text:
    John SYDORIAK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-699.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Appellant contends the trial court erred by denying his motion for discharge on speedy trial grounds. We affirm.

Appellant was charged in two separate cases of contracting without a license during an emergency and grand theft. He filed a notice of expiration of speedy trial in the first case on November 28, 2005 and a similar motion in the second case on December 5, 2005. On December 9, 2005, pursuant to a plea agreement, appellant entered a nolo contendere plea to the contracting offense charged in the first case and the grand theft offense charged in the second case.

At the conclusion of the plea colloquy, the trial judge stated:

At this time, I will find this plea is knowingly, freely and voluntarily entered with full knowledge of its meaning and effect. And that I’m going to judge you guilty of both counts and then I will set sentencing for Thursday at 1:00. That is going to be the 15th of December, December 15th, 1:00.

After hearing from the victims at the sentencing hearing, the trial judge announced she had decided not to accept appellant’s plea. It appears the trial court believed the sentence should be more severe than that called for by the plea agreement. Defense counsel argued that the court had already accepted the plea and questioned whether the court had the authority to subsequently reject the plea. Defense counsel further objected to his client’s right to speedy trial being extinguished by a rejected plea and sought to reinstate the notice of expiration. The court ordered a transcript of the plea hearing and reset the matter for the following week. Appellant immediately thereafter filed motions for discharge in each case.

At the next hearing, the trial judge again took the position that she had not accepted appellant’s nolo contendere plea. Appellant’s counsel argued that if the plea had not been accepted by the court, then appellant was entitled to be discharged on speedy trial grounds. The state acknowledged appellant would probably be entitled to discharge if the court had not accepted appellant’s plea. However, the state argued (as defense counsel had argued at the prior hearing) that the court had, in fact, unconditionally accepted appellant’s plea and, therefore, could not subsequently reject the plea. As a result, the state contended appellant had waived his right to speedy trial. The trial judge maintained the position that the plea had not been accepted, denied the motions for discharge, and set the case for trial at a later date.

Approximately six weeks later, the parties reconvened. The trial judge indicated a willingness to sentence appellant pursuant to the terms of the original plea agreement. Appellant subsequently entered “a new plea,” but reserved the right to appeal the speedy trial issue. The state argued it was unnecessary for the court to take a second plea. The court engaged in a plea colloquy with appellant, accepted the plea, and sentenced him in accordance with the terms of the original plea agreement.

We find appellant’s initial plea had been unconditionally accepted by the court. Johnson v. State, 460 So.2d 954 (Fla. 5th DCA 1984), approved, 483 So.2d 420 (Fla.1986). Although the trial judge did not specifically state “I accept the plea,” she did adjudicate appellant guilty on the two counts to which he had entered pleas of nolo contendere. The adjudication could only have been based on the court’s acceptance of appellant’s plea.

Having accepted appellant’s plea, the trial court could not subsequently reject the plea based on the victims’ objections or the trial court’s change of mind. As this court explained in Johnson:

The trial court’s acceptance of a nolo contendere plea is a matter wholly within the trial court’s discretion, but when that discretion is exercised by a formal pronouncement that the plea is accepted, it is binding on the State and on the defendant, who is thereby placed in jeopardy as if he had pled guilty.... In Florida, an acceptance of a plea has legal significance, and once jeopardy has attached a court may not set aside a nolo contendere plea previously accepted without legal cause.

460 So.2d at 957 n. 1.

A trial court’s disagreement with the recommended sentence does not constitute legal cause so as to permit a court to set aside a previously accepted nolo contendere plea. Jupin v. State, 664 So.2d 1031 (Fla. 2d DCA 1995).

Of course, the trial judge was not bound by the sentencing terms of the plea agreement. The trial judge could have simply sentenced appellant to a harsher sentence if she felt that was appropriate — provided appellant was afforded the opportunity to withdraw the plea. Goins v. State, 672 So.2d 30 (Fla.1996). See also State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978).

By virtue of the entry and acceptance of appellant’s nolo contendere plea, appellant waived his right to a speedy trial. See Scott v. State, 866 So.2d 213 (Fla. 3d DCA 2004); Cambrick v. State, 593 So.2d 613 (Fla. 2d DCA 1992).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    In re: ESTATE OF Harry L. COUKOS. Eleni D. Coukos-Semmel, Stephanie Coukos Burgess, Steven Hunter Burgess, and Harry S. Coukos, Appellants, v. Edith C. Mitchell, as Personal Representative of the Estate of Harry L. Coukos, Appellee.
    No. 2D06-2327.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
    Gordon D. Fisher and Joseph C. Wasch, Pittsburgh, Pennsylvania, for Appellants.
    Gregory M. McCoskey of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Appellants, the grandchildren and great-grandchildren of Harry L. Coukos, challenge the trial court’s dismissal with prejudice of their petition for revocation of probate, in which they challenged Mr. Coukos’ 2004 will. Because Appellants lacked standing to challenge the will, we affirm. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005) (“[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.”). However, we do so without prejudice to any right Appellants may have to challenge the trust agreement.

Affirmed.

VILLANTI and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Mark ZIMMERMAN, Esquire, and Angelo Gillislee, Appellants, v. Judge of Compensation Claims Paul TERLIZZESE and the Office of Judges of Compensation Claims, Division of Administrative Hearings, Appellees.
    No. 1D06-1699.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zientz, P.A., Miami, for Appellants.
    Derrick E. Cox of Waranch & Westcott, Winter Park; Walter Havers, Tallahassee; Paul T. Terlizzese, Judge of Compensation Claims, Tallahassee; and Bill McCollum, Attorney General, and Lynn C. Hearn, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

The Court has determined that this appeal is moot in light of the Court’s opinion in Gillislee v. FPL, Eby Constr. and Liberty Mutual Ins., 929 So.2d 716 (Fla. 1st DCA 2006). Accordingly, the appellees’ motion, filed on August 2, 2006, is hereby granted and the appeal is dismissed. In light of the dismissal, all pending motions are denied as moot.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


text:
    Michael HURLEY, Appellant, v. James McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2904.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Appellant Michael Hurley, pro se, Bush-nel.
    Bill McCollum, Attorney General, and Alexandria E. Walters, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Hurley appeals an order denying his petition for writ of mandamus and denying his pending motions, including a motion seeking relief from an order imposing a lien on his inmate trust account in connection with the mandamus proceeding. We affirm without discussion the denial of Hurley’s petition. Because, however, as appellee correctly concedes, the action in the circuit court was a collateral criminal action, we reverse that portion of the order denying Hurley’s motion seeking removal of the lien. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). We remand the case with directions that the circuit court dissolve the lien and direct the reimbursement of any funds withdrawn pursuant thereto. See, e.g., Hickey v. McDonough, 946 So.2d 619 (Fla. 1st DCA 2007); Marquez v. McDonough, 945 So.2d 652 (Fla. 1st DCA 2007); Asad v. McDonough, 943 So.2d 1021 (Fla. 1st DCA 2006).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED, with directions.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    Michael O. FREEBAIRN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3526.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Michael O. Freebairn, pro se, Petitioner.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner is hereby afforded a belated appeal from judgment and sentence imposed after a finding of violation of probation in case number 03-4135 in the Circuit Court in and for Bay County. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Rebecca STALLWORTH, Former Wife, Appellant, v. Richard Shane PHINNEY, Sr., Former Husband, Appellee.
    No. 1D06-4226.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.
    Major B. Harding and Kenneth P. Abele of Ausley & McMullen, Tallahassee, for Appellant.
    John C. Kenny, Tallahassee, for Appel-lee.
   PER CURIAM.

In accordance with the agreement of the parties to this appeal, the trial court modified the parties’ final judgment of dissolution to order that the parties’ daughter would complete her elementary education at a particular school. The appellee/for-mer husband thereafter unilaterally elected to place the daughter in a different school. The appellant/former wife then filed an emergency motion for contempt and requested that the motion be considered at an expedited evidentiary hearing. Although the former wife had alleged a colorable basis for relief, the trial court declined to hold the requested hearing and entered the order under review, an order denying the appellant’s motion, directing the parties to mediate the issue, and granting the appellee the final authority to choose a school should mediation prove unsuccessful.

In refusing to hold an evidentiary hearing, the trial court denied the former wife due process. We accordingly reverse the order under review and remand this case to the trial court with directions that an evidentiary hearing be promptly held.

REVERSED and REMANDED with directions.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    Osmel FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2919.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


author: RAMIREZ, J.

text:
    Elizabeth GONZALEZ, Appellant, v. EAGLE INSURANCE COMPANY, Appellee.
    No. 3D05-906.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.
    Lidsky, Vaccaro & Montes; Richard Adams; Leo Bueno, Hialeah, for appellant.
    Conroy, Simberg, Ganon, Krevans & Abel, and Hinda Klein, Hollywood, for ap-pellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Elizabeth Gonzalez appeals the dismissal of her complaint with prejudice for failure to state a cause of action. We reverse because, in her Amended Complaint, Gonzalez stated a cause of action for declaratory relief where she alleged that the insurer, appellee Eagle Insurance Company, canceled her policy based on a misrepresentation or omission and nonetheless, retained all the premiums she had paid.

