author: BARFIELD, J.

text:
    William L. GOTHARD, Appellant, v. Walter Keith GOTHARD, Appellee.
    No. 1D06-3005.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Robert 0. Beasley and Chris K. Ritchie, of Litvak Beasley & Wilson, LLP, Pensacola, for Appellant.
    Patrick S. Martin, of Patrick S. Martin, P.A., Pensacola, for Appellee.
   BARFIELD, J.

We hold that the trial court erred as a matter of law in finding that it had no subject matter jurisdiction to consider a complaint for civil theft, “[bjecause plaintiff did not wait the required thirty (30) days before filing suit.” Section 722.11, Florida Statutes, requires that a person, “[bjefore filing an action under this section” seeking treble damages for civil theft “must make a written demand for payment,” and provides that if the person to whom the written demand is made complies within thirty days after receiving the demand, “that person shall be given a written release from further civil liability” by the person making the demand. Contrary to the finding of a federal judge in In re Naturally Beautiful Nails, 262 B.R. 131 (Bankr. M.D.Fla.2001), we find nothing in the statute which bars the filing of a suit for civil theft before the aforementioned thirty-day time period has expired.

The order dismissing the claim of civil theft without prejudice is REVERSED, and the case is REMANDED to the trial court for further proceedings.

VAN NORTWICK, and THOMAS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Father J.T. of J.T., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-4915.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Jeffrey L. Barrett of Law Office of Jeffrey L. Barrett, Jacksonville, for Appellant.
    David F. Elder, State of Florida, Department of Children and Families, Jacksonville, for Appellee.
   PER CURIAM.

In this juvenile dependency case, appellant seeks review of an order placing his son in a permanent guardianship pursuant to section 39.6221, Florida Statutes (2006). The Department of Children and Family Services correctly concedes error because the requirements of section 39.6221 were not met. Accordingly, we reverse and remand for further proceedings consistent with section 39.6221.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    T.O., mother of O.H., a minor child, Appellant, v. L. S., Appellee.
    No. 1D06-3502.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    James C. Banks, Law Office of Banks & Morris, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The mother appeals from an order terminating her parental rights. It appears sufficient proof was presented to support a determination that the parental rights of the mother should be terminated. We cannot, however, conduct appropriate appellate review because the statutory factors enumerated in section 39.810, Florida Statutes (2005), are not addressed in either the order or the transcript. We therefore reverse the order terminating parental rights and remand for entry of an order containing the necessary findings of fact. See I.M. v. Florida Dep’t Of Health & Rehabilitative Serv., 668 So.2d 275 (Fla. 1st DCA 1996); In Interest of C.M.P., 608 So.2d 568 (Fla. 1st DCA 1992).

BARFIELD and POLSTON, JJ., concur; BENTON, J. concurring, with written opinion.

BENTON, J.,

concurring.

The trial court found that T.O. had abandoned her child O.H. to the child’s grandmother’s care, a finding the evidence supports, in my view. But we have made clear that termination of parental rights is not justified even if abandonment is proven, unless the evidence also shows, and the trial court also finds, that termination is in the child’s best interests.

Full and accurate fact finding is essential not only on the question whether DCFS has authority to terminate parental rights but also on the question whether it is in the child’s best interests to do so. See § 39.809(5), Fla. Stat. (2000); In re L.H., 647 So.2d 311, 311-12 (Fla. 5th DCA 1994); see also In re K.M., 788 So.2d 306, 306 (Fla. 2d DCA 2001) (noting that when at least one of the grounds for termination of parental rights has been established, the “issue then is whether the Department of Children and Families proved by clear and convincing evidence the additional requirement that termination is in the manifest best interests of the children”); L.J.R. v. T.T., 739 So.2d 1283, 1287 (Fla. 1st DCA 1999) (stating that in termination of parental rights proceedings, even when statutory requirements are proven, a trial court still “must determine whether termination of parental rights is in the child’s ‘manifest best interests’ ”).

C.C. v. Dep’t of Child. & Fam. Servs., 812 So.2d 520, 523 (Fla. 1st DCA 2002). Accordingly, I agree to “reverse and remand for further consideration.” I.M. v. State, Dep’t of Health & Rehabilitative Servs., 668 So.2d 275, 275 (Fla. 1st DCA 1996).


author: VILLANTI, Judge.

text:
    Monica Hope JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3489.
    District Court of Appeal of Florida, Second District.
    April 27, 2007.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Monica Jenkins appeals her conviction for organized fraud. We affirm her conviction without comment. However, Jenkins challenges the trial court’s final judgment of restitution rendered on February 20, 2006, arguing that the trial court lacked jurisdiction to enter the order. We agree.

A party’s filing of a notice of appeal divests the trial court of jurisdiction to enter a restitution order. Colson v. State, 711 So.2d 604, 605 (Fla. 2d DCA 1998) (reversing a restitution order on direct appeal of a judgment and sentence when the restitution order was entered after the notice of appeal was filed); Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997) (reversing a restitution order on direct appeal of a sentence when the restitution order was entered after the notice of appeal was filed). Jenkins filed her notice of appeal on July 1, 2005. Therefore, on February 20, 2006, while her appeal was pending, the trial court lacked jurisdiction to enter the restitution order. Accordingly, we reverse the restitution order and remand for further proceedings.

Affirmed in part; reversed in part.

WHATLEY and CANADY, JJ., Concur.


text:
    Monica A. Gonzalez HAMILTON, Appellant, v. Claudio A. Natoli MICHIELI, Appellee.
    No. 3D06-2160.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Stack Fernandez Anderson & Harris and Gregory N. Anderson, Miami, and Candice C. Pinares, for appellant.
    Cuevas & Ortiz and Andrew Cuevas, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We have for review an order granting Appellee Claudio Adrian Natoli Michieli’s motion to dismiss the dissolution of marriage action filed by him against his wife, Monica Gonzalez Hamilton, for lack of subject matter jurisdiction. Concluding that the trial court has subject matter jurisdiction over the parties, we reverse.

Michieli instituted this action by filing a sworn petition for dissolution of marriage. In the petition, he alleged under oath that he had been a resident of Florida for at least six consecutive months immediately prior to the filing. Hamilton filed an answer admitting jurisdiction as well as a counter-petition. Thereafter, Michieli sought to dismiss the action, alleging that “[njeither party may legally remain in the United States” and that he was present in the United States under a “visa [that] is due to expire soon and cannot be renewed.” On that basis, the trial court granted husband’s motion. In this decision, the trial court erred.

It is well-settled law that the trial court has subject matter jurisdiction over a dissolution proceeding so long as one party resides in Florida for at least six months preceding the filing of the petition. Section 61.021 of the Florida Statutes requires “one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” § 61.021, Fla. Stat. (2005). Case law throughout our state has interpreted this statute to require examination of residency at the time of the filing of the petition. E.g., Sragowicz v. Sragowicz, 591 So.2d 1084 (Fla. 3d DCA 1991)(affirming dismissal where wife failed to proffer any evidence that she intended to remain in Florida during the six months prior to the petition); Rowland v. Rowland, 868 So.2d 608, 610 (Fla. 2d DCA 2004)(affirming the denial of a motion to dismiss where evidence existed during the preceding six months of both the establishment of one party’s actual permanent residence within Florida along with a concomitant intent); Jenkins v. Jenkins, 556 So.2d 441, 442 (Fla. 4th DCA 1990)(accord). As a natural corollary, subsequent changes in residency are irrelevant to the trial court’s examination of subject-matter jurisdiction. We therefore reverse and remand for further proceedings.


text:
    Ivan Marco NULUTAGUA-SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2499.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), review granted, 937 So.2d 123 (Fla.2006). However, we certify the same question of great public importance as we did on rehearing in Smiley:

DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE?

