author: PER CURIAM.

text:
    Curtis Lavon DUGGAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4240.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2006.
    Rehearing Denied Oct. 12, 2006.
    Curtis Lavon Duggan, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ERVIN, POLSTON, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Herman MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-988.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Rehearing Denied Oct. 20, 2006.

      Herman Maddox, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PALMER, J.

Herman Maddox appeals the final order entered by the trial court summarily denying his motion to correct illegal sentence which was filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedures. We affirm.

In this, his fifth motion seeking postcon-viction relief, Maddox argues that his sentences are illegal. However, the motion raises the same Hale -based claim as was raised in Maddox’s previous four postcon-viction motion proceedings. Since Maddox persists in raising his Hale-based claim despite the fact that he was not given a habitual offender sentence in the instant case, we ordered him to show cause, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), “why he should not be denied further pro se access to this Court for any proceeding to further attack the conviction and sentence rendered below in Volusia County Circuit Court Case Number 82-02117-CFAES.” Maddox responded to this order by filing a meritless pleading.

Accordingly, we direct the Clerk of the Fifth District Court of Appeal to no longer accept any pro se pleadings from Maddox related to Volusia County Court Case Number 82-02117-CFAES. Any future proceedings filed in this court related to this case must be reviewed and signed by an attorney who is a duly licensed member of The Florida Bar.

AFFIRMED; Future Pro Se Filings PROHIBITED.

MONACO and LAWSON, JJ„ concur.

      . In Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), the Florida Supreme Court held that sentences for multiple crimes committed during a single incident which are enhanced by classifying a defendant as a habitual offender may not be further increased by imposing consecutive sentences.

      . See Maddox v. State, 908 So.2d 1081 (Fla. 5th DCA 2005); Maddox v. State, 892 So.2d 1055 (Fla. 5th DCA 2005); Maddox v. State, 806 So.2d 500 (Fla. 5th DCA 2002); Maddox v. State, 780 So.2d 85 (Fla. 5th DCA 2001).


text:
    Adam SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3813.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 15, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Benitez v. State, 901 So.2d 935 (Fla. 4th DCA 2005); Johnson v. Brooks, 567 So.2d 34 (Fla. 1st DCA 1990).

GUNTHER, FARMER and GROSS, JJ., concur.


text:
    David HOLMES, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-3960.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2006.
    Rehearing Denied Oct. 25, 2006.
    David Holmes, pro se, Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee; Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Gerlaugh v. Fla. Parole Comm’n, 139 So.2d 888 (Fla.1962).

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    Johnny L. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2643.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2006.
    Johnny Neal, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We consider the motion filed below by the appellant, Johnny L. Neal, as a motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, and affirm the denial of relief on the basis of Reeves v. State, 920 So.2d 724 (Fla. 5th DCA), review granted, 933 So.2d 521 (Fla.2006).

AFFIRMED.

ORFINGER, MONACO and TORPY, JJ., concur.


author: MAY, J. HAZOURI, J.,

text:
    Peter PAPOURAS, Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., a foreign profit corporation, Appellee.
    No. 4D05-3923.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Rehearing Denied Nov. 15, 2006.
    Eric S. Block of Law Offices of Eric S. Block, P.A., Jacksonville, for appellant.
    John R. Hargrove and Carol A. Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellee.
   MAY, J.

The “particularity” and specificity of a proposal for Settlement is challenged in this appeal. The plaintiff appeals an order denying his motion for attorney’s fees, pursuant to section 768.79, Florida Statutes, and Florida. Rule of Civil Procedure 1.442.He argues the court erred in finding the proposal lacked the requisite specificity to allow for an award of fees. We disagree and affirm.

The plaintiff was injured in an auto accident involving a vehicle owned by Bell-South Telecommunications, Inc., and driven by a BellSouth employee. The plaintiff alleged that BellSouth was directly liable as the owner of the vehicle under the dangerous instrumentality doctrine and vicariously liable for the negligence of the driver. The plaintiff did not include the driver in the lawsuit.

A jury found BellSouth liable and awarded damages in the amount of $769,902.48. The plaintiff then filed a motion to tax costs and attorney’s fees, pursuant to the proposal for settlement that had been rejected by BellSouth. The proposal offered to settle the case for $375,000. Paragraph 3 of the proposal set forth the following conditions:

a. Plaintiff, PETER PAPOURAS, shall execute a full release.
b. Plaintiff, PETER PAPOURAS, shall enter a voluntary dismissal with prejudice as to all claims against Defendant, BELLSOUTH TELECOMMUNICATIONS, INC., a foreign profit corporation.
c. This proposal includes all interest and costs, if any connected with this claim.

The proposal excluded attorney’s fees and there was no claim for punitive damages.

The trial court entered a final judgment against BellSouth. After a hearing, the court entered an order denying the plaintiffs motion for attorney’s fees and costs. The trial court did not articulate the basis for the denial, but the parties agree the only basis was the lack of the requisite particularity required by rule 1.442.

The question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo. See Hall v. Lexington Ins. Co., 895 So.2d 1161, 1165 (Fla. 4th DCA 2005).

Our supreme court recently defined the parameters of the “particularity” requirement of Florida Rule of Civil Procedure 1.442 and established a bright-line rule for proposals for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006).

Applying the plain meaning of rule 1.442, we agree with those courts that have treated releases as conditions for nonmonetary terms that must be described with particularity. A “condition” is traditionally defined as “a stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument.” A “term” is defined more broadly as “a contractual stipulation.” We think it clear that when an offeror insists that an offeree sign a general release, the release becomes a stipulation or prerequisite of the contract. Even if the release does not constitute the essence of the settlement proposal — and thus a condition under subdivision (c)(2)(C) of the rule — at the very least it qualifies as a nonmone-tary term under subdivision (c)(2)(D).

Nichols, 932 So.2d at 1078-79 (quoting Black’s Law Dictionary 312,1509 (8th ed.2004)). The court agreed “that a summary of the proposed release can be sufficient to satisfy rule 1.442, as long as it eliminates any reasonable ambiguity about its scope.” Id. at 1079. This requirement insures that the intended purpose of a proposal for settlement — the end of judicial labor — is fulfilled. The court then held that the language in the settlement proposal — “ ‘a full and final satisfaction and settlement of any and all of Nichols’s claims and causes of action in, or arising out of, the above-styled case’ ” — was too ambiguous. Id. In doing so, the court focused on the essential ingredient in the recipe for clarity: the proposal must articulate “which of an offeree’s outstanding claims against the offeror will be extinguished by any proposed release.” Id. at 1080.

In this case, the proposal simply provided for the plaintiff to execute a full release without further detail. A copy of the release was not attached and no summary of the terms was included in the proposal. BellSouth argues, and we agree, that this proposed release lacked sufficient detail to eliminate any reasonable ambiguity about its scope. It failed to indicate which party was required to draft the release, and more importantly failed to indicate whether BellSouth’s employee, the driver of the other vehicle, would be released in exchange for the payment.

Just as our supreme court found in Nichols, the proposal for settlement in this case was too ambiguous to satisfy Florida Rule of Civil Procedure 1.442. We therefore affirm the trial court’s order denying the plaintiff attorney’s fees, pursuant to the plaintiffs proposal for settlement.

Affirmed.

GUNTHER, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. BellSouth argues, and the majority agrees, that rule 1.442(e)(2)(C)-(D) mandates that all non-monetary terms of a proposal must be stated with particularity and that Papour-as violated this requirement of particularity by including within the proposal the willingness to execute a full release. For support for this assertion, BellSouth relies on this court’s decision in Swartsel v. Publix Super Markets, Inc., 882 So.2d 449 (Fla. 4th DCA 2004).

In Swartsel, the following provision was included in a proposal for settlement: “ ‘Publix’s Proposal for Settlement is conditioned upon Plaintiffs acceptance of same pursuant to Rule 1.442, a stipulation for an order dismissing this action with prejudice, and Plaintiffs execution of a confidential settlement agreement and general release.’ ” Id. at 452 (emphasis omitted). The proposal for settlement did not include details of the general release or attach a copy of the general release, leaving the plaintiff “to guess at what these terms and conditions might require of her.” Id. at 452-53. This Court addressed the adequacy of the proposal for settlement:

The unstated conditions of any “settlement agreement” or other terms not involving money are usually critical to an acceptance. For example, with regard to the confidential settlement agreement being proposed, it would be crucial to know what is being made confidential, who is covered by the confidentiality, whether there is any period to the confidentiality, and what the remedies are in the event of a breach. As for the proposed general release, there are no “standard” general releases; all are unique. The fact that a proposed release is described as “general” is virtually meaningless. Again, it would be essential to know what is being released, who is being released, and any conditions or terms of the release.

Id. at 453.

Our court further held that the rule requires the offeror to supply the special details of any condition or nonmonetary term by either stating all the terms or attaching a copy of the actual document to the offer. Id.

In the instant case, the proposal for settlement included a nonmonetary condition that Papouras would execute a full release and enter a voluntary dismissal with prejudice as to all claims against Bell-South. Papouras had only one claim against BellSouth. The proposal contained no ambiguities and did not lack for particularity. The term “full release,” where there is only one claim, does not need further explanation nor judicial interpretation. There was no requirement of confidentiality as in Swartsel. Add to that the fact that Papouras would execute a voluntary dismissal with prejudice as to all claims against BellSouth and the proposal is clear. All that is required of BellSouth is to pay to Papouras $375,000 and all claims against it arising out of the alleged negligence of Frazer would be settled and the case would be dismissed. It is well settled that a voluntary dismissal with prejudice is a resolution of the case on the merits and therefore is res judicata as to any and all claims Papouras could have against BellSouth arising from the automobile accident.

