source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Montgomery Blair SIBLEY, Petitioner, v. FLORIDA JUDICIAL QUALIFICATIONS COMMISSION, Respondent.
    No. SC04-2129.
    Supreme Court of Florida.
    April 27, 2006.
    Rehearing Denied June 15, 2006.
    Montgomery Blair Sibley, pro se, Rock-ville, MD, for Petitioner.
    Richard C. McFarlain, Chair, Tallahassee, FL and Thomas C. MacDonald, Jr., General Counsel, Tampa, FL, for Respondent.
   PER CURIAM.

Petitioner, Montgomery Blair Sibley, an attorney licensed in Florida, has previously filed a “Petition to Review the Actions, Policies and Procedures of the Florida Judicial Qualifications Commission,” which this Court dismissed on April 14, 2005. Since that original filing attorney Sibley has filed numerous other filings which culminated in the issuance by this Court of an order directing Sibley to show cause why we should not limit his filings or otherwise impose sanctions upon him for filing frivolous proceedings in this Court. We now sanction Sibley.

On November 4, 2004, Sibley, a licensed Florida attorney representing himself, filed in this Court a “Petition to Review the Actions, Policies and Procedures of the Florida Judicial Qualifications Commission.” In this filing, Sibley sought to chai-lenge the Judicial Qualifications Commission’s decision not to pursue formal charges against several judges about whom Sibley had filed complaints in relation to his ongoing child custody and child support disputes with his ex-wife. The petition was dismissed by order of the Court, which explained its lack of jurisdiction over the Commission, and that “[tjhis Court does not investigate a determination by the Judicial Qualifications Commission that no formal charges should be initiated against a member or members of the judiciary. See Fla. Jud. Qual. Comm’n R. 6(a).” Sibley v. Fla. Judicial Qualifications Comm’n, No. SC04-2129, order at 1, 926 So.2d 1270 (Fla. Apr. 14, 2005).

In our order of dismissal, the Court noted that since 2002, Sibley had submitted numerous meritless filings in this Court, all related to or emanating out of his 1994 dissolution of marriage proceedings. Id.; see Sibley v. Sibley, 900 So.2d 554 (Fla.2005) (table) (review denied); Sibley v. Sibley, 885 So.2d 388 (Fla.2004) (table) (mandamus petition dismissed); Sibley v. Sibley, 884 So.2d 24 (Fla.2004) (table) (review denied); Sibley v. Sibley, 872 So.2d 899 (Fla.2004) (table) (prohibition petition denied); Sibley v. Sibley, 854 So.2d 660 (Fla.2003) (table) (review denied); Sibley v. Spears, 846 So.2d 1149 (Fla.2003) (table) (review dismissed); Sib-ley v. Spears, 839 So.2d 699 (Fla.2003) (table) (review dismissed); Sibley v. Sib-ley, 833 So.2d 774 (Fla.2002) (table) (review denied). Subsequent to the issuance of the order to show cause, the Court denied review in yet another case filed by petitioner in this Court, Sibley v. Sibley, 901 So.2d 120 (Fla.2005) (table). Accordingly, based on his prior abuse of this Court’s processes, Sibley was directed to show cause “why the Court should not impose upon him a sanction for his litigiousness, such as directing the Clerk of Court to reject for filing any future pleadings, petitions, motions, documents, or other filings related to his 1994 dissolution of marriage proceedings unless they are signed by a member in good standing of The Florida Bar other than petitioner.” Sibley v. Fla. Judicial Qualifications Comm’n, order at 2.

In his response, Sibley rejects the notion that his numerous filings constitute an abuse of judicial process and argues that this Court lacks the authority, constitutionally and otherwise, to impose a sanction upon him and restrict his access to this Court. We disagree. This Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant. See, e.g., Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992); In re Sindram, 498 U.S. 177, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991); In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989); Armstead v. State, 817 So.2d 841 (Fla.2002); Peterson v. State, 817 So.2d 838 (Fla.2002); Jackson v. Fla. Dep’t of Corr., 790 So.2d 398 (Fla. 2001); Rivera v. State, 728 So.2d 1165 (Fla.1998); Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). One justification for such a sanction lies in the protection of the rights of others to timely review of their legitimate filings. See Martin, 506 U.S. at 3, 113 S.Ct. 397 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources); see also Peterson, 817 So.2d at 840 (“This Court has a responsibility to ensure every citizen’s right of access to the courts.... A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.”). As noted by the United States Supreme Court, “[ejvery paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184, 109 S.Ct. 993.

Upon a thorough review of the filings of Sibley in this Court, we conclude that Sibley has abused the processes of the Court and has hindered the ability of this Court to properly resolve those matters which are properly before the Court. We conclude that sanctions are merited on this record. Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents or other filings submitted by Montgomery Blair Sibley in any way related to his domestic disputes, unless signed by a member in good standing of The Florida Bar other than Montgomery Blair Sibley. Under the sanction herein imposed, Sibley is not wholesale being denied access to the courts. He may petition the Court through the assistance of counsel other than himself, whenever such counsel determines that the proceeding may have merit and can be filed in good faith. However, petitioner’s frivolous and abusive filings must immediately come to an end. Further, if Montgomery Blair Sibley submits a filing in violation of this order, he may be subjected to further contempt proceedings or other appropriate sanctions.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


author: PARIENTE, J., ANSTEAD, J., ANSTEAD, J.,

text:
    Mark Dean SCHWAB, Appellant(s) v. STATE of Florida, Appellee(s).
    No. SC07-1603.
    Supreme Court of Florida.
    Nov. 7, 2007.
   Appellant’s Motion to Stay Execution has been considered by the Court and is hereby denied.

