author: VAN NORTWICK, J.

text:
    David DE VAUX, Appellant, v. WESTWOOD BAPTIST CHURCH, Appellee.
    No. 1D06-2666.
    District Court of Appeal of Florida, First District.
    April 4, 2007.

      Richard S. Johnson, Destín, for Appellant.
    Jennifer Hanson Copus, Dowd Law Firm, Destín, for Appellee.
   VAN NORTWICK, J.

David de Vaux appeals a final judgment dismissing with prejudice his complaint seeking specific performance of an alleged “real estate purchase agreement” with Westwood Baptist Church (Westwood), ap-pellee. We agree with the trial court that the writings comprising the alleged agreement fail to include essential terms of an enforceable contract for the purchase of real property. Thus, we agree that the complaint fails to state a cause of action for specific performance, and we affirm. Further, because the arguments raised by de Vaux on appeal are completely unsupported by the application of the law, we find this appeal frivolous and grant West-wood’s motion for appellate attorney’s fees pursuant to section 57.105, Florida Statutes (2005).

De Vaux’s complaint for specific performance alleges, in pertinent part, as follows:

5. Defendant is interfering with the Plaintiffs equitable right to possession of the real property.
6. On or about May 29, 2005, Plaintiff and Defendant entered into a Real Estate Purchase Agreement, (the “Agreement”) for the purchase of property located in Okaloosa County described as: Oakland ADD LOTS 1, 2, 9 & 10 EXC. N60 FT. LOT 10 BLK. 2, Okaloosa County, Florida. A copy of the contract is attached hereto and referenced as Exhibit “A” as if incorporated herein.
7. The purchase price of the property set forth - in the agreement was $535,000.00.
9. Plaintiff has performed all conditions precedent to the “Agreement” or they have occurred.
10. Notwithstanding this, Defendant has failed and refused to perform Defendant’s part of the “Agreement.”
11. Plaintiff does not have an adequate remedy at law.
12. Plaintiff is in possession of the real property by way of equity.

Exhibit A incorporated into the complaint consists of two one-page documents. The first document is a letter dated May 19, 2005, from de Vaux to Westwood offering to purchase a parcel of real property. In material part, the letter states:

I am proposing an offer to buy from Westwood Baptist Church of 401 NW Hollywood Blvd. 60,000 sq. feet of property. The property would consist of 200 ft. located on Hollywood Blvd. by 300 ft. deep. I am offering $535,000.00 for the property subject to the following terms.
1. Buyer will pay for all closing costs including loan costs, City of FWB Administration fees, Water and Sewer fees, Impact fees and Comprehensive Plan review fees.
2. After signing a contract of good faith buyer will have 45 days to do a feasibility study on the property. The property would be subject to the zoning being R-2 and be consistent with the Comprehensive Plan of Fort Walton Beach. The property must be approved to hold 24 units.
3. The above-mentioned property is presently not in compliance with the Comprehensive Plan. Westwood Baptist Church and buyer would work together in full cooperation to change the Comprehensive Plan concerning the above land. Buyer will do necessary paperwork involved in changing Comprehensive Plan.
4. We would close on the property 30 days after the city of Fort Walton Beach approves a development order.
5. Westwood Baptist Church would finance the property at 1/2 percent under prime at the time of closing. Buyer would pay interest paymbnts quarterly. This contract will take precedent until a more detailed legal contract can be drawn up stating terms, conditions, dates and financing.

The second document that makes up Exhibit A is the handwritten minutes of a special church business meeting of West-wood held on May 29, 2005. These minutes provide:

Tuesday, May 29, 2005 A special church business meeting was called. With all known members being notified by mail.
Pastor Art Johnson called the meeting to order at the close of the morning service. (11:50 a.m.).
After making it clear to the body, the purpose of the meeting, a motion was called for, by the moderator.
A motion was made to sell the churches’ vacant lot, 200' x 300' on Hollywood Blvd., to Mr. David de Vaux, accepting his off [sic] (attached), with the Trustees of the church being authorized to work out all the details.
Motion seconded and carried.
Art Johnson, Moderator
Shirley Johnson, Clerk

The complaint contains no allegations that a trustee or agent of Westwood ever communicated to de Vaux the church’s acceptance of his offer or the terms of the “details” to be worked out between the parties.

Westwood moved to dismiss on the ground that de Vaux’s complaint failed to state a cause of action because, among other things,

A meeting of the minds of the parties in all essential elements is a prerequisite to an existence of an enforceable contract, and where it appears, as in the present case that parties are continuing to negotiate as to the essential terms of an agreement, there can be no meeting of the minds.

The record does not reflect whether de Vaux sought leave to amend his complaint. The trial court summarily dismissed the complaint with prejudice.

De Vaux appeals this judgment arguing that the letter and minutes, read together, set forth all essential terms of an agreement, and, thus, the complaint does properly state a cause of action for breach of contract and specific performance. He claims that he made a valid offer and that his offer was accepted unconditionally by the church. Westwood argues in response that the documents comprising Exhibit A do not show a meeting of the minds as to the essential terms of an enforceable agreement for the purchase of real property, that Westwood’s minutes show that issues remained to be negotiated and that the complaint does not allege that an acceptance of the offer was communicated to de Vaux. Thus, Westwood asserts, the complaint seeking specific performance was properly dismissed. Westwood also seeks an award of attorney’s fees pursuant to section 57.105.

The sufficiency of a complaint in a civil action is a question of law, Rittman v. Allstate Insurance Co., 727 So.2d 391 (Fla. 1st DCA 1999); McKinney-Green, Inc. v. Davis, 606 So.2d 393 (Fla. 1st DCA 1992), and our standard of review is de novo. Steuart Petroleum Co. v. Certain Underwriters at Lloyd’s London, 696 So.2d 376 (Fla. 1st DCA 1997). Our review here is limited to the allegations within the four corners of the complaint and the attachments incorporated into the complaint. Rudloe v. Karl, 899 So.2d 1161, 1164 (Fla. 1st DCA 2005). Further, we are obligated to accept the allegations as true and consider them in a light most favorable to the non-moving party. Magnum Capital, LLC v. Carter & Assocs., LLC, 905 So.2d 220 (Fla. 1st DCA 2005); Bell v. Indian River Mem’l Hosp., 778 So.2d 1030 (Fla. 4th DCA 2001). Thus, we review the sufficiency of the complaint on the assumption that the facts are as the plaintiff below alleged. Rudloe, 899 So.2d at 1164.

To have an enforceable contract for the purchase of real property, the statute of frauds requires the contract to satisfy two threshold conditions. First, the contract must be embodied in one or more written documents or' memoranda signed by the party against whom enforcement is sought. Second, the writings must include all of the essential terms of the purchase and sale, and those terms may not be provided by resort to parol evidence. Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1059 (Fla. 3d DCA 1979). The issue presented in this case is whether the alleged agreement contains the essential terms of a contract for the purchase and sale of real property. “[A] meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract, and where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.” Central Props., Inc. v. Robbinson, 450 So.2d 277, 280 (Fla. 1st DCA 1984), modified on other grounds, 468 So.2d 986 (Fla.1985); accord Irby v. Mem’l Healthcare Group,- Inc., 901 So.2d 305, 306 (Fla. 1st DCA 2005); Allen v. Berry, 765 So.2d 121 (Fla. 5th DCA 2000); Drost v. Hill, 639 So.2d 105 (Fla. 3d DCA 1994); 777 Flagler Co. v. Amerifirst Bank, 559 So.2d 1210 (Fla. 4th DCA 1990); Balter v. Pan Am. Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980); Brown v. Dobry, 311 So.2d 159 (Fla. 2d DCA 1975). “In order for a contract to be subject to specific performance, it must appear from the writing constituting the contract that the obligations of the parties with respect to [the] conditions of the contract and actions to be taken by the parties are clear, definite and certain.” Brown v. Dobry, 311 So.2d at 160; accord Drost v. Hill, 639 So.2d at 106; Lasseter v. Dauer, 211 So.2d 584, 585 (Fla. 3d DCA 1968); see also Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137, 139 (Fla. 3d DCA 1974). Further, the acceptance of the offer must be communicated to the offeror. Kendel v. Pontious, 261 So.2d 167, 169-70 (Fla.1972)(“An acceptance, ... which only re mains in the breast of the acceptor without being communicated to the offeror, is no binding acceptance”). We agree with the trial court that the purported agreement here fails to include essential elements of a contract for the purchase and sale of real property.

As a general rule, “[t]here is no definitive list of essential terms that must be present and certain to satisfy the statute of frauds [and] the essential terms will vary widely according to the nature and complexity of each transaction and will be evaluated on a case-by-case basis.... ” Socarras v. Claughton Hotels, Inc., 374 So.2d at 1060; see also Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001)(“Certainly, what is an ‘essential term’ of a contract differs according to the circumstances.”). We find it obvious that the de Vaux letter and the Westwood minutes, read together, omit essential terms required to establish an enforceable contract for the purchase of real property. The most conspicuous omissions relate to the financing terms. Paragraph five of the de -Vaux letter requires that Westwood provide de Vaux purchase money financing. Essential terms of the financing, however, are not included in the purported agreement, such as the date of the maturity of any promissory note, whether the quarterly payments of the debt would include any amortization of principal, and whether the financing would be secured by a mortgage on the subject property or other assets of de Vaux. See, e.g., Philbrick v. Wedel, 411 So.2d 973 (Fla. 3d DCA 1982)(holding that financing portion of agreement was too indefinite in its terms to be susceptible to specific performance).