As additional authority for the proposition that any reference to a release in a proposal for settlement requires the offer- or to attach a copy or at least a summary of the release in order to comply with rule 1.442(c)(2)(C)-(D), BellSouth cites to the Fifth District’s opinion in Nichols v. State Farm Mutual, 851 So.2d 742 (Fla. 5th DCA 2003).

In Nichols, the insured brought a suit against State Farm to recover personal injury protection (PIP) benefits. State Farm served a proposal for settlement requiring, among other things, that Nichols execute a general release that would encompass all claims, causes of actions, etc., that had accrued through the date of the acceptance of the proposal. In addition to the PIP claim, Nichols also had an uninsured motorist (UM) claim. The Fifth District held that the proposal was invalid because the general release would cause Nichols to release his UM claim that he could not have otherwise lost in the PIP litigation. The insistence on a general release without clarifying that it applied only to the PIP claim created ambiguity. In the instant case, BellSouth has no unresolved claims that a full release would cause BellSouth to relinquish.

In Nichols, one of the issues raised was whether rule 1.442 and section 768.79 were applicable in an action by an insured to recover PIP benefits. This issue was certified to the Florida Supreme Court as a question of great public importance. The Florida Supreme Court answered the certified question in the affirmative. Additionally, the court exercised its discretionary jurisdiction to address that part of the district court’s decision that found the proposal for settlement failed to comply with the requirements of rule 1.442(e)(2)(C)-(D).

The supreme court concluded that State Farm’s settlement proposal failed to eliminate ambiguity regarding Nichols’s outstanding UM claim and thus could not support an award of attorney’s fees. In arriving at this conclusion the supreme court stated:

As a threshold matter, we must determine whether a general release qualifies as one of the “relevant conditions” or “nonmonetary terms” of a settlement proposal, which must be described with particularity under rule 1.442.
Applying the plain meaning of rale 1.442, we agree with those courts that have treated releases as conditions or nonmonetary terms that must be described with particularity. A “condition” is traditionally defined as “a stipulation or prerequisite in a contract, will, or other instrument constituting the essence of the instrument”.... We think it clear that when an offeror insists that an offeree sign a general release, the release becomes a stipulation or prerequisite of the contract. Even if the release does not constitute the essence of the settlement proposal — and thus a condition under subdivision (c)(2)(C) of the rule — at the very least qualifies it as a nonmonetary term under subdivision (c)(2)(D).

State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067,1078-79 (Fla.2006) (citation omitted). In this case, the offeror is not insisting that the offeree sign a general release but is simply offering to give Bell-South a full release.

In considering the degree of particularity that the rule requires, the court stated:

The rule intends for a proposal for judgment to be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions. Furthermore, if accepted, the proposal should be capable of execution without the need for judicial interpretation. Proposals for settlement are intended to end judicial labor, not create more.
Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002) (citation omitted). We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.

Nichols, 932 So.2d at 1079.

Papouras’s proposal was sufficiently clear and definite to allow BellSouth to make an informed decision without needing clarification. There was no ambiguity within the proposal that could have reasonably affected BellSouth’s decision to accept or reject the proposal. BellSouth’s driver was not a party to this litigation and Bell-South was not entitled to a release of its driver. In my judgment, BellSouth invents an ambiguity where none exists. Therefore, I would reverse and remand for the trial court to determine a reasonable attorney’s fee pursuant to the proposal for settlement.


author: GROSS, J.

text:
    Barbara JOSEPH, Appellant, v. Lena CHANIN, Appellee.
    No. 4D05-3515.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Rehearing Denied Nov. 14, 2006.

      Jay L. Kaufman and James A. Herb of Herb & Kaufman, P.A., Boca Raton, for appellant.
    Vanessa D. Sloat of Sachs Sax Klein, Boca Raton, for appellee.
   GROSS, J.

In this case, we hold that where a joint tenant in a bank account wrongfully transfers funds to a third party, the other joint tenant may maintain a cause of action for conversion against the third party who (1) holds the identifiable funds and (2) refuses a demand to restore the funds to the other joint tenant.

Lena Chanin lived with Meyer Joseph in his condominium from 1992' until his death in 2001. Beginning in 1992, they both made contributions to a checking account titled solely in Meyer Joseph’s name. They used this “pooled” account to pay their joint living expenses. When Chanin moved into the unit with Joseph, they each agreed to pay $1,100 a month for the shared expenses.

In 1998, Chanin became a joint owner of the pooled checking account. After Meyer’s death, Chanin discovered that their average joint expenses had been only $900 a month; she also learned that Meyer had taken money from the pooled checking account to pay personal expenses and to fund a separate savings account at Am-Trust Bank. Meyer named his daughter, Barbara Joseph, as the beneficiary of the AmTrust account. On the date of Meyer Joseph’s death, the AmTrust account held $48,720.52.

Once she realized that Meyer had taken more than his share of the pooled account, Chanin asked Barbara Joseph for the funds in the AmTrust account. At first, Barbara Joseph said that Chanin should have the funds for having taken such good care of Meyer over the years. However, once Barbara Joseph learned of the amount of money in the account, she withdrew it for her own use and refused to give- any of it to Chanin.

Chanin sued Barbara Joseph on three theories: (1) to impose a constructive trust based on unjust enrichment, (2) fraudulent conveyance, and (3)'conversion. Barbara Joseph moved to dismiss for lack of personal jurisdiction; the' trial court granted the motion as it applied to the unjust enrichment and fraudulent conveyance counts, but denied the motion as it applied to the conversion count. This court affirmed the trial court’s ruling. See Joseph v. Chanin, 869 So.2d 738 (Fla. 4th DCA 2004).

The case went to jury trial on the issue of whether Barbara Joseph converted funds in the AmTrust account. The jury found that Joseph had converted the funds and determined that Chanin had suffered damages of $48,720.52. The circuit court entered a final judgment on the jury’s verdict.

We write to address Barbara Joseph’s contention that Chanin failed to establish a cause of action for conversion - as a matter of law under Sitomer v. Orlan, 660 So.2d 1111 (Fla. 4th DCA 1995).

We hold that under the facts of this case, Chanin’s recovery on a conversion theory was proper under Florida law.

Conversion is defined as “an act of dominion wrongfully asserted over, and inconsistent with, another’s possessory rights in personal property.” Goodwin v. Alexatos, 584 So.2d 1007, 1011 (Fla. 5th DCA 1991); see also Belford Trucking Co. v. Zagar, 248 So.2d 646, 648 (Fla. 4th DCA 1970). Withdrawal of funds from a bank account may form the basis of an action for conversion “if the specific money in question can be identified.” Allen v. Gordon, 429 So.2d 369, 371 (Fla. 1st DCA 1983); see also Brand v. Old Republic Nat’l Title Ins. Co., 797 So.2d 643, 646, n. 3 (Fla. 3d DCA 2001). “Money is capable of identification where it is delivered at one time, by one act and in one mass, or where the deposit is special and the identical money is to be kept for the party making the deposit....” Belford Trucking, 243 So.2d at 648.

The pooled cheeking account was a joint tenancy with right of survivorship. In such an account, each tenant “has the right, against the other, only to his or her individual interest in the account” during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit. Nationsbank v. Coastal Utils., Inc., 814 So .2d 1227, 1229 (Fla. 4th DCA 2002). The supreme court recognized this concept in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001), when it wrote that “[i]n a joint tenancy with right of survivorship, each person has only his or her own separate share (‘per my’)[.]” Id. at 53. The shares in the joint account “[are] presumed to be equal for purposes of alienation[.]” Id.

One joint tenant may bring a conversion action against another joint tenant who wrongfully appropriates more than his share of the money from a joint tenancy account. See Hamilton v. Trapp, 392 So.2d 1001 (Fla. 4th DCA 1981); Allen, 429 So.2d at 371; Nationsbank, 814 So.2d at 1230. Placement of the money into the AmTrust account made it “capable of identification,” Belford Trucking, 243 So.2d at 648, so that Chanin could have sued Meyer Joseph or his estate for conversion from the pooled checking account.

As the beneficiary of the funds in the AmTrust account, Barbara Joseph could be held liable for conversion if she exercised dominion over the funds, knowing of Chanin’s claim. See Goodwin v. Alexatos, 584 So.2d 1007, 1011 (Fla. 5th DCA 1991) (citing Wilson Cypress Co. v. Logan, 120 Fla. 124, 162 So. 489 (1935), for the proposition that “[t]he recipient of converted property is liable to the rightful owner in an action for conversion”). Thus, Barbara Joseph became liable for conversion once she refused Chanin’s request to return the money in the AmTrust account. See Uhl v. Holbruner, 146 Fla. 133, 136, 200 So. 359 (1941) (donee liable for conversion where donor of converted bonds had “no title” to convey and donee refused demand to return them); Restatement (Second) Toets §§ 223, 229, 237 (1965). By such act, Barbara Joseph exercised dominion over the funds inconsistent with Chanin’s right to possess them.

A finding that a conversion occurred is consistent with the view that “the essence of an action for conversion is not the acquisition of property by the wrongdoer, but rather the refusal to surrender the possession of the subject personalty after demand for possession by one entitled thereto.” Murrell v. Trio Towing Serv., Inc., 294 So.2d 331, 332 (Fla. 3d DCA 1974) (citing 89 C.J.S. Trover and Conversion § 3 (1955); 18 Am.JuR.2d Conversion § 43 (1965)). The demand by the rightful owner gives “the person in possession actual notice of the rights of the person who is legally entitled to possession.” Ernie Passeos, Inc. v. O’Halloran, 855 So.2d 106, 109 (Fla. 2d DCA 2003).

