author: PER CURIAM. THOMPSON, J.,

text:
    Eva M. SUDHOFF, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Appellee.
    No. 5D05-3137.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.

      Nicholas Weilhammer of The Sketchley Law Firm, P.A., Tallahassee, for Appellant.
    Susan C. Minor and Marisa D. Ajmo, of Shapiro & Fishman, LLP, Boca Raton, for Appellee.
   PER CURIAM.

ON MOTION FOR REHEARING

We grant rehearing, withdraw our earlier opinion and issue the following opinion in its stead.

Eva Marie Sudhoff (“Mrs. Sudhoff’) appeals from the trial court’s order denying her motions to intervene and set aside the judicial sale of her marital home. She argues that the judgment of foreclosure was void because she was not made a party to the suit and received no notice of the proceedings. Federal National Mortgage Association (“Fannie Mae”) responds that her motions were untimely and that she was not a necessary party to the suit because she did not sign the note and did not live in the home when Fannie Mae filed its complaint.

Mrs. Sudhoff s husband owned a parcel of property individually and wished to mortgage it. Apparently, because of its homestead status, Fannie Mae required Mrs. Sudhoff to join in the mortgage, although not the note. The mortgage defined the term “Borrower” as “John J. Sudhoff, a married man, joined by his wife, Eva Marie Sudhoff.” The mortgage made clear that because Mrs. Sudhoff did not sign the note, she was not liable for the debt, but was pledging her interest in the subject property to secure the debt. The note and mortgage provided that the “Borrower” (presumably including Mrs. Sudhoff given her designation as such in the mortgage) could reinstate the mortgage in the event of a default, under certain circumstances. The agreement also prohibited either party from pursuing judicial action against the other, unless the complaining party provided notice and a reasonable period to take corrective action.

Several years later, Fannie Mae filed a complaint to foreclose the mortgage. Mrs. Sudhoff was not named a party. Rather, Fannie Mae named Mr. Sudhoff, JP Morgan Chase Bank (a junior lien holder), unknown parties in possession # 1 and # 2, and “all unknown parties claiming by, through, under and against the above named defendant(s) ... whether said unknown parties may claim an interest as spouses, heirs, devisees, grantees, or other claimants.” The complaint acknowledged that both Mr. and Mrs. Sudhoff had executed the mortgage.

Fannie Mae submitted an affidavit of diligent search, stating that personal service had been unsuccessful, and that, after inquiries to the postal service, mortgage service records, Florida telephone directories, and neighbors, it could not find Mr. Sudhoff. It alleged “a diligent search ... was made to discover the residence and whereabouts of the Defendant(s) ... and of the Defendant(s) spouse, if any,” but the record reflects no attempt to locate or serve Mrs. Sudhoff. Later, on Fannie Mae’s motion, the court granted summary judgment, awarded fees and costs, and ordered a sale of the property. After the sale was conducted, a certificate of sale and a certificate of title were filed.

Two weeks later, Mrs. Sudhoff filed a notice of lis pendens, moved to intervene, moved to vacate judgment of foreclosure, and moved to set aside the foreclosure sale. She alleged that she should have been a party because the litigation sought to sell her marital home. Mrs. Sudhoff claimed that although she and Mr. Sudhoff were estranged, she had left her forwarding address with the postal service. Fannie Mae opposed her motions, arguing that her objections were untimely. Fannie Mae also claimed that Mrs. Sudhoff did not have standing to object because she was not a party. After the trial court denied Mrs. Sudhoffs motions and dissolved the lis pendens, this appeal followed. We conclude that the court abused its discretion when it denied Mrs. Su-dhoffs motion to intervene, and reverse.

Fannie Mae argues that Mrs. Su-dhoff was neither an indispensable nor proper party to the foreclosure proceeding. Mrs. Sudhoff contends her interest in her marital property was extinguished without due process. Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder. This is in contrast to other necessary parties, who have an interest in a suit and ought to be made parties, but who do not have to be joined before a final decision may be rendered. A final decision will bind those parties joined in the suit, but will have no effect on the rights of necessary but unjoined parties. Alger v. Peters, 88 So.2d 903, 908 (Fla.1956); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-25, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla.1984); 17 Fla. Jur.2d Parties § 7 (1982). Measured thereby, we conclude that Mrs. Sudhoff was, at the least, a necessary party who had a sufficient stake in the outcome to permit her to intervene and seek whatever relief might be available to her.

Fannie Mae’s failure to join Mrs. Sudhoff deprived her of her equity of redemption. The right of redemption is the mortgagor’s valued and protected equitable right to reclaim her estate in foreclosed property. Deluxe Motel, Inc. v. Patel, 770 So.2d 283, 284 (Fla. 5th DCA 2000); Saidi v. Wasko, 687 So.2d 10, 11 (Fla. 5th DCA 1996); see Action Realty & Invs., Inc. v. Grandison, 930 So.2d 674, 676 (Fla. 4th DCA 2006); Indian River Farms v. YBF Partners, 777 So.2d 1096, 1099 (Fla. 4th DCA 2001). This equity of redemption is an estate in land. Deluxe Motel, Inc., 770 So.2d at 284; Saidi, 687 So.2d at 12; Indian River Farms, 777 So.2d at 1099; John Stepp, Inc. v. First Fed. Sav. & Loan Ass’n of Miami 379 So.2d 384, 386 (Fla. 4th DCA 1980). “[T]he right of redemption is an incident of all mortgages and cannot be extinguished except by due process of law.” See Indian River Farms, 777 So.2d at 1099; John Stepp, Inc., 379 So.2d at 386; see also VOSR Indus., Inc. v. Martin Props., Inc., 919 So.2d 554, 556 (Fla. 4th DCA 2005) (noting that “[t]he right of redemption is an innate feature of every mortgage”). The trial court incorrectly allowed Fannie Mae to foreclose on the property, depriving Mrs. Sudhoff of her equity of redemption. See Maniscalco v. Hollywood Fed. Sav. & Loan Ass’n, 397 So.2d 453, 455 (Fla. 4th DCA 1981) (reversing with direction to vacate default and final judgment and to set aside the sale).

Fannie Mae claims “[t]he law is well established that a mortgagor who does not hold an ownership interest in the property ... is neither a necessary nor proper party to a foreclosure suit, unless a deficiency decree is sought.” The cases it cites do not stand for this proposition. Rather, they hold that mortgagors who “have conveyed all their rights and interests in and to the mortgaged property to other parties ... [are not] necessary ... parties to a suit to foreclose unless a deficiency decree is sought.” Dennis v. Ivey, 134 Fla. 181, 185, 183 So. 624 (1938); see also South Palm Beach Invs., Inc. v. Regatta Trading Ltd., 789 So.2d 396 (Fla. 4th DCA 2001) (affirming where appellants “had previously conveyed all their rights and interests in the property to the owner”); Mitchell v. Fed. Nat’l Mortgage Ass’n, 763 So.2d 358, 358-59 (Fla. 4th DCA 1998) (affirming where appellant had conveyed by warranty deed his rights and interests in the property to his daughter); 55 Am.Jur.2d Mortgages § 1268 (2005) (stating that a mortgagor is not a necessary party to foreclosure if she no longer retains the equity of redemption). Here, Fannie Mae did not allege that Mrs. Sudhoff had assigned her right to redemption, and the record indicates that she has not. Consequently, we conclude that Mrs. Sudhoff was a necessary party. Because she was a necessary party to the foreclosure, and her equity of redemption was extinguished without due process, the court abused its discretion by denying her motion to intervene and to be heard on her motion to set aside the sale and vacate the judgment of foreclosure.

We do not, however, conclude that the foreclosure proceedings are void as against Mr. Sudhoff and the junior lien holder. “Florida has numerous decisions holding that a foreclosure suit may be maintained even though the holder of the legal title to the property is not a party to the foreclosure, but that the decree only establishes the rights of persons who are parties.” Pan Am. Bank of Miami v. City of Miami Beach, 198 So.2d 45, 47 (Fla. 3d DCA 1967). One commentator put it thusty:

No Florida case has been found that holds void or ineffective a decree of foreclosure with respect to those who were parties; it is effective as to them, although ineffective as to those who were absent.... Thus, when a number of persons have interests in a parcel of land, the foreclosure of a mortgage upon that land affects the interests on only such persons as were made parties to the foreclosure proceeding. An owner of an interest in the land will have that interest terminated by foreclosure against him, but one not made a party to the proceeding is not affected by it.
In a general sense, therefore, although the effectiveness of the decree is diminished if there is less than full joinder, it is understandable that courts allow the plaintiff-mortgagee to proceed without full joinder and affirm the “incomplete decree.” ... The decree’s effectiveness may be limited by incomplete joinder, but it will have some effect, presumably that effect desired by the mortgagee. Neither those who are parties nor those who are absent are prejudiced by non-joinder. The possibility of further litigation alone is not sufficient to require complete joinder. The party most interested in the matter can, and usually will, accomplish complete joinder.

Jeffrey E. Lewis, Mandatory Joinder of Parties in Civil Proceedings: The Case for Analytical Pragmatism, 26 U. Fla. L.Rev. 381, 423-24 (Spring 1974).

If the property was homestead, except as permitted by the constitution, it was exempt from forced sale, and the ability to convey the property or devise it by will was similarly limited. Clearly, too, Mrs. Sudhoff had a right of redemption in the property by virtue of the mortgage agreement. Assuming that Mrs. Sudhoff has any rights in the subject property, those rights could not be adversely affected by the judgment, due to her omission from the suit. Of course, we are not in a position to determine what rights, if any, she has in the property. However, it appears that at the time the mortgage was executed, the property was the Sudhoffs’ homestead. Whether it lost that homestead status is unknown.

