author: WARNER, J.

text:
    Loreen I. KREIZINGER, P.A., a Florida Professional Association, Appellant, v. Sheldon J. SCHLESINGER, P.A., a Florida Professional Association, and Scott Schlesinger, individually, Appellees.
    No. 4D04-2919.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Rehearing Denied May 8, 2006.

      Loreen I. Kreizinger and Justine S. An-agnos of Loreen I. Kreizinger, P.A., Fort Lauderdale, for appellant.
    Sheldon J. Schlesinger and John J. Uus-tal of Sheldon J. Schlesinger, P.A., Fort Lauderdale, Edna L. Caruso and Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, for appellees.
   WARNER, J.

A lawyer, Loreen Kreizinger, appeals the dismissal of her complaint alleging tor-tious interference by appellee law firm with Kreizinger’s contract with her client. Specifically, she claims that the purchase of a plane ticket for the client to meet with the new lawyer at his office before the client terminated the contract with Kreiz-inger amounted to tortious interference. Because the complaint alleged that the client contacted appellee law firm first, we conclude that it fails to state a cause of action for tortious interference. We affirm the dismissal of the complaint.

The complaint alleges that Patricia Gates engaged Loreen Kreizinger to represent her and her daughter in a medical malpractice action. After five years of Kreizinger’s representation, and on the eve of docket call for the trial of the ease, Gates contacted Scott Schlesinger and the Sheldon J. Schlesinger, P.A., law firm. Gates made Schlesinger aware of Kreizinger’s representation of her, the pending lawsuit, and the impending trial date. The next day Schlesinger arranged and paid for Gates to fly to Fort Lauderdale from her home in Pensacola, Florida, for the purposes of discussing representation. On that date, Gates terminated the employment of Kreizinger and entered into a contract with Sheldon J. Schlesinger, P.A. to represent Gates and her daughter in the medical malpractice case. The case settled about two months later for a substantial sum.

Kreizinger filed suit against the Schlesinger law firm and Scott Schlesinger alleging tortious interference with her contract with Gates. The defendants moved to dismiss the complaint arguing that because the attorney-client relationship is an “at will” contract, there could be no tortious interference with the contract. The trial court granted the motion, finding no intentional and unjustified interference with the attorney-client relationship by the attorney. Kreizinger appeals and argues that Schlesinger’s purchase of the plane ticket constituted an act of intentional and unjustified interference.

The standard of review of orders granting motions to dismiss with prejudice is de novo. MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Id. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla. 4th DCA 2001).

A party seeking redress pursuant to a claim for tortious interference with a business relationship must show: 1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with the relationship; and 4) damage to the plaintiff as a result of the tortious interference with the relationship. ISS Cleaning Sens. Group, Inc. v. Cosby, 745 So.2d 460, 462 (Fla. 4th DCA 1999). In this case, the trial court found that the complaint failed to allege any ultimate facts constituting the third element of the cause of action, namely the intentional and unjustified interference with the business relationship.

Kreizinger’s complaint alleges that Gates, her client, contacted Schlesinger. Therefore, it was Gates that sought out Schlesinger. Schlesinger then arranged to fly Gates and her daughter to his office in Fort Lauderdale, paying for their tickets. On the same day that she came to Fort Lauderdale, Gates discharged Kreizinger and entered into a contract with Schlesinger for representation in the pending malpractice lawsuit.

The lawyer-client relationship is an “at will” contract because a client has a right to discharge a lawyer at any time, with or without cause. See Fla. R. of Profl Conduct 4-1.16, Comment on Discharge; U.S. Sav. Bank v. Pittman, 80 Fla. 423, 86 So. 567 (1920).

Where a client initiates contact with a new lawyer which results in the discharge of the first lawyer and hiring of the new lawyer, no intentional and unjustified interference is present. See Potts v. Mitchell, 410 F.Supp. 1278 (D.C.N.C.1976); Gilbert v. Jones, 187 Ga.App. 303, 370 S.E.2d 155 (1988) (affirming entry of summary judgment where evidence established that attorney hired to replace another attorney did not tortiously interfere with former attorney’s relationship with client, where client had become dissatisfied with first attorney and actively sought substitute counsel). Even if there are allegations of violation of rules of professional conduct, a violation of the rules does not necessarily create liability between the parties. See, e.g., Brown v. Larkin & Shea, P.A., 522 So.2d 500 (Fla. 1st DCA 1988). The conduct of the lawyer in meeting with the client in this case does not amount to interference because the client came to the new lawyer; the lawyer did not solicit the client.

For this same reason, the payment for Gates’ travel to Fort Lauderdale does not create an unjustified interference with Kreizinger’s contract, even if it may be an ethical violation, a point we do not decide. Gates had already contacted Schlesinger regarding representation. Had Schlesinger flown to Pensacola to meet with Gates, no “wrong” would have occurred. Paying for the plane ticket is not an intentional and unjustified interference. No allegation is made that payment for the plane ticket was conditioned on Gates signing a contract of representation, nor is it alleged that other inducements were offered, such as staying at an expensive hotel. We have discovered no similar case, and without more, we conclude that the allegations of the complaint did not state a cause of action for tortious interference.

Kreizinger relies heavily on Anderson v. Anchor Organization for Health Maintenance, 274 IIl.App.3d 1001, 211 Ill.Dec. 213, 654 N.E.2d 675 (1995), in support of the argument that the complaint stated a cause of action for tortious interference. In Anderson, the trial court dismissed a count of an attorney’s complaint alleging tortious interference with prospective economic advantage where the attorney’s co-counsel allegedly induced the plaintiffs in a medical malpractice case to discharge her as their attorney. Id. at 1012, 211 IlLDec. 213, 654 N.E.2d 675. The appellate court reversed dismissal of the tortious interference count, noting that the plaintiff alleged that she had an attorney-client relationship with the clients from which she expected to earn substantial legal fees, that the defendant was aware of that relationship, that the defendant induced the clients to discharge her as their attorney, and that the clients in fact discharged her at defendant’s urging. Id. at 1013, 211 IlLDec. 213, 654 N.E.2d 675. The court concluded that these allegations were sufficient to state a cause of action. However, it appears that a claim for tortious interference under Illinois law requires a pleading of “purposeful” interference, not “intentional and unjustified” interference. Thus, the allegations of the complaint in Anderson would not be sufficient under the Florida rule of tortious interference.

For the foregoing reasons, we affirm the order of dismissal of the trial court.

MAY, J., and SWEET, GARY L., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cleveland ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1096.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Cleveland Adams, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Quarterman v. State, 527 So.2d 1380 (Fla.1988).

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Travis BELFOUR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-867.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Rehearing Denied May 5, 2006.

      Travis Belfour, Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a motion and memorandum of law that includes the oath required by Florida Rule of Criminal Procedure 3.850(c) no later than thirty (30) days from the date of issuance of this opinion.

FARMER, SHAHOOD and HAZOURI, JJ., concur.


text:
    Qui Vinh Phuoc NGUYEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-822.
    District Court of Appeal of Florida, Fifth District.
    April 6, 2006.
    Michael H. LaFay, of NeJame, LaFay, Barker and Tumarkin, P.A., Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Qui Vinh Phuoc Nguyen was charged with conspiracy to traffic in cannabis and MDMA. After a hearing, the trial court denied bond. Nguyen asserts that since the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, bond cannot be denied.

We agree, grant Nguyen’s petition for writ of habeas corpus, and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for the State to file a motion for pretrial detention, should it choose to do so. See Griffith v. State, 914 So.2d 1053 (Fla. 5th DCA 2005). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion.

PETITION GRANTED; CAUSE REMANDED.

PALMER, ORFINGER, and TORPY, JJ., concur.


author: SHARP, W., J.

text:
    Eric ACRES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-60.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.

      Eric Acres, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Acres appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct his sentence. He raises three issues, one of which we consider has merit. We affirm in part, and reverse and remand in part.

The record discloses that Acres pled nolo contendere to child abuse and neglect of a child. He was sentenced on each count to time served followed by two years probation. He was found to have violated his probation for a second time on April 2, 2004, and it was revoked. He was sentenced to concurrent terms of 66 months in prison with credit for time served. We affirmed his judgment and sentence on direct appeal. Acres v. State, 889 So.2d 82 (Fla. 5th DCA 2004).

Acres first argues his 66-month sentence is greater than the initial split sentences imposed. Taking the position that he was initially sentenced to time served to be followed by two years on probation, Acres concludes that the court could not exceed two years in imposing sentence after revocation of probation. We disagree. Acres was not given a “true” split sentence where the total amount of incarceration was predetermined. He was given a probationary split sentence of time served to be followed by two years on probation. After revoking his probation, the court was authorized to impose any sentence that it could have originally imposed.

Second, Acres claims his sentencing scoresheet was incorrect because he had no prior felony convictions for robbery with a deadly weapon or burglary of a dwelling with a weapon. He contends both of these charges were dropped into a single charge of burglary. This error prejudiced his sentencing score by increasing it by 42 points. This contention raises fact issues, which require an evidentiary hearing. Thus, a Rule 3.800(a) motion is not an appropriate remedy. See Richardson v. State, 705 So.2d 608 (Fla. 5th DCA 1997).

The third issue raised by Acres is that the sentences of 66 months incarceration exceed the statutory maximum penalty of 60 months and are illegal. Child abuse and neglect of a child are both third degree felonies, for which the maximum sentence is 60 months. See § 827.03(1) and (3)(c), Fla. Stat. (2005). This is the kind of claim for which Rule 3.800(a) relief was intended, where the error is apparent on the face of the record.

