author: VILLANTI, Judge. KELLY, Judge,

text:
    Vicky TALBOTT, Appellant, v. AMERICAN ISUZU MOTORS, INC., n/k/a Isuzu Motors America, Inc., Appellee.
    No. 2D04-3680.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.

      Scott Cohen, Alex D. Weisberg, and Theodore F. Greene, III, of Krohn <& Moss, Ltd., Sunrise, for Appellant.
    Frank D. Hosley and Richard P. Spence of Seipp, Flick & Kissane, P.A., Lake Mary, for Appellee.
   VILLANTI, Judge.

Vicky Talbott appeals the trial court’s order granting American Isuzu Motors, Inc., attorney’s fees and costs under the offer of judgment statute, section 768.79, Florida Statutes (2003). Talbott contends that 15 U.S.C. § 2310(d)(2) of the Magnu-son-Moss Warranty — Federal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. §§ 2301-2312, preempts Florida’s offer of judgment statute and precludes Isuzu from recovering attorney’s fees. We disagree and affirm the trial court’s award of attorney’s fees and costs. While this appeal was pending, the Fifth District, in Marcy v. Daimler-Chrysler Corp., 921 So.2d 781 (Fla. 5th DCA 2006), issued its opinion explaining why the Magnuson-Moss Act does not preempt Florida’s offer of judgment statute. We write to express our agreement with the result in Marcy.

Vicky Talbott, unhappy with her brand new 2002 Isuzu Trooper, filed suit against Isuzu under the Magnuson-Moss Act, seeking damages for breach of express and implied warranties. Isuzu twice made Tal-bott offers of judgment, first for $500 about three months after Talbott initially filed her complaint and then for $1500 four months later. Talbott did not accept either offer. Isuzu subsequently won final summary judgment in its favor on two counts in Talbott’s complaint and, after a trial, final judgment in its favor on the remaining count. Isuzu filed a motion for attorney’s fees and costs under Florida’s offer of judgment statute, section 768.79. Talbott argued to the trial court that section 768.79 was preempted by the Magnu-son-Moss Act. The trial court disagreed and granted Isuzu’s motion for attorney’s fees and costs, awarding Isuzu $27,253 in attorney’s fees and $2036.14 in costs. Tal-bott appeals.

Whether a federal statute preempts a state statute is a question of law that we review de novo. Federal preemption “may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)).

The Magnuson-Moss Act does not contain an express preemption of state statutes governing attorney’s fee awards. Therefore, we turn to a discussion of implied preemption.

Preemption can be implied when there is a conflict between a federal and a state law. State v. Wolland, 902 So.2d 278, 281 (Fla. 3d DCA 2005) (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). There is a conflict between a federal and a state law when “it is either physically impossible to comply with the dictates of both sets of laws or where dual compliance is technically possible but state law creates an obstacle to fulfilling federal policy and goals.” Id.

Florida’s offer of judgment statute provides:

In any civil action for damages filed in the courts of this state, if a defendant flies an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

§ 768.79(1). The Magnuson-Moss Act provides:

If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action....

15 U.S.C. § 2310(d)(2). Section 768.79 provides for awards of attorney’s fees to parties who previously attempted to settle a case by making offers of judgment — not based on their status as prevailing parties but on their offers of judgment and the ultimate determination of liability. The Magnuson-Moss Act, on the other hand, provides for awards of attorney’s fees to prevailing consumers. It is possible to comply with the dictates of both section 768.79 and the Magnuson-Moss Act because the Magnuson-Moss Act does not say that defendants or manufacturers can never recover their attorney’s fees; defendants or manufacturers simply cannot argue entitlement to attorney’s fees based on only the Magnuson-Moss Act. Here, Isuzu would not be entitled to recover attorney’s fees under the Magnuson-Moss Act because it is not a consumer. However, it could recover attorney’s fees under section 768.79 because the judgment was ultimately one of no liability and Isuzu made an offer of judgment. Theoretically, it is possible to comply with the dictates of both section 768.79 and the Magnuson-Moss Act even if the plaintiff consumer prevails' — -the court could award a prevailing consumer attorney’s fees and costs and then offset that award against the defendant’s post-offer of judgment fees and costs as the Supreme Court of Alaska discussed in Catalina Yachts v. Pierce, 105 P.3d 125, 129 (Alaska 2005). Although not binding, Catalina Yachts has a sound analysis on this issue:

Two provisions are in direct conflict when they cannot both be followed— when complying with one necessarily means violating the other. If Magnu-son-Moss, by authorizing awards only to consumers, bars fee awards to defendants, then [Alaska’s court rule allowing for attorney’s fees based on an offer of judgment] cannot be followed without violating the federal law. But the [Mag-nuson-Moss] Act’s failure to authorize awards to defendants is not the same as a bar on such awards when they are allowed by another authority. This silence distinguishes Magnuson-Moss from other federal laws that place limits on the circumstances in which defendants can receive fee awards and that therefore may conflict with state fee provisions....
... [I]t is possible to follow both the state rule and the federal act without violating either. A court could ... award the prevailing plaintiff [consumer] full fees and costs, then offset that award against the defendant’s post-offer fees and costs....

Id. at 129 (footnotes omitted).

The Magnuson-Moss Act and Florida’s offer of judgment statute also do not conflict in purpose. Florida’s offer of judgment statute does not create an obstacle to fulfilling the federal goal of encouraging consumers to bring valid breach of warranty claims. In fact, the goals of the Magnuson-Moss Act and Florida’s offer of judgment statute are complementary — encouraging consumers to bring valid breach of warranty claims and then encouraging them to evaluate and settle those claims. Similar reasoning was used by the United States Supreme Court in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). In Marek, the Supreme Court discussed a federal offer of judgment rule that “prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon trial on the merits.” Id. at 5, 105 S.Ct. 3012. The Court reasoned that a federal statute that sought to “en courage[] plaintiffs to bring meritorious civil rights suits” was “consistent with the policies and objectives” of the offer of judgment rule, which “simply encourages settlements.” Id. at 11, 105 S.Ct. 3012. “There is nothing incompatible in these two objectives.” Id.

Florida’s offer of judgment statute penalizes parties who “fail to act reasonably and in good faith in settling lawsuits.” Eagleman v. Eagleman, 673 So.2d 946, 947 (Fla. 4th DCA 1996). Consumers should not be exempt from this penalty if they fail to act reasonably and in good faith simply because they are consumers. Because section 768.79 and the Magnuson-Moss Act do not conflict either in language or in purpose, we conclude that section 768.79 is not preempted by the federal statute.

Talbott next suggests that Isuzu’s offer of judgment was not made in good faith. The standard of review is abuse of discretion. Hall v. Lexington Ins. Co., 895 So.2d 1161, 1166 (Fla. 4th DCA 2005). Once Isuzu showed that it was entitled to attorney’s fees, Talbott had the burden to show that the offer was not made in good faith. See id. “The determination of whether an offer was served in good faith turns entirely on whether the offeror had a reasonable'foundation upon which to make the offer.” Id. Isuzu made an initial offer of $500 and a subsequent offer of $1500 because it evaluated no liability, a conclusion also reached by the jury. A review of the record reveals no evidence that the trial court abused its discretion in finding that Isuzu’s offer was made in good faith.

Talbott’s final argument is that the amount of attorney’s fees was excessive, an argument we also find to be without merit. The trial court’s final order granting attorney’s fees to Isuzu properly made findings regarding the reasonableness of the hourly rate and number of hours charged as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). The record contains competent, substantial evidence to support the amount awarded. Debra J. Sutton, P.A. v. LeBeau, 912 So.2d 327, 328 (Fla. 2d DCA 2005) (“An award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.”) (quoting Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000)).

In sum, we affirm this case because the trial court did not err in granting attorney’s fees to Isuzu under Florida’s offer of judgment statute. Florida’s offer of judgment statute, section 768.79, is not preempted by federal law. The trial court’s finding that Isuzu’s offer was made in good faith was not an abuse of discretion, and the trial court’s determination of the amount of attorney’s fees was supported by competent, substantial evidence.

Affirmed.

WALLACE, J., Concurs.

KELLY, J., Dissents with opinion.

KELLY, Judge,

Dissenting.

