author: FARMER, J.

text:
    Estate of Joanne ROCKS and Rolly Marine Service, Inc., Appellants, v. McLAUGHLIN ENGINEERING COMPANY; Jerald McLaughlin; and Carl E. Albreksten, Appellees.
    No. 4D09-728.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 6, 2011.

      Justin C. Leto of The Leto Law Firm, Miami, for appellants.
    Jordana L. Goldstein of Ferencik Liba-noff Brandt Bustamante & Williams, P.A., Fort Lauderdale, for appellees.
   FARMER, J.

The owner of land and the operators of a marina thereon (clients) engaged a company offering professional surveying services to do several surveys over the years to delineate the property lines on which the marina did business. The adjoining property was owned by Broward County, who notified clients after several surveys had been done that some improvements made in reliance on the surveys were encroaching on its land. Clients sued the surveyors for damages arising from breach of contract, professional malpractice, and various theories of negligence. Ultimately the trial court dismissed all claims for failure to state a cause of action. We reverse.

Between 1997 and 2004, surveyors produced nine separate surveys, all of which certified that a ten foot strip of land on the west side of the property was within the property’s boundary line. All surveys were accompanied by a surveyor’s certificate affirming that the survey was correct in all respects, an accurate depiction of the boundary lines, and that there were no encroachments onto any adjacent property. In reliance on surveys, the owner first purchased the land and leased it to the marina, and then the improvements were built. Clients sought the final survey to obtain a loan for further improvements secured by a mortgage on the land.

The initial complaint sued the company and two of its surveyors (collectively surveyors). It alleged two basic causes of action against each defendant: breach of oral contract and professional malpractice. The allegations of each breach of contract claim are identical, as are each professional malpractice claim. The professional malpractice claims specifically alleged that defendants were licensed surveyors under section 471.023, Florida Statutes; that all owed a duty as licensed surveyors to perform their engagement with the same level of skill and accuracy as any professional so licensed under the statute; and that they had deviated from that duty and caused damages.

Surveyors responded by moving to dismiss the claims for failure to state a cause of action for breach of oral contract, to strike pleadings, and for a more definite statement. They contended that the breach of oral contract claims were barred by the statute of limitations, and the professional malpractice claims were inconsistent, as well as conflicting and repugnant with the other claims. That motion to dismiss was granted, but with leave to amend.

The second amended complaint included the same breach of oral contract and professional malpractice claims, with some minor additions. Apart from those claims, the new pleading added two new claims: one for gross negligence/fraudulent concealment combined into a single claim, and the other for negligent misrepresentation. Surveyors again moved to dismiss, making the same arguments as before. At the conclusion of the hearing the trial judge orally stated his decision was to grant their motion. Specifically he found the oral contract claims time-barred. As to the professional malpractice claims he found that as pleaded they did not state a cause of action. In announcing his decision on the record, he again allowed pleadings to be further amended.

A written order on the dismissal of the second amended complaint was not entered until three months later. When submitted to the judge it was labeled agreed order. Contrary to the court’s pronouncement at the hearing to allow further amendment, it stated that the dismissal of some claims was “with prejudice”. Because the meaning of the quoted words is the source of some controversy, we set forth the order’s dispositive part:

“1. Counts I, III, V, VII for Breach of Oral Contract which have been filed against [surveyors] are dismissed with prejudice.
“2. Counts II, IV, VIII for Professional Malpractice which have been filed against [surveyors] are dismissed with prejudice specifically with respect to services performed by said company and/or individuals as licensed surveyors and mappers pursuant to Florida Statutes § 472.015. This dismissal shall not affect plaintiffs’ entitlement to bring a claim for professional malpractice pertaining to services performed to any other license and/or statute.”

The order further specified that the dismissals of the claims for gross negligence/fraudulent concealment and negligent misrepresentation were without prejudice.

Clients filed a third amended complaint containing three causes of action. The first one, simple negligence, alleges that the surveys were inaccurate; that surveyors failed to properly advise clients of errors in multiple surveys; that surveyors failed to warn against making improvements in the encroaching area; and that surveyors negligently verified each survey. The second cause of action, negligence per se, alleges that each defendant’s performance as a surveyor for clients consisted of the same failures alleged in the negligence counts; that their performance fell below the minimum standards for surveying and mapping authorized by § 472.027, Florida Statutes; and that each defendant is personally liable for negligence per se for the failure to perform according to those minimum standards, and for misconduct or wrongful acts committed in the performance of surveying. The third cause of action, negligent misrepresentation, alleges that each defendant misrepresented the boundary of the property as well as the absence of encroachment; that clients reasonably relied on those misrepresentations to their damage; and that each defendant is personally liable for the misrepresentations negligently made in the course of performance as a surveyor.

Surveyors again moved to dismiss. First they argued the new pleading was an improper attempt to circumvent the order dismissing the second amended complaint “with prejudice”. All claims, they further contended, are barred by the economic loss rule (ELR). Next they contended that surveyors are not “professionals” within the meaning of the Florida Supreme Court’s exemption from the ELR. Finally they contended that the doctrine of negligence per se is not applicable because the statutes cited merely allow violations to be evidence of negligence but do not constitute negligence per se. The trial court accepted these arguments and dismissed all remaining claims with prejudice.