The trial court should have addressed this ground. It failed to do so. We remand to the trial court for the purposes of granting the relief requested or attaching portions of the record that show Acres did not receive an illegal sentence. It is possible that Acre’s Criminal Punishment Code scoresheet resulted in a lowest permissible sentence, which exceeded the statutory maximum penalty for a third degree felony. See Fla. R.Crim. P. 3.704(d)(25). If so, attachment of the scoresheet and a ruling denying relief would suffice.

AFFIRMED in part, REVERSED and REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . See § 827.03(1) and (3)(c), Fla. Stat. (2005).

      . § 948.06(2)(e), Fla. Stat. (2005); Poore v. State, 531 So.2d 161 (Fla.1988).


text:
    D. Byron McINTOSH, Jr., Appellant, v. Delle D. McINTOSH, Appellee.
    No. 5D05-2525.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.
    Robert A. DuChemin, Sr. of DuChemin & Associates, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

This is an appeal from a post-judgment order determining the amount of attorneys’ fees to be awarded to the appellee as a result of legal fees incurred in defending the appellant’s supplemental petition for modification of alimony and child support.

We conclude that the above order must be vacated due to our recent decision in McIntosh v. McIntosh, 915 So.2d 742 (Fla. 5th DCA 2005), where we specifically vacated attorney fee awards involved in the modification proceeding.

AWARD OF ATTORNEYS’ FEES REVERSED AND VACATED.

PALMER, ORFINGER and MONACO, JJ., concur.


author: PALMER, J.

text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1555.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

J.S. appeals his juvenile delinquency disposition order. Concluding that J.S. was improperly adjudicated delinquent on the non-existent crime of attempted battery on a law enforcement officer, we reverse and remand for resentencing for the crime of attempted battery and for entry of a new disposition order.

J.S. was adjudicated delinquent on two separate charges: attempted battery on a law enforcement officer and grand theft auto.

On appeal, J.S. challenges his adjudication of delinquency and his disposition order claiming that the trial court committed error by adjudicating him delinquent on the nonexistent crime of attempted battery on a law enforcement officer. We agree.

In Merritt v. State, 712 So.2d 384 (Fla.1998), the supreme court held that section 784.07 of the Florida Statutes, which enhances the punishment for committing assault, aggravated assault, battery and aggravated battery committed against law enforcement and other specified public officers, does not create new substantive offenses and, by its plain language, does not apply to “attempts” to commit the enumerated crimes. The court explained:

The enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses.

Id. at 385.

The State argues that the supreme court has since determined that section 784.07 is a reclassification statute, and thus creates a substantive crime of attempted battery on a law enforcement officer, citing to Mills v. State, 822 So.2d 1284 (Fla.2002). However, a close reading of Mitts reveals that the supreme court reiterated its position that section 784.07 of the Florida Statutes is an enhancement statute which reclassified enumerated offenses committed against law enforcement officers rather than a statute creating new criminal offenses. See Mills, 822 So.2d at 1286-1287.

Other recent cases have also held that attempted assault, battery or aggravated assault on one of the enumerated individuals set forth in section 784.07 of the Florida Statutes are non-existent crimes. See Moore v. State, 924 So.2d 840, 2006 WL 12960 (Fla. 4th DCA January 4, 2006)(holding attempted aggravated assault on a law enforcement officer is not a crime in Florida); W.T.D. v. State, 906 So.2d 333 (Fla. 4th DCA 2005)(holding sentence enhancement statute did not create offense of attempted battery on school employee, and thus minor’s adjudication of delinquency should have been based on finding that minor committed attempted battery).

Accordingly, J.S.’s adjudication of delinquency on the non-existent crime of attempted battery on a law enforcement officer is reversed and the trial court is directed to hold a new disposition hearing and re-sentence J.S. for the crime of attempted battery. See W.T.D. v. State, 906 So.2d 333 (Fla. 4th DCA 2005)(re-manding the case with instructions for the trial court to enter an adjudication of delinquency based upon a finding that W.T.D. committed attempted battery and, consequently, to hold a new disposition hearing).

J.S.’s other claims of error raised on appeal are without merit.

REVERSED and REMANDED.

PLEUS, C.J. and SAWAYA, J„ concur.

      . §§ 784.07(2)(b); 777.04, Fla. Stat. (2004).

      . § 812.014, Fla. Stat. (2004).


text:
    T.J.M., Jr., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1267.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jenkins v. State, 872 So.2d 388 (Fla. 4th DCA 2004) (To prevail on a motion to continue based upon witness unavailability, the moving party must show: (1) prior due diligence to obtain the witness’ presence; (2) that substantially favorable testimony would be forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


author: THOMPSON, J.

text:
    Richard L. WALTERS, Appellant, v. OCEAN GATE PHASE I CONDOMINIUM, etc., et al., Appellees.
    No. 5D04-2960.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.

      John B. Bamberg, St. Augustine, for Appellant.
    John L. Whiteman of Rogers Towers, P.A., St. Augustine, for Appellees.
   THOMPSON, J.

Richard L. Walters appeals the circuit court’s order that dismissed all counts of his second amended complaint. Walters’ claims concerned condominium assessments he contended were the responsibility of the subsequent owners of his units. Ordered in administrative proceedings to make restitution to the condominium association for $68,710.92 in assessments and a $10,000 civil penalty, Walters sought to impose these obligations upon the owners and the association. This court earlier dismissed the appeal regarding Counts I, II, and IV because the circuit court’s order, entered without prejudice, was a non-appealable nonfinal order. See Morgan v. Blancher, 489 So.2d 1217, 1218 (Fla. 2d DCA 1986). The appeal concerning Count III for specific performance remained. We dismiss the remaining appeal as to James Robinson and John Nelson, because Walters still has an unresolved claim against them. See Dalola v. Barber, 757 So.2d 1215, 1216 (Fla. 5th DCA 2000); Hallock v. Holiday Isle Resort & Marina, Inc., 885 So.2d 459, 461-62 (Fla. 3d DCA 2004). However, we affirm the dismissal with prejudice of Walters’s claim for specific performance with respect to McDon-ough LLLP (“McDonough”), Loulie Robinson (“Loulie”), and Bonnie Nelson (“Bonnie”).

McDonough, Loulie, and Bonnie are not named parties in any other count. Therefore, the order dismissing Count III with prejudice completely disposed of Walters’s claims against them. See Fla. R.App. P. 9.110(k); Dalola, 757 So.2d at 1216; Shepardson v. Shepardson, 820 So.2d 360, 362 (Fla. 1st DCA 2002). Therefore, this court has jurisdiction over the appeal of the order dismissing Walters’s count for specific performance against them. See, e.g., Bankers Mut. Capital Corp. v. United States Fid. & Guar. Co., 784 So.2d 485, 487 (Fla. 4th DCA 2001).

The trial court held that Walters’s claim for specific performance was barred by the one-year statute of limitations provided by section 95.11(5)(a), Florida Statutes (2004). Generally, the statute of limitations cannot be raised in a motion to dismiss unless the complaint affirmatively shows its conclusive applicability to bar the action. Simon v. Celebration Co., 883 So.2d 826, 831 (Fla. 5th DCA 2004) (citing New York State Dept, of Taxation v. Patafio, 829 So.2d 314, 316 (Fla. 5th DCA 2002)). Because the second amended complaint failed to set forth with particularity when Walters discovered the buyers’ intent not to assume liability for the assessments, the trial court erred in ruling that the complaint conclusively established that the statute of limitations barred Count III. See id. The defendants concede that the trial court erred, but assert that this court should affirm on the basis of the “Tipsy Coachman” doctrine. Hous-werth v. Neimiec, 603 So.2d 88, 89 (Fla. 5th DCA 1992); Holland v. Holland, 458 So.2d 81, 85 n. 3 (Fla. 5th DCA 1984) (Cowart, J., dissenting). We agree.

Walters’s initial complaint was filed in October 2003 and accompanied by signed warranty deeds to the buyers. In his second amended complaint, Walters requested specific performance and argued that the land was really sold “AS IS, WHERE IS ... WITH ALL FAULTS, IF ANY,” which, according to Walters, meant that he was relieved of liability for past due assessments, for which the buyers had accepted responsibility. Notably, Walters never attached to his complaint any such real estate purchase and sale agreements that showed this “contract.”

We find that two reasons justify the application of the “Tipsy Coachman” rule to affirm the order dismissing Count III with prejudice with respect to McDonough, Loulie, and Bonnie. First, Walters’s second amended complaint failed to set forth any new facts or argument to support his claim. See, e.g., Schraw v. Estate of Hester, 693 So.2d 721, 722 (Fla. 5th DCA 1997). He alleged precisely the same facts and argument that the trial court had explicitly and correctly ruled inadequate when it dismissed his first amended complaint on 16 March 2004. The trial court found:

1. That Count III of the Plaintiffs Amended Complaint seeks a declaration ... that the Defendants are responsible for the payment of certain unpaid condominium assessments ..., which Unpaid Assessments accrued prior to the date of the conveyance of the units from the Plaintiff to the Defendants.
3. That the Plaintiffs assertion that the Defendants accepted title to the ... units which contained no warranties of title is contradicted by the four deeds themselves, which are each entitled “Warranty Deed” and which each contain the following language “and said Grantor does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever.”