In addition, while the Westwood minutes do evince the church’s interest in selling its property to de Vaux, the minutes also authorize trustees of the church to “work out all the details,” indicating that issues remained to be negotiated before a definite agreement would be executed. Finally, the complaint does not allege that trustees or agents of Westwood have at any time communicated to de Vaux their acceptance of his offer. See Kendel v. Pontious, 261 So.2d at 169-70. Accordingly, we affirm the order of dismissal because the complaint wholly fails to state a cause of action for specific performance of a contract for the purchase of real property.

We also grant Westwood’s motion for appellate attorney’s fees pursuant to section 57.105. We take this opportunity to explain our decision to award fees in this case.

Florida lawyers have both ethical and statutory duties not to file actions, including appeals, that are not supported by the application of the governing law. The ethical duty prohibiting “frivolous” proceedings is imposed by rule 4-3.1, Rules Regulating The Florida Bar (2006). The statutory duty prohibiting claims not supported by “the application of then-existing law to [the] material facts ... necessary to establish the claim ...” is imposed by section 57.105(l). It is not certain that the standard for determining whether an action is frivolous under rule 4-3.1 is substantially the same as the standard for awarding fees under section 57.105(1), an issue that we do not reach.

We acknowledge that “to some extent, the definition of ‘frivolous’ is incapable of precise determination.” Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So.2d 520, 524 (Fla. 1st DCA 2003)(quoting Visoly v. Security Pacific Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000)). The Restatement does provide some definitional guidance, however, by explaining that “[a] frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it.” Restatement (Third) of Law Governing Lawyers § 110, cmt. d. (2000). In addition, under Florida law

there are established guidelines for determining when an action is frivolous. These include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) [sic] as asserting material factual statements that are false.

Wendy’s, 865 So.2d at 524 (quoting Visoly, 768 So.2d at 491). Under the ethics rules, “[w]hat is required of lawyers ... is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.” Comment, rule 4-3.1.

Section 57.105(1) mandates a court to award fees to the prevailing party in equal amounts to be paid by the losing party and the losing party’s attorney where the court finds that the losing party or the losing party’s attorney knew or should have known that a claim was, among other things, not supported by the application of then-existing law to the material facts relating to the claim. § 57.106(l)(b), Fla. Stat. Based on the allegations of the complaint and the writings attached to the complaint as Exhibit A, we find that the complaint and this appeal are wholly without merit. De Vaux’s claim for specific performance is objectively merit-less in that, given the obvious omission of essential terms from the writings that allegedly constitute the agreement, no reasonable lawyer knowledgeable about the law governing this action could have expected to obtain specific performance based on these writings or could have expected to obtain reversal of the trial court’s ruling in an appeal. Since the law applicable to this case is clear and well-settled, de Vaux and his lawyer knew or should have known that the relief sought in the complaint and the arguments presented to this court asserting grounds for specific performance were not supported by the application of the law. See § 57.105(l)(b), Fla. Stat. Moreover, de Vaux has made no effort to distinguish the applicable law or, in good faith, to argue for an extension, modification or reversal of existing law. See Mercury Ins. Co. of Florida v. Coatney, 910 So.2d 925, 927 (Fla. 1st DCA 2005)(noting that appellant’s initial brief made no reference to a “good faith effort to change existing law” regarding appellant’s liability and thus appellant was subject to attorney’s fees pursuant to section 57.105). By making frivolous claims, de Vaux and his lawyer imposed needless burdens on both Westwood and the courts. Westwood was obligated to incur substantial expense defending de Vaux’s claims in the trial court and on appeal, and the judicial system was required to expend its resources to address the meritless claims.

This case is not an instance of a court chilling creative lawyering. See generally, Monroe H. Freedman & Abbe Smith, Understanding Lawyer’s Ethics 97-8 (Matthew Bender 2004). Certainly, lawyers are expected to be zealous advocates for the interests of their clients. They are also officers of the court, however, even though these two roles may sometimes appear to be in conflict. See generally, Eugene R. Gaetke, Lawyers as Officers of the Court, 42 Vand. L.Rev. 39, 40 (1989). As an officer of the court, among other things, a lawyer must not file frivolous claims, rule 4-3.1, Rules Regulating The .Florida Bar, or unnecessarily burden third parties, rule 4^4.4. See generally, David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L.Rev. 799, 815 (1992). Said another way, an attorney has a duty to refrain from advocacy, such as filing frivolous claims, which undermines or interferes with the functioning of the judicial system. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1546 (11th Cir.l993)(“An attorney’s duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself.”). A lawyer who files a frivolous lawsuit or a meritless appeal on the instructions of the client without informing the client of the weakness of the claim is violating both a duty to serve the client’s interests and a duty to the judicial system. See generally, Mullins v. Kennelly, 847 So.2d 1151, 1154 (Fla. 5th DCA 2003).

Because we find that de Vaux and his lawyer made objectively groundless arguments on appeal, a monetary sanction is appropriate here. As we did in Smith v. Gore, 933 So.2d 567, 568 (Fla. 1st DCA 2006), “[w]e again remind the bar that section 57.105 expressly states courts ‘shall’ assess attorney’s fees for bringing, or faffing to timely dismiss, baseless claims or defenses.” See also Albritton v. Ferrera, 913 So.2d 5, 8-9 (Fla. 1st DCA 2005)(noting that the word “shall” in section 57.105 evidences “the legislative intent to impose a mandatory penalty in the form of reasonable attorney’s fees to discourage baseless claims, by placing a price tag on losing parties who engage in these activities”). We believe that applying sanctions in cases such as this will protect this court’s ability to serve litigants with meritorious cases, will encourage lawyers to give thoughtful consideration as to whether there are non-frivolous grounds for an appeal before filing, and will discourage lawyers from raising meritless appellate arguments on the chance that they will “stick.” “The filing of an appeal should never be a conditioned reflex. ‘About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.’ ” Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir.l987)(quoting 1 Jessup, Elihu Root 133 (1938)).

Accordingly, the final judgment is AFFIRMED, and the cause is REMANDED to the trial court for the assessment of attorney’s fees to be paid in equal parts by de Vaux and de Vaux’s counsel, Richard S. Johnson.

BARFIELD and THOMAS, JJ., concur.

      . The statute of frauds, section 725.01, Florida Statutes (2005), provides, in pertinent part:
      No action shall be brought whereby to charge ... any person ... upon any contract for the sale of lands, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith. ...

      . Several writings may be aggregated to satisfy the requirements of the statute. Kolski ex rel. Kolski v. Kolski, 731 So.2d 169, 171 (Fla. 3d DCA 1999).

      . We are limited in our authority to impose sanctions under section 57.105(1) to granting fees for conduct occurring on appeal. Boca

        Burger, Inc. v. Forum, 912 So.2d 561, 569 (Fla.2005).

      . Rule 4-3.1 provides, in part, that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”

      . Section 57.105, Florida Statutes, provides, in pertinent part:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.

      .We have previously explained:
      While the revised statute incorporates the “not supported by the material facts or would not be supported by application of then-existing law to those material facts” standard instead of the "frivolous” standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for the imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis....

        Wendy's of N.E. Florida, Inc. v. Vandergriff, 865 So.2d 520, 524 (Fla. 1st DCA 2003)(quot-ing Mullins v. Kennelly, 847 So.2d 1151, 1155 n. 4 (Fla. 5th DCA 2003)).

      . "A lawyer ... may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.” Comment, rule 4-1.3, Rules Regulating The Florida Bar.

      . "A lawyer is ... an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” Preamble, Chapter 4, Rules Regulating The Florida Bar.

      . Lawyer-statesman Elihu Root was secretary of war to President William McKinley, secretary of state to President Theodore Roosevelt, United States senator, and recipient of the Nobel Peace Price. See http://nobel prize.org/nobeLprizes/ laureates/1912/root-bio.html. Root's blunt statement, quoted above by the Seventh Circuit, demonstrates his view that lawyers should exercise professional detachment and assert moral influence in giving advice the client may not want to hear. See Bruce A. Green, Thoughts About Corporate Lawyers After Reading the Cigarette Papers: Has the "Wise Counselor” Given Way to the "Hired Gun’"?, 51 DePaul L.Rev. 407, 411-412 (2001). As Professor Deborah Rhode has explained in more scholarly language:
      The stress, acrimony, and financial pressures that can accompany legal disputes often compromise clients’ ability to perceive their own long-term interests or the ethical implications of self-serving behav-ior_At the very least, lawyers can provide a useful reality check for individuals whose judgment is skewed by self-interest or cognitive biases.
      Deborah L. Rhode, Moral Counseling, 75 Fordham L.Rev. 1317, 1320 (2006).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE NEWS AND OBSERVER PUBLISHING COMPANY, d/b/a, The News & Observer, Petitioner, v. A.Q., et al., Respondents.
    No. 1D07-0762.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    George D. Gabel, Jr., and Jennifer A. Mansfield of Holland & Knight, LLP, Jacksonville, for Petitioner.
    David A. Garfinkel and Patrick J. Kil-bane of Rogers Towers, P.A., Jacksonville; Mark Mahon of Mark Mahon & Associates, Jacksonville; Michael J. Korn and Tonya H. Walker of Korn & Zehmer, P.A., Jacksonville, for Respondents.
   PER CURIAM.

The News & Observer Publishing Company petitions for review of an order of the Circuit Court for Duval County which sealed a file, thus precluding public inspection of its contents. We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.100(d).