A threshold issue is the argument that the words “with prejudice” in the order dismissing the second amended complaint bar clients from appealing the dismissal of claims in the third amended complaint. Defendants are mistaken. In context, it is clear that the words “with prejudice” mean only that plaintiffs were willing to forego the right to further amend the designated claims contained in the second amended complaint and accept the court’s dismissal for failure to state a cause of action as final on the subject of the legal sufficiency of those claims. See Al-Hakim v. Holder, 787 So.2d 989 (Fla. 2d DCA 2001) (dismissal with prejudice for failure to state cause of action not warranted unless pleader is given opportunity to amend); Mendelson v. City of Miami Beach, 386 So.2d 1276 (Fla. 3d DCA 1980) (where plaintiffs were permitted an amendment to complaint and did not seek further amendments in trial court, claim that did not state cause of action properly dismissed with prejudice).

In other words, by agreeing to the inclusion of the words “with prejudice” as to the designated claims, plaintiffs abandoned further attempts to justify the sufficiency of them, leaving them with only the right to appeal the dismissal. We reject the argument that on appeal clients are barred from raising the issue of the sufficiency of the claims in the second amended complaint dismissed with prejudice. See Mendez v. West Flagler Family Ass’n, 303 So.2d 1 (Fla.1974) (order finally disposing of claim interdependent with other pending claims not appealable); Fla. R. App. P. 9.110(k) (partial final judgments reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case); Jimenez v. Cmty. Asphalt Corp., 947 So.2d 532, 532-33 (Fla. 4th DCA 2006) (under Mendez order disposing of separate and distinct cause of action interdependent with other claims still pending not immediately appealable); Pellegrino v. Horwitz, 642 So.2d 124 (Fla. 4th DCA 1994) (final orders dismissing fewer than all of interrelated claims involving same transaction and parties are not appealable).

The only question is whether clients’ pleadings alleged sufficient facts to support their claimed causes of action. We review this issue de novo. Goodall v. Whispering Woods Center, L.L.C., 990 So.2d 695 (Fla. 4th DCA 2008) (de novo standard of review is applied to order dismissing cause of action for insufficiency of pleading). The test for a motion to dismiss under rule 1.140(b)(6) is whether the pleader could prove any set of facts whatever in support of the claim. Hillman Const. Corp. v. Wainer, 636 So.2d 576 (Fla. 4th DCA 1994).

We come at last to the legal basis underlying the trial court’s dismissal of the professional malpractice and negligence claims. In Moransais v. Heathman, 744 So.2d 973 (Fla.1999), the court held that the ELR may not be applied to “professionals”. Surveyors argue that, when the surveys were performed and certified, they were not deemed professionals for purposes of application of the ELR.

Surveyors contend that the earlier decision in Garden v. Frier, 602 So.2d 1273 (Fla.1992), supports their ELR argument. There, clients sued a surveyor for negligently performing a survey. The surveyor raised the defense of limitations. The trial court dismissed the action because the statute of limitations requiring that claims for “professional malpractice” must be commenced within two years barred the claims. On review in the supreme court, the only issue was whether surveyors were deemed professionals as that term was used in the statute of limitations. The Garden court defined the term professional in the statute of limitations as “any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida.” 602 So.2d at 1275. Applying this definition to the limitations defense, the Court held that land surveyors were not professionals because it was possible to become a licensed surveyor without first obtaining a four-year degree but explicitly limited its holding:

“We limit the definition of ‘professional’ set forth above to the context of the professional malpractice statute. It is not our intent that this definition be applied to any other reference to ‘professionals’ or ‘professions’ elsewhere in the Florida statutes, regulations, or rules, or in court cases that deal with issues other than the statute of limitations at issue here. We recognize that there may be occasions when courts, legislators, rulemaking authorities, and others may use the terms ‘profession’ and ‘professional’ more broadly or more narrowly than we do here today.” [e.s.]

602 So.2d at 1277 (footnote omitted). Surveyors argue that Garden must be applied to the later arising Moransais exception to the ELR. We do not agree.

We take the supreme court at its word. Garden limited the non-professional designation for surveyors to only the statute of limitations. As the court made clear, it did not intend for its holding to be applied in any other context. This appeal does not involve any application of the statute of limitations.

Moreover, although the surveyor regulatory and licensure statutes did not then require a four-year college degree, we note that long before the 2005 amendment adding the college degree requirement, the Legislature had used the term professional to apply to the regulation and licen-sure of surveyors. See e.g. § 472.005(3), Fla. Stat. (1994) (term “Land Surveyor” includes term “Professional [e.s.] Land Surveyor”); § 472.007, Fla. Stat. (1995) (statute entitled “Board of Professional [e.s.] Surveyors and Mappers”). Obviously from these older statutes, there is at least a strong general sense in which the Legislature deemed surveyors as professionals many years before it added the college degree requirement.