LEWIS, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion.

ANSTEAD, J., dissents with opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring.

I agree with this Court’s denial of the motion to stay execution and hold proceedings in abeyance and write to explain my reasoning. Schwab will likely seek a stay in the United States Supreme Court as was done by the defendant in Berry v. Epps and, in my view, that is exactly the procedure that should be followed in this case. Schwab should seek a stay from the United States Supreme Court and it should be that Court’s decision to determine whether it intends a de facto moratorium on the death penalty and whether the issues it is presently reviewing regarding lethal injection justify a stay of Schwab’s execution.

More importantly, as to whether this Court should grant a stay, if this were a case involving the guilt or innocence of Mark Dean Schwab, or a case involving the fairness of his penalty phase, or a case involving the broad question of the constitutionality of the death penalty as a sentence in Florida, I would without hesitation vote to grant a stay. If any of these circumstances were present here, it would truly be a travesty of justice to allow an execution to proceed.

The issue in this case, however, is not even an Eighth Amendment challenge to the constitutionality of lethal injection as a method of executing defendants in Florida. Rather, as explained in detail in Lightb-oume v. McCollum, 969 So.2d 326 (Fla. 2007), the claim is “whether the method of execution through lethal injection, as currently implemented in Florida, is unconstitutional because it constitutes cruel and unusual punishment” under the Eighth Amendment. Id. at 334 (emphasis added). Specifically, unlike challenges to “prior methods of execution, Lightbourne does not assert that lethal injection is inherently cruel and inhumane, only that if it is not properly carried out, there will be a risk of unnecessary pain.” Id. at 346.

Justice Anstead’s dissent relies heavily on the fact that the United States Supreme Court has accepted review in a case raising the very issue of lethal injection, Baze v. Rees, — U.S.-, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007), and since we are obligated to follow the Supreme Court’s interpretation of the United States Constitution (as are all states), we should grant Schwab a stay and wait for the United States Supreme Court to rule in Baze. Our unanimous decision in Lightbourne acknowledged:

[T]he [United States Supreme] Court recently granted certiorari jurisdiction in Baze v. Rees, — U.S.-, 128 S.Ct. 34, 168 L.Ed.2d 809 (U.S. 2007), to review a Kentucky Supreme Court decision which held that Kentucky’s protocol for lethal injection did not violate the Eighth Amendment. In the Baze petition, the petitioners urge the United States Supreme Court to adopt a standard that would interpret the Eighth Amendment to prohibit a method of execution that creates “an unnecessary risk of pain and suffering.” Petitioner’s Petition for Writ of Certiorari at 6, Baze v. Rees, No. 07-5439, (U.S. Sept. 25,2007).

Lightbourne, at 339. In fact, in reviewing Florida’s current procedures, we used as an alternative standard the one urged by the Baze petitioners — that is, whether the procedures as currently implemented create “an unnecessary risk of pain and suffering.” Specifically, we stated in our conclusion in Lightbourne:

[E]ven if the Court did review this claim under a “foreseeable risk” standard as Lightbourne proposes or “an unneees-sary” risk as the Base petitioners propose, we likewise would find that Lightbourne has failed to carry his burden of showing an Eighth Amendment violation. As stressed repeatedly above, it is undisputed that there is no risk of pain if the inmate is unconscious before the second and third drugs are administered. After Diaz’s execution, the DOC added additional safeguards into the protocol to ensure the inmate will be unconscious before the execution proceeds. In light of these additional safeguards and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC’s procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment protections.

Id. at 352-53 (footnote omitted). The converse is also true; that is, if the inmate is not fully unconscious before pancuronium bromide is administered there is a high probability that an inmate will suffer unnecessary pain.

The fact remains that since lethal injection was adopted as the primary method of execution by the Florida Legislature in 2000, there have been many executions by lethal injection. These executions have been carried out without problems in the administration of the chemicals, other than the admitted complications that occurred in the well-publicized Diaz execution. As a result of the Diaz execution, and the subsequent inquiries by the Governor’s Commission and the Department of Corrections into what caused the complications in the Diaz execution, changes in the procedures were made. As we observed in Lightb-oume:

Determining the specific methodology and the chemicals to be used are matters left to the DOC and the executive branch, and this Court cannot interfere with the DOC’s decisions in these matters unless the petitioner shows that there are inherent deficiencies that rise to an Eighth Amendment violation. Lightbourne has failed to overcome the presumption of deference we give to the executive branch in fulfilling its obligations, and he has failed to show that there is any cruelty inherent in the method of execution provided for under the current procedures.

Id. at 352.

If I were in the executive branch and in charge of lethal injections for this state, I would urge the adoption of a one-drug protocol so that only a lethal dose of sodium pentothal would be necessary. Alternatively, I would explore the use of other drugs that carry less risk of pain than pancuronium bromide or potassium chloride. Further, I would consider other means to monitor the state of consciousness, such as the Bispectral Index (BIS) monitor, and would employ individuals who have the medical training and expertise necessary to adequately assess consciousness. However, to date, the United States Supreme Court has not signaled that it intends for the judiciary to engage in that level of scrutiny.

I anticipate that the United States Supreme Court in Baze will clarify both the precise legal standard that should be used in method of execution cases and, more importantly, to what extent the judiciary should scrutinize the specific choices made by the executive branch in deciding how to carry out lethal injections. I am hopeful that our decision in Lightboume, which was reviewed based on a fully-developed record, will assist the United States Supreme Court in making its determination, including answering the second question posed in Baze regarding whether an unnecessary risk of pain and suffering is established “upon a showing that readily available alternatives that pose less risk of pain and suffering could be used.” Baze, — U.S. -, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007) (petition).