At the time Gonzalez applied for automobile insurance coverage with Eagle, she failed to disclose her son as an additional driver. Gonzalez later filed a claim with Eagle to recover for the theft of her automobile. Eagle denied the claim, canceled the policy, and did not refund any premium. We conclude that Eagle’s cancellation of the insurance policy in effect rendered the insurance contract void. Consequently, Eagle’s retention of the premiums entitled Gonzalez to receive restitution of the premiums she paid.

The standard of review for an order of dismissal for failure to state a cause of action is de novo. Trotter v. Ford Motor Credit Corp., 868 So.2d 593, 594 (Fla. 2d DCA 2004). Section 627.409, Florida Statutes (2005), provides as follows:

(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

Because Gonzalez misrepresented material facts on her insurance application, it “may prevent recovery under the contract or policy.” A similar statute, section 627.7282(l)(c), dealing with the charging of an incorrect premium, specifies for the cancellation of the policy and the return of any unearned premium to the insured. Section 627.409, however, is silent as to whether the insurer must return the premiums paid when there is a material misrepresentation.

First, we hold that the failure to return the premiums did not waive Eagle’s right to deny coverage. In U.S. Sec. Ins. Co. v. Figueroa, 917 So.2d 901, 903 (Fla. 3d DCA 2005), we held that “section 627.7282(l)(c) does not require the insurer to return an unearned premium as a condition precedent to canceling the insurance policy.” If we did not make the return of the unearned premium a condition precedent where the statute specifically provided for a refund of the unearned premiums, we certainly are not going to require it where the statute is silent.

A more difficult question is whether Eagle is entitled to deny coverage and retain the premiums it collected — the familiar “having your cake and eating it too.” We conclude that the insurer’s retention of the full amount of the premium where it takes the position that it would never have underwritten the policy for the amount of premium charged, is contrary to the law of contract and unjust enrichment.

Florida law indeed gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application of insurance. See Towers v. Clarendon Nat’l Ins. Co., 927 So.2d 913 (Fla. 2d DCA 2006); Fabric v. Provident Life & Acc. Ins. Co., 115 F.3d 908 (11th Cir.1997). We stated in Martinez v. General Ins. Co., 483 So.2d 892, 894 (Fla. 3d DCA 1986), a case in which the insurer omitted her son’s name from the renewal application and filed a claim to recover for a loss arising out of the son’s automobile accident, that rescission and the return of a premium paid may be a proper remedy for an insurer where an omission or misrepresentation goes to the entirety of coverage. We do not read Martinez to allow the insurer to retain the premiums in all cases.

In Perlman v. Prudential Ins. Co., 686 So.2d 1378, 1380 (Fla. 3d DCA 1997), we stated that “parties to a rescinded agreement are required, insofar as possible, to restore the status quo.” Although dealing with a different statute, the Second District stated in Trotter, 868 So.2d at 594-95, that, if a violation of section 627.682 renders the insurance contract void, the insureds would be entitled to restitution of the premiums paid on the insurance contract. The insurer must place the insured back in the same position the insured was in before the effective date of the policy through the return of the premium. See 9 Fla. Jur.2d, Restoration of Parties to the Status Quo § 35 (2004). We agree with Judge Gross’ concurring opinion in Leonardo v. State Farm Fire and Cas. Co., 675 So.2d 176, 179 (Fla. 4th DCA 1996), in which he reasoned as follows:

Construing section 627.409, the Supreme Court has noted that material misstatements in an insurance application subject the insurance contract “to being voided,” similar to an “equitable ground for recission [sic].” Continental Assur. Co. v. Carroll, 485 So.2d 406, 409 (Fla.1986); see Vega v. Independent Fire Ins. Co., 651 So.2d 743, 744 (Fla. 5th DCA 1995). Where an insurer seeks to rescind a voidable policy, it must both give notice of rescission and return or tender all premiums paid within a reasonable time after discovery of the grounds for avoiding the policy. Lee R. Russ, Couch on Insurance §§ 32:63, 32:71 (3d ed.1995); 3A John Alan Apple-man & Jean Appleman, Insurance Law and Practice § 1832 (1941); see Pino v. Union Bankers Ins. Co., 627 So.2d 535, 536-37 (Fla. 3d DCA 1993); Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 379 (1st Cir.1991).

To hold otherwise would unjustly enrich the insurer at the expense of the insured.

Similarly, here, the insured is entitled to the return of the premiums paid. Although the insured did not “rescind” its contract with the insurer and instead “canceled” the policy, the effect is the same. Eagle took the position that it would have charged a considerably higher premium had it known that Gonzalez’ son resided with her. Thus, Gonzalez did not obtain any benefits under the policy because Eagle would have denied any claim at any time after the policy was issued. At the core of the law of restitution and unjust enrichment is the principle that a party who has been unjustly enriched at the expense of another is required to make restitution to the other. See Greenfield v. Manor Care, Inc., 705 So.2d 926, 930 (Fla. 4th DCA 1997)(receded from on other grounds).

Eagle makes two arguments to justify its retention of the premiums. First, it states that section 627.409 does not mandate a refund of the premium. But neither does it authorize the retention of the premium. Consequently, the statute does not modify the common law principle which requires that the parties be restored to the status quo.

Eagle also relies on Martinez v. General Ins. Co., 483 So.2d 892 (Fla. 3d DCA 1986). As we stated earlier, that case also involved the omission of the son’s name from the application as material under section 627.409. Id. at 893. In allowing the insurer to deny coverage and retain a portion of the premium, this Court first quoted extensively from Dairyland Ins. Co. v. Kammerer, 213 Neb. 108, 327 N.W.2d 618 (1982), where the Nebraska court held that when the insurer learns of the omission, it has two choices: (1) It could determine that, because of the omission, it wished to cancel the policy from its inception and return to the insured the entire premium, on the theory that the policy never came into existence, or (2) it could waive the alleged fraud, keep the premium earned to date of cancellation, and accept responsibility under the policy. Id. at 894. The Martinez case then distinguishes Kam-merer on the basis that the claim in Kam-merer was unrelated to the omission:

The failure to list [the son] on the renewal application precluded coverage only for a claim arising out of [the son’s] driving a vehicle insured under the policy. Mrs. Martinez herself was covered throughout the entire period that the policy was in force, and it is this coverage, and no other, that was acknowledged by the insurer when it retained the premium.

Id. (emphasis added).

Our situation, however, is on all fours with Kammerer: the claim was totally unrelated to the omission. Gonzalez’s claim was for the loss occasioned by the theft of her vehicle, not her son’s. And, Eagle has not attempted to retain premiums because it provided any coverage. On the contrary, Eagle takes the position that the policy never came into existence.

We therefore conclude that Gonzalez stated a cause of action for declaratory relief, preventing the dismissal of her complaint with prejudice where she alleged that Eagle purported to cancel her policy based on her misrepresentation or omission while at the same time retaining the premiums paid under the policy.

Reversed and remanded.


author: SCHWARTZ, Senior Judge. SHEPHERD, J.,

text:
    PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY d/b/a Jackson Memorial Hospital and JMH Health Plan, Appellants, v. Gelerme METELLUS and Marie Lacroix Metellus, Appellees.
    No. 3D05-1989.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.

      Murray A. Greenberg, Miami-Dade County Attorney, and Craig E. Leen, Assistant County Attorney, for appellants.
    Hoffman & Hertzig and Carl H. Hoffman, Coral Gables, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendants in a medical malpractice case appeal from an order granting a new trial after a defense verdict because a serving juror, in answer to a question on voir dire as to whether she had been involved in a “lawsuit,” failed to reveal that she had been in a divorce and was the subject of collection efforts by creditors against her. For two reasons, we reverse for entry of judgment in accordance with the verdict.

First, in the absence of any definition of “lawsuit” which would, as in Roberts v. Tejada, 814 So.2d 334 (Fla.2002), include such proceedings, there was no deliberate misstatement by the juror which would justify relief under De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).

Second, and quite separately, there was no showing, as is also required, that counsel would have exercised a peremptory challenge against the juror had he been given the information in question. See Freedman v. De La Cuesta, 929 So.2d 25 (Fla. 3d DCA2006).

Reversed.

FLETCHER, J., concurs.

SHEPHERD, J.,

specially concurring.

I concur in the judgment on the ground that the juror nondisclosures in this case were not material within the meaning of Roberts v. Tejada, 814 So.2d 334, 340 (Fla.2002), and its progenitor, De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995). I am less sanguine about the majority conclusion that there was no concealment or “deliberate misstatement” within the meaning of the controlling case law in this area. However, because materiality is a sine qua non to the grant of a new trial on the basis of juror nondisclosure, Tejada, 814 So.2d at 339 (delineating three elements, all of which must exist for a party to be awarded a new trial on the basis of juror nondisclosure), we need not reach that question. See Mann v. State, 937 So.2d 722, 730 (Fla. 3d DCA 2006) (Shepherd, J., specially concurring)(noting that “[the] procedural ground [was] a sufficient ground to affirm the decision of the trial court” and therefore declining to join remainder of majority opinion); N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 640 (Fla.2003) (declining to address remaining constitutional claims in case because unnecessary to disposition of the case); see also PDK Labs., Inc. v. United States DEA, 362 F.3d 786, 799 (D.C.Cir.2004)(Roberts, J., concurring) (“[I]f it is not necessary to decide more, it is necessary not to decide more ... ”).


author: WELLS, Judge.

text:
    DISTRIBUTION MANAGEMENT SERVICES, INC., and Leo Greenfield, Appellants, v. SOUTHERN WASTE SYSTEMS, LTD., Appellee.
    Nos. 3D05-2368, 3D05-2538.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.
    Richard J. Diaz, for appellant Distribution; Leo Greenfield, North Miami, in proper person.
    Homer Bonner and Peter W. Homer and Rayda Masdeu, Miami, for appellee.
    Before WELLS, CORTINAS, and LAGOA JJ.
   WELLS, Judge.