Common law authority is in the same vein. See Carr Smith & Assoc. Inc. v. Fence Masters, Inc., 512 So.2d 1027, 1028 (Fla. 3d DCA 1987) (holding “surveyors, like other professionals may be held liable for their negligent acts”). To like effect is Cristich v. Allen Engineering, Inc., 458 So.2d 76 (Fla. 5th DCA 1984), where the court noted that:

“land surveying requires a great degree of specialized knowledge.... [T]he preparation of a survey, involving as it does such intricate knowledge of mathematics, geography and the physical sciences, is a ‘professional act.’ ”

458 So.2d at 79. As the court further explained:

“Land surveying is regulated by the Board of .Land Surveyors, Department of Professional Regulation, pursuant to Chapter 472, Florida Statutes (1981). Section 472.005 includes the following definition: (4)(a) ‘Practice of land surveying’ means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences.... ”

458 So.2d at 78-79.

This sense is understandable when one compares kindred professions like architecture and engineering. As with architects and engineers, surveyors are engaged by clients to perform a skilled service solely under their control and competence. Their clients do not direct or specify them manner of performance in the same way, for example, a factory boss might direct and control production line personnel. The service to be performed by a surveyor is one requiring special education, training, experience and skill. Because of that fact the client is not competent to perform the service personally or to direct the person engaged to perform that service in any particular way. Their engagement contracts give clients of the professional no power of direction or manner, and leave performance up to the skill and expertise of the professional. Because the contracts lack such specifications, it would be incoherent to apply the ELR to these professionals. An action for professional malpractice is indeed the client’s remedy.

It follows, therefore, that it was error to dismiss clients’ claims for professional malpractice at the pleading stage. Florida pleading rules require only the allegation of ultimate facts stating a cause of action. See Fla. R. Civ. P. 1.110(b). The pleadings in this case met at least that requirement. As for the later added negligence, negligence per se and negligent misrepresentation claims, clients assert that they were induced by surveyors’ negligent misrepresentations as to the boundary and lack of encroachments to repeatedly engage them when they required professional surveys. We agree that them allegations contain a sufficient aspect of inducement to be exempt from the ELR. Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000).

Reversed for further consistent proceedings.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . Plaintiffs amended their initial pleading less than 10 days after filing. The change is not relevant to the issues in this appeal.

      . See § 472.013, Fla. Stat. (2005) (fixing academic requirements for licensure as land surveyor).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronnie KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2726.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 13, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Davis v. State, 52 So.3d 697, 2010 WL 3239148 (Fla. 4th DCA 2010).

GROSS, C.J., FARMER and STEVENSON, JJ., concur.


author: EVANDER, J.

text:
    Charles H. MASH, Appellant, v. Fernando Rodriguez LUGO and Manuel A. Irizarry, Appellees.
    No. 5D10-2256.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    H. Michael Muniz, of Law Office of Jason Gelinas, P.A., Fort Lauderdale, for Appellees.
   ON MOTION FOR SANCTIONS

EVANDER, J.

Charles Mash has filed a motion for sanctions against Fernando Lugo and Manuel A. Irizarry and them counsel after Lugo and Irizarry failed to appear for a court-ordered mediation conference. Mash and his counsel appeared for the duly scheduled mediation session, but only Lugo’s and Irizarry’s counsel, H. Michael Muniz, appeared for the appellees.

In response to Mash’s motion, appellees’ counsel filed affidavits averring that Lugo’s and Irizarry’s insurer, Aequicap Insurance Company, held the exclusive right to decide to defend or settle any claim or suit within policy limits, that Lugo and Irizarry did not have the authority to bind the insurer to any settlement, and that attorney Muniz had full settlement authority on behalf of the insurer. We grant the motion.

Florida Rule of Appellate Procedure 9.720(a) provides that unless excused by the court, a party is deemed to appear at a mediation conference if the following persons are physically present or appear electronically upon agreement of the parties:

(1) The party or its representative having full authority to settle without further consultation.
(2) The party’s trial or appellate counsel of record, if any. If a party has more than one counsel, the appearance of only one counsel is required.
(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle without further consultation.

Here, neither appellee appeared, nor did any representative of their insurance carrier. These individuals’ appearance was not excused by court order, nor was there an agreement that they could appear electronically.

Appellees’ counsel’s claim that he had full authority to settle the case on behalf of the insurer does not excuse the failure to attend of the appellees and a representative of their insurer. (By its express terms, subsection (a)(3) excludes an insurer’s outside counsel from being considered the insurance carrier’s representative.)

In Segui v. Margrill, 844 So.2d 820 (Fla. 5th DCA 2003), this court awarded sanctions against a party when only his counsel appeared at mediation, rejecting an argument that his appearance was not necessary because his counsel had full authority to settle. As the court noted: “We required [appellee] to attend mediation because a party’s actual presence at mediation is often critical to its success.” Id. at 821.

Similarly, in Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001), the court sanctioned a party for failure to appear at mediation, even when counsel and two representatives of his insurance company appeared at the mediation.

Pursuant to Florida Rule of Appellate Procedure 9.720(b), if a party fails to appear at a duly noticed mediation conference without good cause, the court may impose sanctions against the party failing to appear.

Accordingly, appellees are hereby ordered to pay the following amount in sanctions within thirty (30) days from the date of this opinion:

1. To the mediator, all fees charged by the mediator in connection with this appellate mediation;
2. To opposing counsel, the reasonable attorney’s fees and costs incurred in preparing for and attending the appellate mediation and filing the motion for sanctions.

If the parties cannot agree on the reasonable amount of costs and attorney’s fees, the trial judge in this matter is hereby appointed as a commissioner to conduct an evidentiary hearing and to determine a reasonable amount of those fees and costs. Any dispute over the reasonable amount of attorney’s fees and costs shall not delay appellees’ obligation to pay the fees set forth in paragraph one above. The failure to make these payments may result in further sanctions by this court, including the striking of appellees’ answer brief and the assessment of additional attorney’s fees.

Motion GRANTED; SANCTIONS Imposed.