State v. Smiley, 944 So.2d 1027, 1028 (Fla. 4th DCA 2006).

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Barbara YAKAVONIS, Appellant, v. DOLPHIN PETROLEUM, INC., a Florida corporation, Himes Associates, Ltd. Corporation, a Florida corporation, Gil Hyatt, Inc., a Florida corporation, and Gil Hyatt, Inc., d/b/a Gil Hyatt Construction, a Florida corporation, Appellees.
    No. 4D06-1967.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Joel S. Finkelstein of Finkelstein & Partners, LLP, Newburg, NY, for appellant.
    Scott A. Cole and Luisa M. Linares of Cole, Scott & Kissane, P.A., Miami, for appellee Dolphin Petroleum, Inc., a Florida corporation.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. Rule 1.470(b) (“Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests.... ”); City of Sunrise v. Bradshaw, 470 So.2d 804 (Fla. 4th DCA 1985) (acknowledging that jury instructions must be submitted in writing); Jackson v. Harsco Corp., 364 So.2d 808, 809 (Fla. 3d DCA 1978) (“Florida Rules of Civil Procedure 1.470(b) requires that parties shall file written requests for jury charges, and where a party fails to do so we will not find error.”); see also Bohannon v. Thomas, 592 So.2d 1246, 1248 (Fla. 4th DCA 1992) (providing that “an appellate court will not set aside a verdict merely because an instruction which might have been proper is not given; the court must conclude that the jury was misled by the instructions which were used.”).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Claudio MARTINEZ, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D06-2872.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Shook, Hardy Bacon LLP and Darrell W. Payne and Daniel B. Rogers, Miami, for appellant.
    Gail Scott Hill, for appellee.
    Before GREEN and ROTHENBERG,. JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The appellant is a ten-year-old child afflicted with cerebral palsy. He appeals from a final order of a Department of Children and Families hearing officer, which affirmed the denial by the appellee Agency for Persons with Disabilities of his request for environmental accessibility adaptations funded by the agency’s Medicaid Waiver Program. See § 409.906(13), Fla. Stat. (2006); Fla. Admin. Code R. 59G-13.080 (2006). Upon consideration of the order under review in light of the record and the arguments presented for reversal by the able briefs and oral argument, we find no error.

Affirmed.


author: FARMER, J.

text:
    OLD PORT COVE CONDOMINIUM ASSOCIATION ONE, INC., Appellant, v. OLD PORT COVE HOLDINGS, INC.; and Old Port Cove Equities, Inc., Appellees.
    No. 4D05-3601.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Daniel S. Rosenbaum and John M. Sira-cusa of Becker & Poliakoff, P.A., West Palm Beach, for appellant.
    Jack J. Aiello and Nicole K. Atkinson of Gunster Yoakley & Stewart, P.A., West Palm Beach, for appellee.
   FARMER, J.

In 1977, the developers of a condominium entered into an agreement with the Condominium Association granting the Association a right of first refusal for the purchase of a parcel of real property adjoining the condominium. The Agreement stated:

“In the event that [developer] elects to sell the real property ... the Association shall have the right of first refusal for the purchase of said real property upon the same terms and conditions as are proposed for its sale and purchase by [developer], said right of first refusal to be exercised by the Association within thirty (30) days following written notice to it of such proposed sale, following which said right of first refusal shall terminate.”

The current owners of the parcel [Owner] are the rightful successors in interest to the developer, and are now using the parcel as the parking lot for an adjoining parcel owned by them. They say that the right of first refusal came to their attention in 1999 as they were preparing their properties for sale.

Believing that the grant was invalid, they brought an action against the Association for declaratory relief and to quiet title. They alleged that the right of first refusal violated the common law rule against perpetuities and was therefore void from its very inception. They sought a declaration of voidness and that the Association had no valid right, title or interest in the parcel, as well as collateral relief quieting title to the parcel in Owner. After a bench trial, the court entered final judgment in favor of the Owner. The Association appeals. We reverse.

The trial court decided this case under the common law rule against perpetuities, not considering whether the right given to the Association was instead properly characterized as a restraint on alienation. Thus the first issue on appeal is whether the grant violates the common law rule against perpetuities and, if so, whether the rule may be enforced in this case. If there is no common law perpetuities problem, then the issue is whether any restraint on alienation is unreasonable and, if so, how the right may be reformed to comply with substantive law.

As the court explained in Iglehart v. Phillips, 383 So.2d 610 (Fla.1980), about the common law rule against perpetuities:

“It is a rule of law, not of construction, and it applies to legal and equitable estates of both realty and personality. It is not a rule that invalidates interests which last too long, but interests which vest too remotely. In other words, the rule is concerned not with the durdtion of estates but with the time of their vesting.” [e.s.]

383 So.2d at 614. Iglehart involved an option giving the grantor’s heirs the right to repurchase the same land at a price fixed in the option. As to the issue of the rule against perpetuities the court said:

“Although we conclude that the option in this case might be subject to the rule against perpetuities, such a finding is not necessary to answer the first question since we find this repurchase option is more appropriately classified as an unreasonable restraint on the use of the subject property.” [e.s.]

Id. The right of first refusal in this case— a third party option to purchase — is different only in the sense that the price is not fixed. Applying Iglehart, as we are bound to do, the option would be “more appropriately classified” as a possible restraint on alienation, not as a violation of any common law rule against perpetuities — assuming there is any such thing applicable in Florida.

In this case the text of this grant is clear that the right became vested from the moment of the agreement. It is exercisable only when Owner gives the Association written notice of the proposed sale. The right would then terminate if not exercised within 30 days of such notice.

This kind of right of first refusal does not really involve any kind of remote vesting. It is a contractual right that vested with the agreement itself. The rule of perpetuities was meant to defeat rights vesting only in some remote future, not those already existing. We doubt that the common law rule against perpetuities ever applied to this kind of right of first refusal.

Nor does it impose any burden hindering or impeding a sale. Under its plain terms, the right would be executory only when the owner decides to sell the land. At that point, the Association could purchase the land at the owner’s sale price. If the-price seems too high, the Association can simply exercise its right not to purchase. Owner can proceed to sell in the market and get its price. But whether the right is exercised by the Association or the property is instead sold to someone else, either way Owner gets its sale at a price it has agreed upon. How is Owner burdened? How has any remote vesting affected its right to sell? The right in this case is not only less onerous than the one in Iglehart, it is not onerous to Owner at all.

Understanding the current place of the Florida common law rule against perpetu-ities is critical. In Iglehart the court said unequivocally that:

“it should be recognized that the rule against perpetuities in the State of Florida is now governed by a statute adopted by the legislature in 1977, subsequent to the commencement of this case. The rule as rewritten by statute excludes from its operation restraints of the type contained in the instant case.” [e.s.]

383 So.2d at 614. The court thus recognized and gave effect to the 1977 statutory abrogation of the common law rule as regards the 1959 conveyance at issue in Igle-hart. Clearly the court was not constrained from retroactively applying (“is now governed”) the text of the statute.

The statute to which the 1980 Iglehart opinion referred said:

“The rule against perpetuities does not apply to ... options to purchase in gross or in a lease or preemptive rights in the nature of a right of first refusal, but no option in gross is valid for more than 40 years from the date of its creation.”