The majority should have relied on decisions from this court, not the dubious reasoning of an Alaskan court, to determine whether Florida’s offer of judgment statute, section 768.79, is preempted by 15 U.S.C. § 2310(d)(2), which provides for an award of attorney’s fees to prevailing consumers in an action under the federal Magnuson-Moss Warranty Federal Trade Commission Improvement Act (Magnu-son-Moss Act), 15 U.S.C. §§ 2301-2312 (1998). This court has held that where a federal law provides for an award of attorney’s fees in a more limited context than provided for under state law, the federal law preempts the state law. Adherence to this standard compels the conclusion that the Magnuson-Moss Act preempts section 768.79, because under section 768.79 a manufacturer can recover fees from a consumer provided the statutory conditions for the award are satisfied, while under the Magnuson-Moss Act, a manufacturer can never recover its attorney’s fees from a consumer in an action brought under the Act.

As indicated in the majority opinion, this case involves “conflict preemption.” The Supreme Court, when describing conflict preemption, “has spoken of pre-empting state law that ‘under the circumstances of th[e] particular case ... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ — whether that ‘obstacle’ goes by the name of ‘conflicting; contrary to; ... repugnance; difference; irreconcilability; inconsistency; violation; curtailment; ... interference,’ or the like.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). The Court has not distinguished between “ ‘conflicts’ that prevent or frustrate the accomplishment of a federal objective and ‘conflicts’ that make it ‘impossible’ for private parties to comply with both state and federal law. Rather, it has said that both forms of conflicting state law are ‘nullified’ by the Supremacy Clause.” Id. (citations omitted).

The issue here is whether section 768.79 “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id. (citation omitted). In Moran v. City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997), this court considered whether section 768.79 conflicted with the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. 42 U.S.C. § 1988 states that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Under this statute, a prevailing defendant may recover fees only where the action was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). On the other hand, section 768.79 allows a defendant to obtain fees regardless of whether it has prevailed and regardless of whether the suit is “frivolous, unreasonable, or without foundation.” Id. Because section 1988 allowed an award of attorney’s fees to prevailing defendants “in a much more limited context” than section 768.79(1), this court held that section 768.79(1) was preempted. Moran, 694 So.2d at 887.

In Petsche v. Prudential Insurance Co. of America, 607 So.2d 514 (Fla. 2d DCA 1992), this court held that section 627.428, which mandates the assessment of attorney’s fees against insurers where a judgment is entered in favor of an insured, was preempted by 29 U.S.C. § 1132(g), which provides for a discretionary award of fees in an action brought under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. This court cited as authority Florida Automobile Dealers Industry Benefit Trust v. Small, 592 So.2d 1179, 1182-83 (Fla. 1st DCA 1992) (on motion for rehearing), which recognized that Florida’s mandatory provision was inconsistent with the discretionary provision contained in section 1132 and thus was preempted.

Other Florida courts have used the same test. In Clayton v. Bryan, 753 So.2d 632 (Fla. 5th DCA 2000), the Fifth District considered whether a fee provision in the Federal Fair Debt Collection Protection Act (FDCPA), 15 U.S.C. § 1692, preempted section 768.79. FDCPA allows an award of fees to a prevailing defendant when the court expressly finds that the plaintiffs case was “brought in bad faith and for the purpose of harassment.” 15 U.S.C. § 1692.k(a)(3). Citing Moran, the court concluded that section 768.79 was preempted because it did not restrict an award of fees to cases brought in bad faith. Clayton, 753 So.2d at 633-34. In Keesee v. Bank of America, NA 371 F.Supp.2d 1370, 1376 (M.D.Fla.2005), the court found that section 768.79 was “inconsistent” with 42 U.S.C. § 1988 because its provision for mandatory fees would “override” the discretionary test applied under federal law. The court noted that if section 768.79 were applied it “would expose plaintiffs to greater risk and upset the substantive balance of interest embodied in Title VII.” Id. at 1377.

The one-way fee-shifting provision in the Magnuson-Moss Act is likewise a product of a balancing of interests by Congress. In.drafting the Act, Congress recognized that “enforcement of the warranty through the courts is prohibitively expensive,” and accordingly, a fee-shifting provision was necessary to make “consumer resort to the court feasible.” S.Rep. No. 93-151, 7-8 (1973). By including the one-way fee-shifting provision, Congress demonstrated its intent “ ‘to encourage private enforcement of the statutory substantive rights ... through the judicial process’ ” by making it “economically feasible for consumers to pursue their remedies in state courts.” Skelton v. Gen. Motors Corp., 860 F.2d 250, 253, 256 n. 7 (7th Cir.1988) (citations omitted). By limiting the award of fees to those “reasonably incurred by the plaintiff’ and by making the award to a prevailing consumer discretionary, Congress put safeguards in place to discourage unnecessary or nonmeritorious litigation. A consumer who .does not prevail recovers nothing, and a consumer who continues to litigate despite a reasonable settlement offer risks having the court deny some or all of the fees the consumer is seeking on the grounds that such fees are not “reasonably incurred.” Applying section 768.79 will “upset the substantive balance of interest” embodied in the Magnuson-Moss Act. See Keesee, 371 F.Supp.2d at 1377.

I believe that the majority opinion’s reliance on Catalina Yachts is misplaced. As explained above, this court has already articulated the standard by which it will judge whether a federal fee provision preempts state law. Further, the reasoning the court employed in that case is faulty. It ignores or misapprehends the well-established rules used to construe federal attorney’s fee statutes. Those rules recognize that fee statutes such as section 2310(d)(2) do not exist in a vacuum. Because it fails to read section 2310(d)(2) in the context in which Congress wrote it, the majority opinion suffers from the same flaw.

The Supreme Court has repeatedly explained the context in which courts are to discern Congress’ intent. It has held that any analysis of a federal attorney’s fee statute has to recognize that “Congress legislates against the strong background of the American Rule.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The “American Rule” is shorthand for the general rule that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees. Christiansburg, 434 U.S. at 415, 98 S.Ct. 694. When trying to ascertain what Congress intended with respect to a particular fee provision, courts must take into account that “[w]hat Congress has done, ... while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (emphasis supplied); accord Christiansburg, 434 U.S. at 415, 98 S.Ct. 694 (“It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees. Congress has provided only limited exceptions to this rule ‘under selected statutes granting or protecting various federal rights.’ ”) (citations omitted); Runyon v. McCrary, 427 U.S. 160, 185, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (“[T]he law of the United States ... has always been that absent explicit congressional authorization, attorneys’ fees are not a recoverable cost of litigation.”). In other words, when Congress legislates, it does so with the understanding that unless it creates an exception, no party is entitled to an award of attorney’s fees. When the Supreme Court states that in construing attorney’s fees provisions it is “mindful of the fact that Congress legislates against the strong background of the American Rule,” Fogerty, 510 U.S. at 533, 114 S.Ct. 1023, what it means is that any analysis of what Congress intended starts with the presumption that fees are not recoverable. See also Ruckelshaus v. Sierra Club, 463 U.S. 680, 683, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (explaining that when construing an attorney’s fee provision, “[o]ur basic point of reference is the ‘American Rule’ ”).

In light of that presumption, the fact that section 2310(d)(2) “does not say that defendants or manufacturers can never recover their attorney’s fees” is beside the point. Congress has no reason to say that. Rather, section 2310(d)(2) represents an exception Congress has chosen to make to permit prevailing consumers to recover attorney’s fees. By not including an exception for manufacturers, Congress has expressed its intention to preclude manufacturers from recovering fees.

In footnote 1, the majority opinion takes issue with this statement contending that “[ajpplying the American Rule does not mean that Congress is the only legislative body that can provide for attorney’s fees, nor does it mean that Congress’ silence is an absolute bar to recovering attorney’s fees.” This assertion misses the import of the discussion of the American Rule in this context. We are not “applying” the American Rule. It is supposed to serve as a reference point for determining congressional intent. Further, the majority’s assertion begs the question we have been asked to decide — whether in fact Congress’ “silence is an absolute bar to recovering attorney’s fees” under Florida’s offer of judgment statute. Obviously, Congress is not the only legislative body that can provide for attorney’s fees; however, Congress is the only legislative body that can provide for attorney’s fees in federal courts and, as the majority opinion acknowledges later in that footnote, it has not authorized fees for manufacturers. Thus, at least as a matter of federal law, the majority appears to concede that Congress, by failing to provide an exception for manufacturers, has expressed its intent to preclude manufacturers from recovering fees. The assertion that state legislatures can also enact attorney’s fee statutes does not negate that fact. It is because state legislatures can also provide for attorney’s fees that we have to engage in a preemption analysis. And it is because Congress is “silent” — that is, it has not expressly stated that states may not provide for an award of fees to a manufacturer — that we must consider whether Congress has impliedly preempted, as opposed to expressly preempted, state law.