PALMER and ORFINGER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    C.N., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3828.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

C.N., a juvenile, was charged with disorderly conduct, § 877.08, Fla. Stat. (2008), and resisting an officer without violence, § 843.02, Fla. Stat. (2008). The circuit court held a delinquency hearing and found that she had committed the offenses. It withheld adjudication of delinquency but placed C.N. on probation. We agree with C.N. that her actions did not constitute disorderly conduct. Furthermore, because the police officer who arrested her did not have a reasonable suspicion that she was committing a crime, she did not commit the charge of resisting without violence. We therefore reverse the disposition order and the order placing C.N. on probation.

C.N. was in a crowd of teenagers that spilled into the streets around the Boys and Girls Club in Lakeland after a dance. The Lakeland Police Department received a number of complaints about noise, property ' damage, and fighting in the area. Officers were dispatched to break up the crowd. One officer testified that the situation was chaotic and that many of the teens were ignoring law enforcement’s orders. Several people were arrested and those arrests tended to calm the crowd. He said the police had been taught to look for instigators and to arrest them.

After the officer had been in the area for about an hour, he observed C.N. shouting and using foul language. He feared C.N.’s actions might instigate fights. According to his testimony, the officer instructed the teens in the vicinity to move along, but C.N. failed to do so and rolled her eyes. He told her to leave or he would arrest her. She did not move so the officer attempted to take her into custody for committing the crime of disorderly conduct. C.N. pulled away from his grasp and tightened her arms at her side, all the while continuing to curse. The officer was finally able to put her in a police cruiser and drive away from the crowd.

In order to prove disorderly conduct based on words alone, the State must show that the words either caused a crowd to gather, thereby resulting in safety concerns, or that the words incited a crowd to engage in an immediate breach of the peace. See C.H.C. v. State, 988 So.2d 1145, 1146-47 (Fla. 2d DCA 2008) (holding that screaming and yelling profanities at deputies, without inciting a breach of the peace, was not disorderly conduct); see also A.S.C. v. State, 14 So.3d 1118 (Fla. 5th DCA 2009) (stating that juvenile’s loudness and profanity was not disorderly conduct when no evidence showed that the juvenile was trying to incite a crowd or that she had caused a crowd to gather and present a safety risk); W.L. v. State, 769 So.2d 1132 (Fla. 3d DCA 2000) (noting that it was not disorderly conduct for a juvenile to stand in a crowd of 15-20 people, yelling profanities at the police).

The State maintains that C.N.’s language incited others to fight, thereby resulting in a breach of the peace. But the evidence it presented at the healing did not support that theory. The officer testified that no one was fighting in the area he was patrolling. In fact, he ventured that if he had seen a fight, he would not have been concentrating on C.N.’s activities. Additionally, the crowd had spontaneously come together after a party. No evidence suggested that C.N. instigated the gathering — the officer testified that he had been at the scene for at least an hour before he even noticed C.N. The evidence presented at the adjudicatory hearing was insufficient to support the circuit court’s finding that C.N. engaged in disorderly conduct.

The State concedes that if we reverse on the disorderly conduct charge, we must reverse on the charge of resisting an officer without violence. We agree. To prove that crime, the State must show that the officer was engaged in the lawful performance of a legal duty. C.H.C., 988 So.2d at 1146. In cases involving a detention, the State is required to show that the officer had a reasonable suspicion that the detainee was committing a crime. Here, as in C.H.C., the acts resulting in C.N.’s detention did not constitute disorderly conduct, and therefore the officer did not have the requisite reasonable suspicion. That being the case, the officer was not performing a legal duty when he arrested C.N. without a warrant. See id.; E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003).

We reverse the disposition order and vacate the order of probation.

LaROSE and KHOUZAM, JJ., Concur.


author: THOMAS, J.

text:
    Quinton Lavar SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6556.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.

      Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s order revoking his probation and sentencing him to three years’ imprisonment with credit for time served. For the reasons explained below, we reverse and remand for further findings.

After pleading guilty to lewd or lascivious battery, Appellant was sentenced to 13 months in prison, followed by three years of sexual offender probation. Shortly after being released from prison, the State charged Appellant with violations of Conditions 7, 9, 10 and 20 of his probation requirements.

Although the trial court’s written order includes a finding that Appellant violated Condition 7, which required Appellant to remain gainfully employed, the court did not orally pronounce such a finding. A written order must conform to the trial court’s oral pronouncements, and the oral pronouncements control. Williams v. State, 604 So.2d 8, 9 (Fla. 1st DCA 1992). Here, because the court did not orally pronounce a violation of Condition 7, it cannot be used as a basis for revoking probation; consequently, we remand for correction of the written order to conform to the oral findings at the probation hearing.

Condition 10 required Appellant to pay the costs of supervision, court costs, and fees. Appellant argues that the trial court did not make a determination that Appellant had the ability yet refused to pay the money he owed, and the State concedes. This court has held that “ability to pay is an essential element for a finding that a probationer willfully violated probation for failure to pay supervisory costs,” and that revoking probation for a failure to pay such costs without the requisite findings as to ability to pay is fundamental error. Odom v. State, 15 So.3d 672, 678-79 (Fla. 1st DCA 2009). Consequently, because the trial court did not make the required findings, it could not base its decision to revoke probation on Appellant’s failure to pay the costs of supervision and fees; therefore, this violation must be “stricken from the probation revocation order.” Id. at 679.