The trial court dismissed this count, which had sought declaratory relief:

Overlooking the patent inconsistency in Plaintiffs Complaint, and thereby accepting as true the Plaintiffs assertion that the Defendants accepted title to the units without any warranties of title, such, in and of itself, does not work a transfer or assumption ... of the Plaintiffs obligation to pay assessments which accrued prior to the conveyance.
Assuming that the mere acceptance of a deed without warranties of title is sufficient to work a transfer ... of the personal liability of the grantor to pay assessments ..., the Plaintiffs Amended Complaint, nevertheless, must be dismissed for its failure to state a cause of action, because it asserts at the same time both the absence and the existence of warranties of title. This inconsistency is fatal to a pleading which predicates entitlement to relief on an absence of warranties.

Nevertheless, Walters’s second amended complaint repeated virtually identical allegations; he merely changed the heading from “declaratory judgment” to “specific performance.” Thus, Walters has not demonstrated what further amendment he could make if given the opportunity. Schraw, 693 So.2d at 722. “[A]mendment should be allowed until the privilege to do so has been abused or the opposing party is prejudiced or the amendment is futile .... Generally three ineffective attempts to state the same cause of action ... are enough.” Trawick’s Florida Practice & Procedure § 14-2 at 225 (2006). The case has reached “a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims.” Kohn v. Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992). Although Walters has not had the four to ten cracks at stating a valid cause of action that courts typically prefer before affirming dismissals with prejudice, Samuels v. King Motor Co., 782 So.2d 489, 501 (Fla. 4th DCA 2001), the record makes it apparent that Walters’s pleading on Count III cannot be amended to state a cause of action. See Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999). Accordingly, the court should have dismissed the action with prejudice for failure to state a claim. The trial court should not have ruled on the basis that the statute of limitations had expired, but it would have been required as a matter of law to dismiss the count for failure to state a cause of action. That requirement constitutes the second reason we find that the “Tipsy Coachman” rule applies.

Even if Walters had articulated some semblance of a count for specific performance, the court could not find that he stated a cause of action. Walters did not indicate any contract or agreement sought to be enforced and neglected to attach copies of real estate purchase and sales agreements. The failure to attach appropriate documents was problematic because “[a] complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.” Contractors Unlimited v. Nortrax Equip. Co. Southeast, 833 So.2d 286, 288 (Fla. 5th DCA 2002) (citing Samu-els v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001), and Fla. R. Civ. P. 1.130(a)).

The trial court reached the right result for the wrong reason; accordingly, we affirm the order dismissing with prejudice the count for specific performance against McDonough, Loulie, and Bonnie. See Houswerth, 603 So.2d at 89.

Accordingly, with respect to James Robinson and John Nelson, we DISMISS the appeal WITHOUT PREJUDICE to then-rights to file a timely notice of appeal once a final order is rendered in the case below. We AFFIRM the order of the trial court dismissing with prejudice Walters’s claim for specific performance against McDon-ough, Loulie, and Bonnie.

PLEUS, C.J. and SAWAYA, J., concur.


author: PLEUS, C.J. TORPY, J.,

text:
    Kishaune LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-527.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

Kishaune Lynch appeals his conviction for sexual battery. He argues that (1) the trial court failed to conduct a Richardson hearing upon learning that the State failed to disclose a prejudicial defendant statement; (2) the trial court abused its discretion by allowing irrelevant victim testimony that improperly bolstered her credibility; and (3) the cumulative effect of the prosecutor’s numerous improper closing arguments resulted in fundamental error. We conclude that Lynch’s first argument requires reversal and will discuss that issue below. We reject Lynch’s second argument without discussion. Judge Torpy addresses Lynch’s third argument in a concurring opinion.

Facts

Lynch was charged with the sexual battery of his neighbor, K.B. At trial, K.B. testified that Lynch was an acquaintance. While hanging out in KB.’s apartment during the early morning hours of August 31, 2003, Lynch sexually battered her. Lynch testified in his defense. He admitted having sex with K.B. but claimed that it was consensual. The jury found Lynch guilty.

Before trial, Lynch demanded discovery. The State responded, indicating it was in possession of statements by the accused. In particular, investigating officer Terry Johnson’s charging affidavit alleged that Johnson arrested Lynch on outstanding warrants at Lynch’s apartment and transported him back to Johnson’s office. There, Lynch agreed to talk and told Johnson “that he did have sex with [K.B.] on the day in question but stated that it was consensual.”

At trial, Johnson testified about his investigation. In testifying about his initial contact with Lynch at Lynch’s apartment, Johnson testified that:

[djuring that conversation his — I guess, I’m assuming it was his girlfriend was in and out the door standing there by us. We were standing there talking about it. I said it’s alleged you raped this girl, [victim], and we were talking back and forth, he and I, and he was telling me basically, that he never raped the bitch and stuff like that.

(Emphasis added). Lynch’s attorney immediately objected to Johnson’s testimony, stating, “I object to that statement he made about bitch. I don’t know where that came from. I believe we’ve talked to Officer Johnson before.” The trial court overruled the objection, stating, “You can cross-examine him. You can cross him if he hasn’t stated that before. Overruled.”

Lynch’s attorney cross-examined Johnson and established that Johnson never disclosed Lynch’s statement that he “never raped that bitch” in his police report or in his deposition.

Analysis

Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the State to disclose “any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements.” When the State’s failure to comply with this rule is brought to the court’s attention, the court must conduct a Richardson hearing to determine if the defendant has been prejudiced. State v. Evans, 770 So.2d 1174 (Fla.2000); Stimus v. State, 886 So.2d 996 (Fla. 5th DCA 2004). A court’s failure to conduct a Richardson hearing can be found harmless only if the appellate court can determine, beyond a reasonable doubt, that the defense was not proeedurally prejudiced by the discovery violation. Scipio v. State, 928 So.2d 1138, 2006 WL 345025 (Fla. Feb. 16, 2006). Procedural prejudice in this context means whether the defense was materially hindered in its trial preparation and strategy by the discovery violation. Id.

In this case, the State does not dispute the fact that it never disclosed Lynch’s statement that he “never raped the bitch” and that the trial court never conducted a Richardson hearing. Instead, the State makes several arguments in support of its claim that no discovery violation occurred.

First, the State argues that when a statement is disclosed, a change of testimony at trial does not equate to a failure to provide discovery. Bush v. State, 461 So.2d 936, 938 (Fla.1984). The State characterizes the offending statement as changed testimony because the defense was aware that Officer Johnson would testify that Lynch admitted having sexual intercourse with K.B. but denied raping her. The only change in Officer Johnson’s testimony, according to the State, was the fact that Lynch referred to KB. as a bitch. Pursuant to Bush, the State argues that no Richardson hearing was required. Instead, the matter was properly handled by allowing the defense to cross-examine Officer Johnson about the discrepancy.

However, the State correctly acknowledges that in State v. Evans, 770 So.2d 1174 (Fla.2000), our supreme court stated that the changed testimony rule in Bush does not extend to defendant statements. Consequently, Bush cannot save the State.

Second, the State argues that there was no change in testimony because the defense never asked Officer Johnson in deposition about his first conversation with Lynch. Accordingly, he did not change his testimony and Lynch should not be heard to complain about any prejudice resulting from his own failure to inquire. This argument is also unavailing. The discovery rules impose an affirmative duty on the State to disclose defendant statements. The defense has no obligation to uncover those statements in deposition. Thus, the fact that the defense had access to a witness for deposition does relieve the State of its obligations under the rules. Martinez v. State, 528 So.2d 1334, 1335 (Fla. 1st DCA 1988).

Third, the State argues that the prosecutor did not know beforehand that Officer Johnson would make the “bitch” reference. This argument lacks merit for two reasons. One, the record does not reveal whether the prosecutor knew of this statement beforehand or not because the trial court never conducted a Richardson hearing. Had the court done so, it could have determined whether the violation was inadvertent or willful. Two, whether a discovery violation is inadvertent or willful does not negate the fact that a violation occurred. See, e.g., Rojas v. State, 904 So.2d 598 (Fla. 5th DCA 2005) (reversing conviction based on discovery violation despite finding that violation was inadvertent).

Alternatively, the State argues that any error in admitting the undisclosed defendant statement was harmless beyond a reasonable doubt. The State contends that because the substance of Lynch’s statement to police did not change by inclusion of the word “bitch,” his trial strategy was not affected.

However, Lynch persuasively argues that he was prejudiced. He argues that if he had known of the statement beforehand, he would have called his girlfriend, who was present at the time the statement was allegedly made, to deny that he made such a statement. It is undisputed, based on the officer’s testimony, that the girlfriend was present. Thus, she may have been able to rebut the officer’s testimony on this point.

Lynch’s alleged reference to K.B. as “that bitch” was offensive and placed Lynch in a bad light. It also showed antagonism toward the victim, directly undermining Lynch’s consent defense. Thus, the potential impact of calling Lynch’s girlfriend to rebut the officer’s claim would have been very important. What if the girlfriend testified something like, “I wasn’t happy with Kishaune hearing him admit to cheating on me, but he never called KB. a bitch”? Lynch never had the chance to call his girlfriend to rebut this claim because he was blindsided with this alleged statement in the middle of trial and the court failed to conduct a Richardson hearing. Had the court conducted a Richardson hearing and determined the discovery violation was inadvertent, it could have then offered the defendant the opportunity for a brief continuance to obtain the girlfriend’s testimony.

Accordingly, we cannot say beyond a reasonable doubt that the error did not proeedurally prejudice Lynch.

REVERSED AND REMANDED FOR NEW TRIAL.

SHARP, W., J., concurs.

TORPY, J., concurs specially, with opinion.

TORPY, J.,

concurring specially.