Distribution Management Services, Inc. and Leo Greenfield (collectively “DMSI”) appeal from final orders approving a magistrate’s final report and authorizing disbursement of escrowed funds. We affirm.

In April of 2003, DMSI contracted to sell a parcel of real property and the recycling plant located on it for $1.05 million to Southern Waste Systems, Ltd. (“SWS”). Because the recycling plant was being operated by a third party, the contract made reference to and incorporated the third party’s operating agreement which provided the operator with the option of either continuing to operate the recycling plant for an additional five years or purchasing the recycling plant outright. In addition to the operating agreement, the contract referred to and incorporated by reference a letter of intent, alleged by SWS to be fraudulent, which permitted DMSI, upon “payment to Southern Waste Systems (“SWS”) of the sum of Eight Hundred and Fifty Thousand ($850,000.00) Dollars,” to rescind the sale to SWS if the third party operator exercised its option to continue operating the plant.

In December 2003, the third party operator exercised its option to continue operating the plant. DMSI claims to have then purchased the right to operate the plant from the third party and to have exercised the option accorded by the letter of intent by tendering $850,000 to SWS to rescind the sale. SWS refused, however, to cede either ownership or the right of possession to DMSI and brought suit primarily to quiet title to the property and to resolve DMSI’s claims to possession and ownership. DMSI counterclaimed for essentially the same relief.

On May 19, 2004, the parties appeared before a general magistrate on their pending injunction motions, each party essentially seeking possession of the property and the damages flowing from the other’s wrongful possession. At that time, they stipulated on the record that General Magistrate John Farrell would resolve the equitable claims (the primary claims in the action) within sixty days. They also agreed that SWS would deposit $450,000 in a joint interest bearing account to satisfy the damages DMSI sought for breach of contract (counterclaim Count II) and wrongful use of escrow funds (counterclaim Count IV) should DMSI prevail on the ownership claim. The parties also waived exceptions to the magistrate’s conclusions.

After this agreement was dictated into the record and agreed to by counsel for the parties, the magistrate reminded the parties that he could not conduct a jury trial and advised the parties that they had “to work that out and decide how [they] want to do it.” DMSI’s counsel asked for ten days in which to decide whether it would waive its jury trial demands.

On June 3, 2004, DMSI advised that it would not waive its right to a jury trial. It then moved to vacate the stipulation claiming that the stipulation was nullified by exercise of its jury trial demand. The motion was denied.

On September 30, 2004, SWS filed its motion for partial summary judgment on its equitable claims and on those counterclaims which necessarily would be determined if it prevailed on its equitable claims. On November 16, 2004, the magistrate issued a report concluding that DMSI had not made a proper tender to repurchase the property as required by the letter of intent, and, therefore, as a matter of law, SWS was entitled to summary judgment in its favor. Thus, the magistrate concluded that SWS was entitled to possession of the property and DMSI was not entitled to any of the $450,000 that had been put into escrow to cover DMSI’s damages in the event that it had prevailed on its counterclaims. DMSI’s exceptions to the magistrate’s report were overruled by the trial court, and the $450,000 escrow was ordered released to SWS.

DMSI appeals these determinations arguing that “the sole reason” for the stipulation to try this matter before a magistrate was “to have a jury trial on an expedited basis,” and that once it refused to waive its right to a jury trial, the stipulation became a nullity. It also contends that the trial court erred in failing to entertain its exceptions to the magistrate’s report; in approving the magistrate’s conclusion that it had not properly exercised the option to rescind/repurchase the property and plant; and in releasing the es-crowed funds following entry of judgment. We find no merit in any of these arguments.

DMSI’s argument that the “sole reason” for the stipulation was to have an expedited jury trial is belied by the record:

THE COURT: Are we ready to read the agreement? Would you do the lead, Mr. Homer [counsel for SWS]?
MR. HOMER: I will.
THE COURT: All please pay attention.
MR. HOMER: Frank [Marks, counsel for DMSI], do you want to come up before we start?
THE COURT: Before we start, the rules are that if there is any disagreement, we’ll stop right at that moment and iron out whatever the disagreement is, if there is any disagreement, rather than wait until the end and go back and try to recapitulate, all right?
MR. HOMER: Yes, sir.
THE COURT: Fine.
MR. HOMER: Okay. First thing that we agree is that we are going to adjourn the hearing today subject to the terms and conditions that I am going to announce.
First is my client, SWS, is going to post a $450,000 cash bond that’s going to be — rather than with the circuit court is going to be placed at a financial institution in an interest bearing capacity, and the two law firms agree to be what we’ll call custodians for that and have signatory authority over that account.
That $450,000 will act as an indemnification — potential indemnification against loss caused to Mr. Greenfield’s company, DMSI, caused by the depravation [sic] of the operation of the property from this date until we get a resolution of this matter. The equivalent of what would normally be a wrongful injunction bond.
Subject to the court’s availability, we would agree upon a specific final hearing date and consolidate the final hearing on the merits with what would normally be an injunction hearing; and we’re proposing the final hearing date will start in 61 days, which will be Monday, Jply 20th, provided Your Honor is available. We estimate that we would need three days for that hearing.
What would be the outcome of that hearing would be that there would be a declaration of the party’s respective rights, obligations and liabilities. That the court could enter injunctive relief that the party — either party to vacate the premises and not to interfere with the other party’s rights to the property and also to direct that either party engage in further assurances by way of executing documents and things like that.
In order to accomplish that we would have a discovery schedule which would be done on an expedited basis....
There would be pretrial disclosures which would be done five business days before the final hearing....
As I indicated, the hearing would take place in 60 days....
We would agree to consolidate the eviction/possession issues which are over in county court in this proceeding here. We would agree that General Master Farrell will be the one who will be ... making the final adjudication on all of these issues, and any issues that would pop up about the enforcement of this would be directed to General Master Farrell as opposed to the judge.
There would also be an agreement so that we can make this a final order where each party agreed to waive any exceptions to your ruling and would make it a final appealable order to the appellate court, if necessary.
In the interim SWS or its affiliates would operate the property and that contemplates that there would be a turnover this Friday. SWS would have an obligation to remove the existing recyclable materials which are there....
In addition, there are [sic] certain personal property owned by DMSI, which we have already identified, which on Friday there would be a turnover of that from my client to DMSI.... We contemplate that there will be a takeover on Friday.
After that point in time my client would be operating the property and there would be no interference of that by DMSI or any of its principals.
My client would generate financial reports. Those would be done on a monthly basis and will timely provide those to counsel and to Mr. Greenfield.
In order to assure that there would be no cash that would be mishandled, they will get a videotape system up and running that would reflect all transactions; and that during normal business hours my client would hire a mutually agreeable off-duty policeman or law enforcement officer who would be there to observe what was going on there.
Mr. Greenfield indicated he would impart his knowledge of what that person should be looking for to make sure that there aren’t any under-the-table cash transactions or anything like that.
MR. MARKS: There should also be a gag order....
MR. HOMER: That wasn’t anything that was discussed.
MR. MARKS: No.
THE COURT: I would suggest that we should refrain from trying to address that before we reach a conclusion of these proceedings. Not passing on this at this time because it is not necessary to do it, but at that time if you bring it back up, Mr. Marks, without prejudice, we’ll address the entire matter at that time.
MR. MARKS: Okay.
MR. HOMER: I think that’s it.
MR. BLOOM: May I make a suggestion? I don’t know how good it is, but I think it is a good one. This property has been in contention for a long period of time apparently. I think there ought to be some kind of order or a piece of paper that says that SWS is in possession of the property and the owner of the property pending further order of court or something to that effect so that someone going to the property, there is something that they can show the person.
MR. HOMER: I submit Mr. Greenfield is not against that, but just a variation on that, Mr. Greenfield, let me suggest this.
Without making any intimation of what the final outcome of this is, pursuant to this proposed agreement, we can have an order entered by the General Master that says SWS, pursuant to agreement of the parties, is entitled to operate the property until further order of the court.
MR. MARKS: That’s fine. No objection to that.
THE COURT: I think that’s satisfactory.
MR. MARKS: Without reference to who the owner is.
THE COURT: Okay.
MR. HOMER: Okay.
THE COURT: That’s fine.
MR. HOMER: That’s what I have got.
MR. MARKS: That’s it.
MR. GREENFIELD: The personal property would be removed.
MR. MARKS: He covered that. That’s our understanding of the agreement.
THE COURT: Anything further?
MR. MARKS: That’s it, your Honor.

(Emphasis added).

