court on final hearing, where the parties present their full case to the court. See Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1982). “[T]he affirmance of a temporary injunction on appeal determines only that a proper showing was made at the time the injunction was applied for.” El Segundo Original Rey de la Pizza Cu-bana, Inc. v. Rey Pizza Corp., 682 So.2d 697, 697 (Fla. 3d DCA 1996) (citations omitted).

Kozich, 837 So.2d at 1043-44. Thus, although this court reversed the trial court’s denial of Infinity’s motion for a temporary injunction, our ruling on the non-final appeal has no preclusive effect and is not the law of the case.

Accordingly, the trial court erred in finding that the law of the case doctrine barred its consideration of whether the non-compete covenant was reasonably necessary to protect Infinity’s legitimate business interest, or whether the covenant was unreasonable in scope.

We consider next whether the trial court erred in finding alternatively that “the covenant not to compete is enforceable by Infinity and is not overly broad in geographic area, scope or duration.” We agree with Appellants that the trial court erred in holding the non-compete covenant enforceable on summary judgment without allowing Appellants to present evidence as to the covenant’s reasonableness and scope.

Section 542.335(1), Florida Statutes (1999), permits enforcement of contracts that restrict or prohibit competition, but only “so long as such contracts are reasonable in time, area, and line of business ....” The statute also requires that the party seeking enforcement “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(l)(b), Fla. Stat. (1999). It provides further that: “Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.” Id. Section 542.335(1)(c) provides:

A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.

§ 542.335(l)(c), Fla. Stat. (1999).

Whether a non-compete covenant is reasonable or overly broad is a question of fact for the trial court. See Orkin Exterminating Co. v. Girardeau, 301 So.2d 38, 40 (Fla. 1st DCA 1974), cert. denied, 317 So.2d 75 (Fla.1975) (recognizing that “[w]hat is a reasonable area is a factual matter to be determined in each [non-compete] case”); Sarasota Beverage Co. v. Johnson, 551 So.2d 503, 507 (Fla. 2d DCA 1989) (citing Dorminy v. Frank B. Hall Co., Inc., 464 So.2d 154 (Fla. 5th DCA 1985)) (concluding that “[t]he facts of each [non-compete] case determine whether the area and time restrictions are reasonable”). “[A] trial court may not resolve disputed issues of fact when considering a motion for summary judgment.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). Moreover, most of the evidence in this case concerning Infinity’s legitimate business interests and the broadness of the non-compete covenant is by way of testimony that necessarily gives rise to questions of credibility, determinations of which are inappropriate on summary judgment. See Kuczkir v. Martell, 480 So.2d 700, 701 (Fla. 4th DCA 1985).

Therefore, the trial court erred in granting Infinity’s motion for partial summary judgment and concluding that the non-compete covenant was enforceable, without conducting an evidentiary hearing to hear testimony and receive evidence, particularly in light of Judge Brown’s earlier assurance that Whitby would be allowed to present such evidence during the course of the litigation. As such, we find that a new trial is warranted.

We also reverse the trial court’s decision to grant Infinity’s motion to direct a verdict on Appellants’ counterclaim for wrongful injunction damages because if the trial court determines at the evidentia-ry hearing that the non-compete clause was unenforceable, Appellants should be able to present evidence at trial that the injunction was wrongfully entered.

Compensatory Damages

Because we are remanding this case for a new trial, we find it necessary to provide guidance to the trial court on Infinity’s claim for compensatory damages.

Prior to trial, Appellants filed a motion in limine to “prohibit the introduction at trial of evidence or testimony concerning the alleged causation and speculative nature of Infinity’s damages.... ” The motion alleged that Infinity’s claim of lost profits was highly speculative and not directly caused by Whitby’s departure from WEAT to join WRMF. The motion asserted also that the methodology of Dr. Mark Fratrick, Infinity’s damages expert, was questionable. Further, the motion argued that Infinity was attempting to obtain a double recovery by asserting a claim for both lost profits and lost value.

After a hearing on March 3, 2005, the trial court entered an order on the motion in limine. The trial court granted the motion with respect to the lost value issue only, concluding:

Based upon Infinity’s stipulation that it seeks to recover only lost profits and not diminution of value of WEAT, and the Court’s determination that lost value is not a relevant issue in this case, Infinity may not present evidence of diminution in value at trial unless it first proffers such evidence to the Court for relevancy purposes.

Infinity alleged and attempted to prove at trial that Whitby breached her contract with Infinity, and that Licenses, Holdings, and Enterprises tortiously interfered with this contract, causing damages in the form of lost profits. Appellants argue that Infinity’s evidence of damages was speculative and conjectural in nature. We agree.

In Forest’s Mens Shop v. Schmidt, 536 So.2d 334 (Fla. 4th DCA 1988), this court recognized:

When a party seeks lost future profits based upon a breach of contract or other wrong, the party must prove that the lost profits were a direct result of the defendant’s actions and that the amount of the lost profits can be established with reasonable certainty. Difficulty in proving damages or uncertainty as to the amount will not prevent recovery as long as it is clear that substantial (rather than merely nominal) damages were suffei'ed as a result of the wrong, and the competent evidence is sufficient to satisfy the mind of a prudent, impartial person as to the amount. However, an award of lost profits cannot be based on mere speculation or conjecture.

536 So.2d at 336 (citations omitted). Infinity did not satisfy its burden to show that its lost profits were a direct result of Appellants’ actions, or that the amount of those lost profits could be determined with reasonable certainty.

Dr. Fratrick assumed that all variables that impacted the revenues at WEAT affected each of the day parts equally and that the only reason the morning drive-time day part decreased, while the other day parts increased, was because Whitby moved to WRMF. However, this assumption is speculative and unsupported. Dr. Fratrick failed to consider numerous external variables, which by their very nature affected only the morning day part, and rendered Dr. Fratrick’s conclusion that WEAT’s lost profits were a direct result of Whitby’s departure questionable at best. Examples of the variables Fra-trick did not consider are: (1) the fact that Whitby’s longtime co-host, Kevin Kitchens, died suddenly on February 3, 1999, (2) the competence and performance of Joe Mar-telle, Whitby’s replacement, (3) the introduction of a new morning team at WOLL (another morning show competitor), (4) whether advertisers decreased their expenditures as a result of Whitby going to WRMF and transferred their advertising to WRMF, and (5) ranking reports showing that both WRMF and WEAT declined in audience share after Whitby left WEAT and joined WRMF, and that another station, WKGR, won the number one rated position in the market by 2003 and 2004. Notably, Mark Hubbard, Appellants’ damages expert, testified that there are over seventy factors which affect radio station revenues, and that it is not possible in this case to merely isolate one as the cause of a radio station’s alleged revenue decline. Thus, without considering the impact of these external variables on Infinity’s profits during the period in question, Dr. Fra-trick’s testimony failed to establish that the lost profits were the direct result of Whitby’s actions in leaving the station.

