text:
    MIAMI-DADE COUNTY, Appellant, v. Emilio FERRER, Appellee.
    No. 3D05-1288.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Murray A. Greenberg, Miami-Dade County Attorney, and Thomas H. Robertson, Assistant County Attorney, for appellant.
    Lourdes E. Ferrer, Hollywood, for ap-pellee.
    Before SUAREZ and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Miami-Dade County (the “County”) appeals the order denying its request for attorney’s fees. We reverse and remand for further proceedings.

The County asserts that the trial court improperly denied its request for statutory attorney’s fees due to Emilio Ferrer’s rejection of its reasonable offers of settlement. Ferrer has failed to file a brief in this appeal, but argued below that the County’s offers of settlement were invalid and preclude the County from collecting statutory fees.

Ferrer sued the County for false imprisonment and battery due to the actions of a police officer. Prior to trial, the County presented Ferrer with two offers of judgment both on the same day pursuant to Florida Statutes section 768.79, and Florida Rule of Civil Procedure 1.442. One offered to pay Ferrer $1,000 in exchange for his dismissal with prejudice of his claim for false imprisonment. The other offered to pay him $1,000 in exchange for his dismissal with prejudice of his claim for battery. Ferrer rejected the offers and proceeded to trial. The jury found that the County was not liable and Ferrer collected nothing. The County sought statutory attorney’s fees for the cost of defending the suit because Ferrer collected nothing and rejected its offers of judgment. Ferrer argued that the offers were invalid because the damages for the two counts overlap and therefore made the settlement proposals ambiguous. The trial court denied attorney’s fees and the County appeals.

Section 768.79, Florida Statutes (2005), provides for an award of reasonable costs and attorney’s fees when: “(1) a party has served a demand or offer for judgment; and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer.” Hannah v. Newkirk, 675 So.2d 112, 114 (Fla.1996).

The Florida Rules of Civil Procedure require that a settlement proposal:

(A) name the party of parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).

Fla. R. Civ. P. 1.442(c)(2).

The language of rule 1.442 “must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own fees.” Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). An appellate court applies the de novo standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 because a “proposal for settlement is in the nature of a contract.” Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002).

The County’s request for statutory attorney’s fees should have been granted because the County’s settlement proposals were valid and unambiguous. “[A] proposal for settlement should be as specific as possible, leaving no ambiguities, so that the recipient can fully evaluate its terms and conditions.” Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004). Here, the County’s offers of judgment are clear and unambiguous. Ferrer would receive $1,000 if he dismissed with prejudice his claim for false imprisonment, and $1,000 if he dismissed with prejudice his claim for battery. The two claims are not conditioned on each other, and Ferrer could have settled one claim and proceeded to trial on the other. Connell, 866 So.2d at 92 (noting that, “[wjhile a proposal for settlement may settle only a portion of a lawsuit, a valid proposal for settlement must at least settle that portion with certainty”); Lucas v. Calhoun, 813 So.2d 971, 972 n. 1 (Fla. 2d DCA 2002) (suggesting that, where the proposal for settlement addresses fewer than all the damage claims, it may be a better practice to identify the specific damage elements in the proposal; however, such a suggestion is not necessary where, as in this case, the proposal seeks to settle a specific count). Therefore, the County’s settlement proposals are unambiguous and satisfy the statute and the rule.

Accordingly, the trial court’s order denying statutory attorney’s fees is reversed and the matter is remanded for the lower court to determine the amount of fees to which the County is entitled.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    H J PROPERTIES CORP., Appellant, v. MAKO MARINE INTERNATIONAL, INC., Appellee.
    No. 3D06-938.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.

      Reimer & Rosenthal and Alex P. Rosen-thal and Jennifer S. Rao (Weston), for appellant.
    Zuckerman Spaeder and Thomas J. Meeks; King & Spalding and Russell D. Workman (Houston, Texas), for appellee.
    Before FLETCHER, SHEPHERD and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Morris v. Knox Corp., 153 Fla. 130, 13 So.2d 914 (1943); Coin Laundry v. Gilbert, 597 So.2d 926 (Fla. 1st DCA 1992).


text:
    Rainer PEREZ-BOZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1498.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Rainer Perez-Boza, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Defendant argues that he is entitled to jail-time credit which was not waived as part of a plea agreement. Because the record now before us fails to make the required showing, see Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005), we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Fernando FOLCHI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1549.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Fernando Folchi, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

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


author: ROTHENBERG, Judge.

text:
    Andre Odell GREGORY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1604.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Andre Odell Gregory, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Andre Odell Gregory, petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel. The Florida Supreme Court has consistently held that appellate counsel will not be deemed ineffective for failing to raise issues that were not properly raised during trial court proceedings and do not present a question of fundamental error. See Valle v. Moore, 837 So.2d 905, 907-08 (Fla.2002); see also Coney v. State, 937 So.2d 255, 256 (Fla. 3d DCA 2006). We, therefore, deny the petition.

Petition for writ of habeas corpus denied.


text:
    Benjamin RODGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3899.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Benjamin Rodgers, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

The appellant, Benjamin Rodgers, appeals the denial of his rule 3.800(a) motion to correct illegal sentence. Rodgers claimed the scoresheet prepared for his no contest plea to the charge of possession of a firearm by a convicted felon contained erroneously scored prior record offenses. Specifically, Rodgers believed the score-sheet improperly scored his two military convictions for rape as level 10 offenses. It does not appear that the military conviction was made a part of the record. The lower court denied relief, believing an evi-dentiary hearing was necessary to compare the military convictions to the applicable Florida Statutes for sexual battery and therefore not cognizable under rule 3.800(a). We agree that from our record on appeal, it does not appear that the record was sufficient to determine the issue without an evidentiary hearing. Moreover, appellant would not be entitled to relief even if the military convictions were scored on the scoresheet at the offense level which he contends is correct.

Florida Rule of Criminal Procedure 3.704(d)(14) requires the court to include, under prior record, offenses committed by the offender in other jurisdictions, including offenses committed while serving in the military. These convictions “are scored at the severity level at which the analogous or parallel Florida crime is located.” Fla. R.Crim. P. 3.704(d)(14). In Holybrice v. State, 753 So.2d 621 (Fla. 4th DCA 2000), we noted that when applying this rule, courts must review “only the elements of the out-of-state crime, and not the underlying facts....” Id. at 623 (quoting Dautel v. State, 658 So.2d 88, 91 (Fla.1995)).

Appellant contends that if the two military convictions were correctly scored, his scoresheet would have been reduced by twenty points. However, because the same sentence “could have been imposed” under the scoresheet corrected as appellant claims, any error was harmless. See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006) (en banc).

GUNTHER, WARNER and HAZOURI, JJ., concur.


text:
    Edward BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3684.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Edward Bell, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See MacFarland v. State, 929 So.2d 549 (Fla. 5th DCA 2006).

GUNTHER, GROSS and MAY, JJ., concur.


text:
    Michael S. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2435.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Michael S. Smith, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm, but without prejudice to appellant filing an amended motion that includes the oath required by Florida Rule of Criminal Procedure 3.850(c). Filing must be accomplished within thirty days of the date of this opinion to be considered timely.

POLEN, FARMER and TAYLOR, JJ., concur.


text:
    Terrence MURPHY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2982.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2006.

      Terrence Murphy, pro se, Petitioner.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. Within 30 days, the circuit court shall rule on petitioner’s motion to amend and amended motion for relief from judgment which were filed after the circuit court issued the final order denying mandamus relief.

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


author: PER CURIAM..

text:
    Anthony T. FINN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5581.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2006.
    Anthony T. Finn, pro se, Petitioner.
    Connie Lynn Beach and Judy Bone, Assistants General Counsel, Tallahassee, for Respondent.
   PER CURIAM..

Petitioner, a prisoner who was re-imprisoned after violating the probationary portion of a true split sentence, exhausted his administrative remedies seeking credit for the time petitioner had already served in prison. Petitioner then filed in the lower tribunal a petition for writ of mandamus. For this filing, a hen was imposed against petitioner’s trust account pursuant to section 57.085, Florida Statutes.

In the instant petition for writ of certio-rari, petitioner does not challenge the lower court’s denial of the prison credit issue in the final order denying mandamus. Petitioner does assert, however, that the lower court erred in imposing a lien on petitioner’s prison trust account. We agree and therefore grant the petition for writ of certiorari. Because petitioner’s mandamus action, if successful, would have directly affected the amount of time that petitioner would spend in prison, the mandamus action was a collateral criminal proceeding. Therefore, the May 10, 2005, order imposing the 57.085 lien on petitioner’s prison trust account, and the July 8, 2005, order denying petitioner’s June 10, 2005, motion for relief from the May 10, 2005, order, are VACATED. This cause is REMANDED for entry of an order directing the reimbursement to petitioner of those funds withdrawn from his account pursuant to the lien. See Austin v. McDonough, 31 Fla. L. Weekly D2621, 2006 WL 2986475 (Fla. 1st DCA 2006).

ERVIN, DAVIS, and BENTON, JJ., concur.


text:
    Johnnie Clifford MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5555.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2006.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Johnnie Clifford Moore appeals his convictions and sentences for lewd and lascivious molestation on a child under twelve years of age by a person eighteen or older and for lewd and lascivious exhibition. Moore raises three issues on appeal. We affirm.