I agree with the majority opinion. Because a new trial is required, the'propriety of closing remarks by the prosecutor is a moot point. However, the State should not view our failure to address this point as tacit approval of the remarks. Indeed, it appears that some of the remarks were improper. During the new trial, therefore, I suggest that the prosecutor avoid improper closing argument or this case might result in yet a third trial if a conviction is obtained through use of improper closing argument.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: LaROSE, Judge.

text:
    Martin D. SINGLETARY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5617.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
   LaROSE, Judge.

Martin D. Singletary appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Mr. Singletary claims that he is innocent of trafficking in methamphetamine and was entrapped by a law enforcement officer and confidential source. We affirm.

In denying the motion, the postconviction court correctly concluded that claims of innocence and entrapment should have been raised on direct appeal and are, therefore, not appropriate for review under rule 3.850. We note, in addition, that Mr. Singletary entered a nolo contendere plea to the trafficking offense. ■ He reserved no right to appeal any claim. Thus, Mr. Singletary’s plea waived any claims for appeal relating to his conviction. See § 924.06(3), Fla. Stat. (2002); see also Robinson v. State, 373 So.2d 898 (Fla.1979).

Affirmed.

SALCINES and SILBERMAN, JJ„ concur.


author: CANADY, Judge.

text:
    Luciano MARTINEZ, M.D. and Leon & Martinez, M.D., P.A., Appellants, v. Christopher T. IPOX and Rebeca Ipox, personal representatives of the Estate of Christopher Ipox, a minor, Appellees.
    No. 2D04-4544.
    District Court of Appeal of Florida, Second District.
    April 7, 2006.
    Rafael E. Martinez, Michelle M. Perez-Sotolongo, and Mary Jaye Debari of Mc-Ewan, Martinez & Dukes, P.A., Orlando, for Appellants.

      Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach; George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa; and Karen E. Terry and John A. Shipley of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for Ap-pellees.
   CANADY, Judge.

Dr. Luciano Martinez and his professional association (appellants) appeal a trial court order awarding attorneys’ fees and costs to Mr. and Mrs. Ipox (appellees) in a wrongful death action. Because it was predicated on an invalid demand for judgment, we reverse the award of attorneys’ fees. We affirm the award of costs.

Appellees, in their individual capacities, originally filed a medical malpractice action against appellants based on injuries the appellees’ child, Christopher Ipox, Jr., received during birth. The child was also named as a plaintiff. Subsequently the child died, and on January 22, 2002, the complaint was amended to state a wrongful death cause of action and to reflect appellees as plaintiffs in their capacities as joint personal representatives of their child’s estate. After a jury trial, appellees were awarded a judgment of $2.3 million against appellants.

Appellees moved for attorneys’ fees and costs based on an August 12, 2002, proposal for settlement filed by Rebeca Ipox in her individual capacity. They also sought costs under the prevailing party costs statute. The trial court granted the motion and awarded appellees attorneys’ fees in the amount of $410,300 and costs in the amount of $193,649.54.

On appeal, appellants contend that only the personal representative is authorized to settle the claims in a wrongful death action. Appellants further argue that because the proposal for settlement was not made in Rebeca Ipox’s capacity as co-personal representative and on behalf of both joint representatives, the proposal was invalid. Appellants rely on Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Pla. 3d DCA 2004), in support of their argument.

A wrongful death “action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (2001). “This action covers all damages of the decedent’s survivors and the estate.... ” Thompson v. Hodson, 825 So.2d 941, 949 (Fla. 1st DCA 2002).

In Reid, the Third' District considered whether a demand for judgment submitted by only one co-personal representative was valid in a wrongful death action. The court recognized that under section 768.79, Florida Statutes (2004), “[a] valid [demand for] judgment must be served by the party plaintiff.” 888 So.2d at 103. The court also recognized that under section 768.20 “the personal representative is the only party plaintiff permitted to bring a wrongful death suit on behalf of the survivors.” Id. The court found that the demand for judgment filed by the individual co-personal representative was an attempt “to settle his survivor claim” because “the joint personal representatives did not serve the [demand for] judgment.” Id. “The requirement that, one legal action be filed to recover for all of the survivors cannot logically permit the individual co-personal representatives to settle the case separately.” Id. The court concluded that the “[demand for] judgment filed by Reid as a co-personal representative and individual survivor is an invalid, non-binding [sic] [demand for] judgment.” Id. The court reversed “the fee award based thereon.” Id. at 104.

We agree with the holding in Reid. We accordingly conclude that the trial court erred in granting appellees’ motion for attorneys’ fees based on the proposal for settlement filed by Rebeca Ipox in her individual capacity. In a wrongful death case where there are joint personal representatives, the joint personal representatives are the party plaintiffs. As the party plaintiffs, only the joint personal representatives — acting in that capacity— are entitled to make a valid demand for judgment. The demand for judgment at issue here therefore was invalid. See §§ 768.20, 768.79, Fla. Stat. (2001); Reid, 888 So.2d at 103.

Appellees claim that Rebeca Ipox’s act in serving her proposal for settlement should be deemed to be the act of both joint personal representatives. This argument is totally unwarranted. The proposal for settlement expressly stated that it was made by Rebeca Ipox in her individual capacity. The proposal thus could not be deemed to be made by Rebeca Ipox in her capacity as co-personal representative, much less made on behalf of the other co-personal representative. But even if the proposal had been made by Rebeca Ipox in her capacity as a personal representative, it would have been ineffective. Section 733.615(1) provides that “the concurrence of all joint personal representatives appointed ... is required on all acts connected with the administration and distribution of the estate.” Section 733.615 provides that “multiple representatives must act in concert, and have no authority to act independently, regardless of the circumstances.” Messina v. Scionti, 406 So.2d 529, 532 (Fla. 2d DCA 1981). See also Costello v. Davis, 890 So.2d 1179 (Fla. 2d DCA 2004) (holding that one co-personal representative did not bind the other co-personal representative to a contingent fee agreement with counsel because the other co-personal representative did not join in the agreement); Pearce v. Foster, 454 So.2d 721 (Fla. 4th DCA 1984) (holding that a co-personal representative could not unilaterally file a notice of appeal without concurrence of the other co-personal representative). In addition, there was no evidence that Rebeca Ipox had been delegated to act on behalf of the other co-personal representative. See § 733.615(1) (providing that concurrence of all joint personal representatives is not required “when a joint personal representative has been delegated to act for the others”).

Because the proposal for settlement that served as the basis for the award of attorneys’ fees in this case was not served by both the Ipoxes as joint personal representatives, the trial court erred in relying on it. Therefore, we reverse the award of attorneys’ fees.

However, we affirm the award of costs. In their reply brief, appellants argue that the award of costs should be reversed because the trial court liberally awarded costs based on the invalid proposal for settlement. This issue was waived because it was first raised in the reply brief. See Plichta v. Plichta, 899 So.2d 1283 (Fla. 2d DCA 2005); Se. Capital Fin. Inc. v. T/F Sys., Inc., 616 So.2d 482 (Fla. 4th DCA 1993). Even if the issue had not been waived, appellants have not demonstrated that the award of costs was not proper under the prevailing party costs statute, section 57.041(1), Florida Statutes (2001), which appellees relied upon in their motion for costs and which provides that “[t]he party recovering judgment shall recover all his or her legal costs and charges.”

Affirmed in part; reversed in part.

VTLLANTI and LaROSE, JJ., Concur.

      . The Reid court refers to the proposal for settlement by the plaintiffs in that case as an "offer of judgment.” 888 So.2d at 103. However, both the 2004 version (applicable in Reid) and the 2001 version (applicable in this case) of section 768.79 refer to a proposal by a plaintiff as a "demand for judgment.”


text:
    Walter E. MAGINNIS, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D04-3691.
    District Court of Appeal of Florida, First District.
    April 7, 2006.
    Walter E. Maginnis, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellee’s concession of error, the circuit court’s order transferring appellant’s petition for writ of mandamus is reversed and the case is remanded with directions to the circuit court to proceed to a disposition on the merits of the petition. See Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004); Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Tracy B. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3592.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant asserts that the trial court reversibly erred by imposing consecutive habitual violent felony offender sentences, each-with a minimum mandatory term of imprisonment, for offenses that arose from a single briminal episode. We agree as to counts III and IV. We, therefore, reverse the sentences as to those counts and remand for imposition of concurrent sentences as to counts III and IV. However, we conclude that the other offenses occurred during separate criminal episodes and uphold the consecutive sentences imposed as to those offenses. Because the criminal episode giving rise to the offenses charged in counts III and IV was separate from the criminal episodes giving rise to the remaining counts, the trial court is directed on remand to run the concurrent terms for counts III and IV consecutive to the sentences originally imposed on the remaining counts. Appellant need not be present for the ministerial act of correcting his sentences. Affirmed in part, reversed in part, and remanded.

KAHN, C.J., WOLF, and PADOVANO, JJ., Concur.


text:
    Joseph C. KEEGAN, Appellant, v. SOUTHLAND WASTE SYSTEMS and Liberty Mutual Insurance Company, Appellees.
    No. 1D05-1336.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Daniel J. Glary, Jacksonville, for Appellant.
    David R. Drill of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, Jacksonville, for Appellees.
   PER CURIAM.

Appellant seeks reversal of the JCC’s order denying his workers’ compensation claim. Appellant alleges that the JCC erred by failing to appoint an expert medical advisor (EMA) on his motion for such appointment based upon the presence of conflicting medical testimony on a material issue; Appellees allege in opposition that no conflicting testimony exists on a material issue and Appellant’s motion was untimely. We agree with Appellant because there is a conflict between the expert testimony of Drs. Shah and Solloway on a material issue, the JCC should have appointed an EMA, and under the circumstances of this case Appellant’s motion was timely.

Therefore, we REVERSE and REMAND for proceedings consistent with this opinion.