The speculative nature of Dr. Fratrick’s testimony is compounded further by his calculation of damages for a period of five years, i.e., from September 25, 2000 through September 24, 2005, a date about five months after trial. During the proffer, Dr. Fratrick was unable to articulate any justification for his use of the five-year period. The decision to calculate lost profits for five years was arbitrary:

COUNSEL: How did you get to five years?
DR. FRATRICK: There was a time period of a contract and the — during the four plus years I had examined it that had already occurred, I continued to see a decrease in the revenue generated in the morning drive-time day part relative to the other day parts and continues to this day as well as looking at the ratings performance of the morning day part.
COUNSEL: Based on your analysis, would the damage continue beyond five years?
DR. FRATRICK: It could even continue past five years.
COUNSEL: So the fact that you looked at a five-year period didn’t control whether or not it was just five years’ worth of damages?
DR. FRATRICK: No. It could be even longer.
COUNSEL: How did you get to damages for that entire five-year period? DR. FRATRICK: I examined the relative performance of the morning drive-time day part, compared that and see what it would have performed if it performed as well as the other day parts at the station.
COUNSEL: Have you looked at actual data?
DR. FRATRICK: I looked at actual data, yes.
COUNSEL: That confirms your conclusions?
DR. FRATRICK: Yes, it does.
COUNSEL: And in the course of your business, do you forecast the performance of — financial performance of radio stations?
DR. FRATRICK: It’s a key part of my business, yes.
COURT: Mr. Arrastia, you’re still not understanding my issue. My issue is the five-year period. Why is it he gets to say there’s a five-year contract? That’s the legal argument from you, not from the witness. Why does he get to say there was a five-year contract?
COUNSEL: Your Honor, I wouldn’t proffer that he would say there’s a five-year contract.
COURT: That’s what he just said.
COUNSEL: So does the fact — does your analysis rely on the fact that there was a five-year contract?
DR. FRATRICK: No. It relies on the relative point of impact of the two different groups of day parts over the time period I looked at. It could have been six, seven years. It could have been ten years.
COUNSEL: But you just stopped at five?
DR. FRATRICK: Yes.

Thus, the speculative and conjectural nature of Fratrick’s methodology, combined with the numerous critical variables he failed to consider, renders it difficult for the trier of fact to determine (1) that the lost profits over a period of five years were the direct result of the breach and tortious interference, and (2) that the lost profits can be ascertained with any reasonable certainty. See Forest’s Mens Shop, 536 So.2d at 336. At least two Florida cases have rejected lost profits calculations that failed to consider other factors which might have influenced the drop in earnings. See Rooney v. Skeet’r Beat’r of Southwest Fla., Inc., 898 So.2d 968, 969 (Fla. 2d DCA 2005); A.R. Holland, Inc. v. Wendco Corp., 884 So.2d 1006, 1008 (Fla. 1st DCA 2004). Moreover, “ ‘no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.’ ” M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 932 So.2d 459, 464 (Fla. 4th DCA 2006) (quoting Div. of Admin, v. Samter, 393 So.2d 1142, 1145 (Fla. 3rd DCA 1981)). Appellants’ objection to Dr. Fratrick’s opinion on loss of profits should have been sustained. Therefore, the trial court erred in permitting the jury to consider Dr. Fratrick’s testimony in calculating Infinity’s claim for compensatory damages.

Although we find that Dr. Fratrick’s testimony was speculative and conjectural on the issue of lost profits, there was substantial competent evidence to support some compensatory damages. Appellants argue that Infinity elected its remedy by obtaining a temporary injunction and is, therefore, precluded from claiming any compensatory damages. Nonetheless, this argument ignores the fact that there was evidence of a seven-month period before the injunction was entered during which Whitby was on-air for WRMF and WRMF aggressively advertised her move to its station, including, inter alia, holding a press conference the day Whitby left WEAT and distributing flyers to the public announcing the news. In addition, there was testimony that WEAT lost several advertising accounts totaling approximately $400,000 to $600,000 as a result of Whit-by’s departure. Therefore, on remand, Infinity is not precluded from once again attempting to prove compensatory damages. However, there must be substantial competent evidence directly linking those damages to Appellants’ activities during the seven months between Whitby’s departure from WEAT and the trial court’s entry of the temporary injunction.

Appellants argue next that the trial court erred in entering the judgment against them in the amount of $575,000 each, for a total compensatory damages award of 2.3 million dollars. We agree.

Appellants rely on Designs for Vision, Inc. v. Amedas, Inc., 632 So.2d 614 (Fla. 2d DCA), rev. denied, 639 So.2d 975 (Fla. 1994). There, the Second District concluded that “When a party breaches a contract ... and the breach results from the tor-tious interference of another party ... the proper procedure is to make the two jointly and severally liable for the damages resulting from the breach.” Id. at 615 (citations omitted). The court reached this conclusion because “[n]o evidence was admitted or argued regarding independent damages arising from the tortious interference claim....” Id. at 614-15.

Infinity argues that it presented substantial evidence to show that Licenses, Enterprises, and Holdings “did more than just induce Whitby to breach her employment agreement.” Infinity claims the evidence showed that they capitalized on Whitby’s defection and set out to harm WEAT’s ratings in a malicious manner by engaging in an aggressive advertising campaign to announce Whitby’s move. However, Infinity never presented evidence to establish that it sustained damages from the alleged tortious interference independent from the damages it sustained as a result of the alleged breach of the non-compete covenant.

Infinity also claims that the jury found that the tortious conduct of Licenses, Holdings, and Enterprises directly caused Infinity to lose $3 million in lost profits, while Whitby’s conduct caused $1 million in lost profits. The verdict form asked the jury to indicate the amount of damages “suffered by Infinity as a result of Whit-by’s breach of the Employment Agreement,” which the jury found to be $1 million. The question concerning Licenses, Enterprises, and Holdings asked: “What is the amount of compensatory damages, if any, which you assess against the following Defendants as a result of the tortious interference?” The jury listed $1 million each for Licenses, Holdings, and Enterprises. However, Amedas instructs that only a judgment of $1 million, remitted to $575,000, entered against Appellants jointly and severally, would be appropriate absent evidence of independent damages to Infinity arising out of the alleged tortious interference. See 632 So.2d at 614-15.

Because we are reversing on the issue of liability and damages, we necessarily reverse the punitive damages award, but we do not reach the question of whether punitive damages were unwarranted and excessive. Similarly, we need not reach the issues on cross-appeal.

Reversed and Remanded.

KLEIN and MAY, JJ., concur.

      . The 1999 Amendment actually refers to a 1997 Agreement, but it appears to be referring to the 1995 Agreement. See Infinity Radio Inc. v. Whitby, 780 So.2d 248, 249 n. 1 (Fla. 4th. DCA 2001) (noting: "This reference to 1997 appears to be a typographical error, as the parties recognized that Whitby entered into only two agreements at WEAT-one in 1995, and another in 1999. Other provisions in the 1999 amendment support that the initial reference to 1997 was erroneous.”).

      . Section 542.335(l)(f)2., Florida Statutes (1999), provides:
      (f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided: ... 2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.

      . The trial court stayed enforcement, while Whitby appealed. This court affirmed that decision without opinion. See Whitby v. Infinity Radio, Inc., 907 So.2d 543 (Fla. 4th DCA 2005). On February 6, 2006, the trial court entered a final sanction order requiring Whitby to pay the $100,000 to Infinity instead of the court registry. Whitby appealed again to this court in Case No. 4D06-660, which is still pending.

      . This was one of ten motions for partial summary judgment filed by Infinity.

      . Appellants argue that the trial court erred in applying section 542.335, and not its predecessor, section 542.33, which was in effect when the 1995 Agreement was entered. However, this argument fails because this court held specifically in Infinity that the 1995 Agreement combined with the 1999 Amendment to form a new agreement. 780 So.2d at 250. Further, this court did not find error in the trial court’s application of section 542.335. Infinity, 780 So.2d at 249-50.