ANSTEAD, J.,

dissenting.

The circumstances of this case, and especially the United States Supreme Court’s pending review of the constitutional issues involved, present this Court with a compelling case for ordering that the execution of the appellant be stayed pending the Supreme Court’s resolution of the constitutionality of the use of lethal injection as it is administered in Florida and other states. While the pendency of a case directly on point in the Supreme Court alone constitutes a compelling reason for the entry of a stay, this factor is especially compelling in Florida because our state constitution mandates that this Court must apply the United States Supreme Court’s decision on the issue before us. The majority is clearly ignoring that mandate in refusing to grant a stay here.

Present Circumstances

Presently, the defendant is scheduled to be put to death by lethal injection through the administration of what has been referred to as a three-drug cocktail. With the majority’s denial of a stay, this execution will be the first in Florida since the execution of Angel Diaz in December 2006. That execution has been widely viewed as “botched” because of the difficulty and the extraordinary amount of time it took to administer the lethal three-drug cocktail, and the perception that Diaz was subjected to extensive and unnecessary pain before finally dying. The Diaz execution resulted in the Governor ordering an immediate halt to any further executions in Florida, and the appointment of a commission to investigate the Diaz execution and the protocols utilized by the Department of Corrections for administering the three-drug cocktail, with a view towards ensuring that any problems, constitutional or otherwise, be identified and remedied. In turn, the findings and recommendations of the special commission and the heightened scrutiny on this method of execution has resulted in modifications to the protocol used by the Department of Corrections to administer lethal injection. It is the resulting modifications in the Department of Corrections’ protocols that were ultimately approved by the trial court in rejecting the constitutional claims in Lightboume v. McCollum, 969 So.2d 326 (Fla.2007), and that this Court has in turn approved on appeal in both Lightboume and this case.

The Stay

There are several important factors that operate together to produce a compelling case for staying the appellant’s execution pending the United States Supreme Court’s resolution of the constitutionality of lethal injection and the manner in which it is administered. The first is fundamental and obvious: the consequences of failing to enter a stay will be irremediable. That is, once the appellant is put to death any decision by the United States Supreme Court impacting the use of lethal injection cannot possibly be applied here no matter the merits of the constitutional claims; on the other hand, the grant of a stay will result in no detriment to the State because immediately following any United States Supreme Court’s decision denying relief to Baze the State will be free to execute the appellant in accord with that decision.

Two other factors, however, in favor of granting a stay are, perhaps, the most compelling: First, Florida’s Constitution expressly mandates that this Court apply the United States Supreme Court’s decisions on the cruel and unusual punishment clause of the United States Constitution to any decision we render on the meaning of Florida’s cruel and unusual punishment constitutional provision. In other words, in this case there is an explicit command in Florida’s Constitution that this Court must follow the United States Supreme Court’s decisions on whether death by lethal injection as it is currently being administered constitutes cruel and unusual punishment, the very issue before us. However, as the majority opinion in Lightboume makes abundantly clear, there is presently no United States Supreme Court decision on this issue. If that was the end of the story, this dissent would not be written. But, that is not the end of story, since we know as an absolute fact that the United States Supreme Court has this very issue pending before it and will be rendering a decision that, pursuant to the mandate in Florida’s Constitution, will control the outcome of this case. See Baze v. Rees, — U.S. -, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007). In other words, there is no controlling Supreme Court decision on point at this precise instance, but such a decision is pending. Under these circumstances it is pure sophistry to suggest this Court can ignore the mandate in Florida’s Constitution that we apply Supreme Court law to the constitutional issue before us in this case. Why would we rely on speculating on Supreme Court law, as the majority opinion in Lightboume does, when we know a Supreme Court decision on this very issue is forthcoming? While the majority may be confident in the correctness of its analysis and decision, this Court is constitutionally bound to look to the decision of the United States Supreme Court in the pending case. And, while the risk of some contrary decision by that Court may seem small, there is absolutely no risk of adverse consequences to the State in entering a stay. As the majority opinion in Lightboume acknowledges, other courts around the country have applied a variety of standards and some have invalidated similar lethal injection procedures. Similarly, stays of execution have been entered in other jurisdictions.

Finally, as noted above, the last execution in Florida obviously did not proceed as contemplated, and, despite our approval of the revised protocols of the Department of Corrections, we cannot know what may happen with the next execution. This is especially true because one of the primary claims of those contesting lethal injection, the necessity of professional medical supervision, remains absent in Florida’s protocol. Schwab’s plea for a stay is particularly compelling, because unlike Lightbourne, he has not been afforded an evidentiary hearing on any of his claims, including his claim that the three-drug protocol presents a substantially greater risk of inflicting pain than would the administration of a single lethal dosage of sodium pentothal. As noted in Justice Pariente’s concurring opinion, this specific issue is before the United States Supreme Court in Baze. Of course, Schwab’s right to a hearing on this issue will be mooted by his execution. Further, the defendant is not going anywhere, and, under Florida’s law keeping death warrants alive indefinitely, the setting of a prompt date for execution following a United States Supreme Court decision favorable to the State will be a simple task.

For all these reasons I would grant a stay pending the United States Supreme Court’s resolution of the constitutional issues involved herein.

QUINCE, J., concurs.

ORDER DENYING REHEARING

Appellant’s Motion for Rehearing is hereby denied.

ANSTEAD, J.,

dissenting.