WEBSTER, BROWNING and POLSTON, JJ., concur.


text:
    Edward SHADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4555.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Pro se, Appellant.
    Charles Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. Appellant alleges three grounds for relief, only one of which has merit. Specifically, Appellant claims the portion of his sentence which requires hard labor is illegal. We agree.

Where a defendant commits his crimes after 1970, a hard labor condition constitutes an illegal sentence. Harris v. State, 902 So.2d 292 (Fla. 3d DCA 2005); Burney v. State, 705 So.2d 90 (Fla. 2d DCA 1997). Consequently, Appellant is entitled to have the condition of hard labor stricken from his sentence. Harris, 902 So.2d at 292; Burney, 705 So.2d at 90.

The case is remanded for the trial court to strike the condition of hard labor from Appellant’s sentence. Because this is simply a ministerial act, Appellant’s presence is not required. The trial court’s order is affirmed in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

ALLEN, LEWIS, and HAWKES, JJ., concur.


text:
    Viritti JACKSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D05-5912.
    District Court of Appeal of Florida, First District.
    April 11, 2006.

      Appellant, pro se.
    Scott D. Leemis, Jacksonville, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 15, 2005, the Court has determined that the appellant’s notice of appeal was untimely, and therefore failed to invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Claudio OSORIO, individually, and Miami Worldwide Partners, Inc., a Florida corporation, Appellants, v. INTEC, INC., a Florida corporation, and Marc Iacovelli, individually, Appellees.
    No. 3D05-2000.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Arista and Feldman, and Andrew Feld-man, Jacksonville, for appellants.
    Kluger, Peretz, Kaplan & Berlin, and Abbey L. Kaplan, and Michael B. Chesal, and Michael T. Landen, Miami, for appel-lees.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Claudio Osorio and Miami Worldwide Partners, Inc., seek an appeal of a non-final, non-appealable order. See Fla. R.App. P. 9.130. We treat the appeal as a petition for writ of certiorari and deny the petition. See Fla. RApp. P. 9.040(c).


text:
    Roderick ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3072.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Roderick Ellis has appealed his conviction for second degree murder with a deadly weapon. After giving the police interrogator four or five (inconsistent) explanations as to why he shot and killed Tommy Collins (“Sam”), his final story was one of self-defense.

We have reviewed the record and conclude that any errors the trial court may have made are harmless error beyond a reasonable doubt.

Affirmed.


author: CORTINAS, Judge.

text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. Antonio RAMOS, Respondent.
    No. 3D06-683.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Charles J. Crist, Jr., Attorney General, and Charles M. Fahlbusch, Senior Assistant Attorney General, Ft. Lauderdale, for petitioner.
    Bennett H. Brummer, Public Defender, and Robin Bengochea, Assistant Public Defender; Hilda A. Fluriach, Miami, for respondent.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

We review a petition for writ of certiora-ri and prohibition filed by the Agency for Persons with Disabilities (“Petitioner”). Petitioner challenges a court order requiring that, at least every other month, it transport Respondent from his residential placement location in Mount Dora, Florida to Miami, Florida, which involves a five-hour trip each way, for the purpose of visiting Respondent’s mother.

In 1997, Respondent was charged with second degree murder for causing the death of his four and one-half month old siblings by tossing them from a six-story balcony to the ground. Respondent was later found to be incompetent to stand trial due to his mental retardation, and was involuntarily admitted to a residential service treatment facility in Miami, Florida. In 2005, Petitioner gave notice that the residential facility in Miami was closing and that it was relocating Respondent to a facility in Mount Dora, which it determined to be the most appropriate placement for continued training and treatment. There has been no showing that Respondent has received inadequate training or treatment in any facility. Respondent was moved to the Mount Dora facility in June 2005.

In January and February of 2006, the trial court conducted two hearings to address concerns raised by Respondent’s mother, who resides in Miami, that it was costing her too much money to visit her son in Mount Dora. After these hearings, the court issued an “Order to Transport for Family Visitation,” which directed Petitioner to transport Respondent at least every other month from Mount Dora to Miami for the purpose of visiting his mother. The order further stated that any failure by Petitioner to comply would be sanctioned by the trial court.

Petitioner requests a writ of certiorari on the basis that the order under review departed from the essential requirements of the law. Johnson v. State, 728 So.2d 1204 (Fla. 3d DCA 1999). Alternatively, Petitioner seeks a writ of prohibition on grounds that the trial court was without jurisdiction or acted in excess of its jurisdiction in issuing its order. See English v. McCrary, 348 So.2d 293 (Fla.1977); Dep’t of Health and Rehabilitative Servs. v. Schreiber, 561 So.2d 1236 (Fla. 4th DCA 1990).

Recently, in State v. Everette, 911 So.2d 119 (Fla. 3d DCA 2004), we granted certio-rari and quashed an order requiring the Department of Children and Families (“DCF”) to transport Everett from his residential facility in Marianna, Florida to Miami, Florida for court-appointed expert evaluations that were mandated by statute. In Everette, we noted that section 393.11, Florida Statutes, under which Everett as well as Respondent herein were involuntarily committed, did not provide any guidance as to who was responsible for an individual’s transportation. See id. at 120. However, because Everett concerned a statutorily-mandated evaluation under section 916.303(2)(b), Florida Statutes (2004), to determine whether Everett continued to meet the criteria for secure residential placement, we found that section 916.107(10), Florida Statutes (2004), governed the issue of who was responsible for providing transportation, namely the Sheriffs Office. Everette, 911 So.2d at 120-21. Accordingly, we held that the trial court departed from the essential requirements of the law in ordering DCF to transport Everett. Id.

In this case, we deal with a court-ordered transportation of an individual committed to residential placement under section 393.11, Florida Statutes (2005), for a purpose that is not mandated by any statute or rule. As such, Petitioner argues that agency decisions concerning the transportation of individuals who are receiving residential services under section 393.11 constitute executive agency decisions which implicate determinations regarding the prioritizing of its funds. Petitioner maintains that these are matters not assigned to the judiciary to resolve. See Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401, 404 (Fla. 4th DCA 1999).

Nevertheless, Respondent cites to section 393.11(11) in support of his claim that the trial court acted within its authority. Section 393.11(11) provides, in pertinent part:

CONTINUING JURISDICTION. — The court which issues the initial order for involuntary admission to residential services under this section shall have continuing jurisdiction to enter further orders to ensure that the person is receiving adequate care, treatment, habil-itation, and rehabilitation, including psychotropic medication and behavioral programming.

§ 393.11(11), Fla. Stat. (2005).

We agree that the trial court has continuing jurisdiction to ensure that individuals such as Respondent are receiving “adequate care, treatment, habilitation, and rehabilitation, including psychotropic medication and behavioral programming.” However, the record in this case is devoid of any evidence or finding that the transportation of Respondent for a family visitation would address, much less serve, any of these purposes. While section 393.11(11) affords continuing jurisdiction to the trial court, the statute also expressly limits the matters over which this continuing jurisdiction may be exercised. We find that the trial court did not have continuing jurisdiction or authority to issue an order concerning the transportation of Respondent for family visitations and, therefore, the order departed from the essential requirements of the law.

Accordingly, we grant the petition for writ of certiorari and quash the order under review.

Certiorari granted; order quashed; and cause remanded.


author: POLEN, J.

text:
    Talmadge MOORE d/b/a High Standard Services, Appellant, v. Jeffrey CHODOROW, Linda Chodorow, Richard Latimer, individually, and Latimer Construction Corporation, Appellees.
    No. 4D05-939.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.

      Stephen M. Cohen, P.A., and Richard S. Tolbert, West Palm Beach, for appellant.
    Lee D. Mackson and Geoffrey L. Travis of Shutts & Bowen LLP, Miami, for appel-lees.
   POLEN, J.

This appeal arises from an Amended Final Judgment, following a three-day bench trial, finding against appellant Tal-madge Moore d/b/a High Standard Services (hereinafter “Moore”) and in favor of appellees Jeffrey and Linda Chodorow (hereinafter “the Chodorows”), Richard Latimer and Latimer Construction Corporation. We affirm, holding that the trial court did not err in interpreting the contract between the parties and in finding that Moore breached the contract.

Moore sued appellees for breach of contract and unjust enrichment. The Chodo-rows filed an answer, affirmative defenses, and a counterclaim for fraud and rescission. The Latimer defendants also filed an answer and affirmative defenses. The following evidence was adduced at trial.

The Chodorows own an approximately 8,700 square foot, two floor condominium unit in Aventura, Florida. In July of 2002, the Chodorows discovered a water leak in their condo. They called a contractor, Richard Latimer of Latimer Construction Corp., to fix the leak. When Latimer cut a hole in the ceiling to investigate the source of the leak, he discovered mold under the drywall. Over time, mold was discovered in other areas as well.

As Latimer did not have any professional experience in dealing with mold, they hired Moore to guide them in the issues relating to mold in the Chodorows’ home. Latimer told Moore that he did not have any professional experience in dealing with mold. Moore held himself out to be an expert in mold remediation and in the field of dealing with mold problems. Moore testified that he was aware that the Cho-dorows were relying on him to test for mold and to recommend solutions to their mold problem.

Moore visited the Chodorows’ home on July 9, 2002, and took some air samples around the home and the outdoor environment, which he sent out to a lab for analysis. Moore also took initial humidity readings showing over 60 percent humidity, which would sustain mold growth. Moore told them that they had a serious mold problem in the house and that, if it was his family, he would move out immediately, which they did. Moore also recommended that the Chodorows rent air scrubbers and dehumidifiers from him.