      . This was the remitted amount. Appellants objected to this ruling below.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John CHUBB, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5567.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Rehearing Denied March 23, 2007.
    John Chubb, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a notice of appeal pursuant to the “mailbox” rule on October 16, 2006, seeking review of an “Order Dismissing Petition for Habeas Corpus,” filed in the lower tribunal on June 8, 2006. However, because the appellant’s motion for clarification, which the trial court treated as a second motion for rehearing, was not an authorized motion, see Arleo v. Garcia, 695 So.2d 862 (Fla. 4th DCA 1997), it did not delay rendition of the order of dismissal. See Fla. R.App. P. 9.020(h). Consequently, the notice of appeal was not filed within 30 days of rendition of the order on appeal. For this reason, we dismiss this appeal for lack of jurisdiction without prejudice to the appellant’s right to seek relief in the trial court. See Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


author: COPE, C.J.

text:
    Sara MARTINEZ, Appellant, v. Gaetano GIACOBBE, Appellee.
    No. 3D04-583.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Lawrence M. Shoot, Miami, for appellant.

      Richard B. Rosenthal, Miami; Lynn H. Gelman, for appellee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   COPE, C.J.

Sara Martinez appeals a judgment against her for attorney’s fees in foreclosure proceedings. The main issue to be considered is whether the trial court had jurisdiction to award attorney’s fees for postjudgment work performed after the entry of the original foreclosure judgment. We conclude that the attorney’s fees were properly awarded as to postjudgment work performed in state court, but not for work performed in the bankruptcy court.

I.

This case involves mortgage foreclosure proceedings against Sara Martinez (owner) by Countrywide Home Loans, Inc. (first lender) and Gaetano Giacobbe (second lender). The trial court entered summary final judgments of foreclosure in favor of both lenders. The owner filed petitions in bankruptcy in 2002 and 2003. The second lender retained bankruptcy counsel, Lynn H. Gelman, to represent him in the bankruptcy court. The owner’s bankruptcy proceedings were dismissed. Thereafter the foreclosure proceedings resumed in the trial court. The second lender’s foreclosure counsel, Steven Silverman, expended additional time on the case. The trial court entered an amended final judgment of foreclosure. A foreclosure sale was conducted with respect to Mr. Giacobbe’s second mortgage only. A surplus was realized at the sale.

Within thirty days after entry of the amended judgment, the second lender filed a motion seeking attorney’s fees for the post-judgment work performed by Mr. Sil-verman in state court proceedings and for the post-judgment work performed by Ms. Gelman in the federal bankruptcy proceedings. The trial court awarded the post-judgment attorney’s fees, and Ms. Martinez has appealed.

II.

The owner argues that the claim for post-judgment attorney’s fees should have been denied because there was not an adequate reservation of jurisdiction in the original foreclosure judgment. That argument is not well taken.

The original final judgment of foreclosure awarded attorney’s fees of $1200 to the second lender. The foreclosure judgment went on to say, “This court retains jurisdiction to enter such further orders as may be proper.” After the owner’s bankruptcy proceedings were dismissed, the trial court entered an amended final judgment. It contained a reservation stating, “Jurisdiction of this action is retained to enter further orders as are proper including, without limitation, deficiency judgments.” Cf. Fla. R. Civ. P. Form 1.996 (standard form for Final Judgment of Foreclosure, stating “Jurisdiction of this action is retained to enter further orders that are proper including, without limitations, writs of possession and deficiency judgments.”).

Within thirty days after entry of the amended final judgment the second lender moved for attorney’s fees for legal work performed after the original judgment was entered.

The owner argues that the reservation of jurisdiction in the original foreclosure judgment had to include the words “attorney’s fees,” failing which post-judgment attorney’s fees could not be awarded. The owner is incorrect. The Florida Supreme Court rejected that argument in Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986):

[A] post-judgment motion for attorney’s fees raises a “collateral and independent claim” which the trial court has continuing jurisdiction to entertain within a reasonable time, notwithstanding that the litigation of the main claim may have been concluded with finality.

Id. at 1243. A specific reservation of jurisdiction mentioning attorney’s fees is not required. See id. at 1242; Jaye v. Royal Saxon, Inc., 900 So.2d 634, 635 (Fla. 4th DCA 2005); McAskill Publ’ns, Inc. v. Keno Bros. Jewelers, Inc., 647 So.2d 1012, 1013 n. 1 (Fla. 4th DCA 1994); Rob-Cor, Inc. v. Ines, 512 So.2d 320, 322 n. 2 (Fla. 3d DCA 1987). Subsequently Florida Rule 1.525 of Civil Procedure was adopted, which imposes a requirement that an attorney’s fee motion be filed within thirty days after judgment.

In this case the original foreclosure judgment contained a reservation of jurisdiction “to enter such further orders as may be proper.” After the owner’s bankruptcy proceedings were dismissed, the trial court (pursuant to the original reservation of jurisdiction) entered an amended final judgment recalculating the judgment amounts and rescheduling the sale. Within thirty days after entry of the amended final judgment, the second lender filed a motion for attorney’s fees, as allowed by Rule 1.525.

Insofar as the second lender sought attorney’s fees for work performed in state court, we conclude that the trial court had jurisdiction. The attorney’s fees for the work performed by Mr. Silverman were properly awarded.

The owner claims that the rule is otherwise and relies on this court’s decision in Patin v. Popino, 459 So.2d 435 (Fla. 3d DCA 1984). The owner’s reliance on that case is misplaced. The Florida Supreme Court’s decision in Finkelstein came after Patín and Finkelstein is controlling to the extent of any inconsistency.

III.

The owner’s argument is meritorious, however, regarding the award of attorney’s fees for the work Ms. Gelman performed on the second lender’s behalf in the bankruptcy court. This court has said that it is for the bankruptcy court to determine whether a litigant “was entitled to attorney fees incurred in the bankruptcy proceeding and, if so, what a reasonable fee should have been.” Florida Fed. Sav. & Loan Ass’n v. Sanchez, 553 So.2d 1254, 1255 (Fla. 3d DCA 1989). We therefore reverse that part of the attorney’s fee judgment which awarded attorney’s fees for the work performed in the bankruptcy court.

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

      . The trial court granted a postponement of the foreclosure sale with respect to the first lender.

      . Rule 1.525 stales:
      Any party seeking a judgment taxing costs, attorneys’ fees or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

      . The second lender argues that the owner's argument on the jurisdictional issue was not sufficiently preserved for appellate review. We are inclined to think the record is sufficient. Assuming arguendo it was not, it would be fundamental error if the trial court entered an attorney’s fee judgment without jurisdiction. See Baker v. Baker, 920 So.2d 689, 691 (Fla. 2d DCA 2006); 3 Fla. Jur.2d Appellate Review § 103 (2006).


author: WARNER, J. GUNTHER, J.,

text:
    Ronnie McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1286.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied April 13, 2007.
    Ronnie McGee, Sanderson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

This is an appeal of the trial court’s order summarily denying appellant’s motion for postconviction relief. We reverse and remand for an evidentiary hearing on his claim that his attorney was ineffective for failing to request an “afterthought” instruction with respect to his conviction for robbery.

Appellant was charged with first degree premeditated murder, robbery with a weapon, and grand theft of a vehicle, all charges arising from an altercation which culminated in appellant beating and stabbing the victim to death. The state specifically charged appellant with using force or violence to “knowingly take away car keys and/or a motor vehicle ... from the person [of the victim]” and with using a weapon in the course of the robbery. Thus, the charge was directed solely at the taking of the vehicle. According to appellant’s statement to police, the victim invited appellant to his apartment, and the two watched movies. The victim paid appellant to perform some sexual acts. When appellant got upset, a struggle ensued during which fatal injuries were inflicted on the victim. After the struggle, appellant left the apartment, taking the keys to the victim’s vehicle as he was leaving. The jury convicted appellant of second degree murder, robbery with a weapon, and grand theft of the vehicle.