This agreement makes no mention of a jury trial nor is it predicated on such a proceeding. Rather the purpose, as expressed, was to expedite resolution of the main issues raised in this action, that is, for “a declaration of the party’s respective rights, obligations and liabilities ... [for] injunctive relief.” ■

The magistrate’s statement that he could not conduct a jury trial does not support DMSI’s argument that the only purpose in entering the stipulation was to secure an expedited jury trial. Rather, the magistrate’s comment only reflects his failure to realize that the parties’ agreement to escrow funds to satisfy DMSI, should it prevail, resolved the only viable claim (Count II of the counterclaim) for which a jury trial had been sought.

Specifically, in Count II of the counterclaim, DMSI claimed that it was the owner of the property entitled to possession of the plant and that as a consequence of its improper ouster by SWS, it was incurring $7000 in damage each day. As part of the parties’ stipulation, SWS agreed to escrow $450,000 to act, as the magistrate was advised, as “potential indemnification against loss caused to ... DMSI, caused by the depravation [sic] of the operation of the property from this date until we get a resolution of this matter.” What the parties failed to adequately explain was that this $450,000 was comprised of two components: $420,000 to satisfy Count II of the counterclaim (that is, $7000 per day for the sixty days the parties agreed it would take to get to trial) which carried a demand for a jury trial; and $30,000 to satisfy Count IV of the counterclaim for that amount.

In sum, the magistrate’s cautionary statement concerning his inability to conduct a jury trial, made after the parties agreed to resolve the claims then pending before him, including the only viable claim in which a demand for a jury trial, had been made, evidenced a lack of recognition regarding the effect of the $450,000 escrow account. It does not stand as proof of DMSI’s claim that the purpose of the stipulation was to assure an expedited jury trial.

The trial court also did not err in adopting the magistrate’s resolution of the parties’ claims. Although DMSI expressly agreed to waive exceptions to the magistrate’s report, the trial court nonetheless entertained DMSI’s exceptions, reviewed the record before the magistrate, and rejected the exceptions. See Nail v. Browning, 74 Fla. 108, 76 So. 679, 680 (1917) (approving a stipulation waiving both exceptions to a master’s report and the right to appeal).

We similarly find no error in the determination that DMSI was entitled to neither ownership nor possession of the property because it failed to tender payment as required by the letter of intent. See Rissman v. Kilbourne, 643 So.2d 1186, 1140 (Fla. 1st DCA 1994) (noting that a tender is an unconditional offer of payment, and that the “only distinction between tender and payment lies in the fact that a tender is not accepted, while a payment is”); see also Southfork Inv. Group, Inc. v. Williams, 706 So.2d 75, 79 (Fla. 2d DCA 1998) (citing Rissman for the proposition that “[t]o make an effective tender, the debtor must actually attempt to pay the sums due; mere offers to pay, or declarations that the debtor is willing to pay, are not enough”).

In light of these conclusions, there was no error in releasing the escrowed funds to SWS.

Accordingly, we affirm both orders appealed.

      . SWS sought to recover payments made by the third party operator to DMSI after SWS purchased the recycling plant (Count I for breach of contract); for ejectment to' obtain possession of the property and plant (Count II); to quiet title (Count III); to enjoin DMSI from claiming ownership of the property and from obstructing SWS’s right to occupy the premises and operate the recycling plant (Count IV for injunctive relief); for conspiracy to commit fraud and fraud (Counts V and VI respectively); for breach of fiduciary duty as to an SWS shareholder regarding the sale of the property and the recycling plant (Count VII); and for slander of title (Count VIII).

      . DMSI counterclaimed for injunctive relief for possession and control of the recycling plant claiming that it had exercised its option to rescind the sale and that by virtue of recor-dation of a deed previously held in escrow that it was the owner of the property and plant (Count I). It sought damages stemming from closure of the plant because of SWS’s alleged wrongful refusal to rescind the sale and turn over possession (Count II for breach of contract). It also sought damages for SWS’s alleged fraudulent failure to include the letter of intent authorizing rescission of the sale as part of its attachments to SWS’s complaint (Count III for fraud), and for SWS’s alleged breach of contract relating to use of $30,000 escrowed as part of the sale (Count IV). It also asked for specific performance of the sales contract and letter of intent (Count V). Count II for damages stemming from closure of the plant and Count III for fraud made jury trial demands.

      . SWS moved for summary judgment on Counts II (ejectment), III (quiet title), and VIII (slander of title) of its amended complaint.

      . SWS sought entry of judgment on Count I (injunctive relief), Count II (breach of contract), and Count V (specific performance) of DMSI’s counterclaim and on Count II (malicious business interference) of Greenfield’s counterclaim.

      . The only other count of DMSI's counterclaim that demanded a jury trial was Count Ill alleging that SWS had committed fraud by failing to attach a copy of the letter of intent to its complaint. This claim fails to state any of the essential elements of a fraud claim. See Romo v. Amedex Ins. Co., 930 So.2d 643, 650-51 (Fla. 3d DCA 2006) (stating a plaintiff must allege the following essential elements to state a cause of action sounding in fraud: "(1) a misrepresentation of a material fact; (2) which the person making the misrepresentation knew to be false; (3) that the misrepresentation was made with the purpose of inducing another person to rely upon it; (4) that the person relied on the misrepresentation to his detriment; and (5) that this reliance caused damages”); see also Kish v. A.W. Chesterton Co., 930 So.2d 704, 706 (Fla. 3d DCA 2006) (defining fraud generally as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment and a misrepresentation made recklessly without belief in its truth to induce another person to act).
      Greenfield's counterclaim was not the subject of this stipulation as it was not filed until after the stipulation was entered.

      . This point was clarified after judgment was entered when counsel for DMSI stated:
      [BY COUNSEL FOR DMSI]: ... The 45 [0] is to compensate the defendants, not for regaining their property or losing it, it’s for being restricted from the ability to garner the revenues that the property would produce.
      If I’m not mistaken, there was supposed to be a 60-day — the reason the case goes to the general master is we're going to litigate for 60 days, we’re going to work in good faith to discover the case and have a final hearing in 60 days. There was a $7,000 estimated, agreed-upon number that the property generated as additional revenue other than its substantive value and that’s money that my client will be deprived of it the Court is reversed on appeal.
      This money was not an obligation to pay. This money was an insurance fund in the form of if [SWS] wrongfully evicted you, so to speak, you lost your ability to earn this income, you're going to be made whole.


author: ROTHENBERG, Judge. RAMIREZ, J.,

text:
    The STATE of Florida, Appellant, v. Noe SALGADO, Appellee.
    No. 3D05-2656.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 19, 2007.

      Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellant.

      Christian Dunham, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The State of Florida appeals an order granting the defendant’s motion for a downward departure from the sentencing guidelines. We reverse.

The defendant and co-defendant entered a business complex by cutting through barbed wire and fencing with a bolt cutter, which apparently activated an alarm. Upon receiving a call that the alarm had been triggered, the manager of the auto sales business responded to the property and confronted the defendants by shining his flashlight on them and ordering them to “freeze.” When the defendants realized that the individual with a flashlight was not a police officer, they disarmed him' and beat him with the flashlight. The manager sustained several lacerations to his head and a broken knuckle. During this attack, the defendant forcibly removed the manager’s Rolex watch and the co-defendant took the manager’s necklace. When the police arrived, the defendant attempted to flee, but was found hiding nearby with the manager’s Rolex watch in his pocket. When the defendant was arrested, he gave a taped confession and was charged with burglary using a deadly weapon, three counts of burglary of an unoccupied structure, aggravated battery with a deadly weapon, burglary with assault or battery, and attempted felony murder.

Prior to trial, the defendant indicated that he wished to plead guilty to the charges and filed a motion seeking a downward departure from the sentencing guidelines. In support of his motion, the defendant argued that (1) the offenses were committed in an unsophisticated manner and that this was an isolated incident for which he had shown remorse; and (2) at the time of his arrest, he was too young to appreciate the consequences of the offenses. The defendant was twenty-one years old when he committed these offenses and he had one prior adult arrest for the possession of cocaine and cannabis. Attached to the defendant’s motion for downward departure was a psychological evaluation, which was performed to determine whether he was an appropriate candidate for boot camp.

The case was set for November 7, 2005 for report re: plea. On November 7, 2005, prior to hearing any evidence or entertaining argument of counsel, the trial court stated, “I will grant the motion for downward departure and have offered a plea to Mr. Salgado of eight years straight prison, with credit for time served.” The State asked to be heard on the defendant’s motion for downward departure. In voicing its objection to the plea offered by the court and the downward departure the trial court indicated it intended to impose, the State argued that the defendant had not shown remorse, and in fact he appeared disinterested -during his confession, yawning several times. The State also argued that the defendant was not too young to understand the consequences of his offense, that this was not his first contact with the criminal justice system, and that the evidence did not support a finding that the crime was committed in an unsophisticated manner. The State also argued that there were aggravating factors that the court should consider, including that the beating and attempted murder of the victim was done in order to avoid arrest, and that the beating was exceptionally violent.

The trial court allowed the State to call the victim to the stand, who testified as to the circumstance of the attack against him and to his injuries. The photographs showing the victim’s injuries were admitted into evidence, and the State proffered that a doctor would have testified at trial that one more blow to the victim’s head could have killed him. The defendant took the stand and testified that he was remorseful. Upon the conclusion of the defendant’s testimony, the trial court stated, “Mr. Salgado, I will grant your motion for downward departure and offer you, as I assured, eight years in state prison as part of the plea.” Based upon the defendant’s proffer of evidence, the trial court found the defendant guilty and, oVer the State’s objection, ruled that it was entering a departure sentence, sentencing the defendant to eight years in prison with credit for time served. On November 9, 2005, a sentencing order imposing the downward departure sentence was entered, consistent with the trial court’s oral ruling.