Condition 20 prohibited Appellant from viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material relevant to deviant behavior patterns. Appellant’s probation officer testified to finding pornographic material on Appellant’s cell phone. The State agrees with Appellant’s argument that, pursuant to Kasischke v. State, 991 So.2d 803, 815 (Fla.2008), the pornographic material must be relevant to Appellant’s deviant behavior pattern. Although the trial court did find the pornography relevant to Appellant’s deviant behavior pattern, pursuant to Sellers v. State, 16 So.3d 225, 227 (Fla. 5th DCA 2009), the trial court was required to make findings describing the nature of the material, its content, and how it was related or relevant to Appellant’s deviant behavior pattern. Because the trial court did not make those findings, we remand to allow the trial court to specify how the evidence related to Appellant’s deviant behavior pattern.

Finally, Condition 9 required Appellant to perform no less than ten hours of community service per month. Testimony from Appellant’s current probation officer indicated he worked three hours the first month and seventeen hours over the next two months, leaving him ten hours short of his required hours for that three-month period.

Although it appears Appellant did technically violate Condition 9 of his probation, Appellant argues that because the trial court failed to make clear whether any particular violation, standing alone, would support the revocation of his probation, the record is unclear as to whether the trial court would have revoked Appellant’s probation and imposed the same sentence based on Condition 9 alone, assuming the court is unable to make the requisite findings as to the alleged violation of Condition 20. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009) (stating the general rule requires remand when it is unclear from the record whether the trial court would have revoked the appellant’s probation and imposed the same sentence based solely on the condition the appellate court found appellant in violation of); see also Stevens v. State, 823 So.2d 319, 322 (Fla. 2d DCA 2002) (although there was sufficient evidence defendant did not complete the required monthly hours of community service, case remanded to determine whether the court would have revoked probation solely on this violation).

Because the evidence in the record supports the finding that Appellant did technically violate Condition 9, we remand for a determination by the trial court as to whether it would revoke Appellants probation based on that violation alone if the court is unable to make the requisite factual findings as to the alleged violation of Condition 20.

REVERSED and REMANDED for proceedings consistent with this opinion.

DAVIS and HAWKES, JJ., concur.


author: DAMOORGIAN, J.

text:
    Peter N. PRICE, Appellant, v. FAX RECOVERY SYSTEMS, INC., et. al., Appellees.
    No. 4D10-1679.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Peter N. Price, Hollywood, pro se.
    Larry E. Schner of Larry E. Schner, P.A., Boca Raton, for appellee.
   DAMOORGIAN, J.

Peter Price, the defendant in the trial court, timely appeals the trial court’s non-final order denying his motion to compel arbitration of civil claims brought against him. We hold that the trial court incorrectly determined that Price waived his right to arbitrate the underlying claims. We remand for the trial court to consider Price’s motion on the merits.

Fax Recovery Systems, Inc. and Joel Nussenblatt (collectively “FRS”) brought suit against Price, alleging claims for monies owed, breach of contract, accounting, and civil theft arising out of Price’s purchase of assets from FRS. The terms of the sale and purchase of the assets were governed by the parties’ Asset Purchase Agreement (“Agreement”). In response to the complaint, Price filed a motion to dismiss FRS’s complaint on the grounds that the Agreement contained an arbitration clause and that all claims were to be resolved by arbitration. After several attempts, Price’s motion was set for hearing. Price did not attend the hearing. The trial court denied the motion and ordered Price to file an answer to the complaint within ten days. Instead of filing an answer, Price filed a motion to compel arbitration. Before the motion to compel arbitration could be heard, FRS filed a motion for default against Price for his failure to file an answer. The trial court entered an order granting FRS’s motion for default. Notwithstanding the entry of a default, and for reasons not apparent from the record, the trial court ordered Price to file an answer within five days. The order also provided that “defendant may preserve [his] right to determine his motion to compel arbitration.”

Thereafter, Price filed an answer, affirmative defenses, and a counterclaim. One of Price’s affirmative defenses alleged that the “Agreement has an arbitration clause.” Subsequent to filing his answer, Price scheduled a hearing on his previously-filed motion to compel arbitration. The trial court denied the motion to compel arbitration, reasoning that Price had waived his right to compel arbitration as a result of the filing of a counterclaim. This appeal follows.

“We review de novo the trial court’s denial of a motion to compel arbitration.” Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) (citing King Motor Co. of Fort Lauderdale v. Jones, 901 So.2d 1017, 1018 (Fla. 4th DCA 2005)).

Price acknowledges that the right to arbitrate can be waived. However, he argues that the trial court erred in finding that he had waived his right to arbitrate. FRS counters that Price waived his right to arbitrate by filing his counterclaim, including adding additional parties to the action.

In determining whether to compel arbitration, the court must answer three questions: “(1) whether a valid arbitration provision exists, (2) whether there is an arbitrable issue, and (3) whether the right to arbitrate has been waived.” Shetty v. Palm Beach Radiation Oncology Assocs.-Sunderam K. Shetty, M.D., P.A., 915 So.2d 1233, 1234 (Fla. 4th DCA 2005) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). The only question in this case is whether Price has waived his arbitration right by filing his counterclaim. We hold that he did not because Price properly asserted his right to arbitrate by filing both a motion to dismiss and a motion to compel arbitration prior to filing his responsive pleading and counterclaim, and again asserted his right to arbitrate in the form of an affirmative defense.