Appellant filed a motion for postconviction relief raising several issues, only one of which merits consideration. He claims that his counsel was ineffective for failing to request an “afterthought” instruction in connection with the robbery. Under appellant’s version of events, the taking of the vehicle was an “afterthought.” We have held that failure to give an instruction that the taking was an afterthought after a murder and thus could not be robbery was reversible error. See Perkins v. State, 814 So.2d 1177 (Fla. 4th DCA 2002).

The state counters that since the only evidence of this defense was from appellant’s “self-serving” statement, he should not be entitled to postconviction relief. It cites to Bertolotti v. State, 534 So.2d 386, 387 (Fla.1988), where the defendant claimed his counsel was ineffective for failure to raise an intoxication defense. The court refused to grant relief because the only evidence of intoxication at trial was the defendant’s own statement. The court noted that the statement was not supported by any independent testimony or evidence and was specifically contradicted at trial. Therefore, without more, the trial court did not err in denying the motion.

The state also cites to Miller v. State, 503 So.2d 929 (Fla. 3d DCA 1987), where the court refused to reverse a conviction for failure to give a requested jury instruction on the defense of “withdrawal” from a planned robbery where the only evidence supporting the defendant’s withdrawal from the crime was the defendant’s statement. In that case, too, the court noted that there was an “overwhelming preponderance of evidence” to contradict the appellant’s statement. In fact, the court explained:

[Wjhen a defendant makes a self-serving statement in a police confession to prove his innocence of a crime based on withdrawal, but there is an overwhelming preponderance of evidence which contradicts that statement, an appellate court will not find reversible error in the denial of an instruction on the withdrawal defense. The actions of a defendant may speak louder than his words.

Id. at 931.

In both cases cited by the state, the defendant’s self-serving statement stood in contrast to substantial evidence contradicting the statement. Thus, in light of the evidence supporting the conviction, the court in Bertolotti refused to grant post-conviction relief, and the Miller court refused to reverse the conviction. Here, however, there was no evidence to support the charge of robbery other than the taking of the vehicle after the murder. That same evidence supports an “afterthought” instruction.

The dissent discusses at length the sordid history of the events leading up to the victim’s death. However, efforts to get money from the victim do not translate into evidence of an intent to take the vehicle by force. We simply disagree that the other evidence presented was at all contradictory to his defense of “afterthought” to the taking of the vehicle.

Factually, this case is identical to Perkins, although Perkins was an appeal from a conviction. In Perkins, we noted that the standard jury instruction on robbery did not adequately explain to the jury the theory of “afterthought.” Therefore, we reversed the conviction for a new trial. Similarly, in this case there does not appear to be any evidence to support the robbery charge.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show both ineffective assistance of counsel and a reasonable probability that the result would have been different had counsel not performed ineffectively. The Court wrote:

[T]he defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the advei'sary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052. In clarifying the meaning of “prejudice” and a “reliable” result, the Court further wrote:

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.

Id. at 695, 104 S.Ct. 2052. The appellant’s claim, which is not conclusively refuted on the record, provides a reasonable probability that absent the error in not giving the “afterthought” instruction there would be a reasonable doubt respecting appellant’s guilt of robbery.

As there is a sufficient showing of deficient performance on the part of counsel in failing to request such an instruction for the robbery conviction, an evidentiary hearing is required as the ground is not conclusively refuted by the record. This does not affect the conviction for second degree murder nor the conviction for grand theft, as the lack of the “afterthought” instruction would affect only the robbery conviction, and there was substantial independent evidence supporting each of the other charges.

We therefore reverse and remand for an evidentiary hearing on the “afterthought” issue. We affirm as to the remaining issues raised.

TAYLOR, J., concurs.

GUNTHER, J., dissents with opinion.

GUNTHER, J.,

dissenting.

I respectfully dissent.

The majority concludes that McGee was entitled to an “afterthought” jury instruction because “there was no evidence to support the charge of robbery other than the taking of the vehicle after the murder.” After considering the evidence in this case, I believe that McGee was not entitled to an afterthought jury instruction and that his trial counsel was not ineffective for failing to request such an instruction. Thus, I conclude that the denial of McGee’s motion for post-conviction relief as to robbery should be affirmed and not reversed and remanded for an evidentiary hearing.

An afterthought defense is intended to negate the element of a defendant’s intent to commit a robbery. In other words, “[i]f the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.” Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002). In this case, McGee, who did not testify at his trial, relies on his statement to law enforcement, which was admitted into evidence, to attempt to establish his entitlement to an afterthought jury instruction. He argues that he did not come to the victim’s house and leave the victim dead in order to rob the victim of his car keys (or any other personalty). Rather, in his statement to law enforcement, McGee explained that he took the car keys in order to effectuate his getaway from the scene because he was badly bleeding and needed to immediately care for his injuries. Beyond this single, self-serving statement made to law enforcement, there is no evidence in the record supporting McGee’s contention that he had no intent to rob the victim.

On the other hand, there is ample evidence in the record, contained elsewhere in McGee’s statement to law enforcement, that McGee was motivated by a need for money to feed his crack cocaine addiction, and would steal, perform sexual acts, and maybe even kill for this end. When the victim first encountered McGee on the street, he asked McGee if he would be willing to hang out and watch a movie. McGee indicated that he would, but that he needed some money and a ride first. McGee used the money the victim gave him to purchase crack cocaine and did not rendezvous with the victim as expected.

However, the victim drove around until he found McGee walking down the street. The victim was upset that McGee had made off with the money. McGee feared possible violence, so he offered to repay the victim in exchange for a ride. Instead, the men stopped and bought beer and cigarettes and drove to the victim’s apartment. The men settled in to watch a pornographic videotape in the victim’s bedroom. The victim asked McGee for sex, but McGee declined. The victim then offered McGee fifty dollars to dance nude, and McGee agreed. The men then fooled around for a while, after which McGee threatened to leave. The victim offered McGee thirty dollars to masturbate, and McGee again agreed. A few minutes later, McGee threatened to leave again. A violent struggle ensued, the victim was killed, and McGee picked up the victim’s car keys from the floor and drove off in his car.

McGee drove to a water spigot to wash off his bleeding hands. He then parked the car behind a building. The next day, after purchasing crack cocaine and having a friend drive him in another car to purchase bandages and alcohol, he pawned the victim’s car and used the proceeds to buy more crack cocaine.

Generally, “[t]he failure to give a requested jury instruction on a key theory of defense, where there is evidence to support the instruction, requires a new trial.” Perkins, 814 So.2d at 1179-1180. However, there is an exception to this general rule where the only evidence supporting a theory of defense, such as afterthought, is the self-serving statement of the defendant. Two cases cited by the State illustrate this exception to the rule requiring the giving of a requested jury instruction on a key theory of defense when the defendant relies only on a self-serving statement.

The first case is Bertolotti v. State, 534 So.2d 386 (Fla.1988). In Bertolotti, the Florida Supreme Court wrote:

At trial the only evidence of intoxication was a statement made by Bertolotti in his first confession to police that at the time of the murder he was “high” on a Quaalude he bought from a friend. The trial court correctly determined that such a “self-serving declaration” made during a confession, which was unsupported by independent testimony or evidence and was specifically contradicted at trial, was insufficient to warrant the giving of an intoxication instruction.

Id. at 387.