The judgment, so far as it goes, was effective in foreclosing Mr. Sudhoffs interest in the property, as well as that of the junior lien holder. However, for the reasons stated, it was ineffective as to Mrs. Sudhoff. We do not know whether Mrs. Sudhoff can ultimately prevail on her claim. We do conclude, however, that she should have been allowed to intervene in the proceedings to protect any interests she has in the property.

Accordingly, we reverse the trial court’s order denying Mrs. Sudhoffs motion to intervene and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN and ORFINGER, JJ„ concur.

THOMPSON, J., dissents, with opinion.

THOMPSON, J.,

Dissenting.

I respectfully dissent. I would deny the motion for rehearing because I believe that the judgment of foreclosure and judicial sale should be set aside.

Our recognition that Ms. Sudhoffs right to redemption was denied without due process is difficult to square with allowing to stand either (1) a foreclosure judgment that purports to extinguish all persons’ rights of redemption or (2) the judicial sale after which the mortgagor’s right to redemption expires. The majority correctly notes that Burns v. Bankamerica National Trust Co., 719 So.2d 999, 1001 (Fla. 5th DCA 1998), is factually distinguishable. Nevertheless, I believe that, “once the certificate [of title] is issued, redemption is precluded, even if the party asserting the right was not made a party to the foreclosure proceedings.” Id. The final judgment of foreclosure provided: “The sale shall be held in accordance with § 45.031 Fla. Stat. (1995), and upon the Clerk filing the Certificate of Sale, all persons shall be forever barred and foreclosed of any and all equity or right of redemption in and to the above property.” The property was sold and the certificate of sale was filed on 8 July 2005.

Section 45.0315, Florida Statutes (1995), provided:

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

(Emphasis added.)

“[T]he statute ... require[s] redemption prior to the issuance of the certificate of sale, unless a different redemption cut-off is specified by the judge in the judgment of foreclosure. If the judgment makes no such provision, the right to redeem expires when the clerk files the certificate of sale.” Mark S. Dennison, Sufficiency of Manner and Timeliness of Redemption of Real Estate Contract from Foreclosure, 66 Am. Jur. Proof of Facts 3d 267 § 4 (2006) (footnote omitted). The mortgagor should not delay in exercising her right of redemption because that right “expires when the clerk files the certificate of sale, unless the judgment of foreclosure makes some provision to the contrary, and the statute requires the certificate of sale to be filed promptly after the sale is conducted.” 33 Fla. Jur .2d Judicial Sales § 43 (2006).

If we recognize that Ms. Sudhoff was entitled to her equity of redemption, “an incident of every mortgage which cannot be extinguished except by due process of law,” neither the foreclosure judgment purporting to extinguish all rights of redemption nor the judicial sale that by statute extinguishes redemption rights should be left intact.

The majority also notes the rule that the foreclosure decree establishes the rights of persons who are parties. This is generally true, but I think that holding the foreclosure judgment binding as to Mr. Sudhoff is premature. The record is unclear, but the judgment against Mr. Sudhoff may be voidable or void based upon the significant possibility that FNMA could not show the diligent search and inquiry necessary to justify constructive service.

The record indicates that FNMA twice attempted personal service on Mr. Su-dhoff, and the majority opinion relates the facts relating to FNMA’s affidavit of diligent search, including its claim of diligent search and inquiry of the residence and whereabouts of Mr. Sudhoffs spouse. Despite its acknowledgment that the Sudhoffs were married and together mortgaged the property, the record reflects no attempt to contact Ms. Sudhoff. This is troublesome because she claims she left her forwarding address with the postal service and, in light of the Sudhoffs’ pending dissolution proceeding in Duval County, may well have been able to provide FNMA with information to enable personal service on Mr. Sudhoff. At this point, I am not sure that FNMA could have shown that, , after diligent search, personal service could not be had.

FNMA’s affidavit of diligent search is facially sufficient. However, had its constructive service been challenged, it would have been the trial court’s duty to determine whether FNMA actually conducted an adequate search: “whether [it] reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service on the defendant.” Shepheard v. Deutsche Bank Trust Co. Ams., 922 So.2d 340, 343-44 (Fla. 5th DCA 2006) (quoting Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So.2d 1219, 1224 (Fla. 4th DCA 1993)). “Courts routinely hold that ‘proof of a few attempts at service of process are insufficient to prove diligent search.’ ” Id. at 344 (quoting Demars, 625 So.2d at 1221 (holding that two attempts at service of process did not show diligent search)). More important, it appears possible that FNMA did not follow a lead likely to reveal Mr. Sudhoffs location. “A diligent search for a defendant’s whereabouts requires inquiry of persons likely or presumed to know the defendant’s location.” Id. (citing Dor Cha, Inc., v. Hollingsworth, 876 So.2d 678, 680 (Fla. 4th DCA 2004)). Its failure to inquire of Ms. Sudhoff, the wife and co-mortgagor who allegedly left her forwarding address with the post office, may demonstrate a lack of “conscientious effort ... to acquire the information necessary to accomplish personal service on the persons holding title or having possession of the mortgaged property so as to provide them with notice of the proceedings.” Id. (quoting Floyd v. Federal Nat. Mortg. Ass’n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998)).

A judgment against a defendant based upon improper service by publication lacks authority of law. Such improper service renders the judgment either void or voidable. The judgment is void where the service of process is so defective that it amounts to no notice of the proceedings. The judgment is voidable if the irregular or defective service actually gives notice of the proceedings.

Id. (citations omitted).

Here, we cannot determine whether the judgment as to Mr. Sudhoff was void, voidable, or neither based on FNMA’s constructive service. See, e.g., Godsell v. United Guaranty Residential Ins., 923 So.2d 1209, 1214-15 (Fla. 5th DCA 2006); Shepheard, 922 So.2d at 345; Floyd, 704 So.2d at 1112. This issue was previously irrelevant because the withdrawn opinion required FNMA to commence proper foreclosure proceedings. In contrast, the majority opinion now appears to prevent Mr. Sudhoff from challenging the possibly defective constructive service.

Such a holding is unnecessary. Consider Montero v. Duval Federal Savings and Loan Association of Jacksonville, 581 So.2d 938 (Fla. 4th DCA 1991). There, the court considered the denial of motions to quash service of process and vacate judgment of foreclosure. Montero, 581 So.2d at 938. The motion was brought by the wife who, with her estranged husband, owned the property at issue. Id. at 939. She was a party to the suit, but was improperly served. Id. As a result, the appellate court held that the judgment of foreclosure was void and ordered that the trial court vacate the judgment of foreclosure, certificate of sale, and certificate of title. Id. at 940. Like this court in its previous opinion, the Fourth District did so without a caveat addressing the effect of its holding on the husband. If the foreclosure judgment was void where the wife received improper substitute service, it should certainly be deemed void where she was never joined in the action in the first place. While Montero differs from this case in that the wife was a party, the effect of the previous opinion and Montero on the husbands’ interests was the same.

Finally, I am concerned about creating incentives for sloppy or non-existent service of process. The previous opinion broke no new ground by holding that a mortgagor is a necessary party unless she has assigned all interests in the property and no deficiency is sought, and that the judicial sale and foreclosure judgment must be set aside where FNMA did not comply with well-settled law governing foreclosure. In contrast, after granting FNMA’s motion for rehearing, we have ratified FNMA’s potentially insufficient constructive service on Mr. Sudhoff. We reverse the order denying Ms. Sudhoffs motion to intervene, but appear to leave open the question of whether she can prevail against the foreclosure judgment and judicial sale, despite FNMA’s unilateral refusal to provide her the notice to which she was entitled by contract and caselaw. We give our imprimatur to FNMA’s decision, by excluding Ms. Sudhoff from foreclosure proceedings, to effectively treat Florida’s requirement that a spouse join in the alienation of homestead property as an empty formality.

FNMA suggested that the previous opinion created “a new right of redemption and a property ownership interest where none previously existed.” But the opinion did not delve into Ms. Sudhoffs ownership interests, whatever they may be. Rather, the opinion addressed only the equity of redemption; not a “new equity,” but that explicitly provided for Ms. Sudhoff in the mortgage document. The previous opinion warned mortgagees to conduct proper foreclosure proceedings that do not violate due process. In contrast, I am concerned that this opinion may encourage insufficient service of process such as that here. For these reasons, I would deny the motion for rehearing.

      . The right of redemption is assignable. See, e.g., VOSR Indus. v. Martin Props., 919 So.2d 554, 556 (Fla. 4th DCA 2005).

      . We are mindful that in Burns v. Bankamerica National Trust Co., 719 So.2d 999, 1001 (Fla. 5th DCA 1998), we stated:
      [0]nce the certificate [of title] is issued, redemption is precluded, even if the party asserting the right was not made a party to the foreclosure proceedings.
      That case is distinguishable on its facts. There, unlike the instant case, the appellants, as lessees of the property, could only redeem the property under or through the original mortgagor's rights. They had no independent right to redemption. Here, Mrs. Sudhoff has an independent contractual right of redemption.

      . E.g., Maniscalco v. Hollywood Fed. Sav. & Loan Ass’n, 397 So.2d 453, 455 (Fla. 4th DCA 1981).