Moore first argues the trial judge abused his discretion when he allowed similar fact evidence of a prior incident of child molestation to be heard by the jury. In criminal cases dealing with child molestation, a defendant’s commission of other acts of child molestation may be considered for its bearing on any matter that is relevant. § 90.404(2)(b), Fla. Stat. (2005). The admission of such evidence, however, is still subject to the relevancy requirements of section 90.403, Florida Statutes. See McLean v. State, 934 So.2d 1248, 1251 (Fla.2006). The similarity of the previous episode of child molestation to the charged offense is the key consideration in admitting such evidence. Id. at 1259. In this case, as the previous act of child molestation shared numerous similarities with the charged offense, the trial judge did not abuse his discretion in admitting the evidence.

Next, Moore argues the trial judge abused his discretion in allowing three different witnesses to testify to the child’s hearsay statements. Section 90.803(23), Florida Statutes, governs the admission of such statements. Here, the child testified, the defendant received proper notice, and the trial judge specifically found that the statements were reliable. See § 90.803(23), Fla. Stat. (2005). The trial judge did not abuse his discretion in finding the probative value of the statements not substantially outweighed by the danger of presenting cumulative evidence. See Pardo v. State, 596 So.2d 665, 668 (Fla.1992); § 90.403, Fla. Stat. (2005).

Lastly, Moore contends the trial judge erred in allowing the jury to learn of his prior criminal record. Although Moore did not testify at trial, he succeeded in introducing exculpatory statements made to the police under the rule of completeness. See § 90.108, Fla. Stat. (2005). When a defendant successfully introduces his hearsay statements into evidence, the credibility of the declarant may be attacked just as if the declarant had testified as a witness. See § 90.806(1), Fla. Stat. (2005); see also Kelly v. State, 857 So.2d 949, 950 (Fla. 4th DCA 2003) (allowing impeachment with prior criminal record because defense counsel, on cross-examination, elicited exculpatory statements defendant had made to police officer); Werley v. State, 814 So.2d 1159, 1163 (Fla. 1st DCA 2002) (allowing introduction of husband’s prior criminal record for impeachment purposes due to wife testifying to husband’s exculpatory hearsay statements). See generally 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 806.04(2)(b) (Joseph M. McLaughlin ed., 2d ed. 2002) (“A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions.”). Accordingly, the trial judge properly allowed the State to impeach Moore with his prior criminal record.

AFFIRMED.

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


author: BROWNING, C.J.

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. PALM BEACH COUNTY SCHOOL DISTRICT, F.A. Richard & Associates, Inc., Appellees.
    No. 1D06-1910.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Cynthia A. Shaw, Tallahassee, for Appellant.
    Walter E. Beisler of Beisler & Beisler, West Palm Beach, for Appellees.
   BROWNING, C.J.

Appellant challenges a ruling that, despite the untimeliness of the Employer/Carrier’s (E/C) request for a hearing on the denial of a 1999 request for reimbursement, Appellant had made a counter-offer to resolve the request, the acceptance of which rendered irrelevant the expiration of the limitations period. Because no contract was formed before the limitations period expired, we reverse.

This case had its genesis when, on May 2, 1987, an employee not party to this case was injured at work. The accident was deemed compensable and, on February 16, 1999, E/C filed an SDF-2 reimbursement request form with Appellant. On September 19, 2003, Appellant returned the SDF-2 with “discrepancies” noted, and asked E/C to “please initial the changes ... and return.” E/C did so on October 21, 2004. In November 2004, Appellant denied the request as untimely.

On October 17, 2005, E/C moved to set a hearing on the matter. After the hearing, the Judge of Compensation Claims concluded that the request for a hearing was untimely, but found that the 2003 letter from Appellant constituted a counter-offer to resolve the request, and that the 2004 letter from E/C was an acceptance that formed a binding contract, and ordered reimbursement.

We disagree that this exchange supplanted the ordinarily applicable statute of limitations. The 2003 letter did not indicate a contract or offer, nor did it mention the limitations period; to the contrary, it explicitly stated that the form “ha[d] not yet been approved for payment.” Moreover, it was written before the limitations period lapsed, and so the October 21, 2004, letter, written after the limitations period lapsed, could not have constituted acceptance of an offer to extend the limitations period. We find Special Disability Trust Fund v. Aetna Casualty & Surety Co., 397 So.2d 381 (Fla. 1st DCA 1981), review denied, 402 So.2d 607 (Fla.1981), to be factually analogous.

In the absence of a contract, the statute of limitations is four years from the end of each interval of periodic reimbursement. See § 95.11(3)(f), Fla. Stat. (1999); Associated Coca Cola v. Special Disability Trust Fund, 508 So.2d 1305 (Fla. 1st DCA 1987). The interval of periodic reimbursement applicable in the instant case is one year. See § 440.49(7)(f), Fla. Stat. (1999). Because the request was filed on February 16, 1999, the limitations period began to run on February 16, 2000, and lapsed on February 16, 2004. Therefore, E/C’s 2005 request for a hearing was untimely, and the 1999 request for reimbursement is barred.

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

DAVIS and LEWIS, JJ„ concur.


text:
    Brad HIGGINBOTHAM, Appellant, v. Timothy BOZEMAN, Appellee.
    No. 1D06-3006.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2006.
    Robert M. Ervin, Jr. of Ervin, Kitchen & Ervin, Tallahassee, for Appellant.
    Kenneth W. Sukhia of Conwell, Sukhia & Kirkpatrick, P.A., Tallahassee, for Ap-pellee.
   PER CURIAM.

This appeal is DISMISSED for lack of jurisdiction. Florida Rule of Civil Procedure 1.540 does not authorize motions that seek relief from a mandate of this Court issued to the trial court.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Robert BLADES, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, o/b/o Diana STEWART, Respondent.
    No. 3D05-1071.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Ronald H. Kauffman, for petitioner.

      Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein, Assistant Attorney General, for respondent.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

In 1997, the Department of Revenue, Office of Child Support Enforcement, on behalf of Diana Stewart (“Department”), filed a Complaint to Determine Paternity and Award Child Support, alleging that Robert Blades was Stewart’s minor child’s father. In 1998, Blades and the mother entered into an agreed order in which Blades acknowledged paternity. In that order, the trial court reserved jurisdiction to determine the issue of retroactive child support; ordered the father to pay $39.96 per week in temporary child support and $1,038.96 in retroactive child support; ordered the father to provide the Department’s counsel with certain financial information; and retained “jurisdiction to go behind this temporary order to set permanent child support based upon the [father’s] actual income.”

To make a long story short, between the entry of the 1998 order and January 30, 2004, the Department and the father appeared before the trial court on numerous occasions. During this six-year period, the father failed to produce his complete financial records, thereby hindering the trial court’s effort to impose a permanent child support order and a finding as to the father’s obligation to pay additional retroactive child support.

On January 30, 2004, a child support hearing officer filed a Recommended Order finding the father in contempt for failing to comply with Family Law Rule 12.285, which deals with the disclosure and production of financial documents, and ordered the father to produce, within ten days, several years of tax returns and evidence of earnings for 2003. The hearing officer did not recommend any sanctions, but provided that if the father failed “to provide 12.285 discovery, the Court may impose sanctions against the [father] and his attorney.” The Recommended Order was ratified by Judge Arthur H. Taylor on February 2, 2004.

Instead of producing the requested documents, the father once again attempted to avoid his child support obligations by filing a Motion to Vacate the trial court’s order ratifying the hearing officer’s Recommended Order. In part, the father argued that, because the child was emancipated and the Department’s action was not an enforcement action, the Department, on behalf of the mother, lacked standing to pursue this action. On April 6, 2005, Judge Philip Cook denied the father’s Motion to Vacate, ordering the father to “furnish all required tax returns and evidence of earnings pursuant to prior Court Order within fifteen (15) days from the date of this order.”

The father appeals the trial court’s non-final order denying his motion to vacate an order which, in essence, found the father in contempt and ordered him to produce discovery or be subject to possible sanctions. The order in question is a non-final, non-appealable order. See Fla. R.App. P. 9.130(a)(3); Gleicher v. Claims Verification Inc., 908 So.2d 560 (Fla. 4th DCA 2005)(holding that discovery order is a non-final, non-appealable order); Stewart v. Mussoline, 487 So.2d 96, 97 n. * (Fla. 3d DCA 1986)(“We have jurisdiction to review this action by certiorari under Fla. R.App. P. 9.030(b)(2)(A), and reject respondent’s assertion that rule 9.130 authorizes an interlocutory appeal from the order holding Stewart in civil contempt for failing to comply with a discovery order.”). However, “Florida Rule of Appellate Procedure 9.030(b)(2)(A) provides that the district courts of appeal have jurisdiction to issue writs of certiorari to review non-final orders not appealable under rule 9.130, Florida Rules of Appellate Procedure.” Transmark, USA, Inc. v. State, Dep’t of Ins., 631 So.2d 1112, 1115 (Fla. 1st DCA 1994). Thus, we treat the husband’s non-final appeal as a petition for writ of certio-rari.