The second case is Miller v. State, 503 So.2d 929 (Fla. 3d DCA 1987). In Miller, the Third District wrote:

He made one self-serving statement in a police confession and relies on this to prove his innocence of the crime based on withdrawal. However, after the statement was allegedly made to the accomplice, the appellant’s acts belied withdrawal. He supplied the accomplice with the combination to the safe; he left the store knowing the accomplice was hiding in the store in a place where he would not be found; he knew the accomplice planned to knock the porter out; and he attempted to assist the accomplice, who was covered with blood, from outside the store. Under such circumstances, the evidence did not support his request for an instruction on “withdrawal.”

Id. at 930.

The majority contends that McGee’s case is unlike Bertolotti and Miller because his self-serving statement to law enforcement did not stand in contrast “to substantial evidence contradicting the statement.” However, Bertolotti stands for the proposition that a self-serving statement being both “unsupported by independent testimony or evidence and ... specifically contradicted at trial,” is insufficient to warrant the giving of an instruction on the defendant’s theory of defense. Here, it is unquestioned that McGee’s self-serving statement to law enforcement was “unsupported by independent testimony or evidence,” and therefore fails to meet the first requirement of Bertolotti necessary for a defendant to be entitled to an afterthought instruction.

Additionally, McGee’s self-serving statement was “specifically contradicted at trial.” This is so because the very statement to law enforcement that McGee relies on to create his entitlement to an afterthought instruction contains, in addition to other relevant evidence, the statement that he pawned the car and used the money to purchase crack cocaine. According to the plain language of Bertolotti, the self-serving statement need only be specifically contradicted by evidence at trial, which it was in this case. Despite the majority’s contention that the robbery charge was unsupported by any evidence other than the taking of the vehicle, contradicting evidence at trial was contained in McGee’s statement to law enforcement that he took money from the victim on the street and bought crack cocaine, went to the victim’s apartment where he performed sexual acts in return for money which he used to buy crack cocaine, and took the victim’s car keys and car only to later pawn them for money which he used to buy crack cocaine. This pattern of behavior on McGee’s part specifically contradicts his claim to have lacked the intent to rob the victim where everything he did over the course of twenty-four hours was aimed at obtaining money to fund his crack cocaine habit. Thus, I conclude that McGee’s acts belie that robbery was an afterthought.

Finally, although the majority claims that this case is identical to Perkins, such is difficult to discern. This is so because, like the majority opinion in the present case, Perkins does not set forth any evidence relevant to its conclusion that the defendant was entitled to an afterthought instruction other than his self-serving statement. Without knowing what the supporting, independent testimony or evidence was in Perkins, and considering that there is no such evidence in this case, Perkins offers little support for reversal of the trial court’s denial of McGee’s motion for post-conviction relief.

In sum, McGee was not entitled to an afterthought jury instruction on the robbery count, and trial counsel was not ineffective for failing to request such an unwarranted instruction. Therefore, I would not reverse and remand for an evidentiary hearing on his claim that his attorney was ineffective for failing to request an afterthought instruction with respect to his conviction for robbery but would affirm this case in all respects.


author: PER CURIAM. CANADY, Judge,

text:
    Michael STUBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4864.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this appeal, Michael Stubbs challenges the accuracy of the scoresheet prepared when he was first sentenced and subsequently used to determine his sentence at a probation revocation hearing. Because the trial court erred by refusing to permit Stubbs to challenge the inclusion of victim injury and legal constraint points on the scoresheet, we reverse and remand for a new sentencing hearing.

In 1993, Stubbs pleaded no contest to a charge of grand theft and to two counts of armed robbery. All of the offenses were committed in 1992. On the armed robbery charges, Stubbs was sentenced to ten years’ imprisonment with a three-year minimum mandatory followed by fifteen years of probation. On the grand theft charge, Stubbs was sentenced to five years of probation. Stubbs did not file a direct appeal. After his release from prison in December 2004, Stubbs violated his probation, which was ultimately revoked.

Stubbs’ original scoresheet reflected a total of 192 points which with a one-cell bump for sentencing after revocation of probation made him eligible for a maximum guidelines sentence of twenty-two years’ imprisonment. However, Stubbs’ defense counsel argued that seven victim injury points were improperly assessed because the State had failed to prove victim injury. The trial court rejected the argument stating, “I don’t believe we need to do that because we are here on a violation of probation and not on the original sentencing.” Defense counsel then argued that inclusion of seventeen points for a legal constraint violation was improper because there was no proof Stubbs had been on any type of supervision at the time of the primary offenses (grand theft and armed robbery). That argument was also rejected by the trial court, and Stubbs was sentenced to twenty-two years’ imprisonment on the armed robbery charges with credit for time served. On the grand theft charge, he was sentenced to five years’ imprisonment.

The trial court erred when it prevented Stubbs from challenging the imposition of the victim injury and legal constraint points at resentencing. “[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal.” Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004); see also West v. State, 823 So.2d 174, 174 (Fla. 2d DCA 2002); Spell v. State, 731 So.2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So.2d 1216, 1217 (Fla. 2d DCA 1999). This rule applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet. See Wright v. State, 707 So.2d 385, 385 (Fla. 2d DCA 1998).

Here, there is no indication in the record that Stubbs agreed as part of his negotiated plea to the inclusion of victim injury and legal constraint points. Accordingly, the trial court erred when it refused to permit Stubbs to challenge the inclusion of victim injury and legal constraint points at sentencing following revocation of probation.

If the points on Stubbs’ scoresheet for victim injury and legal constraint were removed, the total points would be reduced from 192 to 168. Taking into account the one-cell bump for sentencing after revocation of probation, see Fla. R.Crim. P. 3.701(d)(14), the reduction in points would result in a one-cell reduction with a maximum guidelines sentence of only seventeen years instead of twenty-two years, see Fla. R.Crim. P. 3.988(c). Therefore, the error asserted by Stubbs cannot be considered harmless. See State v. Montague, 682 So.2d 1085, 1087 n. 3 (Fla.1996). We therefore reverse and remand for further proceedings on the issue of whether the victim injury and legal constraint points were properly scored.

We recognize, as we did in Spell and Bogan, that this decision is in conflict with the First District Court of Appeal’s opinion in Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), which held that “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.”

Reversed and remanded; conflict certified.

WHATLEY and NORTHCUTT, JJ., Concur.

CANADY, J., Concurs specially with opinion.

CANADY, Judge,

Concurring specially.

Section 924.06(2), Florida Statutes (2005), provides that “[a]n appeal of an order revoking probation may review only proceedings after the order of probation.” (Emphasis added.) The scoresheet at issue here was prepared for Stubbs’ original sentencing in 1993. It was necessarily prepared and considered by the trial court prior to the original imposition of sentence. By allowing a probationer such as Stubbs to challenge sentencing points included on the scoresheet used in the proceeding which resulted in the entry of the order of probation, the court has failed to limit its review to “proceedings after the order of probation.”

Without any discussion of section 924.06(2) — which first became effective on May 25, 1959 — our cases have adopted a rule that appears to be at odds with the statutory requirements.

Were I not bound by this court’s decisions in Matton, West, Spell, Bogan, and Wright, I would follow the rule articulated in Fitzhugh, 698 So.2d at 573, that “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.”

      . See ch. 59-130, § 3, at 234, Laws of Fla.


author: KLEIN, J.

text:
    Doreen HARDING, Appellant, v. Arnold ROSOFF and Merrill Lynch Trust Company, as Personal Representative of the Estate of Teresa Rosoff; and Arnold Rosoff and Merrill Lynch Trust Company, as Trustees of the Teresa M. Rosoff Revocable Trust; and Fiduciary Trust International of The South, Appellees.
    No. 4D06-8.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Rehearing Denied April 11, 2007.