Sitomer, upon which Barbara Joseph relies, is distinguishable. Sitomer did not involve the type of conversion that is at issue here. The primary holding of that case is that a joint tenant’s survivorship interest in funds withdrawn from a bank account does not continue after the funds are unilaterally withdrawn and appropriated by the other joint owner. Sitomer, 660 So.2d at 1115; see Beal Bank, 780 So.2d at 53 n. 8.

We also note the distinction between a conversion and an action to impose a constructive trust, a separate theory of recovery that might apply to a case such as this. Chanin argues that Sandler v. Jaffe, 913 So.2d 1205 (Fla. 4th DCA 2005), and Bruns v. Bruns, 682 So.2d 1159 (Fla. 4th DCA 1996), support her cause of action at law for conversion. However, both San-dler and Bruns involved the imposition of a constructive trust, an equitable remedy. See Collinson v. Miller, 903 So.2d 221, 228 (Fla. 2d DCA 2005).

The essence of Sandler and Bruns is that where one joint owner of funds has wrongfully transferred money from a joint account, the other joint owner may seek the imposition of a constructive trust over the transferred funds in the hands of a third party. A constructive trust is an equitable remedy available “in a situation where there is a wrongful taking of the property of another,” Abele v. Sawyer, 750 So.2d 70 (Fla. 4th DCA 1999) or “when a confidential relationship has been abused.” Hutson v. Brooks, 646 So.2d 276, 277 (Fla. 2d DCA 1994). “The trust is ‘constructed’ by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.” Wadlington v. Edwards, 92 So.2d 629, 631 (Fla.1957) (citation omitted). A constructive trust may be imposed against a recipient of funds who has not engaged in the wrongful conduct that justifies the imposition of the trust. See Browning v. Browning, 784 So.2d 1145, 1148 (Fla. 2d DCA 2001). The remedy is “an extraordinary one,” subject to the discretion of the court and traditional equitable defenses. Collinson, 903 So.2d at 228; see Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla. 4th DCA 1996).

The cause of action at issue in this appeal is conversion, an action at law submitted to the jury, not an equitable action seeking the imposition of a constructive trust. For this reason Sandler and Bruns do not control the result.

Based on the foregoing, we affirm the final judgment.

WARNER and KLEIN, JJ., concur.

      . We view the facts in the light most favorable to Chanin, the prevailing party in the circuit court. See, e.g., D’Amico v. Brightfelt, 924 So.2d 872 (Fla. 4th DCA 2006).

      . The case also went to trial on the issue of whether Barbara Joseph converted a certificate of deposit at World Savings Bank. The jury found that no conversion occurred and that finding is not at issue in this appeal.

      . Under Restatement (Second) Torts § 237 cmt. f, (1965), had Barbara Joseph no longer possessed the money in an identifiable account at the time Chanin made her demand, she would not have been liable for conversion, although she may have been liable under other theories of recovery. This is not a case where a person received money as a gift and spent it, unaware of any competing claim to the funds.


text:
    Sebra R. ROLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4098.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2006.
    Sebra R. Rollins, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, PADOVANO, and THOMAS,' JJ., concur.


text:
    Michael HAYES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2605.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Michael Hayes, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied. To the extent petitioner also seeks habeas corpus relief, we dismiss that claim as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Joshua MATTHEWS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3122.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Joshua Matthews, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

As the petition for writ of certiorari was not timely filed, the petition is dismissed for lack of jurisdiction. See Fla. R.App. P. 9.100(c).

WOLF, PADOVANO, and THOMAS, JJ., concur.


author: RAMIREZ, J.

text:
    Thomas FONDURA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-371.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Russell Warren Mace III, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Thomas Fondura appeals his criminal conviction and sentence. We affirm, finding no abuse of discretion or fundamental error because the court reasonably believed that defense counsel and Fondura purposefully delayed the commencement of the trial.

The State charged Fondura by information on October 22, 2004 with robbery with aggravated battery, false imprisonment, burglary of a dwelling with an assault or battery, and grand theft of a motor vehicle. On March 24, 2004, while awaiting trial, Fondura filed a request for a Nelson hearing and moved to discharge his counsel. The court determined that counsel was effective and denied the motion. Fon-dura then filed a Florida Bar complaint against his attorney. Counsel responded by filing a certification of conflict of interest. The court denied these attempts to appoint new counsel. Fondura then left threatening messages on counsel’s answering machine. Counsel subsequently asked the court for a continuance so a more experienced lawyer could help with the trial. The court denied this motion and set a court date.

The trial began two and a half years after Fondura’s arrest. At his competency hearing, Fondura was disruptive and uncooperative. The doctor found him competent. Upon announcement of his competency, Fondura pulled out a razorblade and attempted to cut himself. After his removal from the courtroom and transportation back to jail, a second doctor evaluated him and found him competent. Defense counsel again tried to withdraw from the case for fear of his personal safety. The court denied this motion and became upset with counsel for delaying the trial so extensively. Subsequently, defense counsel filed a motion to disqualify the judge based on the comments made when denying his motion to withdraw. The court denied the motion to disqualify as being legally insufficient. Defense counsel renewed all previous motions, but the court denied them again.

At trial, by defense counsel’s motion, the court confined Fondura to a wheelchair with handcuffs and leg shackles as a safety precaution. Fondura made it clear he did not want to appear in court and that he would be disruptive if present at trial. The State called a DNA expert to testify as to the identity of Fondura. He was brought to court for identification, but immediately became disruptive and commented to the jurors that he did not ask for nor approve of his attorney. The court thereafter removed Fondura from the courtroom. The State presented its case against Fondura, which included a confession, DNA evidence, and the victim’s testimony. The jury returned a guilty verdict and Fondura received a life sentence.

We disagree with Fondura’s claim that the court abused its discretion when it denied counsel’s motion to withdraw. Counsel attempted to withdraw from the case on the eve of trial, when two and a half years had passed since the time of Fondura’s arrest, the victim/witness was 81 years old, and Fondura’s actions cumulatively showed a strong desire to avoid the trial. A trial court’s main objective is to sustain the orderly administration of justice. See Sanborn v. State, 474 So.2d 309, 314 (Fla. 3d DCA 1985). In Wilson v. State, 753 So.2d 683 (Fla. 3d DCA 2000), this Court stated that “[a]s long as the trial court has a reasonable basis for believing that the attorney-client relation has not deteriorated to a point where counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in denying a motion to withdraw.” Id. at 688. The court here determined that counsel was effective. In addition, there was no hint that a change in counsel would actually change Fondura’s behavior. See Weems v. State, 645 So.2d 1098, 1099 (Fla. 4th DCA 1994). Had the court permitted counsel to withdraw, this would have further delayed the trial and a change of counsel may have had no effect on Fondura’s behavior.

We also find that the court did not abuse its discretion when it denied counsel’s motion to disqualify. The motion was legally insufficient. The standard for determining whether a motion is legally sufficient is whether “the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990). Fondura did not allege that he had any legitimate fear of prejudice or bias, rather his motion seemed another attempt to delay the commencement of the trial. The court denied counsel’s motion to withdraw and expressed frustration in its reasoning, stating this is not enough to create a “legitimate fear.” After counsel made his additional motion to withdraw, the judge voiced her frustration in counsel “trying to shirk [his] responsibility.” The court denied counsel’s remaining motions and set the court date. These comments are not sufficiently prejudicial to place a reasonably prudent person in fear of not receiving a fair and impartial trial.

The motion was also proeedurally deficient. The initial written motion did not include the requisite certificate of good faith signed by Fondura’s counsel pursuant to Florida Rule of Judicial Administration 2.160(c). Counsel also orally presented the second motion to disqualify, and this is legally insufficient and contrary the requirements set forth in Florida Rules of Judicial Administration 2.160(c)(1).

Additionally, the court did not commit fundamental error when it restrained Fondura in a wheelchair. Fondu-ra, through his disruptive behavior, created the bias himself and he therefore should not benefit. The invited-error doctrine states that a party may not make an error at trial and subsequently take advantage of this error on appeal. See Bryan v. Bryan, 930 So.2d 693, 696 (Fla. 3d DCA 2006). Fondura was immobilized in a wheelchair because of his disruptive and potentially dangerous behavior. His continued outbursts and antics are the cause of the bias, not his short presence at the court in a wheelchair. As stated by the Florida Supreme Court, “[w]hatever prejudice defendant suffered resulted from his own willful attempt to disrupt, indeed stop, the orderly proceedings of the court.” See Jones v. State, 449 So.2d 253, 261 (Fla.1984).

We likewise find no abuse of discretion when the court appointed only one physician to evaluate Fondura at his competency hearing. Although initially one doctor evaluated Fondura, a second physician later evaluated him and found him competent. The Florida Supreme Court has held that failure to appoint a second expert to examine the defendant’s mental competency to stand trial is not fundamental error. See D’Oleo-Valdez v. State, 531 So.2d 1347 (Fla.1988). Upon announcement of his competency, Fondura pulled out a razorblade and attempted to cut himself. A second doctor reevaluated and found him competent. The trial court must consider all evidence relative to competence and its decision will stand absent a showing of abuse of discretion. See Carter v. State, 576 So.2d 1291, 1292 (Fla.1989). The competency hearing is procedural in nature and does not go to the foundation of the case or its merits. Furthermore, there is no constitutional right for two evaluations. See D’Oleo-Valdez, 531 So.2d at 1348.