A party’s arbitration rights may be waived by taking action inconsistent with its arbitration rights. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). “Filing an answer without claiming the action should be referred to arbitration” is inconsistent with asserting an arbitration right and “waives the right to arbitrate.” Bland v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009) (citing King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235, 1235 (Fla. 4th DCA 1977)); see also Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288, 290-91 (Fla. 4th DCA 2002) (“In essence, the answer (without a demand for arbitration in the form of an affirmative defense) is a direct attack on the merits— it is a denial of liability.”); Lapidus v. Arlen Beach Condo. Ass’n, 394 So.2d 1102, 1103 (Fla. 3d DCA 1981).

However, where a party’s first substantive filing invokes the arbitration clause, the trial court errs in finding that the party wishing to arbitrate has waived its right to do so. See Miller, 824 So.2d at 291. Furthermore, even when a motion to compel arbitration and a counterclaim are filed at the same time, without some other indicia of waiver such as participating in discovery, a finding of waiver is not proper. See Waterhouse Constr. Grp., Inc. v. 5891 SW 64th St., LLC, 949 So.2d 1095, 1100-01 (Fla. 3d DCA 2007); Concrete Design Structures, Inc. v. P.L. Dodge Found., Inc., 532 So.2d 1334, 1334-35 (Fla. 3d DCA 1988).

Price twice asserted his arbitration right before filing his answer and counterclaim. The first time he did so was in his motion to dismiss. After that motion was denied, Price then filed his motion to compel arbitration in lieu of filing a responsive pleading. Perhaps more compelling is that the trial court noted, in its order granting FRS’s motion for default, that “defendant may preserve [his] right to determine his motion to compel arbitration.” Next, Price filed his answer and counterclaim, again asserting his right to arbitration in the form of an affirmative defense. Under our holdings in Bland and Miller, Price’s filing of an answer and counterclaim did not constitute a waiver of his right to arbitration. See Bland, 12 So.3d at 824; Miller, 824 So.2d at 290-91. Accordingly, the trial court erred when it denied Price’s motion to compel arbitration on the grounds that “the defendant has waived his right to compel arbitration, due to the filing of his counterclaim adding additional parties.”

Reversed and remanded for further proceedings consistent with this opinion.

MAY and GERBER, JJ., concur.


author: LEVINE, J.

text:
    Sheila SCOTT-LUBIN, Appellant, v. Paul J. LUBIN, Appellee.
    No. 4D09-4609.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Amy H. Eichman of Shapiro, Blasi, Was-serman & Gora, P.A., Boca Raton, for appellant.
    No appearance for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in setting aside a final judgment, where the trial court found that it lacked personal jurisdiction over the husband, despite the fact that the husband actively participated in the proceedings. We find the trial court erred since the husband’s appearance at a prior hearing waived any objection that he may have had as to defective service of process. We reverse.

The wife filed a petition for dissolution of marriage in 2005. Since the wife was unable to locate the husband, the wife was granted permission to notice the suit by publication. The husband did not answer the petition, and a default final judgment of dissolution of marriage was entered in 2006. The trial court also awarded the wife the marital residence, two of the couple’s three cars, permanent alimony, and attorneys’ fees and costs.

In 2008, the wife filed a motion to enforce the final judgment. On May 14, 2008, the husband’s counsel filed a notice of appearance in the case. The husband then appeared pro se at the hearing before a general magistrate on June 5. At the hearing, the husband participated and told the magistrate that he had not paid because he “was not aware of the entry of the Final Judgment.” The trial court adopted all of the recommendations of the general magistrate that the husband pay all alimony arrearages and court costs on July 14, 2008.

Meanwhile, on June 8, the husband’s counsel filed a motion to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b) and Florida Family Law Rule of Procedure 12.540, which the trial court granted. The trial court found that the husband was never personally served with a petition for dissolution of marriage. The trial court concluded, since the husband was never served, that the trial court lacked jurisdiction to resolve the claims regarding alimony, the marital residence, and other matters pertaining to the parties’ assets and liabilities. The trial court concluded that the final judgment entered in 2006 was void, “except as to the granting of the Dissolution of Marriage itself.”

The trial court’s rulings related to personal jurisdiction and service are reviewed de novo on appeal. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002). Where a party has not received notice of an action and does not participate in the proceedings, the judgment may be voided. Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990); Kirchoff v. Jenne, 819 So.2d 959, 962 (Fla. 4th DCA 2002).

The husband here complained to the trial court of the adjudication of his property rights and alimony by constructive service of process. Generally, service of process by publication, like in the present case, would not be sufficient to determine issues related to alimony and property. Constructive service of process “confers only in rem or quasi in rem jurisdiction upon the court.” Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227. (Fla.1986). With respect to issues surrounding the dissolution of a marriage, the Florida Supreme Court stated, in pertinent part, the following:

The concept of “divisible divorce” ... recognizes that a dissolution proceeding has two separable aspects, that which relates to the marital res and that which relates to the property rights and obligations of the parties. While constructive service is sufficient for an adjudication of the former, personal jurisdiction is generally required for a determination of the latter.

Davis v. Dieujuste, 496 So.2d 806, 808 (Fla.1986); see also § 49.011(4), Fla. Stat. (2006) (permitting service by publication “[f]or dissolution or annulment of marriage”).