On July 11, 2002, Moore faxed a contract to Latimer for the rental of two air scrubbers and two dehumidifiers at a total cost of $420 a day. The contract, which was prepared by Moore specifically for the Chodorows, states “[t]hese machines are needed to control further damage caused by airborne mold.” Moore also orally told both Mr. Chodorow and Latimer that the machines were needed to control an existing airborne mold problem in the Chodo-rows’ condo. Also on July 11, 2002, Moore faxed Latimer a hand-written letter stating that the equipment would be monitored one or two times-a day by a Moore employee. Moore also charged the Chodo-rows a daily charge to change the filters. The Chodorows paid Moore for the first ten days that the equipment was at the condominium.

According to both Moore and the expert witnesses at trial, there is always some level of mold naturally present in the air, but the amount of airborne mold is not problematic inside a home unless the level is higher inside the home than in the outside air. The only way to determine whether there are mold spores in the air is to test the air, as mold spores are too small to be seen by the human eye.

On or about July 16, 2002, Moore received the lab results of the air samples that he took at the Chodorows” home on July 9, 2002. The lab results established that 'there were approximately 2.5 times more mold spores in the outdoor air than inside the Chodorows’ home on July 9, 2002, the day that he had told the Chodo-rows that they had an airborne mold problem.

Moore did not tell the Chodorows that the lab test results showed that there was less overall airborne mold inside their home than in the outside air. Instead, Moore reinforced his false representation that the Chodorows had unacceptably high levels of airborne toxic molds in their home in his October 10, 2002 report, discussing “the cause of the amplified levels of airborne toxic molds.” Moore left the equipment in the Chodorows’ home for 300 days, at a charge of $420 per day.

Moore admitted at trial that he did not perform a single test during the 300 days that the equipment was in the Chodorow’s home that showed that the level of mold spores inside the home was greater than the level in the outside air. He did not perform a single test that showed that the air scrubbers had any effect on the air quality in the Chodorows’ home, or that the contents of the Chodorows’ home would have been damaged absent either the air scrubbers or the dehumidifiers. During the entire period that the equipment was in the Chodorows’ home, Moore did not perform a single test of the air in the Chodorows’ home in comparison to the outside air.

The Chodorows began to doubt Moore’s expertise by October of 2002 and initiated attempts to hire a new remediator. Dr. Ronald Huggins of URS Corporation inspected the Chodorows’ home in March or April of 2003.

When Dr. Huggins inspected the Chodo-rows’ home in March or April of 2003, Moore’s equipment was still set up in the home. Upon Huggins’ first visit to the home, he inquired as to what the equipment was for, as he saw no need for it. On Huggins’ second visit to the Chodo-rows’ home in May of 2003, Huggins stated that the equipment should be removed because it was not serving any useful purpose. As a result, the Chodorows told Moore to remove the equipment, which he did on May 7, 2003.

In June of 2003, approximately six weeks after the equipment was removed, Dr. Huggins tested the air inside the Cho-dorows’ home and compared it to the outside air. Those test results established that the air in the Chodorows’ home had a lower mold spore count than in the outdoor air, meaning the home did not have an airborne mold problem in June of 2003.

Dr. Huggins also reviewed Moore’s July 16, 2002, test results and concluded that the home did not have an airborne mold problem at that time either. Huggins testified that Moore did not perform any tests showing that the equipment was necessary to control airborne mold damage or to protect the Chodorows’ furnishings. Huggins testified that the numbers from Moore’s July 9, 2002, test results were “really, really low,” establishing that the Chodorows did not have an airborne mold problem in their home.

Dr. Huggins also testified that Moore’s representation in the contract that the machines were “needed to control further damage caused by airborne mold” and Moore’s subsequent representation in his October 10, 2002 report that there were “amplified levels of airborne toxic molds” in the Chodorows’ home were false. Moreover, Dr. Huggins testified, even if the Chodorows had an airborne mold problem, the equipment Moore rented to them would have been ineffective because Moore failed to properly monitor and properly place the equipment. Finally, Huggins testified that Moore did not, and could not, inhibit mold growth in the Chodorows’ home by attempting to reduce the humidity, as the mold which existed behind and underneath structures in the home was the result of ongoing water intrusion, which would have to be stopped first. Additionally, the Chodorows’ air conditioning system was sufficient to reduce humidity levels in the condo.

At trial, Moore relied on his expert witness, Arcade Dugay, who testified that the equipment Moore rented to the Chodorows was necessary.

Following the three-day non-jury trial, the trial court entered the final judgment now being appealed. The court found that Moore materially breached his contract with the Chodorows in three ways: (i) failing to advise them that the equipment was not needed as of July 16, 2002, or, at a minimum, failing to tell them that .the testing revealed no airborne mold problem, allowing them to make the decision of whether they wished to continue to rent the equipment; (ii) failing to properly monitor the equipment; and (iii) failing to properly place the equipment. The court held that the Chodorows are relieved from paying any additional rental fee, based on Moore’s material breaches.

The trial court also found that' the Chodorows owed Moore $2,321 plus prejudgment interest for repair work .they acknowledge Moore did in the master bedroom. The court found that Moore should take nothing by way of his claim against the Latimer defendants. Finally, the court found that the Chodorows should recover nothing against Moore for their counterclaims. Moore appealed.

First, Moore argues that the trial court erred in interpreting the contract between the parties. “Construction of a contract is a question of law which an appellate court may consider de novo provided that the language is clear and unambiguous and free of conflicting inferences.” Miller v. Kase, 789 So.2d 1095, 1097 (Fla. 4th DCA 2001). Moore argues that the trial court incorrectly construed the July 9, 2002 contract to mean that the parties intended for the machines to reduce or eliminate existing airborne mold. He contends that it is clear that the parties’ real intention regarding the formation of the contract was to reduce the level of moisture in the air and to guard against what might happen with regard to the potential release of mold spores in the air.

We hold that Moore’s contention regarding the parties’ intention in contracting to rent the equipment is incorrect because it conflicts • with the clear language of the contract, which Moore drafted specifically for the Chodorows. The language used in a contract is the best evidence of the intent and meaning of the parties. Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002); see also Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) (“It is axiomatic that the clear and unambiguous words of a contract are the best evidence of the intent of the parties. Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning.”) (citations omitted). The handwritten contractual language for the July 9,-2002 contract to rent the air scrubbers and dehumidifiers states “[tjhese machines are needed to control further damage caused by airborne mold.” Therefore, we hold that trial court properly construed the contract as written.

Second, Moore argues that the trial court erred in finding that he breached the contract. Whether a party’s failure to commit certain actions constitutes a material breach of an agreement is reviewed as a question of fact. Haiman v. Fed. Ins. Co., 798 So.2d 811 (Fla. 4th DCA 2001). Appellate courts “do not, and cannot, reweigh factual findings of trial courts; we only determine if they are legally sufficient to support the judgment.” Crooks v. Atl. Nat’l Bank of Fla., 445 So.2d 1042, 1042 (Fla. 5th DCA 1984). Additionally, “[a]s an appellate court, we must disregard conflicting evidence and accept the facts in evidence which are most favorable to the party that prevailed below.” Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705, 708 (Fla. 4th DCA 1985).

Here, where the trial court relied upon three independent bases for finding that Moore breached the contract, the appellate court may set aside the trial court’s decision only if Moore meets his burden of demonstrating that all three of these bases were unsupported by competent, substantial evidence. See Research & Design, Inc. v. Heico Corp., 566 So.2d 290 (Fla. 4th DCA 1990). The court found that Moore materially breached his contract with the Chodorows in three ways: (i) failing to advise them that the equipment was not needed as of July 16, 2002 or, at a minimum, failing to tell them that the testing revealed no airborne mold problem, allowing them to make the decision of whether they wished to continue to rent the equipment; (ii) failing to properly monitor the equipment; and (iii) failing to properly place the equipment. After reviewing the record, we hold that the trial court’s findings are supported by competent, substantial evidence.

Based on the foregoing, the Amended Final Judgment is affirmed.

SHAHOOD and TAYLOR, JJ., concur.

      . Latimer is a high-end interior contractor who had performed the interior build-out for the Chodorows when they bought the condo.

      . Moore is a certified mold remediator and a certified indoor environmentalist. He was n,ot asked and did not testify as to the bases for his certifications.

      . Dr. Huggins has a B.S. in Biology, an M.S. in Environmental Biology, an M.P.H. in Environmental Health/Industrial Hygiene, and a Ph.D. in Industrial Hygiene/Toxicology. He has an extensive background and career in assessing air quality and evaluating damage due to water intrusion and mold.

      . Dugay does not have a college degree or a resume. He testified that 0.5% of his work is testing for mold contamination and he relies on industrial hygienists to do mold testing. Dugay stated that he spent approximately one hour reviewing the case at the time of the trial. He never visited the Chodorows' home or saw pictures or videos of the home. He did not review any test results or documents, nor did he conduct any tests, before forming his opinion.

      . Additionally, there was testimony at trial that Moore also orally told both Mr. Chodo-row and Latimer that the machines were needed to control an existing airborne mold problem in the Chodorows' condo.


author: MAY, J.

text:
    Myles Kenneth LEIGHTON, individually, and Network Lending Group, Inc., a Florida limited liability corporation, Appellants, v. FIRST UNIVERSAL LENDING, LLC, a Florida limited liability corporation, Appellee.
    No. 4D05-3030.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.

      Richard A. Kupfer, P.A., West Palm Beach, and McKeown & Associates, P.A., West Palm Beach, for appellants.
    Justin M. Pearson of Feingold & Kam, LLC, Palm Beach Gardens, for appellee.
   ON MOTION FOR REHEARING

MAY, J.