We thus conclude that Fondura attempted to delay his trial or cause a mistrial, and the court properly denied the motions. The court not only acted well within its discretion, but it demonstrated an abundance of patience in light of Fondura’s disruptive, uncooperative, potentially dangerous, and outrageous antics.

Affirmed.


author: SHEPHERD, J.

text:
    PALAFRUGELL HOLDINGS, INC., etc., Appellant, v. Marwin S. CASSEL, etc., et al., Appellees.
    No. 3D03-3140.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Arthur J. Morburger; Stephen M. Zu-koff, Miami, for appellant.
    Kluger, Peretz, Kaplan & Berlin, P.L., and Todd A. Levine and Abbey L. Kaplan, Miami, for appellees.
    Before GREEN, WELLS and SHEPHERD, JJ.
   SHEPHERD, J.

This is the second appearance of this case before this court. In Palafrugell Holdings, Inc. v. Cassel, 825 So.2d 937 (Fla. 3d DCA 2001)(Palafrugell I), we reversed a dismissal and final summary judgment in favor of appellees Marwin Cassel, Esq., Marwin Cassel, P.A. and the law firm of Broad and Cassel in an action brought by Palafrugell against them for legal malpractice, negligent bailment, and breach of fiduciary duty arising out of alleged negligent disbursement of trust funds held for the benefit of Palafrugell. In so doing, we wrote that our reversal was “without prejudice to the filing of a new motion for summary judgment on the issue of apparent authority.” Id. at 940. Appellees seized upon the suggestion and filed a second motion for summary judgment on this basis, which was granted by the trial court. Upon further de novo review, see Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000), we again reverse.

Factual and Procedural History

As more fully set forth in Palafrugell I, this case arises out of the representation by Marwin Cassel of Palafrugell Holdings, Inc. in the purchase of a 50 interest in a mortgage held by AAX, Inc. Five Mexican investors, secured by long-time Cassel client, Rodolfo Hernandez, wired funds totaling $350,000 to Cassel’s law firm trust account “by order of Palafrugell Holdings, Inc.” to consummate the purchase. Hernandez was neither an officer nor director of Palafrugell, but claimed to be a 61.1 shareholder of the corporation. Hernandez’s duties included retaining Cassel and arranging the mortgage purchase. The investors were aware of Cassel’s retention. Unbeknownst to them, however, Cassel followed a direction of Hernandez that the assignment of mortgage be prepared in Hernandez’s name, and disbursed the funds without obtaining the approval of a Palafrugell officer or confirming that Hernandez was authorized to use the money for his own personal benefit.

Discussion

The trial court found that Hernandez had “at least apparent, if not actual authority” to instruct Cassel as “to the manner in which the mortgage transaction and disbursement of the $350,000” should be handled. The Florida Supreme Court has said that “[t]he acts of an agent, performed within the scope of his real or apparent authority, are binding upon his principal.” Indus. Ins. Co. v. First Nat’l Bank, 57 So.2d 23, 26 (Fla.1952) (internal quotations omitted). However, that principle of law is qualified by the added principle that under some circumstances a party seeking to rely upon the representations of an agent may have a duty to inquire further. Id. (“The public have a right to rely upon an agent’s apparent authority, and are not bound to inquire as to his special power, unless the circumstances are such as to put them upon inquiry.”). Such a duty can arise in cases where, as here, Cassel relied upon an order from an intermediary to perform acts facially contrary to interests of his client.

It is beyond dispute in this case that Hernandez and the other investors agreed that Cassel would handle this transaction as corporate counsel for Palafrugell. In these circumstances, Cassel’s duty of fidelity and loyalty was owed directly to Palaf-rugell. R. Regulating Fla. Bar 4-1.13; see also Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148, 150 (Fla. 5th DCA 2005) (“The Comments to the rule provides that when a lawyer represents an organization, the entity is the client, not the constituents of the organization.”). It is also unrebutted on the record that when Palafrugell approved Hernandez as its agent to consummate the transaction, it did not authorize Hernandez to self-deal. Nevertheless, Cassel claims here that Hernandez was possessed of the apparent authority to order the escrow monies to be disbursed as they were, including one disbursement to Hernandez himself, and to direct the mortgage interest to be conveyed to him in his name alone. Cassel places primary reliance for this position on the allegedly extraordinary degree of obsequiousness displayed by the Mexican investors in reposing their confidence in Hernandez to consummate the transaction, coupled with beliefs held by Cassel based upon his past dealings with Hernandez. See Restatement (Third) of Agency § 2.03, Comment d. (2006)(“Apparent authority is based upon a third party’s understanding of signals of all sorts concerning the actor with whom the third party interacts” including the “type of transaction,” “industry customs,” “reasonable expectations based upon analogous circumstances,” and “other relevant circumstances.”)

We take no position of the merits of Cassel’s argument. We note only that in concluding that Hernandez was possessed of apparent authority to direct the transaction as he did, the trial court failed to consider whether Hernandez’s actions should have created a reasonable doubt in the mind of Cassel and caused him to inquire further of his client about the extent of the agent’s authority. The record indicates that Palafrugell plainly raised this counter-argument to Gassel’s position in its own motion for summary judgment which was pending at the time the order on appeal was entered. Upon de novo review, we are unable to conclude “that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law.” See Fla. R. Civ. P. 1.510(c); Hawkins v. Townsend, 100 So.2d 89, 90 (Fla. 1st DCA 1958). For this reason, we reverse and remand the judgment rendered in favor appellees below.

Reversed.

      . We note that there exists in the record a suggestion of death of Marwin Cassel as having occurred on October 2, 1999 followed by a motion to dismiss this case as to him on the procedural ground that a motion for substitution of parties was not timely filed pursuant to Fla. R. Civ. P. 1.260(a). This motion apparently remains pending below.

      . The mortgage assignment is dated September 13, 1994. The disbursements out of the account were as follows:
      August 24, 1994, check to Secretary of State 225.00
      August 31, 1994, check to Palafrugell Holdings, Inc. 6,400.00
      August 31, 1994, Rodolfo Hernandez to repay advances 43,375.00
      September 2, 1994, Secretary of State to reinstate AAX, Inc. 775.00
      September 12,1994, AAX, Inc. 25,000.00
      September 12, 1994, Angel Aixala, AAX, Inc. President 274,225.00


text:
    Samir G. ELIAS a/k/a Charles Geryeshelias Blanc, Appellant, v. Lisa STEELE, M.D., Appellee.
    No. 3D06-416.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.
    Samir G. Elias, a/k/a Charles Geryeshe-lias Blanc, in proper person.
    Murray A. Greenberg, Miami-Dade County Attorney, and Jason Bloch and Bruce Libhaber, Assistant County Attorneys, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

The appellant, Samir G. Elias (“Elias”), appeals from an Order denying his motion to vacate a permanent injunction entered against him. We affirm as we find that Elias failed to establish a substantial change to support vacating the injunction.

FACTS

A permanent injunction was entered against Elias in 2002, following appellee’s Petition for Injunction. At the time of the petition and entry of the injunction, appel-lee was a fellow at the Medical Examiner’s Office, and performed the autopsy on Elias’s father. Appellee’s report concluded that Elias’s father died of natural causes, i.e., cancer of the urinary bladder. After receiving the report, Elias disagreed with the cause of death, and insisted that his father was the victim of a murder conspiracy involving the FBI, the police, the hospital, and the White House, among others, and accused the appellee of tampering with the body and the evidence. Appellee filed the Petition for Injunction against Elias, alleging that Elias harassed and threatened her, on one occasion telling her that he would kill whomever was involved in his father’s murder. After an evidentia-ry hearing, a permanent injunction was entered against Elias, which prohibited him from, among other things, carrying a gun.

Elias timely appealed the injunction, which was affirmed by this Court in Elias v. Steele, 831 So.2d 211 (Fla. 3d DCA 2002), because a transcript of the hearing was not available. In December of 2005, Elias filed a motion requesting rehearing.

At the evidentiary hearing, Elias presented the testimonies of Lieutenant Schil-laci, Dr. Bruce Hyma, the Medical Examiner, and Ada Borras and Veronica Lamar, both of whom worked at the Medical Examiner’s office. Elias’s intent in calling these witnesses was to refute the allegations of appellee’s complaint and establish what transpired at a meeting with the Medical Examiner’s Office that took place prior to the entry of the injunction.

Lieutenant Schillaci testified that Elias became unruly following the meeting, and was escorted out of the Medical Examiner’s building by the Lieutenant. On cross, Lieutenant Schillaci testified that he became concerned for everyone in the meeting because of the way Elias was acting. Additionally, Lieutenant Schillaci testified that he advised appellee to file an injunction against Elias. The Lieutenant explained that Elias made several harassing phone calls to appellee following the meeting, and that he was concerned enough about Elias’s visits to the Medical Examiner’s Office that he had posted a picture of Elias, with instructions that the police be called if he presented himself to the office.

Dr. Bruce Hyma testified on cross that the meeting was called between Elias and the Medical Examiner’s Office in order to answer his questions. Law enforcement was also present because Elias was demanding answers that were not within the Medical Examiner’s knowledge and were instead within the realm of law enforcement. Dr. Hyma indicated that the meeting was not successful because Elias “became quickly very irrational and was not willing to listen to information that we were trying to provide him in terms of the verbal, the written reports, and also photographs.” Dr. Hyma testified that after the meeting appellee advised him that Elias was threatening her and that she was afraid for her life. Dr. Hyma testified that the appellee was “frightened.” At that time, Dr. Hyma instructed appellee to contact the police and instructed the building manager to post pictures of Elias so that his presence in the building would be reported to the police. Dr. Hyma also testified that he currently has a fear for the safety of his staff with respect to Elias.