However, in this case, because the husband voluntarily appeared and participated at the hearing before the general magistrate, he has waived his right to challenge the court’s jurisdiction. “It is well established that ‘[i]f a party takes some step in the proceedings which amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.’ ” Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (quoting Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987)). Thus, the trial court erred in setting aside the final judgment on the grounds of lack of personal jurisdiction, inasmuch as the husband participated in this case without raising a contemporaneous objection to the court’s exercise of jurisdiction. Id.; see also Gilhart v. Gilhart, 155 Fla. 562, 20 So.2d 905, 906-07 (1945) (finding counsel’s “special appearance” that raised issues “go[ing] to the merits of the controversy” waived any defects in the “attempted constructive service of process”).

The fact that the husband did not appear and participate in the case until after rendition of the final judgment is irrelevant. The husband’s post-judgment participation at a hearing, along with his counsel’s notice of appearance, without a simultaneous objection to service of process, would still result in a waiver of the husband’s right to contest the trial court’s exercise of personal jurisdiction. Johnson v. Dep’t of Revenue ex rel. Lamontagne, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) (“[Ajlthough a court has already entered judgment, a party waives the right to contest personal jurisdiction by entering a general appearance without contesting personal jurisdiction at the same time.”); Dep’t of Revenue ex rel. King v. Blocker, 806 So.2d 607, 609-10 (Fla. 4th DCA 2002) (holding the defense of insufficient service was waived where the defendant made a general appearance at a contempt hearing after entry of the final judgment).

We conclude that the husband’s actions constituted submission to the jurisdiction of the circuit court, and the trial court’s vacatur of the final judgment was in error. We reverse and remand for reinstatement of the final judgment.

Reversed and remanded.

HAZOURI and CIKLIN, JJ., concur.

      . The husband was a Florida resident, and the court could have exercised personal jurisdiction over the husband had he been properly served. Haueter-Herranz v. Romero, 975 So.2d 511, 516 (Fla. 2d DCA 2008) (noting the circuit courts have personal jurisdiction over all residents of Florida). Because the wife did not make personal service of the summons and complaint on the husband, however, the trial court lacked the ability to exercise that jurisdiction. Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla.2006) ("Personal jurisdiction refers to whether the actions of an individual ... permit the court to exercise jurisdiction in a lawsuit.... Service of process ... enables the court to exercise jurisdiction over the defendant and proceed to judgment.”).


author: STEVENSON, J.

text:
    K.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4469.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

K.C. was found guilty of possessing a BB gun on school property and adjudicated delinquent. On appeal, K.C. argues that the evidence failed to establish that his BB gun was a deadly weapon so as to bring it within the statute charged in the petition for delinquency. We agree and reverse.

K.C. was charged with violating section 790.115(2), Florida Statutes (2009), which provides, in relevant part, that “[a] person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13) ... on the property of any school.” A BB gun is not one of the enumerated items; thus, to fall within the scope of the statute it must qualify as an “other weapon as defined in s. 790.001(13).” See J.M.P. v. State, 43 So.3d 189, 190 (Fla. 4th DCA 2010). Section 790.001(13) defines a “weapon” as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon.” Since a BB gun is not one of the items enumerated in section 790.001(13), it must be a “deadly weapon” to fall within the scope of section 790.001(13) and thus within the scope of section 790.115(2). See also 43 So.3d at 190. “A ‘deadly weapon’ has generally been defined to be one likely to produce death or great bodily injury.” Dale v. State, 703 So.2d 1045, 1047 (Fla.1997).

A BB gun can constitute a “deadly weapon” and whether it is a “deadly weapon” in a particular case is a question of fact to be resolved by the trier-of-fact. Id. at 1047. The fact that a BB gun is not loaded or is recovered without pellets or ammunition is not dispositive of whether it is a “deadly weapon.” Id. In Dale, where the unloaded BB gun was found shortly after the offense, our supreme court affirmed the defendant’s conviction for robbery with a deadly weapon. There, the defendant carried the BB gun in his waistband and lifted his shirt to reveal it to the victim in the process of robbing her, threatening to return if she called police. The court found it significant that the BB gun was introduced into evidence, affording the jury the opportunity to examine it for themselves, and the State presented testimony from police witnesses that the BB gun was in working order and which demonstrated, in detail, its operation. Id.; see also T.H. v. State, 859 So.2d 549, 549 (Fla. 4th DCA 2003) (evidence sufficient to establish BB gun was a “deadly weapon,” where police officer testified BB gun can damage the eye and, if fired at close range, penetrate the skin).

Where a BB gun is not loaded, and no additional evidence is introduced to establish its capacity to inflict death or great bodily harm, the courts have held the evidence insufficient to call it a statutory “deadly weapon.” In Jones v. State, 869 So.2d 1240 (Fla. 4th DCA 2004), the defendant held a BB gun to the victim’s face and ordered her to drop her purse. This court reversed the defendant’s conviction for robbery with a deadly weapon because there was no evidence that the gun had been loaded at the time of the crime’s commission, the gun was not introduced as it was accidentally destroyed prior to trial, the State presented no evidence concerning the injury that could be inflicted by such a weapon, and the defendant testified the gun was a cheap model that “couldn’t hurt a fly.” Id. at 1241-42. In E.S. v. State, 886 So.2d 311, 312 (Fla. 3d DCA 2004), the Third District reversed a conviction for carrying a concealed weapon, finding that the evidence was insufficient to establish that the BB gun was a “deadly weapon” where the gun was introduced into evidence, but no cartridges were found and an officer testified only that the gun was “capable of inflicting injury” — to be a “deadly weapon,” the weapon must be likely to cause death or great bodily harm. And, recently, in this court reversed a conviction for possession of a weapon on school property where the BB gun was introduced into evidence, but no testimony established that the BB gun was operational, detailed how it operated, or described the injuries such a weapon might inflict. 43 So.3d at 191.