I would grant rehearing, especially on the issue of whether Schwab was denied the right to an individualized evidentiary hearing in which he would be given an opportunity to present his own evidence and contentions in addition to those presented in the Lightbourne case. Unlike Lightbourne, who was granted this opportunity, Schwab has been denied this fundamental right to articulate and prosecute his own claim.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . Berry v. Epps, 506 F.3d 402 (5th Cir.2007), petition for cert, filed, (U.S. Oct. 29, 2007) (No. 07-7348). In Berry, the United States Supreme Court granted a stay pending disposition of Berry’s petition for writ of certiorari, providing that if the petition for writ of certio-rari is denied, the stay "shall terminate automatically.” Id. (U.S. Oct. 30, 2007) (unpublished order). The order also provides that if Berry's petition is granted, "the stay shall terminate upon the sending down of the judgment of the Court.” Id. In this case, if Schwab moves the United States Supreme Court for a stay in conjunction with the filing of a petition for writ of certiorari, that Court can decide whether to grant the stay and petition, and can then consider the facts of Schwab and Lightbourne in conjunction with Baze v. Rees,-U.S.-, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007). This provides the State of Florida and this Court with the best chance of receiving specific guidance from the United States Supreme Court as to the constitutionality of future lethal injection procedures.

      . Those executions have been as follows: Terry Melvin Sims (02/23/2000); Anthony Bra-den Bryan (02/24/2000); Bennie Demps (06/07/2000); Thomas Harrison Provenzano (06/21/2000); Dan Patrick Hauser (08/25/2000); Edward Castro (12/07/2000); Robert Dewey Glock, II (01/11/2001); Rigoberto Sanchez-Velasco (10/02/2002); Aileen Carol Wuornos (10/09/2002); Linroy Botto-son (12/09/2002); Amos Lee King, Jr. (02/26/2003); Newton Carlton Slawson (05/16/2003); Paul Jennings Hill (09/03/2003); Johnny Leartice Robinson (02/04/2004); John Blackwelder (05/26/2004); Glen James Ocha (04/05/2005); Clarence Edward Hill (09/20/2006); Arthur D. Rutherford (10/18/2006); Danny Harold Rolling (10/25/2006).

      . A one-drug protocol, utilizing only a lethal dose of sodium pentothal (sodium thiopental), was recommended by the Protocol Committee appointed by the Corrections Commissioner pursuant to Tennessee Governor Bredesen’s Executive Order directing review and adoption of new execution protocols. The recommendation was not adopted. See Harbison v. Little, 511 F.Supp.2d 872, 895 (M.D.Tenn. 2007).

      . "After the Diaz execution, the report of the Governor's Commission suggested that the Governor have DOC ‘on an ongoing basis explore other more recently developed chemicals for use in a lethal injection with specific consideration and evaluation of the need of a paralytic drug like pancuronium bromide in an effort to make the lethal injection execution procedure less problematic.’ ” Lightboume, at 345 (quoting Governor's Commission, Final Report with Findings and Recommendations (March 1, 2007) at 13).


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2007-9.
    No. SC07-1851.
    Supreme Court of Florida.
    Jan. 10, 2008.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a proposed change to one standard jury instruction and also proposes two new instructions. The Committee asks that the Court approve the proposed standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee filed a report in which it proposed: Instruction 28.4, Leaving the Scene of Crash Involving Death or Injury (Amended); Instruction 28.82, Aggravated Fleeing or Eluding (New); and Instruction 28.84, Aggravated Fleeing or Eluding (New).

The Committee reports that proposed instructions were originally filed with the Court for review in Case No. SC07-705. However, after further consideration about the requirements established in State v. Dumas, 700 So.2d 1228, 1225 (Fla.1997) (holding that section 316.027, Florida Statutes, only requires the State to prove a defendant’s knowledge of injury to obtain conviction for leaving the scene of an accident resulting in death, a second-degree felony), coupled with necessary amendments to proposed instruction 28.4, the Committee requested and was granted leave by the Court to remove instructions 28.82 and 28.84 from Case No. SC07-705. The Committee reports that it addressed the pertinent issues within the instant proposed instructions and published the three proposed instructions in The Florida Bar News on August 1, 2007. The Committee received one comment regarding instruction 28.4; however, it received no comments regarding the new instructions.

Having considered the Committee’s report, we hereby authorize the publication and use of the instructions as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www.floridasupremecourt.org/jury_ instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

28.4 LEAVING THE SCENE OF ACCIDENT A CRASH INVOLVING DEATH OR INJURY

§ 316.027(1), Fla. Stat.

To prove the crime of Leaving the Scene of an-Accident a Crash, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in an accident a crash resulting in [injury to] [death of] any person.
2. (Defendant) knew or should have known that [he] [she] was involved in an accident a crash.

Give 3a if death is charged or 3b if injury is charged.

3. a. (Defendant) knew or should have known of the {injury to] or {death of] the person.
b. (Defendant) knew or should have known of the injury to the person.

Give fa, fb, or both as applicable.

4. a. (Defendant) willfully failed to stop at the scene of the accident crash or as close to the accident crash as possible and remain there until [he] [she] had given “identifying information” to the [injured person] [driver] [occupant] or [person attending the vehicle] and to any police officer investigating the accident crash.
[or]
b. (Defendant) willfully failed to render “reasonable assistance” to the injured person if such treatment appeared to be necessary or was requested by the injured person.

If the State proves that the defendant willfully failed to give any part of the “identifying information” or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Definitions.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangements to carry the injured person to a physician or hospital for medical treatment.

“Willfully” means intentionally and purposely.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instructions was adopted in 1995 [665 So.2d 212] and amended in 2008.