To make the determination of whether Congress has impliedly preempted section 768.79, we must analyze whether section 768.79 “stands as an obstacle to -the accomplishment and execution of the full purposes and objectives of Congress.” See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The majority opinion ignores the fact that this court has held that a state attorney’s fee statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” where Congress has enacted a statute that provides for attorney’s fees in “a much more limited context” than permitted by state law. See Moran, 694 So.2d at 887. In footnote 1, the majority opinion acknowledges that “[t]he Magnuson-Moss Act does not authorize fees for [manufacturers]” and that under section 768.79 a manufacturer denied fees under the Magnuson-Moss Act might nevertheless be able to recover those fees under section 768.79. This is exactly the situation Moran describes as a conflict that preempts the state attorney’s fee statute: the federal law provides for fees “in a much more limited context.” Id.

Apparently, the majority believes it is not bound by Moran because, in footnote 2, it dismisses Moran and the “numerous cases from this court and other ■ districts” that have used this analysis because those cases “do not specifically address the unique language of the Magnuson-Moss Act.” While that is accurate — not one of the cited cases considers whether the Mag-nuson-Moss Act preempts a state attorney’s fee statute — it is also a meaningless distinction. Those cases also considered “unique” federal statutes. What is significant in those cases is not the particular statute involved, it is the standard those cases employed to evaluate whether state law conflicted with the statute at issue. As explained above, when “the unique language of the Magnuson-Moss Act” is examined under that standard, the conclusion that flows from that analysis is that section 768.79 is preempted.

The majority opinion expresses its agreement with Matey; however, the flawed reasoning in Catalina Yachts also influenced that decision. See Matey, 921 So.2d at 785 (“The [Magnuson-Moss Act] is silent as to attorneys’ fees except with respect to a possible award to a prevailing plaintiff. No section of the federal statute denies a defendant the ability to recover fees and costs, or for that matter, even addresses whether a defendant can recover such expenditures.”). In reaching its conclusion Matey also cites federal cases generally standing for the proposition that Congress did not intend that the Magnu-son-Moss Act supplant state law. These cases are inapposite because they address the effect of the warranty provisions of the Magnuson-Moss Act on the ability of states to regulate consumer warranties. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. Abrams, 899 F.2d 1315, 1320 (2d Cir.1990) (noting that “ ‘the protections of the [Magnuson-Moss Act] are in addition to, rather than in lieu of, warranty rights and remedies under State law,’ ” and that the states are permitted “ ‘to fashion their own scheme of warranty rights and remedies which may be more protective than the minimum level of protection of the Federal Act’ ”) (quoting Preemptive Effect of Section 111(c)(1) of the Magnuson-Moss Warranty Act, 43 Fed.Reg. 50737, 50737-38 (Oct. 31, 1978)) (emphasis supplied); Walsh v. Ford Motor Co., 807 F.2d 1000, 1012-14 (D.C.Cir.1986) (“Congress sought only to supplement state warranty law by prescribing certain minimum standards for warrantors, and by affording consumers additional avenues for redress ... [w]e think it beyond genuine dispute that, as to both implied and written warranties, Congress intended the application of state law, except as expressly modified by Magnu-son-Moss, in section 110(d) breach of warranty actions.”) (footnotes omitted).

Matey’s citation to 15 U.S.C. § 2311 is likewise inapposite. Matey states that this section details the Act’s application to other statutes, and it “does not either expressly or implicitly preempt any state statute concerning an award of attorneys’ fees for a prevailing party.” 921 So.2d at 784. The issue we are concerned with is not whether the Magnuson-Moss Act expressly preempts section 768.79, but rather, whether preemption is implied because section 768.79 conflicts with section 2310(d)(2). Section 2311 has no bearing on whether those two fee provisions can coexist. Further, even if section 2311 was relevant to our analysis of whether those two provisions conflict, it states that the Magnuson-Moss Act does not invalidate or restrict the rights of consumers under state law:

2311. Applicability to other laws
(b) Rights, remedies, and liabilities
(1) Nothing in this chapter shall invalidate or restrict any right or remedy of any consumer under State law or any other Federal law.

(Emphasis supplied.)

Matey also cites Deadwyler v. Volkswagen of America, Inc., 748 F.Supp. 1146 (W.D.N.C.1990). In that case, the court awarded attorney’s fees to Volkswagen when it prevailed in class action litigation involving implied warranty and unfair and deceptive trade practice claims. Deadwyler is inapposite because the consumers’ claims arose under state law, not the Mag-nuson-Moss Act. When a federal court exercises diversity jurisdiction over state-law claims, it is obligated to apply state law to those claims. See Felder v. Casey, 487 U.S. 131, 151, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). On the other hand, when a litigant brings a federal claim in a state court, a state law that interferes with the enforcement of the federal right must, under the Supremacy Clause, yield to the federal interest. Id. The fact that Volkswagen was able to recover its fees under state law in Deadwyler has no bearing on the analysis in this case. Thus, I find nothing in Marcy or in the majority opinion that persuades me to join the majority in its conclusion that section 768.79 is not preempted.

      . The dissent argues that because of the American Rule, "[b]y not including an exception for manufacturers, Congress has expressed its intention to preclude manufacturers from recovering fees.” We disagree. The American Rule is that "attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.” State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993). Applying the American Rule does not mean that Congress is the only legislative body that can provide for attorney’s fees, nor does it mean that Congress' silence is an absolute bar to recovering attorney's fees. Rather, under the American Rule, if Congress is silent on attorney's fees, a state statute, or even the parties themselves in a contract, can provide for attorney’s fees. The Magnuson-Moss Act does not authorize fees for defendants; it authorizes fees for prevailing consumers. However, Florida’s offer of judgment statute authorizes attorney’s fees for any party who makes a settlement offer and then meets certain statutory conditions. Congress was presumably acting under the American Rule and knew that defendants would have to pay their own attorney's fees unless a statute provided otherwise. By remaining silent on attorney’s fees for defendants, Congress left open the possibility that defendants could recover their attorney's fees under another statute, even if they could not recover their fees under the Magnuson-Moss Act.

      . The dissent cites numerous cases from this court and other districts that discuss whether federal statutes other than the Magnuson-Moss Act preempt Florida’s offer of judgment statute. These cases are inapplicable; they do not specifically address the unique language of the Magnuson-Moss Act. See, e.g., Moran v. City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997).

      . Although the majority opinion contains a lengthy discussion of "impossibility” preemption, Talbott has not argued that it is impossible to comply with both statutes.

      . In support of its contention that section 768.79 is compatible with section 2310(d)(2), the majority opinion cites Marek for its discussion of Federal Rule of Civil Procedure 68, the federal offer of judgment rule. What the majority fails to appreciate is that in Marek the court limited recovery of attorney’s fees under rule 68 to those fees a party would be entitled to recover pursuant to the statute governing the underlying action. 473 U.S. at 9, 105 S.Ct. 3012. Thus, the rule does not put a party at risk of paying fees where the underlying statute does not already subject them to that risk.

      . Federal courts have recognized a limited number of nonstatutory exceptions to the general rule. One of those is that attorney’s fees may always be awarded against a party who has proceeded in bad faith. Thus, even in the absence of a statute, a party can still recover fees under this common law exception. In this case, however, it is at least arguable that manufacturers are precluded from recovering fees even under this exception because section 2310 provides for a fee award to prevailing consumers only. In Christiansburg, the court, in discussing how the American Rule impacts its interpretation of fee statutes, explained that although the common law exception was available where an attorney’s fee statute provided for fees to the prevailing party, "[h]ad Congress provided for attorney's fee awards only to successful plaintiffs, an argument could have been made that the congressional action had pre-empted the common-law rule, and that, therefore, a successful defendant could not recover attorney’s fees even against a plaintiff who had proceeded in bad faith.” 434 U.S. at 419 n. 13, 98 S.Ct. 694.