      . I agree with the majority that the issues of marital property, homestead, or abandonment of homestead are appropriately left for proceedings in which Ms. Sudhoff is a party.


source: Caselaw Access Project

author: SHAHOOD, J. FARMER, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. John Dean HAMNER, Appellee.
    Nos. 4D05-1498, 4D05-1549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 11, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for State of Florida.
    Scott I. Suskauer of The Suskauer Law Firm, P.A., West Palm Beach, for John Dean Hamner.
   SHAHOOD, J.

John Dean Hamner was found guilty by a jury of one count of sexual battery without physical force. At sentencing, the trial court found that the offense was committed in an unsophisticated manner and was an isolated incident for which Hamner had shown remorse. The trial court imposed a downward departure sentence of thirty months in the Department of Corrections, followed by three years probation with no special conditions. The State appeals the trial court’s imposition of a downward departure sentence. We affirm the sentence, as we find no error in the court’s imposition of a downward departure sentence in this case. We write to address the second and third issues Hamner raises on cross-appeal.

Prior to trial, the prosecutor made a motion in limine seeking to preclude the defense from questioning the victim about a prior addiction to pain medication. The prosecutor stated that the addiction was several years prior to the events at issue, and that the victim had gone into drug rehabilitation and had been “clean” since that time. The prosecutor also stated that while the victim admitted being intoxicated from alcohol on the night of the incident, there was no indication that the victim was also using pain medication. The defense objected, arguing that the pain medication issue would be relevant to the victim’s ability to recall events. The trial court granted the State’s motion in limine on the basis that the questioning would be irrelevant unless the defense had some evidence that the victim was using pain medication on the night of the incident.

The undisputed testimony at trial showed that on June 24, 2003, Hamner and the victim were in West Palm Beach as part of a sales event for the company for which they both worked. They were not previously acquainted with one another. The two were randomly paired together for the day’s events by their supervisors and spent the day making sales calls to various businesses. That evening, the victim, Hamner, and several co-workers went to dinner at CityPlace. The victim consumed three or four alcoholic beverages at dinner. She testified that after dinner she began to feel “woozy” from the alcohol.

The victim returned to her hotel with Hamner and her boss, Mr. Mosby. The victim did not remember the car ride back to the hotel and believes she passed out. Mosby testified that the victim said she felt dizzy, and that when the car reached the hotel parking lot, the victim slumped over, with her head on Hamner’s shoulder.

Hamner and Mosby helped the victim to her hotel room because she was unsteady from the alcohol. The victim remembered walking from the car to the hotel entrance but did not remember the walk from the hotel entrance to her room. Mosby testified that they put the victim on the bed, and she fell back. They left her on the bed to sleep off the effects of the alcohol. She was fully clothed.

The victim and Hamner offered conflicting testimony as to what happened next. The victim testified that the next thing she remembered was being in her hotel room completely naked and turned sideways. Hamner was on top of her, engaging in sexual intercourse with her. She told him several times to stop and “no.” She was crying. She tried to get away by scooting across the bed, but hit her head on the credenza and blacked out again. During the State’s redirect examination, the victim stated that the words “stop” and “no” may have been slurred when she spoke them, and that she was not sure how loudly she spoke them. The trial court denied defense counsel’s request to conduct recross-examination of the victim.

Hamner testified on his own behalf. According to his version of events, he returned to the victim’s room because he realized that he still had her room key from helping her into her room earlier, so he decided to return the key and check on her. After she did not answer her door, he let himself in using the key. He found the victim lying on the floor. He went to pick her up, and at this point, the victim began hugging and kissing his neck. The victim then took out Hamner’s penis and began to perform oral sex on him. Ham-ner backed away because he did not feel it was appropriate.

Hamner testified that the victim complained of a headache so he went into the bathroom to look for some aspirin. When he returned into the main room, the victim was naked from the waist down and was taking off her bra. She asked Hamner to have sex with her. He refused, and the victim rolled onto her back and started grabbing at him again. She took down his pants and fondled him and then inserted his penis inside of her vagina. Hamner withdrew when he felt the sensation of ejaculation coming on. Hamner stated that the victim was intoxicated, but “she was fine.” She was not crying and did not want Hamner to leave the room. He adjusted the air conditioning in the room and adjusted the blanket over her before he left the room. The victim reported the incident to hotel personnel later that night, and the police were called to the hotel.

As his second issue on cross-appeal, Hamner argues that the trial court erred in granting the State’s motion in limine because it precluded the defense from asking the victim if she were taking any pain medication on the night of the incident. Hamner contends this would go to the victim’s memory loss and the issue of consent. The State maintains that the trial court’s ruling was correct because the defense made no showing that the victim may have been taking pain medication on the night of the incident.

“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Dessaure v. State, 891 So.2d 455, 466 (Fla.2004). Hamner sought to admit evidence of drug use to impeach the victim’s credibility. Evidence of drug use for the purpose of impeachment should be excluded unless:

(a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.

Trease v. State, 768 So.2d 1050, 1054 (Fla.2000) (quoting Edwards v. State, 548 So.2d 656, 658 (Fla.1989)).

We conclude that the trial court did not abuse its discretion in granting the State’s motion in limine that prevented defense counsel from asking the victim about prior drug addiction. The trial court’s ruling left the defense free to question the victim about her use of pain medication if the defense could show that it was relevant to the night of the incident. However, the defense failed to make a showing that the victim was under the influence of pain medication on the night of the incident, during her trial testimony, or that her prior addiction from several years prior to the incident would affect her ability to observe, remember, or recount events. We find insufficient Hamner’s bare contention that the victim could not have been as intoxicated as she apparently was after only three or four drinks. In the absence of the required showing, any testimony regarding the victim’s use of pain medication was irrelevant and the trial judge’s ruling was correct. See Trease, 768 So.2d at 1054 (holding appellant could not claim error who failed to establish via proffer that the testimony he sought to elicit regarding witness’s drug use satisfied Edwards ).

As the third issue raised on cross-appeal, Hamner argues that the trial court erred because the denial of recross following the prosecutor’s redirect examination denied him the right to explore new matter that was brought up regarding the victim’s consent. Specifically, Hamner argues that it prevented the defense from challenging the reliability of the victim’s claims that she told Hamner “no” and “stop.” We disagree.

“[T]rial judges are afforded broad discretion in controlling the scope of cross-examination.” Werner v. Scharlop, 867 So.2d 1172, 1173 (Fla. 4th DCA 2004). “[Although wide latitude is permitted on cross-examination in a criminal trial, its scope and limitation lies within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion.” Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla.1986)).

The record reflects that on direct examination by the State, the victim testified that she told Hamner several times “no” and “stop.” The defense then proceeded to cross-examine the victim on the manner in which she said “no,” specifically focusing on how loudly she had said it. The defense had an opportunity to inquire further on this topic during cross-examination, and failed to do so. Hamner’s characterization of the clarity with which the victim said “no” as “new material” is unconvincing in light of counsel’s prior questioning on cross-examination regarding the volume of the victim’s protestations. We find that the trial court did not abuse its discretion in denying the defense an opportunity to conduct a recross-examination of the victim.

The State also contends that any possible error resulting from the trial court’s denial of the defense’s request to conduct recross-examination of the victim was harmless under the circumstances of this case. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We agree. The harmless error test focuses on the trier of fact, and “[t]he question is whether there is a reasonable possibility that the error affected the verdict.” Id. at 1139. In addition to the victim’s testimony on redirect examination that she may have slurred her words, multiple witnesses testified that after the incident, the victim was still slurring her speech. These witnesses included a responding police officer, the victim’s mother, and a hotel employee. The jury was well-informed that the victim was slurring her speech at the time of the incident and afterwards. Assuming arguendo that the trial court erred in denying recross-examination, we find no reasonable possibility that this contributed to Hamner’s conviction. See id.

We affirm as to all other claims.

Affirmed.

TAYLOR, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Once again, I am compelled to dissent from an unreasonable restriction on cross examination by a defendant in a criminal case. In this case the restriction is doubly difficult to understand because this is a classic she-said-he-said issue of sexual misconduct.

The charge was sexual battery. The defense was consent. She was the accuser, the first and principal witness. After her cross examination, the trial judge allowed the State to have redirect examination as to the subject of the witness’s assertions that during the encounter she repeatedly said “no” and asked him to stop. There can be no doubt that this subject was the heart of the case, not merely a collateral issue. During the redirect examination the State elicited a concession from the witness for the first time that her protestation and demand were slurred, although, she said, understandable. She also said she was not sure how loud she said the words. She added that she was scared when she made these protestations. When the State finished its redirect, defense counsel asked for a brief recross examination. The trial court simply said “no”.

Once the court allowed the State the privilege of redirect examination, the door was open to recross examination. The discretion of the trial judge was now to stop such questioning from becoming cumulative, repetitive or harassing questioning. It was not to bar it entirely, especially after having allowed the State to ask its extra questions. In my opinion, on its face and without regard to the content of the redirect, this is a palpable abuse of discretion.

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 847 (1974). Cross examination by defendants in criminal cases is not simply a matter of grace but is required by the Confrontation Clause of the Sixth Amendment. “Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.” Davis, 415 U.S. at 315, 94 S.Ct. 1105 (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). When testimony on redirect deals with the “central issue in a criminal trial” it is error to exclude recross examination. Bordelon v. State, 908 So.2d 543, 546 (Fla. 1st DCA 2005); Baucham v. State, 881 So.2d 95, 97 (Fla. 1st DCA 2004) (holding limitation on cross-examination of witness testifying on an issue central to defense was reversible error).