28.82 AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Injury or Death then Causing Serious Bodily Injury or Death)

§ 316.1935(4)(b) and § 316.027, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

L (Defendant) was the driver of a vehicle involved in a crash resulting in [injury to] [the death of] any person.
2. (Defendant) knew or should have known that [he] [she] was involved in a crash.

Give Sa if death is charged or Sb if injury is charged.

3. a. (Defendant) knew or should have known of the injury to or death of the person.
b. (Defendant) knew or should have known of the injury to the person.

Give ja or fb or both as applicable.

4. (Defendant)
a. willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [injured person] [driver] [occupant] [person attending the vehicle or other damaged property] and to any police officer investigating the crash.
b. willfully failed to render “reasonable assistance” to the injured person if such treatment appeared to be necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [serious bodily injury to] [the death of] (name of victim).

§ 816.027, Fla. Stab.

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or as close to the scene of the crash as possible and provide “identifying information.”

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the “identifying information” or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment.

I further instruct you that Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Serious Injury Bodily Injury or Death)

_- 316.1935(4)(b) and 316.027_

CATEGORY ONE_CATEGORY TWO FLA.STAT. INS. NO.

Aggravated Fleeing_316.1935(4)(a) 28.84

Fleeing to Elude LEO_316.1935(1)_28.6

Leaving Scene of Accident 316.027(l)(b) 28.4

Involving Death_

Leaving Scene of Accident 316.027(l)(a) 28.4

Involving Injury_

_Fleeing to Elude LEO 316.1935(3)(b) 28.81

_Fleeing to Elude LEO 316.1935(3)(a) 28.8_

_Fleeing to Elude LEO 316,1935(2)_28-7_

Reckless Driving_316.192_28.5

Comments

This instruction was adopted in 2008.

28.84 AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Injury or Death then Causing Injury or Property Damage to Another)

§ 316.1935(4)(a) and § 316.027 Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash resulting in [injury to] [the death of] any person.
2. (Defendant) knew or should have known that [he] [she] was involved in a crash.

Give 3a if death is charged or 3b if injury is charged.

3. a. (Defendant) knew or should have known of the injury to or death of the person.
b. (Defendant) knew or should have known of the injury to the person.

Give ja or jb or both as applicable.

4. (Defendant)
⅛ willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given “identifying information” to the [injured person] [driver] [occupant] [person attending the vehicle or other damaged property] and to any police officer investigating the crash.
b. willfully failed to render “reasonable assistance” to the injured person if such treatment appeared to be necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [an injury to] [damage to the property of] (name of victim).

I further instruct you that

§ 316.027, Fla. Stat.

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or as close to the scene of the crash as possible and provide “identifying information.”

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the “identifying information” or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Definitions.

“Willfully” means intentionally, knowingly, and purposely.

“Identifying information” means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant’s license or permit to drive.

“Reasonable assistance” includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment.

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Injury or Death and then Causing Injury or Property

Damage to Another)

_- 316.1935(4)(a) and § 316.027_

CATEGORY ONE_CATEGORY TWO FLA.STAT. INS. NO.

Fleeing to Elude LEO_316.1935(1) 28.6

Leaving Scene of Accident 316.027(l)(b) 28.4

Involving Death_

Leaving Scene of Accident 316.027(l)(a) 28.4

Involving Injury_

_Fleeing to Elude LEO 316.1935(3)(b) 28.81

_Fleeing to Elude LEO 316.1935(3)(a) 28.8_

_Fleeing to Elude LEO 316.1935(2) 28.7

Reckless Driving_316.192_28.5

Comments

This instruction was adopted in 2008.


author: PER CURIAM. LEWIS, C.J.,

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.430.
    No. SC06-2040.
    Supreme Court of Florida.
    Jan. 17, 2008.
    Honorable Robert K. Rouse, Jr., Chair, Judicial Branch Records Management Workgroup, Seventh Judicial Circuit, De-land, FL, for Complainant.
    C. Wharton Cole of Chandler, Lang, Haswell, and Cole, P.A., Gainesville, FL; Fred W. Baggett, General Counsel, Florida Association of Court Clerks and Comptrollers, Tallahassee, FL; Gary D. Fox, Past-Chair, Florida Rules of Judicial Administration Committee, Miami, FL, and Honorable Kathryn S. Pecko, Lauderdale Lakes, FL, Responding with comments.
   PER CURIAM.

We have for consideration the Report and Recommendations of the Judicial Branch Records Management Workgroup (Workgroup). We approve the recommendations that will allow for the creation of a comprehensive judicial branch records management and retention program, which will be overseen by the newly established Judicial Branch Records Management Committee. We also approve the majority of the Workgroup’s proposed amendments to Florida Rule of Judicial Administration 2.430, Retention of Court Records, but de-dine to remove the retention schedule for court records from the rule.

BACKGROUND

In 1981, prior to the 1992 adoption of article 1, section 24(c), of the Florida Constitution, which addresses the maintenance and destruction of public records, the Court adopted Rule of Judicial Administration 2.075 (now rule 2.430), which governs the retention of court records and sets forth the retention schedule for court records. See In re Florida Rules of Civil Procedure Florida Rules of Jud. Admin. — Court Documents Disposal, 403 So.2d 926 (Fla.1981). In 2002, the Court adopted amendments to the Rules of Judicial Administration concerning judicial branch public records recommended by the Supreme Court Workgroup on Public Records. In re Report of Supreme Court Workgroup on Public Records, 825 So.2d 889 (Fla.2002). At that time, as relevant here, the Court amended then rule 2.075 and adopted rule 2.076 (now rule 2.440), Retention of Judicial Branch Administrative Records, and the Judicial Branch Records Retention Schedule for Administrative Records. Unlike the retention schedule for court records currently set forth in rule 2.430, the retention schedule for administrative records is not a part of rule 2.440, although the schedule is referenced in subdivision (b), Retention Requirements, of the rule and is discussed in the rule commentary. Rather, the retention schedule for administrative records was adopted as a freestanding schedule that is currently included as an appendix to the Rules of Judicial Administration in Florida Rules of Court — State 236-53 (Thomson/West 2007).