      . Moran and Keesee compared 42 U.S.C. § 1988 to section 768.79, Petsche and Small compared 29 U.S.C. § 1132(g) to section 627.428, and Clayton compared 15 U.S.C. § 1692 to section 768.79.

      . The court specifically rejected the plaintiffs’ attempt to characterize the implied warranty claims as federal claims under the Magnu-son-Moss Act.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Jewel GRIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4975.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Jewel Grier appeals his convictions for multiple counts of lewd and lascivious molestation and conduct, sexual battery, attempted sexual battery, and simple battery. Because the trial court erred in denying the defendant’s motion for a mistrial after a police officer made an impermissible comment on his right to remain silent, we reverse.

The charges in this case arise out of the physical relationships that Grier had with three teenage girls whom he met through church. The principal witnesses against Grier were the three girls and the police officer who interrogated Grier. At trial, part of the defense strategy was to suggest that the victims consented to much of the physical contact. The consent of the girls would constitute a valid defense to some of the charges. Grier did not testify.

' The police officer who interviewed Grier testified that Grier admitted having a physical relationship with each of the accusers. According to the officer, Grier admitted many aspects of the girls’ allegations, but did not admit other details of the allegations. The officer testified that he did not tape-record the conversation he had with Grier. Once the officer had completed the initial interview, he said to Grier: “I’d like to get this on a sworn taped statement.”

The prosecutor asked the officer whether Grier would go on tape at that point. The officer replied, “No, he wouldn’t. And that — He thought about it for a while. And then he said, ‘No. I’d rather have an attorney present.’ ” Defense counsel immediately objected and moved for a mistrial. The trial court denied the motion, reasoning that the officer merely commented on the defendant’s exercise of his right not to be taped. Later, the officer again mentioned Grier’s request for an attorney when the officer was trying to get further information from Grier. The trial court gave Grier a “continuing objection.” The jury found Grier guilty as charged on all counts in the amended information.

Any comment that is “fairly susceptible” of being interpreted as a comment on the defendant’s right to remain silent will be treated as such. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Admission of a defendant’s statement requesting an attorney amounts to a comment on the defendant’s right to remain silent. Shingledecker v. State, 734 So.2d 483 (Fla. 4th DCA 1999). Comments on silence are high risk errors because there is a substantial likelihood that such comments will vitiate the right to a fair trial. DiGuilio, 491 So.2d at 1136. Unless the state can show harmless error, a comment on the defendant’s exercise of the right to remain silent warrants reversal. Id. at 1136-37. “Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1138.

A comment that the defendant declined to have his statement to the police recorded, after the defendant waived his Miranda rights and .made a full statement, is not an impermissible comment on the defendant’s silence. Brack v. State, 919 So.2d 578, 580 (Fla. 4th DCA 2006); Fernandez v. State, 786 So.2d 38, 40 (Fla. 3d DCA 2001). Central to the court’s reasoning in Fernandez is the notion that the state should be permitted to head off any argument by the defense that the defendant’s oral statement should be disregarded because it was not written down or recorded where the defendant was given the opportunity to memorialize the oral statement and refused to do so. Fernandez, 786 So.2d at 40.

Grier relies heavily on Kiner v. State, 824 So.2d 271 (Fla. 4th DCA 2002), which we find to be on point. There, the detective did an unrecorded “pre-interview” with Kiner. Id. at 272. After the officer completed the pre-interview in which Kin-er made incriminating statements, the officer wanted to get the defendant’s statement on tape. Id. At trial, the state asked the officer what happened when he went to go on tape and record the defendant’s statement, and the officer replied that the defendant “invoked his rights and requested a lawyer.” Id. This court held that the comment was impermissible:

In this case, the officer’s statement in front of the jury is a clear and unequivocal statement that Kiner invoked his right to an attorney and therefore a right to remain silent. As such it is fairly susceptible to interpretation as a comment on the defendant’s silence. It is therefore, if not harmless, reversible error.

Id. at 273.

In this case, the state’s line of questioning was properly directed at overcoming any suggestion by defense counsel that the officer did something wrong by failing to get a taped statement from Grier. Had the officer merely stated that Grier declined to go on tape, there would not have been an impermissible comment on the defendant’s silence. See Brack, 919 So.2d at 580; Fernandez, 786 So.2d at 40. However, the officer’s statement went beyond explaining that Grier refused to go on tape; the officer also added the fact that Grier stated, “No. I’d rather have an attorney present.” For this reason, the facts of the instant case are closely analogous to those in Kiner. Grier’s statement was a clear invocation of his right to an attorney, and thus, his right to remain silent. Therefore, the officer’s testimony amounted to a comment on the defendant’s silence.

The state suggests that the error was harmless. Based upon our review of the record, it cannot be said that there is no reasonable possibility that the error contributed to the verdict. See DiGuilio, 491 So.2d at 1138. Grier contended that some of the acts were consensual. In addition, two of the victims were plaintiffs in a civil suit filed against Grier and his employer. On some of the counts, there was no evidence of Grier’s guilt other than the testimony of the victims. Thus, although Grier did not testify, credibility was an issue, and the jury could have construed Grier’s request for an attorney as impacting the credibility of his out-of-court statement to the officer in which he denied certain aspects of the allegations. Therefore, we reverse Grier’s convictions and remand for a new trial.

Reversed.

GROSS and HAZOURI, JJ., concur.


author: STRINGER, Judge.

text:
    Henry Brian BARRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2667.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
    Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Henry Brian Barry challenges his convictions and sentences for aggravated assault on a law enforcement officer with a deadly weapon and disorderly conduct, contending that the evidence was insufficient to support either conviction. We affirm the aggravated assault conviction without further comment. However, because we agree that the evidence was insufficient to support the disorderly conduct conviction, we reverse as to that charge.

The charges against Barry arise from an incident that occurred between him and Lake Placid Police Officer Bonnie Pruitt. After dropping their daughter, off at school, Barry and his wife were walking back to their car, which was parked in front of the elementary school. While returning to their car, Barry and his wife exchanged words with three young girls who were walking toward the school. While the content of these words was never definitively established at trial, whatever was said was sufficient to upset the girls and make at least one of them cry. The three girls approached Officer Pruitt, who was acting as the school crossing guard that day, and told her what Barry had said. Officer Pruitt decided to discuss the matter with Barry and his wife in an effort to resolve the problem.

When Officer Pruitt approached Barry to ask about the incident with the girls, Barry loudly told Officer Pruitt to mind her “own f-ing business.” When Officer Pruitt continued to try to speak with Barry, he again told her to mind her “own f-ing business.” After Barry started to get into his car, Officer Pruitt attempted to speak with Barry’s wife about the incident with the girls. At that point, Barry got out of his car, came around to the passenger side, and began screaming obscenities at Officer Pruitt while pointing and shaking his finger in her face.

According to Officer Pruitt, while this confrontation was occurring, traffic along the road in front of the elementary school was slowing and stopping to watch the confrontation. One motorist allegedly yelled something about Barry preparing to hit Officer Pruitt. However, there was no testimony that any of the motorists got out of their cars or otherwise reacted to the scene itself. Based on this evidence, the trial court denied Barry’s motion for judgment of acquittal on this count, and the jury subsequently found Barry guilty. Barry now appeals this conviction. ■

Section 877.03, Florida Statutes (2004), states, in pertinent part:

Breach of the peace; disorderly conduct. — Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree-

In order to avoid possible constitutional problems, the supreme court' has narrowed the scope of the conduct that may be punished under section 877.03:

In light of these considerations, we now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance ... inflict injury or tend to incite an immediate breach of the peace,” or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of over-breadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever.

State v. Saunders, 339 So.2d 641, 644 (Fla.1976) (internal citations omitted) (quoting White v. State, 330 So.2d 3, 7 (Fla.1976), and Spears v. State, 337 So.2d 977, 980 (Fla.1976)).