A trial court’s decision whether to depart downward from the sentencing guidelines is a two-part process. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, the trial court must determine whether there is a valid legal, ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court’s determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence 'to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion. Id. at 1067-68.

The State argues that the trial court had made up its mind prior to hearing the evidence or considering the aggravating factors, and that neither of the grounds relied upon by the trial court for the downward departure was supported by competent substantial evidence. The two grounds relied upon by the trial court for departure are that (1) the defendant’s offenses were committed in an unsophisticated manner and the incident was an isolated incident for which he has shown remorse; and (2) at the time of his arrest, he was too young to appreciate the consequences of his offenses. We will address the latter ground first.

Section 921.0026(2)(k), Florida Statutes (2005), provides that one of the circumstances justifying a downward departure is if “[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense.” A defendant’s youthful age alone, however, will not justify a departure sentence. There must also be evidence that the defendant is emotionally immature or lacks ordinary intelligence. State v. Gilson, 800 So.2d 727, 730 (Fla. 5th DCA 2001); State v. Liceo, 707 So.2d 1155, 1157 (Fla. 2d DCA 1998); State v. Ashley, 549 So.2d 226, 226 (Fla. 3d DCA 1989).

The defendant asserts that the psychological evaluation submitted to the sentencing court provides competent substantial evidence of the defendant’s emotional immaturity. The psychological evaluation of the defendant was performed to determine whether the defendant was an appropriate candidate for boot camp, not whether a departure sentence would be appropriate under the circumstances. Although the report states that the defendant is an immature young man, it is conclusory and provides no support or explanation. Further, since the purpose of the evaluation was regarding the appropriateness of boot camp and was' not conducted for the purpose of evaluating whether the defendant’s maturity level warranted a downward departure, the evaluation did not address whether the defendant’s maturity level affected his ability to appreciate the consequences of his actions. In fact, the record is devoid of any evidence which suggests that the defendant lacked the maturity to appreciate the consequences of his actions. Although many cases focus on the youthfulness element of section 921.0026(2)(k), the statute specifically requires that the defendant must also be unable to appreciate the consequences of the offense in order to be eligible for a downward departure sentence. See § 921.0026(2)(k), Fla. Stat. (2005)(allowing for a downward departure when the defendant is “too young to appreciate the consequences of the offense”); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000)(re-versing a downward departure sentence, explaining both that the defendant was not youthful and that there was no evidence before the trial court to indicate that he could not appreciate the consequences of his offense). Because there was no evidence in the record that the defendant was too young to appreciate the consequences of his offenses, and in fact the record reflects the contrary, we conclude that the trial court erred in granting a departure sentence based upon section 921.0026(2)(k). The defendant was twenty-one years old when he committed these offenses. The record reflects that he graduated high school, was good in math, was an avid reader, was gainfully employed in a position requiring trust and responsibility, is of average intelligence, has no psychological problems, and comes from a good family with supportive parents. Additionally, the record reflects that the defendant often got in trouble at school and was removed to a school for children with behavioral problems. The evidence does not support a finding that the defendant was too young to appreciate the consequences of his actions.

The other basis that the trial court relied upon when it imposed a departure sentence was that the offenses committed by the defendant were committed in an unsophisticated manner and were isolated incidents for which the defendant has shown remorse. This ground for departure, however, is only valid under section 921.0026(2)© when there is substantial competent evidence supporting all three elements. See State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006)(“A11 three elements must exist to justify departure; the offense must have been isolated, committed in an unsophisticated manner, and one for which ‘the defendant had shown remorse.”); see also State v. Strawser, 921 So.2d 705, 707 (Fla. 4th DCA 2006); State v. Perez-Gonzalez, 884 So.2d 1031 (Fla. 3d DCA 2004). As the record does not contain competent substantial evidence which would support a finding that the charged offenses were committed in an unsophisticated manner, a departure based upon section 921.0026(2)© was unjustified.

Cases generally define “unsophisticated” as the opposite of “sophisticated,” which in turn is defined as “having acquired worldly knowledge or refinement; lacking in natural simplicity or naiveté.” Staffney v. State, 826 So.2d 509, 512 (Fla. 4th DCA 2002)(citing State v. Fleming, 751 So.2d 620, 621 (Fla. 4th DCA 1999)(quoting American Heritage Dictionary of the English Language (1981))). Thus, a crime is committed in an unsophisticated manner when the acts constituting the crime are “artless, simple and not refined.” Staffney, 826 So.2d at 509 (quoting State v. Merritt, 714 So.2d 1158, 1154 n. 3 (Fla. 5th DCA 1998)).

The following cases are instructive. In Staffney, the Fourth District Court of Appeal reversed a downward departure for sexual battery, finding that there was insufficient competent substantial evidence to support the trial court’s finding that the crime was committed in an unsophisticated manner where the defendant waited for the victim to fall asleep, and in a stealth-like manner, crept into the victim’s bed and took several distinctive and deliberate steps to commit a sexual battery upon her. Staffney, 826 So.2d at 512-13; see also Subido, 925 So.2d at 1058 (rejecting a finding of unsophistication in a case very similar to Staffney). In Perez-Gonzalez, this court likewise held that the record refuted the trial court’s finding that the burglary was committed in an unsophisticated manner where the defendant, who coveted a particular item, broke into the victim’s property and made a “surgical strike,” taking only that item. Perez-Gonzalez, 884 So.2d at 1032. In State v. Chestnut, 718 So.2d 312 (Fla. 5th DCA 1998), the Fifth District Court of Appeal held that the trial court’s finding of unsophistication was not supported by the record where the defendant threw an object at the windshield of the vehicle the victim was driving, in order to stop the vehicle so that he could assault the victim. Id. at 313. The Fifth District, in State v. Morales, 718 So.2d 272 (Fla. 5th DCA 1998), also rejected a finding that the sexual battery against the defendant’s ex-wife was committed in an unsophisticated manner, where the defendant gained entry into her residence by deceit. Id. at 274.

The following cases, upholding downward departures based upon the defendant’s lack of sophistication, clearly demonstrate artlessness, simplicity, naiveté, and unrefinement. In State v. Joseph, 922 So.2d 393 (Fla. 3d DCA 2006), this court found that there was competent substantial evidence supporting the trial court’s finding that the theft was committed in an unsophisticated manner where the defendant simply retained a duplicate payment from a mortgage company without notifying the company of the over payment. Id.; see also State v. Gilson, 800 So.2d 727 (Fla. 5th DCA 2001)(finding substantial competent evidence that the defendant committed burglary and theft in an unsophisticated manner where the defendant, in order to avoid his angry mother with whom he lived, broke into a neighbor’s house to find a place to sleep, threw the neighbor’s firearms out of a window, and then was found the next day by the police, asleep in the neighbor’s bed); State v. Fleming, 751 So.2d 620 (Fla. 4th DCA 1999)(finding competent substantial evidence to support that the crime of purchasing cannabis was committed in an unsophisticated manner where the defendant knocked on the apartment door where the police were conducting a search of an apartment, asked to speak to a particular person, and after being told that the person he was seeking was not there, purchased drugs from the police).

In the instant case, the defendant and co-defendant entered a business complex in the middle of the night by using a bolt cutter to cut through a barbed wire fence. Once inside the complex, they broke into the shed of an upholstery shop and stole tools, including a crowbar and a blowtorch, which they used to cut through a chain that was securing a door to the body shop they intended to burglarize. After successfully gaining entry into the body shop, they began separately removing radios from cars, which they planned to sell. The defendant and co-defendant broke into six or seven cars before they were interrupted by the victim. Thus, the defendant and co-defendant took several distinctive and deliberate steps in committing the burglary and thefts, which cannot be characterized as being simple, artless, naive, or unrefined. Rather, their actions demonstrate that they knew what they were doing and were not unsophisticated regarding the burglary and thefts.

The defendant argues that because he broke into a business with an active alarm system, his actions support a finding that he was an unsophisticated burglar and thief. We fail to see the logic in this argument. First, the record does not indicate whether the alarm was an audible or silent alarm. Additionally, sophisticated burglars and thieves steal cars with alarms, break into homes and businesses with alarms, and even steal very valuable paintings from museums which employ very sophisticated alarm systems. In fact, an experienced burglar is generally not deterred by a burglar alarm, since experience demonstrates that it will often take law enforcement time to respond to an alarm. As this is the only factor the defendant argued in support of his claim that the burglary and thefts were committed in an unsophisticated manner, we find that the claim is unsubstantiated by competent substantial evidence.