The appellant filed a motion for rehearing, which we deny. However, we withdraw our opinion of February 15, 2006, and substitute the following in its place to correct a factual error in the original opinion.

The plaintiffs, counter-defendants, Myles Kenneth Leighton [Leighton] and Network Lending Group, LLC [Network Lending], appeal an injunction enforcing a restrictive covenant not to compete with the defendant First Universal Lending, LLC [First Universal]. They argue the trial court improperly entered the injunction and further erred in extending it to Network Lending, which had not been named as a- party or served with the complaint for injunctive relief. We affirm the injunction as it relates to Leighton, but reverse the injunction to the extent it enjoins Network Lending.

Leighton was employed by First Universal as a loan officer. As part of his employment, Leighton signed a non-compete agreement. Leighton left First Universal approximately thirteen months later and immediately opened Network Lending within two miles of First Universal’s office.

Leighton sued First Universal for $9,954.25 in commissions allegedly owed to him. First Universal responded by moving to dismiss the complaint and filing a counterclaim solely against Leighton to enforce the non-compete agreement. The trial court held an evidentiary hearing on the counterclaim for injunctive relief, and enjoined Leighton and Network Lending from all competition with First Universal within fifty miles of First Universal’s offices.

Leighton argues the trial court erred when it failed to consider his allegations of unpaid commissions before entering the injunction. First Universal responds that Leighton failed to preserve the issue and failed to present evidence at the hearing to prove his allegations. We find the issue was preserved, and while Leighton testified that First Universal failed to pay him two commissions, the trial court apparently did not find the evidence sufficient to preclude the entry of an injunction against him.

Section 542.335, Florida Statutes (2005), governs the enforceability of non-compete clauses. Non-compete clauses are valid so long as the contracts are reasonable in time, area, and line of business. 542.335(1). In determining the enforceability of non-compete clauses, the trial court must consider all applicable legal and equitable defenses. 542.335(l)(g)3, Fla. Stat. (2005). An employer’s breach of the contract is an equitable defense to the enforcement of a non-compete clause. Benemerito & Flores, M.D.’s, P.A. v. Roche, 751 So.2d 91, 93 (Fla. 4th DCA 1999). However, there must be evidence of that breach.

Here, the trial court made the requisite findings and conclusions required by section 542.335. The trial court concluded the non-compete clause was in writing and signed by both parties, was reasonably necessary to protect a legitimate business interest, and was reasonable in scope and duration. Leighton, however, failed to convince the trial court that an injunction should not issue.

“To the extent it rests on factual matters, an order imposing a permanent injunction lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion.” St. Lucie County Radiation Oncology, Ltd. v. Woody, 766 So.2d 301, 301 (Fla. 4th DCA 2000) (quoting Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993)). We find no abuse of discretion in the trial court’s findings in this case and affirm the injunction against Leighton.

The error in this case is a technical one involving Network Lending. “A court is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action.” Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579, 583 (Fla. 5th DCA 2003). “An injunction can lie only when its scope is limited in effect to the rights of parties before the court.” Id. (citations omitted).

Leighton and Network Lending claim the trial court erred in enjoining Network Lending when it was neither named as a party nor served with the claim for injunctive relief. Further, they argue the trial court made no finding that Network Lending was the alter ego of Leighton. First Universal responds that Network Lending’s entire existence was based on information Leighton stole from First Universal. It also claims that an injunction may bind non-parties identified with parties in interest, in privity with them, represented by them, or subject to their control. See Dad’s Props., Inc. v. Lucas, 545 So.2d 926 (Fla. 2d DCA 1989).

There is no doubt that a court can enjoin others who were not parties to the non-compete agreement. However, those parties must receive notice and have an opportunity to be heard. Sheoah Highlands, 837 So.2d at 583. Here, Network Lending was neither named in the claim for injunctive relief nor served. An injunction cannot bind parties who are not before the court.

We affirm the injunction entered against Leighton, but reverse the injunction against Network Lending.

STEVENSON, C.J., and WARNER, J., concur.

      . The record submitted contains random portions of the hearing transcript making it difficult to discern all the evidence the trial court had to consider in making its decision.

      . We acknowledge the trial court applied a statute, section 542.33, Florida Statutes, which had been repealed. Section 542.335 of the Florida Statutes applies to a non-compete clause entered into after July 1, 1996. Nevertheless, the court's findings are in compliance with the proper statute.


text:
    Danny SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3709.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The appellant, Danny Smith, timely appeals his conviction and sentence for possession of cocaine and drug paraphernalia. The appellant contends that the trial court erred in denying his motion to suppress drugs and paraphernalia found when the police officer searched him. Because we conclude that the officer witnessed an assault perpetrated by the defendant who was armed with a stick, there was reasonable suspicion that appellant was armed and the officer’s weapons pat-down of appellant was proper. Thus, we affirm the trial court’s ruling.

On the evening of March 22, 2004, Deputy Michael Coker of the Broward County Sheriffs Office was dispatched to an address in Pompano Beach. When Deputy Coker arrived at the address, he heard screaming and yelling coming from a southward direction, as though a fight was taking place. As the deputy approached, he saw the appellant swinging a mop stick at another individual, while screaming and yelling. The appellant and the other individual were in the doorway of the house. The appellant swung the stick several times, but the deputy never saw the appellant actually hit the other man with the stick. However, the appellant was close enough to the other man so that he could have hit him. After the deputy gave the appellant several commands to drop the stick, he ultimately let go of it. The deputy then placed the appellant in handcuffs and patted him down. During the pat-down of appellant, the officer felt a pipe in the appellant’s pocket. Through his training and experience, he believed it was a hitter pipe. He then reached into appellant’s pocket and seized the pipe and a package of cocaine.

At the hearing on the motion to suppress, appellant contended that the deputy did not have reasonable suspicion to conduct a weapons pat-down. The deputy countered that he did not know whether the appellant had any other weapons on his person after he dropped the stick. Therefore, he was concerned for general safety reasons, both for himself and the people in the area. The deputy testified that he wanted to conduct an investigation before making an arrest. He maintained that the appellant was not under arrest at the time of the pat-down, even though he had handcuffed appellant. He also testified that he always conducts a pat-down for weapons before placing persons in his patrol car, which he intended to do with appellant. Based upon the evidence presented by the deputy, the trial court denied the motion to suppress, and the appellant then pled no contest, reserving his right to appeal the denial of the suppression.

The officer witnessed an assault committed by the appellant upon another individual when he saw the appellant swing a mop handle several times at the individual. See § 784.011(1), Fla. Stat. In order to get control of the situation and to farther his investigation, the officer handcuffed the appellant and conducted a pat-down preliminary to placing appellant in his patrol car.

An officer may, consistent with the Fourth Amendment, conduct a brief, investigatory detention of an individual when the officer has a reasonable, articula-ble suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Florida Stop and Frisk Law allows an officer, who has validly stopped an individual, to search the individual only if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5), Fla. Stat. Our supreme court has indicated that the meaning of “probable cause” in this statute is not synonymous with the stricter probable cause standard used to evaluate the legality of a search warrant or an arrest. See State v. Webb, 398 So.2d 820 (Fla.1981). As used in section 901.151(5), probable cause means reasonable belief or suspicion. Id. at 824-25. Therefore, if the officer develops a reasonable suspicion that the suspect is armed and dangerous, then a weapons pat-down is justified. Williams v. State, 874 So.2d 45, 47 (Fla. 4th DCA2004).

Appellant contends that the pat-down was unconstitutional because the deputy did not have any particularized information that the appellant was armed and dangerous. We disagree. In this case, appellant was armed with a stick, which was being used as a club. He was acting in a dangerous and threatening manner by freely swinging it at another individual. Although appellant had already dropped the stick at the time of the pat-down, we think his earlier possession of the stick, which he was using as a club, provided the officer with the necessary reasonable suspicion to conduct a weapons pat-down. If the appellant had a gun or knife in his hand, would the officer not have been justified in searching for other weapons? We think the answer is obviously yes.

The officer saw an assault and saw that the appellant was armed with an instrument which could cause harm. The mere fact that the suspect is visibly armed with one weapon or instrument being used in a violent way would create reasonable suspicion to conduct a further weapons pat-down pursuant to Terry and section 901.151(5).

Affirmed.

KLEIN and HAZOURI, JJ., concur.


text:
    Elwood J. HUNNEWELL, Jr., et al., Appellant, v. PALM BEACH COUNTY, et al., Appellee.
    No. 4D04-3278.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.
    Elwood J. Hunnewell, Jr., Loxahatchee, pro se, for appellant.
    Kellie J. Killebrew, Deland, for appellee.
   MAY, J.

The plaintiff appeals an order dismissing his complaint for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420(e). ■ He argues, among other issues, that the court erred in dismissing his complaint. We agree and reverse.

The plaintiff owns real property in Palm Beach County, a homestead and agricultural land. The Code Enforcement Board of Palm Beach County has cited the plaintiff for a variety of code violations on both properties over the years, resulting in hundreds of thousands of dollars in liens. The plaintiff filed suit against the County when he was unable to sell the agricultural land once the buyer became aware of the outstanding liens. The amended complaint alleged claims for writs of mandamus, declaratory and injunctive relief, and damages.

The trial court denied the plaintiffs claim for injunctive relief and his motion for reconsideration, the latter order being entered on January 28, 2002. Approximately fifteen months later, the County moved to dismiss the amended complaint for lack of prosecution, pursuant to rule 1.420(e). The plaintiff filed a response the day before the hearing, claiming that pending bankruptcy proceedings had automatically stayed the action. The trial court denied the motion on August 19, 2003.