Both Ada Borras and Veronica Lamar testified that Elias had been to the Medical Examiner’s Office on several occasions and that they never saw him speaking or having contact with the appellee; Borras also testified that while the appellee was on the third floor, she worked on the second floor.

After Elias presented his witnesses, and made a closing statement, appellee’s counsel argued that Elias merely reargued the merits of the case, and failed to establish or show any substantial change to support vacating the injunction.

The trial court agreed with appellee, finding that Elias did not prove any substantial change, and in fact, re-affirmed the testimony and evidence heard at the hearing on the injunction, and denied his motion.

ANALYSIS

An individual seeking to modify or dissolve an injunction must establish that the circumstances justifying the injunction have changed so that the terms of the injunction are no longer equitable. See Simonik v. Patterson, 752 So.2d 692 (Fla. 3d DCA 2000); Hale v. Miracle Enterprises Corp., 517 So.2d 102 (Fla. 3d DCA 1987). To this end, trial courts have broad discretion in dissolving or modifying injunctions, and unless a clear abuse of discretion is established, appellate courts will not disturb the trial court’s decision. Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995); Simonik, 752 So.2d at 692-93.

In the instant case, the trial court granted Elias an opportunity to present evidence and testimony at an evidentiary hearing. The record reflects that Elias presented testimony of several witnesses who were present at a meeting involving Elias, the Medical Examiner’s Office and law enforcement. This testimony as the trial court noted, and as more fully set forth in the facts of this opinion, reaffirmed the basis for the injunction.

Based on a review of the record before us, we find no abuse of discretion in the trial court’s denial of Elias’s Motion for Rehearing, which the trial court properly treated as a Motion to Vacate. Elias failed to present any evidence that the circumstances of the parties had changed since the entry of the permanent injunction. Accordingly, we affirm the trial court’s order.

Affirmed.

      . Although Elias’s motion was phrased as a Motion for Rehearing, we find that the trial court properly treated it as a Motion to Vacate.


text:
    Delvin R. McCUTCHEON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3564.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Delvin R. McCutcheon, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    Isac Quincy BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3233.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Isac Quincy Brown, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of Brown’s rule 3.800(a) motion to correct illegal sentence, wherein he seeks retroactive application of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). As we did in Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005), we certify conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), to the extent that the court applied Blakely retroactively.

GUNTHER, POLEN and TAYLOR, JJ., concur.


text:
    Jermaine ATTERBURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2845.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Jermaine Atterbury, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Jermaine Atterbury, appeals the circuit court’s denial of his rule 3.800(a) motion to correct illegal sentence. Appellant argues that his habitual offender sentence was illegally imposed as one of the two prior convictions used to impose the sentence was reversed on appeal. In lower court case 96-10178, appellant was convicted and sentenced to two years probation. The circuit court later revoked appellant’s probation and imposed a term of incarceration. This court reversed the revocation of probation on appeal. Atterbury v. State, 740 So.2d 600 (Fla. 4th DCA 1999). On remand the lower court vacated the revocation of probation and terminated probation.

We affirm the denial of appellant’s rule 3.800(a) motion as the conviction in case 96-10178 was not vacated. Appellant’s prior convictions satisfy the sequential conviction requirement of the habitual offender statute. § 775.084(5), Fla. Stat. (2004). However, affirmance is without prejudice for appellant to raise, in another rule 3.800(a) motion, the issue of whether his probationary term ended within five years of committing the new offenses pursuant to section 775.084(l)(a)2.b., Florida Statutes.

WARNER, FARMER and HAZOURI, JJ., concur.


text:
    Gloria GREEN, Appellant, v. PALM AUTO PLAZA, INC., d/b/a Palm Beach Toyota, Appellee.
    No. 4D05-4016.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 14, 2006.
    Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellant.
    G. Jeffrey Vernis and Karen M. Nissen of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See King v. King Motor Co. of Fort Lauderdale, Inc., 900 So.2d 619 (Fla. 4th DCA 2005).

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    David BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-424.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 16, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006).

GUNTHER, KLEIN and MAY, JJ., concur.


author: EVANDER, J.

text:
    Jason POMPOSELLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-955.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.

      Jason J. Pomposello, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
   EVANDER, J.

Appellant was convicted, after trial, of two counts of lewd and lascivious battery on a child. Prior to trial, he pled guilty to one count of resisting arrest without violence. He was sentenced as a habitual felony offender to 30 years in the Department of Corrections on Count I, fifteen years on Count II (sentences to run consecutively) and time served on the misdemeanor count. His convictions were affirmed on appeal. Pomposello v. State, 876 So.2d 575 (Fla. 5th DCA 2004).

Appellant subsequently filed an amended motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief, alleging ineffective assistance of trial counsel. The motion, which raised six grounds, was summarily denied by the trial court. This appeal followed.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s acts or omissions were outside the broad range of reasonably competent performance and that counsel’s deficient performance so affected the proceeding that confidence in the outcome is undermined. See Johnson v. State, 903 So.2d 888, 894 (Fla.2005); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant is entitled to an evidentiary hearing on his claim unless the motions, files, and record conclusively establish that the defendant is not entitled to relief or the claim is legally insufficient. See Wainwright v. State, 896 So.2d 695, 698 (Fla.2004).

We affirm, without discussion, the trial court’s summary denial as to the first, fourth, and sixth claims raised by appellant. However, as to the second, third, and fifth claims, we reverse for the trial court to either attach portions of the record conclusively refuting appellant’s claims or, in the alternative, to hold an evidentia-ry hearing.

The gist of appellant’s second claim is that defense counsel was ineffective for informing the jury during opening statement that appellant had been released from prison shortly before the alleged offenses. The gist of appellant’s third claim is that defense counsel, on direct examination of appellant, inquired of appellant as to both the number and the nature of his prior felony convictions. Significantly, in his amended 3.850 motion, appellant alleges that prior to trial he told his counsel he did not intend to testify. He further alleged that his subsequent decision to testify was necessitated by his counsel having advised the jury in opening statement of his prior incarceration.

The trial court’s summary denial of appellant’s second and third claims was based on a finding that trial counsel’s actions were the result of tactical decisions, not ineffectiveness. The order does not contain any explanation nor attachments from the record to support this conclusion.

Generally, an evidentiary hearing is required before a court can determine that counsel’s seemingly deficient performance was the result of a strategic choice. James v. State, 881 So.2d 85 (Fla. 5th DCA 2004). An exception to this general rule occurs when the reasonableness of counsel’s strategy is obvious from the record. State v. Williams, 797 So.2d 1235, 1239 (Fla.2001), citing McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.1984). We cannot conclude from the limited record before us that such exception is applicable in this case.

In his fifth claim, appellant alleges he would not have pled guilty to the resisting arrest without violence charge but for trial counsel’s incorrect assertion that a plea of guilty to such charge would prevent the introduction of evidence that appellant had attempted to flee law enforcement after having been advised that he was under arrest for lewd and lascivious battery on a child. The trial court similarly concluded that appellant’s plea was the result of his counsel’s tactical decision. Again, it was error for the trial court to summarily deny this claim without either attaching the portions of the record conclusively refuting appellant’s colorable claim of ineffective assistance or, alternatively, holding an evi-dentiary hearing.

AFFIRMED in part, REVERSED in part; REMANDED.

SAWAYA and MONACO, JJ., concur.


text:
    Timothy H. BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4501.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence for one count of driving with license suspended causing serious bodily injury or death and for one count of leaving the scene of an accident with injuries. However, we find that appellant’s conviction for leaving the scene of an accident involving property damage must be vacated. Turner v. State, 901 So.2d 233 (Fla. 5th DCA 2005); Hardy v. State, 705 So.2d 979 (Fla. 4th DCA 1998); Hoag v. State, 511 So.2d 401 (Fla. 5th DCA 1987).

AFFIRMED, in part; REVERSED, in part; Judgment and Sentence VACATED as to the Offense of Leaving the Scene of an Accident Involving Property Damage.

PLEUS, C.J., MONACO and EVANDER, JJ., concur.


text:
    Joe N. McCULLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2709.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.

      Ronald E. Fox, Umatilla, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The appellant, Joe N. McCullough, appeals the summary denial of his rule 3.850 motion for post-conviction relief. We affirm.

Mr. McCullough was convicted by a jury of five counts of sexual battery on a child by a person in familial or custodial authority and three counts of lewd and lascivious assault on a child under the age of sixteen. On plenary appeal Mr. McCullough’s convictions and sentences were affirmed per curiam without opinion. See McCullough v. State, 826 So.2d 414 (Fla. 5th DCA 2002). The appellant then filed his initial motion for post-conviction relief, a motion to add additional grounds, and finally an addendum to motion ultimately asserting thirty-six claims of inadequacy of trial counsel and sentencing errors.

The trial court’s order denying relief carefully considered and rejected each of the claims. The trial court attached portions of the record refuting such of those claims that alleged a facially sufficient claim. As Mr. McCullough has failed to demonstrate that the trial court erred in summarily denying his rule 3.850 motion and its amendment and supplement, we affirm.

AFFIRMED.

PLEUS, C.J., PALMER and MONACO, JJ., concur.


author: THOMPSON, J.

text:
    Paul A. GUGELMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3418.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.
    Paul A. Gugelman, Lecanto, pro se.
    No Appearance for Respondent.
   THOMPSON, J.