Administrative Order No. AOSC04-1, issued January 6, 2004, established the Judicial Branch Records Management Work-group (Workgroup) to, among other things, assist the Court in implementing the new rule provisions and retention schedule. See In re Judicial Branch Records Management Workgroup, Fla. Admin. Order No. AOSC04-1 at 1-2 (Jan. 6, 2004) (on file with Clerk, Fla. Sup.Ct.). The Workgroup met five times and submitted its report and recommendations to the Court in October 2006. The Work-group’s proposed amendments to the Florida Rules of Judicial Administration were published for comment in The Florida Bar News. Several comments were received by the Court. Oral argument on the proposed amendments was held on May 8, 2007.

NEW JUDICIAL BRANCH RECORDS MANAGEMENT AND RETENTION PROGRAM

This Court has consistently recognized and exercised its exclusive authority over judicial branch records. See, e.g., In re Amendments to Fla. Rule Jud. Admin. 2420 — Sealing of Court Records & Dockets, 954 So.2d 16 (Fla.2007) (adopting emergency procedures governing sealing of court records to ensure public’s right of access to court records); In re Report of Supreme Court Workgroup on Public Records, 825 So.2d 889 (Fla.2002) (amending various rules governing court records and adopting rules governing administrative records); Amendments to the Rules of Jud. Admin. — Rule 2.090 — Electronic Transmission & Filing of Documents, 681 So.2d 698, 699 (Fla.1996) (“As the head of the judicial branch, this Court has the exclusive responsibility for determining how records in the court system are filed and maintained.”); Times Publ’g Co. v. Ake, 660 So.2d 255, 257 (Fla.1995) (recognizing Court’s exclusive authority to oversee access to judicial records); In re Amendments to Rule of Jud. Admin. 2.051 — Public Access to Judicial Records, 651 So.2d 1185 (Fla.1995) (clarifying rules on public access to judicial branch records); In re Florida Rules of Civil Pro. Florida Rules of Jud. Admin. — Court Documents Disposal, 403 So.2d 926 (Fla. 1981) (adopting retention of court records rule to relieve the document storage burden on court system while maintaining integrity of court records). In furtherance of this Court’s longstanding goal to make the judicial branch fully responsible for the maintenance of its own records, the Work-group proposes, and we approve, the creation of a formal judicial branch records management and retention program.

According to the report, since the Work-group’s creation, it has addressed numerous questions from clerks of court and court personnel concerning the retention and destruction of judicial branch records. Based on this experience, the Workgroup recommends that a centralized body be created to address such questions and to oversee a new records management program. Thus, a new Supreme Court committee, the Judicial Branch Records Management Committee (Committee), will be appointed by administrative order, issued by the Chief Justice, to oversee the new records management program envisioned by the Workgroup. As part of the new program, a Judicial Branch Records Management Officer within the Office of the State Courts Administrator (OSCA) will be appointed to advise and serve as a member of the new committee and to oversee the management of administrative records in this Court and OSCA. The program also will include the appointment of records management officers in each appellate and trial court to oversee the administrative records management in those courts. The clerks of the various courts, or their desig-nees, will serve as management officers for court records. The new committee will oversee the training of the management officers and other judicial employees. The Committee also will be available to respond to inquiries about records management and destruction through the issuance of advisory opinions. Most importantly, once in place, the new records management program will ensure proper oversight and maintenance of judicial branch records.

RULE AMENDMENTS

The Workgroup also recommends several amendments to Rule of Judicial Administration 2.430, Retention of Court Records. First, the Workgroup recommends that in furtherance of the goal to make the judicial branch fully responsible for maintenance of its own records, all references to the Division of Library and Information Services of the Department of State (Division) should be removed from rule 2.430. The Workgroup also urges the Court to remove from the rules the retention schedule for court records currently contained in rule 2.430 and make it a freestanding schedule, like the retention schedule for administrative records, that would be amended administratively rather than through the formal rulemaking process set forth in rule 2.140.

The Rules of Judicial Administration Committee (Rules Committee) agrees that references to the Division should be deleted from rule 2.430. However, the Rules Committee urges that the retention schedule for court records remain in the rules. As explained below, we adopt the Work-group’s recommendation that references to the Division be removed from the rule, but we agree with the Rules Committee that the retention schedule should remain a part of rule 2.430.

Deletion of References to the Division of Library and Information Services

As recommended by the Workgroup, we delete current subdivision (b), Required Consent, from rule 2.430, which requires the obtaining of any consent required by law from the Division before court records can be disposed of under the rule, and renumber the remaining subdivisions accordingly. We also amend subdivisions (a)(3), “Permanently recorded,” and renumbered subdivisions (b), Permanently Recorded Records, and (g), Disposition Other Than Destruction, of rule 2.430 to remove references to the Division. However, rather than replacing the reference to the Division in subdivision (a)(3) with “judicial branch,” as suggested by the Workgroup, we amend that subdivision to define “permanently recorded,” for purposes of the rule, as a document that “has been microfilmed, optically imaged, or recorded onto an electronic record keeping system in accordance with standards adopted by the Supreme Court of Florida.” This amendment is consistent with rule 2.525(a), Electronic Filing, Definition, which provides that a court’s electronic record keeping system used in connection with the electronic filing of documents must be “authorized by the Supreme Court of Florida.” The new Judicial Branch Records Management Committee will recommend to the Court standards for permanently recording court records under rule 2.430.