A.Q. gave birth to twins in July of 2005. Shortly thereafter the children were adopted by a married couple who live in North Carolina. A.Q. sought to withdraw her consent and filed a petition for relief in the adoption case in Duval County. She also filed an action to recover damages against the adoptive parents and certain third parties who had involvement in the adoption. It is this latter case, which was voluntarily dismissed by A.Q., which has been sealed by the order challenged in this proceeding. The adoption file must of course remain confidential under the provisions of section 63.162, Florida Statutes.

After a hearing on the defendants’ motion to seal the file, where The News & Observer appeared and was heard, Circuit Judge Peter J. Fryefield entered an order sealing the file in A.Q.’s civil suit. He noted that the confidentiality of the adoption file was an important public policy and that closing the civil litigation file was necessary to implement that policy.

We review the circuit court’s order, which presents mixed questions of law and fact, by applying an abuse of discretion standard. Post-Newsweek Stations, Inc. v. Doe, 612 So.2d 549, 553 (Fla.1992). We have also taken judicial notice of the file in the adoption case, which is currently on appeal to this court, and conducted an in camera inspection of the civil litigation file. In short, the civil litigation file contains a large amount of information which is also present in the adoption file and sealing the file was necessary to preserve the confidentiality of the information in the adoption file as required by statute.

Petitioner argues that much or most of the information regarding the adoption is now in the public domain and nothing will be accomplished by sealing the file. While information about this case has been reported in the media, based on our review of the two files as described above, we are convinced that a substantial amount of other information has not been made public and that sealing the file was not an abuse of discretion. Finally, petitioner argues that it is only the identity of the birth parents, the adoptive parents, and the children themselves which is confidential and the names of the persons involved in this case have been widely reported in the press. Petitioner suggests, therefore, that closure of the file was error under the rationale of In re Guardianship of Cosio, 841 So.2d 693 (Fla. 2d DCA 2003). We conclude that petitioner’s interpretation of the scope of protections provided for by section 63.162 is too narrow. In re Adoption of Rand, 347 So.2d 450 (Fla. 3d DCA 1977).

Accordingly, the petition for review is denied.

PETITION DENIED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    B.B., a/k/a B. W., Mother of A.B., C.B., et al., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellees.
    No. 1D06-3366.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Deirdre A. Farrington, Crawfordville, for Appellant.
    Michael Lee, Tallahassee, for Appellee, Department of Children and Family Services; Thomas Wade Young, Orlando, for Appellee, Guardian Ad Litem Program; Mike Donovan, Tallahassee, attorney for Father, S.S.
   PER CURIAM.

Upon consideration of the motion to dismiss filed by appellee, Guardian Ad Litem Program, on February 9, 2007, as well as the appellant’s response thereto, the Court has determined that the notice of appeal was not timely filed. Interest of E.P., 544 So.2d 1000 (Fla.1989); AW. v. D.S., 854 So.2d 255 (Fla. 1st DCA 2003). Accordingly, the motion to dismiss is hereby granted and the appeal is dismissed for lack of jurisdiction.

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


text:
    Willie S. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5941.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Willie S. Brown, appeals an order of involuntary inpatient placement under section 394.467, Florida Statutes (2006). The appellant argues that the appellant’s alleged waiver of his presence at the commitment hearing was insufficient to allow the hearing to proceed. The state concedes this point for purposes of this appeal but indicates that the appellant was recently placed in a less restrictive alternative and therefore a rehearing on the matter is moot. We have considered the parties’ arguments on this point and discharge the Court’s show cause order of February 26, 2007, pursuant to Godwin v. State, 593 So.2d 211 (Fla.1992). Further, we agree with the appellant on the merits and therefore remand for a new commitment hearing.

A patient has a fundamental right to be present at a commitment proceeding. Register v. State, 946 So.2d 50, 50 (Fla. 1st DCA 2006); Joehnk v. State, 689 So.2d 1179, 1180 (Fla. 1st DCA 1997). A patient may waive his or her right to be personally present, but a court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Register, 946 So.2d at 50. The court below did not address or question whether the appellant’s waiver was knowing, intelligent, and voluntary; therefore, this matter must be remanded for a new hearing.

Further, remand is proper because the collection and determination of fees for patients in treatment facilities are collateral legal consequences that affect the rights of a party which prevent an otherwise moot case from being dismissed. Godwin, 593 So.2d at 212.

Accordingly, we reverse and remand for a new commitment hearing.

REVERSED and REMANDED.

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


text:
    Glenn SMITH and Thomas Perry Wells, Jr., Appellants, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-2475.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Glenn Smith, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION TO CORRECT OPINION

PER CURIAM.

Appellee’s Motion to Correct Opinion is granted and this court’s opinion dated February 28, 2007, is hereby withdrawn and substituted with the following:

Appellant, Glenn Smith, raises several challenges on appeal, only one of which has merit. As the State concedes, the trial court erred in denying appellant’s motion for relief from an order assessing appellate processing fees and costs against appellant for a previous appeal taken by another inmate. We, therefore, reverse and remand to the trial court to grant the appropriate relief to appellant for the improperly assessed fees.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Steven S. TOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3645.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Steven S. Tole, pro se, Appellant.

      Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the appellant’s first claim without further discussion. Because the appellant’s second claim is facially sufficient, and because the trial court failed to attach portions of the record which conclusively refute the appellant’s claim, we reverse and remand to the trial court to attach portions of the record which conclusively refute the appellant’s claim, to hold an evidentiary hearing, or to grant the relief requested. See State v. Leroux, 689 So.2d 235 (Fla.1996); Rackley v. State, 571 So.2d 533, 535 (Fla. 1st DCA 1990).

REVERSED AND REMANDED.

BARFIELD, KAHN, and PADOVANO, JJ., Concur.


text:
    J.R., a Juvenile, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0557.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of mandamus, J.R. seeks to compel the trial court to allow him to attend arraignment in person. We hold that an arraignment is a critical stage in a delinquency proceeding and that Florida Rule of Juvenile Procedure 8.070, read in conjunction with Florida Rule of Juvenile Procedure 8.100(a), requires the juvenile to be present at an arraignment unless the juvenile waives the right to be present or the court finds that the juvenile’s mental or physical condition is such that a court appearance is not in the juvenile’s best interests. Because the arraignment has already taken place in this case, we deny the petition.

The state filed a petition for delinquency, charging petitioner with sexual battery on a child less than 12 years of age by a defendant less than 18 years of age. Petitioner was subsequently detained. Petitioner filed a motion to appear in person at his arraignment scheduled for January 31, 2007. The trial court denied the motion. The court found that an arraignment was not a hearing pursuant to rule 8.100, but rather a procedure governed by rule 8.070. The court stated that there was nothing pending before the court which required a hearing.

We address this otherwise moot issue because it is capable of repetition but evading judicial review. See N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000). Petitioner was denied his constitutional right to be present at the arraignment. An arraignment is a critical stage of the proceedings in a delinquency prosecution. See T.S. v. State, 773 So.2d 635 (Fla. 5th DCA 2000). Like criminal defendants, juveniles have a constitutional right to be present at all critical stages of the proceedings. See Muhammad v. State, 782 So.2d 343 (Fla.2001). Petitioner did not waive this constitutional right as evidenced by filing the motion to appear in person.

Furthermore, the Florida Rules of Juvenile Procedure require the presence of the child at the arraignment in the circumstances of this case. Rule 8.070 provides in pertinent part that “[p]rior to the adjudicatory hearing, the court may conduct a hearing to determine whether a guilty, nolo contendere, or not guilty plea to the petition shall be entered and whether the child is represented by counsel or entitled to appointed counsel as provided by law.” (emphasis added.) Rule 8.100 states that Unless otherwise provided, the following provisions apply to all hearings.

(a) Presence of the Child. The child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.

(emphasis added.) See R.R. v. Portesy, 629 So.2d 1059 (Fla. 1st DCA 1994) (holding that rule 8.100(a) means that the accused child is required to be physically present at all hearings held under the juvenile rules, except when there has been a waiver of the right to be present or the court makes specific findings regarding the child’s physical or mental condition that precludes physical presence).

A plain reading of rules 8.070 and 8.100 leads to the conclusion that petitioner has the right to attend in person his or her arraignment. Rule 8.070 specifically mentions that an arraignment is a “hearing.” The rule does not expressly provide an exception to the juvenile’s right to appear pursuant to rule 8.100. Thus, the trial court was required to find that petitioner’s mental or physical condition was such that a court appearance was not in petitioner’s best interests in order to deny petitioner’s request to appear in person at arraignment. The trial court did not do so. Accordingly, the trial court erred in denying petitioner’s request.

Because arraignment in this case has already taken place and the petitioner has not demonstrated harm as a result of his lack of presence at the arraignment, we grant no affirmative relief in this particular case. We are confident the trial court will follow the law as set forth herein, and we will not have to address this issue in the future.

PETITION DENIED.

BARFIELD, WOLF, and VAN NORTWICK, JJ„ concur.


text:
    James HOUCK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4277.
    District Court of Appeal of Florida, First District. .
    April 4, 2007.
    James Houck, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Connie L. Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of mandamus which challenged the Florida Parole Commission’s decision to revoke his conditional release supervision. Review is sought pursuant to Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998) (holding that at this stage of the proceedings, review is limited to a determination of whether the circuit court afforded due process and whether the court observed the essential requirements of law). We grant the petition.