The majority says that defendant’s “characterization of the clarity with which the victim said ‘no’ as ‘new material’ is unconvincing.” The majority reasons that, because defense counsel’s prior questions on cross examination dealt with the “volume” of the victim’s protestations, it was not an abuse of discretion to bar all recross examination as to the witness’s testimony on redirect. While counsel’s characterization of the need for recross examination might be unconvincing to judges, the result of such questions might equally have been quite convincing to jurors as to which one was telling the truth. With respect, the majority reliance on how convincing the defendant’s purpose was in engaging in recross examination is simply wrong.

First, if the redirect had been simply a rehash of previous direct and cross examination, it would not have been permissible. Obviously, the State thought otherwise in seeking to have its redirect. Second, the redirect barely mentioned the “volume” or loudness of her demands to stop. It did address her slurring, which was a new concession from the witness. It also addressed whether she was scared when she said it. It also addressed whether she was having difficulty breathing when she said it. Plainly in context these things could reasonably be considered new — especially to the jury.

I note that defense counsel objected to the last question on redirect as “asked- and-answered”. If the other questions on redirect had also previously been asked and answered, is it reasonable to suppose that counsel would have stood idly by without protest? Remember this was redirect examination, which is permitted only to address new matter. And even if it had been all cumulative, why is only the State being allowed to engage in cumulative examination of its essential witness?

This was a very close case. There was no conclusive evidence that the sexual engagement was not consensual. In this kind of criminal case, cross examination takes on an importance and significance beyond the basic requirement of the Confrontation Clause. The reliability of the testimony of the witness turned on subtle aspects, tone and manner, timbre and appearance, eye contact and affect. When guilt hangs on such qualities underlying the believability of witnesses, everything depends on cross examination. Just as discretion should permit few subjects to be excluded during cross examination of the defendant when he testifies as to his version of events, so also should discretion treat the subject of recross examination of the State’s principal witness. I think it was a manifest abuse of discretion to refuse recross examination.

It also follows that I think the exclusion was prejudicial. It is ironical that the majority bases its conclusion of harmlessness on the very testimony of this witness. I was not aware, until now, that appellate judges could base a proper harmless error analysis about an exclusion of cross examination by pointing to the weight of the direct testimony of the same witness! I frankly do not understand how any judge can say beyond a reasonable doubt that the exclusion had no effect on the trier of fact.

Indeed, it is impossible to assess the weight of an error involving the refusal to let the jury hear cross examination that they should have heard. There is no method for assessing the effect on the jury of not seeing the witness tested, other than to know that the jury was denied the opportunity to see a witness react to this essential form of testing reliability of testimony. I would treat utter refusals to permit this kind of questioning as structural. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (holding that structural defects “defy analysis by ‘harmless-error’ standards” because they “a£fee[t] the framework within which the trial proceeds” and are not “simply an error in the trial process itself’). Just as the Court regards the refusal to allow a defendant to have counsel, so also I would treat a refusal to let counsel engage in the essential function of cross examination as structural. See United States v. Gonzalez-Lopez, — U.S. -, -, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006) (resting conclusion of structural error of refusing counsel upon difficulty of assessing the effect of error).


author: PER CURIAM.

text:
    Murray BREITBERG, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3681.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 11, 2006.
    Murray Breitberg, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Dragon v. State, 937 So.2d 781 (Fla. 4th DCA 2006); Saintelien v. State, 937 So.2d 234 (Fla. 4th DCA 2006); Brown v. State, 927 So.2d 1024 (Fla. 4th DCA 2006). As in the above-cited cases, we again certify conflict with King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), and Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003).

WARNER, FARMER and HAZOURI, JJ., concur.


text:
    Lola ALSTON, as Personal Representative of the Estate of Christopher Nathaniel Alston, Appellant, v. CITY OF RIVIERA BEACH, a Florida municipality, Appellee.
    No. 4D06-1004.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Rehearing Denied Dec. 11, 2006.
    Andrew DeGraffenreidt, III of Powers, McNalis, Torres & Teebagy, West Palm Beach, for appellant.
    Bradley G. Harper of Olds & Stephens, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Matallana v. Sch. Bd. of Miami-Dade County, 838 So.2d 1191, 1192 (Fla. 3d DCA 2003) (affirming summary final judgment for school board in wrongful death suit brought by mother of high school student shot by another student because the school had no duty to supervise the student when the incident occurred off school premises).

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    John M. ROBITAILLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1806.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.
    Rehearing Denied Dec. 18, 2006.

      John M. Robitaille, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, John Robitaille, appeals the trial court’s summary denial of his motion for postconviction relief from his DUI manslaughter conviction. We affirm on all issues and write to address two issues. First, appellant contends that his trial attorney provided ineffective assistance by failing to object to the state’s toxicologist’s testimony regarding blood alcohol levels. When considering all of the evidence, we conclude that he has not shown Strickland prejudice. Second, we also conclude that he has failed to show that counsel was ineffective in failing to object to opinions an officer expressed, which were allegedly beyond the officer’s area of expertise.

Robitaille was charged with DUI manslaughter and manslaughter by culpable negligence for the death of Christopher Petrovich, the eight-year-old son of Robit-aille’s friend, Clinton Petrovich. Robitaille was driving an ATV and towing Christopher in a disabled go-cart. When Robit-aille made a turn, the go-cart flipped, and Christopher was thrown from the go-cart onto the road. Christopher received serious head injuries and later died. Robit-aille was found guilty at trial of DUI manslaughter but not guilty of manslaughter by culpable negligence.

As we said in Martelus v. State, 924 So.2d 881, 882 (Fla. 4th DCA 2006),

To prevail on a claim of ineffective assistance of trial counsel, a defendant must show that counsel’s performance was deficient and prejudicial. Deficient performance is that which falls below an objective standard of reasonableness considering the circumstances, and the test for prejudice calls for a determination of whether there is a reasonable probability that, but for counsel’s deficiency, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, Robitaille has not shown that but for counsel’s deficiencies the results would have been different.

At trial, Clinton Petrovich testified that Robitaille had come over to the Petro-vich house in the morning and stayed the rest of the day, working and riding on go-carts and dirt bikes. During that time, Petrovich observed Robitaille drink a few beers. After the accident, when the officers arrived, Robitaille admitted that he had consumed a few beers during the day, and the officer in charge informed Robit-aille that he had probable cause to request a blood sample. A paramedic drew Robit-aille’s blood at the accident scene. Testing revealed that Robitaille’s blood alcohol level was .14 at the time of the draw, which was about three hours after the accident. In addition, some witnesses testified to Robitaille’s slurred speech, bloodshot eyes, and the odor of alcohol on his breath. Other witnesses did not notice any signs of intoxication. Robitaille himself testified that he did have some beers earlier in the day, but did not drink shortly before the accident.

The state’s toxicologist, Thomas Carroll, testified based upon a hypothetical proposed by the prosecutor regarding the blood alcohol level for a 36-year-old male, 5' 11" tall and 170 pounds. Although defense counsel objected to the hypothetical based upon facts not in evidence, the trial court overruled the objection, and Carroll testified that the blood alcohol level at the time of the accident could have been as high as .18 or as low as .09, both figures over the legal limit.

Susan Lewis, the toxicologist who actually tested Robitaille’s blood sample, was also asked to calculate Robitaille’s blood alcohol level at the time of the accident. However, she was given a hypothetical that the person was between 5'11" and 6'0" tall and weighed between 170 and 180 pounds and had eaten in the morning. Because the state supplied different facts, Lewis had a slightly different range indicating his blood alcohol level could have been as low as .081.

Robitaille now contends that his counsel was ineffective for failing to challenge this evidence and effectively cross-examine these witnesses, because they relied on inaccurate facts in calculating the blood alcohol level. Citing the arrest record,-Robitaille says when he was booked at the jail on the afternoon of the accident, he was 190 pounds and 6'0" tall. He also consumed snacks all day long.- Because his weight was higher and he consumed food throughout the day, it would have changed the range of the blood alcohol level at the time of the accident, which may have placed the lower level of the range within the legal limit.

We disagree that the use of the higher weight in the calculations would have reasonably changed the outcome of these proceedings so as to establish Strickland prejudice. Carroll testified that a person’s height and weight are important in calculating blood alcohol levels, because the height and weight indicate how much water is in the body. Carroll explained that whether a person has food in his or her stomach is also important because food can delay alcohol from entering the blood by up to four hours. However, Carroll and Lewis both testified at trial that for Robit-aille’s blood alcohol level to have been at the low end of the range, he would have had to consume all of the alcohol within fifteen minutes of the accident. For his blood alcohol level to have been at the high end of the range at the time of the accident, Robitaille had to have been drinking over an extended period of time, so that all of the alcohol was absorbed and he was in the elimination phase.

According to Robitaille’s own testimony at trial, he had his first drink around 9:30 a.m., and he expressly denied drinking within fifteen minutes before the accident. The accident occurred around 5:30 p.m. Based on Robitaille’s own testimony that he had consumed alcohol earlier in the day and not shortly before the accident, he has not shown that the corrected height and weight was likely to change the outcome in this case. The discrepancy in calculations would not have changed the result because of Robitaille’s own testimony on the timing of his alcohol consumption.

In a second point, Robitaille also alleges ineffective assistance of counsel in failing to object when the investigating officer expressed opinions that the speed of the ATV as well as the length of rope contributed to the accident. Defense counsel objected to lack of foundation, and the state responded that the officer was an expert. We cannot find that the court ever expressly qualified the officer as an expert in accident reconstruction. However, based upon his experience to which he testified, there is no reason to believe the judge would not have found him qualified if defense counsel had raised an objection. See Gulley v. Pierce, 625 So.2d 45 (Fla. 1st DCA 1993) (a trial court has broad discretion in deciding whether a witness is qualified to testify as an expert).