Retention Schedules and Procedures for Amending Rules and Schedules

We decline to remove the retention schedule for court records from rule 2.430. We agree with the Rules Committee that court records are an integral part of the administration of justice, and rules governing the retention and destruction of those records should remain in the Rules of Judicial Administration. We share the Rules Committee’s concern that there would not be adequate input on changes to the retention schedule from members of the Bar and clerks of court if the retention schedule were removed from the rules and the oversight of the Rules Committee.

The only reason given by the Work-group for removing the schedule from the rules is its belief that amendments to the judicial branch retention schedules should be addressed in a more efficient administrative process separate and independent from the more “cumbersome” procedures for amending rules. Under the Work-group’s proposal, the Judicial Branch Records Management Committee would recommend directly to the Court amendments to the judicial branch records retention schedules. However, the Workgroup offers no specific administrative procedure for amending the retention schedules other than to suggest that the Court would accept, reject, or modify the proposed amendments, which would go into effect within ninety days after their submission to the Court if the Court failed to act on them within that time period. At oral argument, the Chair of the Workgroup explained that the Workgroup also considered the option of requiring Court adoption of amendments to the retention schedules, and the Workgroup was not opposed to that requirement.

However, after considering the positions of the Workgroup and the Rules Committee, we believe the retention schedule for court records should remain in the Rules of Judicial Administration, and amendments to that schedule as well as amendments to the retention rules should continue to be made in accordance with rule 2.140. However, the retention schedule for administrative records will remain a freestanding schedule that will be amended administratively. Changes to that retention schedule will be recommended directly to the Court by the new committee and, after consideration by the Court, will be approved by administrative order issued by the Chief Justice.

We also have determined that rather than allowing the new committee to submit recommended changes to the retention rules and court records retention schedule directly to the Court, the committee should submit its recommendations to the Rules of Judicial Administration Committee for review and submission to the Court in accordance with rule 2.140. See Fla. R. Jud. Admin. 2.140(g)(2) (amendments to Part IV of the Rules of Judicial Administration, which contains rules 2.430 and 2.440, shall be referred to or proposed by the Rules of Judicial Administration Committee and adopted by the Court in accordance with rule 2.140). If expedited amendments to the rules or schedule are needed, the Rules Committee can submit out-of-cycle proposals under rule 2.140(e), Emergency Recommendations by Committee. Placing this responsibility with the Rules Committee will ensure that a well-defined procedure that allows for formal input from the Bar and clerks of court and also encourages public comment is in place for amending these rules. See Fla. R. Jud. Admin. 2.140. A well-established procedure that provides for public scrutiny is warranted here, because the destruction of court records that have not been otherwise preserved effectively destroys the public’s right to access to those records. Cf. In re Amendments to Fla. Rule of Judicial Admin. 2.120 — Sealing of Court Records & Dockets, 954 So.2d 16, 17 (Fla.2007) (“[T]he public’s constitutional right of access to court records must remain inviolate, and this Court is fully committed to safeguarding this right.”).

CONCLUSION

We thank the Judicial Branch Records Management Workgroup for its thorough recommendations and especially for its efforts to ensure proper maintenance and oversight of judicial branch records by developing a comprehensive program to address the numerous issues surrounding the retention and destruction of these records.

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ„ concur.

LEWIS, C.J., concurs in part and dissents in part with an opinion.

LEWIS, C.J.,

concurring in part and dissenting in part.

While I concur in the majority decision to adopt the proposed amendments to rule 2.430, and the decision not to remove the retention schedule for court records from the rule, I dissent to the majority decision to establish yet another committee, this one to oversee judicial branch records management and retention. In my view, this Court and the Bar currently have so many special committees, subcommittees, and committee variations that their assigned duties are beginning to overlap, and the substance and structure are becoming more confused. This expansion of more committees produces efforts that are often duplicated. Moreover, with the proliferation of a new committee to address each and every nuance of practice and procedure, it is not only becoming increasingly difficult to understand, properly direct, and supervise the coordination of the efforts of this myriad of committees, but it is also becoming nearly impossible to avoid duplication of their activities.

APPENDIX

RULE 2.430. RETENTION OF COURT RECORDS

(a) Definitions. The following definitions apply to this rule:

(1) — (2) [No Change]

(3) “Permanently recorded” means that a document has been microfilmed, optically imaged, or recorded onto an electronic record keeping system in accordance with standards adopted by the Division-of — Librar-y-and-j-nformat-ion-Serv-ices of the Department of StateSupreme Court of Florida.

(b) Required — Consent.—Disposal—of court-records under-this-rule is-subject to obtaining any consent required by law from-the- Division of Library and Information Services of the Department-of-State.

(e)(b) Permanently Recorded Records. Court records, except exhibits, that have been permanently recorded iiaaccor-dance with standards adopted-by^the-Division of Library and Information Services of the Department of State, may be destroyed or otherwise disposed of by the clerk at any time after a judgment has become final.