To support a revocation of supervised release, the state must prove that a violation of a condition of supervision was both willful and substantial. See State v. Carter, 835 So.2d 259, 262 (Fla.2002); Ellis v. Fla. Parole Comm’n, 911 So.2d 831 (Fla. 1st DCA 2005). In addition, the finder of fact must make a determination that the violation was both willful and substantial. See Mathis v. Fla. Parole Comm’n, 944 So.2d 1182 (Fla. 1st DCA 2006). Here, although the hearing examiner found petitioner guilty of a curfew violation, it was not clear from either the hearing examiner’s records or the Parole Commission’s order of revocation whether the violation was found to be willful. Accordingly, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence in the record and, because the circuit court could not apply the correct law, it could not have observed the essential requirements of law. Id.; Williams v. Fla. Parole Comm’n, 949 So.2d 1180 (Fla. 1st DCA 2007); Crosby v. Fla. Parole Comm’n, 949 So.2d 1181 (Fla. 1st DCA 2007).

The petition for writ of certiorari is GRANTED and the final order of the circuit court is quashed. This cause is hereby REMANDED.

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


author: MAY, J.

text:
    ANTIQUITIES M LLC, a Florida limited liability company, Appellant, v. BOX BROTHERS OF GREATER NEW YORK, LLC, a New Jersey domestic limited liability company, and American Home Assurance Company, a foreign corporation, Appellees.
    No. 4D06-2820.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.
    Robert P. Frankel and Nolan K. Klein of Robert P. Frankel & Associates, P.A. Miami, for appellant.
    Jack R. Reiter and Barbara S. Nolan of Adorno & Yoss LLP, Miami, for appellee.
   MAY, J.

The plaintiff appeals a non-final order granting the defendant Box Brothers of Greater New York, LLC’s motion to dismiss for lack of personal jurisdiction. It argues the trial court erred in granting the motion at a non-evidentiary hearing. We agree and reverse. .

Thé complaint contained the following factual allegations. The plaintiff purchased some antiques in New York. It then contacted the defendant at its office in New Jersey to arrange for the packing and shipping of the antiques from New York to Florida. The defendant prepared a price quotation, including an amount for special insurance. It collected the amount quoted for the service of packing and shipping the goods. When the goods were delivered in Fort Lauderdale, two of the antiques were badly damaged.

The plaintiff filed suit against the defendant and the insurance company for breach of contract. It alleged personal jurisdiction under section 48.193(l)(g), Florida Statutes (2005), Florida’s long-arm statute. The defendant moved to dismiss, pursuant to Rule 1.140(b)(1), (2), (8), Florida Rules of Civil Procedure. It limited its jurisdictional argument to a lack of minimum contacts; it did not argue that the allegations did not fit within the reach of the long-arm statute.

At a non-evidentiary hearing, defense counsel argued that the defendant was a New Jersey company with no ties to the state of Florida. No testimony was taken and no exhibits were introduced. The trial court granted the motion relying on Homeway Furniture Co. of Mount Airy, Inc. v. Home, 822 So.2d 533 (Fla. 2d DCA 2002).

The plaintiff argues the trial court erred in granting the motion because the defendant failed to provide proof to refute its factual allegations of personal jurisdiction over the New Jersey defendant. The defendant responds that it was not required to present sworn proof. Regardless, it suggests it possessed two documents at the hearing to prove Florida lacked personal jurisdiction over it.

The issue of in personam jurisdiction presents a pure question of law providing for de novo review. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). It also requires a two-step analysis. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). First, the complaint must allege sufficient facts to bring the action within the reach of Florida’s long-arm statute, section 48.193, Florida Statutes (2005). If it does, then the defendant must have sufficient minimum contacts with the state to satisfy constitutional due process requirements. Id.

Here, the defendant restricted its jurisdictional argument to the lack of minimum contacts. The plaintiffs complaint alleged the defendant breached a contract to pack and deliver the antiques to the plaintiff in Florida. The defendant’s motion disputed those facts, but was neither supported by an affidavit nor was any evidence filed or introduced at the hearing. The lack of evidentiary support is fatal to the defendant’s position.

Even though Home is factually similar because it involved a claim for delivery of damaged furniture, we find it legally inap-posite for three reasons. First, the defendant in Home provided affidavits establishing that it had no offices within the state of Florida. Second, the complaint in Home alleged that the defendant had committed tortious acts within the state; it did not, involve breach of contract allegations. And third, the court in. Home never reached the issue of whether there were sufficient minimum contacts because the jurisdictional question was decided on the long-arm statute.

For these reasons, we must reverse and remand the case for an evidentiary hearing.

Reversed and Remanded.

STONE and FARMER, JJ., concur.

      . The defendant has moved to supplement the record with two documents it claims were presented to the trial court. The plaintiff opposes the motion because the record reflects no documents were introduced during the hearing. The transcript actually reflects that the defendant referred to documentation, but never introduced it at the hearing. It is therefore not part of the record on appeal.

      . The motion and memorandum argued that this defendant retained a third-party to ship the goods.


text:
    Luis TEJERA, Appellant, v. BUDGET GROUP, INC., and CNA Claims Plus, Appellees.
    No. 1D07-0730.
    District Court of Appeal of Florida, First District.
    April 5, 2007.
    Susan Dolan, Coral Gables, for Appellant.
    Jay A. Siegel of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellees.
   PER CURIAM.

DISMISSED. See Truc v. Kimmins Corp., 889 So.2d 964 (Fla. 1st DCA 2004).

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: THOMPSON, J.

text:
    Hal D. HICKS, Appellant, v. Don HOAGLAND, as Receiver for Midwest Transit, Inc., Appellee.
    No. 5D06-343.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.

      Harold C. Hubka, of Cobb & Cole, Day-tona Beach, for Appellant.
    Matt E. Beal and Zachary J. Bancroft of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.
   THOMPSON, J.

Hal D. Hicks appeals from an order granting summary judgment for Don Hoagland as receiver for Midwest Transit, Inc. (“Midwest”) because Hicks’ claim, which sought mortgage foreclosure based upon the breach of a $2.5 million promissory note, was barred by res judicata. We reverse.

The parties had been engaged in extensive and ongoing litigation in Illinois state and federal courts concerning Hicks’conversion of substantial company assets from company use to his personal use. In the Illinois state action, an amended final judgment was entered for Midwest and against Hicks for $21,800,594.45 in 2004.

Hicks sued Midwest in Volusia County Circuit Court in August 2001. He alleged a breach of promissory note, which was executed in June 1998 for $2.5 million. Hicks later amended his complaint to seek foreclosure of a mortgage based on the breach of the $2.5 million note. Hoagland intervened as Midwest’s receiver, and the court granted his motion for abatement on the grounds that the pending Illinois state court action concerned the same party and issues. Hoagland also attached Hicks’ answer in an action in the U.S. District Court for the Southern District of Illinois, in which Hicks counterclaimed against Midwest for the note at issue in the Volusia County Circuit Court action. It is undisputed that there is only one $2.5 million note and the same alleged default is at issue in the Florida claim and Illinois counterclaims.

In 2004, after the Illinois state court entered its initial final judgment against Hicks, Hoagland sought to amend his affirmative defenses to include collateral estop-pel and to amend his set-off defense. Hicks moved to stay the action in Volusia County because he had filed a motion to modify the final judgment order in Illinois. The trial court stayed the action until there was a final judgment in the Illinois state case.

In June 2005, Hoagland moved for an order vacating the stay on the basis of the amended final judgment in the Illinois state court. One paragraph of the Illinois amended final judgment noted that two separate issues had been severed, and the remaining claims had been tried by a bench trial: “[t]he severed claims involving Mideast Transit and Billy Bob’s Roadhouse Bar & Grill [were] logically separable and legally distinct from the claims already tried.” The Illinois state court had also granted judgment in favor of Midwest and against Hick on “[a]ll claims by [Hicks] against Midwest for monies loaned to Midwest by [Hicks] (2020 account).” Hoagland also attached a copy of Hicks’ Illinois counterclaims — count 26 alleged a breach of the promissory note that Hicks alleged in this action. The trial court vacated the stay and permitted Hoagland to amend his affirmative defenses, and Hoagland moved for summary judgment.

Hicks responded to the motion by arguing his federal court counterclaims involving the note were “alive and well.” He also alleged that his counterclaim was dismissed before trial in the Illinois state action, but promised that “[t]he Federal Lawsuit will address all issues pertaining to the Promissory Note [and] Mortgage .... The Federal Court ruling will adjudicate all issues regarding the promissory note, etc.” He claimed counterclaim 26 had been dismissed before the trial, and pointed out the court did not explicitly reference “count 26” in its final judgment. Hicks filed an affidavit from his counsel in the Illinois cases, whose affidavit alleged that “Count twenty-six (26) of Hicks’ ... Counterclaim ... filed in the Illinois state court action was dismissed (not on the merits) prior to trial, so the judge could continue with his bench trial and avoid issues that would require a jury.”

The Volusia County Circuit Court granted summary judgment for Hoagland in December 2005. After Hicks’ appeal, the U.S. District Court for the Southern District of Illinois granted summary judgment against Hicks on the basis of res judicata, fully considering and rejecting the arguments Hicks now raises on appeal; namely, that his promissory note counterclaims were dismissed before trial, and that the state court’s opinion letter and failure to reference his counterclaim by number showed there was no adjudication on the merits. Though Hicks argued below that the circuit court should not grant summary judgment because the federal suit would resolve all issues, he now argues on appeal that the federal judgment against him is “irrelevant.”