To obtain certiorari relief, the “party must establish ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Morton & Oxley, Ltd., 916 So.2d at 822 (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). The unfortunate circumstance faced by the trial court was addressed by the Florida Supreme Court in Gibson v. Bennett, 561 So.2d 565, 572 (Fla.1990), in which it held:

Today, support-dependent parents and the courts often experience great difficulty obtaining compliance with support orders while a child is a minor even though the remedy of contempt is available. If the courts lack the power to enforce child support orders through contempt proceedings after the child reaches majority, a nonpaying parent may escape his or her support obligation entirely, especially a parent with little or no property subject to attachment in an action at law. If a parent dependent on support is left with the less effective civil action, the nonpaying parent may be encouraged to hide assets or purposefully elude the court until the child attains age eighteen, preferring the civil action on a debt rather than a contempt proceeding. As this Court has previously stated, we have no desire to make this state a haven for those who wish to avoid their support obligations. Accordingly, we hold that a judgment for support arrearages is enforceable by contempt proceedings after a child has reached the age of majority. In our view, emancipation does not extinguish a support-obligated parent’s responsibility to pay the past due support.

Gibson, 561 So.2d at 565 (citation omitted); see State Dep’t of Revenue v. Koons, 662 So.2d 1307, 1308 (Fla. 2d DCA 1995)(hold-ing that mother had standing to “enforce through the court’s contempt powers payment of arrearages” even though children were emancipated). Thus, as the Department, on behalf of the mother, has standing to pursue its action against the father even though the child is emancipated, we conclude that the trial court did not depart from the essential requirements of the law by denying the father’s motion to vacate, and therefore, we deny the petition for writ of certiorari.

Petition denied.

      . For example, in November 1999, due to the lack of the father's financial records, the trial court imputed income to the father, who the trial court noted was a “record producer,” in the amount of $2,500 per month and ordered him to pay temporary child support in the amount of $105.76 per week. In addition, the trial court continued the matter “for a determination of permanent support” to allow the father to provide the ordered financial documents. Moreover, at a hearing before the trial court in June 2002, the trial court found that the minor child, who was born in April 1984, was emancipated as of April 10, 2002, and abated child support as of that date. At that hearing, like at previous hearings, the trial court continued the matter to set permanent child support.

      . The father's assertion that this was not an enforcement action defies logic. The Department, on behalf of Diana Stewart, has been attempting to obtain information regarding the father since 1988. The father has continuously stonewalled the Department and the trial court, thereby hindering the trial court's continuous efforts to order permanent child support, as opposed to temporary child support. Most likely, the father would not have taken this course of action if he believed that he was obligated to pay less than $105.76 per week, as ordered by the trial court in November 1999. Moreover, instead of immediately producing the financial documents and meeting his financial obligation to his child, he has opted to litigate this matter for eight years, during which period he was represented by counsel.

      . The Department argues that the order under review is a non-final, non-appealable order as the father’s motion to vacate was premised on the Department's and mother's lack of standing. See Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So.2d 820, 821 (Fla. 2d DCA 2005)(holding that "denial of a motion to dismiss ... for lack of standing is not listed as an appealable nonfinal order in rule 9.130(a)”); Supal v. Pelot, 469 So.2d 949 (Fla. 5th DCA 1985)(recognizing that an order denying a motion to dismiss for lack of standing is a non-final, non-appealable order).


author: COPE, C.J.

text:
    Rillio BAPTISTE, Petitioner, v. Albert W. GUFFANTI, P.A., Respondent.
    No. 3D04-176.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Rillio Baptiste, in proper person.
    Albert W. Guffanti, in proper person.
    Richard L. Polin, Bureau Chief, Office of the Attorney General, Department of Legal Affairs, for The State of Florida.
    John Eddy Morrison, Assistant Public Defender, Office of the Public Defender, as Amicus Curiae.
    Before COPE, C.J., and FLETCHER and WELLS, JJ.
   ON MOTION FOR REHEARING

COPE, C.J.

On consideration of the petitioner’s motion for rehearing we withdraw the court’s previous opinion filed March 10, 2004, and substitute the following opinion.

Rillio Baptiste seeks a writ of mandamus compelling Albert W. Guffanti, specially appointed public defender (“SAPD”), to provide him with a copy of the complete record in Baptiste’s plenary appeal, at no cost to Baptiste. We grant the petition.

The dispositive fact here is that Baptiste’s appeal of his judgment and sentence was accomplished in a proceeding under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As explained in this opinion, since this appeal was an Anders proceeding, Baptiste should have been provided a complete copy of the record on appeal without charge. That being so, his request for a complete copy of the record on appeal is well taken!

Baptiste was convicted of criminal offenses in 2002 and he appealed. After reviewing the record on appeal, the SAPD filed an Anders brief and motion to withdraw, stating that after a careful examination of the record on appeal, the SAPD could find no error which could be conscientiously argued as a predicate for relief.

On receiving the Anders brief and motion to withdraw, this court issued what was at that time its standard order in such cases. The court’s order directed that the memorandum brief be furnished to Baptiste, and allow Baptiste thirty days in which to file a statement of points in support of the appeal.

The SAPD supplied a copy of the An-ders memorandum brief to Baptiste. However, this court’s order did not specifically require the SAPD to send Baptiste a copy of the record on appeal, and the SAPD did not do so. Baptiste did not submit a statement of points in support of the appeal. After the time for doing so expired, this court issued an affirmance without opinion. Baptiste v. State, 846 So.2d 521 (Fla. 3d DCA 2003) (table).

Thereafter Baptiste filed a petition for writ of mandamus, seeking to require the SAPD to provide him a complete copy of the record on appeal without charge. This court issued an opinion denying relief and Baptiste moved for rehearing.

During the pendency of proceedings, the Clerk of this court called to the panel’s attention the fact that Baptiste’s convictions and sentences had been affirmed in an Anders proceeding. The Clerk was aware that the public defender in this district has a well-established procedure for Anders proceedings. Under that procedure, the public defender sends the defendant a copy of the Anders brief when it is filed, and the record on appeal when this court enters its standard Anders order allowing the defendant to file a statement of points in support of the appeal. The logic is that the defendant needs the record in order to submit a statement of points to this court. See Gardner v. California, 393 U.S. 367, 370, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Anders v. California, 386 U.S. 738, 742-43, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Byrd v. Wainwright, 722 F.2d 716, 718 (11th Cir.1984); State v. LaPlanche, 349 N.C. 279, 507 S.E.2d 34, 35-36 (1998); State v. Clark, 196 Ariz. 530, 2 P.3d 89, 99 (1999). Further, providing a copy of the record to the client also appears to be the current practice among SAPDs when moving to withdraw under Anders.

As a result of this case, the court has revised its standard order for Anders proceedings. The revised order now specifies that in Anders proceedings, the attorney who has moved to withdraw must supply the defendant with a copy of the complete record on appeal in addition to the Anders brief.

Because Baptiste should have already been given a copy of the record on appeal without charge, his petition for writ of mandamus is well taken. The SAPD shall do so. Further, the SAPD has disclosed that he followed the same practice in two other cases. Accordingly, he shall forward copies of the record on appeal in those cases to the respective defendants, along with a copy of this opinion.

This court asked the parties to address whether the failure of the SAPD to send a copy of the record on appeal to the defendant constituted grounds for reopening the appeal from the judgment and sentence. The SAPD, and the public defender as amicus curiae, argue that the appeals should be reopened. The State argues that this should not be done.

On consideration, the only matter actually pending before this court at this time is Baptiste’s petition for writ of mandamus in which he seeks a copy of the record on appeal in his case. That being so, we decline to reach at this time the question whether any of the underlying appeals should be reopened.

We grant the petition but withhold formal issuance of the writ, being certain that the SAPD will comply with this opinion.

      . For purposes of this opinion the term "record on appeal" includes transcripts.

      . The SAPD is entitled to reimbursement for the expenses of copying and mailing, as these expenses are incurred in the course of the appointed representation.

      . This court requested that the public defender file a brief as amicus curiae, and expresses its appreciation for its memorandum addressing the issues raised in this proceeding.


text:
    CONTINENTAL STEVEDORING TERMINALS, INC., Appellant, v. P & O PORTS FLORIDA, INC., Appellee.
    No. 3D06-126.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.

      Bilzin Sumberg Baena Price & Axelrod and Michael N. Kreitzer and David N. Arizmendi, Miami, for appellant.
    Holland & Knight and Rodolfo Sorondo, Jr., and Christopher N. Bellows, Miami, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Continental Stevedoring & Terminals, Inc. (“Continental”) appeals from a “Final Judgment Pursuant to Appellate Mandate,” (“Second Final Judgment”), arguing that upon remand, the trial court failed to follow this court’s opinion in P & O Ports Florida, Inc. v. Continental Stevedoring & Terminals, Inc., 904 So.2d 507 (Fla. 3d DCA 2005), and this court’s mandate. We disagree.

In P & O Ports, we set forth the facts leading to the lawsuit filed by Continental against P & O Ports Florida, Inc. (“P & O”), and further explained the final judgment (“First Final Judgment”) entered by the trial court and our reasoning for reversing the First Final Judgment. Nonetheless, we provide a brief summary of these facts and explain what has transpired following the issuance of our opinion in P & O Ports.

P & O and Continental are each 50% members of Eller-ITO Stevedoring Company (“Eller-ITO”). The parties operate pursuant to an Agreement which includes a buy-sell provision (paragraph 13.2) and a non-compete provision (paragraph 14.1). On April 9, 2003, P & O offered to purchase Continental’s 50% interest in Eller-ITO for $7.2 million, but without the protection of the non-compete provision.