Moreover, given the fact that the jury acquitted Robitaille of manslaughter by culpable negligence, we do not think that there is any reasonable probability that the outcome of the proceedings would have been different, even if the officer’s opinions were impeached, as they were more probative of negligence than the issues involved in DUI manslaughter. DUI manslaughter requires that the defendant, with a blood alcohol level in excess of .08, cause or contribute to an accident involving a death. § 316.193(3), Fla. Stat. Here, Robitaille operated the ATV pulling the go-cart. There was testimony that he was driving too fast, and other lay witnesses testified that they heard the ATV “racing up the street.” Therefore, even had the officer not testified, there would have been evidence that the operation of the vehicle contributed to the accident resulting in the death of the child. The evidence also showed that Ro-bitaille had a blood alcohol level in excess of .08. Therefore, the result would not have changed had the officer’s testimony been challenged or even excluded.

For these reasons, we conclude that the trial court did not err in summarily denying the motion for postconviction relief.

Affirmed.

STONE and KLEIN, JJ., concur.


text:
    Robin Diann YOUNG, D.D.S., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
    No. 1D06-1175.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2006.
    John U. Biedenharn, Jr., and Brian Gil-lis, of Bogin, Munns & Munns, P.A., Orlando, for Petitioner.
    Wings S. Benton, Assistant General Counsel, Prosecution Services Unit, Department of Health, for Respondent.
   PER CURIAM.

The petition to review non-final agency action is denied on the merits.

BROWNING, C.J., BARFIELD and VAN NORTWICK, JJ., concur.


author: ROBERTS, CHARLES E., Associate Judge.

text:
    Donald CONHAGEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-686.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.
    Stephen M. Grogoza, Naples, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ROBERTS, CHARLES E., Associate Judge.

Donald Conhagen appeals an order revoking his sex offender probation and sentencing him to nine years and eleven months’ prison. Because the State failed to prove that Conhagen willfully and substantially violated a condition of his probation, we reverse and remand with instructions to reinstate his probation.

The State charged Conhagen with violating condition twenty-eight of his probation, which reads as follows:

Until successful completion of a sex offender treatment program, you will not have any unsupervised contact with a child under the age of eighteen unless authorized by the sentencing Court without another adult present who is responsible for the child’s welfare, and has been advised of the crime and is approved by the sentencing Court.

The evidence presented at the violation of probation hearing included the following: Conhagen is a pilot and an aircraft owner. He kept his airplane at the Naples airport. European American Aviation (EAA) is a tenant of the airport and had advertised an “open house” event to be held at the Naples airport on December 3, 2005. EAA is a supplier of avionics and other aircraft equipment and a provider of flight instruction.

Bruce Bottelaum, EAA’s chief flight instructor, described the purpose of the open house:

This was a presentation on new avionics equipment, and we were going to be— we had already taken delivery of an airplane with that sort of equipment. This open day was kind of an introduction to existing customers and to new customers, marketing basically, to advertise the fact that we would have two of these airplanes available for rental and training.

The event was scheduled to take place from 11:00 a.m. until 2:00 p.m., with most of the time devoted to various seminars. The program included a seminar about new equipment and an afternoon seminar to explain the tax advantages of airplane ownership and leaseback. Approximately twenty minutes were available for a lunch break. EAA provided lunch for the attendees and set up several picnic tables in the parking lot which could be used by the attendees to eat lunch. EAA also set up an inflatable “bounce house” to entertain any children who might accompany their parents to the open house, although it is clear from the record that the event was not for the benefit of children. EAA posted a sign warning that parents must supervise their children’s use of the bounce house. Further, children were not allowed to wander about the airport without parental supervision. The bounce house was set up in one of the parking spaces adjacent to the picnic tables.

Although the open house was publicly advertised, EAA also sent invitation cards to licensed pilots and other persons known to be interested in aviation. Conhagen received an invitation card and advised his probation officer that he was going to attend the airport open house. Conhagen had no reason to anticipate the presence of children at this event. He did attend, and during the lunch break he joined other attendees at the picnic tables to eat the lunch provided by EAA.

When Vicki Martinez, the office manager for EAA, was told that Conhagen, a registered sex offender, would be attending the event, she contacted Deputy Parker to ask what she should do. Parker advised her that if Conhagen was there and “noticed the children and didn’t leave,” that Martinez should contact him.

When Martinez observed Conhagen seated at one of the picnic tables, she called Deputy Parker. When Parker arrived, he observed Conhagen seated with a group of adults at one of the tables and caused photographs to be taken of Conha-gen. The photographs show a group of adults, including Conhagen, sitting at a picnic table four parking spaces from the bounce house. Conhagen did not leave the table and did not make any contact with a child. Following lunch, Conhagen returned to the seminars. Several days later, Conhagen was arrested on a warrant charging him with violating probation condition twenty-eight.

The trial court may revoke probation only if the State proves by the greater weight of the evidence that the defendant willfully and substantially violated a specific condition of the probation. Hicks v. State, 890 So.2d 459 (Fla. 2d DCA 2004). Here, the State failed to meet its evidentiary burden.

The State charged Conhagen with violating condition twenty-eight by alleging that he had unsupervised contact with children. However, none of the evidence, including the photographs, supports the allegation of contact, whether supervised or not. The revocation order is reversed and the ease is remanded with instructions to reinstate Conhagen’s probation.

Reversed and remanded with instructions.

KELLY and WALLACE, JJ., Concur.


text:
    Russell T. NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4908.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2006.
    Russell T. Neal, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: WALLACE, Judge.

text:
    Patrick WALSH, Appellant, v. PAW TRUCKING, INC., Appellee.
    No. 2D06-1080.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 2006.

      Robert Hitchens of Paul W. Hitchens, P.A., St. Petersburg, for Appellant.
    Thomas J. Zandecki of Thomas J. Zan-decki, P.A., New Port Richey, for Appel-lee.
   WALLACE, Judge.

Patrick Walsh seeks review of a temporary injunction that enforces a covenant not to compete contained in an employment agreement between Mr. Walsh and his former employer, PAW Trucking, Inc. On appeal, Mr. Walsh makes three arguments: (1) the trial court erred in finding that he had violated the covenant not to compete because none of the four companies that were named in the injunction were “customers” within the meaning of the covenant, (2) the scope of the geographical area within which he was restricted from competing with PAW Trucking by the covenant was unreasonable, and (3) the trial court erred in entering the temporary injunction because it failed to make the required findings of fact. Mr. Walsh’s first two arguments are without merit and do not require discussion. However, his third argument has merit. Accordingly, we reverse the trial court’s order granting the temporary injunction, and we remand this case to the trial court for the entry of a proper order that includes the necessary findings of fact on whether the entry of a temporary injunction is warranted.

At the conclusion of the hearing on PAW Trucking’s motion for a temporary injunction, the trial court announced that PAW Trucking had met its burden of showing a prima facie case and stated that it intended to enter the injunction. In the written order that followed the conclusion of the hearing, the trial court found that PAW Trucking “has met its burden of proof in order for the Court to grant temporary injunctive relief’ against Mr. Walsh. However, the trial court did not make findings of fact, either orally or in writing, that would support its entry of the temporary injunction.

Covenants not to compete are governed by section 542.335, Florida Statutes. Section 542.335(l)(j) authorizes trial courts to enter temporary injunctions as one method of enforcing a covenant not to compete. See Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 529-30 (Fla. 5th DCA 2003) (stating that covenants not to compete that “fit[ ] within the parameters of section 542.335 ... may be enforced by the injunctive power of the courts”). Generally, when a trial court enters an order for a temporary injunction, it must make four specific, factual findings in support of its order. Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005). The trial court must find that the movant established “(1) a likelihood of irreparable harm; (2)[the] unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) [that] considerations of public interest support the entry of the injunction.” Id. In the case of a temporary injunction to enforce a covenant not to compete, the trial court’s findings should specifically relate to the alleged breach of the covenant. See id. at 666-67 (requiring that the trial court make specific findings to support the entry of an injunction).

The requisite findings may be quickly outlined. Section 542.335(l)(j) provides that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” An enforceable restrictive covenant is one in which “the contractually specified restraint is reasonably necessary to protect [a] legitimate business interest.” § 542.335(l)(c), Fla. Stat. (2003). Section 542.335(l)(c) empowers the trial court enforcing a covenant to “modify the restraint” in the covenant to ensure that the covenant imposes only the restraint that is reasonably necessary to protect the legitimate business interest. Therefore, to benefit from the presumption of irreparable injury, the party seeking to enforce a covenant not to compete must show that the covenant protects a legitimate business interest as defined by section 542.335(l)(b) and that the covenant was violated. See Colucci v. Kar Kare Auto. Group, 918 So.2d 431, 438 (Fla. 4th DCA 2006) (citing Hapney v. Cent. Garage, Inc., 579 So.2d 127, 134 (Fla. 2d DCA 1991), for the proposition “that [the] proof of a legitimate business interest is ‘the threshold for a presumption of irreparable harm on breach of [the] contract.’ ”). A trial court’s finding that a covenant protects a legitimate business interest is also important to public interest considerations. See Hapney, 579 So.2d at 129-32 (outlining the public interest considerations that bear on enforcing a legitimate covenant not to compete).