We review de novo an order granting summary judgment. Park v. City of W. Melbourne, 927 So.2d 5, 8 (Fla. 5th DCA 2006). Summary judgment is appropriate if there is no genuine issue of material fact and if the movant is entitled to judgment as a matter of law. Id. The party moving for summary judgment has the initial burden of demonstrating the nonexistence of material issues of fact; after the movant has tendered competent evidence supporting its motion, the burden shifts to the other party to come forward with opposing evidence to show a question of material fact exists. Carnes v. Fender, 986 So.2d 11 (Fla. 4th DCA 2006); accord State Farm Mut. Auto. Ins. Co. v. Austin Outdoor, Inc., 918 So.2d 446, 447 (Fla. 4th DCA 2006). “[T]he opposing party must come forward with counterevidence sufficient to reveal a genuine issue.” Landers v. Milton, 370 So.2d 368, 370 (Fla.1979). Because summary judgment forecloses the litigant from the benefit of a trial on the merits, courts must exercise caution in granting summary judgment. Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997). Accordingly, the procedural strictures in Florida Rule of Civil Procedure 1.510 are neither niceties nor technicalities, but must be observed. Id. “[I]f the record reflects the existence of any genuine issue of material fact ... or ... raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Sup ply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000).

Res judicata bars relitigation of claims that were or should have been raised in the original action. Topps v. State, 865 So.2d 1253, 1254-55 (Fla.2004). If a matter has been decided, the petitioner has had his day in court and the matter generally will not be reexamined again in any court except for appeals by right. Id. at 1255; Zikofsky v. Mktg. 10, Inc., 904 So.2d 520, 523 (Fla. 4th DCA 2005); Burns v. DaimlerChrysler Corp., 914 So.2d 451, 453 (Fla. 4th DCA 2005). For res judicata to apply, there must exist in the prior litigation a “clear-cut former adjudication” on the merits. Park, 927 So.2d at 9; Zikofsky, 904 So.2d at 523. “For res judicata to apply, there must be four identities: (1) identity of thing sued for, (2) identity of cause of action, (3) identity of persons and parties to the action, and (4) identity of quality or capacity of persons for or against whom the claim is made.” Bums, 914 So.2d at 453 (citation omitted); accord Zikofsky, 904 So.2d at 523. The related doctrine of collateral estoppel prevents identical parties from re-litigating identical issues that have been determined in a prior litigation. Bums, 914 So.2d at 453. “Collateral estoppel bars a claim only when the issues have been fully litigated and decided in a court of competent jurisdiction.” Id. (citation omitted).

The parties and issues were identical. The record also establishes identity of cause of action. The facts and issues supporting the underlying transaction — a $2.5 million promissory note executed in June 1998 and the alleged default in 2001— existed at the time the Illinois state court rendered the prior judgment. See Saadeh v. Stanton Rowing Found., Inc., 912 So.2d 28, 31 (Fla. 1st DCA 2005); Tyson v. Viacom, Inc., 890 So.2d. 1205, 1209 (Fla. 4th DCA 2005); State St. Bank & Trust Co. v.

Badra, 765 So.2d 251, 253 (Fla. 4th DCA 2000). However, the doctrine of res judicata does not apply where there was no adjudication on the merits in the first suit. State St. Bank & Trust Co., 765 So.2d 251, 254. Here, the standard governing summary judgment in Florida is significant. Hicks provided two affidavits from individuals with personal knowledge of his case that stated the promissory note counterclaims were dismissed before trial. These affidavits constitute evidence that, when considered in the light most favorable to Hicks, present “the merest possibility of the existence of a genuine issue of material fact” as to whether his claims were adjudicated on the merits, precluding summary judgment. Nard, Inc., 769 So.2d at 1140.

We decline to consider the federal district court opinion that was not before the trial court when it ruled on the motion for summary judgment. We reverse without prejudice to any right Hoagland may have to introduce the federal judgment in further proceedings, and we take no position on the issue of Hicks’ argument below that “[t]he Federal Lawsuit will address all issues pertaining to the Promissory Note [and] Mortgage.”

Accordingly, because Hicks’ affidavits opposing summary judgment raised a genuine issue of material fact with respect to whether the Illinois state judgment was a final adjudication on the merits of his claim, we REVERSE and REMAND for further proceedings in accordance with this opinion.

SAWAYA and PALMER, JJ„ concur.

      . Hicks’ motion and affidavit stated he desired to stay the action in Volusia County because he sought modification of the Illinois final order; not because any claims regarding the note were dismissed before trial, as he later argued.


author: MONACO, J.

text:
    Danny J. SUGGS, Gary D. Suggs, et al., Appellant, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 5D06-3108.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.
    R. Colt Kirkland of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellant.
    Dominick J. Graziano of Bush Graziano & Rice, P.A., Tampa, and William S. Bilenky and Joseph J. Ward, Brooksville, for Appellee.
   MONACO, J.

This case in various iterations has been before this court on a number of occasions in the past. The trial court in the current controversy issued a single order that, first, denied the appellants’ motion to modify a temporary injunction; and second, remanded the case to the Southwest Florida Water Management District for an evi-dentiary hearing.

We have jurisdiction to review the non-final order denying the motion to modify the temporary injunction pursuant to Rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure. We review such orders using an abuse of discretion standard, except when the issue resolved by the trial court is purely a matter of law. If the issue is purely one of law, review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000), cert, denied, 532 U.S. 958, 121 S.Ct. 1487, 149 L.Ed.2d 374 (2001); Di-Christopher v. Board of County Comm’rs, 908 So.2d 492, 494 (Fla. 5th DCA 2005). In the present case we have reviewed the issue presented de novo and find no error. The trial court’s application of the “law of the case” doctrine was correct. See Johnson v. Globe Data Sys., 785 So.2d 1290, 1291 (Fla. 5th DCA 2001).

The appellants also seek to have this court review whether the remand by the trial court to the District for an evidentiary hearing was erroneous. We decline to do so. We may only review such non-final orders as are specifically enumerated in rule 9.130, or which may be reviewable by an extraordinary writ pursuant to rule 9.100. Thus, we do not have jurisdiction to review by non-final appeal that part of the order that remanded the case for an evidentiary hearing before the District. See Faulk v. Air Products & Chemicals, Inc., 798 So.2d 820 (Fla. 1st DCA 2001); Supal v. Pelot, 469 So.2d 949 (Fla. 5th DCA 1985). The procedural limitations imposed by the rules do not permit review of “tag along” orders contained within reviewable non-final orders. See RD & G Leasing, Inc. v. Stebnicki, 626 So.2d 1002 (Fla. 3d DCA 1993).

Accordingly, we affirm the order denying the modification of the injunction, and dismiss the appeal with respect to the remand for evidentiary hearing.

AFFIRMED in part, DISMISSED in part.

PALMER and TORPY, JJ., concur.

      . That rule allows district courts of appeal to review non-final orders that “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.”


text:
    Peter CLEMENT, Appellant, v. Lanelle ZIEMER, Appellee.
    No. 5D06-2501.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.

      David G. Hutchison and Vincent J. Tubi-ana, of Law Offices of David G. Hutchison, Key Largo, for Appellant.
    Lanelle Ziemer, St. Cloud, pro se.
   PER CURIAM.

Peter Clement appeals the imposition of a final injunction against repeat violence resulting from Lanelle Ziemer’s petition. Their dispute revolves around a ten-foot wide easement on Ziemer’s property that allows Clement access to a lake. The issue is whether Clement was afforded due process. Finding he was not, we reverse.

Some facts are pertinent to the conduct of the hearing. Ziemer alleged that Clement: cut down trees on the easement; claimed squatter’s rights; said she would be sorry if she did not back down; “terrorized” the neighborhood; drove past her home several times; and accused her of stealing his property. In 2003, one of her workers was allegedly hit by Clement. Clement phoned Ziemer and told her she would be sorry and drove like a madman through the property. Moreover, Clement argued with the sheriffs department and screamed obscene names at his wife. During the hearing, dementis attorney objected to Ziemer’s hearsay statements concerning two .threats allegedly made to third parties, but his objections were ignored.

The conduct of the hearing was disorganized and one-sided. Ziemer made diverse allegations and spoke at length. When Clement’s attorney objected, the objections were spoken through or ignored. When Clement’s attorney attempted to respond to Ziemer’s allegations, the trial court cut him short:

This is the bottom line.
You can use the easement, but you can .only use 10 feet (sic) of it. I don’t want you stopping on that easement. I don’t want you watching them. I don’t want anything. The only thing you’re going to use that easement for is back and forth. Nothing else; There’s no reason to yell out. There’s no reason for any of that and, if I hear it, I’m going to throw you in jail....
If you yell out your window at them, I will consider that a violation of the injunction. If you stop your car and start ^taring at them or harass them in any manner whatsoever, I will consider that a violation of the injunction.... There’s going to be no speeding. There’s going to be no harassing. There’s not going to be anything.

When Clement asked if he could speak, the court responded “[pjrobably not,” and then warned him: “If you want to, you say it at your own peril.” When Clement’s attorney mentioned the lack of opportunity to present his case, he was cut off: “You had plenty of opportunity to put on your case. Don’t start playing games like that with me.” Toward the end of the hearing when Clement’s attorney sought clarification on use of the easement, this exchange occurred:

CLEMENT’S ATTORNEY: Okay. That’s on the file for the injunction, your honor. On the easement itself, your honor, if we need additional clarification on the easement from the judge who granted the easement—
THE COURT: Do you want me to just go ahead and grant a flat injunction with no access to the easement?
CLEMENT’S ATTORNEY: No, your honor.
THE COURT: Then don’t argue with me because I can do that, too. I can say he gave up his right to. the -easement.

Clement argues he was not allowed to present his case and was denied “procedural due process, which required (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case.” Blaylock v. Zeller, 932 So.2d 479, 480-81 (Fla. 5th DCA 2006). After thorough review of the hearing transcript, we agree. Clement lacked an impartial decision-maker and the opportunity to present his case and is entitled to reversal on that issue alone.