Continental filed a complaint against P & O for declaratory (Count I) and injunc-tive (Count II) relief. In Count I, Continental sought a determination that the offer was unenforceable because it violated the Agreement by not including a non-compete provision; and in Count II, Continental sought an injunction, seeking to prohibit P & O from exercising the buy-sell provision of the Agreement.

The trial court referred the matter to a special master, and following an evidentia-ry hearing, the special master submitted its report and recommendations. The trial court entered the First Final Judgment, approving, ratifying, and adopting the special master’s report and recommendations. As to Continental’s claim for declaratory relief, the trial court declared that the non-compete clause in paragraph 14 of the Agreement survives any transfer of a member’s interests, and that the “buy-sell” offer was valid. Moreover, in paragraph 3 of the First Final Judgment, the trial court granted Continental’s claim for in-junctive relief, enjoining the parties from conducting in Miami-Dade County any type of business activity conducted by El-ler-ITO, and provided that the injunction shall terminate three years after a member sells its interest or upon the dissolution of Eller-ITO, whichever occurs first.

P&O appealed the First Final Judgment to this court. This court found that the special master’s findings of fact, including that the parties intended for the non-compete provision to survive a change in ownership, were supported by substantial competent evidence. This court “reversed and remanded” holding:

We find, however, once the trial court concluded that the parties could not change the provisions in the non-compete clause as a condition of the offer, it was error to strike the improper condition and to allow Continental to accept the judicially altered offer. We conclude that Continental was not free to accept the offer as modified by the court and P&O was not legally bound by its offer which had been materially altered by the court.

P&O Ports, 904 So.2d at 510.

Thereafter, Continental filed a motion for clarification, stating, “This Motion for Clarification is directed solely to the issue of whether this Court, in reversing and remanding the Final Judgment, intended to set aside the Injunction precluding” P & O and Continental “from competing against” Eller-ITO. In response, P&O argued, “In light of the striking of the offer and return of the parties to the status quo, the Court properly reversed the entire judgment — including the injunction. As it now stands, there is no offer, no upcoming sale, and no basis for an injunction arising upon the closing of the sale....” This court denied Continental’s motion for clarification.

Thereafter, P&O moved to have the trial court enter an order vacating the First Final Judgment and to enter a judgment of dismissal. . Continental responded by arguing that the final judgment upon remand must state that the buy-sell offer was “void as it was an invalid offer” and that the injunction remains in effect. Thereafter, the trial court entered its Second Final Judgment. This judgment, however, did not include the language contained in paragraph 3 of the First Final Judgment, which granted injunctive relief. Moreover, paragraph 5 of the Second Final Judgment provides:

The report and recommendations of the Special Master in favor of Defendant P & O Ports Florida, Inc. and against Plaintiff on Plaintiffs' allegations of bad faith, default and breach of contract, were not appealed by Continental and therefore stand as correct and as law of the case. Accordingly, these findings are approved and ratified as the final judgment of this court.

In this appeal, Continental contends that the trial court exceeded its authority upon remand by eliminating from the Second Final Judgment the language contained in paragraph 3 of the First, Final Judgment, which granted Continental’s request for injunctive relief. In support of its • argument, ' Continental argues that paragraph 3 the First Final Judgment was neither appealed nor addressed by this court in P & 0 Ports. We disagree.

In P & O’s initial brief filed in its appeal from the First Final Judgment, P & 0 argued that the entire final judgment must be reversed, “including the injunction prohibiting competition.” Specifically, P & 0 argued, “If the offer is rejected and voided, the parties are returned to their original position and original activities. The special master found (and the [trial] court agreed) that those activities were not in violation of the noncompete agreement, so there is nothing to enjoin.” It is clear that we treated the issue regarding injunctive relief as related to and dependent upon P & O’s attempt to enforce its offer. As we held that P & O’s offer “was void, as it was an invalid offer,” Id. at 511, the portion of the First Final Judgment granting injunc-tive relief was also voided. As this court found that the “buy-sell” offer was void, there was no basis for the imposition of an injunction. Moreover, in P & 0 Ports, this court “reversed and remanded,” and based on the above analysis, our reversal included paragraph 3 of the First Final Judgment, in which the trial court granted Continental’s request for injunctive relief. Accordingly, the trial court correctly applied this court’s mandate by not including in the Second Final Judgment the injunc-tive relief granted in paragraph 3 of the First Final Judgment.

Continental also contends that the trial court exceeded its authority upon remand by including paragraph 5 in the Second Final Judgment. We disagree.

In the First Final Judgment, the trial court approved and ratified the special master’s report and recommendations, which included findings regarding Continental’s allegations against P & 0 of bad faith, default, and breach of contract. In the appeal from the First Final Judgment, P & 0 did not appeal and Continental did not cross-appeal any of these findings. The Second Final Judgment merely points out that these finding were not appealed, and therefore, “stand as correct and as law of the case.” A review of the special master’s report and recommendations indicates that the special master’s findings regarding Continental’s allegations of bad faith, default, and breach of contract were in favor of P & 0, not Continental. Thus, we find no error within the Second Final Judgment issued by the trial court.

Affirmed.


text:
    Oscar PARHAM, Appellant, v. CLOVERLEAF LANES, INC., Appellee.
    No. 3D05-2062.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Simon & D’Alemberte and Gabrielle Lyn D’Alemberte, Miami, for appellant.
    Eduardo Cosío and Julie Bork Glass-man, for appellee.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

On this appeal from a defense jury verdict and judgment, the personal injury plaintiff raises several issues related to the admission and exclusion of evidence and the jury instructions. Upon examination of each of them, we find no error or cognizable harm.

Affirmed.


author: LAGOA, Judge.

text:
    Anamarie Kelly STOPPA, Appellant, v. SUSSCO, INC., Appellee.
    Nos. 3D05-2490, 3D05-829.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Manuel Vazquez, Coral Gables, for appellant.

      Carlton Fields and Jeffrey Michael Cohen and Nancy C. Ciampa, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Anamarie Kelly Stoppa (“Stoppa”) appeals from two orders. These appeals have been consolidated before the Court. The first order granted Sussco, Ine.’s (“Sussco”) Motion to Require Compliance with Final Judgment and to Establish Procedure for Closing (hereinafter “First Order” or “Case Number 05-829”). Stoppa argues that, pursuant to Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), and its progeny, the trial court erred in adopting Sussco’s proposed First Order.

The trial court’s second order denied Stoppa’s Emergency Motion for Relief from Final Judgment of Specific Performance (hereinafter “Second Order” or “Case Number 05-2490”). Stoppa argues that the trial court erred in concluding that it lacked jurisdiction to hear Stoppa’s Emergency Motion. As set forth below, we affirm both Orders.

I. STANDARD OF REVIEW

We review both a post-judgment order enforcing compliance with a final judgment and a denial of a Rule 1.540(b)(5) motion for abuse of discretion. See Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206, 1208-09 (Fla. 3d DCA 1976)(former); See Pozo v. Prada, 563 So.2d 726, 727 (Fla. 3d DCA 1990)(latter).

II. FACTUAL AND PROCEDURAL HISTORY

A. Case Number 05-829

In 1995 and 1996, Sussco made various loans to Stoppa in exchange for promissory notes and a third mortgage on Stoppa’s home. Subsequently, the parties entered into a $615,000 contract for the sale and purchase of Stoppa’s home. Stoppa defaulted on Sussco’s mortgage and Sussco began foreclosure proceedings in the trial court below. Sussco later amended its complaint to add a claim for specific performance relating to the sales contract.

On April 22, 2002, after a bench trial, the trial court entered a Final Judgment for Specific Performance requiring Stoppa to sell her home to Sussco in accordance with the contract. The trial court reserved jurisdiction to enforce the provisions of the Final Judgment. Stoppa appealed the Final Judgment and this Court affirmed the trial court in Stoppa v. Sussco, Inc., 851 So.2d 171 (Fla. 3d DCA 2003).

Following this Court’s affirmance, Stop-pa filed a bankruptcy proceeding and thereby automatically stayed the trial court’s action. Sussco sought relief from the automatic stay in order to enforce the Final Judgment, and, on December 16, 2003, the bankruptcy court granted Sussco relief from the automatic stay.

On April 30, 2004, Sussco filed a Renewed Motion to Require Compliance with Final Judgment and to Establish a Procedure for Closing. On August 12, 2004, the trial court deferred ruling on the motion in order to allow the parties time to establish the exact sums to be paid under their contract after satisfying existing mortgages and liens.

On September 24, 2004, in response to the trial court’s inquiry, Sussco filed a Motion for Clarification with the bankruptcy court regarding its earlier order granting relief from the automatic stay. On November 2, 2004, the bankruptcy court granted Sussco’s motion, modifying the automatic stay to allow Sussco to enforce its Final Judgment of Specific Performance, and specifically authorizing the trial court “to require compliance with the Final Judgment and establish procedures for closing including establishing the exact sums that will be paid from the [$615,000] purchase price toward the first mortgage, the second mortgage, and the Sussco third mortgage, including principal, accrued interest ... additional fees, costs, and expenses authorized by those mortgages.”