      George Elias, Jr., Miami, and Christine M. Moreno of Christine M. Moreno, Attorney, P.A., Stuart, for appellant.
    Mark R. Manceri of Mark R. Manceri, P.A., Fort Lauderdale, John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees Arnold Rosoff and Merrill Lynch Trust Company.
   KLEIN, J.

Doreen Harding appeals an order denying her motion to surcharge Arnold Rosoff and Merrill Lynch, because of the decline in value of assets in a trust, while Rosoff and Merrill Lynch, as co-personal representatives, litigated the validity of the exercise of a power of appointment. She also asserts that the court erred in denying her attorney’s fees for benefiting the estate by prevailing in the litigation. We affirm.

Raymond Molinari executed a will in 1974, creating a testamentary trust to benefit his sister, Teresa Rosoff. Molinari granted Teresa the power of appointment to dispose of the assets in the trust in her will. If Teresa exercised the power of appointment within eighteen months of her death, the trust required it to be done in the presence of the officers of the trustee of the trust, or it would be invalid. The trust further provided that if Teresa did not exercise the power of appointment, the assets in the trust would be distributed equally to three people, if they survived Teresa. The appellant, Doreen Harding, was one of the three and the only one who survived Teresa.

In Teresa’s last will she purported to exercise the power of appointment, but did not do so as required by the trust, in the presence of the corporate officers of the trustee, and she died within eighteen months. In two earlier wills she had properly exercised the power of appointment. Her last will appointed her nephew, Arnold Rosoff and Merrill Lynch, as personal representatives.

After Teresa’s death Doreen Harding challenged Teresa’s exercise of the power of appointment in her last will, and the personal representatives litigated that issue, contending that under the theory of dependent relative revocation, if the third will had not been effective to exercise the power of appointment, a prior will should have been given effect. Harding prevailed, the personal representatives appealed, and this court affirmed. Rosoff v. Harding, 901 So.2d 1006 (Fla. 4th DCA 2005).

This appeal arises from a subsequent order of the trial court which rejected Harding’s claim that the personal representatives should be surcharged for the twenty-five percent decline in value of the assets in the Molinari Trust during the delay caused by the litigation. It was Harding’s position that, but for the delay, she would have received the assets from the trust earlier and converted them into treasury bonds.

The personal representatives argue that there can be no surcharge, which is a charge against a fiduciary to compensate a beneficiary for the breach of fiduciary duty, Merkle v. Guardianship of Jacoby, 862 So.2d 906 (Fla. 2d DCA 2003), because there was no fiduciary duty to Harding. They point out that they are fiduciaries only of the Teresa Rosoff estate and that Harding is not a beneficiary of that estate. Harding is a beneficiary of the Molinari Trust, but the personal representatives are not fiduciaries of the trust. We are not persuaded by Harding that there is a fiduciary duty to her, but we need not decide that issue because the pursuance of the litigation by the personal representatives was consistent with the testator’s intent. Although they lost and we affirmed, we noted that “Teresa’s apparent intent has been thwarted.” Rosoff, 901 So.2d at 1010. The trial court was correct in finding no impropriety by the personal representatives.

Harding also contends that she should have been awarded attorney’s fees and costs for prevailing in the litigation under section 733.106, Florida Statutes (2005), because the litigation benefited the estate. In re Estate of Udell, 501 So.2d 1286 (Fla. 4th DCA 1986). Harding has cited no cases, however, which would support her theory that there was a benefit to the estate under these specific facts. She relies on In re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969), in which we stated that services which carry out the intent of the testator as expressed in the will are compensable from the estate. As we previously noted, however, this litigation thwarted the testator’s intent. Harding also cites Robinson v. Robinson, 805 So.2d 94 (Fla. 4th DCA 2002), in which this court affirmed an award of attorney’s fees to a beneficiary who successfully reformed a trust. In Robinson, however, the fees were awarded from the trust, not the estate. Under these facts, in which the litigation determined only who would be the beneficiary of the Molinari Trust, the trial court did not err in finding that there was no benefit to the estate.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Carrol D. PIGG, Appellant, v. BALDERSON, INC., Appellee.
    No. 1D06-2532.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.

      Carrol D. Pigg, pro se, Appellant.
    Kendall Erin Mills-Conrad and Wilbur W. Anderson of Eraclides, Johns, Hall, Gelman, Jacksonville, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, claimant, Carrol D. Pigg, appearing pro se, appeals an order of the Judge of Compensation Claims (JCC) which denied his petition for permanent total disability (PTD) benefits filed on May 21, 2005. For the reasons that follow, we affirm.

Claimant was working for Balderson, Inc., appellee, when he injured his right shoulder on August 24, 1998. Claimant, through an attorney, filed a petition for PTD benefits. On December 21, 2001, the JCC entered an order denying PTD benefits. Claimant did not appeal this order. In December 2003, through a second attorney, claimant filed a new petition for PTD benefits which was dismissed. No petition for modification demonstrating any change of circumstances has been filed.

On May 21, 2005, claimant filed a pro se petition seeking PTD benefits. At the final hearing on this petition, claimant raised the same facts presented with respect to the 2001 petition and sought to introduce documents he asserted should have been presented at his first merits hearing. On the employer’s objection, the JCC ruled that this new evidence could not be admitted, and concluded that claimant’s 2005 petition was barred by the doctrine of res judicata. We agree with the JCC that claimant’s petition is barred by res judica-ta. As the Florida Supreme Court stated in Florida Department of Transportation v. Juliano, 801 So.2d 101, 105 (Fla.2001)(emphasis in original)(quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)):

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in the action.

Section 440.28, Florida Statutes (1997), does allow any party in interest to file a petition for modification “on the ground of a change in condition or because of a mistake in a determination of fact.” This petition, however, must be filed “prior to 2 years after the date of the last payment of compensation pursuant to the compensation order the party seeks to modify, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties....” Id. Thus, even if we were to view the claimant’s 2005 petition as a petition under section 440.28, the petition was untimely.

Accordingly, we affirm the order on appeal.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Salomon MELGEN and Melissa Melgen, Appellants, v. Boris SUAREZ, Appellee.
    No. 3D05-1338.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Holland & Knight LLP and Frances F. Guasch, Miami; and Kevin W. Korth & Associates, St. Petersburg, for appellants.
    John R. Sutton & Associates, P.A., and Jose R. Bejel, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Defendants below, Salomon Melgen (“Mr. Melgen”) and Melissa Melgen (“Ms. Melgen”)(eollectively referred to as “defendants”), appeal a final judgment in favor of the plaintiff, Boris Suarez (“plaintiff’ or “Suarez”), granting Suarez’s motion for judgment notwithstanding the verdict (“JNOV”) and awarding Suarez the sum of $7,509.00 for past medical bills incurred. Because we find that the trial court erred in granting the JNOV, we reverse.

Ms. Melgen, while operating Mr. Mel-gen’s vehicle, rear-ended Suarez’s vehicle. Suarez filed a personal injury lawsuit against the defendants to recover for injuries allegedly suffered as a result of this accident. Pursuant to the parties’ stipulation, the trial court entered summary judgment in favor of Suarez regarding Ms. Melgen’s liability. Subsequently, a jury trial was held solely on the issue of damages. During the trial, the jury heard conflicting evidence regarding Suarez’s claimed injuries, including conflicting evidence relating to the necessity and reasonableness of the past medical bills incurred by Suarez. The jury ultimately returned a verdict awarding zero damages, finding that Ms. Melgen’s negligence was not a legal cause of Suarez’s loss, injuries, or damages.