Considering the statute as limited by Saunders, it is clear that speech alone will not generally support a conviction for disorderly conduct. For example, in Miller v. State, 780 So.2d 197 (Fla. 2d DCA 2001), the defendant’s actions involved only loud and aggressive speech directed at a pólice officer who had come to her residence. This court reversed the conviction for disorderly conduct, noting that Miller’s conduct was entirely verbal until after the officer initiated the arrest. See also Macon v. State, 854 So.2d 834, 837 n. 1 (Fla. 5th DCA 2003) (“Words alone generally will not support a conviction for disorderly conduct.”); Miller v. State, 667 So.2d 325, 328 (Fla. 1st DCA 1995) (reversing conviction for disorderly conduct and noting that there . must be evidence of “something more than loud or profane language and a belligerent attitude” to support a conviction for disorderly conduct).

On the other hand, protected speech can be rendered unprotected by a defendant’s additional physical actions. For example, in C.L.B. v. State, 689 So.2d 1171, 1172 (Fla. 2d DCA 1997), C.L.B. not only engaged in loud verbal protests and name-calling, but he also repeatedly approached the officer and an arrestee so closely that the officer repeatedly had to push C.L.B. aside and tell him to stay away. This court noted that while C.L.B.’s words alone would be insufficient to support the adjudication for disorderly conduct, the combination of the words and his actions, which hindered the officer’s ability to complete the arrest, was sufficient to support the adjudication. Id.; see also Wiltzer v. State, 756 So.2d 1063, 1066 (Fla. 4th DCA 2000) (holding that Wiltzer’s words in combination with his nonverbal acts of bumping into the police officer, brushing the officer aside, and throwing his wallet at the officer were sufficient to support a conviction for disorderly conduct).

Here, the only evidence presented at the trial to support the disorderly conduct charge was that Barry yelled obscenities at Officer Pruitt concerning her actions. No evidence was presented that the words used were “fighting words” or words that would tend to incite an immediate breach of the peace. Further, the State presented no evidence that Barry engaged in any physical conduct toward Officer Pruitt that affected Officer Pruitt’s ability to do her job or that breached the peace or otherwise incited others to act. Therefore, the State did not prove that Barry was guilty of disorderly conduct as that offense has been defined and limited.

The State contends that Barry’s conviction should be upheld because drivers along the roadway slowed or stopped while Barry was yelling, thus causing a “crowd” to gather and causing Officer Pruitt to fear for the safety of children crossing the street. The State correctly points out that when a defendant’s words are sufficient to cause a crowd to gather to such an extent that officers develop safety concerns, convictions for disorderly conduct have been affirmed. See, e.g., Marsh v. State, 724 So.2d 666 (Fla. 5th DCA 1999) (affirming conviction for disorderly conduct because defendant’s “tirade” caused a crowd of more than ten people to gather, which raised concerns for officer safety); W.M. v. State, 491 So.2d 335 (Fla. 3d DCA 1986) (affirming adjudication for disorderly conduct because defendant’s actions of yelling and running around the stopped car drew a hostile crowd of fifty to seventy-five people and resulted in the police calling for back-up due to safety concerns).

However, the mere fact that other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct. Instead, there must be some evidence that the crowd is actually responding to the defendant’s words in some way that threatens to breach the peace. See, e.g., Gonzales v. City of Belle Glade, 287 So.2d 669, 670 (Fla.1973) (reversing disorderly conduct conviction because there was no evidence that the defendant’s words were anything other than an annoyance to those around them); K.S. v. State, 697 So.2d 1275, 1276 (Fla. 3d DCA 1997) (reversing adjudication for disorderly conduct even though a crowd gathered to watch the goings-on because the crowd did not respond to KS.’s words or attempt to otherwise breach the peace); B.R. v. State, 657 So.2d 1184, 1186 (Fla. 1st DCA 1995) (reversing adjudication for disorderly conduct even though everyone in a nearby laundry came out and passersby stopped to watch when there was no evidence that the defendant’s yelling incited anyone in the area to an immediate breach of the peace).

Here, the State presented some evidence that motorists slowed down to watch the interaction between Barry and Officer Pruitt. However, the State presented no evidence that these individuals actually responded to Barry’s words or that anyone in the area was actually incited into engaging in an immediate breach of the peace. At most, the State proved that onlookers slowed because they were curious or annoyed. Thus, the evidence that onlookers stopped or slowed to watch Barry yell obscenities at Officer Pruitt, without more, is insufficient to support the conviction.

Because the State’s evidence was insufficient to support Barry’s conviction for disorderly conduct, we reverse that conviction. In all other respects, we affirm.

Affirmed in part; reversed in part.

CASANUEVA and VILLANTI, JJ., Concur.


author: WALLACE, Judge.

text:
    Bernard BRADY, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-1018.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.

      William Newt Hudson, Tarpon Springs, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.
   WALLACE, Judge.

Bernard Brady petitioned this court for a writ of prohibition. In his petition, Brady alleged a violation of his right to a speedy trial under Florida Rule of Criminal Procedure 3.191. By a prior unpublished order, this court granted the petition for writ of prohibition. We issue this opinion now to explain our earlier ruling.

On October 8, 2005, Brady was arrested for driving under the influence (DUI) and for possession of a controlled substance. Upon his arrest, Brady was issued a uniform traffic citation for the DUI offense. The ninety-day speedy trial period for bringing Brady to trial on the misdemean- or DUI charge expired on January 6, 2006. Six days later, the State filed a two-count information in the Pasco County Circuit Court charging Brady with possession of a controlled substance, to-wit: carisoprodol, a third-degree felony (count one), and DUI, a first-degree misdemeanor (count two). Brady moved to dismiss count two of the information filed in the circuit court. On February 6, 2006, the circuit court orally denied Brady’s motion.

In his petition filed in this court, Brady pointed out that the State filed the information in the circuit court more than ninety days after the date of his arrest. He argued that the information was untimely filed with regard to the misdemeanor DUI charge and that the circuit court lacked jurisdiction over count two of the information. In response, the State contended that the circuit court properly acted within its jurisdiction because the misdemeanor DUI charge was consolidated with the felony possession charge when the two-count felony information was filed in the circuit court.

A writ of prohibition is the appropriate remedy for the improper denial of the right to speedy trial. Lovelace v. State, 906 So.2d 1258, 1259 (Fla. 4th DCA 2005) (citing Lowe v. Price, 437 So.2d 142 (Fla.1983)). Under rule 3.191(a), a person charged with a misdemeanor must be brought to trial within ninety days from the date of his arrest and a person charged with a felony must be brought to trial within 175 days from the date of his arrest. However, “[w]hen a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.” Fla. R.Crim. P. 3.191(f). Substantially similar language previously appeared in subsection (b)(2) of the rule. The 1980 committee note to the former subsection (b)(2) explains that “[t]o claim benefit under this provision, the crimes must be consolidated before the normal time period applicable to misdemeanors has expired.” In re Rules of Criminal Procedure, 389 So.2d 610, 616 (Fla.1980). Thus a misdemeanor charge cannot be revived by consolidating or joining it with a felony charge after the time for speedy trial runs. Alvarez v. State, 791 So.2d 574, 575 (Fla. 4th DCA 2001); Goldman v. State, 645 So.2d 1089, 1091 (Fla. 4th DCA 1994); Livingston v. State, 564 So.2d 612, 613 (Fla. 1st DCA 1990); see also State v. Robbins, 863 So.2d 168, 168 (Fla.2003) (Wells, J., dissenting) (stating that Alvarez, 791 So.2d 574, and Livingston, 564 So.2d 612, answer the following certified question in the affirmative: “When an information charging a defendant with both misdemeanor and felony charges is filed after the expiration of the speedy trial period for misdemeanors, must the misdemeanor counts be dismissed?”).

Brady was initially charged with misdemeanor DUI when the uniform traffic citation was filed in the Pasco County Court under case number CTC05-7796SBATWS. Later, the State filed the two-count information in the circuit court under case number CRC05-05120CFAWS, charging Brady with felony possession of a controlled substance and misdemeanor DUI. The State’s assertion that the misdemeanor DUI charge and the felony possession charge were consolidated by the filing of the felony information in the circuit court is incorrect. The charging document that joins felony and misdemeanor counts must be filed before the expiration of the misdemeanor speedy trial period. Alvarez, 791 So.2d at 575.