Moreover, this case is controlled by Santiago v. Towle, 917 So.2d 909, 910 (Fla. 5th DCA 2005) which discussed requisites for an injunction from section 784.046, Florida Statutes (2005). Among other things, each of at least two qualifying violent incidents must be proven by competent,- substantial evidence. Santiago, 917 So.2d at 910, accord Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006). The allegations in the case before us are insufficient because they do not encompass overt acts justifying a belief that violence was imminent.

Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction .... Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.

Sorin, 929 So.2d at 1094 (citing Santiago, 917 So.2d at 910-11). Similarly, Clement’s threats that Ziemer would be sorry may have placed her in fear, but, without more, are not qualifying acts of violence. See id. Much like Santiago and its acrimonious dispute over a fence, this is an acrimonious dispute over an easement. Ziemer’s allegations, even if believed, do not constitute competent, substantial evidence that two qualifying acts of violence occurred under section 784.046.

Accordingly, we REVERSE and REMAND with instructions to vacate the injunction.

PLEUS, C.J., THOMPSON and SAWAYA, JJ„ concur.


author: GRIFFIN, J.

text:
    Marcelino L. ALVAREZ, M.D., Appellant/Cross-Appellee, v. Susan M. RENDON, M.D., Individually, et al., Appellee/Cross-Appellant.
    No. 5D05-4361.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.

      Darryl M. Bloodworth and Nichole M. Mooney, of Dean, Mead, Egerton, Blood-worth, Capouano & Bozarth, P.A., Orlando, for Appellanl/Cross-Appellee.
    William G. Osborne, of William G. Osborne, P.A., Orlando, and Barry Burnette, of Keedy & Burnette, P.A., Tavares, for Appellee/Cross-Appellant.
   GRIFFIN, J.

Dr. Marcelino L. Alvarez [“Dr. Alvarez”] appeals the Final Judgment awarding Pathology Medical Laboratories, P.A. [“PML”] a net judgment of $602,970.48. We conclude that the trial court erred in refusing to order a new trial and reverse.

In 2001, Drs. Alvarez and Rendon formed PML, a professional association, for the purpose of practicing medicine in the field of pathology. Dr. Rendon owns 51% of PML’s outstanding shares, and Dr. Alvarez owns the remaining 49% of shares. After the company was formed, Dr. Alvarez executed an employment agreement with PML. Under the terms of this agreement, PML could terminate Dr. Alvarez with or without cause. The contract enumerates the events that may give rise to “for cause” termination. The agreement also provides that, if PML terminates Dr. Alvarez “without cause,” PML would have to give Dr. Alvarez sixty days’ written notice and provide Dr. Alvarez his basic compensation during the period.

Subsequently, Dr. Alvarez, Dr. Rendon, and PML entered into a Buy-Sell Agreement. Under the terms of the Buy-Sell Agreement, if the employment of a shareholding employee ended for any reason, PML had the right to purchase the employee’s stock for a specified price. The price at which PML would have to pay to purchase the departing employee’s shares depended on the reason for the termination of employment. If the employee ended his employment voluntarily or was terminated for cause, the purchase price would be $500 per share. If the employee’s employment was terminated by PML without cause, PML or the remaining shareholders would have to pay $1,000 per share to purchase the shares. The Buy-Sell Agreement included a non-compete provision that would become effective upon redemption of the shares.

In a letter dated October 31, 2003, Dr. Rendon, ostensibly acting in her capacity as president of PML, terminated Dr. Alvarez’ employment “for cause” under the terms of his employment agreement. Further, the termination letter stated that PML was electing to purchase Dr. Alvarez’ 490 shares in the company under the terms of the Buy-Sell Agreement. Subsequently, PML attempted to begin making payments to purchase Dr. Alvarez’ 490 shares for $245,000. However, Dr. Alvarez declined to sell his PML shares for $245,000, asserting that he was improperly terminated “for cause” and, thus, was entitled to $490,000 for his stock.

After Dr. Alvarez left PML, he began working as an independent contractor with Broward Medical Laboratories [“BML”], which is located in South Florida. BML collects tissue samples from all parts of Florida, including the geographic area specified in the non-compete. The collected samples are sent to BML and processed into slides. Under his relationship with BML, Dr. Alvarez then would receive slides from BML, read them, interpret them, and create a written report containing his diagnosis. Dr. Alvarez performed this work for BML either in his home or at the offices of BML, both of which are located outside the geographic region encompassed in the non-compete. After PML terminated his employment, Dr. Alvarez called some of PML’s clients to see if they would be interested in his continued services. Of the BML clients located in Lake County for whom Dr. Alvarez subsequently read slides, most were former PML clients.

In his Second Amended Complaint, Dr. Alvarez brought three claims. First, Dr. Alvarez claimed that PML breached his employment contract by improperly terminating him for cause and improperly reducing his salary prior to termination. Second, Dr. Alvarez brought a claim against PML for breach of the Buy-Sell Agreement, because it failed to tender the required stock purchase payment within the time and under the terms required by that agreement. Third, Dr. Alvarez brought an action against Dr. Rendon for beach of the Buy-Sell Agreement, because she breached paragraph 3.4 of the agreement when she failed to purchase Dr. Alvarez’ shares for the proper amount, after PML breached its obligation to do so.

In response, Dr. Rendon and PML brought three counterclaims. First, they claimed that Dr. Alvarez breached the non-compete provision of the Buy-Sell Agreement by soliciting or otherwise obtaining and performing work for several former, present, or prospective PML clients while working at BML. Second, they claimed that Dr. Alvarez violated the Florida Unfair and Deceptive Trade Practices Act by engaging in unfair methods of competition. Third, they brought a claim for injunctive relief against Dr. Alvarez both for breach of the non-compete and alleged unfair and deceptive trade practices.

On June 15, 2005, Dr. Alvarez filed a motion for partial summary judgment to establish that, even if the non-compete were enforceable, his activity did not violate the terms of the non-compete. In an order filed July 19, 2005, the trial court denied Dr. Alvarez’ motion based on the conclusion that “the provisions of the parties’ agreement (3.6) are too ambiguous for the court to grant either parties’ Motion for Summary Judgment as currently presented.”

At a subsequent motions hearing, PML and Dr. Rendon argued a motion in limine to exclude references to Dr. Rendon’s alcoholism or rehabilitation treatment for alcoholism, because such references would be unduly prejudicial. At the hearing, the trial judge granted the motion, concluding that Dr. Alvarez’ stated reason for seeking introduction of the evidence could be addressed by allowing Dr. Alvarez to reference Dr. Rendon’s rehabilitation as “medical leave.”

A four-day jury trial was held on all claims.' In its verdict, the jury found that PML breached Dr. Alvarez’ employment contract by firing him for cause, and awarded Dr. Alvarez $245,123 in damages on that claim. The jury also found that PML, but not Dr. Rendon, breached the Buy-Sell Agreement and awarded Dr. Alvarez $490,000 on that claim. However, the jury also found that Dr. Alvarez breached the non-compete contained in the Buy-Sell Agreement and awarded PML $1,429,731 on its counterclaim. Upon receipt of the verdict, the trial court raised the issue of inconsistency in the verdict and the following exchange occurred:

Counsel for Dr. Rendon: Yes, sir. I think it’s consistent.
The Court: That’s what I’m looking for, I’m sorry.
Counsel for Dr. Alvarez: Well, I must say, yóur Honor, I think it is inconsistent. Because if they violated for cause they didn’t tender the correct price that the jury has found, we believe that there is a first breach, and therefore should not take place.
The Court: It’s not so obvious that — I mean, I don’t know if you can correct it.
Counsel for Dr. Alvarez: I don’t think it is anything you can take up with the jury.
Counsel for Dr. Rendon: I don’t think the jury can do anything about it.
The Court: I don’t think I can — or I can’t with the jury at this time do anything about it. I think we’ve got it done, in one sense, a done deal. All right, bring them back in.

After the jury verdict, PML asked the trial court to enter a permanent injunction restraining Dr. Alvarez from committing any of the acts set forth in Paragraph 3.6 of the Buy-Sell agreement, between the time of the jury verdict on September 29, 2005 and December 20, 2007. The trial court entered the permanent injunction and awarded PML a net judgment in the amount of $602,970.48.

Dr. Alvarez then filed his motion for Judgment in Accordance with the Motion for Directed Verdict or for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial and Motion for Re-mittitur. In an order filed on December 6, 2005, the trial court declined to grant any of these motions. Both parties also brought motions for attorneys’ fees and costs. In an order dated December 8, 2005, the trial court declined to grant fees to either party.

We conclude that the verdict reached by the jury in this case was legally impossible and was the product of a combination of errors.

Under the terms of the Buy-Sell Agreement, if the employment of a shareholding employee is terminated for any reason, that employee is deemed to have made an offer to sell their shares of stock in PML to the company and the other shareholders on the date of termination. Once this offer is made, the Corporation can elect to purchase all of the employee’s stock by giving notice. This notice must specify a date for closing that is not more than thirty days later than the date of the notice. The purchase price depends on whether the employee is terminated with or without cause.

The October 31, 2003 letter from Dr. Rendon to Dr. Alvarez stated that Dr. Alvarez’ employment was being terminated for cause, pursuant to the terms and conditions of his employment agreement. The letter further stated that “[t]his letter ... constitutes notice pursuant to paragraph 1.4 of the Buy-Sell Agreement dated December 20, 2002 that the P.A. intends to exercise its right to redeem your four hundred ninety (490) shares of P.A. stock, payable over sixty (60) monthly installments as provided for therein.”