Evidence that an enforceable covenant not to compete was breached will support a trial court’s finding of the likelihood of success on the merits. However, the party against whom the injunction is sought may offer “pertinent legal and equitable defenses” to the claimed breach. See § 542.335(l)(g)(2) & (3) (listing various factors that might make the covenant unenforceable); Lotenfoe v. Pahk, 747 So.2d 422, 425 (Fla. 2d DCA 1999) (noting that the appellant’s “two potential defenses” placed the appellee’s likelihood of success on the merits in question); Supinski, 853 So.2d at 532 (discussing the finding of likelihood of success on the merits in the context of a covenant not to compete). In this case, Mr. Walsh did not assert any valid defenses to PAW Trucking’s claim that he had breached the covenant not to compete.

Because the trial court did not make the findings necessary to support the entry of the temporary injunction, we are constrained to reverse the order. On remand, the trial court must review the record, determine whether the record supports the four necessary elements, and enter an order with specific findings of fact determining whether PAW Trucking is entitled to a temporary injunction.

Reversed and remanded with directions.

DAVIS and KELLY, JJ., Concur.

      . In this case, the covenant not to compete, signed in May 2004, is governed by the 2003 version of Florida Statutes.

      . The Supreme Court of Florida disapproved of our decision in Hapney on other grounds in Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475 (Fla.1995).


text:
    Andre Tajmayne WALSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4654.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Orville McKenzie of McKenzie & Associates, PLLC, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, Andre Walsh, attempts to appeal the denial of his motion to dismiss after a plea bargain. Defense counsel initially stated he wanted to reserve the right to appeal the denial of his motion to dismiss the case. The trial court stated it would allow that only if the defendant pled open. The defendant then asked for a continuance, which was granted. Subsequently, the case came back before the trial court and a plea bargain was announced whereby the defendant would receive no more than 90 days incarceration. Defense counsel did not revisit the prior attempt to reserve the right to appeal. The defendant was sentenced to six months probation.

Florida Statutes section 924.051(4) states:

If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.

Where, as here, the ruling was indisputably dispositive, neither the trial court nor the State can prevent the defendant from pleading open and expressly reserving the right to appeal the ruling. The trial court in this case recognized as much. However, where the plea is bargained for, the right to appeal a dispositive ruling is an element of the bargain and either the trial court or the State can refuse a bargain which would reserve that right. The trial judge in this case made clear that he would not accept a plea bargain which contained a reservation of the right to appeal his denial of the motion to dismiss. After the continuance, the defendant and the State came back with a plea bargain which made no further attempt to reserve the right to appeal. The trial court accepted the bargain, sentencing the defendant to less than 90 days in jail. No dispositive issue having been reserved for appeal, we affirm. See Robinson v. State, 373 So.2d 898 (Fla.1979).

Affirmed.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Andrew Jay KUNZIE, as Personal Representative of the Estate of Angela Gail Kunzie, Appellant, v. GLAXO WELLCOME, INC., n/k/a Smithkline Beecham Corporation, et al., Appellee.
    No. 1D05-4627.
    District Court of Appeal of Florida, First District.
    Nov. 27, 2006.
    John S. Mills and Bryan S. Gowdy of Mills & Carlin, P.A., and Angelo M. Patac-ca, Jr., of Terrell Hogan Ellis Yegel Wei, P.A., Jacksonville, for Appellant.
    Mercer K Clarke and Kelly Anne Luther of Clarke Silvergate & Campbell, P.A., Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Felix v. Hoffmann-LaRoche, Inc., 540 So.2d 102 (Fla.1989).

ERVIN, ALLEN, and WOLF, JJ., concur.


text:
    David Lee SEBASTIAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5478.
    District Court of Appeal of Florida, First District.
    Nov. 27, 2006.

      David Lee Sebastian, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The relief requested in all pending petitions and pleadings is denied on the merits.

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    Dean WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5112.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.
    Michael Ufferman, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

ON MOTION FOR REHEARING

.We withdraw our previously issued per curiam affirmance and substitute the following written opinion in its place.

Appellant, Dean Wilson, appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 alleging newly discovered evidence. Appellant’s bare-bones motion failed to make the required factual allegations and failed to contain an oath as required by rule 3.850(c). Accordingly, we affirm, but without prejudice to appellant’s filing a sworn, facially sufficient amended motion for postconviction relief in the trial court within thirty days of the issuance of this Court’s mandate. See Thompson v. State, 772 So.2d 582 (Fla. 1st DCA 2000); Williams v. State, 884 So.2d 138 (Fla. 2d DCA 2004). Any such motion shall not be deemed successive. We express no opinion as to the merits of appellant’s claims.

LEWIS and THOMAS, JJ., concur.

WOLF, J., dissents without opinion.


text:
    William Brett HENKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2211.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.
    William Brett Henke, pro se, Petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner is hereby afforded a belated appeal from judgment and sentence in Escambia County case numbers 2002 CF 5901-K, 2004 CF 3655-K, and 2004 CF 3656-K. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed for petitioner for the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Mario BALDWIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3428.
    District Court of Appeal of Florida, First District.
    Nov. 28, 2006.
    Mario Baldwin, pro se, Petitioner.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Mario Baldwin is hereby afforded a belated appeal from the order of March 6, 2006, denying postconvietion relief in Escambia County Circuit Court case numbers 89-1531 CFB, et al. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. 9.141(c)(5)(D).

PETITION GRANTED.

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


author: LaROSE, Judge.

text:
    J.R.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5191.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 2006.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

J.R.P. appeals his delinquency adjudication and sentence of probation for obstructing a law enforcement officer. See § 843.02, Fla. Stat. (2005). The officer had no reasonable suspicion that J.R.P. had committed a crime and, therefore, had no basis to detain him. Accordingly, we reverse.

A police officer saw J.R.P. and another juvenile run from a convenience store, get into a car, and drive off at an unspecified “rate of speed.” The officer thought that the juveniles had robbed the convenience store. In fact, no robbery had occurred. Not knowing that, however, the officer gave chase, activating his patrol car’s lights and sirens. The driver, who was not J.R.P., did not stop. The car pulled into a parking lot, and the two juveniles jumped from the car before it came to a complete stop. The officer chased and, eventually, caught J.R.P.

In order to prove that a defendant is guilty of unlawfully obstructing an officer without violence, the state must establish that the defendant fled with knowledge of the officer’s intent to detain him and the officer was justified in making the detention due to his founded suspicion that the defendant was engaged in criminal activity.

D.M. v. State, 681 So.2d 797, 798 (Fla. 2d DCA 1996) (citing F.E.C. v. State, 559 So.2d 413 (Fla. 2d DCA 1990)); see also V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001).

Our decision in D.M. is instructive. 681 So.2d 797. The appellant/ defendant was a passenger in a vehicle that ran a red light and nearly struck a police car. Id. at 798. When the officers tried to initiate a traffic stop, the vehicle continued on its way. Id. D.M. and the other occupants fled from the vehicle while it was still moving. Id. The police apprehended D.M. and charged him with obstructing an officer without violence. Id. On appeal, we reversed D.M.’s conviction, concluding that the officers lacked a well-founded suspicion that D.M. was involved in criminal activity. Id. “[F]light alone does not give rise to a well-founded suspicion nor does it constitute obstructing an officer.” Id.; see also F.J.R. v. State, 922 So.2d 308, 310 (Fla. 5th DCA 2006); J.P. v. State, 855 So.2d 1262, 1266 (Fla. 4th DCA 2003); S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995).

Unprovoked flight in a high crime area may provide reasonable suspicion to justify an investigatory stop. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Our record, however, is silent as to whether the incident occurred in a high crime area. Further, the officer did not articulate a reasonable suspicion that J.R.P. had broken the law. The officer did not see J.R.P. commit any crime. There is no indication that the juveniles ran or sped away because they saw the officer. There was no report of a robbery, the officer saw no items or money in the juveniles’ hands as they left the store, and no one was chasing them from the store. Any suspicion that J.R.P. had robbed the convenience store was unfounded. See Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001) (holding that where officer’s lack of knowledge whether defendant engaged in criminal activity prompts investigatory stop, detention is supported by no more than a hunch not sufficient for stop) (citing McCloud v. State, 491 So.2d 1164, 1167 (Fla. 2d DCA 1986)). Well-founded suspicion requires more than a mere hunch. McCloud, 491 So.2d at 1167 (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Perhaps, the officer had a basis to stop the driver for traffic infractions. But, J.R.P was a passenger who had the right to leave the scene of the traffic stop. See Faulkner v. State, 834 So.2d 400, 402 (Fla. 2d DCA 2003) (holding that it is illegal to detain passenger in traffic stop absent a reasonable suspicion that passenger has committed crime or is threat) (quoting Wilson v. State, 734 So.2d 1107, 1111-12 (Fla. 4th DCA 1999) (“[A] command preventing an innocent passenger from leaving the scene of a traffic stop to continue on his independent way is a greater intrusion upon personal liberty than an order simply directing a passenger out of the vehicle.”)); Barrios v. State, 807 So.2d 814, 815 (Fla. 4th DCA 2002) (holding innocent passenger’s .arrest for resisting police officer without violence improper because passenger could resist officer’s direction to stand by vehicle); F.J.R. v. State, 922 So.2d 308, 310 (Fla. 5th DCA 2006). The State does not allege that the officer suspected J.R.P. of a traffic violation, or that J.R.P. “pose[d] an articulable suspicion of danger to officer safety.” See Wilson v. State, 734 So.2d 1107, 1111 (Fla. 4th DCA 1999). Nor does the State contend that J.R.P. was detained as a potential witness to the traffic violation. See Williams v. State, 640 So.2d 1206, 1208-09 n. 2 (Fla. 2d DCA 1994) (stating officer has authority to detain potential witness under clearly defined exigent circumstances). The officer detained J.R.P. solely on the unfounded suspicion that he had robbed the convenience store. On the record before us, J.R.P.’s conduct did not constitute the crime of resisting an officer.