Regarding the attempted murder of the manager, the defendant argues that since he used the victim’s own flashlight to beat the manager, this fact establishes competent substantial evidence that he acted in an unsophisticated manner. We are equally unpersuaded by this argument, as the underlying offenses are burglary and theft and the attack upon the manager when he interrupted the criminal enterprise was an unéxpected and unplanned circumstance committed during the course of the defendant’s criminal enterprise. We do not agree that the use of the victim’s flashlight as the weapon of choice is demonstrative of the defendant’s unsophistication. The record reflects that the defendant, when confronted by the victim, did not flee out of fear. Instead, he and the co-defendant disarmed the victim, beat him unmercifully, and robbed him of his watch and necklace. These acts certainly do not support a finding that the crimes were committed by an unsophisticated burglar and thief. The record, in fact, demonstrates the converse. When Salgado was confronted by the victim he began to flee, believing the intruder was a police officer and wishing to avoid the consequences of his criminality. Upon discovering that the intruder was not a member of law enforcement, Salgado made a calculated decision not to abandon the fruits of his criminal labor by fleeing, but instead decided to incapacitate the intruder, rob him as bonus, and flee with the evening’s collections. Thus, instead of safely retreating, Salgado calculated the risk, stood his ground, beat the manager until he was fully incapacitated, robbed him of his jewelry, and would have escaped with the loot had law enforcement not arrived when it did.

As neither of the grounds for downward departure articulated by the trial court are supported by competent substantial evidence, and neither the record nor the trial court’s order reflect that aggravating factors were considered, we vacate the departure sentence imposed and remand for sentencing before a different judge, where the defendant may elect to either withdraw his plea or be resentenced within the guidelines. See Banks, 732 So.2d at 1068 (explaining that when a trial court determines whether it should depart from the sentencing guidelines, it must weigh the totality of the circumstances, including aggravating factors); State v. Munro, 903 So.2d 381, 383 (Fla. 2d DCA 2005); State v. Evans, 630 So.2d 203 (Fla. 2d DCA 1993).

SUAREZ, J., concurs.

RAMIREZ, J.,

(dissenting).

I respectfully dissent. We recently stated in State v. Joseph, 922 So.2d 393, 395 (Fla. 3d DCA 2006) that:

Once the trial court has determined that it can depart, the court must further determine if it should depart. In making this determination, the trial court is afforded considerable discretion. The appellate court will only overturn the trial court’s decision if there has been an abuse of discretion.

I fail to see how Salgado was more sophisticated when he broke into a business establishment with an active burglar alarm system than the defendant in Joseph, who was an attorney handling a real estate transaction and used his trust account to cash a duplicate check in the amount of $290,098.94. Id. at 394. If Joseph was artless, simplistic, and unrefined, Salgado seems the epitome of unsophistication. While I agree with the majority that the facts would support a finding of sophistication, I cannot agree that the trial court abused its discretion in concluding the opposite, particularly in light of our decision in Joseph.

We should remember the words of Justice Overton in the seminal case of Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980):

We cite with favor the following statement of the test for review of a judge’s discretionary power:
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir.1942). In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

The majority apparently concludes that the trial court, after listening to the testimony of the victim and the defendant, was unreasonable in finding that Salgado was an unsophisticated burglar. The majority then discounts the evidence of unsophistication in breaking into a business with an active alarm because sophisticated burglars will even steal “from museums which employ very sophisticated alarm systems.” We thus conjure up images of Sean Connery matching wits with Catherine Zeta-Jones in the film “Entrapment.” In fact, the majority reasons that “an experienced burglar is generally not deterred by a burglar alarm, since experience demonstrates that it will often take law enforcement time to respond to an alarm.” This conclusion is not in the record before this Court, but instead is based on the life experiences of the appellate panel. I cannot agree with our Court substituting its life experiences for that of the trial court where the standard of review is abuse of discretion.

The trial court was the one that heard the testimony and could have reasonably concluded that Salgado broke into an auto body shop without bothering to find out if it even had an alarm system. It could have taken into account that Salgado had not considered the response time of the police to a silent alarm. His lack of concern for such a response time is demonstrated by the fact that he and his accomplice not only had to break through a fence, but also into a shed where they had to obtain a crowbar and blowtorch to then use to cut a chain. A reasonable trial judge could have inferred that, although it may take law enforcement time to respond to an alarm, a sophisticated burglar would also realize that he does not have an unlimited amount of time.

Furthermore, the trial court could have reasoned that using a bolt cutter was an unsophisticated mechanism for gaining entry into a business. I see nothing in the facts to suggest that Salgado had acquired wordly knowledge or refinement. See Staffney v. State, 826 So.2d 509, 512 (Fla. 4th DCA 2002). In short, I cannot conclude that the trial judge was arbitrary, fanciful, or unreasonable.

      . The record does not indicate whether the alarm was audible or silent.

      . The business complex contained three businesses within one external fence, separated by internal fences.


text:
    Everitte L. FORBES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2332.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.
    Everitte L. Forbes, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Rogers v. State, 932 So.2d 620, 622 (Fla. 5th DCA 2006).


text:
    Marcus O. BENNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0860.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2006.
    Rehearing Denied Feb. 8, 2007.

      Marcus 0. Bennett, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits. See Bronson v. State, 751 So.2d 619 (Fla. 4th DCA 1999).

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


author: CORTIÑAS, Judge.

text:
    GABLES CLUB MARINA, LLC, Appellant, v. The GABLES CONDOMINIUM AND CLUB ASSOCIATION, INC., Appellee.
    No. 3D06-1103.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Rehearing and Rehearing En Banc Denied Feb. 2, 2007.

      Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff, Teresa Ragatz, Miami, and Matthew S. Sarelson, for appellant.
    Blaxberg, Grayson, Kukoff & Segal and Moisés Grayson and Ian J. Kukoff; Hom-erBonner and R. Lawrence Bonner and Christopher J. King, Miami, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

Appellant, Gables Club Marina, LLC (“Gables Club”), appeals the trial court’s order vacating a default judgment entered in its favor. Gables Club contends the default judgment was properly entered and the trial court abused its discretion by vacating the judgment. We disagree and affirm the trial court’s order.

Gables Club and The Gables Condominium and Club Association, Inc. (“the Condo Association”) were engaged in. a dispute over ownership rights to a marina and attempted to settle the issue without resorting to litigation. However, at some point during negotiations, Gables Club found it necessary to file a lawsuit, apparently in an attempt to put the dispute into a proper context for resolution. Thug, Gables Club filed a complaint in circuit court on December 16, 2005.

Instead of serving-the complaint on the Condo Association immediately, Gables Club sent the Condo Association a letter on December 22, 2005. This letter explained that a complaint had been filed but would not be served until after the holiday season. The stated purpose was to avoid requiring the Condo Association to file an answer during the holidays. On January 20, 2006, Gables Club served the previously filed complaint on the Condo Association.

Counsel for the Condo Association testified that, after service was complete, he communicated with the attorney for Gables Club and indicated that he understood the context in which the lawsuit was filed. He further represented that he would not seek to dismiss the complaint, even though he found it deficient, but that he would enter a notice of appearance to inform the parties that the lawsuit was being defended. On February 13, 2006, counsel for the Condo Association entered a Notice of Appearance.

One and a half weeks later, Gables Club moved for default, pursuant to Rule 1.500(b) of the Florida Rules of Civil Procedure, arguing that the Condo Association had failed to defend the lawsuit. Gables Club served this motion on the Condo Association and scheduled an ex parte hearing on the motion. On March 1st, the Condo Association responded to the motion via letter addressed to counsel for Gables Club. The letter indicated that the Condo Association had understood the lawsuit to be on hold while the parties talked, but that counsel would promptly respond to the complaint in light of the motion for default.

On March 8, 2006, an ex parte hearing was .conducted and the circuit judge entered a default. That same day, Gables Club moved for final judgment on the entry of default. This motion was not served on the Condo Association, and the Condo Association’s counsel testified that he did not receive notice of the entry of default until Gables Club moved to strike the Condo Association’s March 16th answer, affirmative defenses, and counterclaim. On March 21, 2006, a final judgment of default was entered against the Condo Association.

Upon discovering the entry of default, the Condo Association attempted to file a motion to vacate the default. This motion was originally accepted, then later refused by the clerk of court, because a final judgment had already been entered in the case. In response, the Condo Association paid a fee to reopen the case and filed a Verified Amended Emergency Motion to Vacate the Default and the Default Final Judgment, under Buies 1.500(d) and 1.540(b) of the Florida Rules of Civil Procedure. After a hearing, the trial court granted the motion, and this appeal ensued.

The Florida Supreme Court has long recognized Florida’s public policy of adjudicating cases on the merits. N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962).

“ ‘It is the rule that the opening of judgments is a matter of judicial discretion and ‘in a case of reasonable doubt, where there has been no trial upon the merits, this discretion is usually exercised in favor of granting the application so as to permit a determination of the controversy upon the merits.’ ’ ”

Id. (quoting Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, 11 (1942) (quoting 31 Am. Jur. Judgments § 717)). Because of this public policy, the Florida Supreme Court has held that a trial court’s vacatur of a default judgment should be reversed only if the vacatur constitutes a gross abuse of discretion. N. Shore, 143 So.2d at 852 (emphasis added).

Here, we cannot say the trial court committed a gross abuse of discretion by vacating the default judgment. Rule 1.540(b) of the Florida Rules of Civil Procedure states, in pertinent part, that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.... ” Fla. R. Civ. P. 1.540(b). Courts have interpreted Rule 1.540(b) in its entirety to require a showing of excusable neglect, assertion of a meritorious defense, and due diligence in seeking to vacate the default. See Cinkat Transp., Inc. v. Md. Cas. Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992). Here, the Condo Association demonstrated excusable neglect based on a reasonable misunderstanding regarding settlement negotiations, the Condo Association has presented a meritorious defense, and the Condo Association has exercised due diligence in seeking to vacate the default judgment.