§ 689.22(3)(a)(7), Fla. Stat. (1977). This statute was repealed in 1988 and replaced by what is now section 689.225. See Ch. 88-40, § 2, Laws of Fla.; § 689.225, Fla. Stat. (2006). The 1988 revision of the statute added the following provision about retroactivity:

“If a nonvested property interest ... was created before October 1, 1988, and is determined in a judicial proceeding commenced on or after October 1, 1988, to violate this state’s rule against perpe-tuities as that rule existed before October 1, 1988, a court, upon the petition of an interested person, may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against per-petuities applicable when the nonvested property interest ... was created.” [e.s.]

§ 689.225(6)(c), Fla. Stat. (1989). These words constitute a clear legislative mandate to apply section 689.225 retroactively. Owner was on notice of this provision for more than a decade before this suit was commenced. If Owner thought that the right of first refusal was enduring too long, that the parties really intended that it not last as long as their agreement might suggest, it certainly had the right to bring an action under the statute to reform the right. But invalidation of the right is the least preferred remedy under the statute.

In 2000, ten years later, the Legislature added the following provision into section 689.225:

“This section is the sole expression of any rule against perpetuities or remoteness in vesting in this state. No common-law rule against perpetuities or remoteness in vesting shall exist with respect to any interest or power regardless of whether such interest or power is governed by this section.” [e.s.]

Ch. 2000-245, § 1, Laws of Fla.; § 689.225(7), Fla. Stat. (2005). Retroactive application could hardly have been stated more clearly. Under these statutory provisions it is manifest that the legislature meant for section 689.225 to be applied forwards and backwards. The plain meaning of this statute is again that the statutory repeal of the common law rule against perpetuities is fully retroactive and operative. There can no longer be any proper application of the common law rule against perpetuities in Florida. See Sander v. Ball, 781 So.2d 527, 528 (Fla. 5th DCA 2001) (“It now appears from section 689.225(7), Florida Statutes (2000), that such abolition of the common law rule was intended.”). Unless courts are determined to indulge a fiction that parties to such an agreement have a vested interest in secretly intending the agreement to be void when made — thereby deceiving the other party — repeal of the common law rule making such agreements void by itself does not impair any vested interests.

Even under the common law rule, there was a strong policy of preferring validation of deed provisions arising from consensual agreements. The Restatement of PROPERTY itself announced a preference for the “legally more effective” construction that would save an agreement, not the one that would invalidate it. See Restatement of Property, § 375. There are strong policy reasons favoring this rule of validation. It simply makes no sense to suppose that a party to an agreement allocating benefits to both sides actually intends for an entire agreement to be void. This common sense principle of construction has now been codified by statute. § 689.225(7), Fla. Stat. (2006) (“unless a contrary intent appears, it shall be presumed that the transferor of the interest intended that the interest be valid”).

The trial court decision in this case was based solely on Fallschase Development Corporation v. Blakey, 696 So.2d 833 (Fla. 1st DCA 1997), where the court used the rule against perpetuities to void a 1975 right of first refusal contained in a contract. Although the holder of the right in Fallschase prayed for reformation under the statute, a majority of the District Court panel refused the statutory remedy. In discussing retroactive application of section 689.225, the Fallschase majority relied on the substantive-procedural distinction. Finding the courts in other states divided on retroactive application of statutes repealing the rule against perpetuities, the majority concluded that the statute was substantive and that it would not be enforced to defeat “vested” rights. Curiously, the majority did not explicate the precise vested right that would be defeated or impaired by such an application.

The majority in Fallschase purported to follow the supreme court’s holdings on retroactive application in State Farm Mutual Automobile Insurance Company v. Laforet, 658 So.2d 55, 61 (Fla.1995) (“The general rule is that substantive statute will not operate retrospectively absent clear legislative intent to the contrary but procedural or remedial statute operates retrospectively”); and Alamo Rent-A-Car Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (substantive statute is presumed to operate prospectively rather than retrospectively unless legislature clearly expresses its intent that statute operates retrospectively, especially when retrospective operation of law would impair or destroy existing rights; remedial statutes may be applied retrospectively to pending cases). Clearly this general rule does not entirely prohibit retroactive application of all substantive statutes — only those impairing or defeating vested rights. Necessarily, it is incumbent on an appellate court to identify the rights that are vested and show how they would be impaired by the retroactive application of the statute. The majority in Fallschase made no such attempt.

The dissent in Fallschase, however, read section 689.225 as we have done: it was plainly intended to apply retroactively. 696 So.2d at 838 (Wolf, J., dissenting). The Fallschase dissent concluded that section 689.225 did not create any obligations or impose any penalties that were not already assumed by the complaining party under its agreement. Id. As tersely stated by Judge Wolf: “I am also unaware of a vested right to have a court strike down an obligation voluntarily undertaken as part of an enforceable written legal agreement.” Id. Judge Wolf also observed that: “It is unclear to me how a grantor or his successor may complain about a statute that attempts to effectuate the grantor’s expressed written intent.” Id. at 837. The majority opinion in Fallschase is in conflict with Iglehart and the statute. We reject Fallschase.

To bring this case to a proper conclusion, we also address whether, as a matter of law, Owner established prima facie in the trial court that this purchase option unreasonably restrains alienation. The requirements for such options as restraints on alienation were also discussed in Iglehart:

“Although the law is clear that a repurchase option at market or appraised value for unlimited duration is not an unreasonable restraint, the situation changes substantially when the price is fixed in the option. It is the generally accepted rule that a fixed price repurchase option of unlimited duration, independent of the lease, is an unreasonable restraint.
“An option for a fixed price clearly discourages any improvements of the land by the existing property owner because he could never recover the value of the improvements should the optionee exercise the option.”

383 So.2d 610, 615. Here again, under Iglehart’s clear holding, this option would be unreasonable only if it involved a fixed price.

Unreasonableness as a restraint on alienation for this kind of option turns on whether the price is fixed by the option itself or is instead allowed to be determined by the relevant market when the sale is had. Id. The option right in this case is at market value. It states: “the Association shall have the right of first refusal for the purchase of said real property upon the same terms and conditions as are proposed for its sale by [Owner].” [e.s.] Obviously from its plain text, the option is triggered only when Owner proposes to sell the property. In offering to sell, Owner could either specify a price or let buyers make the offer. Either way, it is market value that is the basis for the option. Owner produced no factors during the trial that would sustain a finding that it is unreasonable. The right of first refusal is not unreasonable. It should be enforced.

The rules for land titles are not meant to be applied in ways sowing doubts about their application and outcomes. Buyers and sellers of land must be able to know and predict what they may do and what they should avoid. Parties to a sale of land are strongly presumed to intend valid transactions. Reading their agreements as void, especially years after a party has relied on contractual rights not yet execu-tory, can create great uncertainty and unfairness. We read the legislature’s statutes repealing the common law rule against perpetuities as a policy decision to validate transactions in land of the kind involved here whenever possible and to curb the uncertainties. We certify our conflict with Fallschase to the Supreme Court.

Reversed and remanded for consistent proceedings.

SHAHOOD and TAYLOR, JJ„ concur.

      . We deal here with market price. Owner does not claim that the contract gave it a right to sell to the Association at a price above market value.


author: WARNER, J. FARMER, J.,

text:
    Cleo LECROY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-403.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

WARNER, J.

We grant the motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

Appellant challenges his sentence, entered after remand from the supreme court. Lecroy v. State, 911 So.2d 98 (Fla.2005). He was not represented by counsel at the sentencing proceeding and contends that this was a violation of his constitutional rights. We affirm the order of resen-tencing, as the entry of the sentence by the circuit court in conformance with the requirements of the supreme court was a ministerial act for which the presence of the defendant was not required. See Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th DCA 2001) (“The imposition of a sentence is a crucial stage at which the defendant is entitled to be present. An exception is made in resentencing cases where all that is required on remand is a ministerial act of sentence correction.”) (citations omitted).