Reversed.

WHATLEY and CASANUEVA, JJ., Concur.

      . 843.02. Resisting officer without violence to his or her person
      Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.


text:
    CITY OF POMPANO BEACH, Florida, a Florida Municipality and East Pompano Beach Community Redevelopment Agency, a Florida entity, Petitioners, v. SWERDLOW LIGHTSPEED MANAGEMENT COMPANY, LLC, a Florida Limited Liability Company, Swerdlow Lightspeed Management Company, LLC/International Swimming Hall of Fame, Inc. Joint Venture, a Florida Joint Venture and International Swimming Hall of Fame, Inc., a Florida non-profit company, Respondents.
    No. 4D05-4116.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Vanessa A. Reynolds, Susan H. Aprill and Daniel S. Weinger of Conrad & Scherer, LLP, Fort Lauderdale, for petitioners.
    Jack J. Aiello and William Spencer of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for respondents Swerdlow Lightspeed Management Company, LLC., Swerdlow Lightspeed Management Company, LLC/International Swimming Hall of Fame, Inc. Joint Venture, Pompano Beach Pier, Ltd., Pompano Beach Pier, Inc., and Hall of Fame Parking, LLC.
    John K. Shubin and Jeffrey S. Bass of Shubin & Bass, P.A., Miami, for respondent International Swimming Hall of Fame, Inc.
   PER CURIAM.

Petitioners, the City of Pompano Beach (the “City”) and East Pompano Beach Community Redevelopment Agency (“CRA”), challenge a Broward Circuit Court order requiring the City’s present and former commissioners to appear for deposition, but protecting them from testifying as to matters “touching the legislative process.” For the reasons which follow, we dismiss the petition as premature.

This cause stems from a 2003 lawsuit filed by respondents, Swerdlow Lightspeed Management Company, LLC, Swerdlow Lightspeed Management Company, LLC/International ■ Swimming Hall of Fame, Inc. Joint Venture, and International Swimming Hall of Fame, Inc., against petitioners, the City and CRA, on claims including wrongful termination and breach of an agreement for the redevelopment of two parcels of land in a community redevelopment area established by the City. Respondents alleged they had an agreement to work on a redevelopment project known as the “Olympic Beach Project,” which petitioners allegedly terminated on April 1, 2003. Respondents claimed damages exceeding $60,000, including lost profits and special and consequential damages.

Respondents served notices of intent to depose the City’s current and former commissioners. Their counsel later explained he intended to question the commissioners about their decision to terminate the alleged contract, what they had been told, and what their understanding was regarding the existence of a contract. Petitioner City moved for a protective order on the grounds of legislative testimonial immunity. After hearing argument of counsel, the trial court entered an order acknowledging the commissioners’ entitlement to legislative immunity, but ruling that they would have to testify as to non-legislative actions nonetheless because the lawsuit “involves a contract that the city entered into and later sought to terminate. Just like any other private party, the individuals involved in that process should be required to testify.” The order provided that the City’s commissioners, managers, and assistant managers had immunity only for actions taken in a legislative capacity, so they did not have to answer questions “touching on that process.” They were, however, required to testify on non-legislative matters surrounding the contract.

Petitioners now seek certiorari review of the order requiring the City’s current and former commissioners to submit to depositions regarding the City’s decision to terminate contract negotiations. For certiorari relief, petitioners must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995).

State and local officials are immune from civil suits for their acts done within the sphere of legislative activity. See gen erally Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); see also United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). However, the fact that the commissioners may be entitled to absolute immunity from suit does not necessarily afford them a testimonial privilege. See Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehabilitative Servs., 164 F.R.D. 257 (N.D.Fla.1995).

Section 90.501 of the Florida Evidence Code provides that no person has a privilege to refuse to be a witness or refuse to disclose any matter except as otherwise provided in this chapter, any other statute, or the Florida or United States Constitution. See § 90.501, Fla. Stat. No Florida legislative testimonial privilege has been recognized in the Evidence Code, statutes, or Florida constitution. The federal courts which have acknowledged and applied the privilege have done so based largely on the Speech and Debate Clause in Article I, section 6, of the United States Constitution, which protects federal legislators from suits. See, e.g., Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); M Sec. & Invs., Inc. v. Miami-Dade County, Fla., 14 Fla. L. Weekly Fed. D480 (S.D.Fla. Aug. 14, 2001). There is no counterpart to this clause in Florida’s constitution or laws.

Nevertheless, petitioners have argued that the Separation of Powers Clause of Article II, section 3, of the Florida Constitution supports recognition of a legislative testimonial privilege. This was argued by the appellant in Girardeau v. State, 403 So.2d 513 (Fla. 1st DCA 1981). There, the court affirmed a contempt adjudication of a legislator for refusing to answer questions posed by a grand jury in a criminal investigation. The legislator had served on a committee investigating the Florida Department of Corrections. The First District did not decide the issue of whether the legislator had a legislative testimonial privilege not to testify as to the investigation, but ruled instead that even if such a privilege existed, it would yield to the needs of the criminal justice system for evidence of a crime alleged to have been committed in the state. See id. at 516-17.

In Florida Ass’n of Rehabilitation Facilities, Inc. v. State of Florida Department of Health & Rehabilitative Services, the federal court stated that while there was no testimonial legislative privilege applicable to state legislative employees subpoenaed to testify at a deposition concerning a state Medicaid program, there might be a “deliberative process privilege.” 164 F.R.D. at 267-68. In this case, the question of whether a testimonial legislative privilege protects these city officials has been presented prematurely. Respondents have not yet formulated their questions for deposition. The trial court has ruled that the questioning may not extend to matters “touching the legislative process.” Under these circumstances, we find petitioners’ privilege challenge premature, and dismiss without prejudice to their right to seek relief in the event the trial court should require the answer to any questions claimed to violate a privilege. We reject petitioners’ other challenges.

STEVENSON, C.J., WARNER and SHAHOOD, JJ., concur.


author: POLEN, J.

text:
    Armando TARIN, Appellant, v. Stanley SNIEZEK and Melinda Sniezek, Appellees.
    No. 4D05-2465.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.

      Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellant.
    Martin S. Awerbach and Michael A. Cohn of Awerbach & Cohn, P.A., Clear-water, for appellees.
   POLEN, J.

This appeal arises from a May 19, 2005 non-final order denying appellant Armando Tarin’s motion for summary judgment and granting appellees Stanley and Melinda Sniezek’s cross-motion for summary judgment. We affirm and find that the trial court correctly ruled that Tarin did not gain title to the land at issue in this dispute through boundary by acquiescence.

This action arose out of a dispute between Tarin and the Sniezeks over a fenced-in parcel of residential land. Tarin acquired record title to Lot 97 of Cam Estates in December 1995. The Sniezeks acquired record title to an adjoining property to the north, Lot 99, in March 2003. When Tarin acquired Lot 97, there was an existing fence (“the fence”) from Lot 97 that traversed and enclosed a portion of Lot 99 (“the disputed property”).- Since 1995, Tarin repaired and maintained the fence and was in exclusive control, care and maintenance of the disputed property.

In connection with his purchase of Lot 97, Tarin obtained a survey which showed the true boundaries of Lot 97 and revealed the encroachment of the fence onto Lot 99. However, of the three segments comprising the fence, only the western segment appeared on the survey. The northern and eastern segments were not identified, the eastern section representing the border which Tarin sought to establish as the boundary by acquiescence between Lots 97 and 99.

Shortly after the Sniezeks purchased Lot 99 in March 2003, they reviewed an appraisal which showed their property’s true boundaries. The appraisal revealed that the fence encroached onto Lot 99 and that the disputed property was actually part of their lot. The Sniezeks informed Tarin of the encroachment. Tarin responded by filing a declaratory judgment action seeking to establish ownership of the disputed property through the doctrine of boundary by acquiescence, based upon the location of the fence and Tarin’s possession and control for more than seven years. The Sniezeks denied the allegations and, more than seven years after Tarin acquired title to Lot 97, filed a counterclaim for ejectment to recover possession of the disputed property.

Tarin proceeded to file a motion for summary judgment on the counterclaim, asserting that since he had been in open, notorious and exclusive possession of the disputed property since 1995, the Sniezeks’ counterclaim was foreclosed as a matter of law by section 95.12, Florida Statutes (2006). The Sniezeks responded with a cross-motion for summary judgment, asserting that Tarín could not sustain his claim to establish a boundary by acquiescence because the true boundary line was never in dispute. The trial court denied Tarin’s motion for summary judgment and granted the Sniezeks’ cross-motion. In so doing, the court found that the recorded instruments in the chains of title, in addition to the survey that Tarín received upon purchase of Lot 97, clearly indicated the boundaries of the two lots. As such, the court concluded that Tarín was foreclosed from arguing that the mislocated fence created the requisite doubt or uncertainty needed to establish a boundary by acquiescence.

Tarín filed a motion for rehearing, claiming that the evidence created genuine issues of material fact as to the Sniezeks’s right of possession. Rehearing was denied. This appeal follows.

Boundary by Acquiescence

In his first point on appeal, Tarín argues that the trial court prematurely rejected his claim of boundary by acquiescence as a matter of law. He contends that the placement of the fence permitted reasonable inferences in his favor regarding the element of mutual uncertainty as to the true boundary between Lots 97 and 99. For the reasons that follow, we disagree and affirm the trial court’s decision.