In this case, the State filed the two-count information in the circuit court after the expiration of the misdemeanor speedy trial time period. Furthermore, the county court is not automatically divested of jurisdiction when “misdemeanor and felony charges arising out of the same circumstances have been filed in both county and circuit courts.” State v. Coble, 704 So.2d 197, 199 (Fla. 4th DCA 1998). “Rather, a motion to consolidate by either party is required to divest the county court of jurisdiction.” Id. at 199-200 (citing State v. Woodruff, 676 So.2d 975, 977 n. 2 (Fla.1996) (stating that consolidation may be accomplished upon timely motion of a party)). Here, neither the State nor the defense filed a motion to consolidate the two cases prior to the expiration of the ninety-day speedy trial time period. Thus the county court was never divested of jurisdiction over the misdemeanor DUI charge, and the circuit court never properly obtained jurisdiction over that charge.

Accordingly, we granted the writ and prohibited the circuit court from exercising further jurisdiction over Brady on count two of the information filed in circuit court case number CRC05-05120CFAWS. Our decision did not affect the pending county court case number CTC05-7796SBATWS.

DAVIS and VILLANTI, JJ.,'Concur.


author: ALTENBERND, Judge.

text:
    Kevin R. BALKO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1324.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
   ALTENBERND, Judge.

Kevin R. Balko appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although the trial court was confused about the exact allegations in Mr. Balko’s handwritten motion, it correctly decided that the motion was successive and facially insufficient.

On July 19, 2004, Mr. Balko pleaded guilty to two counts of attempted sexual battery and two counts of lewd and lascivious molestation. The trial court sentenced him to terms of imprisonment totaling forty years. He did not appeal his judgments and sentences.

Mr. Balko filed this motion in June 2005, alleging that his counsel was ineffective because he failed to properly investigate Mr. Balko’s assertion that he “may” have been under the influence of a drug at the time he confessed to these crimes on September 30, 2003. His allegations are somewhat confusing, but coupled with the attachments to his motion it appears that Mr. Balko had been admitted to the Sun-coast Endoscopy Center for an outpatient procedure on September 29, 2003, the day before his confession. Prior to the procedure, he was anesthetized with a drug identified as “Versed,” a brand-name for a drug generically referred to as midazolam.

Mr. Balko does not allege that he told his lawyer about the outpatient surgery or that his lawyer had any reason to know that he had received medication on the day preceding his confession. Mr. Balko does not allege that he was actually impaired by the medication at the time of his confession. Nothing in the medical literature that he attaches to his motion would suggest that the drug’s effects had not worn off long before his interview with the police.

The trial court denied the motion as both successive and facially insufficient. The trial court attached several orders denying earlier motions under rule 3.850 to its order. Mr. Balko argues that his motion should be considered because he did not discover evidence concerning the exact drug used as anesthesia until recently. Two of the earlier motions, however, were filed after he received the information on the effects of Versed. Moreover, there is no question that Mr. Balko knew, even before his confession, that he had had the surgical procedure involving anesthesia on the preceding day. Mr. Balko has established no basis requiring the trial court to accept this successive motion. See Collins v. State, 855 So.2d 1160, 1162 (Fla. 1st DCA 2003).

Even if the motion were not successive, it was facially insufficient. From the trial court’s order, it appears that the trial court thought that Mr. Balko was alleging that he was under the influence of these drugs at the time of his plea. See Mungen v. State, 932 So.2d 1229 (Fla. 2d DCA 2006); Rivera v. State, 651 So.2d 814 (Fla. 2d DCA 1995). Despite this confusion, Mr. Balko does not allege a factual basis to establish that his counsel had information requiring him to investigate this issue or that the failure to investigate this issue was prejudicial to him. Accordingly, we affirm the trial court’s order.

Affirmed. ■

SALCINES and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    Negusse STALEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-865.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
   PER CURIAM.

Negusse Staley challenges the postcon-viction court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Staley was charged with home invasion robbery while ‘carrying a deadly weapon in violation of sections 812.135 and 775.087, Florida Statutes (2000). The jury found Staley “guilty of home invasion robbery, as charged,” and he was sentenced to life imprisonment as a prison releasee reoffen-der. In his rule 3.800(a) motion, Staley claims his life sentence is illegal because the jury did not make a specific finding that he used a deadly weapon. Relying on State v. Hargrove, 694 So.2d 729 (Fla.1997), the postconviction court denied the motion, finding that the verdict form constituted a clear jury finding that Staley carried a deadly weapon during the commission of the offense.

The postconviction court’s reliance on Hargrove is misplaced. See Harvey v. State, 865 So.2d 518, 520 (Fla. 2d DCA 2003) (“Because the verdict form here did not reflect the jury’s factual finding that the crime was committed with a firearm, the trial court could not enhance the degree of the crime.”). We therefore reverse the postconviction court’s order and remand for Staley’s resentencing.

Reversed and remanded.

CASANUEVA, SALCINES, and WALLACE, JJ., Concur.


text:
    Thaddeus HANNAH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4122.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Thaddeus Hannah appeals a final order revoking his community control. We strike the court’s finding that Mr. Hannah violated condition eight because the State failed to present sufficient evidence that Mr. Hannah willfully and substantially violated this condition. See Oates v. State, 872 So.2d 351 (Fla. 2d DCA 2004) (citing Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003)). However, the State proved that Mr. Hannah willfully and substantially violated conditions nine and twelve of his community control. Because we conclude the trial court would have exercised the discretion to revoke Mr. Hannah’s community control based on the violations of conditions nine and twelve, we affirm the order revoking probation. On remand, the revocation order should be amended to show violations of conditions nine and twelve only.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and STRINGER, JJ., Concur.


author: KHOUZAM, NELLY N., Associate Judge.

text:
    Stacey MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2896.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, NELLY N., Associate Judge.

Stacey Marshall appeals the judgment and sentence imposed following the revocation of his probation. We affirm the judgment and sentence for the felony of possession of cocaine but reverse the judgment and sentence for two misdemeanors: possession of drug paraphernalia and driving on a suspended license.

On January 16, 2003, Marshall pleaded guilty to possession of cocaine and to the two misdemeanors. Adjudication was withheld, and Marshall was placed on two years of probation for cocaine possession, one year of probation for possessing paraphernalia, and six months of probation for driving with a suspended license. More than a year later, a warrant was issued based on an affidavit alleging several violations of probation. The trial court revoked Marshall’s probation following his admission to violating four probationary conditions. The trial court adjudicated him guilty of all three counts and sentenced him on each count to 364 days in the county jail with credit for time served, each sentence to run concurrently. All jail time has now been served, and Marshall is not subject to any further supervision.

We affirm the order revoking probation and the judgment and sentence for possession of cocaine because the revocation process was begun within the two-year probationary period for that offense. However, we reverse as to the two misdemeanors because the respective probationary periods had expired prior to the commencement of the revocation proceedings and the trial court no longer had jurisdiction to revoke probation, adjudicate guilt, or impose any sentence with regard to those offenses. See Ermatinger v. State, 866 So.2d 698 (Fla. 2d DCA 2003). Therefore, the revocation order and the judgment and sentences for the misdemeanors are reversed. On remand, the trial court shall enter a corrected revocation order consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

FULMER, C.J., and NORTHCUTT, J., Concur.


author: CANADY, Judge.

text:
    Michael Kevin CUTWRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5384.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Michael Kevin Cutwright appeals his convictions and the sentences imposed thereon for sexual battery and criminal contempt. We affirm Cutwright’s conviction for sexual battery without comment.

Regarding Cutwright’s criminal contempt conviction, we find no error in the trial court’s determination that Cut-wright’s conduct constituted direct criminal contempt. However, as Cutwright argued in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b), and as the State concedes, the trial court did not follow the procedural requirements of Florida Rule of Criminal Procedure 3.830, which requires courts to “include [in the written judgment of contempt] a recital of those facts on which the adjudication of guilt is based.” Because the written judgment in this case fails to specify the conduct upon which th'e adjudication was based, we must reverse Cutwright’s criminal contempt order and remand with directions that the trial court render a judgment in compliance with rule 3.830. See McGlamory v. State, 723 So.2d 388, 388 (Fla. 2d DCA 1999).