Paul A. Gugelman seeks a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). In his petition, Gugel-man wishes to appeal the judgment and sentence imposed on him pursuant to his no contest plea on the basis that his plea was involuntary in light of his trial counsel’s conduct. However, nowhere in the instant petition does Gugelman allege that he timely requested his trial counsel to appeal and trial counsel failed to do so as required by rule 9.141(c)(3)(F). See Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005).

Additionally, the petition was not sworn to as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F). Therefore, we deny the petition because it is facially insufficient. See Abbot v. State, 929 So.2d 723, 723 (Fla. 5th DCA 2006); Cosby v. State, 911 So.2d 275, 275 (Fla. 5th DCA 2005). The denial is without prejudice to Gugelman to file a facially sufficient sworn petition.

Petition for Belated Appeal DENIED.

PLEUS, C.J., and ORFINGER, J., concur.


author: SILBERMAN, Judge.

text:
    Bobby L. COATES, an individual, Deborah R. Coates, an individual, Bredel Corporation, a Florida corporation, Bredel Management Company, Inc., a Florida corporation, and Trust Under Deferred Compensation Plan, a Florida grantor trust, Petitioners, v. AKERMAN, SENTERFITT & EIDSON, P.A., a Florida professional service corporation, Temple Drummond, an individual, Joseph Rugg, an individual, IFL Capital Group, Inc., an Arizona corporation, and Lex J. Byers, an individual, Respondents.
    No. 2D05-4688.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.

      Robert C. Widman of Morris & Widman, P.A., Venice, for Petitioners.
    Benjamin H. Hill, III, Dennis P. Wag-goner, and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Respondents Akerman, Senterfitt & Eidson, P.A. and Joseph Rugg.
    David M. Caldevilla and Ronald A. Christaldi of de la Parte & Gilbert, P.A., Tampa, for Respondent Temple Drum-mond.
    No appearance for Respondents IFL Capital Group, Inc. and Lex J. Byers.
   SILBERMAN, Judge.

In the trial court, Petitioners Bobby L. Coates and Deborah R. Coates (jointly referred to as Coates), Bredel Corporation (Bredel), Bredel Management Company, Inc. (BMC), and Trust Under Deferred Compensation Plan asserted the attorney-client privilege as to certain documents that Respondents Akerman, Senterfitt & Eidson, P.A., and Joseph Rugg (jointly referred to as the lawyers) requested during discovery. In response, the lawyers filed motions to compel production of the documents. The trial court entered an order granting the motions to compel, finding that the documents were discoverable pursuant to the “at issue” doctrine. Petitioners (jointly referred to as the clients) seek certiorari review of the trial court’s nonfinal order.

Certiorari review “is appropriate in cases that allow discovery of privileged information. This is because once privileged information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal.” Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005) (citations omitted); see also Robichaud v. Kennedy, 711 So.2d 186, 187 (Fla. 2d DCA 1998) (“Certiorari is the appropriate avenue to challenge a trial court order directing the disclosure of communications presumptively covered by the attorney-client privilege.”). When an order directs disclosure of information that is allegedly privileged, “[t]he next question is whether the order departs from the essential requirements of law.” See Estate of Stephens, 911 So.2d at 279. We conclude that the trial court departed from the essential requirements of law in ordering production of the disputed documents. Accordingly, we grant the petition and quash the order granting discovery.

THE UNDERLYING LITIGATION

In the underlying litigation, the clients sued the lawyers and others in connection with a “proprietary tax savings plan” and the establishment of a joint venture. According to the complaint, Coates and Bre-del retained the Akerman law firm in 1999 “to provide ongoing legal services relating to various personal and business matters,” including business,- tax, and estate planning matters. The complaint alleged that Mr. Rugg was the lawyer with the Aker-man firm responsible for representing Coates and Bredel.

In June 2001, Mr. Rugg introduced Coates to Temple Drummond, another lawyer with the Akerman firm, to discuss business, tax, and estate planning issues. Mr. Rugg and Mr. Drummond allegedly represented that “a) Drummond had expertise in the areas of business, tax, and estate planning; b) Drummond would recommend conservative business, tax and estate planning options to Coates; and c) Rugg would supervise Drummond’s representation of Coates and Bredel in these matters.”

The clients alleged that in September 2001, Mr. Drummond introduced Coates to Lex J. Byers, who proposed a “confidential and proprietary tax savings plan” that would eliminate the clients’ tax liability. Mr. Drummond and Mr. Byers also proposed a joint business venture that involved offering the plan to medical doctors. The clients alleged that they invested in the plan and joint venture in reliance on the “purported expertise and representations of Drummond and Byers.”

The clients asserted various claims, including a claim for legal malpractice against the Akerman firm, Mr. Drum-mond, and Mr. Rugg with respect to their legal advice concerning the plan and joint venture. The lawyers admitted that Coates and Bredel retained the Akerman firm to provide “certain legal services for certain matters,” but they denied that the Akerman firm entered into any agreement for legal services relating to the matters alleged in the complaint. They denied any negligence and raised various affirmative defenses. They also alleged that the clients’ own actions or the actions of others caused the clients’ damages.

Documents in the record reflect that during the period in which the clients were considering the plan and joint venture, other professionals represented them in various capacities. These included, among others, Jennifer Myers, in-house counsel for Bredel; the Kalish & Ward law firm and Roger Rovell of that firm; the accounting firm of Gregory, Sharer, and Stuart and Byron Smith of that firm; and attorney Brian Smooke.

The lawyers filed a third-party complaint and alleged several claims for contribution, including a claim against the accounting firm and a claim against Smooke & Drummond, P.C., Smooke & Associates, P.C., and Brian G. Smooke. The third-party complaint alleged that the third-party defendants negligently provided advice and information to the clients regarding the plan and joint venture that caused or contributed to any damages suffered by the clients. The lawyers did not file third-party claims against Ms. Myers, Mr. Ro-vell, or the Kalish & Ward firm.

THE DISCOVERY DISPUTE

During the litigation, the clients affirmatively waived their accountant-client privilege relating to communications with the accounting firm, and Mr. Smith testified to communications he had with Mr. Coates concerning the plan. Further, the record contains a memorandum from attorney Smooke to Mr. Coates dated June 14, 2002, which enumerates “some of the many tax deficiencies of the structure that was marketed to” Coates. The memorandum states that “the Department of Labor and the IRS possess an ample arsenal with which to attack the structure as well as the Transaction.” Mr. Smooke copied the memorandum to Mr. Smith and to “Charles Stewart,” who was also with the accounting firm, and the memorandum was eventually shared with the Kalish & Ward law firm and the Akerman firm.

During discovery, the lawyers sought production of documents, “relating to any advice (legal or otherwise) that [the clients] received from individuals or entities other than [the lawyers] concerning the Plan and/or the ELC Joint Venture.” The clients produced some documents and asserted the attorney-client privilege as to others. Ultimately, the lawyers filed a motion to compel and a supplemental motion to compel production of the disputed documents, including attorney notes authored by Ms. Myers; “attorney notes” authored by Ms. Vestinos, a paralegal who at some point worked under Ms. Myers; and documents attributable to the Kalish & Ward firm or Mr. Rovell.

In support of their motions to compel, the lawyers argued that the clients “put at issue the advice [the clients] received from any other professionals with respect to the Plan and/or the ELC Joint Venture. Furthermore, the application of [the clients’] asserted privileges would deny [the lawyers] ' access to information vital to their defense — particularly their defense as to causation.” The lawyers argued that the clients waived the attorney-client privilege as to these communications under the “at issue” doctrine and the “selective disclosure” doctrine.

Following a hearing, the trial court entered an order granting the motions to compel pursuant to the “at issue” doctrine. The court stated that “[w]here attorney-client communications are central to the matters at issue in the litigation, as they are in this case, policy weighs in favor of disclosure of such communications rather than secrecy.”

The clients challenge the trial court’s order, while the lawyers maintain that the trial court properly granted discovery of the disputed documents under the “at issue” doctrine or, alternatively, under the “selective disclosure” doctrine. Based on the status of the case as presented to us, we conclude that neither doctrine supports the order compelling discovery.

THE “AT ISSUE” DOCTRINE

“[W]aiver of the attorney-client and work-product privileges is not favored in Florida.” TIG Ins. Corp. of Am. v. Johnson, 799 So.2d 339, 341 (Fla. 4th DCA 2001). However, all personal privileges may be waived by the client. Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957). In Savino, the Florida Supreme Court articulated the “at issue” doctrine as follows: “[W]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged.” Id. (emphasis added).

A party does not waive the attorney-client privilege merely by bringing or defending a lawsuit. See, e.g., Lee v. Progressive Express Ins. Co., 909 So.2d 475, 477 (Fla. 4th DCA 2005); Long v. Murphy, 663 So.2d 1370, 1372 (Fla. 5th DCA 1995); Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983). Instead, waiver occurs when a party “raises a claim that will necessarily require proof by way of a privileged communication.” Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2d DCA 2003); see also Lee, 909 So.2d at 477 (“[I]f proof of the claim would require evidence of the privileged matter, the privileged matter is discoverable.”).

Here, the clients’ claims against the lawyers are based upon the legal advice the lawyers allegedly gave to the clients concerning the plan and joint venture. Thus, the clients waived the attorney-client privilege with respect to their communications with the lawyers in connection with the plan and joint venture. The clients must necessarily present evidence of these communications at trial to prove their claims.

On the other hand, the clients have not placed at issue their communications with other professionals about the plan and joint venture simply by suing the lawyers. Rather, the lawyers, by asserting a defense based upon the clients’ alleged communications with others, have sought to place such communications at issue. The lawyers have not shown that the clients must necessarily offer the disputed documents at trial to prove their claims. Instead, the lawyers seek the documents in the hope that they will contain information helpful to the lawyers’ defense or third-party claims.