Although Gables Club contends that the trial judge did not apply this three-prong test when adjudicating the motion for va-catur, the transcript of the hearing on the motion to vacate clearly indicates that the parties were disputing whether the factual circumstances constituted excusable neglect. Thus, although the trial judge’s order does not use those words, his ruling was based on the proper legal test for vacatur and not solely on his personal beliefs about professionalism.

The Fourth District Court of Appeal has found excusable neglect “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir....” Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985). Subsequent cases have found that ignorance of the law, whether on the part of counsel or client, does not qualify as excusable neglect. See Geer v. Jacobsen, 880 So.2d 717, 720-21 (Fla. 2d DCA 2004)(“The attorney’s errors, even if constituting mistakes of law, tactical errors, or judgmental mistakes, do not constitute excusable neglect. Similarly, an attorney’s inadvertence or ignorance of the rules does not constitute excusable neglect.” (internal citations omitted)); Joe-Lin, Inc. v. LRG Rest. Group, Inc., 696 So.2d 639, 541 (Fla. 5th DCA 1997)(“A defendant’s failure to retain counsel or a defendant’s failure to understand the legal consequences of his inaction is not excusable neglect.”) (citation omitted).

However, numerous cases have held that a reasonable misunderstanding between attorneys regarding settlement negotiations does constitute excusable neglect sufficient to vacate a default and that a trial court abuses its discretion by failing to vacate a default entered in such a case. See Levante v. Corallo, 688 So.2d 427, 428 (Fla. 3d DCA 1997); Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So.2d 725, 725-26 (Fla. 3d DCA 1988); Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So.2d 1163, 1163-64 (Fla. 3d DCA 1982); Rubenstein v. Richard Fidlin Corp., 346 So.2d 89, 90-91 (Fla. 3d DCA 1977); Weeks Cartage, Inc. v. CSX Transp., 547 So.2d 237, 238 (Fla. 1st DCA 1989); but cf. George v. Radcliffe, 753 So.2d 573, 574 (Fla. 4th DCA 1999)(affirm-ing denial of motion to vacate default upon finding that the “stand still” period agreed to by the parties had elapsed and the plaintiff had made no attempt to file an answer to the amended counterclaim despite requesting an extension of time).

Here, the record shows that settlement talks were ongoing, even into April 2006, that a complaint was filed while negotiations continued, and that the attorneys for both parties were working together amicably to resolve the dispute between their clients. We find it likely that confusion arose from the fact that the attorney assisting Gables Club with the settlement talks (Jay Koenigsberg) was not the same attorney representing Gables Club in this litigation (Eric D. Isicoff). Given these facts, the trial court found that the Condo Association’s belief that no answer needed to be filed was reasonable, regardless of whether the Condo Association has proven the terms of an actual agreement between the parties to that effect. Therefore, we find no gross abuse of discretion in the trial court’s finding of excusable neglect.

Moreover, it is clear that the Condo Association has presented a meritorious defense, as the Condo Association filed an answer, affirmative defenses, and counterclaims with the court even before moving to vacate the judgment. See Fortune Ins. Co. v. Sanchez, 490 So.2d 249, 249 (Fla. 3d DCA 1986)(finding that the defendant established a meritorious defense by attaching an answer, with affirmative defenses, to the motion to vacate).

It is also clear that the Condo Association exercised due diligence in seeking to vacate the default and the default final judgment. “It is well-established that issues of ‘due diligence’ ... in common with all questions relating to the issue of whether defaults and default judgments should stand, must be evaluated in terms of the particular facts of the case under consideration.” Franklin v. Franklin, 573 So.2d 401, 403 (Fla. 3d DCA 1991) (citations omitted).

Here, the Condo Association responded via letter within five days of the motion for default indicating their intent to promptly defend the lawsuit. If Gables Club had any doubt about the Condo Association’s intent to defend, this letter gave them actual knowledge of such intent. Seven days after receipt of this letter, Gables Club proceeded with an ex parte hearing, obtained an order of default, and moved for entry of final judgment. This was all done on the same day and all without even a courtesy telephone call to the Condo Association. Gables Club claims that Rules 1.080(a) and 1.500(b) of the Florida Rules of Civil Procedure require service of only the motion to vacate. Gables Club relies on Picchi v. Barnett Bank of S. Fla. N.A., 521 So.2d 1090, 1091 (Fla.1988), and Mondeja v. Cuevas, 583 So.2d 1115, 1116 (Fla. 3d DCA 1991), to further support this proposition. However, in neither Picchi nor Mondeja was a substantive response to the motion for default filed or served. See Picchi, 521 So.2d at 1091; Mondeja, 583 So.2d at 1116.

A review of case law suggests that the Condo Association’s March 1st letter triggered an additional obligation on Gables Club to notify the Condo Association that it was proceeding with the default. Cinkat Transp., 596 So.2d at 747; Atl. Asphalt & Equip. Co. v. Mairena, 578 So.2d 292, 293 (Fla. 3d DCA 1991)(per curiam); Apolaro v. Falcon, 566 So.2d 815, 816-17 (Fla. 3d DCA 1990); Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. McWilliams ex rel. Estate of Meyer, 799 So.2d 378, 380 (Fla. 4th DCA 2001) (citation omitted).

On March 16, the Condo Association filed their response to the complaint without any knowledge that a default had been entered one week prior. Five days after their answer, a final judgment of default was entered. More than two weeks after the final judgment and almost three weeks after the Condo Association answered the complaint, Gables Club moved to strike the Condo Association’s answer. It was at this time that the Condo Association first received notice of the default and immediately took steps to seek vacatur. In fact, only eleven days elapsed from the time that defense counsel became aware of the entry of default and the filing of the verified emergency motion to vacate. By all accounts, the Condo Association proceeded diligently in seeking to vacate the default final judgment, and Gables Club has not alleged any prejudice by their failure to move more expeditiously than they did. See Markowski v. Attel Bank Intern., 701 So.2d 416, 418 (Fla. 3d DCA 1997)(holding that defendant acted with due diligence when he filed a motion to vacate “as soon as he became aware of the default judgment” and then filed a second motion to vacate “seven days after the first [motion] was denied”).

“ ‘[I]t is the tendency of the courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.’ ” N. Shore, 143 So.2d at 853 (citing Waterson v. Seat & Crawford, 10 Fla. 326 (Fla. 1863)). We think this especially true in a situation like the one at hand where the parties are engaged in settlement negotiations, the attorneys are communicating amicably and professionally to resolve the dispute, and both parties are aware that the defendant intends to defend the suit. Accordingly, we affirm the trial court’s vacatur of the default and default final judgment.

Affirmed.

      . Although different attorneys were involved in this case, both are affiliated with the same law firm, Isicoff, Ragatz and Koenigsberg, P.L.

      . Counsel for Gables Club also violated an affirmative ethical obligation by failing to notify the Condo Association of the scheduled hearing, and, thereby, procuring a default judgment. See Rapid Credit Corp. v. Sunset Park Ctr., Ltd., 566 So.2d 810, 812 (Fla. 3d DCA 1990)(Schwartz, C.J., specially concurring). Additionally, by separate order, and after notice to the parties, this court has assessed attorney's fees against appellant and appellant's counsel for pursuing this frivolous appeal, pursuant to section 57.105(1), Florida Statutes (2006).

      . There is no evidence in the record indicating whether the clerk of court complied with Rule 1.500(c) of the Florida Rules of Civil Procedure by notifying the Condo Association that a default had already been entered.


author: COOPER, JOHN C., Associate Judge.

text:
    NACOOCHEE CORPORATION, Assignee of Eagle Land Group, Inc., Appellant, v. Diane PICKETT, Appellee.
    No. 1D05-3675.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Rehearing Denied Feb. 8, 2007.

      Jason B. Gonzalez of Ausley & McMul-len, P.A., Tallahassee; Cary Ichter and Beth T. Baer of Balch & Bingham LLP, Atlanta, GA, for Appellant.
    Donald H. Partington of Clark, Parting-ton, Hart, Larry Bond & Stackhouse, Pensacola, for Appellee.
   COOPER, JOHN C., Associate Judge.

The plaintiff, Nacoochee Corporation (“Nacoochee”), appeals from an order granting specific performance of a contract for the purchase of real property from the defendant, F. Diane Pickett. Nacoochee contends that, under the terms of the contract, the trial court erred in calculating the purchase price of the property based on the acreage of the entire parcel, rather than reducing the price to exclude the wetlands acres. The defendant cross-appeals from the denial of her counterclaim below for breach of contract. She asserts that the trial court should not have granted specific performance of the contract, because the plaintiffs breach entitled her to terminate the agreement altogether. While we find no error in the trial court’s calculation of the purchase price, we conclude that the plaintiffs breach rendered the contract unenforceable and specific performance inappropriate. We therefore reverse the trial court’s order.

In 2002, Eagle Land Group, Inc. and Pickett entered into a written agreement for the purchase and sale of a tract of land owned by Ms. Pickett in Walton County, Florida. Eagle Land Group, Inc. subsequently assigned its rights in the agreement to Nacoochee Corporation.