In a letter written on November 4, 2003, Dr. Alvarez’ lawyer, Robert Mead, informed PML’s lawyer, Bill Cauthen, that Dr. Alvarez vigorously contested that he was properly terminated for cause. This letter further stated:

Finally, I want to let you know that we have advised Dr. Alvarez that the restrictive covenant contained in the Buy-Sell Agreement is not enforceable because the thirty mile radius is far too broad and, more importantly, the five year period is significantly in excess of the two year maximum that follows the termination of an employment relationship under Florida Statute 542.335. Just so Dr. Rendon understands, our client has no intention of leaving the Leesburg area.

In a letter dated December 15, 2003, attorney Cauthen set forth PML’s position:

The P.A. is ready, willing and able to honor its commitment to redeem Dr. Alvarez’ stock for $245,000, payable in sixty (60) equal installments, plus interest at four percent (4%).
To date, I understand that your client has refused to discuss the issues necessary to set a formal closing date. Therefore, pursuant to the terms and conditions of the applicable Buy-Sell Agreement (“Agreement”), enclosed is the first monthly installment payment and a Promissory Note with amortization schedule evincing the applicable indebtedness guaranteed by Dr. Rendon pursuant to Section 3.4 of the Agreement.”

Dr. Alvarez declined to deliver the endorsed stock certificates because the payment amount was half of what it ought to be and was calculated using an incorrect rate of interest.

At trial, Dr. Alvarez made it clear that he would not have agreed to close on the sale of the stock for $245,000, but that he would have closed for what he considered the proper amount — $490,000. Similarly, Dr. Rendon indicated at trial that she knew Dr. Alvarez wanted $490,000, but that she wasn’t going to relent on termination for cause. Even though the Buy-Sell Agreement is explicit that it does not become effective until Dr. Alvarez’ shares are redeemed, PML argued that redeeming the shares would have been “futile,” and was therefore excused, in light of the November 4 letter from his counsel. This ease was considerably complicated by, and ultimately went off the rails because of Dr. Rendon’s contention that she could be excused from tendering Dr. Alvarez the correct amount owed him and still enforce the non-compete agreement. At the conclusion of PML’s case on the non-compete, and then at the conclusion of all evidence, Dr. Alvarez made a motion for directed verdict “on the basis that his shares of PML stock had never been redeemed as required and the condition precedent to enforcement of the non-compete provision failed.” These motions were denied.

After the verdict, in which the jury found he had been wrongfully terminated for cause but yet had violated the non-compete, Dr. Alvarez filed a motion for Judgment in Accordance with the Motion for Directed Verdict or for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial. The trial court declined to grant any of these motions.

On appeal, Dr. Alvarez argues that because the jury found that he was improperly terminated for cause and was entitled to damages for breach of the employment and Buy-Sell Agreement, the condition precedent for enforcement of the non-compete was never met, so he is entitled to have “the jury’s verdict in favor of PML on its counterclaim for breach of the non-compete set aside and judgment entered in his favor or, in the alternative, remanded for a new trial.” It appears to be undisputed on appeal that the enforcement of the non-compete was conditioned on the purchase of Dr. Alvarez’ stock. It also appears to be undisputed that neither PML nor Dr. Rendon ever tendered the “without cause” amount to purchase Dr. Alvarez’ shares. PML does not challenge on appeal the adverse verdict on the employment claim and Buy-Sell Agreement. The fundamental dispute is over the question whether the condition precedent was excused by “futility.” On appeal, PML has recast this as Dr. Alvarez’ anticipatory breach of the contract.

I. THE DUTY TO TENDER THE CORRECT PURCHASE PRICE WAS NOT EXCUSED.

A condition precedent has been defined as one which calls for the performance of some act, or the happening of some event after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend. Cohen v. Rothman, 127 So.2d 143, 147 (Fla. 3d DCA 1961). “[T]here must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract.” Id.

Under the doctrine of futility, a party may be excused from performing a condition precedent to enforcement of the contract, if performance of the condition would be futile. See Waksman Enters., Inc. v. Oregon Props., Inc., 862 So.2d 35, 43 (Fla. 2d DCA 2003) (“[T]he law does not require that a party to a contract take action that would clearly be futile”).

Also, under some circumstances, the anticipatory beach of a contract by one party may excuse the other party from performing a condition precedent to that contract. An anticipatory breach of contract occurs before the time has come when there is a present duty to perform as the result of words or acts evincing an intention to refuse performance in the future. While anticipatory repudiation obviates the requirement that the conditions be performed, it does not obviate the requirement that they be performable.

In Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181, 182 (Fla.1982), Florida’s supreme court held that “[t]he holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself. It follows that if performance of the condition precedent is excused the ability to perform them must still be shown.” In explaining this conclusion, the court quoted the following passage from 4 A. CoRbin, ContraCts § 978 (1951):

In an action for breach by an unconditional repudiation it is still a condition precedent to the plaintiffs right to a judgment for damages that he should have the ability to perform all such conditions. If he could not or would not have performed the substantial equivalent for which the defendant’s performance was agreed to be exchanged, he is given no remedy in damages for the defendant’s non-performance or repudiation. Of course, the willingness and ability that remains a condition precedent in spite of the defendant’s repudiation, is willingness and ability to perform if there had been no repudiation. The defendant’s wrongful repudiation justifies the plaintiff in taking him at his word and at once taking steps that may make subsequent performance impossible. The willingness and ability to perform need not continue after the repudiation; it is merely required that they should have existed before the repudiation and that the plaintiff would have rendered the agreed performance if the defendant had not repudiated.

Hosp. Mortg. Group, 411 So.2d at 182. Thus, if PML had been unwilling, prior to Dr. Alvarez’ alleged repudiation, to perform the condition precedent to enforcement of the non-compete, it could not recover for Dr. Alvarez’ alleged anticipatory breach. Here, it is undisputed that PML refused to offer $490,000 for the stock but did offer $245,000. Thus, as a matter of law, if PML were obliged to pay $490,000, as the jury found, it was required to make that tender.

We also conclude that under no view of the evidence could the letter from Dr. Alvarez’ counsel be an anticipatory repudiation of the Buy-Sell Agreement. It was a legal response to the decision of Dr. Rendon to fire Dr. Alvarez for cause and to tender only the “for cause” redemption price. The letter simply cannot be read to reject performance of the non-compete after the purchase of his shares for $490,000. See Restatement (Seoond) of CONTRACTS § 250 cmt. b. (1970). Indisputably, the “without cause” purchase price of $490,000 was never offered. The jury never should have been allowed to consider whether the letter sent by counsel for Dr. Alvarez could excuse tender of the $490,000 as a predicate for enforceability of the non-compete agreement.

Seemingly, this should not have been a difficult case for the jury to decide. Was PML justified in firing Dr. Alvarez for cause? If so, his compensation was limited to $245,000. There was no formal closing on the sale of the stock because Dr. Alvarez refused to participate in a closing for $245,000. To this extent only, PML’s “futility” argument has merit. Upon proper tender of the correct redemption amount, Dr. Alvarez would be bound by the non-compete provision of the Buy-Sell Agreement.

If the jury found that the correct sum had been properly tendered, the jury would then have to determine if the non-compete agreement meant what PML said it meant or what Dr. Alvarez contended it meant. According to PML, the non-compete prohibited Dr. Alvarez from performing work on behalf of another company so long as the clients were within the area covered. Dr. Alvarez contended that the non-compete only limited where he could perform his work, and in any event, the non-compete did not proscribe solicitation.

If the jury found that Dr. Alvarez had been wrongly fired for cause, this would have two important consequences: first, he would be entitled to damages, including lost compensation under the employment agreement and $490,000 for his stock. Second, he could not have been in violation of the non-compete provisions of the Buy-Sell Agreement because the condition giving rise to the duty not to compete, i.e., the tender of $490,000 to redeem his stock, never occurred.

Whether proper performance was the tender of $245,000 or $490,000 depends on whether PML was justified in terminating Dr. Alvarez for cause. The jury answered this question in the negative. However, in the same verdict form, the jury concluded that Dr. Alvarez breached the non-compete and awarded PML damages for that breach. The inconsistency arises because, for the jury to find that Dr. Alvarez breached the non-compete, it had to reject Dr. Alvarez’ defense that PML failed to purchase his stock as required by the agreement — which is precisely what the jury found in the preceding part of the verdict form had happened.

It is not clear why the jury reached these two legally inconsistent conclusions. Perhaps, in part, it was the jury instructions, which in this case, were awful. They are confusing, inconsistent, and incorrect. This was not entirely the fault of the trial judge because these instructions, inexplicably, were the product of a stipulation. The jury’s plight was made worse by the design of the verdict form, which failed to let the jury know that if it concluded that PML had wrongly discharged Dr. Alvarez for cause, then it was not to consider the non-compete issue.

II. WHAT TO DO WITH THE INCONSISTENT VERDICT?

An inconsistent verdict arises in the following circumstances:

Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereupon is erroneous.

Crawford, v. DiMicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968). “To preserve the issue of an inconsistent verdict for review on appeal, the party claiming inconsistency must raise the issue before the jury is discharged.” Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004).

This court has said that a new trial is the proper remedy for an inconsistent ver-diet on appeal. In Southland Corp. v. Crane, 699 So.2d 332, 334 (Fla. 5th DCA 1997), the jury found that plaintiffs injuries were the result of both her own and defendant’s negligence. Then, in the same verdict form, it found the defendant 100% at fault and the plaintiff 0% at fault. This court stated:

This court has not hesitated to reverse a judgment where the jury’s verdict reflects findings patently in conflict.
In the instant case, the verdict is clearly contradictory in that the jury found negligence on the part of the plaintiff which was a legal cause of her damage but then proceeded to apportion all of the negligence to the defendant.- There is simply no way to square the verdict or to determine the intent of the jury. - A new trial is required on all issues.