Summary judgment orders are reviewed de novo. See Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). “Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999). Moreover, an appellate court reviewing a ruling on summary judgment must examine the record in the light most favorable to the non-moving party. City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003).

To establish a boundary by acquiescence, a party must prove: (1) uncertainty or dispute as to the location of the true boundary; (2) location of a boundary line by the parties; and (3) acquiescence in the location for the prescriptive period. Shaw v. Williams, 50 So.2d 125, 126 (Fla.1950). Moreover, “uncertainty means actual lack of knowledge on the part of both owners as to the true boundary.” Id. at 127-28. To be entitled to summary judgment based upon the doctrine of boundary by acquiescence, the moving party must establish the existence of all three elements based on the undisputed material facts. Horizon S. Master Home Owners Ass’n v. West, 591 So.2d 665, 668 (Fla. 1st DCA 1991).

Tarín contends that the trial court erred in granting the Sniezeks’ cross-motion for summary judgment because there was a genuine issue of material fact as to the first Shaw factor: uncertainty or dispute as to the location of the true boundaries of his property. See Shaw, 50 So.2d at 126. Citing McDonald v. Givens, 509 So.2d 992 (Fla. 1st DCA 1987), he first argues that the mere placement and duration of the fence for the prescriptive period evidenced the requisite “dispute” or “uncertainty” about the true boundary required to establish a boundary by acquiescence. See Givens, 509 So.2d at 993 (finding that “the placement and duration of a fence itself, absent another explanation for its specific location, is sufficient evidence of the requisite doubt or uncertainty to establish a boundary by acquiescence”) (citing McDonald v. O’Steen, 429 So.2d 407, 409 (Fla. 1st DCA 1983)). However, this case is distinguishable from McDonald v. Givens—McDonald did not conduct or otherwise receive a survey of his property until thirteen years after he purchased his land. Id. As a consequence, the fence provided the only indication of the true boundaries of his property during the prescriptive period. Id. Tarin, on the other hand, received a survey of Lot 97 when he purchased it in 1995. He was therefore aware of the precise limits of his property at the inception of his ownership and he did not have to rely on the fence to identify those boundaries.

Tarin also relies on Peters v. Straley, 306 So.2d 588 (Fla. 2d DCA 1975), in which the second district found that a misplaced fence could establish a boundary by acquiescence, or at least preclude summary judgment, despite the boundaries outlined in a deed. Straley, 306 So.2d at 589. However, Peters addressed the second element of boundary by acquiescence—whether the parties agreed to the boundary. Id. at 590. It did not address the first element, dispute or uncertainty regarding the true boundary. See id. Therefore, Peters does not apply to this case.

Tarin also argues that he was uncertain as to the boundaries of his property because he did not read the survey. However, “a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; [ ] it will not suffice the law to remain willful ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.” Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932); see also Ruiz v. Fortune Ins. Co., 677 So.2d 1336, 1338 (Fla. 3d DCA 1996) (finding actual notice of cancellation of homeowner’s insurance legally sufficient and binding, whether or not appellants read or understood the import of such notice). When Tarin received the survey upon purchase of his property, he was charged with notice of its true boundaries. His assertion that he did not understand or did not read the survey does not serve as a defense. Therefore, his failure to read the survey did not provide him with the requisite uncertainty to support a boundary by acquiescence.

Lastly, Tarin contends that the survey’s failure to depict the eastern segment of the fence caused him to be misinformed of the true boundaries of his property. This, Tarin maintains, resulted in his belief that the disputed property was his. However, the survey clearly outlined the boundaries of Lot 97. Its failure to fully illustrate the fence as an encroachment onto Lot 99 does not support the conclusion that the property within the fence was his. Therefore, we find that Tarin’s argument in this regard is without merit.

We therefore hold that the trial court did not err in granting the Sniezeks’ cross-motion for summary judgment. The survey informed Tarin of the true extent of his property. This in turn deprived him of the requisite uncertainty for establishment of a boundary by acquiescence.

Whether the Sniezeks’ Crossmotion was Time-barred

Tarin also argues that the trial court erred in granting the Sniezeks’ cross-motion for summary judgment because there was a genuine issue of material fact as to whether their counterclaim for ejectment was time-barred under section 95.12, Florida Statutes (2006) (“No action to recover real property or its possession shall be maintained unless the person seeking recovery ... was seized or possessed of the property within seven years before the commencement of the action.”). We again disagree. Although seisin can be destroyed by acquiescence, see Sembler Marine Partners, Ltd. v. Skidmore, 842 So.2d 1003, 1005 (Fla. 4th DCA 2003) (referring to section 95.12 as an additional basis for affirming a judgment that established a boundary by acquiescence), Tarin did not satisfy the elements of boundary by acquiescence. He therefore never divested the Sniezeks of possession of the disputed property. See Turner v. Wheeler, 498 So.2d 1039, 1042 (Fla. 1st DCA 1986) (stating that the requirement of sei-sin under section 95.12 “is met when a party is possessed of legal title, and this seisin can only be destroyed by establishing the fact that the other party acquired title by adverse possession”) (quoting Moore v. Musa, 198 So.2d 843, 846 (Fla. 3d DCA 1967)).

Affirmed.

KLEIN and MAY, JJ., concur.


text:
    SANTA CATALINA TOWNHOMES, INC., Petitioner, v. Shahbaz MIRZA, Respondent.
    No. 4D06-1022.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Peter M. Hodkin of the Law Offices of Peter M. Hodkin, P.A., Fort Lauderdale, for petitioner.
    Assad S. Mirza of Mirza & Mirza, LLP, Pembroke Pines, for respondent.
   WARNER, J.

Santa Catalina Townhomes, Inc. petitions for writ of prohibition to review an order denying its motion to recuse the trial court judge. Because the judge failed to rule within thirty days of service of the motion, the motion was deemed granted, even though the judge later denied it. We therefore grant the petition. We write to address the issue of our jurisdiction.

The facts giving rise to the recusal motion occurred immediately after a hearing on November 30, 2005. Thus, the ten-day period for filing the motion expired on Monday, December 12 (the tenth day being a Saturday). The motion was served on December 8. Also served was a letter to the judge’s judicial assistant attaching a copy of the motion. The clerk’s docket shows that on December 8, 2005 the petitioner filed the certificate of the attorney pursuant to Florida Rule of Judicial Administration 2.160(c). However, inexplicably the docket also shows the motion and supporting affidavit as being filed with the clerk on Tuesday, December 13, 2005, even though they are all noted as being served on the same day. The respondent filed a response to the motion to recuse but did not allege that the motion was untimely. The court denied the motion as legally insufficient.

Florida Rule of Judicial Administration 2.160(e), (2005), provides that “[a] motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion....” In Thomas v. Chase Manhattan Bank, 857 So.2d 989 (Fla. 4th DCA 2003), we held that merely serving a motion to recuse within ten days of discovery of facts justifying the motion does not comply with the requirement of filing the motion. We therefore denied a petition for writ of prohibition where the motion was untimely in the trial court. We stated in Thomas that the failure to file the motion within the ten-day period requires a subsequent petition for writ of prohibition to be denied.

However, when faced with this issue, the supreme court has held that where the trial court rules on the motion on the merits and not on timeliness, the issue of timeliness is not before the court. In Roberts v. State, 840 So.2d 962 (Fla.2002), the court addressed this issue as follows:

The State contends that Roberts’ motion to disqualify, which was filed on October 16, 1996, and amended on November 12, 1996, was not timely. Florida Rule of Judicial Administration 2.160(e) provides that a motion to disqualify must be made “within a reasonable time not to exceed 10 days after discovery of the facts constituting grounds for the motion and shall be promptly presented to the court for an immediate ruling.” The State raised the issue of timeliness of the motion below, but Judge Solomon did not deny the motion on this basis. Instead, the judge ruled that “the Defendant’s motion to disqualify judge is insufficient, and the motion is denied.” Thus, the timeliness of the motion is not properly before us.

Id. at 969. Although this may be considered dicta because the court then determined that the motion was timely, the court’s opinion nevertheless states that where the judge ruled on grounds of legal insufficiency rather than untimeliness, the question of timeliness is not “properly” before the reviewing court. Thus, the court did not treat this as a “jurisdictional” time period but one that could be waived or not preserved.

Because of Roberts, we conclude that we should recede from Thomas to the extent that it holds that the failure to file a motion to recuse within ten days after discovery of the facts requires the appellate court to sua sponte deny a subsequent petition for prohibition. Unlike the time period for filing an appeal, the ten-day period for filing a motion to disqualify is not jurisdictional. Thus, if the trial court does not rule that the motion is untimely based upon the date of its filing, the issue of timeliness is not properly before the court. That makes sense, because so often the question of timeliness depends upon facts which may be in dispute, such as the date on which the party discovered the facts giving rise to the grounds for disqualification. Factual determinations are made by the trial court, not the appellate court.

Concluding that the timeliness of the motion is not properly before us, we grant the petition because the trial court did not rule on the motion within thirty days as required by rule 2.160®, Florida Rules of Judicial Administration (2006):

The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, then motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Petition granted. This case is remanded for reassignment.

STEVENSON, C.J., GUNTHER, STONE, POLEN, FARMER, KLEIN, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, concur.

      . Were we not determining that the timeliness issue is not properly before us, we would have remanded for a hearing to determine timeliness in light of this discrepancy in docketing dates.

      . In 2006, the Rules of Judicial Administration were renumbered, and now the rule governing the disqualification of trial judges is set forth in rule 2.330. See In re Amendments to the Florida Rules of Judicial Administration, 939 So.2d 966 (Fla.2006).