The order of the supreme court specified the exact sentence to be imposed (life imprisonment without the possibility of parole for twenty-five years). The circuit court had no jurisdiction to vary from that mandate. Thus, this case is akin to those cases where the appellate court remands for the trial court to conform the written sentence to its oral pronouncement. See, e.g., Frost v. State, 769 So.2d 443 (Fla. 1st DCA2000).

The supreme court came to the same conclusion in Huckaby v. State, 343 So.2d 29, 34 (Fla.1977). In reversing a death sentence, the court said:

The sentence of death is vacated, however, and this case is remanded to the circuit court with directions to enter a sentence of life imprisonment on the sixth count. For the reason expressed in Anderson v. State, 267 So.2d 8 (Fla.1972), it is not necessary to return Huc-kaby to the trial court for resentencing.

In this case, the trial court- simply conformed the sentence to the pronouncement of the supreme court. Because it had no jurisdiction to do otherwise, it performed a ministerial act.

GUNTHER, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Defendant, a juvenile, was sentenced to death for capital murder. When his death sentence was later rendered illegal, the Florida Supreme Court entered an unpublished order saying:

In light of the United State’s Supreme Court decision in Roper v. Simmons, [543 U.S. 551] 125 S.Ct. 1183 [161 L.Ed.2d 1] (2005), holding the death penalty unconstitutional for individuals who were under eighteen years of age at the time of their capital crimes, this Court vacates the death sentence in this case. The case is remanded to the circuit court for imposition of a sentence of life imprisonment without the possibility of parole for twenty-five years, in accordance with section 775.082(1), Florida Statutes (1979).

On remand, defendant moved for the appointment of counsel for resentencing. The trial court denied the motion and— without holding a hearing — entered an order in chambers amending the sentence to life imprisonment without the possibility of parole. Defendant appeals, arguing that he was entitled to counsel and a formal sentencing hearing.

In affirming, the majority are persuaded by Anderson v. State, 267 So.2d 8 (Fla.1972), that no counsel and no hearing were required — that the court was merely carrying out a ministerial command of the supreme court. Actually, I think Anderson makes out a stronger case for the necessity of counsel and a hearing for resentencing ordered here.

In Anderson, the supreme court was facing the necessity of resentencing every prisoner on Florida’s death row to life imprisonment after the invalidation of all death penalties in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The resentencing of all death inmates created a significant problem, which the court explained thus:

“We are aware of the many problems involved, when it is necessary to transport a large number of convicted murderers from the State prison to the trial court for the purpose of sentence. The safety of the law-abiding citizen is a matter of paramount concern to the Court. Also, many hours of manpower would be consumed by law enforcement officers in transporting the prisoners. Some local jail facilities are crowded and inadequate. Since the death sentence has been outlawed, there is a greater possibility of murder for the sake of escape, particularly when the penalty to be imposed for the taking of an additional human life can be no greater than that previously imposed by the Court. The above factors are sufficient to create an exception to Rule 3.180, F.R.Cr. P., requiring the presence of the defendants at sentencing. Their absence deprives them of no rights.”

267 So.2d at 9. The court concluded: “Under the circumstances of these ‘particular cases, it is our opinion that we should correct the illegal sentences previously imposed without returning the prisoners to the trial court.” [e.s.] 267 So.2d at 10. It is clear from the introductory adverbial phrase of the last sentence that the court was not announcing any universal dispensation from the formalities of pronouncing a sentence whenever the exact sentence prescribed in a resentencing is fixed by law and the sentencing judge has no discretion to deviate.

Let me therefore resort to a blatant (but not fallacious) argumentum ad verecun-diam to support my conclusion. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Court made the following sweeping policy clear:

“it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.” [e.s., C.O.]

430 U.S. at 358, 97 S.Ct. 1197. Yes, I know Gardner is a death penalty case, but then so was this one. I fail to understand why the removal of the possibility of death changes the structure of sentencing. The logic of the majority’s position would yield the conclusion that any time the death penalty cannot be imposed for a first-degree murder conviction, and a life sentence without parole is the only available sentence, there is categorically no need for a formal sentencing proceeding or the presence of counsel. I can find no authority for this denial of counsel and fundamental due process. I think it amounts to a structural defect requiring no more justification than the constitutional imperative of the effective assistance of counsel.

I would therefore require the appointment of counsel and a formal sentencing hearing for the pronouncement of the required sentence. As I understand the defendant’s argument, he should still be free to argue that the newly imposed life sentence should not be made consecutive to other sentences imposed with the original sentence.

      . Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).


text:
    Leonard ASKEW, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-73.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state acknowledges that Appellant’s sentence as to count II must be vacated because he was not on probation on that count. We reverse and remand for modification accordingly. In all other respects, the judgment and sentence are affirmed.

GUNTHER, STONE and FARMER, JJ., concur.


author: STONE, J.

text:
    WESTPORT RECOVERY CORPORATION, Appellant, v. Nancy MIDAS, Patrick Midas, Jr., Vincent P. Gentile, and Madeline A. Gentile, Appellees.
    No. 4D06-2506.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Robert ,D. Friedman of Friedman & Greenberg, P.A., Plantation, for appellant.
    Assad S. Mirza of Mirza & Mirza, LLP, Pembroke Pines, for appellees.
   STONE, J.

We affirm an order dismissing West-port’s action for declaratory relief.

Westport, the holder of a final judgment against Nancy Midas in the sum of $80,000.00, levied upon the right, title and interest of Nancy Midas in the real property at issue. The property was titled in Midas’ name subject to a life estate in Vincent and Madeline Gentile, who had placed title in her name, reserving the life estate.

Following the levy, in August 2004, the Gentiles filed a notice of homestead on the property. The notice contended that the sheriffs notice of levy did not constitute a valid execution on the property or on the Gentiles; the Gentiles claimed they had no obligation under the judgment and that Midas held title only as trustee and had no ownership interest or title in the property.

In August 2004, Nancy Midas executed a declaration claiming that she held title solely as trustee and was not the owner of, nor did she have any interest in, the property.

It is undisputed that the “right, title and interest of Nancy Midas” in the property was sold at a sheriffs sale, in September 2004, to a third party and that Westport collected $120,512.68. There is no indication in the record that Westport will not retain this sum, and there is no claim that the third party purchaser was related to either side.

The Gentiles filed a motion to quash the writ of execution and to vacate the levy and sheriffs sale. A hearing was held, and in September 2004, the court entered an order denying the Gentiles’ motions. The court found the Gentiles’ life estate interest was not affected by the sheriffs sale, as only Nancy Midas’ interest was levied upon. The court rejected the Gentiles’ assertion that the quit-claim deed did not grant an interest in the property to Midas and found adversely to the Gentiles’ assertion that they had more than a life estate interest in the property.

In this action against Midas, her son, and the Gentiles, Westport sought a declaratory judgment that the notice of homestead filed by the Gentiles did not affect any interest Westport may have had in the property. Westport filed a motion for summary judgment, claiming there was no genuine issue of material fact and that Westport was entitled to judgment as a matter of law, declaring that the notice of homestead filed by the Gentiles did not affect any interest Westport may have had in the property by virtue of the lien against Midas’ interest. The Gentiles filed a cross-motion for summary judgment.

The trial court concluded that because the property was sold at the sheriffs sale, with the buyer taking subject to any rights the Gentiles may have, Westport’s interest in the property had been sold, and only the new owner had any real interest in the Gentiles’ status vis-a-vis the property.