The lawyers cannot, by their assertion of a comparative fault defense, create a waiver of the clients’ attorney-client privilege with respect to the clients’ other counsel. See Lee, 909 So.2d at 477. In Lee, the plaintiff filed a bad faith claim against an insurer for its failure to settle the injury claim that he had brought in a prior lawsuit. The insurer argued that by bringing the bad faith claim, the plaintiff injected his settlement communications with his attorney into the litigation and waived any privilege. The insurer also argued that it needed the information to show that it might have been unable to settle the injury-claim. Id. at 476-77.

The court rejected these arguments, noting that generally, the attorney-client privilege is not waived merely by the filing or defending of a lawsuit. The court determined that the insurer, not the plaintiff, had injected the issue of whether the plaintiff had authorized his personal injury attorney to settle the case and, therefore, that the insurer had the burden to prove the plaintiffs unwillingness to settle. Because the plaintiff had not waived the privilege, the court quashed the trial court’s order that allowed discovery of attorney-client communications. Id. at 477.

The possibility that the disputed documents may be relevant to or may assist the lawyers in their defense or in their third-party claims, or may perhaps assist in the lawyers’ efforts to impeach the clients, does not create a waiver of the privilege. See Jenney, 846 So.2d at 668 (“[A]ttorney-client privilege is not waived simply because the credibility of Jenney’s statements concerning his intent could possibly be impeached by his communications with his former attorney.”); Choice Restaurant Acquisition Ltd. v. Whitley, Inc., 816 So.2d 1165, 1167-68 (Fla. 4th DCA 2002) (discussing the accountant-client privilege and noting that “a court cannot justify finding waiver of the privilege merely because the information sought is needed by the opposing party to provide information helpful to cross examination or for the defense of a cause of action” and that “mere relevance of the information is not sufficient grounds to override this privilege”); Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1023 (Fla. 4th DCA 1998) (determining, in a legal malpractice action, that the defending law firm’s assertion that a subsequent firm had been negligent did not serve to override the client’s attorney-client privilege with the subsequent firm); Shafnaker v. Clayton, 680 So.2d 1109, 1111 (Fla. 1st DCA 1996) (concluding that respondents could not discover communications petitioners had with other attorneys even though the information may have assisted respondents in their defense).

The lawyers seek to characterize the “matter” that the clients have placed at issue as any advice the clients received with respect to the plan and joint venture, not just the lawyers’ advice and representations. The lawyers argue that because other attorneys provided legal advice to the clients during the time that the lawyers advised the clients, documents authored or received by the other attorneys are discoverable under the at issue doctrine. We disagree. The fact that the clients obtained advice from others while also being advised by the lawyers does not result in a waiver of the attorney-client privilege that exists as to communications between the clients and their other advis-ors.

In Choice Restaurant, Choice entered into an agreement to purchase certain assets of a restaurant supply business from the sellers. Choice retained an accountant to perform limited due diligence and eventually completed the purchase. Later, Choice brought a fraud claim against the sellers and alleged that they falsely represented the value of the inventory and falsely stated that they had not lost customers in the past. The sellers deposed Choice’s accountant and asked questions to try and establish that Choice was aware of the alleged misrepresentations prior to the purchase and that Choice did not detrimentally rely on the sellers’ representations. After Choice asserted the accountant-client privilege, the sellers moved to compel answers to the questions. 816 So.2d at 1166-67.

The trial court found that Choice waived the accountant-client privilege by bringing its fraud claim against the sellers. The Fourth District disagreed, noting that the sellers had injected the issue of the accountant’s advice into the litigation, not Choice. The court stated as follows:

Respondents sought the requested answers to deposition questions of [the accountant] not to prove Choice’s claim of fraud, but rather to defend against it by gathering evidence they hoped would support a defense to the fraud claim, i.e. Choice did not rely on the representations of respondents based on what Choice learned from the incomplete due diligence efforts of [the accounting firm]. This is not grounds for the discovery of otherwise privileged information.

Id. at 1167. Thus, although Choice retained an accounting firm to assist regarding the purchase, its suit against the sellers concerning the purchase did not result in a waiver of the accountant-client privilege.

The same reasoning applies as to the attorney-client privilege. As noted in Volpe v. Conroy, Simberg & Ganon, P.A., 720 So.2d 537, 539 (Fla. 4th DCA 1998), “the mere fact that two attorneys may be representing a single client on the same matter does not waive the privilege that the client has to prevent his or her confidential communications to one of his or her lawyers from being revealed to the other lawyer.” There, the plaintiffs were involved in construction litigation and their insurance company hired Conroy, Simberg & Gannon (CSG) to represent them. The Volpes also hired personal counsel. At the conclusion of the litigation, the Volpe’s insurance company did not pay the entire judgment rendered against them.

The Volpes sued CSG for legal malpractice, alleging that CSG failed to advise them as to whether the insurance company would indemnify them against any adverse judgment. CSG raised as a defense that the Volpes’ personal counsel contributed to the Volpes’ damages. CSG sought to compel personal counsel to answer deposition questions concerning discussions with the Volpes as to coverage. CSG claimed such communications might reveal that counsel had advised the Volpes regarding coverage. CSG argued that if discovery revealed the Volpes had received such advice from personal counsel, the Volpes could not show that CSG’s negligence was the proximate cause of their loss.

As to CSG’s reliance on the “at issue” doctrine to support its position that the Volpes had waived the attorney-client privilege, the court stated as follows:

If it would appear that the Volpes would be required to call their attorneys to testify on these very issues to establish the malpractice claim, then waiver of the attorney-client privilege might be implied. But there is no suggestion that the Volpes need this information to establish their claim; to the contrary, it is CSG which wants the information to establish their defense. The attorney-client privilege cannot be set aside simply because the opposing party claims that the information held by the attorney is necessary to prove the opposing party’s case.

Id. at 539-40 (citation omitted).

Thus, for waiver to occur under the at issue doctrine, the proponent of a privilege must make a claim or raise a defense based upon the privileged matter and the proponent must necessarily use the privileged information in order to establish its claim or defense. Here, the clients have asserted claims for damages based on the advice they received from the lawyers. The clients’ claims are not based on the advice they received from their other counsel, and the lawyers have not shown that the clients must necessarily introduce communications with other counsel to prove their claims against the lawyers. Therefore, by compelling disclosure of the disputed documents based on the at issue doctrine, the trial court departed from the essential requirements of law, warranting certiorari relief.

THE “SELECTIVE DISCLOSURE” DOCTRINE

The lawyers alternatively argue that we should uphold the trial court’s order under the “selective disclosure” doctrine. They contend that because the clients have disclosed some communications with respect to the plan and joint venture, the clients must disclose all such communications. The lawyers argue that by sharing Mr. Smooke’s memorandum with third parties and by waiving their accountant-client privilege as to Gregory, Sharer, the clients thereby waived their attorney-client privilege with respect to any other communications they had with any other attorneys concerning the plan and the joint venture. The lawyers rely in part on International Telephone & Telegraph Corp. v. United Telephone Co. of Florida, 60 F.R.D. 177 (M.D.Fla.1973), and Hoyas v. State, 456 So.2d 1225 (Fla. 3d DCA 1984).

In International Telephone, the court recognized that “[tjestimonial privileges are exceptions to the general duty of every person to give testimony upon all facts inquired of in a court of law.” Id. at 185. The court stated that “the privilege was intended as a shield, not a sword. Consequently, a party may not insist upon the protection of the privilege for damaging communications while disclosing other selected communications because they are self-serving.” Id. (emphasis added); see also Hoyas, 456 So.2d at 1229 (same). The client does not waive the privilege by testifying generally in the case or testifying as to facts that were the subject of the consultation with his or her attorney, but if the client or attorney testifies as to privileged communications in part, this serves as “a waiver as to the remainder of the privileged consultation or consultations about the same subject.” 60 F.R.D. at 186. “Similarly, if a party-client introduces part of his correspondence with his attorney, the production of all of the correspondence could be demanded.” Id.

Section 90.507, Florida Statutes (2002), addresses waiver of a privileged communication as follows:

A person who has a privilege against disclosure of a confidential matter or communication waives the privilege if the person, or the person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.

When attorney-client communications are disclosed regarding a certain matter, there exists a limited waiver with respect to communications on that same, specific matter. See Courville v. Promedco of S.W. Fla., Inc., 743 So.2d 41, 42 (Fla. 2d DCA 1999) (holding that disclosure of attorney’s communication regarding non-compete provision in a contract for the sale of a medical practice only served to waive communications with respect to the non-compete provision and not other aspects of the transaction).

In Old Stone Bank v. Farris, 647 So.2d 916 (Fla. 4th DCA 1994), the Fourth District quashed an order compelling disclosure of documents related to a loan transaction that were protected by the attorney-client privilege. There, the bank’s- attorney had prepared a memorandum concerning the transaction and sent it to the bank. After the transaction became the subject of litigation between the bank and Mr. Farris, the bank voluntarily produced the memorandum. Mr. Farris then sought to depose the bank’s attorney and sought production of all of his correspondence with the bank and all of his notes in connection with the loan transaction.

The Fourth District concluded that the bank’s disclosure of the memorandum did not act as a waiver of all communications between the bank and its attorney pertaining to the transaction. The court noted that “[t]he fact that privileged communications occur in the course of a transaction which is later litigated does not eliminate the attorney-client privilege.” Id. at 917. The court reasoned that “[t]he disclosed memorandum does not discuss all of the details surrounding the loan and letter of credit that may be found in the other correspondence and memoranda otherwise protected by an attorney-client privilege.” Id.