(d)(c) Records Not Permanently Recorded. [No Change]

(e)(d) Records to Be Retained Permanently. [No Change]

fjfKe) Court Reporters’ Notes. [No Change]

⅛)(£) Exhibits. [No Change]

<hXg) Disposition Other Than Destruction. Before destruction or disposition of court records under this rule, any person may apply to the court for an order requiring the clerk to deliver to the applicant the court records that are to be destroyed or disposed of. All parties and-the Division -of-Library and Information Services-of the Department of State shall be given notice of the application.by-the-appli-ea-nt. The court shall dispose of that court record as appropriate.

(p(h) Release of Court Records. [No Change]

<jXi) Right to Expunge Records. [No Change]

(kXj) Sealed Records. [No Change]

(¿b(k) Destruction of Jury Notes. [Effective January 1, 2008; No Change]

      . We have jurisdiction. Art. V, § 2(a), Fla. Const.

      . Minor amendments were also made to rule 2.075 in Amendments to the Rules of Jud. Admin. — Rule 2.090 — Electronic Transmission & Filing of Documents, 681 So.2d 698 (Fla. 1996).

      . The Workgroup was specifically charged with the following duties:
      (1) Address and resolve questions from trial and appellate clerks of court and other court personnel concerning retention and destruction of judicial branch records.
      (2) Develop procedures for adding record categories to the retention schedule and notifying trial and appellate clerks of court and other court personnel about changes to the retention schedule.
      (3) Create a protocol, including training of trial and appellate clerk of court and court personnel, to ensure that record categories are interpreted consistently and uniformly in all state courts.
      (4) Define responsibilities of the judicial branch records management liaison officer within the Office of the State Courts Administrator, and the responsibilities of records management liaison officers within the trial and appellate courts.
      (5) Recommend rule changes needed to implement retention schedule requirements.
      (6) Advise the chief justice and Supreme Court, the Office of the State Courts Administrator, and state trial and appellate courts about records management, retention, and destruction issues.

        In re Judicial Branch Records Management Workgroup, Fla. Admin. Order No. AOSC04-1 at 2.-3 (Jan. 6, 2004) (on file with Clerk, Fla. Sup.Ct.).

      . Suggested amendments to rule 2.430 resubmitted by the Florida Association of Court Clerks and Comptrollers were previously referred to the Rules of Judicial Administration Committee for consideration. See In re Amendments to Fla. Rule of Jud. Admin. 2.420 — Sealing of Court Records & Dockets, 954 So.2d at 18, 19 n. 4 (Fla.2007).

      . See, Fla. Admin. Order No. AOSC04-1 at 1 (recognizing "the Court's decision to make the judicial branch fully responsible for maintenance of its own records”).

      . The Judicial Branch Records Management Committee will have the following responsibilities:
      (1) Develop records management and retention policies and procedures for the judicial branch.
      (2) Recommend to The Florida Bar Rules of Judicial Administration Committee new records retention categories for court records and amendments to Florida Rules of Judicial Administration 2.430 and 2.440.
      (3) Comment on proposed amendments to the retention rules submitted to the Court by the rules committee.
      (4) Propose to the Supreme Court new records retention categories for judicial branch administrative records and amendments to the judicial branch administrative records retention schedule, which will be approved by administrative order.

        (5) Recommend to the Supreme Court standards for an electronic record keeping system for permanently recording court records under Florida Rule of Judicial Administration 2.430.
      (6) Oversee and coordinate training for judicial branch records management officers.
      (7)Provide guidance to records management officers through informal advisory opinions.

      . There are no similar references to the Division in rule 2.440, Retention of Judicial Branch Administrative Records.

      . An informal survey of the various circuit and district courts indicates that many of the courts currently preserve in some manner copies of court and administrative records that are destroyed under the retention schedules.


author: SMITH, T., Associate Judge.

text:
    Jim ADAM, d/b/a Adam Construction, Appellant/Cross-Appellee, v. VERSAILLES SUR LA MER CONDOMINIUM, etc., Appellee/Cross-Appellant.
    No. 5D06-2065.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellant/Cross-Appellee.
    Dennis F. Fairbanks, Melbourne, for Appellee/Cross-Appellant.
   SMITH, T., Associate Judge.

Appellant, Jim Adam d/b/a Adam Construction appeals the denial of his claim for attorneys’ fees and prejudgment interest and the award of damages to ap-pellee, Versailles Sur La Mer Condominium. The parties’ claims against one another included breach of a contract which contains a prevailing party attorneys’ fees clause. The case was tried and the court found that each party was entitled to some recovery with the net judgment being in favor of Adam. The trial court also determined that, because each party had prevailed in part and lost in part, both should bear their own fees and costs. Adam has failed to sustain his burden of proof that he prevailed on the substantial issues in this case and that the trial court abused its discretion when it declined to award him fees because he did not provide this court a complete transcript of the trial. Consequently, this court is unable to review the evidence in order to independently determine whether either party prevailed for purposes of recovering their attorneys’ fees. Maslow v. Edwards, 886 So.2d 1027 (Fla. 5th DCA 2004); and All American Soup & Salad, Inc. v. Colonial Promenade, 652 So.2d 911 (Fla. 5th DCA 1995). Adam’s appeal of the award of damages to Versailles also fails for lack of a complete record.

We find that Adam is entitled to pre-judgment interest on his net judgment. Pre-judgment interest is an element of damages and, when a verdict liquidates a party’s out-of-pocket loss, he is entitled as a matter of law to recover prejudgment interest from the date of the loss. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985). Therefore, we reverse and remand this case to the trial court for the entry of a judgment that includes an award of pre-judgment interest to Adam.

Adam’s motion for appellate attorneys’ fees based upon the parties’ contract is granted and Versailles’ motion for fees is denied. The trial court shall determine and award Adam his reasonable fees and taxable costs for this appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and MONACO, JJ., concur.