On March 9, 2005, the trial court held a hearing on Sussco’s Amended and Renewed Motion to Require Compliance with Final Judgment and to Establish Procedure for Closing. Sussco presented evidence establishing the amounts both due on superior liens and due to Sussco under the mortgage. While addressing the issue of transfer of title, the trial judge stated:

Generally speaking, what happens with these types of things is [Stoppa’s] given a certain amount of time after the judgment becomes final, which in this case it did, but then there’s a bankruptcy, and then she’s given time to transfer.
And if she doesn’t, then the Court appoints a special master, or the judgment basically says after 30 days — after you give her 30 days, if she doesn’t do it, this judgment shall serve as [a] conveyance.

At the conclusion of the hearing, Sussco presented to the trial court a proposed order entitled “Final Judgment Vesting Title.” The proposed order contained language immediately transferring the property to Sussco, pursuant to Florida Rule of Civil Procedure 1.570(d), declaring Sussco the fee simple owner of the property, and setting forth amounts to be credited to Sussco for payments made on superior mortgages and liens. The proposed order also contained blank spaces, which the trial court was to fill with the total amount of debt owed to Sussco under its mortgage. The trial judge stated that she would read the proposed order and determine what to do in the case pursuant to the bankruptcy court’s clarification.

The next day, the trial court entered an order entitled “Order Granting Plaintiffs Motion to Require Compliance With Final Judgment and to Establish Procedure for Closing” (the “First Order”). The trial court deleted the paragraphs of the proposed order which would have immediately transferred and conveyed the property to Sussco and declared Sussco the fee simple owner of the property. The trial court replaced those proposed paragraphs with one paragraph containing a self-executing provision:

1. Defendant, ANAMARIE KELLY STOPPA, shall convey the real property described herein to the Plaintiff, SUS-SCO, INC., within thirty (30) days from date of this Order. Should the Defendant, ANAMARIE KELLY STOPPA, fail to do so within the period of time provided herein, the Final Judgment of Specific Performance and this Order shall operate as the conveyance.

The trial court also changed other language in Sussco’s proposed order regarding issuance of a writ of possession.

The First Order further provides that, pursuant to the Final Judgment and the terms of the contract, Sussco shall be given a credit against the sales proceeds of $615,000.00 for the two superior mortgages, real property taxes, special assessments and liens, closing fees and money owed on Sussco’s third mortgage. The amount remaining due on the Sussco mortgage would be a general and liquidated obligation owed by Stoppa to Sussco. In setting forth its determination of the total amount of Stoppa’s debt to Sussco, the trial court attached its calculations in the margin of the First Order. On April 11, 2005, Stoppa filed a Notice of Appeal regarding the First Order.

B. Case No. 05-2490

After filing her Notice of Appeal from the First Order, Stoppa filed an Emergency Motion to Vacate Final Judgment of Specific Performance and Dismiss Action. Stoppa alleged that because Sussco had not complied with the Final Judgment by “tendering payment forthwith” of the $615,000, it was no longer equitable to enforce the Final Judgment.

In response, Sussco argued that Stop-pa’s appeal of the First Order divested the trial court of jurisdiction to consider Stop-pa’s Emergency Motion to Vacate. Sussco also argued that, because of the pendency of Stoppa’s earlier appeal from the Final Judgment and Stoppa’s subsequent bankruptcy proceedings, Sussco was unable to obtain clear, insurable title to the property following entry of the Final Judgment. At the conclusion of the hearing on the matter, the trial court denied Stoppa’s motion to vacate for lack of jurisdiction.

III. ANALYSIS

A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AND EXERCISED INDEPENDENT JUDGMENT IN ENTERING THE FIRST ORDER

Stoppa argues that the trial court failed to exercise independent judicial judgment when it entered the First Order because it adopted verbatim Sussco’s proposed order and did not give Stoppa an opportunity to object to the proposed order. Stoppa also argues that the First Order is inconsistent with previous orders of the trial court.

In Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), the Florida Supreme Court held that the trial court committed reversible error in a divorce proceeding by entering the wife’s proposed final judgment of dissolution of marriage, verbatim, without giving the husband an opportunity to comment or object. Specifically, the Court stated:

When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

Id. at 390.

Based on our review of the hearing transcript, Sussco’s proposed order and the First Order, we reject the notion that the trial court failed to exercise its independent judgment in entering the First Order. We first note that the trial court did not adopt verbatim Sussco’s proposed order. Indeed, the trial court made significant changes to the proposed order, including completely rejecting Sussco’s proposed language that would have immediately vested Sussco with title to the property. The trial court’s substituted language, ordering Stoppa to convey the property within 30 days and providing for a conveyance if she does not, is consistent with the judge’s statements at the hearing regarding her normal procedure in this type of case. The trial court also independently determined the amount of debt owed to Sussco and the First Order shows the trial court’s calculations of these amounts. Moreover, the trial court also stated at the hearing that it found the amount of fees requested by Sussco to be reasonable, and filled in the blank spaces contained in the Order with the corresponding amounts. Thus, the trial court made oral pronouncements at the hearing consistent with the First Order. See Ross v. Botha, 867 So.2d 567, 572 (Fla. 4th DCA 2004)(in reviewing an “adopted” order court should consider, among other things, whether the signed order is consistent with or divergent from the verbal rulings of the court and whether trial judge altered the proposed judgment to conform to her conclusions).

The record also shows that the trial court actively participated in the hearing, and remarked that she remembered the case from its inception years earlier through its many subsequent hearings. Taken together with the significant changes made to Sussco’s proposed order, it is evident that the trial court did not simply “adopt” Sus-sco’s proposed order. See Bryan v. Bryan, 930 So.2d 698, 694-96 (Fla. 3d DCA 2006)(trial court did not delegate its decision making authority by adopting husband’s proposed final judgment where trial judge actively participated in final hearing by asking numerous questions and taking notes and trial court allowed both parties, to submit proposed final judgments and responses).

Stoppa’s argument that she was not given the opportunity to object to the proposed order is similarly without merit. The trial court had already entered a Final Judgment ordering Stoppa to convey the property to Sussco, and was simply enforcing that Final Judgment by determining, in accordance with the bankruptcy court’s relief from stay, the amounts and fees to be paid under the purchase and sale contract. Stoppa was given the opportunity to object to these amounts at the hearing, but instead chose to present no evidence regarding the total debt she owed Sussco.

Stoppa’s argument that the First Order is inconsistent with previous orders of the trial court is also without merit. Stoppa claims that prior orders of the trial court required the $615,000 purchase price be applied to “pay” superior mortgages and fees and costs and that this is inconsistent with the First Order to the extent the First Order gives Sussco “credit” for these payments. Sussco was given a credit because the proceeds of the sale were insufficient to pay off the full amount due to Sussco under its third mortgage. As such, the First Order did not vary from the trial court’s previous orders in any manner suggesting that it did not exercise independent judgment on this issue.

B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING STOPPA’S MOTION TO VACATE FINAL JUDGMENT

It is “well settled that a trial court lacks jurisdiction to proceed on a motion for relief from judgment once appellate jurisdiction is invoked.” Zuckerman v. Alex Hofrichter, P.A., 630 So.2d 210, 211 (Fla. 3d DCA 1993). See also Ferrara v. Belcher Indus., Inc., 483 So.2d 477 (Fla. 3d DCA 1986); Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3d DCA 1980). Accordingly, a trial court is without jurisdiction to consider a motion to vacate a judgment, while that judgment is pending on appeal, in the absence of the appellate court relinquishing jurisdiction to the trial court for that purpose. See Glatstein, 391 So.2d at 297.

That same rule applies here, even though the appeal in Case Number 05-829 was not from the Final Judgment itself, but was instead from the post-judgment, non-final First Order. As this Court explained in Bailey v. Bailey, 392 So.2d 49, 52 (Fla. 3d DCA 1981):

Whether the trial court lacks jurisdiction depends not simply on the fact that an appeal in the case has been taken and is pending, but rather on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal. If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal, then the trial court can act. The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal.

Because the Order on appeal in Case Number 05-829 concerned the enforcement of the Final Judgment, we conclude that the trial court lacked jurisdiction to consider the Emergency Motion to Vacate the Final Judgment since any decision on that issue would have necessarily interfered with the subject matter of the appeal in Case Number 05-829. Accordingly, we affirm the trial court’s denial of Stoppa’s Emergency Motion to Vacate the Final Judgment.

IV. CONCLUSION

For the foregoing reasons, we find that the trial court did not abuse its discretion, and we affirm the trial court’s Order in Case Number 05-829 and the trial court’s Order in Case Number 05-2490.

Affirmed.

      . Stoppa also argues that the trial court erred in awarding Sussco attorney’s fees and costs in Case Number 05-829. Because Stoppa did not challenge Sussco's entitlement to fees below nor appeal the separate order awarding Sussco fees and costs, we find that this issue was not preserved. See Archer v. State, 613 So.2d 446, 448 (Fla.1993). Accordingly, we do not address the merits of this argument.


author: FARMER, J. STONE, J.,

text:
    Anthony ST. FORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2089.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      Carey Haughwout, Public Defender, and David Casals, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Corrected Opinion

FARMER, J.

We grant defendant’s motion for rehearing seeking a correction in regard to re-sentencing and substitute the following corrected opinion in place of the original. In so doing we deny the State’s motion for rehearing.

Defendant was convicted of aggravated assault with a firearm, simple assault, aggravated stalking, battery, and resisting without violence. Without discussion, we affirm the convictions for aggravated assault with a firearm, simple assault, battery and resisting arrest without violence. As to the aggravated stalking charge, we reverse.