Similarly, Mr. Smooke’s memorandum does not reveal any privileged communications that the clients may have had with Ms. Myers or the Kalish & Ward firm regarding their decision to implement the plan or joint venture. Rather, it appears that Mr. Smooke prepared the memorandum to address Mr. Coates’ concerns about the viability of the already-implemented plan and to identify the tax deficiencies in the plan for the Coates.

Likewise, the lawyers have not identified any disclosure of any privileged communications between the clients and Ms. Myers, Mr. Rovell, or the Kalish & Ward firm, whether through Mr. Smooke, the Gregory, Sharer firm, or otherwise. Accordingly, the lawyers have not established that production of the Smooke memorandum or the chent’s waiver of the accountant-client privilege with respect to Gregory, Sharer served as a waiver of all privileged communications with other professionals that relate to the plan and the joint venture.

Based upon the foregoing, we cannot agree with the lawyers’ argument that the “selective disclosure” doctrine provides an alternative basis for the trial court’s decision compelling disclosure of the disputed documents.

CONCLUSION

Because the order compelling disclosure of the disputed documents constitutes a departure from the essential requirements of law, warranting certiorari relief, we grant the petition for writ of certiorari and quash the trial court’s order.

Petition granted.

CASANUEVA and KELLY, JJ., Concur.

      . The memorandum refers to "Charles Stewart.” Other documents in the record refer to "Charles Stuart” of the Gregory, Sharer, and Stuart accounting firm.

      . The parties disputed in the trial court whether a paralegal’s communications while being supervised by an attorney qualified for protection under the attorney-client privilege. In addition, the parties disputed whether an attorney supervised Ms. Vestinos during the entire period pertinent to the underlying litigation. The parties did not raise these arguments in this court, and we do not address them in this opinion.

      . The clients also noted that they had produced the Smooke memorandum to the lawyers and others at a time when the lawyers still represented them. The clients viewed that disclosure as precluding their assertion of the attorney-client privilege as to the memorandum in the context of this litigation. Further, they were only claiming privilege as to documents that had not been disclosed to any third party.


text:
    Anthony C. GRANELL, Appellant, v. Margaret GRANELL, Appellee.
    No. 2D05-3096.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
    Edward S. Campbell of LaBarbera and Campbell, Tampa, for Appellant.
    Phillip Wartenberg, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Anthony C. Granell, the Former Husband, appeals the trial court’s orders adopting a general magistrate’s recommended order and denying his exceptions to the magistrate’s report. The magistrate’s recommended order resolved certain issues raised by Margaret Granell, the Former Wife, in a motion for contempt, for enforcement of alimony, and to prohibit unilateral setoffs against alimony. The magistrate found the Former Husband to be in contempt of court for willfully failing to comply with the final judgment of dissolution of marriage by allowing the Former Wife’s health insurance coverage to lapse when he sold his medical practice and by not maintaining insurance coverage for her. The magistrate stated that she was withholding the imposition of contempt sanctions, but she recommended that the Former Husband be obligated to pay the Former Wife’s past medical expenses (including hospital, medical, and prescription drug bills), her future prescription drug bills, and her reasonable future medical bills. The trial court denied the Former Husband’s exceptions and adopted and ratified the magistrate’s report.

We affirm without discussion the finding of contempt. As to the finding that the Former Husband should be obligated to pay the Former Wife’s medical expenses, we reverse and remand for further proceedings for the following reasons: (1) the magistrate misstated the burden of proof, stating that “[t]he Former Husband, as the noncomplying party, had the burden of proof as to the reasonableness and medical necessity of the medical services” provided to the Former Wife; (2) neither the trial court nor the magistrate made any findings as to whether the medical expenses claimed by the Former Wife were reasonable or necessary; (3) neither the trial court nor the magistrate determined the Former Husband’s ability to pay the Former Wife’s medical expenses; and (4) neither the trial court nor the magistrate determined whether any appropriate limitations should be imposed as to the Former Husband’s liability for future medical expenses.

As to the first two reasons for reversal, the Former Husband argues, among other things, that the magistrate erred in stating that he had the burden of proving that the Former Wife’s medical expenses were not reasonable and necessary and that the magistrate failed to make findings that the medical expenses were reasonable and necessary. We agree that the Former Wife, as the party seeking to recover her medical expenses, has the burden of establishing that the expenses were reasonable and necessary. See Albertson’s, Inc. v. Brady, 475 So.2d 986, 988 (Fla. 2d DCA 1985); see also East West Karate Ass’n, Inc. v. Riquelme, 638 So.2d 604, 605 (Fla. 4th DCA 1994) (citing Albertson’s). Further, the Former Husband is only liable for medical expenses that are reasonable and necessary. See McBride v. McBride, 637 So.2d 938, 941 (Fla. 2d DCA 1994).

At a hearing on her motion, the Former Wife testified as to her medical problems and related expenses. She also presented billing statements to the magistrate. The Former Husband acknowledged that many of the expenses were legitimate. However, the magistrate did not make any findings as to the reasonableness or necessity of the Former Wife’s expenses, and the trial court did not address the issue except to generally deny all of the Former Husband’s exceptions. In light of the magistrate’s incorrect statement as to the burden of proof and the lack of any findings as to the reasonableness or necessity of the medical expenses, we reverse and remand for further proceedings. On remand, appropriate findings must be made in accordance with the evidence and the correct legal standards.

As to the third reason for reversal, the Former Husband correctly argues that the magistrate and the trial court could not order him to pay the Former Wife’s medical expenses without finding that he has the present ability to pay the expenses. See Bowen v. Bowen, 471 So.2d 1274, 1279 (Fla.1985); see also Fla. Fam. L.R.P. 12.615(c)(2)(A), (d)(1), (e); In re N.V. v. State, 890 So.2d 1232, 1234 (Fla. 2d DCA 2005); Giallanza v. Dep’t of Revenue, 799 So.2d 256, 258 (Fla. 2d DCA 2001). Accordingly, we reverse and remand, noting that it appears likely further evidentiary proceedings will be required in order to address the Former Husband’s ability to pay in light of the passage of time and possible changes in the parties’ financial conditions.

As to the fourth reason for reversal, the Former Husband argues that the orders improperly require him to pay the Former Wife’s future, reasonable medical bills without limiting his liability to those expenses that are medically necessary. See McBride, 637 So.2d at 941. Further, he argues that the magistrate erred in recommending that he pay past and future medical expenses that would not have been covered by her prior insurance, had it not lapsed, or that may have been subject to a deductible. He contends that his obligation to pay should be limited to those reasonable, necessary expenses that the Former Wife’s insurance would have covered and that are consistent with his present ability to pay.

At the hearing before the magistrate, neither party introduced the insurance policy that had been in place before the Former Husband sold his medical practice. However, the Former Wife acknowledged that the policy included a copay requirement for prescriptions, and she indicated her belief that the policy would have covered 80% of her medical bills.

In King v. King, 530 ,So.2d 431 (Fla. 1st DCA 1988), the trial court directed Mr. King to pay his minor child’s medical bills after he failed to procure health insurance for the child as required by the final judgment of dissolution. The First District found that the trial court should not have ordered the former husband to pay the child’s medical expenses without first determining the following:

(1) whether the medical expenses incurred by the minor child would have been covered by the policy of insurance which the husband was ordered to procure, or were the type of expenses the trial court contemplated would be covered by the policy of insurance; and (2) the appropriate method of allocating the payment of those expenses not covered by the policy of insurance, if any, between the two parties, after considering the relative financial ability of each to pay.

Id. at 433. In Edgar v. Edgar, 668 So.2d 1059, 1061 (Fla. 2d DCA 1996), this court noted that “[a] court’s failure to set any limit on health insurance and noncovered expenses constitutes reversible error.” See also Notarianni v. Notarianni, 622 So.2d 1144, 1145 (Fla. 2d DCA 1993) (holding that the trial court erred in imposing an open-ended obligation on the former husband for the former wife’s medical insurance and post-judgment medical expenses); Van Metre v. Van Metre, 551 So.2d 593, 594 (Fla. 2d DCA 1989) (concluding that an order requiring the former husband to pay the former wife’s reasonable and necessary medical expenses that were not covered by insurance improperly imposed open-ended and unlimited financial liability and was unenforceable).

Here, the magistrate’s recommended order states that the Former Husband may avoid the imposition of contempt sanctions by paying all of the Former Wife’s past and future medical expenses. The order does not limit the Former Husband’s payment to those reasonable and necessary medical expenses that would have been covered by insurance had the Former Husband fulfilled the insurance requirement contained in the final judgment, and it makes no finding as to the Former Husband’s ability to pay. Thus, we reverse and remand for the trial court to determine any appropriate limitations that should be placed on the Former Husband’s obligation to pay the Former Wife’s medical expenses.

For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

CASANUEVA and SALCINES, JJ., Concur.


text:
    D.B., Father of D.F., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1676.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2006.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

AFFIRMED. See M.M. v. Dep’t of Children & Families, 931 So.2d 280 (Fla. 5th DCA 2006); K.B. v. Dep’t of Children & Families, 834 So.2d 368, 369 (Fla. 5th DCA 2003) (observing “the ‘least restrictive means’ test ... is not intended to preserve the parental bonds at the cost of a child’s future.... The ‘least restrictive means’ test simply requires that measures short of termination be utilized if such measures would permit the safe re-establishment of the parent-child bond”).

THOMPSON, PALMER, and TORPY, JJ., concur.