We next address whether the trial court erred by imposing a $151 cost pursuant to section 938.085, Florida- Statutes (2004), and a $65 cost pursuant to section 939.185, Florida Statutes (2004). Cutwright committed the sexual battery on June 5, 2003. Section 938.085 did not, however, become effective until July 1, 2003. See Ch. 2003-114, § 3, Laws of Fla. Section 939.185 did not become effective until July 1, 2004. See ch. 2004-265, § 88, Laws of Fla. The State has correctly conceded error on this issue. Costs may not be imposed where the authorizing statutes were enacted after the date of the offense. See Hayden v. State, 753 So.2d 720, 721 (Fla. 2d DCA 2000). We therefore strike the costs imposed pursuant to sections 938.085 and 939.185.

Finally, we address Cutwright’s argument that a $2 cost imposed pursuant to section 938.15, Florida Statutes (2003), should be stricken because the trial court failed to cite the county ordinance authorizing the imposition of the cost and because the cost can only be imposed for violation of a county or municipal ordinance and not for violation of a state statute. The cost order cited section 938.15 and referenced “Criminal Justice Education by Municipalities and Counties.” In a similar case, this court held that reference to a statute or description of the fund for which the assessment was made was sufficient. See Ayoub v. State, 901 So.2d 311, 314-15 (Fla. 2d DCA 2005). We therefore hold that the statutory reference and description was adequate for purposes of imposing the cost in this case.

This court has also held that the cost can be imposed pursuant to section 938.15 for violations of a state statute as well as for violations of a county or municipal ordinance. See Kimball v. State, 933 So.2d 1285 (Fla. 2d DCA 2006). Consequently, we reject Cutwright’s challenge on that basis and affirm the imposition of this cost.

Affirmed in part; reversed in part; remanded with instructions.

FULMER, C.J., and DAVIS, J., Concur.


author: NORTHCUTT, Judge.

text:
    In re FORFEITURE OF: 1999 DODGE INTREPID, VIN NO. 2B3HDY6RXXH543805, FLORIDA TAG # J06MAQ, and Three Thousand One Hundred Fourteen and 00/100 Dollars ($3114.00) United States Currency. Romerio L. Walker, Appellant, v. Sheriff Grady Judd, Appellee.
    No. 2D06-154.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.
    Romerio L. Walker, pro se.
    David S. Bergdoll of Polk County Sheriffs Office, Bartow, for Appellee.
   NORTHCUTT, Judge.

Following the discovery of narcotics during a traffic stop, the Polk County Sheriffs Office seized Romerio Walker’s car, currency in the sum of $3114, and two cell phones. After an adversarial preliminary hearing, the circuit court ordered the cell phones returned to Walker, but it found probable cause for the initiation of proceedings to forfeit the car and cash. Walker has appealed, contending that the circuit court erred by refusing to entertain his evidence and argument concerning the validity of the stop and search. We agree and reverse.

Under the Florida Contraband Forfeiture Act, articles falling within the definition of contraband may be seized and ultimately forfeited. § 932.703(1), Fla. Stat. (2005). Following the seizure of personal property, the State must notify all interested parties of their right to request a postseizure adversarial preliminary hearing. § 932.703(2)(a). If requested, the circuit court must hold a hearing and determine whether there is probable cause to believe that the property is subject to forfeiture. § 932.703(2)(c); see also Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 965-66 (Fla.1991).

The Fourth Amendment’s exclusionary rule applies to forfeiture proceedings. 588 So.2d at 963; One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Specifically, evidence obtained in violation of the Fourth Amendment must be excluded from the probable cause determination at an adversarial preliminary hearing. Alvarez v. City of Hialeah, 900 So.2d 761, 765 (Fla. 3d DCA 2005) (“[Wjhere the claimants raised a Fourth Amendment challenge to the stop of the vehicle, that issue must be addressed first and independently of the question of whether there is a nexus between the seized currency and unlawful drug activity.”); Golon v. Jenne, 739 So.2d 659, 661 (Fla. 4th DCA 1999) (“[L]ong-standing precedent provides that evidence derived from a search in violation of the Fourth Amendment must be excluded at a hearing determining whether the government has probable cause for forfeiture.”); Indialantic Police Dep’t v. Zimmerman, 677 So.2d 1307, 1309 (Fla. 5th DCA 1996) (“[T]he validity of the stop and search are inextricably bound up with the probable cause determination required by the Act.”); see also McLane v. Rose, 537 So.2d 652, 653 (Fla. 2d DCA 1989) (reversing trial court’s decision on lawfulness of seizure but stating that “evidence uncovered in violation of the fourth amendment ... must be excluded from consideration in civil forfeiture proceedings”).

At the hearing in this case, the circuit court declined to entertain Walker’s suppression issue after the Sheriffs counsel advised that Walker had prepared a motion to suppress but that it was not noticed for the hearing. In Golon, 739 So.2d at 663, the Fourth District reviewed the procedural protections associated with forfeiture proceedings, set forth by the supreme court in Real Property and in the Florida Rules of Civil Procedure. It found “no direct authority for the requirement that a claimant must file a motion to suppress or other responsive pleading in order to raise Fourth Amendment issues at an adversarial preliminary hearing!.]” Golon, 739 So.2d at 663 (noting that the State should anticipate these issues and should obtain a continuance if it needed additional time to develop evidence or research the law). In this case, the circuit court erred by finding probable cause without allowing Walker to present evidence and argument concerning the validity of the stop and search. Therefore, we reverse.

Reversed and remanded for further proceedings.

CASANUEVA and CANADY, JJ., Concur.


text:
    AUTOZONE STORES, INC., a Nevada corporation, as successor in interest to Autozone, Inc., a Nevada corporation, Appellant, v. NORTHEAST PLAZA VENTURE, LLC., a Delaware limited liability company, successor in interest to Plaza Associates, Ltd., an Ohio limited partnership, Appellee.
    No. 2D05-5023.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2006.

      Carlos M. Colombo and Kevin P. Robinson of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellant.

      Elliot H. Scherker, David S. Oliver, and Elliot B. Kula of Greenberg Traurig, P.A., Orlando, for Appellee.
   CANADY, Judge.

..In this, case, we consider whether a tenant under a commercial lease must make a showing of irreparable harm to obtain in-junctive relief for the violation of a lease provision restricting the use of the landlord’s property adjacent to the leasehold property. Autozone Stores, Inc., the tenant, appeals a final declaratory judgment entered in an action filed by Northeast Plaza Venture, LLC, the landlord, against Autozone. The declaratory judgment determined that if the landlord’s development of land adjacent to the leasehold constituted a breach of the lease, injunc-tive relief would be unavailable because the tenant had an adequate remedy at law in the form of monetary damages. Because we conclude that Autozone would not be required to show irreparable harm to obtain injunctive relief for a violation by the landlord of a restrictive covenant affecting the use of real property, we reverse.

Background

Autozone and Northeast Plaza -entered into a lease agreement whereby Autozone leased retail property in a shopping center owned by Northeast Plaza in Sarasota County. The lease provides in pertinent part:

24. COMMON FACILITIES: (A) All those portions of Entire Premises shown on Exhibit “B” or “B-l” which are not presently occupied by buildings shall be Common Facilities for the exclusive joint use of all tenants of Entire Premises....
(B) Throughout the Term, the Common Facilities shall contain a Parking Area and Landscape Area as shown on Exhibit “B” or “B-l,” and Landlord shall not use or permit the Common Facilities to be used for carnivals or other businesses, temporarily or permanently.

Northeast Plaza sought to develop two outparcels located on the lands designated as “Common Facilities.” Northeast Plaza filed a complaint for declaratory judgment, alleging that Autozone “objects to the construction of additional commercial facilities on the Outparcels, and has threatened, explicitly or implicitly, to bring litigation against Northeast Plaza to enjoin the sale of the Outparcels or to prevent construction if construction commences on the Out-parcels or either of them.” Northeast Plaza sought a determination either that development of the outparcels does not constitute a breach of the lease agreement or that if development does constitute a breach, Autozone could not obtain injunc-tive relief because it would have an adequate remedy at law in the form of monetary damages.

Both parties filed motions for summary judgment. After a hearing, the trial court denied Autozone’s motion and granted Northeast Plaza’s motion. The court ruled “that in the event [Northeast Plaza’s] development of the outparcels constitutes a breach of the Lease, [Autozone] has an adequate remedy at law in the form of monetary damages and therefore, injunc-tive relief will not issue against [Northeast Plaza].” The trial court entered final judgment in favor of Northeast Plaza. Although it appears that the development of the outparcels would constitute a breach of the lease, the trial court did not address that question.