Southland, 699 So.2d at 334 (citations omitted); see also MSM Golf, L.L.C. v. Newgent, 853 So.2d 1086, 1087 (Fla. 5th DCA 2003) (“While this rule sounds in discretionary language, it seems to us that once the trial court specifically recognized the patent inconsistency of the verdict, it was the court’s obligation to order a new trial”); see also Mike Henry, Inc. v. Donaldson, 558 So.2d 1093,1095 (Fla. 5th DCA 1990) (Trial court found that when jury verdict evidences that the “the jury misunderstood the evidence or the instructions or both ... the court should have granted the motion for new trial”).

Southland also explains that whether the proper remedy is a new trial or entry of judgment in one party’s favor depends on whether the intent of the jury can be properly determined from the verdict form. This is consistent with the First District Court’s explanation in Continental Assurance Co. v. Davis, 538 So.2d 542 (Fla. 1st DCA 1989), which held:

The court can correct verdicts only where it appears that the jury “incorrectly apportioned damages, erroneously transposed the amounts in consolidated action, or made other clerical errors in rendering the verdict.... On the other hand if the verdicts were the result of misconceptions of the jury as to the facts and law involved, or confusion, and do not reflect the true intent of the jury,” then the court cannot correct the verdict.

Id. at 543 (citing Cory v. Greyhound Lines, Inc., 257 So.2d 36, 40 (Fla.1971)).

In support of the verdict, PML makes two arguments. First, PML argues that Dr. Alvarez failed to properly object to the alleged inconsistency in the jury’s verdict prior to the discharge of the jury, and is, thus, “foreclosed from now arguing that the verdict is inconsistent and a new trial is required.” Second, PML continues to argue that the jury’s finding is not inconsistent — that while the jury may have found that PML breached its obligation under the Buy-Sell Agreement, the jury could still find that the non-compete was enforceable, because performance of the condition precedent would have been futile or because Dr. Alvarez anticipatorily breached his obligations under the Buy-Sell Agreement.

We conclude that Dr. Alvarez adequately preserved this issue for appellate review by raising the issue prior to discharge of the jury. Although Dr. Alvarez’ counsel agreed with the trial judge that the verdict could not be fixed by' resubmitting it to the jury to correct the inconsistency, he did explain its nature. Counsel for PML took the position that there was no inconsistency. Besides, after reading this record, including the closing arguments, the jury instructions and the verdict form, we cannot envision what flash of insight could have led that hapless jury to a proper verdict.

Without doubt, the key issue in this case is whether Dr. Alvarez was properly terminated for cause and the jury found he was not. However, just because the verdict in favor of Dr. Alvarez came first does not mean it necessarily prevails. In the jury instructions and verdict form the jury was asked to consider each claim separately, so it is impossible to tell what the jury intended or what it would have intended if it had been correctly told what it had to decide. The proper remedy here has to be a new trial.

III. WHETHER THE NON-COMPETE AGREEMENT WAS BREACHED.

Finally, we address the contention that Dr. Alvarez did not, as a matter of law, breach the non-compete' agreement, so he is entitled to judgment in his favor, notwithstanding any inconsistency in the verdict. As discussed previously, after Dr. Alvarez left PML, he began working with BML as an independent contractor. In his relationship with BML, Dr. Alvarez would receive slides from BML, read them, interpret them, and create a written report containing his diagnosis. Alvarez asserted that he performed this work for BML either in his home or at the offices of BML, both of which are located outside the geographic region encompassed in the non-compete. Dr. Alvarez apparently also called some portion of his former clients to see if they would be interested in his continued services through BML.

On June 15, 2005, Dr. Alvarez filed a motion for partial summary judgment to establish that, even if the non-compete was enforceable, his activity did not violate the terms of the non-compete. Dr. Alvarez’ position on summary judgment was that the terms of the non-compete did not explicitly prohibit solicitation, and his competitive activity was outside the geographic scope of the non-compete. PML’s argument below was essentially that, given the nature of the business and the purpose of the non-compete, where Dr. Alvarez is physically located does not matter. What matters is that he was soliciting and/or performing services for customers located within the geographic region of the non-compete.

In part, the non-compete provides:
3.6 No competition. Each Stockholder hereto agrees that upon purchase of Stockholder’s shares of stock under this Agreement and for a period of five (5) years after the closing on the Stockholder’s stock (“Redeemed Stockholder”), the Redeemed Stockholder shall not, within a thirty (30) mile radius of an office of the Corporation or Leesburg Regional Medical Center, the Villages Tri-County Medical Center, Inc. or at any other hospital which Corporation’s physicians actively works, own, manage, operate, control, be employed by, act as an agent for, participate in or be connected in any manner with the ownership, management, operation or control of any business which is engaged in the practice of Pathology or any of its sub-specialties which are or may be competitive to the business of the Corporation.

Under section 542.33(2)(a), Florida Statutes (2005):

One who sells the goodwill of a business, or any shareholder of a corporation selling or otherwise disposing of all of her or his shares in said corporation, may agree with the buyer, and one who is employed as an ... employee may agree with her or his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the goodwill from her or him, and so long as such employer, continues to carry on a like business therein.

Section 542.335(l)(h), Florida Statutes (2005), instructs that:

A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract....

Given the interpretative mandate of the statute, we agree with the trial court that the meaning of this provision cannot be determined as a matter of law.

Given our conclusion that this case has to be retried, we reverse the judgment and the injunction and remand for a new trial of all issues.

REVERSED and REMANDED.

TORPY and MONACO, JJ., concur.

      . Several interlocutory and post-trial orders are also challenged: Order Denying Plaintiff's and Defendants' Motions for Partial Summary Judgment; order granting defendant's motion in limine; denial of plaintiff's motion for directed verdict; the Order on Post Trial Motions denying Plaintiff's Motion for Judgment in Accordance with the Motion for Directed Verdict or for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial and Motion for Remittitur; and a permanent injunction against Alvarez; and the Order on Motions for Attorney's Fees and Costs that denied fees and costs to Plaintiff as a prevailing party. In a cross-appeal, PML and Dr. Rendon also appeal the trial court’s Order on Motions for Attorney's Fees and Costs, which denied fees and costs to Defendant as a prevailing party.

      . No closing date was specified in the October 31, 2003 letter.

      . Dr. Alvarez makes one further argument concerning an order restricting his introduction of evidence of Dr. Rendon's alcoholism in order to suggest her loss of business was due to her own fault. We think the judge’s handling of this issue was right, given the state of the record.


text:
    Jimmy TOLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3219.
    District Court of Appeal of Florida, First District.
    April 9, 2007.

      Nancy Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jimmy Toliver raises four issues in this appeal of his conviction and sentence for second-degree murder. We affirm.

Toliver first claims the trial court reversibly erred by not granting a mistrial after the State “revealed” his criminal record. We review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Floyd v. State, 918 So.2d 564, 576 (Fla.2005). We find no merit to Toliver’s argument. First, the officer never stated that Toliver had a criminal history; rather, the officer simply said that he ran the vehicle’s tags and the appellant’s name through his patrol car’s computer. In an abundance of caution, the trial judge provided a curative instruction that no inference should be made that Toliver possessed a criminal record. The trial judge and the State further clarified that Toliver was not the registered owner of the vehicle. The trial judge properly denied the mistrial motion.

Toliver next argues the trial court reversibly erred by admitting a gruesome photograph of the crime scene. Again, we review the trial court’s determination for an abuse of discretion. See Wilson v. State, 436 So.2d 908, 910 (Fla.1983). The State introduced the photograph to corroborate its witnesses’ testimony and to rebut any claims of accidental shooting. The trial court properly admitted the photograph. See Jackson v. State, 545 So.2d 260, 265 (Fla.1989) (finding photographs of victim’s charred remains admissible to prove circumstances surrounding murder and to corroborate medical examiner’s testimony); Larkins v. State, 655 So.2d 95, 98 (Fla.1995) (finding photographs of victim lying in pool of blood relevant to aid in explanation of how and where victim died).

Toliver’s third argument concerns the trial court’s denial of his motion for judgment of acquittal. A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974). At trial, the State’s case did not rely upon circumstantial evidence. To the contrary, the State presented direct witness testimony that Toliver brought a loaded shotgun to the crime scene, retrieved the weapon from the back seat of his car, aimed the weapon at the victim’s head, pulled the trigger, and fled. The State also offered testimony that the victim did not place appellant in reasonable fear. Although appellant presented some evidence going to a self-defense claim, the trial court on a motion for judgment of acquittal properly resolved all conflicts in the evidence and all reasonable inferences drawn therefrom in a light most favorable to the State. Id. As the State presented substantial evidence supporting its charge of second-degree murder, the trial court properly denied the motion.

Toliver’s final argument questions the trial court’s denial of his motion for a new trial, based upon the verdict being against the weight of the evidence. “[T]he only avenue for judicial review of the weight of the evidence is by motion for new trial at the trial court level .... [Tibbs] places sole responsibility for that discretionary decision upon the trial judge.” Robinson v. State, 462 So.2d 471, 476-77 (Fla. 1st DCA 1984); see Tibbs v. State, 397 So.2d 1120 (Fla.1981). We, as an appellate court, concern ourselves only with the legal sufficiency of evidence; we do not reweigh evidence. See Tibbs, 397 So.2d at 1123 (“[T]he concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.”). Here, the State presented ample evidence supporting Toliver’s conviction.

AFFIRMED.

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