Over Westport’s objection that it was merely asking for a denial of the defendant’s motion for summary judgment and its request “to basically dismiss the case as it is without any sort of prejudice,” the court orally pronounced it was dismissing the case because it was “moot” due to Westport’s having no further interest in the Gentiles’ homestead claims as to the property. The court also denied West-port’s motion for summary judgment. We note that at no time has Westport asserted any claim as to the Gentiles.

Section 222.01, Florida Statutes, Designation of Homestead by Owner Before Levy, provides, in relevant part:

A lien pursuant to chapter 55 of any lienor upon whom such notice is served, who fails to institute an action for a declaratory judgment to determine the constitutional homestead status of the property described in the notice of homestead or to file an action to foreclose the judgment lien, together with the filing of a lis pendens in the public records of the county in which the homestead is located, within 45 days after service of such notice shall be deemed as not attaching to the property by virtue of its status as homestead property as to the interest of any buyer or lender, or his successors or assigns, who takes under the contract of sale or loan commitment described above within 180 days after the filing in the public records of the notice of homestead. This subsection shall not act to prohibit a lien from attaching to the real property described in the notice of homestead at such time as the property loses its homestead status.

§ 222.01(4), Fla. Stat. (2006).

Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo. To have standing, a party must establish an injury that may be redressed by the requested relief. “The party must allege that he has suffered or will suffer a special injury.... Thus, the court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation.” Wexler v. Lepore, 878 So.2d 1276, 1280 (Fla. 4th DCA 2004) (internal citations omitted); see also Pandya v. Israel, 761 So.2d 454 (Fla. 4th DCA 2000); Peregood v. Cosmides, 663 So.2d 665 (Fla. 5th DCA 1995).

Further, a party seeking declaratory relief must show that:

there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190, 1192-93 (Fla.1995) (citations omitted).

We conclude that the trial court correctly recognized that Westport no longer had a stake in whether the Gentiles’ interest in the property was protected by homestead. As to that issue, Westport had no real interest in determining the homestead status of the property once the property was sold. Westport has made no allegation and offered no evidence that it had suffered or would suffer a special injury, but has only argued it has standing because of the possibility of a future action by the Gentiles or Midas under section 222.01, or an action to set aside the sale.

The issue of whether the Gentiles’ claim of homestead prevented execution of the sheriffs levy ceased to exist when the sale was completed. Further, it cannot be said that there would be collateral legal consequences affecting Westport that would flow from the declaratory relief sought, as Westport did not levy against the Gentiles’ homestead interest.

The trial court did not err in recognizing that any interest Westport had in bringing a declaratory action terminated when the property was sold and it collected the money owed under the judgment. Standing to bring a declaratory action requires a real existing controversy. Here, there is nothing but the possibility that the Gentiles could sue to set the sale aside and refund the money paid, but at this point, such is speculation and not a real controversy involving Westport.

FARMER and MAY, JJ., concur.


text:
    Sarah FAULKNER, Appellant, v. MIAMI-DADE COUNTY, L.P. Equipment Services, Inc., B.A. Carmona and Associates, and Bannerman Landscaping, Inc., Appellees.
    No. 3D06-1408.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Homer Bonner and Douglas F. Eaton, Miami, for appellant.
    Freud & Schwartz, Miami, and Michael J. Schwartz and Leslie P. Quezaire for appellee Miami-Dade County.
    David R. Howland, Coral Gables, and John A. Greco for appellee L.P. Equipment Services, Inc.
    Eduardo Cosío and Julie Bork Glassman for appellee B.A. Carmona and Associates.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002); Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001); Rosenthal v. Rodriguez, 750 So.2d 703 (Fla. 3d DCA 2000); Metro. Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999).


text:
    F.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1660.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    .Bennett H. Brummer, Public Defender and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GERSTEN, and WELLS, JJ„ and SCWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. § 90.803(1), Fla. Stat. (2006); Viglione v. State, 861 So.2d 511 (Fla. 5th DCA 2003).


text:
    Daniel RAMIZE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2194.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Joel D. Robrish, for appellant.
    Bill McCollum, Attorney General and Laura Moszer, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Morsman, 394 So.2d 408, 409 (Fla.1981); Potts v. Johnson, 654 So.2d 596 (Fla. 3d DCA 1995)(no expectation of privacy in entrance to property open to public).


text:
    James M. TUTHILL, Appellant, v. Barbara Anne TUTHILL, Appellee.
    No. 4D06-2515.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    James R. Rich of the Law Office of James R. Rich, P.A., West Palm Beach, for appellant.
    Robert H. Springer of Robert H. Springer, P.A., Lake Worth, for appellee.
   PER CURIAM.

James M. Tuthill (former husband) appeals a final order of dissolution awarding alimony to Barbara Anne Tuthill (former wife). Based on the unique facts and circumstances of this case, we affirm the lump sum alimony award of $129,000, which is payable when multiple real properties are sold, but reverse the award of bridge-the-gap alimony to the former wife, because of the former wife’s superior net worth after equitable distribution and the present inability of the former husband to pay. We remand this cause to the trial court with directions to reserve jurisdiction to award alimony in the future should the former husband establish an actual or imputed income. See Schwartz v. Schwartz, 450 So.2d 277 (Fla. 3d DCA 1984) (reversing permanent periodic alimony to wife whose income virtually equaled that of husband and whose earning capacity and net worth exceeded those of husband); see also Misiak v. Misiak, 898 So.2d 1159 (Fla. 5th DCA 2005) (affirming denial of substantial alimony by trial judge where former husband did not have current ability to pay and former wife’s needs were currently met through her share of the equitable distribution).

Affirmed in part, Reversed in part.

SHAHOOD, GROSS and TAYLOR, JJ., concur.


text:
    Lewis SAUNDERS, III, Sandra Saunders, and Susan Mikesell, Appellant, v. A BETTER BLIND, INC., Appellee.
    No. 06-2912.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Jonathan R. Saunders, for appellant.
    Allan M. Glaser, for appellee.
    Before COPE, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order denying the appellants’ motion to dismiss or transfer the action on account of improper venue. Because the complaint alleges that the overt act in furtherance of the alleged conspiracy, see Lipsig v. Ramlawi, 760 So.2d 170, 180 (Fla. 3d DCA 2000), occurred in Miami-Dade County, it follows that Miami-Dade County is a permissible venue. See § 47.011, Fla. Stat. (2006); Lane v. Hemophilia of the Sunshine State, Inc., 793 So.2d 992, 995-96 (Fla. 2d DCA 2001); Straske v. McGillicuddy, 388 So.2d 1334, 1336 (Fla. 2d DCA 1980); see also Tucker v. Fianson, 484 So.2d 1370, 1371 (Fla. 3d DCA 1986).

Affirmed.


author: STEVENSON, C.J.

text:
    STATE of Florida, Appellant, v. Anthony FRANCIS, Appellee.
    No. 4D05-4542.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, C.J.

Anthony Francis entered an open plea to charges of possession of cocaine and cannabis and driving without a license. The plea hearing reflects that these charges were the result of a traffic stop and a search of Francis’s car during which police found one gram of cocaine and one gram of marijuana. Francis’s score sheet reflects that the lowest permissible sentence under the Criminal Punishment Code is 20.9 months in prison. Francis moved for a downward departure sentence. Following a hearing, the trial court sentenced Francis to six months in jail with credit for 140 days time served. Because the trial court did not orally state the reasons relied upon to support the departure, nor enter a written order articulating these reasons, we reverse.