Suarez filed a motion for JNOV on the issue of past medical bills, alleging that the evidence was uncontradicted as to the reasonableness and necessity of the past medical bills incurred. The trial judge granted Suarez’s motion for JNOV, finding that there was clear uncontradicted evidence of causation and therefore, Suarez was “entitled to a directed verdict as to the past medical minus the MRI bill,” and awarding Suarez the sum of $7,509.00. Having carefully reviewed the record, we disagree.

Motions for JNOV “should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence.” Heyman v. Weka, Inc., 338 So.2d 550, 551 (Fla. 3d DCA 1976). “[T]his is especially true in negligence cases where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable people can draw various conclusions from the same evidence.” Johnson v. Swerdzewski 935 So.2d 57, 60 (Fla. 1st DCA 2006). When presented with a motion for JNOV, the trial court must view all of the evidence, and all of the inferences drawn therefrom, in a light most favorable to the non-movant, and in the face of contradictory evidence, all conflicts must be resolved in favor of the party against whom the motion has been made. Id.; Irven v. Dep’t of Health & Rehabilitative Servs., 790 So.2d 403, 407 n. 2 (Fla.2001). A motion for JNOV may be granted only when there is no evidence or inferences to support the opposing party’s position. Fast Laundry II v. Gray, 861 So.2d 81, 82 (Fla. 3d DCA 2003); Collazos v. City of W. Miami, 683 So.2d 1161, 1164 (Fla. 3d DCA 1996).

A review of the record in this instance demonstrates that the evidence and the reasonable inferences which may be drawn from the evidence when viewed in the light most favorable to the defendants, supports the jury’s verdict. The record evidence reflects that Suarez’s entitlement to past medical bills was vigorously contested at trial. The jury, after weighing the conflicting evidence, including conflicting evidence as to causation and as to the reasonableness and necessity of Suarez’s past medical treatments, returned a verdict finding that the accident was not the legal cause of Suarez’s claimed injuries and awarding Suarez zero damages. As the trial judge cannot reweigh the evidence and substitute her own judgment for that of the jury, we conclude that the trial court erred in effectively overruling the jury’s determination of Suarez’s entitlement to zero damages. See Collazos, 683 So.2d at 1164 (specifying that in ruling on a motion for JNOV, “[a] trial court may not reweigh the evidence and substitute its judgment for that of the jury”). Accordingly, we reverse the final judgment granting the JNOV and remand with instructions that the jury’s verdict be reinstated.

Reversed and remanded.


author: SHAHOOD, J.

text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. William J. GREEN, Appellee.
    No. 4D06-1991.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied April 11, 2007.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., West Palm Beach, for appellant.
    Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellee.
   SHAHOOD, J.

This is an appeal by the Florida Department of Environmental Protection (FDEP) from a Final Judgment in favor of William Green following a trial by jury. We hold the trial court erred in denying FDEP’s motion for summary judgment and reverse and remand with directions to enter final judgment in favor of FDEP.

William Green filed a complaint for malicious prosecution against FDEP, James Dyal and Mark Nelson. The complaint was based on a February 21, 2001 criminal proceeding against Green by FDEP for the unlawful installation of radio equipment using the frequency of state or law enforcement officers. An amended complaint was filed on October 1, 2003, containing three counts: malicious prosecution by FDEP (count I); malicious prosecution by James Dyal (count II); and malicious prosecution by Mark Nelson (count III). Counts II and III were dismissed with prejudice.

Green testified that he became a volunteer at Jonathan Dickinson State Park in 1998. His immediate supervisor was Jill Parnell. Green was issued a hand-held radio to keep in contact with the ranger station. On August 21, 2000, one of the ranger’s radios broke and they needed Green’s, so Green turned in his radio to Parnell. He asked Parnell if he could go to Radiotronics and purchase his own radio with his own money and she said yes.

Green was terminated as a volunteer on September 7, 2000 due to complaints regarding unauthorized patrols of the park. Upon hearing that he was terminated, Green took the radio out of his car, knowing that he could not have the radio if he was not a volunteer. Green did not use the radio at all after it was taken out of his car.

On October 24, 2000, Officer Dyal came to Green’s house and asked him if he had a radio installed in his vehicle from Radio-tronics and Green said he did. Green showed the officer the radio, as it was not installed at that time, and the receipts from the purchase. Green told the officer that Jill Parnell had authorized him to have the radio.

Green was thereafter arrested and charged with violation of section 843.16(1), Florida Statutes (2000), making it “[u]n-lawful to install or transport radio equipment using assigned frequency of state or law enforcement officers.... ” The charges against Green were ultimately nolle prossed by the office of the state attorney.

The FDEP argues that it was entitled to summary judgment in its favor because section 768.28(9), Florida Statutes (2003), provides that state agencies are immune from the malicious acts of employees.

Green argues that section 768.28(9) does not immunize a government entity from tort liability for acts of employees acting within the course and scope of their duties and functions.

Section 768.28(9)(a) provides sovereign immunity to the State from vicarious liability for certain torts of its employees. The statute provides:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (2003). The above underlined portion was added by amendment in 1980. The Florida Supreme Court in McGhee v. Volusia County, 679 So.2d 729 (Fla.1996), interpreted this amendment:

We thus conclude that the intent behind the 1980 amendments was to extend the veil of sovereign immunity to the specified governmental employees when they are acting within the scope of employment, with the employing agency alone remaining liable up to the limits provided by statute. That veil is lifted only where the employee’s act fell outside the scope of employment, in which event sovereign immunity then shields the employing agency from liability.

Id. at 733. This interpretation distinguishes actions by employees that are within the scope of their employment, the first part of the statute, from actions by employees that are outside the scope of their employment, as provided by the 1980 amendment.

In Irani v. City of Hallandale, 756 So.2d 110, 110 (Fla. 4th DCA 1999), this court held that a malicious prosecution count was properly dismissed as being barred by the doctrine of sovereign immunity. Also, in City of Coconut Creek v. Fowler, 474 So.2d 820 (Fla. 4th DCA 1985), a malicious prosecution claim against the city was held to be barred by section 768.28(9). In Fowler, a developer had made an agreement with the city to ban a city official from the construction site during a load test. Id. at 821. The city official showed up at the test and the developer called the police, but the police arrested the developer and the city prosecuted the developer for violating a city code which requires developers to admit building inspectors. Id. The developer sued the city for malicious prosecution. The court found that section 768.28(9) “now affirmatively disallows suits against municipalities for the malicious acts of their employees.” Id. at 822. Also, in Johnson v. State, Department of Health & Rehabilitative Services, 695 So.2d 927 (Fla. 2d DCA 1997), the court upheld a lower court’s dismissal of malicious prosecution claims against the City and HRS under section 768.28(9)(a).

Because “malice” is a necessary element of malicious prosecution and section 768.28(9)(a) immunizes the State and its agencies from “malicious” acts of its employees while they are acting within the scope of their employment, Green is barred from bringing a malicious prosecution claim against FDEP.

Since we are reversing with directions to enter final judgment in favor of FDEP, all other issues raised by appellant are deemed moot.

Reversed and Remanded with Directions.