Argument on Appeal

Autozone raises three points on appeal, only one of which we need address. Auto-Zone argues that because the lease provision at issue is a covenant affecting real property, it is not necessary to prove irreparable harm to obtain injunctive relief for a violation of the lease provision.

Northeast Plaza responds that Autozone is seeking “to avoid the well-settled law” regarding a party’s entitlement to injunc-tive relief and the requirement of a showing of irreparable harm. Northeast Plaza contends that the case law governing the enforcement of restrictive covenants concerning residential communities is not applicable to the enforcement of a restriction in a commercial lease such as the restriction at issue here. Northeast Plaza relies on case law concerning the enforcement of lease provisions restricting competition. Northeast Plaza also argues that it defeated the claim for injunctive relief by providing expert testimony that the potential violation of the lease could be remedied by the payment of money damages.

Analysis

“Injunctive relief is normally available to redress violations of ... restrictive covenants [affecting real property] without proof of irreparable injury or a showing that a judgment for damages would be inadequate. The value of a restrictive covenant ... is often difficult to quantify and may be impossible to replace.” Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b (2000). Restrictive covenants

have traditionally enjoyed the strong protection afforded property interests by specific remedies designed to secure enjoyment of the intended [benefit] rather than compensation designed to substitute for its loss. Because [restrictive covenants] usually are intended to create rights to use or protect specific property, to provide shared amenities, or to maintain the character of a neighborhood, their value is often difficult to monetize and impossible to replace without a change of location.

Id. See also Velickovich v. Ricci, 391 So.2d 258, 259 (Fla. 4th DCA 1980) (“Because of the unique nature of each piece of real property, violations of restrictive covenants cannot be easily remedied by money damages.”).

Florida law has long recognized that injunctive relief is available to remedy the violation of a restrictive covenant without a showing that the violation has caused an irreparable injury — that is, an injury for which there is no adequate remedy at law. In Stephl v. Moore, 94 Fla. 313, 114 So. 455, 455 (1927), the court rejected the claim that the failure to allege “that a violation of the covenants in [a] deed amounts to an irreparable injury” precluded the granting of injunctive relief. The court held that “appropriate allegations showing the violation of or quasi violation of the covenant [are] sufficient.” Id. At issue in Stephl was the violation of a residential setback restriction.

Following Stephl, in Daniel v. May, 143 So.2d 536, 538 (Fla. 2d DCA 1962), this court applied the rule “that an injunction against violation of restrictive covenants may be granted although there is no showing of irreparable injury.” We explained that there is a right to equitable relief in such cases “because every piece of land in the world has a peculiar value, infringement of which is not readily remediable by assessment of damages of law.” Id. As in Stephl, the restriction at issue in Daniel was a setback restriction in a residential subdivision. See also Blue Reef Holding Corp. v. Coyne, 645 So.2d 1053 (Fla. 4th DCA 1994); Killearn Acres Homeowners Ass’n v. Keever, 595 So.2d 1019 (Fla. 1st DCA 1992); Europeo Mgmt. Co. of Am. v. Smith, 572 So.2d 963 (Fla. 1st DCA 1990).

Contrary to the argument advanced by Northeast Plaza, the rule stated in Stephl and Daniel is not limited to the context of restrictive covenants governing residential properties. The rationale for that rule applies with equal force in the context of a restriction affecting the use of real property in a commercial lease. A tenant seeking to enforce a restrictive covenant under a commercial lease is no less entitled to “the strong protection afforded property interests by specific remedies designed to secure enjoyment of the intended [benefit]” than is the owner of a residential property seeking to enforce a setback requirement or other restrictive covenant. Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b (2000).

Jack Eckerd Corp. v. 17070 Collins Avenue Shopping Center, Ltd., 563 So.2d 103, 104 (Fla. 3d DCA 1990), addressed “[wjhether a commercial tenant, under an agreement which prevents the landlord from reducing the parking area by construction on an outparcel, is obligated to prove irreparable harm as a basis for a temporary injunction to prevent á breach by the landlord of the restrictive covenant.” Relying in part on Stephl and Daniel, the Jack Eckerd Corp. court held: “Where an injunction is sought to prevent the violation of a restrictive covenant, appropriate allegations showing the violation are sufficient and it is hot necessary to allege, or show, that the violation amounts to an irreparable injury.” 563 So.2d at 105. See also L. Luria & Son, Inc. v. Fingerman, 497 So.2d 682 (Fla. 3d DCA 1986).

We are unpersuaded by Northeast Plaza’s argument that we should follow the Third District’s decision in Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735 (Fla. 3d DCA 1982), where the court held that a tenant—the operator of a shoe store—was not entitled to injunctive 'relief for the violation of a lease provision that prohibited the landlord from leasing any other space to a retail shoe store. The court agreed with the landlord’s argument that the tenant had “failed to prove ... that it was without an adequate remedy at law, or ... that it would suffer irreparable harm” and therefore was not entitled to injunctive relief. Id. at 738. The court went on to state that “[p]erhaps the most compelling reason” for reversing the injunction was the “harsh effect of this remedy” on the competing lessee “who, the proofs strongly suggest, may be characterized as an innocent subsequent lessee without notice” of the exclusivity provision in the complaining tenant’s lease. Id. at 740. The Liza Danielle, Inc. court made no reference to Stephl or Daniel or the rule that they state concerning the availability of injunc-tive relief as a remedy for the violation of restrictive covenants.

The Jack Eckerd Corp. court distinguished the Liza Danielle, Inc. decision on the ground that the “covenant at the core of the controversy [there] was more in the nature of a no-competition-clause, and did not implicate real property, or easement rights.” 563 So.2d at 105. Liza Danielle, Inc. is distinguishable from the instant case on the same basis.

Without implying that we agree with the decision in Liza Danielle, Inc., we recognize that lease provisions restricting competition may present considerations not addressed by a lease covenant — such as the covenant at issue here — simply designed to prevent development of lands adjacent to the leasehold property. See Tusa v. Roffe, 791 So.2d 512 (Fla. 4th DCA 2001) (applying requirements of section 542.335, Florida Statutes (Supp.1996), concerning noncompete covenants to case involving lease provision prohibiting landlord from renting space to business in competition with complaining tenant). We also recognize that the rights of innocent third parties may have a bearing on the availability of injunctive relief. In the instant ease, of course, such third-party rights are not implicated. We likewise recognize that other equitable defenses may be available to a claim for injunctive relief for the violation of a restrictive covenant affecting the use of real property. Northeast Plaza has not, however, relied on any basis for a declaration that injunctive relief is unavailable for a violation of the lease other than the claim that Autozone failed to establish that it would suffer irreparable harm.

Finally, we reject Northeast Plaza’s argument that Autozone’s right to in-junctive relief was defeated by Northeast Plaza’s expert’s testimony that the potential violation of the lease could be remedied by the payment of damages. The rule stated in Stephl, Daniel, and Jack Eckerd Corp. cannot be circumvented by the introduction of such expert testimony. We acknowledge the view that any harm — including the harm caused by the violation of a restrictive covenant relating to the use of real property — can be assigned a monetary value. But the law of Florida has not embraced that view.

Conclusion

Based on the rule articulated in Stephl, Daniel, and Jack Eckerd Corp., we reverse the final declaratory judgment entered in favor of Northeast Plaza. Because the trial court - did not address the issue of whether the development of the outparcels would constitute a violation of the lease, we remand for further proceedings not inconsistent with this opinion.

WHATLEY and WALLACE, JJ., Concur.

      . See also Douglas Laycock, The Triumph of Equity, 56 Law & Contemporary Problems 53, 57 (1993) ("Injunction or specific performance is the usual remedy in all litigation relating to rights in real estate, including not just specific performance of contracts to sell, but also specific performance of restrictive covenants, condominium restrictions, and lease agreements, and injunctions against encroachments, nuisances, continuous or repeated trespasses, interference with easements, wrongful foreclosure of liens, violations of zoning laws, and removal of timber, minerals, or lateral support.” (emphasis added)).

      . For a survey of equitable defenses to the enforcement of restrictive covenants, see Richard A. Schlosser, Enforcement of Restrictive Covenants, in Florida Real Property Litigation §§ 9.17-28 (Fla. Bar CLE 4th ed. 2005).