Francis urges this court to dismiss the instant appeal, arguing that the record fails to reflect that a written sentencing order was ever rendered by the trial court. We reject this argument. While the order entered in this case does not mirror the format of the “typical” sentencing order entered in most cases, we cannot agree that it is not an “order” within the meaning of the Rules of Appellate Procedure. The document in this case, entitled a “disposition order,” was signed by the judge and reflects the nature of the charges, the disposition, the sentence imposed, the credit to which the defendant was entitled for time served, and whether the sentences are to run concurrently or consecutively. See Fla. R.App. P. 9.020(f) (defining an “order” as “[a] decision, order, judgment, decree, or rule of a lower tribunal, excluding minutes and minute book entries”). We find the document in this case to be distinguishable from those discussed in State v. Garcia, 622 So.2d 9 (Fla. 3d DCA 1993) (finding that unsigned notation on the “file jacket” was not an “order”), and State v. Tremblay, 642 So.2d 64 (Fla. 4th DCA 1994) (finding that “court status form,” although signed by the judge, was not an “order”). We similarly reject Francis’s contention that, regardless of the merits of the State’s arguments on appeal, he cannot be resen-tenced because he completed the six-month sentence imposed during the pen-dency of this appeal. See Trotter v. State, 825 So.2d 362, 366 (Fla.2002) (holding that double jeopardy is not implicated in a re-sentencing following an appeal and stating that a defendant cannot have an expectation of finality in a sentence that is the subject of an appeal).

Accordingly, as the State correctly argues, the trial court erred by failing to provide written reasons for the downward departure. We therefore reverse and remand. While the trial court orally addressed some possible foundations for the departure, we are unable to discern from the record the exact bases for the departure and whether those reasons legally justify departure from the guidelines. On resentencing, the court should clarify its oral reasons in a written order and may again depart from the guidelines if it finds legally sufficient reasons. See State v. Teal, 831 So.2d 1254 (Fla. 2d DCA 2002); State v. Shorter, 814 So.2d 1117 (Fla. 4th DCA 2002).

KLEIN and SHAHOOD, JJ., concur.


text:
    Michael JEWEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-502.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Jewel appeals the trial court’s summary denial of his pro se motion to withdraw plea, made after sentencing. We agree with the state that a summary denial was appropriate based on the transcript of the plea colloquy, which conclusively refuted the defendant’s coercion claim. In this situation, where the transcript of the plea colloquy conclusively refutes the claim, there is no point in appointing conflict-free counsel or holding an evidentiary hearing. See Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006). This court’s decision in Kelly v. State, 925 So.2d 383 (Fla. 4th DCA 2006), is distinguishable because there the motion to withdraw plea was made before sentencing.

The state properly confesses that defendant’s written sentence must be conformed to the court’s oral pronouncement.

Affirmed, but Remanded to correct sentence.

WARNER, GROSS and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    FLANIGAN’S ENTERPRISES, INC., a Florida corporation, Appellant, v. SHOPPES AT 18TH & COMMERCIAL, INC., a Florida corporation, SKHHP Broward Building Partnership, a Florida general partnership, Leonard Hayet, Edward Glickman, as Personal Representative of the Estate of Franklin Z. Glickman, and David Bowman, Esquire, an individual, Appellees.
    No. 4D06-1276.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      H. Clay Roberts of Roberts & Durkee, P.A., Coral Gables, for appellant.
    Margaret Villella of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Fort Lauderdale, for appellee Shoppes at 18th & Commercial, Inc., a Florida corporation.
   ON MOTION FOR REHEARING

GROSS, J.

We grant appellant’s motion for rehearing, withdraw our earlier opinion, and issue the following.

The issue in this case is whether the purchaser of a commercial building was on notice of an unrecorded termination by release of a parking easement so that the purchaser is precluded from relying on section 695.01, Florida Statutes (2001) to avoid the release. We hold that the undisputed record evidence was that the purchaser was on notice of the release within the meaning of the statute and affirm.

Appellant Flanigan’s Enterprises, Inc. purchased a commercial building from SKHHP Broward Building in 1999. The building is next to a shopping center owned by appellee Shoppes at 18th & Commercial, Inc. in Fort Lauderdale. The dispute concerns a parking easement that, if valid, would give Flanigan’s, as owner of the adjacent building, the right to park in a portion of the shopping center’s parking lot.

On August 25, 1964, Flanigan’s predecessor in interest, The Fourth Realmart Inc., entered into a mutual parking easement agreement with Shoppes’s predecessor in interest, Baldwin Corporation. The easement, which was later recorded, granted both parties parking privileges on each other’s property. A portion of the parking easement was released on October 21, 1966. The easement agreement was again modified in 1970. In 1987, South Florida Development Associates Limited Partnership, a predecessor in interest to Shoppes, became “desirous of terminating the Mutual Parking Easement.” To accomplish this purpose, South Florida and SKHHP entered into an agreement on June 10, 1987. The contract stated: “South Florida and SKHHP are desirous of rescinding THE PARKING AGREEMENT provided that SKHHP can purchase certain property from South Florida constituting a portion of THE SHOPPING CENTER.” As part of the agreement, South Florida agreed to sell a portion of property adjacent to the building owned by SKHHP. According to the agreement, the property purchased from South Florida was to be used to construct sufficient parking for SKHHP’s building. South Florida held a mortgage on the property sold to SKHHP. .

A July 24, 1992 agreement further described the rights of the South Florida/Shoppes and SKHHP upon completion of the parking lot intended for the use of SKHHP’s building. Due to a scrivener’s error in paragraph 6, the 1992 agreement stated:

5. Upon completion of the parking lot described above, SOUTH FLORIDA/SHOPPES will transfer any and all interest in said improvements to SKHHP free and clear of any claims or liens of whatsoever nature as a result of the construction by SOUTH FLORIDA/SHOPPES.
6. At the time of the transfer described in paragraph 5 above, any and all rights or benefits of SOUTH FLORIDA/SHOPPES in and to parking on the ■.property owned by SOUTH FLORIDA/SHOPPES shall be immediately terminated.

There is no dispute that the scrivener’s error occurred in paragraph six where the drafter mistakenly placed the party name “SOUTH FLORIDA/SHOPPES” instead of SKHHP as the party whose “rights or benefits ... in and to parking owned by SOUTH FLORIDA/SHOPPES shall be immediately terminated.” One purpose of the 1992 agreement was to terminate the mutual parking easement; the agreement provided for South Florida/Shoppes to construct a parking lot .on the property SKHHP purchased from South Florida/Shoppes in consideration for SKHHP’s release of any right of use in the South Florida/Shoppes parking lot. Subsequently, consistent with the agreement, South Florida/Shoppes constructed the parking lot and SKHHP discontinued any further use of South Florida/Shoppes parking area.

On January 23, 1993 Ronald Mastriana, attorney for South Florida/Shoppes, drafted the following letter and release:

Dear David [attorney for SKHHP],
In order to ensure a clean title for my clients with regard to the parking agreement, please have your client execute the enclosed Release which you may hold in trust until the completion of the parking lot. Please note, that the parking lot was finally approved by the City Commission on January 5,1993.

The parking release was attached to the letter. On February 5, 1993 David Bowman, the SKHHP attorney, acknowledged that he held in escrow the original parking release executed by SKHHP. Bowman’s letter read:

Dear Ron:
Please be advised that my client has executed the Parking Release recently sent to me by you (a copy of the execution page only enclosed for your reference) and, further, that I will be holding the original Parking Release in escrow.