STEVENSON, C.J., and KLEIN, J., concur.


author: POLEN, J.

text:
    WELLINGTON REALTY COMPANY LIMITED PARTNERSHIP, a Massachusetts Limited Partnership, Appellant, v. COLORALL TECHNOLOGIES INTERNATIONAL, INC., a Florida corporation, Appellee.
    No. 4D06-1597.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied April 10, 2007.
    John B. Agnetti and Torrence R. Phillips of Hoffman, Larin & Agnetti, P.A., Miami, for appellant.
    Howard K. Coates, Jr., and Mary F. April of The Coates Law Firm, Wellington, for appellee.
   POLEN, J.

Appellant Wellington Realty Company Limited Partnership (“Wellington”) appeals final summary judgment entered in favor of appellee ColorAll Technologies International, Inc. (“ColorAll”). We reverse and remand with instructions for the trial court to enter summary judgment in favor of Wellington.

On March 24, 2000, ColorAll and Wellington executed a letter of understanding stating that they intended to enter into a build-to-suit lease, whereby Wellington would construct a new 6,100 square foot building for ColorAll to occupy in Pompano Beach, Florida. The letter of understanding stated, in pertinent part, that Co-lorAll would pay all increases in real estate taxes after the “base year of occupancy.” About four months later, the parties executed the actual lease, which expressly incorporated the letter of understanding. The relevant provisions of the lease were as follows:

This is a “build to suit” lease which shall commence upon completion of the construction of the improvements on the property ... Attached hereto and made a part hereof as Exhibit “A” is a copy of letter of understanding dated March 24, 2000.
The base annual rent, including base year real estate taxes, shall be payable in monthly installments of $4,600.00, plus applicable sales tax ... Lessee shall be responsible for all utility payments and security deposits, together with any increase in real estate taxes
after the base year of occupancy. The “base annual rent” includes the real estate taxes at their current assessment as of the date hereof. Any increase in the real estate taxes, and/or intangible tax will be paid by Tenant on a pro-rated basis, monthly, in addition to and payable concurrently with, the base rent.

(Emphasis added).

ColorAll moved into the building on December 20, 2001. During its first year of occupancy, it paid the monthly rent installments of $4,600, plus sales tax, to Wellington, in addition to a pro-rated amount for the eleven days it occupied the building in 2001. However, in November 2002, Wellington, under the impression that the base year of occupancy was 2001 and that Colo-rAll therefore owed it the increase in real estate taxes from 2001 to 2002 ($9,272.23), placed ColorAll on notice that it was to pay that amount. ColorAll refused to remit payment and Wellington filed a complaint for breach of contract seeking $9,272.23 in damages.

ColorAll proceeded to file a counterclaim seeking a declaration of its rights and obligations under the lease, in particular regarding the real estate tax increase provision. Wellington responded by filing a motion for summary judgment. ColorAll served its response and filed a cross-motion for summary judgment. The trial court held a hearing on the motions and entered an order granting ColorAll’s cross-motion and denying Wellington’s motion. Purportedly applying this court’s holding in Handelsman v. Royal Trust Bank of Palm Beach, N.A., 426 So.2d 1220 (Fla. 4th DCA 1983), the trial court found that the “base year of occupancy” was not the same as the date of first possession, and concluded that the “base year of occupancy” was 2002. The court subsequently entered final summary judgment for Colo-rAll based on the order.

Wellington now argues that the trial court erred in entering summary judgment against it based upon Handelsman, see id.; according to Wellington, the lease unambiguously provided that the “base year of occupancy” was that in which Colo-rAll first took possession — 2001. A grant of summary judgment based upon construction of a written instrument is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 131 (Fla.2000). Where the language of a contract is clear and unambiguous, the court can give to it no meaning other than that expressed. Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 316 (Fla. 2d DCA 1963). In this appeal, both parties agree that there are no genuine issues of material fact regarding the correct “base year of occupancy.” Both Wellington and Colo-rAll are also of the same opinion that there are no ambiguities in the language of the lease. We are inclined to agree with both assertions. However, we find that the trial court misapplied Handelsman, which in turn caused it to incorrectly determine the base year of occupancy as 2002, as opposed to the correct year, 2001. See Handelsman, 426 So.2d at 1221-22.

In Handelsman, landlord and tenant entered into a build-to-suit lease agreement whereby tenant would pay, inter alia, the increase in real estate taxes on the property “occurring from the beginning of the lease and throughout its term.” Id. at 1220. Although tenant took possession in 1971, construction was not completed until 1972, the first year for which taxes were assessed on the property in its improved state. Id. at 1221. The trial court, in an action for declaratory relief filed by tenant, concluded that the base year for computation of tax increases was 1972. Id. In affirming, this court cited language in the lease which stated that tenant was to pay landlord the increase in real property taxes “on said premises ... occurring from the beginning of the lease throughout its term.” Id. at 1222. We noted that the parties did not contract to lease a vacant parcel of real property; they contracted for the lease of a structure situated on improved real estate. Id. Until the landlord completed the structure, no basis existed for computation of the ad valorem taxes on the demised property. Id. Therefore, to use ad valorem taxes assessed on the unimproved property in the year prior to the placement of the demised premises on the tax rolls (1971) would be “inconsistent and illogical.” Id. (citing § 192.042(1), Fla. Stat. (1983)).

Unlike Handelsman, the real property at issue in this case was “substantially completed” in 2001, prior to ColorAll taking possession, and was therefore assessed on January 1, 2002, based on the 2001 improvements. See id. The completeness of the property as of January 1, 2002, is not only evidenced by the large increase in real estate taxes from 2001 to 2002 ($23,-000 to $32,300), but also by the fact that ColorAll began using the facilities on December 20, 2001, and paid a pro-rated rent for the remaining eleven days of that year, during which time it occupied and presumably utilized the buildings for business purposes. Furthermore, a City of Pompano Beach Building Official awarded Wellington a temporary certificate of occupancy for the property on November 19, 2001. According to the standard City of Pompano Beach Application Request for Temporary Occupancy form, “[a] temporary certificate of occupancy may be issued ... providing the building to be occupied has, to the satisfaction of the Building Official, met all the [Florida Building] Code provisions related to sanitary facilities, electric service, means of egress, fire resistive separation, structural adequacy, and the life safety requirements.” And perhaps even more telling of the property’s suitability for occupancy in 2001 is the “punch list” (to-do list) drafted by ColorAll on November 27, 2001, in which ColorAll walked through the improved property. Notably, the “punch list” listed only minor problems such as windows and floors which needed cleaning and walls that required repainting.

Therefore, as opposed to Handelsman, the property at issue in this case was substantially completed during the year of first possession (2001), thus making that year the proper basis for computation of ad valorem taxes. See id. This not only demonstrates that Handelsman did not provide a bright-line rule for determination of “base year” where construction of property central to a build-to-suit lease has not been completed as of the date of first occupancy, but also that Handelsman is not controlling to the case at bar. See id. As such, we find that the trial court erred in relying on Handelsman in determining summary judgment in favor of ColorAll, and we conclude that the court should have entered judgment for Wellington.

Based on the foregoing, we reverse and remand with instructions to the trial court to enter summary judgment in favor of Wellington.

Reversed, and Remanded with Directions.

GUNTHER and HAZOURI, JJ., concur.

      . Section 192.042(1), Florida Statutes (1983), provided:
      Date of assessment. — All property shall be assessed according to its just value as follows:
      (1) Real property, on January 1 of each year. Improvements or portions not substantially completed on January 1 shall have no value placed thereon. "Substantially completed” shall mean that the improvement or some self-sufficient unit within it can be used for the purpose for which it was constructed. (Emphasis added).