Section 784.048, Florida Statutes (2003), defines aggravated stalking as conduct by one who “willfully, maliciously, and repeatedly follows, harasses ... and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent ...” The statute’s purpose is to criminalize conduct that falls short of assault or battery. Curry v. State, 811 So.2d 736, 741 (Fla. 4th DCA 2002); Huch v. Marts, 858 So.2d 1202, 1204 (Fla. 3rd DCA 2003). As we made clear in Curry:

“The stalking statute was also designed to protect women from being harassed by ex-husbands or former boyfriends, by ensuring that victims did not have to be injured or threatened with death before stopping a stalker’s harassment.”

Curry, 811 So.2d at 741. In a footnote, the Third District noted that other states have defined stalking as “unconsented contact” including various forms. Huch, 858 So.2d at 1203 n. 1.

Defendant argues that the State’s evidence does not meet the statutory definition for conviction under the law, and thus his motion for judgment of acquittal on that count should have been granted. At trial when defendant moved for judgment on the aggravated stalking count, the State argued that the charge was supported by the evidence as follows:

“[The victim] testified that she received one [threat] directly over the phone on the 18th while she was out shopping, that she received two that were left as voicemails on her cell phone, or maybe it was three ... [and] in person on the evening of the 18th and again on the 19th....”

The State also argued that those threats included fear that defendant would kill her because he made them on “some occasions with a gun in his hand, on another occasion with a knife in his hand, and other instances with no weapon currently in his possession.”

The State’s reliance on armed threats is misplaced because they cannot constitute stalking under section 784.048. If the purpose of the statute was to criminalize conduct falling short of assault and battery Curry, 811 So.2d at 741, it follows that actual assaults and batteries are not within the ambit of this statute. This is logical because assaults and batteries are condemned by other statutes. Again, referring to the Third District, “[sjtalking is a series of actions that, when taken individually, may be perfectly legal.” Huch, 858 So.2d at 1203.

Because the victim and defendant continued to live together at the time of the alleged stalking, he argues that stalking is impossible when the parties are cohabiting and neither has yet renounced the relationship or tried to end it. It is not necessary for us to pronounce a categorical holding that stalking is not legally possible while parties cohabit unestranged. It is enough to hold that the facts presented in this case do not amount to stalking, aggravated or otherwise. As the Third District did, we perceive that the essence of the stalking offense lies in nonconsensual contact of a harassing or intimidating nature. Because the conduct complained of in this case was the foundation for the conviction on the assault, battery and related counts, we agree that it lies outside the ken of the acts prohibited by the stalking statute.

For these reasons, we reverse the separate conviction for aggravated stalking. On remand the court shall enter a judgment of acquittal on that count and re-sentence defendant on the only remaining charge under a corrected scoresheet reflecting the reversal of the aggravated stalking conviction.

Affirmed in Part, Reversed in Part.

POLEN, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I concur in the opinion, but would further note that the victim and St. Fort lived together and had a ten year relationship that included two children.

      . "Harass" means "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). "Course of Conduct” means "a series of acts over a period of time, however short, evidencing a continuity of purpose.” § 784.048(l)(b).

      . "Credible threat” is a "threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety ... against the life of, or a threat to cause bodily injury to, a person.” § 784.048(l)(c).

      . The conduct relied on by the State occurred during an episode when he produced a gun and held it to the victim's head, threatening to kill her if she ever left him. Later, he returned with a knife, placed it on her throat, and forced her to call someone and end all future contact with him.


author: GROSS, J.

text:
    ALHAMBRA HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. Adnan ASAD, Wafa Asad, Issa Asad, and Noha Asad, Appellees.
    No. 4D06-835.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      Lawrence D. Bache of Law Office of Lawrence D. Bache, Pembroke Pines, for appellant.
    Roger G. Pickles of Law Office of Robert P. Kelly, Hollywood, for appellees.
   GROSS, J.

In this case we hold that a defendant is entitled to recover attorney’s fees under a statute awarding fees to the prevailing party in litigation after the plaintiff took a voluntary dismissal without prejudice. We apply the general rule even though the plaintiff subsequently refiled the identical lawsuit and ultimately prevailed.

On April 13, 2005, Alhambra Homeowners Association filed a complaint for injunctive relief and damages against ap-pellees, Adnan, Wafa, Issa, and Noha Asad, the fee simple owners of real property subject to a declaration of covenants and restrictions for the Alhambra residential community. The complaint alleged that the Asads violated the declaration by painting their home a color not approved by the Association.

As a defense, the Asads contended that the Association had not complied with a condition precedent to bringing suit, in that it failed to notify the Florida Department of Business Regulation and request mandatory mediation before filing suit, in violation of section 720.311, Florida Statutes (2004). In its reply, the Association alleged that section 720.311 was not applicable.

On May 18, 2005, the Asads moved for summary judgment based on the Association’s failure to comply with section 720.311. Two days before the motion hearing, on July 8, 2005, the Association filed a notice of voluntary dismissal without prejudice. After filing the dismissal, the Association paid the costs mandated under Florida Rule of Civil Procedure 1.420(d).

The parties attended mediation in September, 2005, which was unsuccessful. The Association refiled the complaint. Ultimately, the Asads acceded to the demands of the Association by paying $1,000 in fines and repainting their home.

In the dismissed action, the Asads moved for attorney’s fees under section 720.305(1), Florida Statutes (2004), which provides that the “prevailing party” in litigation between the association and a member “is entitled to recover reasonable attorney’s fees and costs.” The trial court ruled that the Asads were “entitled to reasonable attorney’s fees as prevailing parties” and entered a judgment for $8,146.

The issue in this ease is whether the Asads were “prevailing parties” under section 720.305(1).

The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the “prevailing party” within the meaning of statutory or contractual provisions awarding attorney’s fees to the “prevailing party” in litigation. See Griffin v. Berkley S. Condo. Ass’n, 661 So.2d 135 (Fla. 4th DCA 1995) (applying prevailing party provision in condominium statute, section 718.303, Florida Statutes (1993)); Hatch v. Dance, 464 So.2d 713, 714 (Fla. 4th DCA 1985) (in a case where plaintiff voluntarily dismissed “after limited pre-trial activity,” court held that “it is well-established that statutory or contractual provisions providing for an award of attorney’s fees to the prevailing party in a litigation encompasses defendants in suits which have been voluntarily dismissed”); Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. of Martin County, 493 So.2d 1136, 1137 (Fla. 4th DCA 1986) (involving prevailing party attorney’s fee provision in a lease); Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640, 641 (Fla. 4th DCA 1997) (applying attorney’s fee provision of mechanics’ lien statute and recognizing that Stuart Plaza “stated the correct rule”); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla. 4th DCA 1970) (applying mechanic’s lien statute); Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987) (involving section 723.068, Florida Statutes (1985)); Century Constr. Corp. v. Koss, 559 So.2d 611 (Fla. 1st DCA 1990) (involving contractual provision); Landry v. Countrywide Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999) (attorney’s fee provision on mortgage note); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002) (contractual provision); Rushing v. Caribbean Food Prods., 870 So.2d 953 (Fla. 1st DCA 2004) (lease provision).

Factually, the closest case to this one is Dolphin Towers Condominium Ass’n, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980). There, a unit owner sued a condominium association seeking to compel the association to remove a trellis and trees from a recreation area of the condominium. The association raised the affirmative defense of failure to join the owner of the trellis and trees as an indispensable party. Id. at 1269. The unit owners took a voluntary dismissal; they later refiled the identical action, except that the owners of the improvements were added as party defendants. Id.

The second district held that the association was the prevailing party in the first action within the meaning of section 718.303(1), Florida Statutes (1979), a statute containing “prevailing party” language similar to section 720.305(1). The court rejected the argument that the filing of the second lawsuit negated the association’s right to recover fees for the first suit, observing that the “association incurred attorney’s fees in asserting what proved to be a meritorious affirmative defense.” Id. The court reasoned that “the legislature must have had this situation in mind, as well as those in which a defendant might prevail on the merits, when it provided for the allowance of attorney fees to the prevailing party.” Id. This court has cited Dolphin Towers with approval. See Hills of Inverrary Condos., Inc. v. Slachter, 444 So.2d 1132 (Fla. 4th DCA 1984).

Applying the general rule consistent with Dolphin Towers, we conclude that the Asads were the prevailing parties in the first suit. They correctly asserted the defense of failure of a condition precedent. In the face of á likely adverse ruling on the Asads’ motion for summary judgment, the Association opted for a voluntary dismissal without prejudice. The refiling of the same suit after mediation does not alter the Asads’ right to recover prevailing party attorney’s fees incurred in defense of the first suit.

The Association relies upon language in Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla.1990), to avoid the application of the general rule. The issue in Thomber was whether certain defendants were the prevailing parties in a federal civil rights suit after the plaintiff voluntarily dismissed the action with prejudice. Holding that’ the defendants were prevailing parties entitled to statutory attorney’s fees, the supreme court wrote:

We agree with the district court that the council members prevailed in this action. In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic Coast Development Corp., 493 So.2d 1136 (Fla. 4th DCA 1986). A determination on the merits is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the prevailing party. Metropolitan Dade County v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985), rev. den., 486 So.2d 597 (Fla.1986). Ray [the plaintiff] dismissed the council members in both their official and individual capacities with prejudice, thus signalling an end to the litigation.