The mutual parking easement and related agreements were the subject of a circuit court action. The action concerned, inter alia, SKHHP’s default under the mortgage and note held by Soutb/Shoppes for the purchase of the land upon which the new parking lot was constructed. In the litigation, SKHHP took the position that it was not required to pay on the note because the parking lot Shoppes agreed to build for SKHHP on the mortgaged property was not built by the stated deadline. The circuit court entered a final judgment in favor of South/Shoppes, holding that SKHHP had accepted the benefit of the parking lot improvements made by Shoppes on SKHHP’s property and that the note was to be paid.

In 1999, Flanigan’s entered into a contract to purchase the building owned by SKHHP. The area immediately in front of this building was Shoppes’ parking lot. Because Flanigan’s anticipated opening a liquor store on the first floor of the building and utilizing the rest of the structure for corporate offices, part of the building’s appeal was the recorded 1964 parking easement, which allowed the owner of the building to utilize Shoppes’ parking lot.

To ascertain whether the parking easement would continue after the sale of the property, Flanigan’s and SKHHP executed an Addendum to the contract for sale and purchase that provided that, “[wjithin ten days of the Effective Date, the Seller shall provide the Buyer with copies of any and all agreements with the owner of the adjoining shopping center, along with copies of all orders and judgments entered in any litigation with the same.” The Addendum further provided that if Flanigan’s discovered anything in the documents so provided that was unacceptable to it, then Flani-gan’s could cancel the contract.

On September 24, 1999, pursuant to the addendum, SKHHP’s attorney Bowman provided the following documents to Flani-gan’s attorney:

1. Mutual Parking Easement dated August 25, 1964 recorded July 21, 1966 in OR 3157/320;
2. Agreement dated October 21, 1966 recorded in OR 3322/844;
3. Agreement dated September 21, 1970;
4. Settlement Agreement dated _, 1987,
5. Addendum To Settlement Agreement dated August 17,1987;
6. Parking Agreement Termination and Non-Exclusive Parking Easement dated May 3,1988; (no apartment buildings were ever constructed).
7. Amended Settlement Agreement dated July 24,1992;
8. Addendum To Amended Settlement
Agreement dated May__, 1993;
9. Judgment For ■ Plaintiffs entered January, 1998;
10. Final Judgment for Plaintiffs dated March 27,' 1998 (incorporates January, 1998 Judgment), The foregoing Final Judgment is in the process of being satisfied and the Lis Pendens released;
11. F. Ronald Mastriana letter dated March 10,1994.

The March. 10, 1994 letter provided to Flanigan’s attorney read in pertinent part:

Enclosed please find a release of a mutual parking easement which was recorded on title in 1964.... Although we feel that the purposes of the mutual parking agreement are now frustrated by the current development of the-property, the easement creates a cloud on the title of both the SKHHP property and the property owned by Shoppes at 18th & Commercial.
I would appreciate if you would review the release .;.. hav[e] your client execute the release and call me upon its execution ...

On October 11 and October 19, 1999, Flanigan’s attorney wrote to Shoppes’s attorney, Ronald Mastriana, concerning the mutual parking easement. In response, on November 1, 1999, Shoppes’s attorney replied that “[t]he mutual parking easement no longer exists.”

Flanigan’s attorney responded by letter dated November 8, 1999, stating as follows:

To date, I have seen no document which released or terminated the Mutual Parking Easement, yet in your letter of November 1, 1999 you indicated that the Mutual Parking Easement no longer exists. Furthermore, when Ken Kurtz spoke with your client directly, he was advised that the rights under the Mutual Parking Easement had been resolved in the recently concluded litigation with SKHHP Broward Builders Partnership, yet I have had an opportunity to read the Final Judgments from the litigation and there is no mention of the Mutual Parking Easement, not the rights granted thereunder. Needless to say, this entire matter is very confusing.
In an effort to resolve the question over rights under the Mutual Parking Easement, dated August 25, 1964, a meeting may be beneficial. Flanigan’s is committed to proceed with the above referenced transaction and anticipates being neighbors with your client for quite some time. Obviously, litigation with your client is not the most beneficial way to begin a long term relationship.

There is no indication that the parties met personally to discuss the matter as Flani-gan’s attorney suggested.

However, on November 29, 1999, a Shoppes attorney, responded to Flanigan’s attorney’s November 8,1999 letter:

Your letter of November 8 to Ron regarding the above was referred to my attention.
The Mutual Parking Easement to which you make reference no longer exists. There was an instrument called the “Amended Settlement Agreement” dated 24 July, 1992 which said in essence that as and when a certain parking lot was built, title to the parking lot would be transferred to SKHHP and SKHHP would waive and relinquish any claims to parking on the property owned by South Florida/Shoppes.
The enclosed Final Judgment clearly indicates that the parking lot was accepted by the SKHHP defendants.
By virtue of the Amended Settlement Agreement and the Final Judgment read together it is incontrovertible that the Mutual Parking Easement has been extinguished
Trust that is responsive to your question.

On December 15, 1999, another Shoppes attorney wrote to Flanigan’s attorney and emphasized that the mutual parking agreement had been terminated:

Mike gave me a copy of your December 1, 1999 letter. Both you and your client should not rely upon a mutual parking agreement that was terminated between the parties.
Why do you think the lots were sold to SKHHP for parking and why do you think S. Florida paid the cost of improving those lots for parking? Certainly not because the individuals like each and desired to give each other a gift.
I clearly told Joe not to rely upon the parking agreement. I suggested that he get together with Harry and discuss his plans.
Please be on notice that unless S. Florida grants access to their parking, there is no right to use their parking. The City of Fort Lauderdale has been informed of this fact. There is no code required for parking at S. Florida for the SKHHP building on uses. Please notify Joe of this fact. I am certain he does not want a lawsuit.

In spite of the above correspondence, Flanigan’s decided to proceed with the purchase of the property. The closing occurred on December 15, 1999. At the closing Flanigan’s counsel specifically inquired of a SKHHP general partner, and Ms attorney David Bowman (the author of the February 5, 1993 letter quoted above), as to whether any document had been executed that affected the validity of the parking easement. The general partner and Bowman assured Flanigan’s representative that nothing had been executed that affected the validity of the parking easement. Bowman later admitted that he failed to disclose the existence of the document releasing the parking easement because he “had forgotten it existed.”

After closing on the property, Flanigan’s brought a declaratory judgment action against Shoppes seeking to establish that the parking easement remained valid. Shoppes counterclaimed for reformation to correct a scrivener’s error in paragraph 6 of the 1992 amended settlement agreement, quoted above. In a third party action, Shoppes brought SKHHP and attorney Bowman into the lawsuit. Bowman later filed a counterclaim for interpleader concerning the parking release in his possession.

On summary judgment, the trial court granted Shoppes’s request for reformation. The court reformed paragraph six of the 1992 amended settlement agreement to read as follows:

At the time of the transfer described in paragraph 5 above, any and all rights or benefits of SKHHP in and to parking on the property owned by South Florida/Shoppes shall be immediately terminated.

The court also granted summary judgment in favor of Shoppes on the declaratory action.

The release of the parking easement burrowed in attorney Bowman’s files was never recorded. The failure to record the release does not affect its validity as between the parties. See Fryer v. Morgan, 714 So.2d 542, 545 (Fla. 3d DCA 1998). Flanigan’s contends that the trial court erred in granting summary judgment because there was a disputed issue of fact as to whether it was on notice that the parking easement had been terminated. This argument turns on Flanigan’s ability to rely on section 695.01, Florida Statutes (2001), which provides:

No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to. law....

Under this statute, an unrecorded release of the parking easement is not effectual against Flanigan’s, a subsequent purchaser of the SKHHP building, if Flanigan’s bought “without notice” of the release.