The contact provided for a purchase price of $3,635,500 for 1,398.28 acres at $2,600 per acre. The purchase price was subject to adjustment if a survey disclosed “acreage of more or less than 1,398 acres.”

The contract also contained an “earnest money” provision, which required the buyer to deposit $20,000 into an escrow account with Chicago Title Insurance Company within five business days of the final signing date. It further required the buyer to deposit an additional $100,000 of earnest money into the account within five business days after final acceptance of the property, pursuant to Paragraph 7 of the contract.

Finally, the contract contained a breach provision providing that if the buyer failed to perform its obligations it would have 60 days after notice from the seller to cure its failure. If the buyer failed to timely cure, the seller would have the right to terminate the contract and receive the earnest money as full liquidated damages.

Pursuant to the contract, the buyer commissioned two surveys of the subject property. One, a boundary survey, stated the total acres to be 1,402.50 acres — 4.22 more acres than the original 1,398.28 acres stated in the contract. The second survey, a wetlands survey, showed that the property contained 776.86 acres of wetlands.

In anticipation of an agreed closing date of May 7, 2004, Nacoochee submitted closing documents to Pickett setting forth a total purchase price of $1.7 million, based on the total number of uplands acres only, rather than the original contract price of $3.6 million for the entire parcel. Despite Nacoochee’s intention to pay the contractual price per acre for only the upland acreage, it expected to receive title to the entire 1,402.50-acre tract. Pickett refused to close for the lower, uplands-only price. In response, Nacoochee offered to pay the full contractual purchase price if Pickett would accept $1.7 million, payable immediately, and accept a mortgage for $1.9 million for the remainder of the original $3.6 million purchase price. Nacoochee concedes that it never offered $3.6 million in cash at closing, as required by Section 1.3 of the contract.

Additionally, Pickett discovered in early May 2004 that the buyer had not made either of the two earnest money deposits. Under the contract, these deposits should have been made in 2002.

Shortly before the anticipated closing date of May 7, 2004, Nacoochee demanded that Pickett close the sale within 30 days for $1.7 million. On May 18, 2004, Nacoo-chee’s attorney mailed Pickett’s attorney a check from his law firm trust account for $20,000, representing the initial earnest money deposit required under the contract. Pickett’s attorney refused to accept the check. Nacoochee also paid $100,000 representing the second earnest money deposit required by the contract into a single-party escrow account at Chicago Title Insurance Company. On May 28, 2004, Pickett notified Nacoochee that the contract was terminated.

Nacoochee then brought suit against Pickett for specific performance (Count I) and breach of contract (Count II). Pickett counterclaimed for cancellation and rescission of the contract.

After a three-day non-jury trial, the trial court rejected Nacoochee’s argument that the purchase price should be reduced based on the number of wetland acres in the parcel and established the sale price as $3,646,500, based on 1402.50 acres at $2,600 per acre. Pickett’s counterclaim was denied and specific performance was awarded to Nacoochee. The trial court rejected Pickett’s argument that she was entitled to terminate the contract because Nacoochee did not timely deposit the earnest money required by the contract, attempted to pay only for uplands, and refused to close the sale for the full contract price in cash.

We review the trial court’s factual findings below under the competent substantial evidence standard and its interpretation of the contract under the de novo standard. See Clegg v. Chipola Aviation, Inc., 458 So.2d 1186, 1187 (Fla. 1st DCA 1984); USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1154 (Fla. 1st DCA 2005).

Nacoochee’s Direct Appeal

Nacoochee contends the trial court erred in calculating the purchase price for the property based on the entire acreage of the parcel, rather than only the uplands acreage. It relies on Paragraph 6 of the contract, which allowed for a survey of the property to determine the total number of acres exclusive of wetlands. Contrary to Nacoochee’s position, the trial court found that the provisions of Paragraph 6 did not provide for reducing of the purchase price based upon the number of acres in public roads, flood plains, or wetlands. We find no basis to reverse the ruling of the trial court on the direct appeal by Nacoochee.

Pickett’s Cross-Appeal

On her cross-appeal, Pickett argues that the trial court erred in rejecting her claim of cancellation and rescission, and in granting Naeoochee’s claim for specific performance. Because Nacoochee did not timely deposit the earnest money required by the contract, attempted to pay for uplands only, and refused to close the sale for the contract price in cash, Pickett contends that she was entitled to terminate the contract for breach.

The subject clauses of the contract are Paragraphs 2 (Earnest Money) and 14 (Default), which provide:

2. Earnest Money.
Purchaser shall pay to the Chicago Title Insurance Company as Escrow Agent, the sum of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) as earnest money, (“the Earnest Money”), said payment to be made within 5 business days of the Final Signing Date. In the event Purchaser has not terminated this Agreement on or before Sixty days after the Final Signing Date, $10,000 of the Earnest Money shall become non refundable for any reason except Seller non performance. After acceptance of the Property under Paragraph 7, an additional $10,000 of Earnest Money shall become non refundable except for Seller non performance. After acceptance of the Property under paragraph 7, Purchaser shall deposit $100,000 within 5 business days as Additional Earnest Money. The Earnest Money and Additional Earnest Money shall be applied as a credit to the purchaser against the Purchase Price or shall be retained or refunded as the case may be according to the terms of the Agreement.
14. Default of Parties, Liquidated Damages.
In the event Purchaser shall fail to perform its obligations of this Agreement and such failure is not cured within sixty (60) business days after notice from Seller, then Seller shall as its sole and exclusive remedy have the right to terminate this Agreement and receive the Earnest Money as full liquidated damages. The Parties hereby acknowledge the difficulty of ascertaining Seller’s actual damages -in such circumstance and agree that the forfeiture of the Earnest Money represents a good faith resolution thereof. If Seller fails or refuses to convey the Property in accordance with the terms of this Agreement or otherwise perform its obligations hereunder, and such failure or refusal is not cured within Five (5) days after Notice from Purchaser, then Purchaser shall have the right to Terminate this Agreement, receive a refund of the Earnest Money, specific performance, and any and all other rights and remedies available at law or in equity for Seller’s breach.

Pickett asserts that the trial court erred in two findings' it used to support its award of specific performance. Specifically, she challenges the court’s findings that Nacoo-chee was prepared to pay the $3,635,500 contracted purchase price, and that the notice and cure provision required Pickett to notify Nacoochee of its default by failure to make the earnest money deposits and to allow it an opportunity to cure this failure before she could terminate the agreement.

Tender of Full Purchase Price

Pickett -contends that Nacoochee breached the contract, because it never tendered the full purchase price in cash, as required by the terms of the contract. Nacoochee does not dispute that it failed to tender full cash payment. In fact, counsel for Nacoochee candidly admitted at oral argument before this Court that it never tendered the full contract price in cash. Despite this failure, however, it maintains that it was entitled to specific performance.

Paragraph 1.3 required full payment in cash, and Paragraph 16 specifically provided that “time is of the essence.” The trial court erred in finding that Nacoochee “was ready, willing and able to pay the balance of the purchase price under the terms of the agreement.” This finding implies that Nacoochee tendered payment in cash of the full purchase price, which the record does not support. See Clegg, 458 So.2d at 1187 (recognizing that trial court’s resolution of factual issues in a non-jury trial is subject to reversal if not. supported by competent evidence in the record).

Nacooehee’s failure to tender the full price in cash at the time of closing constituted a material breach of the express terms of the contract. A material breach by one party may be considered a discharge of the other party’s obligations thereunder. See . Rose Printing Co. v. Haggerty, 584 So.2d 606 (Fla. 1st DCA 1991). A party to a contract is not entitled to specific performance where that party did not perform its obligations under the clear terms of the contract. See JNC Enterp’s, Ltd. v. ICP 1, Inc., 777 So.2d 1182, 1185 (Fla. 5th DCA 2001). Therefore, Na-coochee was not entitled to specific performance, because it breached the material terms of the contract by failing to tender payment in full at the time of closing.

Notice and Cure Provision

Pickett also asserts that the trial court erred in ruling that Nacoochee’s failure to timely make the earnest money deposits was subject to the notice and cure provisions in Paragraph 14. Pickett argues that the provision does not apply to the earnest money requirements of the contract, because it was effective only if the earnest money had been deposited in the first place. She asserts that, since Paragraph 14 provides that the seller’s remedy for default was to retain the earnest money, it would be illusory to suggest that a purchaser’s failure to make those very earnest money deposits would be a breach of the contract that is subject to the notice and cure provision.

The purchaser’s obligation to timely deposit the earnest money is an essential element of the contact not subject to the notice and cure provisions of Paragraph 14. We reject Nacoochee’s argument that Pickett waived the right to complain about its failure to deposit the earnest money merely because she continued to negotiate the purchase price after learning that the earnest money had not been deposited. Nacoochee’s failure to timely meet the earnest money requirements of the contract constituted a material breach of the express terms of the contract, thereby discharging Pickett of her obligations under the contract. Because of this breach, the trial court erred in ordering specific performance.

Therefore, we reverse and remand with directions to vacate the order below and to enter judgment in favor of the defendant. Reversed.

BARFIELD and DAVIS, JJ., concur.

      . Paragraph 7 provided 120 business days from the final contract signing date for the buyer to make investigations and studies of tile property to determine if any aspect of the property was “unacceptable.”

      . Section 1.3 of the contract provides, "Said Purchase Price shall be paid as follows: All cash at closing.”