Approximately six months later, the County filed a second motion to dismiss for lack of prosecution on February 26, 2004. In response to this motion to dismiss, the plaintiff claimed that attempts to mediate made it appear he was not prosecuting the action.

Relying on the pending bankruptcy proceedings and the date of the County’s last motion to dismiss, the trial court again denied the motion. However, upon consideration of the County’s motion for reconsideration or rehearing, the trial court granted the motion and dismissed the case without prejudice. From this order, the plaintiff filed a motion for rehearing or amendment and a notice of appeal.

Although dismissals for lack of prosecution pursuant to rule 1.420(e) of the Florida Rules of Civil Procedure are without prejudice, and not res judicata, they are final for purposes of appellate review. Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298, 299 n. 3 (Fla. 4th DCA 1981). We review such orders by utilizing the following analysis.

Dismissal is mandatory if it is demonstrated to the court that no action toward prosecution has been taken within a year. The trial judge has no discretion in the enforcement of this aspect of this rule. The abuse of discretion standard is triggered only if the trial court must make a determination of good cause.

Metro. Dade County v. Hall, 784 So.2d 1087, 1090 n. 4 (Fla.2001) (citing Little v. Sullivan, 173 So.2d 135, 136 (Fla.1965)).

Prior to January 1, 2006, rule 1.420(e) provided:

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or hot, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ, P. 1.420(e).

Our supreme court recently reviewed the application of rule 1.420(e) while answering a certified question from the Second District Court of Appeal. Wilson v. Salamon, 923 So.2d 363 (Fla.2005), reh’g denied (Feb. 15, 2006). It appears our supreme court sensed the need for a bright-line test to balance the competing need of litigants to have claims heard on the merits with the court’s need to dispose of cases that are not being prosecuted. Id. at 367-368. In doing so, the supreme court stated: “if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending.” Id. at 368. However, after Wilson, “trial court orders that are entered and filed to resolve motions that have been properly filed in good faith are to be treated as record activity precluding dismissal under rule 1.420(e) of the Florida Rules of Civil Procedure.” Id. at 363-364. This eliminated the need for trial courts to review the last record activity to determine if it was passive or active and designed to hasten the suit to a conclusion.

Thus, the resolution of this case now rests on the date of entry of the trial court’s order denying the County’s first motion to dismiss, August 19, 2003. Only six months had elapsed from the date of the trial court’s order when the County filed its second motion to dismiss. This time period was insufficient to satisfy rule 1.420(e). Since Wilson, this is an order behind which neither the trial court nor this Court need look to determine whether it was active or passive activity. See Wilson, at 363, 368-369.

We therefore reverse the order dismissing the plaintiffs amended complaint and remand the case to the trial court. We find no merit in the other issues raised.

Reversed.

GROSS, J., and IMPERATO, CYNTHIA G., Associate Judge, concur.

      . The newly amended rule, effective January 1, 2006, provides that a motion may be filed when no record activity has occurred after ten months. In re: Amendments to the Fla. R. Civ. P., 917 So.2d 176, 176 (Fla.2005). The plaintiff is then given sixty days in which to conduct record activity. Id. If no record activity occurs during that sixty-day period, "reasonable notice shall be provided to the parties and the action shall be dismissed in the absence of a demonstration of good cause.” Id. The Committee Notes explain that the amendment provides a plaintiff with a clear opportunity to avert dismissal by recommencing prosecution of his action. Id. at 182.

      . We note the trial court did not have the benefit of Wilson when deciding the motion to dismiss.

      . The irony is that the trial court incorrectly denied the County’s first motion to dismiss by misconstruing the federal provision for stays of state court proceedings during bankruptcy proceedings. See 11 U.S.C. § 362(a) (2000); Simpson v. United States, No. 90-30021-RV, 1992 WL 448860 (N.D.Fla.1992); Assn of St. Croix Condo. Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3d Cir.1982).


author: KLEIN, J.

text:
    Marcus GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3123.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2006.

      Hilliard E. Moldof, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was found guilty of armed trafficking in cocaine, attempted felony murder, armed robbery and conspiracy to traffic in cocaine. We reject his argument that the circumstantial evidence of a cocaine conspiracy was insufficient to overcome his reasonable hypothesis of innocence, which was that appellant thought he was participating in a marijuana purchase.

A confidential informant set up a two-kilogram cocaine purchase between a man from Tampa known as “Peanut” and a Fort Lauderdale police detective. During the planning Peanut referred to more than one purchaser being involved, and one of the other people was Richie. The detective listened in on a telephone conversation in which Peanut and “two friends” were to deliver $46,000 for the two kilos of cocaine. Thus, on the day the purchase was to occur, the officer knew that three people would be participating, but appellant had not been identified as being involved.

The police rented two hotel rooms, so that the informant could meet the buyers in one, while the officers monitored and taped the transaction from the other. At the pre-arranged time Peanut, Richie, and appellant entered the informant’s hotel room, and appellant was carrying a duffel bag. They asked to see the “dope,” and the informant asked to see the money in order to make sure there was $46,000. Appellant handed the duffel to Richie, and Richie showed the informant a clear plastic bag containing money in stacks which was visible in the duffel. The informant then went to his car to get the cocaine. When the informant returned with the cocaine, which was in a cell phone box, Richie and appellant each pulled out guns and pointed them at the informant’s head. Richie handed the cocaine to appellant, and appellant put the cocaine into the duffel bag. When a voice on the other side of the door announced that it was the police and instructed the men inside to come out with their hands up, Richie then turned out the light and fired a shot through the door. At that point appellant moved to the bathroom with the duffel, the money, and a gun in his hand.

Appellant gave a statement to the police stating that he thought he was coming from Tampa to Fort Lauderdale to purchase marijuana and that he had no knowledge in advance that cocaine was involved. He told the police that the money in the duffel was “business money.” The money, as it turned out, was in stacks of 1 dollar bills, except for the top and bottom, which had either a 100 dollar bill or a 50 dollar bill. It amounted to $1,646, but was disguised to appear as $46,000. The police retrieved the contraband, which was cocaine inside a sealed package covered with duct tape. It weighed 2 kilograms or 4-1/2 pounds. A detective testified that the street value of 4 pounds of marijuana was $4,500.

Appellant testified at trial that he had brought $500 with which he intended to buy marijuana to sell in nickel and dime bags, and that he knew nothing about a cocaine deal. He denied that he held a gun, even though the videotape showed that he and Richie pointed their guns at the informant’s head as soon as they got the cocaine. He also denied taking possession of the drugs even though the videotape showed that he did.

Appellant argues that the trial court should have granted his motion for directed verdict on the charge of conspiracy to traffic in cocaine because the evidence that he knew cocaine was involved was all circumstantial, and he had a reasonable hypothesis of innocence, which is that he thought he was buying marijuana. T.R.W. v. State, 732 So.2d 466 (Fla. 2d DCA 1999) (intent to possess marijuana, rather than cocaine, can be a reasonable hypothesis of being innocent of a cocaine charge).

Under State v. Law, 559 So.2d 187 (Fla.1989), a trial court must grant a motion for judgment of acquittal in a circumstantial evidence case if the state does not offer evidence which is inconsistent with the defendant’s reasonable hypothesis of innocence. In this case, the following evidence is inconsistent with appellant’s hypothesis.

Appellant was carrying the money, which was visible and disguised to appear to be $46,000, the price agreed on in advance for the two kilos (four and one-half pounds) of cocaine. That amount would have purchased forty pounds of marijuana, which would have been much larger and heavier; however, the videotape showed that appellant did not react in surprise when the seller of the cocaine produced the small box, the contents of which weighed four and one-half pounds. Accordingly, if the money which appellant was carrying was in fact $46,000, that was inconsistent with appellant’s hypothesis that this was a marijuana purchase. If, on the other hand, appellant knew that this was really only $1,646, the evidence showed that would have been enough to purchase a pound and a half of marijuana, but then there would have been no reason to package the money to appear to be $46,000. Accordingly, the money, which was in appellant’s possession, was inconsistent with his hypothesis that he was only there to buy $500 worth of marijuana,

In addition, the informant testified that the deal was supposed to have taken place the day before, but was postponed, because Richie, who was in Tampa, was “busy” with $250,000 worth of marijuana. That evidence is inconsistent with appellant’s hypothesis that they would have been coming from Tampa to Fort Lauder-dale merely to buy marijuana.

Appellant also argues that the trial court erred in not giving a lesser included instruction on attempted trafficking in cocaine, because there was evidence that the conspirators did not receive the cocaine. The videotape showed Richie receiving the cocaine from the informant and handing it to appellant. It further showed the appellant putting the cocaine into the duffel bag. The evidence on which appellant relies was simply his denial, in his testimony, that he had received the drugs.

A defendant is entitled to an instruction on a theory of defense, no matter how “weak or improbable, his testimony might have been.” Vazquez v. State, 518 So.2d 1348 (Fla. 4th DCA 1987); Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA 1982). Assuming appellant’s denial that he possessed the drugs, notwithstanding the videotape showing that he did, is enough evidence to warrant an instruction on attempt, there was no evidence that Richie, the co-conspirator, did not take possession of the drugs. Because appellant and Richie were acting in concert, the act of Richie taking possession of the drugs, which was undisputed, is the act of appellant. Arnold v. State, 83 So.2d 105 (Fla.1955). Accordingly, there was no evidence of anything other than the completed act of trafficking, and the court did not err in denying the instruction on attempt. Affirmed.

WARNER and HAZOURI, JJ., concur.