author: RAMIREZ, J. LAGOA, J.

text:
    SOUTH FLORIDA COASTAL ELECTRIC, INC., Appellant, v. TREASURES ON the BAY II CONDO ASS’N, INC., Appellee.
    No. 3D10-2329.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Opinion filed April 25, 2012.

      Pivnik & Nitsche, P.A. and Jerome A. Pivnik, Miami, for appellant.
    David C. Arnold and Lisa Kalman; Thais Hernandez, for appellee.
    Before, RAMIREZ, LAGOA, AND EMAS-JJ.
   RAMIREZ, J.

South Florida Coastal Electric, Inc. appeals a summary judgment entered in favor of Treasures on the Bay II Condominium Association, Inc. The summary judgment eliminated South Florida’s claim for payment for electrical work on Treasures’ building. We reverse because the trial court granted summary judgment based on an affirmative defense for which the record reveals material issues of fact.

KMC, a developer, established Treasures as part of a condominium conversion project. KMC filed a declaration of condominium in 2005. At the time, KMC controlled the association, and Mike Flood, one of its officers, served as the association’s manager. KMC contracted with South Florida to perform electrical work on certain developer-owned units and common areas in the building. South Florida performed the work and billed Treasures, but some of the bills have not been paid.

South Florida obtained a judgment for payment against KMC. South Florida, however, did not include Treasures in its suit against KMC. South Florida sued Treasures on a theory that Treasures is jointly and severally liable to South Florida for payment for the work performed on the property. In the trial court, Treasures successfully argued it was not required to pay for South Florida’s work because KMC, not Treasures, entered into the contract with South Florida.

The pleadings in this case describe a dispute over whether Treasures agreed to pay South Florida. In its complaint, South Florida alleged Treasures and South Florida “entered into a written contract to perform electrical contracting services and related improvements to [Treasures’ building].” South Florida further alleged it “performed electrical contracting services for [Treasures],” and that South Florida “invoiced [Treasures] for said services, but [Treasures] has failed to pay.” South Florida alleged Treasures refused a demand for payment. South Florida attached its claim of lien to its complaint, which lists the property at issue as Treasures on the Bay and Treasures on the Bay II and the owners of the property as Treasures on the Bay II Condo'Association, Inc., and KMC EC II, LLC.

In its answer, Treasures alleged as affirmative defenses:

8. At all times material to the complaint, the property described therein and which was the subject of the complaint was under the control of the developer. Pursuant to Fla. R. Civ. P. 1.221, the members of the Association cannot be joined as a class while the Association was in the control of the Developer.
11. There never was a contract or any other agreement between Plaintiff and Defendant.

Thus, the invoices were incorporated by reference into South Florida’s Complaint, and due to Treasures’ allegations in response, the issue became whether the reference on those invoices to “Treasures on the Bay” was to Treasures or KMC.

Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Under the summary judgment rule, to address this issue, the trial court examines the pleadings, as well as the “affidavits ... depositions and other materials” on record with the trial court. See Fla. R. Civ. P. 1.510(c). Our standard of review for summary judgment is de novo. Volusia Cnty., 760 So.2d at 130. In reviewing a summary judgment, this Court “must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001); see also Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003) (quoting Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957)); Rothenberg v. Leevans Corp., 155 So.2d 839, 839 (Fla. 3d DCA 1963). Thus, in this case, we must view the record in the light most favorable to South Florida.

A judgment must be based upon a claim or defense that was either properly pled or tried by consent of the parties. See Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (requiring that the pleadings state ultimate facts in support of a legal theory upon which judgment is to be granted); Agrofollajes, S.A. v. E.I. DuPont De Nemours & Co., 48 So.3d 976, 996 (Fla. 3d DCA 2010) (analyzing the pleadings and determining that both the claim and defense were sufficiently evident from the pleadings and record, and rejecting the theory that failure to plead a specific theory barred recovery). A properly pled affirmative defense includes ultimate facts sufficient to provide notice of the proof the defendant intends to rely upon to defeat the plaintiffs claim. Zito v. Wash. Fed. Savings & Loan Ass’n of Miami Beach, 318 So.2d 175, 176 (Fla. 3d DCA 1975) (concluding trial judge properly struck an affirmative defense). Summary judgment on an affirmative defense to the complaint is only appropriate if there is no material dispute regarding the facts alleged in support of the defense. See, e.g., Bay & Gulf Laundry Equip. Co. v. Chateau Tower, Inc., 484 So.2d 613, 615 (Fla. 2d. DCA 1986) (reversing summary judgment for the defendant on certain claims because issues of fact remained regarding an asserted defense); Burley v. Mummery, 222 So.2d 261, 263-64 (Fla. 3d DCA 1969) (reversing summary judgment because of a dispute of fact regarding an affirmative defense of accord and satisfaction).

Whether an agency relationship exists is generally a question of fact, and thus disputes regarding the material facts in support of agency will prevent summary judgment. See Villazon, 843 So.2d at 855-56; see also Port Largo Club, Inc. v. Warren, 476 So.2d 1330, 1333 (Fla. 3d DCA 1985). In examining whether agency exists, the principal’s actions are the primary indication of the relationship, and such examination is generally done by the trier of fact unless there is indisputably no connection between the principal and the agent. See Villazon 843 So.2d at 855; Moore v. River Ranch, Inc., 642 So.2d 642, 643-44 (Fla. 2d DCA 1994). Thus, an agent who exceeds his authority cannot create agency and make the principal liable, see Edwards v. Law, 46 Fla. 203, 36 So. 569, 570 (1903), but a principal who fails to repudiate or prevent a previously-authorized agent’s continued representation can be held responsible for the agent’s actions. See Deutsche Credit Corp. v. Peninger, 603 So.2d 57, 58-59 (Fla. 5th DCA 1992).

Summary judgment must be reversed in this case because the record reveals a disputed issue of material fact. The complaint and answer alleged a dispute regarding whether the invoices, which were directed to “Treasures on the Bay,” were for services requested by and rendered to Treasures, KMC, or both. South Florida alleged that it entered into a contract for electrical contracting services and related improvements to Treasures’ building, it performed the services, and was not paid. In response, Treasures alleged it had no contract with South Florida, and that KMC is liable for payment of the invoices. Therefore, the issue of who contracted for the work — Treasures, KMC, or some combination of both — was in dispute and an issue necessary to determine Treasures’ summary judgment motion.

Moreover, the record reflects a dispute regarding whether the person requesting the work was acting for KMC or Treasures. The parties dispute whether Flood represented himself to South Florida as the agent for the developer-controlled Treasures or the owner-controlled Treasures. Consequently, Flood’s agency relationship with these entities must be addressed by the trier of fact. Further evidence may show that Flood acted for Treasures, or Treasures’ failure to object to continued work might have created an apparent agency for Treasures.

For these reasons, we disagree with our dissenting colleague’s conclusion that agency was not raised by the pleadings. Treasures invited the agency analysis through its own vague pleading of affirmative defenses, which reference the developer’s alleged “control” of the property and the absence of “any other agreement” between Treasures and South Florida. By alleging Treasures was under the “control” of the developer, Treasures’ affirmative defense suggested Treasures was challenging the authority of the individual who indisputably accepted the work from South Florida. Similarly, Treasures’ allegation that there was never any contract or other agreement between Treasures and South Florida invites an analysis regarding who asked for and received the work reflected by the invoices to “Treasures on the Bay.” Any ambiguity regarding whether Treasures’ affirmative defenses raised a dispute regarding authority or agency to accept the work should be resolved against summary judgment, as we view the record in the light most favorable to South Florida, the non-moving party below. Moreover, Treasures never argued surprise or prejudice in South Florida’s presentation of the issues in this Court, despite the parties’ discussion regarding agency in their briefs and the extensive facts proffered in support of agency in the trial court.

Treasures further contends that any disputes of fact are immaterial because under Section 718.121, Florida Statutes (2005), it cannot be liable as a matter of law for South Florida’s work. The plain language of the statute does not compel that result. Under the statute:

Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.

§ 718.121(2) (emphasis added). There are issues of fact that must be resolved to determine whether the association authorized the improvements that led to the lien before the statute can apply in this case.

Lastly, the doctrine of judicial estoppel does not require us to affirm summary judgment. Treasures contends the suit against KMC, in which South Florida successfully alleged it had a contract with KMC, estops South Florida from asserting Treasures is liable for payment in this case. Judicial estoppel applies only when a party takes inconsistent positions in separate judicial proceedings and thus causes prejudice to its adversary. Olmsted v. Emmanuel, 783 So.2d 1122, 1126 (Fla. 1st DCA 2001); see also Vining v. Segal, 773 So.2d 1243, 1243 (Fla. 3d DCA 2000). Moreover, to trigger the doctrine, the positions must be “inherently inconsistent.” See Smith v. Avatar, 714 So.2d 1103, 1107 (Fla. 5th DCA 1998) (finding there was no inherent inconsistency in a plaintiffs claiming disability benefits and later claiming his employer had failed to accommodate his disability despite his desire and ability to work). In this case, there is no inherent inconsistency in South Florida’s position that it can recover against both KMC and Treasures for work that it performed on Treasures’ property. Whether the facts support the legal theories are issues for the finder of fact in the trial court.

Accordingly, we reverse the summary judgment entered below, and remand for further proceedings.

Reversed and remanded.

EMAS, J., concurs.

LAGOA, J.

(dissenting).

For the following reasons, I respectfully dissent.

The complaint filed in the lower court by the plaintiff, South Florida Coastal Electric, Inc. (hereinafter “South Florida Coastal”), alleged two causes of action against Treasures on the Bay II Condominium Ass’n, Inc. (hereinafter “Treasures”): Count 1 for breach of contract, and Count 2 for foreclosure of a mechanic’s lien.

Specifically, South Florida Coastal alleged:

On or about October 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From October 1, 2006 until November 19, 2006, Plaintiff • performed electrical contracting services for Defendant at said property, described as “the project.”

(Complaint, ¶ 4) (emphasis added).

Additionally, in Count 1 South Florida Coastal re-alleged and re-adopted paragraph four of its complaint, and further asserted that “Plaintiff and Defendant entered into a contract for Plaintiff to provide electrical services to Defendant.” (¶ 14).

The record evidence before this Court establishes that no written contract exists between South Florida Coastal and Treasures. Thus, there is no record evidence to support a claim for breach of written contract.

South Florida Coastal, however, never sought leave of court to amend its complaint. Instead, it proceeded full steam ahead on a claim of breach of a written contract — even though no written contract exists. As Treasures correctly ai’gued both to the lower court and this Court, summary judgment was warranted as it is undisputed that no written contract exists between the parties.

The majority, nonetheless, reverses the trial court’s grant of final summary judgment in favor of Treasures based on an agency theory not plead anywhere in South Florida Coastal’s complaint. While the majority is correct that “[wjhether an agency relationship exists is generally a question of fact,” slip op. at 4, there must be some allegation of agency made in the complaint. Here, the complaint filed by South Florida Coastal consists of twenty-seven paragraphs. No mention or reference is made to any type of agency relationship — actual or apparent. As such, the majority’s conclusion that a reversal is warranted as to Counts 1 and 2 based on a purported agency relationship is in direct contravention to both the Florida Supreme Court’s precedent and this Court’s precedent.

As a threshold matter, South Florida Coastal did not plead agency — actual or apparent — as a basis for liability in its complaint. In order to plead a claim for actual agency, the following elements must be alleged: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Fernandez v. Fla. Nat’l Coll., Inc., 925 So.2d 1096, 1101 (Fla. 3d DCA 2006) (quoting Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990)).

In order to plead a claim for apparent agency, “facts supporting [the following] three elements must be alleged: '1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation.’ ” Saralegui v. Sacher, Zelman, 19 So.3d 1048, 1051-52 (Fla. 3d DCA 2009) (quoting Ocana v. Ford Motor Co., 992 So.2d 319, 326 (Fla. 3d DCA 2008)); see also Fernandez, 925 So.2d at 1101.

Here, it is undisputed that South Florida Coastal did not mention agency, let alone plead any of the elements necessary to allege a claim for either “actual agency” or “apparent agency.” Nor did South Florida Coastal at any point seek leave to amend its complaint to assert a claim based on agency. Indeed, the following paragraphs form the totality of the factual allegations asserted in South Florida Coastal’s complaint:

4. Plaintiff is an electrical services contractor. On or about October 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From October 1, 2006, until November 19, 2006, Plaintiff performed electrical contracting services for Defendant at said property, described as “the project.”
5. Plaintiff has fully performed all conditions under the contract and has furnished labor, services and material to the project under the contract and has completed the project.
6. Plaintiff invoiced Defendant for said services, but Defendant has failed to pay Plaintiff the $269,913.00 balance now due and owing to Plaintiff with interest.
7. Plaintiff has made demand upon Defendant for payment of the outstanding funds; however, Defendant has refused to pay same.
8. Plaintiff has retained the undersigned attorneys to represent it in connection with this action and has agreed to pay them a reasonable attorney’s fee.
9. Plaintiff has performed all conditions precedent to bringing this action.
10. Within 90 days after the last labor, material and services were furnished for the project on November 19, 2006, Plaintiff filed a claim of lien against Owner’s property that was recorded by the clerk of the court of this County, CFN 2007R0170598, OR BK 25374 PG 16581. Within 15 days thereafter, a claim of lien was served on Owner, a copy of which is attached.
11. At least five days before his action was filed, Plaintiff served Defendant with an affidavit listing the names of all lienors, and amounts due each, who had furnished labor, services and materials for the project and who had not then been paid.
12. This action was filed within one year after recording the claim of lien.

At best, South Florida Coastal asserted in its initial brief to this Court that Treasures and the developer, KMC, “were jointly and severally liable” to South Florida Coastal. The law, however, is clear that “issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing.” Saralegui, 19 So.3d at 1051 (quoting Fernandez, 925 So.2d at 1101 (citations omitted)). In Saralegui, this Court held that a second amended complaint that failed to allege facts supporting a claim for apparent agency could not withstand summary judgment. 19 So.3d at 1051-52. A fortio-ri, a complaint that does not even assert the existence of an agency relationship cannot survive summary judgment.

Moreover, in Goldschmidt, the Supreme Court specifically addressed the issue of pleading agency:

The trial court refused to permit the jury to consider whether Goldschmidt was liable for Soud’s alleged negligence because the plaintiffs complaint did not specifically allege that Goldschmidt was vicariously liable for Soud’s actions. The jury found in favor of Goldschmidt, and respondents appealed. The district court reversed, holding that the complaint did not need to specifically allege that the substitute physician was an agent who committed some of the challenged acts of negligence and that the evidence created a jury question as to whether the substitute physician was an agent of the treating physician.
Florida Rule of Civil Procedure 1.110(b)(2) requires that “[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” In this case, the Holmans would have been entitled to relief against Gold-schmidt for the negligence of Soud only through vicarious liability. Thus, rule 1.110(b)(2) required the Holmans to allege Goldschmidt’s vicarious liability in the complaint. See Tamiami, 463 So.2d at 1128; Designers Tile, 499 So.2d at 5 (concluding that a separate cause of action for vicarious liability must be pled). Because the complaint failed to set forth any ultimate facts that establish either actual or apparent agency or any other basis for vicarious liability, the Holmans did not allege any grounds entitling them to relief.

571 So.2d at 423 (emphasis added).

As South Florida Coastal failed to plead in its complaint the existence of an agency relationship, it is legal error for this Court to reverse the trial court’s grant of summary judgment in favor of Treasures on the basis of an unpled agency claim. As this Court concluded in Saralegui, “[t]he trial court correctly declined to stretch the rules of pleading and apparent agency beyond their limits [and] [sjummary judgment was proper.” 19 So.3d at 1053.

Notwithstanding the fact that South Florida Coastal failed to plead agency, either actual or apparent, the majority contends that Treasurers injected the issue of “agency” into the proceedings through its affirmative defenses. I strongly disagree.

First, the majority fails to cite a single case to support its contention that an affirmative defense could create an agency theory on which the plaintiff could seek affirmative relief and would bear the burden of proof. Significantly, the majority fails to address the seminal Florida case on pleading agency, Goldschmidt Nonetheless, the majority resuscitates South Florida Coastal’s claim based on Treasures’ “vaguely pleaded affirmative defenses.” Even assuming arguendo that the “vaguely pleaded affirmative defenses” asserted agency claims — which they do not — Treasures’ affirmative defenses do not satisfy the agency pleading requirements of Goldschmidt, 571 So.2d at 422. None of Treasures’ affirmative defenses allege any of the required essential elements of either an actual agency relationship or an apparent agency relationship. See Fernandez, 925 So.2d at 1101 (actual agency); Saralegui, 19 So.3d at 1051-52 (apparent agency). Thus, agency was not legally at issue by way of the affirmative defenses.

Second, the majority also fails to address how the trial court erred in awarding summary judgment on the breach of contract claim in favor of Treasures, when, as South Florida Coastal concedes, its claim is based solely on a “written” contract, that does not exist. Indeed, Treasures’ motion for summary judgment relied on Rule 1.130(a), Fla. R. Civ. P., which “provides that a written contract or document that forms the basis of a claim for relief shall be attached to or incorporated in the pleading and any exhibit that is attached to the pleading is considered part of that pleading.” Diaz v. Bell MicroProds. — Future Tech, Inc., 43 So.3d 138 (Fla. 3d DCA 2010). It is well established that if a plaintiff fails to attach to the complaint the written contract that forms the basis of the plaintiffs claim for relief against a defendant, the plaintiffs complaint fails to state a cause of action against the defendant. Id. at 140 (reversing final summary judgment in favor of plaintiff as plaintiff failed to attach English translation of guaranty to complaint); Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So.2d 286 (Fla. 5th DCA 2002) (reversing default and final judgment on the basis that plaintiff failed to attach a copy of the written guaranty upon which plaintiff was suing defendant).

Here, the majority creates a disputed issue of fact out of whole cloth. The majority contends that a disputed issue of fact exists regarding invoices for electrical services and who contracted for that work. As evidenced by the complaint, South Florida Coastal made no such claims. Indeed, South Florida Coastal did not attach invoices to the complaint and more importantly did not bring an action for open account or account stated. South Florida Coastal never.sought leave to amend its complaint to add any such claims. South Florida Coastal’s claim is based solely on breach of a written contract.

Additionally, the majority’s assertion that “Treasures never argues surprise or prejudice” in South Florida Coastal’s presentation of the issues to this Court is irrelevant to the legal analysis before this Court. Treasures did not need to argue “surprise or prejudice.” This Court is bound by its own case law and the law is clear and unequivocal — at a summary judgment hearing, a trial court can only consider those issues raised by the pleadings. See Fernandez, 925 So.2d at 1101 (finding that plaintiffs waived claim of apparent agency by failing to plead apparent agency in complaint and failing to move to amend the complaint; “[IJssues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing.”). Hemisphere Nat’l Bank v. Goudie, 504 So.2d 785, 786 (Fla. 3d DCA 1987) (finding that bank’s failure to raise claim in pleadings regarding individual’s alleged status as endorser of note precluded trial court from ruling on claim on a summary judgment motion; “Under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings”); Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985) (“Although the plaintiff attempted to raise a number of factors argued to be “badges of fraud” in his memorandum of law in opposition to the motion for summary judgment, he has at no time sought to amend the complaint in this regard. At a summary judgment hearing, the court must only consider those issues made by the pleadings”). Pursuant to Rule 1.100(a), Fla. R. Civ. P., the pleadings in this case consist only of the complaint, and the answer to it as South Florida Coastal did not file a reply avoiding Treasures’ affirmative defenses. Since South Florida Coastal’s complaint failed to include a claim based on agency, this claim was not properly before the lower court or this Court.

Here, the record is clear that South Florida Coastal sued on the basis of a breach of a written contract. In its response to Treasures’ motion for summary judgment, South Florida Coastal conceded that no written contract exists. South Florida Coastal never sought to amend its complaint. Florida courts, however, “have consistently held that amendments to com: plaints should be liberally granted.” Sad v. Prestige Motor Car Imports, Inc., 904 So.2d 466 (Fla. 3d DCA 2005). Thus, this is not a case where the trial court failed to account for an alternative theory of relief contained in a pleading. In reversing the trial court, the majority effectively rewards ineffective lawyering in order to reach the result it believes is just. This, however, is not appropriate for a court of law. Simply put, either a written contract exists or it does not. It is not the job of this Court to raise legal theories that were never pled below, despite South Florida Coastal’s ample opportunity to do so.

Accordingly, for the reasons stated, I must respectfully dissent as I would affirm the trial court’s entry of final summary judgment in favor of Treasures.

APPENDIX 1

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

SOUTH FLORIDA COASTAL ELECTRIC INC., a Florida corporation, Plaintiff,

vs.

TREASURES ON THE BAY II CONDO ASSOC., INC., a Florida corporation,

CASE NUMBER: 08-04219 CA 27

COMPLAINT FOR FORECLOSURE AND DAMAGES

Plaintiff, SOUTH FLORIDA COASTAL ELECTRIC INC. (“SFCE” or Plaintiff) sues the Defendant, TREASURES ON THE BAY II CONDO ASSOC., INC. and alleges:

JURISDICTIONAL ALLEGATIONS

1. This is an action to foreclose a mechanic’s lien and for damages in excess of $15,000.00 exclusive of interest, costs, and attorneys fees, and is within the jurisdiction of this court.

2. Plaintiff is a Florida corporation authorized to do business in the State of Florida.

3. Defendant is a Florida corporation with its principal place of business in this County. Defendant is the owner of real property in this county described as:

TREASURES ON THE BAY II CONDO

OR 23946-4634 & PB 53-85

Sec. 09 TWNSHP: 53 RANGE 42

FACTUAL ALLEGATIONS

4. Plaintiff is an electrical services contractor. On or about Oct. 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From Oct. 1, 2006 until November 19, 2006, Plaintiff performed electrical contracting services for Defendant at said property, described as “the project.”

5. Plaintiff has fully performed all conditions under the contract and has furnished labor, services and material to the project under the contract and has completed the project.

6. Plaintiff invoiced Defendant for said services, but Defendant has failed to pay Plaintiff the $269,913.00 balance now due and owing to Plaintiff with interest.

7. Plaintiff has made demand upon Defendant for payment of the outstanding funds; however, Defendant has refused to pay same.

8. Plaintiff has retained the undersigned attorneys to represent it in connection with this action and has agreed to pay them a reasonable attorney’s fee.

9. Plaintiff has performed all conditions precedent to bringing this action.

10. Within 90 days after the last labor, material and services were furnished for the project on November 19, 2006, Plaintiff filed a claim of lien against Owner’s property that was recorded by the clerk of this court of this County, CFN 2007R0170598, OR BK 25374 PG 16581. Within 15 days thereafter, a claim of lien was served on Owner, a coy of which is attached.

11. At least five days before his action was filed, Plaintiff served Defendant with an affidavit listing the names of all lienors, and amounts due each, who had furnished labor, services and materials for the project and who had not then been paid.

12. This action was filed within one year after recording the claim of lien.

COUNT 1

(Breach of Contract)

13. Plaintiff re-alleges and re-adopts paragraphs 1-12 above as if stated fully herein.

14. Plaintiff and Defendant entered into a contract for Plaintiff to provide electrical contracting services to Defendant. Plaintiff fully performed all conditions under the contract.

15. Defendant failed to pay Plaintiff for the services rendered in breach of the contract.

16. Defendant owes Defendant in excess of $269,913.00 that is due with interest since Nov. 19, 2006, as set forth above.

WHEREFORE, Plaintiff demands judgment for damages against Defendant, and for its costs, pre-judgment interest, attorneys fees, and any other relief this Court deems just and proper under the circumstances.

COUNT 2

(Foreclosure of Mechanic’s Lien)

17. Plaintiff re-alleges and re-adopts the allegations stated in paragraphs 1-9 above as if stated fully herein.

18. Plaintiff is an electrical services contractor. On or about Oct. 1, 2006, Plaintiff and Defendant entered into a written contract to perform electrical contracting services and related improvements to the above-described real property. Plaintiff does not have a copy of the contract but will request same in discovery. From Oct. 1, 2006 until Nov. 19, 2006, Plaintiff performed electrical contracting services for Defendant at said property, described as “the project.”

20. Plaintiff has fully performed all conditions under the contract and has furnished labor, services and material to the project under the contract and has completed the project.

21. Plaintiff invoiced Defendant for said services, but Defendant has failed to pay Plaintiff the $269,913.00 balance now due and owing to Plaintiff with interest.

22. Plaintiff has made demand upon Defendant for payment of the outstanding funds; however, Defendant has refused to pay same.

23. Plaintiff has retained the undersigned attorneys to represent it in connection with this action and has agreed to pay them a reasonable attorney’s fee.

24. Plaintiff has performed all conditions precedent to bringing this action.

25. Within 90 days after the last labor, material and services were furnished for the project on November 19, 2006, Plaintiff fíled a claim of lien against Owner’s property that was recorded by the clerk of the court of this County, CFN 2007R0170598, OR BK 25374 PG 16581. Within 15 days thereafter, a claim of lien was served on Owner, a copy of which is attached.

26. At least five days before his action was filed, Plaintiff served Defendant with an affidavit listing the names of all lienors, and amounts due each, who had furnished labor, services and materials for the project and who had not then been paid.

27. This action was filed within one year after recording the claim of lien.

WHEREFORE, Plaintiff demands judgment foreclosing its lien, and if the proceeds of this sale are insufficient to pay Plaintiffs claim, for a deficiency judgment, and attorney fees pursuant to § 713.29, costs, pre-judgment interest, and any other relief this Court deems just and proper.

APPENDIX 2

AFFIRMATIVE DEFENSES

7. The property which is the subject of the complaint and legally described therein and on the attached Claim of Lien is not owned by the Defendant.

8. At all times material to the complaint, the property described therein and which was the subject of the complaint was under the control of the developer of Defendant. Pursuant to Fla. R. Civ. P. 1.221, the members of the Association cannot be joined as a class while the Association was in control of the developer.

9. The Plaintiff is estopped from asserting a claim against the Defendant after the Plaintiff made conflicting and contradictory allegations in Miami-Dade Circuit Court Case 07-14214 CA 11 wherein Plaintiff sued KMC/ED II, LLC and obtained a judgment for the same claim presented herein. In said cause Plaintiff alleged KCM/EC, LLC was the owner of said property and contracted with Plaintiff to provide the services which form the basis of Plaintiffs complaint filed herein. Defendant requests this Court take judicial notice of Miami-Dade County, Circuit Court Case Number 07-14214 CA 11 pursuant to Florida Evidence Code 90.202.

10. The Plaintiff is attempting to join unit owners within the Association as a class by naming said Associations in violation of Fla. R. Civ. P. 1.221.

11. There never was a contract or any other agreement between Plaintiff and Defendant.

      . Treasures' invocation of Florida Rule of Civil Procedure 1.221 further implicates control or agency. The rule provides for standing of a condo association, after control of the association is obtained by unit owners who are not the developer, on behalf of its members to "institute, maintain, settle, or appeal actions ... concerning matters of common interest to the members,” including cases related to the common property or elements, or electrical elements that serve die building. See Fla. R. Civ. P. 1.221(1), (3). Even if applicable, which we do not decide here, this rule’s operation presupposes the unit owners, not the developer, contracted with the suing party, which requires addressing the disputed issue of agency in this case.

      . For similar reasons, we disagree with our dissenting colleague that Saralegui v. Sacher, Zelman, Van Sant Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009), controls in this case. In Saralegui, plaintiff argued that allegations an individual had acted "in the course and scope of his employment," created an issue of fact. After determining apparent agency was not pled, this Court determined that allegations in the complaint were "contradicted, not established, by the parties' submissions before the summary judgment hearing.” Id. at 1052. In contrast, in this case, South Florida alleged its contract was "with the Defendant [Treasures],” and in response to Treasures' allegations the contract was not with Treasures or was requested by someone else, South Florida offered evidence Treasures accepted the work through Flood on its behalf. The Saralegui court did not address a situation where a defendant received summary judgment based upon its own vaguely-pleaded affirmative defense.

      . The majority incorrectly states that South Florida Coastal sued Treasures on a theory of joint and several liability. The complaint claimed breach of a written contract entered into between South Florida Coastal and Treasures on October 1, 2006, for work performed from October 1, 2006, until November 19, 2006, and sought foreclosure of a mechanic's lien. South Florida Coastal did not allege any facts or claim in its pleading that Treasures and the developer of the project, KMC, "jointly contracted with [South Florida Coastal] for the subject work.” As the allegations in the complaint are quite minimal, attached to this dissent is the complaint in it entirety. (Appendix 1)

      . With respect to Count 2 (foreclosure of the mechanic's lien), paragraph eighteen of the Complaint repeats the identical allegation asserted in paragraph four supra.

      . In its own motion for summary judgment and opposition to Treasures' motion for summary judgment, South Florida Coastal conceded that the contract was “oral” and not written.

      . For example, South Florida Coastal could have sought leave of court to amend its complaint to allege a breach of an oral contract, unjust enrichment, account stated, open account, or equitable lien. For whatever reason, South Florida Coastal chose not to do so.

      . I disagree with the majority that Treasures "injected” the issue of agency into the proceedings below, through a “vaguely pleaded affirmative defense.” Attached as Appendix 2 is a copy of all of Treasures' affirmative defenses. An affirmative defense must be pled with specificity. See Zito v. Wash. Fed. Sav. & Loan Ass’n, 318 So.2d 175 (Fla. 3d DCA 1975); Walker v. Walker, 254 So.2d 832 (Fla. 1st DCA 1971). At a summary judgment hearing, a court may only consider those issues raised by the pleadings. See Hemisphere Nat’l Bank v. Goudie, 504 So.2d 785 (Fla. 3d DCA 1987); Reina v. Gingerale Corp., 472 So.2d 530 (Fla. 3d DCA 1985).

      . On February 25, 2008, in a separate action filed by South Florida Coastal, the Honorable Robert Scola entered a final judgment against the developer of the project/defendant KMC in the amount of $269,913, which with prejudgment interest and costs totaled $306,852.67. The judgment, however, remains unsatisfied.

      . See Appendix 2 for the entirety of Treasures’ affirmative defenses.

      . Florida Rule of Civil Procedure 1.130 provides:
      Attaching Copy of Cause of Action and Exhibits
      (a) Instruments Attached. All ... contracts, accounts, or documents upon which action may be brought ... or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading ...
      (b) Part for All Purposes. Any exhibit attached to a pleading shall be considered a part thereof for all purposes ...

      . Specifically, Treasures' motions for summary judgment stated as follows: "Fla. R. Civ. P. 1.130(a) requires a copy of the contract upon which the action is based to be attached to the complaint. Plaintiff has repeatedly failed to produce, because it cannot produce, a contract with Association which would obligate Association for the services rendered by the Plaintiff because such a contract does not exist and has never existed.”

      . Florida Rule of Civil Procedure 1.100 provides:
      (a) Pleadings. There shall be a complaint or, when so designated by a statute or rule, a petition and an answer to it; an answer to a counterclaim denominated as such; an answer to a crossclaim if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Forrest Paige REED, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0551.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied June 13, 2012.
    Forrest Paige Reed, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


author: WOLF, J.

text:
    STATE of Florida, Appellant, v. Kurt Aaron DICKSON, Appellee.
    No. 1D11-0742.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied June 15, 2012.

      Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellant.
    James T. Miller, Jacksonville, for Appel-lee.
   WOLF, J.

The State appeals the trial court’s order granting appellant’s postconviction motion in part and vacating appellant’s convictions for aggravated battery on a law enforcement officer and resisting an officer with violence. Because we find no prejudice was established, we reverse for reinstatement of the convictions.

At trial, the State presented the testimony of four witnesses. The injured officer testified that while she was running after appellant during an attempted stop, appellant turned and began punching her in the face. The officer reported appellant hit her several times in the face, got on top of her, continued to hit her in the face, and then threw her onto the hood of a car, after which she fell, hitting her head hard on the concrete. As a result of this altercation, the officer underwent several surgeries, had a plate implanted in her head, and suffered daily from headaches. Photographs of her injuries were published to the jury.

A 15-year-old eyewitness corroborated the officer’s version of events and further stated that he saw appellant “beat [the officer] bad mostly just with his fist.” In addition, two officers who spoke with appellant following the incident testified that appellant admitted to hitting the officer several times. In contrast, appellant testified at trial that he did not hit the officer intentionally. However, appellant conceded he pushed at the officer to get away, and they fell to the ground together where they engaged in a scuffle.

During trial, appellant’s counsel, in an attempt to refresh the recollection of one of the State’s witnesses, referred to a portion of the police report in front of the jury which stated eye-witnesses had seen the officer and appellant fall down a flight of stairs during the incident. The State objected to the partial introduction of the report and invited defense counsel to introduce the report in its entirety. Defense counsel agreed, and the report was introduced. In addition to the reference to eyewitness testimony that the officer and appellant fell down stairs, there was another portion of the report which provided the statement of an eyewitness who did not testify at trial. In the statement, the non-testifying witness reported seeing appellant get on top of the victim, hold her down, and punch her face five to ten times. The non-testifying witness further stated that appellant unsuccessfully attempted to grab the officer’s gun and then picked the officer up and threw her on the hood of her car.

Following trial, appellant was convicted of four offenses. He later filed a rule 3.850 motion attacking his convictions and asserting his counsel was ineffective for introducing the police report. After holding a limited evidentiary hearing, the trial court agreed and vacated the convictions. The State appeals.

Appellate review of a trial court’s order on a postconviction claim of ineffective assistance of counsel following an evidentiary hearing presents a mixed question of law and fact. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). When the trial court’s factual findings are supported by competent substantial evidence, the reviewing court does not “substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955); see also Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997). However, the issue of whether counsel was ineffective under those facts is ultimately a question of law and thus is reviewed de novo, calling for an independent review of the trial court’s legal conclusions. See Stephens, 748 So.2d at 1033; see also Carroll v. State, 815 So.2d 601, 610 (Fla.2002).

“[I]n order to prove that trial counsel was ineffective, a 3.850 movant must prove, as well as plead, both prongs of a two-part test: ‘First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.’ ” Bevans v. State, 75 So.3d 345, 347 (Fla. 1st DCA 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish prejudice appellant must show “there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Connor v. State, 979 So.2d 852, 857 (Fla.2007) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “Mere speculation that counsel’s error affected the outcome of the proceeding is insufficient.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Further, the question of prejudice is a legal inquiry that is reviewed de novo considering all of the evidence presented. See Rimmer v. State, 59 So.3d 763, 778 (Fla.2010) (finding no prejudice was demonstrated given the overwhelming evidence of guilt).

Applying the foregoing principles to the underlying case, to establish prejudice appellant was required to show that the introduction of the police report was so prejudicial that there existed a reasonable probability the jury would have acquitted appellant of aggravated battery on a law enforcement officer and resisting an officer with violence if the report had not been admitted.

Given the overwhelming evidence of guilt introduced at trial, appellant cannot meet this burden. Specifically, the injured officer and an eye-witness testified that appellant punched the officer in the face at least three times. The injured officer testified that she was permanently disfigured as a result of appellant’s actions, and photographs were admitted of these injuries. Two other officers testified appellant confessed to hitting the victim several times. Appellant, at trial, conceded he pushed and hit at the victim to get away. Given this overwhelming evidence of guilt, it could not be said the information in the police report, which only served to corroborate the testimony of four other witnesses, could have reasonably changed the outcome of the proceeding. Accordingly, we reverse for reinstatement of appellant’s convictions.

REVERSE.

RAY and MAKAR, JJ., concur.


text:
    Matthew FAISON, Jr., Petitioner, v. COLUMBIA CORRECTIONAL INSTITUTION, Respondent.
    No. 1D11-6924.
    District Court of Appeal of Florida, First District.
    May 4, 2012.
    Rehearing Denied June 15, 2012.
    Matthew Faison, Jr., pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition to invoke discretionary jurisdiction is treated as seeking a writ of certiorari and is denied for failure to demonstrate an injury which cannot be remedied on appeal from final order. See Collins v. Penske Truck Leasing, 668 So.2d 348 (Fla. 5th DCA 1996).

DAVIS, WETHERELL, and ROWE, JJ., concur.


author: LEWIS, J.

text:
    Thomas J. GIOVANINI, Appellant, v. Donna L. GIOVANINI, Appellee.
    No. 1D11-3797.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Rehearing Denied June 13, 2012.

      David W. Palmer, II, Fort Walton Beach, for Appellant.
    Tony Simpson, Shalimar, for Appellee.
   LEWIS, J.

Thomas Giovanini (“Former Husband”) appeals the trial court’s order denying the Former Husband’s motions for relief filed pursuant to Florida Rule of Civil Procedure 1.540(b) and challenges the trial court’s order awarding Donna Giovanini (“Former Wife”) temporary appellate attorney’s fees to defend the appeal pursuant to section 61.16(1), Florida Statutes (2011). We affirm the trial court’s order denying the Former Husband’s motions filed pursuant to rule 1.540(b) without further discussion. However, for the reasons that follow, we reverse the trial court’s award of temporary appellate attorney’s fees.

The Former Husband filed several motions pursuant to rule 1.540(b) requesting relief from the trial court’s Order Calculating Former Spouse’s Share of Military Retirement Pay and the trial court’s Order on Judgment and Arrears, which the trial court denied. During the pendency of the Former Husband’s appeal, the Former Wife filed a motion for temporary appellate attorney’s fees in the trial court alleging that the Former Husband had the ability to pay her temporary appellate attorney’s fees and that she needed such assistance. The Former Wife further alleged that her counsel estimated that it would take twenty hours to defend the appeal at a rate of $250.00 per hour. Subsequently, the trial court entered an order directing the Former Wife to prepare a memorandum of law addressing the Former Wife’s legal entitlement to an award of temporary appellate attorney’s fees and directed the Former Husband to file a response to the memorandum of law. The trial court indicated that upon consideration of the arguments presented by the parties, it would then determine whether the Former Wife was entitled to an award and, if so, it would set the matter for a hearing. However, after the parties filed their respective memoranda in support of and in opposition to the Former Wife’s motion, the trial court, in lieu of a hearing, entered an order granting the Former Wife’s motion. The trial court found that the Former Husband had the ability to pay the Former Wife’s temporary appellate attorney’s fees, the Former Wife needed such assistance, and that twenty hours at a rate of $250.00 per hour was a reasonable estimate of the time needed to defend the appeal. Consequently, the trial court ordered the Former Husband to pay the Former Wife $5,000. On appeal, the Former Husband filed a motion pursuant to Florida Rule of Appellate Procedure 9.600(e)(3) requesting review of the trial court’s order awarding the Former Wife temporary appellate attorney’s fees. The Former Husband argues, among other things, that the trial court reversibly erred in awarding the Former Wife temporary appellate attorney’s fees without conducting a hearing on the motion.

A trial court’s award ' of attorney’s fees is reviewed for an abuse of discretion. Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010). An award of attorney’s fees pursuant to section 61.16 must be based on the need of the party seeking the fees and the ability of the other party to pay the fees. Jones v. Jones, 671 So.2d 852, 855 (Fla. 5th DCA 1996). The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. Davis v. Davis, 613 So.2d 147, 148 (Fla. 1st DCA 1993). “[T]he party seeking fees must prove with evidence the reasonableness and the necessity of the fee sought.” Baker v. Baker, 35 So.3d 76, 77 (Fla. 2d DCA 2010) (quoting Chhouri v. Chhouri, 2 So.3d 987, 988 (Fla. 2d DCA 2008)). “Absent a stipulation, this must be determined at an evi-dentiary hearing.” Jones, 671 So.2d at 855. This is a basic element of due process. Matlack v. Matlack, 893 So.2d 656, 657 (Fla. 4th DCA 2005).

Here, the trial court, in the order under review, should not have determined the amount of the fee award when the trial court expressly provided in its prior order that it would set the matter for a hearing if it determined that the Former Wife was entitled to an award. McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994). Moreover, absent a stipulation by the parties, the reasonableness and the necessity of the fee sought should have been determined at a hearing.

Accordingly, we affirm the trial court’s order denying the Former Husband’s motions filed pursuant to rule 1.540(b) and we reverse the award of temporary appellate attorney’s fees.

AFFIRMED in part, and REVERSED in part.

VAN NORTWICK and SWANSON, JJ., concur.


text:
    Justin MARQUAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1909.
    District Court of Appeal of Florida, First District.
    May 15, 2012.
    Rehearing Denied June 15, 2012.
    Sonya Rudenstine, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See State v. Naveira, 873 So.2d 300 (Fla.2004); McKinney v. Yawn, 625 So.2d 885 (Fla. 1st DCA 1993).

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


author: MARSTILLER, J.

text:
    THOMAS J. DUGGAN, LLC, Appellant, v. PEACOCK POINT, LLC and John Roebuck & Associates of Florida, Inc., Appellees.
    No. 1D11-3352.
    District Court of Appeal of Florida, First District.
    May 23, 2012.

      John R. Dowd, Jr., and Charles G. Brac-kins of The Dowd Law Firm, P.A., Ft. Walton Beach, for Appellant.
    J. Bruce Bowman, and Levin F. Bracken, Destín, for Appellees.
   MARSTILLER, J.

In June 2007, the parties to this appeal entered into a contract whereby Appellee Peacock Point, LLC (“Peacock Point”) agreed to sell Appellant Thomas J. Dug-gan, LLC (“Duggan”) a six-lot waterfront subdivision in Destín, Florida, for $3.2 million. The sale arose from an auction conducted by Appellee John Roebuck & Associates of Florida, Inc. (“Roebuck”), and the contract indicated that the seller was selling the property “as is.” In January 2008, Duggan sued Appellees, seeking to rescind the contract because the lots were not, as Appellees allegedly represented, immediately ready for residential construction. The city would not issue building permits until the development obtained a certificate of completion. Ruling against Dug-gan, the circuit court found that although the parties made a mutual mistake of fact, “i.e.[J that at the time of the auction, houses could immediately be constructed on the lots[,]” Duggan failed to establish that the contract did not put the risk of mistake on him.

On appeal, Duggan argues that the lower court erred by failing to rescind the contract based on either (1) Appellees’ misrepresentation, whether fraudulent or innocent; (2) Appellees’ failure to make full disclosure, despite the “as is” provision; or (3) mutual mistake of fact. For the following reasons, we conclude that the court did not abuse its discretion in denying rescission of contract. See Rawson v. UMLIC VP, L.L.C., 933 So.2d 1206, 1210 (Fla. 1st DCA 2006) (applying abuse of discretion standard of review to order denying rescission).

First, the evidence supports the court’s finding that no fraud occurred because neither Peacock Point nor Roebuck knowingly made a false statement of material fact. See generally Yost v. Rieve Enters., Inc., 461 So.2d 178, 182 (Fla. 1st DCA 1984) (setting forth elements of fraudulent representation claim). Peacock Point’s representative, Mike Sims, believed, albeit mistakenly, that the lack of a certificate of completion was no impediment to obtaining building permits for the lots in the subdivision.

Duggan asserts that an innocent misrepresentation nonetheless can justify rescinding a contract. Indeed, “misrepresentation of material facts, although innocently made, if acted on by the other party to his detriment, will constitute a sufficient ground for rescission and cancellation in equity.” Held v. Trafford Realty Co., 414 So.2d 631, 632 (Fla. 5th DCA 1982) (quoting Langley v. Irons Land & Dev. Co., 94 Fla. 1010, 114 So. 769, 771 (1927)). Pertinent to this case, “the purchaser of business property is entitled to rely on the truth of the seller’s representations even though the falsity could have been ascertained had the buyer made an investigation!;.]” Yost, 461 So.2d at 182 (citing Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980)). But this is so only if the buyer did not know the representations were false, the falsity was not obvious to him or her, and the seller, as owner of the property, had superior knowledge of the condition of the property. Id. Here, the trial court determined the seller did not possess such superior knowledge, finding that “Mr. Duggan is a sophisticated developer and so he certainly had a great deal of knowledge regarding developments.” The representation pertained not to some latent defect in the land, but to the existence of the necessary permits and approvals to allow construction on the lots — matters of public record, as were the development order and plat. In light of these facts, the trial court did not err in denying rescission of the contract for fraudulent or innocent misrepresentation. See Gonzalez v. Patane, 234 So.2d 8 (Fla. 3d DCA 1970) (upholding summary judgment against property purchasers seeking rescission of contract where purchasers relied on real estate broker’s incorrect estimate of property taxes and “failed to use even the slightest diligence to determine the amount of the taxes when the information was readily available”).

Second, the evidence shows no actionable failure on Appellees’ part to disclose a material fact. The duty to disclose imposed on sellers in residential real estate transactions does not similarly apply to commercial property sellers. See Solorzano v. First Union Mortgage Corp., 896 So.2d 847, 849-50 (Fla. 4th DCA 2005), and cases cited therein. Duggan argues that when he inquired whether the lots had all city approvals and if they were “buildable,” and Mike Sims, through Roebuck, answered affirmatively, such “disclosure” triggered Sims’s duty also to disclose the lack of a certificate of completion. See Ramel v. Chasebrook Constr. Co., 135 So.2d 876, 882 (Fla. 2d DCA 1961) (stating that one without the duty to disclose nonetheless must disclose the whole truth if he or she undertakes to disclose any facts). Citing Green Acres, Inc. v. First Union National Bank of Florida, 637 So.2d 363 (Fla. 4th DCA 1994), Duggan asserts further that Sims’s disclosure of some of the facts “vitiated” the “as is” provision in the contract. But Green Acres did not involve an “as is” provision and does not stand for the proposition Duggan advances. In that case, the appellate court reversed the dismissal of a commercial property purchasers’ complaint so they could amend “to plead a contractual breach arising from the nondisclosure, based on specific contractual language in the actual documents which [the purchasers] allege creates a contractual duty to disclose.” Green Acres, 637 So.2d at 364.

Under the “as is” clause in the contract Duggan signed, the property seller, Peacock Point, and its agent, Roebuck, disclaimed “any warranties or representations of any kind or character, expressed or implied, with respect to the property, including, without limitation ... habitability, design, quality, merchantability, condition, environmental status, matters of survey or fitness for any particular purpose[.]” The provision further states, “Buyer has conducted such investigations and inspections of the Property as it deemed necessary and/or appropriate and shall rely upon same.” As the Third District stated in Wasser v. Sasoni, 652 So.2d 411, 413 (Fla. 3d DCA 1995), “a sophisticated purchaser of commercial property who agreed to an ‘as is’ purchase contract, had ample opportunity to conduct inspections, and could have discovered an alleged defect through exercise of ordinary diligence, may be disgruntled, but does not have a cause of action in fraud.”

Finally, the circuit court correctly concluded that the “as is” provision placed on Duggan the risk of mutual mistake on a matter central to the contract. To prevail on a claim for equitable rescission based on mutual mistake, “a plaintiff must not only prove mutual mistake regarding a basic assumption underlying the contract, but must also establish ‘that the contract did not put the risk of mistake on the party seeking rescission.’ ” Rawson, 933 So.2d at 1210 (quoting 27 Richard A. Lord, Williston On Contracts, § 70:69, at 415 (2003)). “(A]n ‘as-is’ clause in the contract stating that the sale is made ‘as-is, where-is and with all its faults’ assigns risk to the buyer, as do disclaimers of any warranty or guarantee concerning the property.” Id.

Duggan attempts to distinguish Rawson, arguing that the contract in that case was fully executed, whereas the contract here remained executory because, after discovering the fact of the mutual mistake, he “promptly elected to rescind before the transaction closed.” He relies on Musselwhite v. Oleson, 60 Fla. 342, 53 So. 944, 949 (1910), in which the supreme court stated that “[tjhere is a clear distinction between executed and executory contracts, as to the right of rescission of a contract.” But the sentence in the opinion following that statement reads: “Ordinarily in the case of executed contracts a vendee cannot rescind a contract on the mere ground of a defect in title; but it is otherwise in the case of an executory contract.” Id. (emphasis added). Thus, Musselwhite appears inapplicable to the facts in the instant case, and Duggan cites no further authority for his contention. We conclude that the “as is” provision in Duggan’s contract placed on him the risk of mistake, regardless of whether the contract was executory or fully performed when the mistake was discovered. The lower court correctly denied rescission for this reason.

AFFIRMED.

ROWE and SWANSON, JJ., concur.


text:
    ALACHUA COUNTY BOARD OF COUNTY COMMISSIONERS and Underwriters Safety and Claims, Appellants, v. Noel K. HUGHES, Appellee.
    No. 1D11-5448.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Rehearing Denied June 13, 2012.
    Elizabeth F. Campo and Matthew Whid-don, Gainesville, and Cindy R. Galen, Sarasota, for Appellants.
    Anthony J. Salzman, Gainesville, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred for three reasons. Because we agree that the JCC erred in finding that a valid, binding agreement was reached, we need not address the remaining issues.

The JCC correctly determined she had jurisdiction “to determine whether a valid, binding settlement agreement was reached and, if so, to establish its terms.” Bonagura v. Home Depot, 991 So.2d 902, 904 (Fla. 1st DCA 2008). So long as competent substantial evidence supports the JCC’s findings, this court will not disturb those findings. Id.

Here, competent substantial evidence cannot be identified in this very limited record to support the JCC’s determination “that the E/C would continue to pay the premiums for Claimant’s family BC/BS [Blue Cross/Blue Shield] health insurance until that time Claimant underwent heart surgery and completed cardiac rehab following surgery.” The only evidence in the record indicates the E/C agreed to deduct the cost of Claimant’s family health insurance coverage from the temporary partial disability benefits it was paying Claimant.

Accordingly, this matter is REVERSED and REMANDED for further proceedings consistent with this opinion.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Jay B. DRAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1416.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant, and Jay B. Drayton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences for attempted second-degree murder and armed robbery with a firearm. However, we reverse the Judgment for Fines, Costs, Fees and Surcharges because the trial court failed to delineate the discretionary fine(s) when announcing at sentencing that it would impose “$2,625 in court costs and fines.” Discretionary fines must be orally pronounced at sentencing. See Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011); Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997). On remand, the trial court may reimpose the assessments after giving Appellant notice and following the proper procedure. See Oliver v. State, 75 So.3d 349, 350 (Fla. 1st DCA 2011). We further instruct the court on remand to correct scrivener’s errors in the Criminal Punishment Code score sheet and the Order of Probation reflecting that Appellant pled nolo contendere; the documents should reflect he was found guilty by jury verdict. See State v. Anderson, 905 So.2d 111, 118 (Fla.2005); Herrin v. State, 51 So.3d 1207, 1208 (Fla. 1st DCA 2011).

AFFIRMED in part; REVERSED part; REMANDED.

PADOVANO, MARSTILLER, and ROWE, JJ., concur.


text:
    Richard C. ALTHOUSE, Appellant, v. PALM BEACH COUNTY SHERIFF’S OFFICE, Appellee.
    No. 4D11-1560.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Richard C. Althouse, West Palm Beach, pro se.
    Fred H. Gelston, West Palm Beach, for appellee.
   PER CURIAM.

Richard C. Althouse, the petitioner below, appeals a circuit court order denying his petition for writ of mandamus, in which he challenged the Palm Beach County Sheriffs Office’s (PBCSO) denial of his public records request. We affirm.

Althouse filed a request with PBCSO seeking “[a]ny and all public records” in an ongoing criminal investigation. PBCSO denied his request, asserting that there was a hold on the information because it pertained to an active homicide investigation and prosecution. Althouse filed a writ of mandamus with the circuit court and requested that the court compel PBCSO to provide him with the requested documents.

At an evidentiary hearing, PBCSO argued that the records were part of an active criminal investigation, and, thus, exempt from the Florida Public Records Act. Althouse argued that some of the information may be exempt, but that PBCSO was still required to provide him with redacted copies of the records. PBCSO then discussed an in camera inspection of the records, but Althouse objected. He did not want an in camera inspection unless certain requirements were met, and he did not feel that an inspection would be necessary. Ultimately, the trial court denied Althouse’s request. The court found that PBCSO could assert that the file “as a whole is exempt from production based on the active criminal investigation exemption.”

“The determination of whether something is a public record is a question of law subject to de novo review and is determined on a case-by-ease basis.” Bent v. State, 46 So.3d 1047, 1049 (Fla. 4th DCA 2010) (citations omitted). Section 119.011(3)(a), Florida Statutes, defines criminal intelligence information as “information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Section 119.011(3)(b), Florida Statutes, defines criminal investigative information as “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission.... ” Such information is exempt from disclosure under Florida’s Public Record Laws. See, e.g., Avila v. Miami-Dade Cnty., 29 So.3d 401, 405-06 (Fla. 3d DCA 2010).

In this case, the parties do not dispute that there is an ongoing criminal investigation. As such, the majority of PBCSO’s records may very well be exempt based upon the aforementioned statutes. However, Althouse objected to an in camera inspection of the records, thereby precluding the trial court from conducting an intelligent review of the documents. It is thus impossible to ascertain which parts of the record, if any, are available to the public. See Walton v. Dugger, 634 So.2d 1059, 1061-62 (Fla.1993) (“When, as in the instant case, certain statutory exemptions are claimed by the party against whom the public records request has been filed or when doubt exists as to whether a particular document must be disclosed, the proper procedure is to furnish the documents to the trial judge for an in camera inspection.”); see also Envtl. Turf. Inc. v. Univ. of Fla. Bd. of Trs., 83 So.3d 1012 (Fla. 1st DCA 2012) (“[A]n in-camera inspection is ‘generally the only way for a trial court to determine whether or not a claim of exemption applies.’” (quoting Garrison v. Bailey, 4 So.3d 683, 684 (Fla. 1st DCA 2009))).

Usually, the trial court’s failure to conduct an in camera inspection of the record would constitute reversible error. See Christy v. Palm Beach Cnty. Sheriff’s Office, 698 So.2d 1365, 1368 (Fla. 4th DCA 1997) (holding that the trial court committed reversible error when it failed to conduct an in camera inspection of records, and remanding with directions that the court conduct an in camera inspection and determine what portion of the records are subject to disclosure). However, in this case, Althouse invited the trial court’s ruling by arguing against an in camera inspection and asserting that one would not be necessary. See Held v. Held, 617 So.2d 358, 360 (Fla. 4th DCA 1993) (“A party cannot claim as error on appeal that which he invited or introduced below.” (citations omitted)). The trial court was unable to determine what portions of the record were subject to disclosure without conducting an in camera review. Under the facts and circumstances of this case, we are compelled to affirm the trial court’s ruling.

Affirmed.

TAYLOR, CIKLIN and GERBER, JJ„ concur.


author: MONACO, J.

text:
    Joe LEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2319.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    Ryan Thomas Truskoski, and Jeffrey Deen, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Joe Lee, was convicted of robbery with a firearm and aggravated battery with a firearm, and sentenced on each count in accordance with the 10-20-Life statute. He argues that the trial court used an incorrect standard in ruling on his motion for a new trial founded on his claim that the principal testimony against him at trial was fatally inconsistent. Because there is merit to Mr. Lee’s argument, we reverse and remand for a new hearing on his motion for new trial.

Rule 3.600(a)(2), Florida Rules of Criminal Procedure, provides that the court shall grant a new trial if, among other reasons, “[t]he verdict is contrary to law or the weight of the evidence.” When ruling on a motion for new trial based on a claim that the verdict is against the weight of the evidence, the trial court is compelled to exercise its discretion to determine “whether a greater amount of credible evidence supports one side of an issue or the other.” Fulword v. State, 29 So.3d 425 (Fla. 5th DCA 2010) (citing Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002)). The trial court under these circumstances acts as a “safety valve” by considering whether to grant a new trial where “the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.” Moore v. State, 800 So.2d 747, 749 (Fla. 5th DCA 2001).

In the present case it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial. Indeed, the State agrees that because the record on the issue is ambiguous, a new hearing on Mr. Lee’s motion is appropriate. We agree and commend the State for its candor.

Accordingly, we reverse the judgment and sentence and remand to the trial court for a new hearing on the motion for new trial.

REVERSED and REMANDED with instructions.

PALMER and LAWSON, JJ, concur.


author: EVANDER, J.

text:
    Edgardo ESTREMERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3053.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Estremera was convicted, after a jury trial, of burglary, robbery, assault, and petit theft. On appeal, he contends that his convictions for assault and petit theft violate double jeopardy. We agree.

Although Estremera failed to raise these double jeopardy issues below, such claims raise questions of fundamental error that can be raised for the first time on direct appeal. Bailey v. State, 21 So.3d 147, 149 (Fla. 5th DCA 2009).

The evidence presented at trial reflects that Estremera and his co-defendant took money and cigarettes from a convenience store after putting the store’s clerks in fear through threatened violence. The State concedes that Estremera’s conviction for assault violates double jeopardy and must be set aside. See, e.g., Latimer v. State, 44 So.3d 1239 (Fla. 5th DCA 2010) (where verdict form gave no indication as to whether jury determined that taking in the case constituted robbery because of accompanying assault on victim or based on some separate use of force or violence, verdict must be read in manner that gives benefit of doubt to defendant, and thus, convictions for both robbery and assault cannot stand).

However, the State argues that pursuant to our supreme court’s recent decision in McKinney v. State, 66 So.3d 852 (Fla.2011), the petit theft conviction does not violate double jeopardy. The State’s reliance on McKinney is misplaced. In McKinney, the court determined that a defendant could be convicted of both robbery and grand, theft. However, grand theft is not a necessarily lesser included offense of robbery because it requires an element of proof that robbery does not: to-wit, the State must show the value of the property taken. McKinney, 66 So.3d at 857. By contrast, petit theft is a necessarily lesser included offense of robbery. See Stuckey v. State, 972 So.2d 918, 921 (Fla. 5th DCA 2007); J.C.B. v. State, 512 So.2d 1073, 1074 (Fla. 1st DCA 1987) (“A charge of robbery necessarily includes the elements of a charge of petit theft in that in proving a charge of robbery under section 812.13, the State must also prove the elements of petit theft under section 812.014(2)(c). Thus, petit theft is a necessarily included offense of robbery.”); see also Fla. Std. Jury Inst; (Crim) 15.1 (petit theft listed as a Category 1 lesser included offense of robbery).

Double jeopardy principles prohibit convictions for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)3., Fla. Stat. (2010). Accordingly, we reverse the assault and petit theft convictions and remand with instructions that the assault and petit theft convictions and their respective sentences be vacated.

REVERSED and REMANDED.

ORFINGER, C.J. and GRIFFIN, J., concur.


text:
    Sebastian James SALKIND, Lisa Jo Hallman, April Ladawn Thomas, Kristopher Alan Kerterson, Jessie James Geraghty, Lloyd Nimel Jones, Carling Keitt, Ulesey’C Oneal, Jr., James Bender, Adarius Johnson, Richard Gregory Crim, Scott Michael Mcfarland, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3927, 5D11-3928, 5D11-3929, 5D11-3931, 5D11-3932, 5D11-3933, 5D11-3934, 5D11-3935, 5D11-3936, 5D11-3937, 5D11-3939, 5D11-3945.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, SAWAYA and PALMER, JJ., concur.


author: PALMER, J.

text:
    William H. JARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-529.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    William H. Jarrett, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

William H. Jarrett (defendant) appeals the trial court’s order denying his motion for jail credit filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. We affirm, writing only to explain why we reject the State’s concession of error.

The State has conceded that the' order should be reversed because the trial court did not attach record documents conclusively refuting the defendant’s claim. However, our supreme court recently explained in Johnson v. State, 60 So.3d 1045, 1051 & n. 2 (Fla.2011), that rule 3.800(a) does not require the trial court to attach record documents. Rather, “[a]n appellate court should affirm the summary denial of a rule 3.800(a) motion whenever the appellate court’s review of the record establishes that the defendant did not satisfy the burden of showing entitlement to relief on the face of the record.” Id. n. 2.

AFFIRMED.

ORFINGER, C.J., and MONACO, J., concur.


text:
    Daniel HERRERA-HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1494.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    Robert Wesley, Public Defender, Ninth Judicial Circuit and Elizabeth E. Bourdon, Assistant Public Defender, Orlando, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 10-CF-6805-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, TORPY and EVANDER, JJ„ concur.


text:
    STATE of Florida, Petitioner, v. Angel MONSERRATE-JACOBS, Respondent.
    No. 5D12-944.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.

      Toby S. Hunt, Assistant State Attorney, Ocala, for Petitioner.
    Jack R. Maro, Ocala, for Respondent.
   EVANDER, J.

The State seeks certiorari review of a post-trial order granting a juror interview. Because the trial court’s order constituted a departure from the essential requirements of law, we grant the petition.

Respondent, Angel Monserrate-Jacobs, was charged with DUI-manslaughter. At trial, the State introduced a recorded statement given by Respondent to the investigating officer shortly after the fatal car crash at issue. Respondent admitted that he was tired and driving in excess of the speed limit at the time of the car crash, but denied that he was intoxicated.

The State also presented evidence that blood samples taken from Respondent on the night in question reflected that he had a blood alcohol level of .178 (grams of alcohol per 100 milliliters of blood). The blood kit utilized, as well as the vials of Respondent’s blood, were entered into evidence.

Respondent argued two theories of defense to the jury. First, Respondent’s counsel argued that the tape recording of Respondent “was not reflective of someone with a .178 blood alcohol [level] and, in fact, was disjunctive from the evidence.” Second, it was Respondent’s contention that the blood draw must somehow have been contaminated either through defective outdated tubes and/or an expired blood kit. Respondent presented expert testimony in support of this second theory of defense. Neither the State’s toxicologist, nor the defense expert, testified as to the blood kit’s expiration date.

During its deliberations, the jury made two requests of the court: (1) to rehear Respondent’s recorded statement, and (2) to view the blood kit. The trial court, without objection, granted both requests. The replaying of the recorded interview and the jury’s view of the blood kit both occurred in open court — in the presence of Respondent, counsel, and the trial judge.

With regard to the jury’s view of the blood kit, the trial court made the following findings:

Four jurors went to the area where the blood kit was and viewed the kit; two jurors voluntarily decided not to join their fellow jurors where the blood kit was.
While near the blood kit, one juror (Heape) suggested that another juror (Lapoint) exclusively handle the kit.
The juror handling the blood kit (La-point) allowed the other three jurors in that vicinity to see whatever they wanted to see about the kit, including both the vials and the box. In fact, at one point, a juror did ask Lapoint to turn the box to view the labels on the top of the box.
After the brief view of the blood kit, the jury returned to continue their deliberations.
Neither party lodged an objection to the viewing of the blood kit, nor the manner in which the jury viewed the kit, prior to the jury returning to render their verdict.

After the jury found Respondent guilty of the charged offense, Respondent filed a motion for juror interview. In his motion, Respondent alleged that juror Lapoint, a nurse, had acted improperly by “in essence becoming a witness in the case and inappropriately influencing other jurors and/or providing information in the jury room that was not delivered during the course of the trial.” Specifically, it was Respondent’s belief that juror Lapoint had observed an expiration date on the blood kit and informed the other jurors of her findings. After hearing argument, the trial court granted Respondent’s request to interview juror Lapoint, but limited the inquiry to whether she had observed an expiration date on the blood kit and, if so, whether she had given the other jurors any explanation about the expiration date on the blood kit that was based on her personal training and experience in the medical field.

Florida courts have long recognized the need to prohibit litigants or the public from invading the privacy of jury deliberations. Pesci v. Maistrellis, 672 So.2d 583, 585 (Fla. 2d DCA 1996). In recognition of this sound public policy, Florida courts have traditionally utilized the writ of cer-tiorari to review the propriety of a trial court order granting a motion for juror interview, so as to ensure that such an order will not result in a breach of the sanctity of jury deliberations. Id.

While Florida Rule of Criminal Procedure 3.575 authorizes a party to seek an order permitting a juror interview where there is “reason to believe that the verdict may be subject to legal challenge,” the motion must set forth allegations that are not merely speculative, conclusory, or concern matters that inhere in the verdict itself. Orange Cnty. v. Fuller, 502 So.2d 1364 (Fla. 5th DCA 1987).

In the instant case, we conclude that Respondent’s allegations are simply too speculative to permit a juror interview. Not only did Respondent fail to allege facts that would support his supposition that juror Lapoint had somehow ascertained the expiration date for the blood kit, but he also failed to allege that there was, in fact, an expiration date visible on the kit.

Furthermore, even if we were to assume that it was somehow improper for a juror to make an observation regarding an exhibit admitted into evidence that was not made or discussed by any witness or attorney, we believe Respondent’s objection was untimely. The jury’s inspection of the blood kit took place in the presence of Respondent, counsel, and the trial judge. No objection was made to the jury viewing the blood kit, nor the manner in which it did so, until after the jury rendered its verdict. Respondent should have brought his claim of alleged jury misconduct to the court’s attention at the time it was observed rather than waiting until after an unsatisfactory verdict. See Hampton v. Kennard, 633 So.2d 535, 536 (Fla. 2d DCA 1994).

We grant the State’s petition and quash the order permitting a juror interview.

PETITION GRANTED; ORDER QUASHED.

LAWSON and COHEN, JJ„ concur.


author: ORFINGER, C.J.

text:
    Kenneth WALKER, Appellant, v. Beatrice BAILEY, Appellee.
    No. 5D11-2416.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.

      Robert C. Wilkins, Jr., B.C.S., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellant.
    Sean F. Bogle, Winter Park, for Appel-lee.
   ORFINGER, C.J.

Kenneth Walker appeals a probate court order allocating all of the settlement proceeds of a wrongful death action to Beatrice Bailey. For the reasons that follow, we reverse.

Lekeina Walker, the fifteen-year-old child of Mr. Walker and Ms. Bailey, died at the Orlando Regional Medical Center, allegedly as the result of medical malpractice. Ms. Bailey was appointed the personal representative of Lekeina’s estate and filed a wrongful death suit against ORMC. After settling with ORMC, Ms. Bailey petitioned the probate court for an equitable distribution of the settlement proceeds, asking the court to find that she had suffered a “majority” of the loss. Ms. Bailey’s counsel provided formal notice of the petition to Mr. Walker and advised him that a hearing on the petition would be held several weeks later. When more than twenty days passed without any response from Mr. Walker, and prior to the scheduled hearing, the trial judge entered an order apportioning 100% of the settlement proceeds to Ms. Bailey, who then notified Mr. Walker that the hearing was cancelled. Mr. Walker moved for rehearing, asserting that he believed that the scheduled hearing was the appropriate time to assert his position. Mr. Walker further objected to apportioning the entire settlement to Ms. Bailey, and advised the court that he wanted to present evidence on the apportionment issue. After the trial court summarily denied the motion for rehearing, this appeal followed.

The Florida Constitution guarantees every citizen due process for the protection and enforcement of rights and property interests. Art. 1, § 9, Fla. Const.; J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060 (Fla.2000). Due process requires fair notice and a meaningful opportunity to be heard and is a flexible concept that calls for procedural protections specific to each circumstance. Schimenti v. Sch. Bd. of Hernando Cnty., 73 So.3d 831, 833 (Fla. 5th DCA 2011); Carillon Cmty. Residential v. Seminole Cnty., 45 So.3d 7 (Fla. 5th DCA 2010).

A personal representative has the statutory authority to enter into wrongful death settlements. However, if the survivors object either to a settlement’s amount or apportionment, the court’s authority is invoked to determine the settlement’s reasonableness. § 768.25, Fla. Stat. (2011); Dudley v. McCormick, 799 So.2d 436, 441 (Fla. 1st DCA 2001); Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995). When that authority is invoked, though section 768.25 does not expressly demand a hearing, Florida courts and routine practice require one, as without it, the trial court cannot properly determine a settlement’s reasonableness or the propriety of any proposed apportionment of the settlement proceeds. See, e.g., Wiggins v. Estate of Wright, 850 So.2d 444, 445 (Fla.2003); Brunson v. McKay, 905 So.2d 1058, 1062 (Fla. 2d DCA 2005); Brown v. Brown, 873 So.2d 601, 602 (Fla. 5th DCA 2004); Woods v. Estate of Woods, 770 So.2d 1270, 1271 (Fla. 3d DCA 2000); Hess v. Hess, 758 So.2d 1208, 1205 (Fla. 4th DCA 2000).

Here, apparently unable to agree on a distribution plan with Mr. Walker, Ms. Bailey invoked the trial court’s jurisdiction to determine a reasonable apportionment of the proceeds and set a hearing, giving notice to Mr. Walker. However, prior to the hearing, the court entered an order apportioning the entire settlement to Ms. Bailey, denying Mr. Walker an opportunity to be heard and, thus, violating his due process rights. See Brunson, 905 So.2d at 1062 (holding that survivors were entitled to hearing on their objections to personal representative’s proposed wrongful-death settlement).

Ms. Bailey argues that Mr. Walker was afforded due process because he was given notice pursuant to Florida Probate Rule 5.040 and failed to timely respond. This view misperceives the rule’s scope. Rule 5.040 provides that when formal notice is given, the failure to serve written defenses within twenty days permits the trial court to enter a judgment or order for the relief demanded in the pleading or motion without further notice. Fla. Prob. R. 5.040(a)(1) (emphasis added). Ms. Bailey’s petition does not set forth a specific apportionment plan beyond asking for a “majority” of the proceeds and certainly failed to inform Mr. Walker that she sought all of the settlement proceeds. Under these circumstances, Mr. Walker had a right to rely on the notice scheduling a hearing on Ms. Bailey’s petition, and was not required to file an answer or any defensive pleading or paper. The rule does not provide for the entry of a default against a party who fails to respond. The Florida Bar, Litigation under Florida Probate Code § 1.8 (2010-11 ed.).

When a wrongful death case is settled before trial, the trial court resolves questions concerning the apportionment of proceeds between survivors. § 768.25, Fla. Stat. (2011); Hess, 758 So.2d at 1205-06. The trial court must determine if the proposed apportionment is reasonable and equitable based upon competent, substantial evidence. The failure to make that determination is an abuse of discretion. Woods, 770 So.2d at 1271; In re Estate of Wiggins, 729 So.2d at 526; Univ. Med. Ctr. v. Zeiler, 625 So.2d 120, 122 (Fla. 5th DCA 1993). Here, the probate court apportioned the settlement entirely to Ms. Bailey without a hearing and without considering any evidence. This procedure denied Mr. Walker due process. The order must be reversed. See LoCascio v. Estate of LoCascio, 78 So.3d 573, 574 (Fla. 3d DCA 2011).

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . Mr. Walker also argues that Ms. Bailey breached her fiduciary duty to reasonably and equitably apportion the settlement proceeds, correctly contending that she had a duty to apportion settlement proceeds in a reasonable and equitable manner. See Guadalupe v. Peterson, 779 So.2d 494, 497 (Fla. 2d DCA 2000); Cont’l Nat’l Bank v. Brill, 636 So.2d 782, 784 (Fla. 3d DCA 1994). However, because there was no hearing on this issue, there is no evidence regarding a reasonable or fair apportionment, and therefore nothing to suggest Ms. Bailey breached her duty. The trial court must consider this issue in the first instance.


text:
    Montoya P. BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1459.
    District Court of Appeal of Florida, First District.
    June 5, 2012.
    Montoya P. Burns, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, ROWE, and RAY, JJ., concur.


author: CLARK, J.

text:
    Bobby THOMAS, Appellant, v. STATE of Florida, FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-3090.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    Bobby Thomas, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General and Eric M. Neiberger, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

In the circuit court, Bobby Thomas sought a writ of mandamus to overturn final agency action by the Florida Department of Corrections in prison disciplinary proceedings. He now challenges the circuit court’s final Order Dismissing in Part and Denying in Part his petition for writ of mandamus. Pursuant to Whisner v. Moore, 825 So.2d 420 (Fla. 1st DCA 2002), this proceeding is treated as an appeal of the circuit court’s dismissal of certain claims for failure to exhaust administrative remedies but is reviewed under the higher certiorari standard for the denials on the merits of the remaining claims. Mora v. McDonough, 956 So.2d 1203 (Fla. 1st DCA 2007).

The circuit court did not err by finding that Appellant failed to exhaust his administrative remedies on four of his claims: that the Department failed to comply with rules 33-601.305(2); 33-601.307(3); and 33-601.308, Florida Administrative Code; and that the evidence of the corrections officer was insufficient to support the disciplinary team’s finding of guilt. In his appeal of these rulings, Thomas did not argue any error in the circuit court’s finding that he had not exhausted his administrative remedies. He merely reiterated the arguments presented to the circuit court in his petition for writ of mandamus. As stated in Steele v. Florida Unemployment Appeals Comm’n, 596 So.2d 1190, 1191 (Fla. 1st DCA 1992):

The appellate court is a court of review, not simply another forum to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome. For the most part, the appellate court is concerned with questions pertaining to whether or not the proceedings below were carried out in accordance with the law. It is generally not a question of whether the appellate court agrees or disagrees with the result reached in a particular case, but whether that result was reached in a fair manner and was within the jurisdiction and authority of the court or agency whose decision is being appealed.

This review function of the appellate court applies to prison inmates challenging agency decisions of the Department of Corrections just as it applies to other pro se litigants challenging agency actions of other administrative agencies.

Even if Appellant had challenged the circuit court’s finding that he failed to exhaust his administrative remedies, the record supports the court’s finding of no exhaustion. The circuit court correctly dismissed these claims and no error is apparent from the record.

Considering Appellant’s challenge to the circuit court’s denial on the merits of his other claims — that the disciplinary team’s determination was contrary to the evidence presented by Thomas and that the agency was required to use the informal disciplinary actions provided for by rule 33-601.303(1), Florida Administrative Code prior to the formal proceedings at issue— no basis for the issuance of the writ of certiorari is presented. The circuit court complied with the procedural due process set out in rule 9.100(f) — (k), Florida Rules of Appellate procedure, and applied the correct law. Plymel v. Moore, 770 So.2d 242, 246 (Fla. 1st DCA 2000).

Accordingly, the portion of the circuit court’s order dismissing the claims upon which it found that Appellant failed to exhaust his administrative remedies is AFFIRMED. The writ of Certiorari is DENIED for the portions of the circuit court’s order denying mandamus relief on the merits regarding the sufficiency of the evidence to support the disciplinary action and the Department’s exercise of its discretion to pursue or forego alternative disciplinary remedies.

DAVIS and ROWE, JJ., concur.


text:
    Eddie C. WILLIAMS, Appellant, v. Regina WILLIAMS, Appellee.
    No. 5D11-217.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Mark A. Skipper of the Law Office of Mark A. Skipper, P.A., Orlando, for Appellant.

      Anna E. Meddin of The Meddin Law Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

Eddie C. Williams appeals a final judgment of injunction for protection against domestic violence. Because the trial court never made a finding of domestic violence- and because petitioner did not present evidence that could support a finding that she had been a victim of domestic violence or was in imminent danger of becoming a victim of domestic violence-we reverse the final judgment and remand with directions that the petition be dismissed. See § 741.30, Fla. Stat. (2010) (authorizing a circuit court to grant an injunction for protection to any person “who is either the victim of domestic violence” or “has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence”); Randolph v. Rich, 58 So.3d 290 (Fla. 1st DCA 2011) (noting that the law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction for protection against domestic violence; rather, the law requires the party seeking an injunction to present sufficient evidence establishing an objective reasonableness of his or her fear that a danger of violence is imminent); 23 Fla. Prac., Florida Family Law § 14:20 (2012) (“Issues of child custody are necessarily implicated in domestic violence actions, but the courts steadfastly discourage litigants from seeking to litigate custody questions in the abbreviated proceedings of domestic violence injunctions.”).

REVERSED AND REMANDED WITH DIRECTIONS.

SAWAYA, LAWSON and EVANDER, JJ., concur.