Id. On the one hand, the supreme court in Thomber referred to the general rule stated in Stuart Plaza, where a “determination on the merits” is not a prerequisite to an award of prevailing party attorney’s fees under a statute or contract. On the other hand, the supreme court indicated that “[t]here must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed.” (Emphasis added). We read such language not as a negation of the general rule stated in the preceding sentence, but as a reference to the facts of Thomber, where a plaintiff voluntarily dismissed an action with prejudice.

Cases after Thomber have cited it as supporting the general rule, which does not require a merits determination as a precondition to prevailing party attorney’s fees. These cases have treated a voluntary dismissal without prejudice as the bright line “end to litigation” mentioned by the supreme court. Thus, in Boca Airport, we affirmed an award of prevailing party-attorney’s fees after a voluntary dismissal, observing that “[i]t is clear since Thomber that Stuart Plaza ... state[s] the correct rule.” 690 So.2d at 641. Rushing affirmed a fee award after a voluntary dismissal, holding that costs contemplated under Florida Rule of Civil Procedure 1.420(d) “include attorney’s fees when provided by statute or agreement.” 870 So.2d at 955. Relying on Thomber, the second district reversed an order denying defendants any attorney’s fees after a plaintiff voluntarily dismissed a specific performance action without prejudice. See Prescott v. Anthony, 803 So.2d 835, 836-37 (Fla. 2d DCA 2001); see also Ajax Paving, 824 So.2d at 1029.

These post-Thomber district court of appeal cases find support in Caufield v. Cantele, 837 So.2d 371 (Fla.2002). The issue in Caufield was the defendants’ entitlement to attorney’s fees after the plaintiffs voluntarily dismissed their complaint. From the opinion, it appears that the plaintiffs dismissed their action without prejudice; they had not previously dismissed the complaint and the opinion does not indicate the dismissal stated that it was with prejudice. Id. at 373; see Fla. R. Civ. P. 1.420(a)(l)(providing that “[ujnless otherwise stated in the notice or stipulation, the dismissal is without prejudice,” except that the notice “operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim”). The supreme court remanded the case for a determination of attorney’s fees, lending tacit support to the idea that such fees are recoverable in the absence of a merits determination, after a voluntary dismissal without prejudice. 837 So.2d at 379-80.

In Padow v. Knollwood Club Ass’n, Inc., 839 So.2d 744, 745-46 (Fla. 4th DCA 2003), this court relied on Thomber to identify an exception to the general rule entitling a defendant to attorney’s fees under a prevailing party statute or contract provision, after a plaintiffs voluntary dismissal of an action. We looked behind a plaintiffs voluntary dismissal to find that the Padow defendant was not a prevailing party entitled to fees, because prior to the dismissal the defendant had “paid the substantial part of the association’s claim for delinquent assessments.” Id. at 746. The Pa-dow exception to the general rule does not apply in this case; the Asads did not cave in to the Association’s demands prior to the voluntary dismissal.

The Association also relies upon Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985) . There, the plaintiff filed a medical malpractice case against multiple defendants, including a defendant doctor. Before empaneling a jury, the plaintiff voluntarily dismissed all defendants except the hospital. Id. at 1343. The defendant doctor moved for attorney’s fees under section 768.56, Florida Statutes (1981), which entitled the “prevailing party” to fees. Id. at 1344. The third district reversed an award of fees, finding that the defendant doctor was not a “prevailing party” within the meaning of the statute. Id. The court reasoned that for there to be a “prevailing party” in litigation there had to “be some end or finality to the litigation on the merits” so that a “court can determine whether the party requesting fees has prevailed.” Id. at 1344-45. Reviewing the record, the third district found that there was “no basis to conclude that the [defendant doctor was] the prevailing party.” Id. at 1345. To justify that conclusion, the court pointed to (1) an affidavit of the plaintiffs expert finding the defendant doctor to be negligent and (2) the plaintiffs argument that the “voluntary dismissal was not related to the merits of the case, but rather was a strategic move to avoid jury confusion.” Id.

The Simmons approach requires a trial court in all cases to look behind a voluntary dismissal to decide whether the dismissal represents “an end or finality to the litigation on the merits.” Both the second and fifth districts have rejected the Simmons approach to prevailing party attorney’s fee statutes. See Dam v. Heart of Fla. Hosp., Inc., 536 So.2d 1177 (Fla. 2d DCA 1989); Vidibor v. Adams, 509 So.2d 973 (Fla. 5th DCA 1987).

Dam involved a plaintiff doctor who brought suit against a hospital which suspended his staff privileges. The plaintiff voluntarily dismissed his suit without prejudice. The hospital and the other defendants then moved for attorney’s fees under section 395.0115(5)(a), Florida Statutes (1987), which awarded attorney’s fees and costs to “prevailing defendants.” 536 So.2d at 1178. The second district affirmed an award of attorney’s fees to the defendants and rejected the plaintiff doctor’s argument that the record did “not establish that [the defendants] would have prevailed on the merits.” Id. The court did not “find persuasive” the argument that it “should adopt the third district’s contrary view” in Simmons. Id.

Similarly, in Vidibor, the fifth district confronted a plaintiff who took a voluntary dismissal without prejudice. The defendant sought attorney’s fees under a “prevailing party” attorney’s fee statute. 509 So.2d at 974. The fifth district reversed an order denying fees, explicitly rejecting “the view of our sister court in Simmons.” Id.

As did the second and fifth districts, we too reject the Simmons approach. Instead of a bright line general rule to control the award of attorney’s fees after a voluntary dismissal, the Simmons approach would engender more litigation after a voluntary dismissal directed at whether a defendant requesting fees has, in fact, prevailed. Such a soft standard would yield inconsistent results, foment litigation, and create an intensely fact-based jurisprudence that would be difficult to apply.

For these reasons, we affirm the final judgment awarding attorney’s fees and certify conflict with Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3d DCA 1985).

HAZOURI, J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . Section 720.3 ll(2)(a), Florida Statutes (2004) provides that “[d]isputes between an association and a parcel owner regarding use of or changes to the parcel ... and other covenant enforcement disputes ... shall be filed with the department [of Business and Professional Regulation] for mandatory mediation before the dispute is filed in court.” (Emphasis added).

      . The Association also cites to O.A.G. Corp. v. Britanico Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998). That case is distinguishable from this one based on the wording of the attorney’s fee statutes involved. Section 627.428(1), Florida Statutes (1995), at issue in Británico, provided for prevailing party attorney’s fees ''[u]pon the rendition of a judgment or decree." Id. at 786. The statute here at issue provides for an award of fees to the "prevailing party” in "litigation.” § 720.305(1), Fla. Stat. (2005). Unlike Bri-tánico, this case does not involve a statute that conditions fees upon the entry of a judgment or decree, a conclusion to a case different from a voluntary dismissal.


author: PER CURIAM. FARMER, J.,

text:
    PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Petitioner, v. Peter R. GENOVESE, M.D., Respondent.
    No. 4D06-421.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      John T. Kolinski and John E. Meagher of Shutts & Bowen LLP, Miami, for petitioner.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Richard M. Benrubi of Liggio, Benrubi & Williams, P.A., West Palm Beach, for respondent.
    Frederick T. Hawkes and Nancy C. Ciampa of Carlton Fields, P.A., Tallahassee, for Amicus Curiae Defense Research Institute, Inc.
    Janis Brustares Keyser of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for Amicus Curiae Florida Defense Lawyers Association.
   PER CURIAM.

Respondent Genovese brought a statutory first-party bad faith action against Provident Life & Accident Insurance Company, his own insurer, after Provident stopped monthly payments Genovese claimed from his disability income policy. Following commencement of the bad faith suit, Genovese requested production of Provident’s entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident’s agents regarding Genovese’s claims for benefits. The trial court issued an order compelling production of the documents. Provident then filed a petition for writ of certiorari, asking this court to quash the trial court order, arguing that Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), did not allow for the discovery of documents protected by the attorney-client privilege nor did it allow discovery of documents protected by a “core” work product privilege.

We deny the petition as to Provident’s claim that some documents are protected by a “core” work product privilege. The Florida Supreme Court held in Ruiz that the work product privilege did not protect against discovery of the insurer’s file in a statutory first-party bad faith claim. 899 So.2d at 1129-30. The Court did not make a distinction between “core” and “non-core” work product.

However, we grant the petition as to information covered by the attorney-client privilege. Liberty Mut. Fire Ins. Co. v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006) (agreeing with XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006), rev. granted, 935 So.2d 1219 (Fla.2006), and finding that the attorney-client privilege does apply in statutory first-party bad faith actions). We quash the trial court’s order compelling discovery of documents protected by the attorney-client privilege and remand for further proceedings. Additionally, we again certify the same question certified in XL Specialty and Bennett as one of great public importance:

DOES THE FLORIDA SUPREME COURT’S HOLDING IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 So.2d 1121 (Fla.2005), RELATING TO DISCOVERY OF WORK PRODUCT IN FIRST-PARTY BAD FAITH ACTIONS BROUGHT PURSUANT TO SECTION 624.155, FLORIDA STATUTES, ALSO APPLY TO ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS IN THE SAME CIRCUMSTANCES?

GUNTHER and WARNER, JJ., concur.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

Under stare decisis I may be bound to follow Liberty Mutual Fire Insurance Company v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006), but that doesn’t mean I have to agree with it. And I don’t. In my judgment, Judge Polen (and perforce Judge Andrews in the trial court) correctly analyzed the issue. I write to add my own thoughts.

Allstate Indemnity Company v. Ruiz, 899 So.2d 1121 (Fla.2005), changed the legal landscape on discovery in these “bad faith” cases. Although the principal holding did away with the distinctions between first-party and third-party claims, its equally significant holding was to recognize the true nature of the relationship between a liability insurance carrier and its insureds in dealing with a covered claim as non-adversarial. When a covered personal injury claim is brought against an insured — whether named or omnibus; whether first-party or third-party — the carrier and the lawyer it chooses to defend the suit are bound to represent only the best interest of the insured defendant because they owe fiduciary duties to that insured.

The primary duty of the fiduciary is broadly described as loyalty. Everything the carrier and its chosen lawyer do must be faithful to that duty and designed to further the interests of the insured in both covering and defending against the claim. One aspect subsumed within this duty of loyalty deals with confidentiality. When it is in the best interests of the insured not to disclose to someone outside their relationship communications between the insured and the chosen lawyer, the attorney-client privilege must be asserted. But when anything happens or they learn anything that relates in any way to the claim, these fiduciaries must disclose it to the insured. If the carrier and its chosen lawyer have a duty to disclose everything to the insured, it follows that they cannot possibly have a privilege then or later refuse to disclose it. In Ruiz, the court explained this aspect as it relates to discovery in a later bad faith suit thus:

“In defending personal injury litigation, an insurance company participates not only on behalf of itself, but also on behalf of its insured. Since the plaintiff-judgment creditor stands in the same posture as the insured, entitlement to all materials and documents up to and including the date of judgment, is extended to him.... Just as [the named insured] would be entitled to discovery, including deposition and production files by the attorneys, since both [the named insured and the liability carrier] were their clients, [the third-party insured] has the same right of discovery in furtherance of the preparation of his [bad faith] case.”

[c.o.] 899 So.2d at 1127. It is simply indisputable that this explanation leaves no room for any privilege to keep from the insured information relating to the handling of the personal injury suit. Given the fiduciary relationship between a liability insurance carrier and the insured, that is the only sensible meaning as regards any claim of privilege about this subject.

Two old cases employing the correct principle regarding such discovery and therefore receiving approval in Ruiz were Stone v. Travelers Insurance Company, 326 So.2d 241 (Fla. 3d DCA 1976), and Boston Old Colony Insurance Company v. Gutierrez, 325 So.2d 416 (Fla. 3d DCA 1976). Together they show why there is no distinction as to the attorney client and work product privileges and that both are unavailable. In Boston Old Colony plaintiff in a third-party bad faith action sought the production of the entire files maintained by the law firms representing the insured and the carrier in the personal injury action. The trial court compelled production of the entire files, and the carrier sought certiorari review, contending “that to compel oral deposition by the attorneys and production of the files will cause a breach of the lawyer-client privilege of confidentiality.” 325 So.2d at 417. It should be perceived that the argument against production was identical to that in the case we face today: the attorney-client privilege in favor of the carrier barred its insured from production (and related deposition) of everything in the files of the law firm up to the date of disposition in the underlying personal injury action. In rejecting the attorney-client privilege, the Boston Old Colony court said:

“As a third party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.”

325 So.2d at 417. Then in Stone, where privilege was asserted in the connection with bad faith discovery, “Travelers contend[ed] that the documents are work product and thus privileged, but concedes that the matters are not subject to any other privilege.” [e.s.] 326 So.2d at 242. Stone held that the same materials could not be protected by the work product privilege either. Both Boston Old Colony and Stone were approved by Ruiz. In short the very thing we have just held in Liberty Mutual was rejected as long ago as Boston Old Colony, a rejection that was in turn approved by the supreme court in Ruiz.

Liberty Mutual simply misreads the meaning and effect of Ruiz by overlooking the history behind it. Because Liberty Mutual is in conflict with Ruiz I would certify the conflict to the supreme court. I would not pose a question of great public importance as proposed in Liberty Mutual because I do not think there is any ambiguity in the holding in Ruiz. It is clear by its very terms that Ruiz applies to all privileges claimed by the carrier as to materials and communications about the underlying personal injury claim up to its disposition.

      . "[T]he rule permitting discovery of materials contained in claim type files in third-party had faith actions has not been consistently applied in first-party bad faith actions. It appears that this inconsistency has resulted from and been engendered by a misdescription of the nature of the parties' relationship in first-party actions as being totally adversarial, an outdated pre-statutory analysis, as opposed to applying the responsibilities that have traditionally flowed in the third-party context, which are now codified for first-party actions.” [e.s.] Ruiz, 899 So.2d at 1127.

      . "Under liability policies ... insurance companies took on the obligation of defending the insured, which, in turn, made insureds dependent on the acts of the insurers; insurers had the power to settle and foreclose an insured's exposure or to refuse to settle and leave the insured exposed to liability in excess of policy limits. This placed insurers in a fiduciary relationship with their insureds similar to that which exists between an attorney and client.” [c.o.] 899 So.2d at 1125. The court went on to explain that section 624.155, Florida Statutes, "essentially extended the duty of an insurer to act in good faith and deal fairly in those instances where an insured seeks first-party coverage or benefits under a policy of insurance.” 899 So.2d at 1126.

      . I use the term entire files because there is no longer any basis to separate the claim file and the litigation file of the carrier or its chosen attorney. There is no privilege as to either one for the contents of the underlying personal injury lawsuit through its disposition. Ruiz, 899 So.2d at 1129-30 ("we hold that in connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first-party bad faith action”).


author: SHAHOOD, J.

text:
    James INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2158.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by James Ingram from his conviction and sentence following a jury trial on the charges of burglary of a dwelling -with a battery and grand theft of property of at least ten thousand dollars but less than twenty thousand dollars in value. We affirm appellant’s conviction but reverse his sentence and remand for resentencing.

Appellant raises three issues on appeal. As his first issue, appellant urges that the trial court erred in denying his motion to suppress. Secondly, he argues that the trial court committed error in denying his motion for new trial.

In his motion to suppress, appellant argues that his statement given to the police officer was not freely and voluntarily given, because he refused to sign the Miranda rights waiver form and eventually refused to answer any questions. He also argued that there was no valid waiver of Miranda rights and nothing in writing memorializing a Miranda rights waiver.

The State argues that the trial court did not err because there was sufficient evidence for the trial judge to find that appellant freely and voluntarily waived his right to remain silent and agreed to speak although he did not sign the rights waiver form or agree to be taped while giving his statement.

In denying the motion to suppress, the trial court found that appellant’s waiver of his rights was voluntary, in the sense that it was the product of free and deliberate choice rather than by intimidation, coercion, or deception. The trial court also found that appellant was fully aware he was waiving his rights. We agree and affirm the trial court’s ruling on the motion to suppress.

Appellant’s next issue is that the trial court erred in denying his motion for new trial based on the trial court allowing bad character evidence by the suggestion that appellant “could be a drug guy” and that his Mend was a drug dealer. We affirm as to this issue based on the holding in Glendening v. State, 604 So.2d 839, 840 (Fla. 2d DCA 1992): “A motion for a new trial is addressed to the sound judicial discretion of the trial court and unless an abuse of discretion is clearly shown, the action of the trial court in this respect will not be disturbed.” See also Mitchell v. State, 493 So.2d 1058 (Fla. 1st DCA 1986).

As to his third issue on appeal, appellant alleges the trial court erred in designating and sentencing him as a prison releasee reoffender on Count I (burglary of a dwelling with a battery) and in sentencing him to ten years imprisonment on Count II (grand theft) without a habitual offender designation.

We affirm as to Count I on the authority of this court’s en banc opinion in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and its opinion in Corker v. State, 937 So.2d 757 (Fla. 4th DCA 2006). As in Yisrael and Corker, we certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

Appellee concedes that appellant’s ten-year sentence on Count II was erroneous without a habitual offender designation. We agree.

At the trial level, appellee had requested appellant be sentenced as a habitual felony offender on Count II. Appellant was charged in Count II with grand theft, which is a third-degree felony. § 812.014(2)(c)3, Fla. Stat. (2003). A third-degree felony is punishable by imprisonment not exceeding five years. § 775.082(3)(d), Fla. Stat. (2003). Appellant was sentenced to ten years for a third-degree felony on Count II to run concurrently with Count I. The sentence on a third-degree felony may be increased to a term of years not exceeding ten if the offender is designated a habitual felony offender. § 775.084(4)(a)3, Fla. Stat. (2003). The trial court did not designate appellant as a habitual felony offender.

In order to enhance a sentence, the trial court has the ministerial duty of first determining if the defendant qualifies as a habitual felony offender and then it must decide if the defendant will be sentenced as a habitual felony offender. King v. State, 681 So.2d 1136, 1138 (Fla.1996), receded from on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001); § 775.084(3), Fla. Stat. The trial court did neither of the above.

As a result, the sentence on Count II should be reversed and remanded to the trial court for resentencing. Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004), quashed on other grounds, No. SC04-988, 2006 WL 2827606, — So.2d - (Fla. Oct. 5, 2006).

Affirmed in Part; Reversed in Part and Remanded for Resentencing.

GROSS and HAZOURI, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).