The instant case falls into the latter category of cases. While K.C.’s BB gun was introduced into evidence, there was no evidence that it was loaded and no testimony describing the BB gun’s operation or the nature and character of injuries it was capable of inflicting. The judge made a comment at the hearing concerning the BB gun’s considerable weight and observed that it might be used to pistol-whip someone. An object can qualify as a deadly weapon based upon the manner in which it is used during a crime. See J.W. v. State, 807 So.2d 148, 149 (Fla. 2d DCA 2002). Thus, when used as a bludgeon, a BB gun may qualify as a “deadly weapon.” See Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA) (holding BB gun used as a bludgeon that creates a gash on victim’s head could be found to be a deadly weapon so as to support aggravated battery conviction), approved, 703 So.2d 1062 (Fla.1997); see also McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978) (noting that if gun-shaped cigarette lighter had been used as a bludgeon, then, depending on its size and weight, it might be classified as a deadly weapon). Here, the BB gun was found in the defendant’s book bag and there was no evidence that the defendant used, or threatened to use, the BB gun as a bludgeon. We thus reverse the adjudication of delinquency.

Reversed.

GROSS, C.J., and FARMER, J., concur.


text:
    Devon NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-666.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Rehearing Denied Jan. 20, 2011.

      Devon Newman, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Devon Newman appeals the summary denial of his successive and untimely motion for postconviction relief. The trial court’s order adopted the State’s response which thoroughly and accurately explains why appellant’s claim is procedurally barred and lacks merit. We affirm and determine that this appeal is frivolous and that appellant has brought false information before the courts, so we refer appellant to prison officials for consideration of disciplinary procedures.

In August 2003, appellant was convicted after jury trial of burglary with a battery and sexual battery. Appellant broke into the victim’s home through her son’s bedroom window and then sexually battered the victim while the child was in the room. The boy ran out of the house and contacted authorities who arrived and caught appellant while he was performing a sex act on the victim. He was sentenced as a habitual felony offender to 50 years in prison for the burglary with a battery and a concurrent term of 15 years in prison for the sexual battery. This court affirmed on direct appeal. See Newman v. State, 902 So.2d 811 (Fla. 4th DCA 2005).

In July 2005, appellant filed his first postconviction relief motion. It was denied and affirmed on appeal. See Newman v. State, 941 So.2d 386 (Fla. 4th DCA 2006).

In February 2007, appellant filed his second motion for postconviction relief. It too was denied and affirmed on appeal. See Newman v. State, 963 So.2d 719 (Fla. 4th DCA 2007).

This court denied his petition alleging ineffective assistance of appellate counsel (IAAC) in case number 4D07-1867.

On October 26, 2009, appellant filed this untimely and successive postconviction motion which repeated a claim he has raised previously. He again argues that his convictions are void because the administrative order appointing the county court judge who presided over the trial to temporary duty on the circuit court had not been signed. Appellant raised this same meritless claim in his second postconviction motion, as well as in his petition alleging ineffective assistance of appellate counsel.

In this motion, appellant alleges that an assistant attorney general committed fraud in the prior proceedings on his claim by submitting a copy of the signed administrative order which appellant alleges was forged. He alleges that the assistant attorney general conspired with a Broward County deputy clerk to fraudulently “back date” the time stamp on the order. The signed order, however, was recorded in the Broward County Official Records at Book 34998 and Page 1570. The signed order was recorded on April 22, 2003, one day after rendition. Appellant’s allegation, that the assistant attorney general, and a circuit court official, committed fraud, is utterly false.

Appellant’s claim is devoid of arguable merit. Assuming that a deficiency existed in the temporary appointment of the county court judge to the circuit court, this provides no basis for postconviction relief. “Jurisdiction is determined by the court, not the judge.” Kitchen v. State, 965 So.2d 252, 254 (Fla. 4th DCA 2007). “A technical flaw in assignment [of a judge] does not strip a circuit court of subject matter jurisdiction over a cause which is expressly conferred by law.” McNealy v. State, 549 So.2d 248, 250 (Fla. 5th DCA 1989). The circuit court had subject matter jurisdiction over appellant’s felony offenses. Further, even if a valid order had not been entered, the de facto judge’s acts are valid. See Kitchen, 965 So.2d at 255. A technical deficiency in the appointment of the trial judge provides no basis for collaterally attacking a conviction. This is because if a timely objection to the deficiency had been made, it could have been corrected.

These matters were clearly explained to appellant in the state’s response which was adopted by the trial court. Appellant has chosen to bring this appeal but has not presented any argument as to why the clear explanation given for denial of his motion is incorrect. We find that this appeal is frivolous and that appellant has knowingly, or with reckless disregard for the truth, brought false information before the courts. We therefore direct the clerk of this court to deliver a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010).

Affirmed.

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


text:
    Kevin J. GRUBAUGH, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3365.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2010.
    Kevin J. Grubaugh, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted, and appeal No. 5D09-3361, already pending in this Court, shall proceed as timely filed.

PETITION GRANTED.

MONACO, C.J., GRIFFIN and JACOBUS, JJ., concur.