The supreme court has written that actual notice under the statute is of two kinds:

(1) Express, which includes what might be called direct information; and (2) implied, which is said to include notice inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use, or, as it is sometimes called, implied actual notice.

Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932). To constitute notice of an unrecorded property interest or its release, “the information must come from some one interested in the estate, or from some authoritative source;” “[v]ague reports and rumors from strangers are not a sufficient foundation on which to charge a purchaser with notice.” Hopkins v. O’Brien, 57 Fla. 444, 49 So. 936, 940 (1909). If believed by the finder of fact, oral testimony alone may support a finding of notice under section 695.01. See McDonald v. McGowan, 402 So.2d 1197, 1200 (Fla. 5th DCA 1981). If a person has information that would lead a reasonable man to make further inquiry for his own protection, but fails to further investigate and learn what the inquiry would reasonably have uncovered, the person “must suffer the consequence of his neglect.” Chatlos v. McPherson, 95 So.2d 506, 509 (Fla.1957); Rafkind v. Beer, 426 So.2d 1097, 1099 (Fla. 3d DCA 1983) (quoting Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935)), see also Citgo Petroleum Corp. v. Fla. E. Coast Ry. Co., 706 So.2d 383, 386 (Fla. 4th DCA 1998) (citing Chat-ios ). This aspect of implied actual notice is based upon the principle

that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.

Sapp, 141 So. at 127.

Here, the undisputed record evidence was that Flanigan’s had both actual and implied actual notice that the parking easement had been released pri- or to the closing. Shoppes emphatically told Flanigan’s attorney about the release. Flanigan’s was provided with documentation of the underlying agreement concerning the release which specified the consideration SKHHP was to receive. Flanigan’s knew of the circuit court judgment that established that Shoppes had performed its obligations under the agreement and that SKHHP had accepted the benefits of the parking lot improvements. Through Mastriana’s letter to Bowman in March 1994, Flanigan’s knew that the release had been sent to Bowman for SKHHP’s execution. In possession of this information and able to cancel the contract if the parking easement situation was not “acceptable” to it, Flanigan’s nonetheless went forward with the purchase with its “eyes and ears” shut to the necessary inferences from the facts. Flanigan’s claims that it relied on attorney Bowman’s representation concerning the viability of the parking easement. However, as to Shoppes, a third party to the transaction between SKHHP and Flanigan’s, and the owner of the property covered by the parking easement, that reliance is unavailing. Shoppes expressly told Flanigan’s that the easement had been extinguished. Flani-gan’s had powerful evidence that the deal for the release had been consummated, and Flanigan’s had no reasonable explanation as to why no release was executed.

We therefore affirm the summary judgment in the declaratory judgment action. Because reformation is allowed against all persons, except bona fide purchasers for value and without notice, Fla. Masters Packing, Inc. v. Craig, 739 So.2d 1288 (Fla. 4th DCA 1999) (citing Holley v. May, 75 So.2d 696, 697 (Fla.1954)), we affirm the reformation of the 1992 amended settlement agreement.

WARNER and POLEN, JJ., concur.

      . SKHHP is a successor in interest to Barnaby’s Inc. who was a successor in interest to The Fourth Realmart, Inc., the original party to the mutual parking easement. As stated above SKHHP is the predecessor in interest to Flanigan's, the appellant in this suit.

      . Flanigan's did not learn of the existence of the January 23 and February 5, 1993 letters until after it closed on the property.

      . Sapp v. Warner, 105 Fla. 245, 141 So. 124, 126 n. 1 (1932), construed section 5698, C.G.L., and section 3822, R.G.S., which, in pertinent part, are worded identically to section 695.01, Florida Statutes (2001).

      . Whether the trial court correctly granted a motion for summary judgment is a question of law; therefore, this court reviews such a decision de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). “To obtain a final summary judgment, the moving party must conclusively demonstrate that no genuine issue of material fact exists, and that the moving party is enti-tied to a judgment as a matter of law.” Maldonado v. Publix Supermarkets, 939 So.2d 290 (Fla. 4th DCA 2006) (citing Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). The proof must be sufficient "to overcome all reasonable inferences which may be drawn in favor of the opposing party.” Id.


text:
    In re Mel L. CREDEUR.
    No. 2007-OB-0737.
    Supreme Court of Louisiana.
    April 24, 2007.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent misled his clients about the status of their legal matters, settled his clients’ personal injury claims without their knowledge, forged his clients’ endorsements on settlement checks and converted the settlement funds, and engaged in criminal conduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Mel L. Credeur, Louisiana Bar Roll number 4589, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Mel L. Credeur for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Mel L. Credeur shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


text:
    William J. SCHEFFLER, III v. ADAMS AND REESE, LLP and James G. Perdigao.
    2006-CC-2273, 2006-CC-2299.
    Supreme Court of Louisiana.
    April 24, 2007.
   ORDER

Considering the Motions to Dismiss filed jointly by William J. Scheffler, III and Adams and Reese, LLP,

IT IS ORDERED that the joint motions to dismiss be and hereby are granted.

/a/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Jorgio MACK.
    No. 06-K-1722.
    Supreme Court of Louisiana.
    April 27, 2007.
   PER CURIAM.

|, Granted. The decision of the court of appeal is reversed and this case is remanded for purposes of providing defendant with his appeal of the trial court’s adverse ruling on his motion to suppress, reserved as part of his guilty plea under this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976). The guilty plea colloquy shows clearly that all parties understood that defense counsel was incorporating for the merits of his motion not only the testimony adduced at the hearings conducted on a similar motion filed by the co-defendant, transcripts of which then appeared in the record on defendant’s appeal, but also the trial court’s ruling which denied the co-defendant’s motion. He did so to save the time of retrying and duplicating the motion and the trial court thus sought and received defense counsel’s assent that “all the facts would be the same because [the co-defendant] was asserting Mr. Mack’s constitutional rights of whether the ... Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] stop and/or arrest with a plain-feel issue of the marijuana that was found in his pocket.” Under these | ^circumstances, denial of defendant’s appeal on the Crosby reservation would, given the understanding of the court, defense counsel, and the state, which had no objection to the time-saving procedure, jeopardize the voluntariness of defendant’s guilty plea. Crosby, 338 So.2d at 586 (“If we are not able to afford the accused their bargained-for appellate review, we mpst set aside the guilty pleas. The plea could not therefor be characterized as voluntary, because of the non-performance of the plea bargain ... by virtue of which the plea was obtained.”) (citations omitted).

WEIMER, J., recused.


text:
    In re Kerri F. DUNN.
    No. 2007-B-0738.
    Supreme Court of Louisiana.
    April 27, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations of professional misconduct by respondent, including violations of Rule 8.4(b) of the Rules of Professional Conduct stemming from her criminal convictions for attempted insurance fraud, filing a false police report, and shoplifting. After formal charges were filed, respondent and the ODC submitted a joint petition for consent discipline. The parties stipulate to respondent’s misconduct, and seek her permanent disbarment from the practice of law.

Based on our review of the petition, we agree that permanent disbarment is the appropriate sanction under Guideline 6 (insurance fraud) of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Accordingly, having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted. The name of Kerri F. Dunn, Louisiana Bar Roll number 26269, shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re William Dale BEHAN.
    No. 2007-B-0865.
    Supreme Court of Louisiana.
    April 27, 2007.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that William Dale Behan, Louisiana Bar Roll number 24959, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 27, the presiding chief judge in the Nineteenth Judicial District Court for the Parish of East Baton Rouge is ordered to appoint a lawyer or lawyers to conduct an inventory of respondent’s files and to take action as appropriate to protect the interests of respondent’s clients.

Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana