text:
    Mark HENDRIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-90.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helen C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the prosecutor’s statement that he intended to charge appellant’s witness, if the witness testified like he did in a prior statement, violated appellant’s due process right to present a defense. We find, on the particular facts of this case, appellee effectively denied appellant’s right to present a defense.

On November 9, 2007, Detective Harder of the Fort Lauderdale Police Department was engaged in an unrelated “burglary decoy” operation at a gas station. While the police were surveilling the area, a pickup truck driven by Phillip McEnany, in which appellant was a passenger, pulled into the gas station. Shortly thereafter, another vehicle with three occupants pulled up next to the truck. The detective saw the driver, Jerome Small, exit the vehicle and approach the passenger window of the truck where appellant was seated. The detective saw appellant pass paper currency to Small who then gave appellant a small white object that the detective believed to be cocaine. A brief period later, another vehicle pulled up driven by Katie Jones. Small then entered Jones’s vehicle and came back to the truck and, according to the officer, handed appellant a white envelope.

Detective Harder ordered the other officers to move into this location. As the police vehicles approached, the detective observed appellant toss the white envelope into the bed of the truck. After being informed of his Miranda rights, appellant admitted to the detective that he had just purchased cocaine from Small. The cocaine was recovered after appellant told Detective Harder where it was located. The officers also recovered from the bed of the truck the white envelope, which contained fifty-seven hydrocodone pills.

Appellant was charged with trafficking in hydrocodone and possession of cocaine. Small was also arrested, but only for delivery of cocaine, and eventually pled to the charge. At a pretrial deposition of Small conducted by defense counsel, Small testified that his sister, Katie, would regularly sell some of her prescription hydrocodone pills to McEnany. Appellant was a passenger in McEnany’s truck that day. Small passed the hydrocodone pills through appellant’s side of the vehicle and handed the pills to McEnany. Appellant never touched the pills nor took possession of the pills.

After jury selection, at the commencement of the trial, the prosecutor made the following statement:

I do have an ethical obligation to tell the Court that Mr. Small — you may want to either spin the wheel or have some type of standby counsel or collateral whatever they’re called — conflict counsel here because I believe if he testifies consistent with his statement he gave Ms. Nagy [defense counsel], that he would be subject to inculpating himself in a 25-year minimum mandatory. It’s my obligation to tell the Court that if he gets up and testifies that he took pills over to any individual, whether it was this individual or another individual, he inculpates himself in a drug trafficking offense, which he was not previously charged with. And potentially — which he does say in his statement — and if he does that, I intend to charge him.

The prosecutor further stated:

[Small] has no protection whatsoever when he’s called if he were to say, I took pills over and gave them to either X or Y, whichever version he wants to go with. He inculpates himself in a twenty five year minimum mandatory just in his statement. If he’s consistent with that, he will do so in trial.

Subsequently, after consulting with appointed counsel, Small declined to testify and exercised his Fifth Amendment right. Appellant’s counsel objected to the prosecutor “threatening this charge against Jerome Small, a charge they could have filed over a year ago.” Counsel asserted that this threat denied appellant a fair trial and the right to present witnesses in his defense. She also argued that Small either waived his Fifth Amendment rights by testifying at the pretrial deposition or could not assert those rights because he had no real exposure to prosecution, as the speedy trial period would have expired since Small’s arrest for the delivery of cocaine charge on the same. day. The court denied appellant’s objections, and Small did not testify after invoking his Fifth Amendment rights.

During closing argument, the prosecutor stated that “[t]his case is an eyewitness case. If Detective Harder is a liar, acquit. If he’s not a liar, convict.” Appellant objected to this particular statement, which was overruled by the trial court as being “argument.”

The jury found appellant guilty of attempted trafficking in hydrocodone, a lesser included offense, and possession of cocaine. This appeal ensues.

Where there are “mixed questions of law and fact that ultimately determine constitutional rights” appellate courts should use a “two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Connor v. State, 803 So.2d 598, 605 (Fla.2001). In this case, appellant is claiming a deprivation of his constitutional right to present a witness for his defense. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). As the United States Supreme Court has stated:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Id. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the United States Supreme Court found that a trial judge’s threatening remarks directed at a single witness for the defense “effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.”

We find cases from other jurisdictions to be persuasive. In State v. Brown, 543 S.W.2d 56 (Mo.Ct.App.1976), a witness appeared at the defendant’s trial ready to testify on the defendant’s behalf that an unknown man forced the defendant at gunpoint to drive the man away from the scene of the robbery. This witness was the owner of the automobile as well as an occupant in the vehicle. Before the witness took the stand, the prosecutor stated:

I might add, during the course of this trial certain things have come to the State’s attention that the State did not know before, evidence indicating I’m not sure whether the State is going to issue a warrant against you. Whether you’re guilty or not the State is now aware of certain things incriminating against you as far as your involvement. The state is considering a warrant. With that in mind, do you still want to testify?

Id. at 58. As a result, the witness, Burke, declined to testify on behalf of the defendant. The Missouri appellate court concluded that this amounted to threatened prosecution of the witness should he give testimony in defense. The prosecutor did more than warn the witness that he might be prosecuted. Rather, the prosecutor implied that the “state has enough evidence to proceed against Burke but will do so only if Burke testifies. The inference that the State would prosecute Burke only if he testified clearly coerced the witness not [to] testify.” Id.

In the present case, the prosecutor not only implied but clearly stated that he intended to charge the witness if he testified at trial consistent with the witness’s sworn testimony at the pretrial deposition. Significantly, the state already had the sworn pretrial deposition in which Small admitted to his complicity in the delivery of the hydrocodone. The state could have charged Small regardless of whether he testified at appellant’s trial. Yet, the state only announced its intent to charge appellant’s witness if the witness testified at the trial consistent with his prior testimony at deposition, and that testimony exculpated appellant.

In State v. Goad, 177 W.Va. 582, 355 S.E.2d 371, 374 (1987), the West Virginia Supreme Court concluded that where there were “[a]dmonitions by the prosecutor to refrain from lying, combined with threats of prosecution as an accomplice and for perjury, which result in a potential witness’s assertion of his right against self-incrimination,” the prosecutor’s actions “effectively deprive[d] the criminal defendant of due process of law by denying him the opportunity to present witnesses in his own defense.”

In Campbell v. State, 37 Md.App. 89, 376 A.2d 866, 871-72 (1977), the Maryland appellate court, confronting a similar issue, concluded that “[bjecause appellant’s defense relied solely upon the believability of his version of the facts, a participant who would presumably inculpate himself was a key to success, and the use of the coercive procedural measures which effectually drove the witness from the stand deprived the appellant of due process.” In the present case, like Campbell, appellant’s defense included the reliance on a witness who was going to “inculpate himself’ and exculpate appellant and, as such, was also key to appellant’s defense.

We find that the prosecutor’s conduct in this case was an infringement of appellant’s due process rights. “[W]here the Government has prevented the defendant’s witness from testifying freely before the jury, it cannot be held that the jury would not have believed the testimony or that the error is harmless.” United States v. Morrison, 535 F.2d 223, 228 (3d Cir.1976).

We also find the prosecutor’s statement in closing that if the detective “is a liar, acquit. If he’s not a liar, convict” to be improper. The prosecutor may not argue that the jury can convict for any reason “other than his guilt of the crimes charged.” Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989).

As Justice George Sutherland aptly stated:

[The goal of a prosecutor] in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We find the state, on the particular facts of this case, utilized “improper methods” and, as such, we reverse and remand for a new trial.

Reversed and remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

      . We find the issue regarding the exclusion of Small’s deposition testimony to be without merit. The testimony was not sufficiently corroborated by other evidence and thus lacked the indicia of trustworthiness necessary to be admissible under section 90.804(2)(c), Florida Statutes.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jaddier T. SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-153.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.

      Jaddier T. Sanchez, Punta Gorda, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Jaddier Sanchez filed a motion for post-conviction relief alleging five discrete claims of ineffective assistance of trial counsel. Before the trial court ruled on this motion, Sanchez filed a motion for leave to amend to add additional claims and to correct pleading deficiencies in the originally filed motion. The trial court denied his motion. Sanchez then filed an addendum/amendment to his original motion with four new claims of ineffective assistance. The trial court summarily denied post-conviction relief in an order which addressed and acknowledged only the five claims raised in his original motion for post-conviction relief.

On appeal, Sanchez argues that the trial court erred in denying his motion for leave to amend and in failing to consider his subsequently-filed addendum/amendment adding the four new claims. The State has filed a response to this court’s order to show cause conceding that the trial court should have considered the issues raised in the addendum/amendment as they were raised within the two year limitations period of Florida Rule of Criminal Procedure 8.850, and because the trial court had not yet ruled on the merits of the original motion. Samuels v. State, 973 So.2d 662 (Fla. 4th DCA 2008). We agree.

Accordingly, we reverse and remand to the trial court to allow the filing of the addendum/amendment and for the trial court to consider it along with the originally filed motion for post-conviction relief.

Reversed and Remanded.

HAZOURI, CIKLIN and LEVINE, JJ., concur.


author: WARNER, J.

text:
    Mark A. MATUSICK and BP & G of West Palm Beach, LLC, Appellants, v. Patrick J. DiSALVO, PB Plaza, LLC, Phoenix Realty Advisors, Inc., Peter J. Crane, Cohen Commercial Realty, Inc., Bryan Stanley Cohen, Jonathan D. Moss, Appellees.
    No. 4D10-1127.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    D. Bruce Kratz of Jeck, Harris, Raynor & Jones, P.A., Juno Beach, for appellants.
    John P. Joy and Sara M. Sandler of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellees Peter J. Crane, Cohen Commercial Realty and Bryan Stanley Cohen.
    Michael Cristoforo and Joseph Bilotta of Vassallo, Bilotta, Friedman & Davis, West Palm Beach, for appellees Patrick J. Di-Salvo, PB Plaza, LLC, Phoenix Realty Ad-visors, Inc. and Jonathan D. Moss.
   WARNER, J.

The trial court dismissed appellants’ complaint for breach of contract, fraudulent and/or negligent misrepresentation, and declaratory judgment in connection with the lease of real estate. We affirm the dismissal of appellants’ complaint for breach of contract, fraud, and negligent misrepresentation, because the allegations of the complaint show on their face that appellants waived the fraud and breach of contract by executing an amendment to the contract to reduce their rent after they were aware of the fraud. See Harpold v. Stock, 65 So.2d 477 (Fla.1953); Bern v. Key W. Propane Gas Corp., 72 So.2d 910, 913 (Fla.1954). See also Merovich v. Huzenman, 911 So.2d 125, 127 (Fla. 3d DCA 2005) (execution of a contract with knowledge that an initial agreement was fraudulently procured constitutes a waiver of claims based on the previous fraud.).

We reverse, however, the dismissal of the declaratory judgment count, as the appellees did not seek dismissal of this count in the trial court. We find that count states a cause of action.

Affirmed in part; reversed in part.

LEVINE and CONNER, JJ., concur.


text:
    Niklas PROKOPISHEN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-3246.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Glen H. Mitchell, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Niklas Prokopishen petitions this court for a writ of habeas corpus, challenging the trial court’s revocation of bond and denial of his two motions to reinstate after he failed to appear for a hearing on his retained counsel’s motion to withdraw. We grant the petition only in part.

Defendant testified that he did not appear because he did not receive actual notice of the hearing; the withdrawing attorney had not telephoned him — counsel’s usual means of communication — to notify him of the hearing, nor had counsel sent notice of hearing to the West Palm Beach address which Defendant had on file with the clerk of the court, and which Defendant testified he had furnished to counsel. (According to his motion to reinstate, counsel had sent the notice to an address in Boca Raton which had been Defendant’s mother’s address when she retained counsel for Defendant, but from which counsel knew his mother had moved a few weeks later.) Had counsel used the address on file with the clerk, Defendant testified, the notice would have been forwarded to another address which he had provided to the post office, and he would have received it.

The trial court did not find Defendant’s testimony to be credible; the judge’s comments, however, focused on his testimony, and that of his witness, that he had physically moved twice after being released on bond without advising the trial court, the lower tribunal clerk, the bondsman, or his then counsel of his current whereabouts.

It is not clear whether the trial court refused to reinstate Defendant’s bond because it found his failure to appear actually was willful, or because, as the state argues in its response, it found that his failure to keep the court, the clerk of court, his attorney, and his bondsman apprised of his whereabouts constituted a willful “breach of the undertaking.” Fla. R. Crim. P. 3.131(e)(2) & (g). However, no evidence was presented that Defendant had been instructed that keeping the foregoing advised of his whereabouts was a condition of his release. Furthermore, the trial court did not make findings “that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial,” a requirement of pretrial detention under section 907.041(4)(c)7. Florida Statutes (2010).

“Pretrial detention may not be ordered based on a failure to appear unless the court finds that the failure to appear was willful.” State v. Blair, 39 So.3d 1190, 1191 (Fla.2010) (emphasis added). Second, even when a breach of the condition is willful, in order to hold the defendant without bond, the trial court still must make further findings that “no conditions of release can reasonably protect the community from risk of physical harm to persons [or] assure the presence of the accused at trial.” Bannister v. Lamberti, 32 So.3d 745, 747 (Fla. 4th DCA 2010) (citing Blair v. State, 15 So.3d 758, 759 (Fla. 4th DCA 2009), approved, 39 So.3d 1190 (Fla.2010)).

We therefore grant the petition for writ of habeas corpus, but only to the extent of remanding to the trial court to set an expedited hearing to determine (1) whether Defendant willfully violated a condition of his pretrial release, and (2) whether there are any reasonable conditions of release which would assure Defendant’s presence at trial.

Petition granted in part; case remanded for an expedited hearing.

MAY, C.J., TAYLOR and LEVINE, JJ„ concur.


author: DAMOORGIAN, J.

text:
    Christian MATTEIS, Appellant, v. Victoria MATTEIS, Appellee.
    No. 4D10-1509.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Amy L. Sumacewski and Daniel F. Dick-enson of Lavalle, Brown, Ronan & Mullins, P.A., Boca Raton, for appellant.
    Jonathan S. Root of Jonathan S. Root, P.A., Boca Raton, for appellee.
   DAMOORGIAN, J.

Christian Matteis (“former husband”) timely appeals the Amended Final Judgment of Dissolution of Marriage. He raises a number of issues on appeal. With one exception, we áffirm the final judgment. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Because the final judgment fails to resolve certain issues in connection with the sale of the marital residence, we reverse that part of the final judgment and remand for further clarification or consideration.

One exception to the general rule arising from Applegate, that failure to provide a transcript or proper substitute demands an affirmance of the trial court’s decision, is where the trial court’s error is clear on the face of the order or judgment. Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990); see also Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011).

With respect to the marital residence, the final judgment provides: “The parties shall cooperate to market the marital home for a sale. They shall equally divide any proceeds of sale and shall equally be responsible for any debt arising from the sale.” The former husband argues that the final judgment failed to address various issues surrounding the marital residence, including: (i) who would be responsible for the late homeowner’s association fees; (ii) who would be responsible for paying the principal, interest, taxes, and insurance pending the sale to keep the home from being foreclosed on by the bank; and (iii) what will happen if the house is not sold.

We agree that there are many unanswered questions regarding the disposition of the marital residence, which are apparent on the face of the final judgment. Accordingly, we remand for clarification of the issues concerning the payment of expenses of the marital residence pending its sale, as well as any contingency in the event the parties are unable to sell the residence within a specified time as determined by the trial court. See Schumaker v. Schumaker, 931 So.2d 271, 276 (Fla. 5th DCA 2006) (remanding in part for clarification of the disposition of the marital residence); see also Sullivan v. Sullivan, 363 So.2d 393, 395 (Fla. 2d DCA 1978) (“[I]f the court allows the parties to conclude a nonjudicial sale the judgment must fix a reasonable deadline by which the sale must take place”).

Affirmed in part, Reversed in Part and Remanded for proceedings consistent with this opinion.,

CIKLIN and LEVINE, JJ., concur.


text:
    INPHYNET CONTRACTING SERVICES, INC., and Team Health, Inc., Petitioners, v. David M. SORIA, M.D., Respondent.
    No. 4D11-2247.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.

      Beverly A. Pohl, Peter R. Goldman and Vanessa M. Serrano of Broad and Cassel, Fort Lauderdale, for petitioners.
    Glenn J. Waldman and Douglas T. Marx of Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., Weston, for respondent.
   WARNER, J.

Through this petition for writ of prohibition, InPhyNet Contracting Services, Inc. and Team Health, Inc., seek to prevent the trial court from considering a second amended complaint to certify a class action after this court determined in InPhyNet Contracting Services, Inc. v. Soria, 33 So.3d 766 (Fla. 4th DCA 2010) (“InPhyNet /”), that no class action could be maintained. We grant the writ.

The facts underlying this case are fully set forth in InPhyNet I. The respondent, Dr. Soria, sued InPhyNet and Team Health in a class action complaint alleging that physician employment contracts with the petitioners entitled the physicians to receive a percentage of the profits as incentive compensation through a bonus pool but that InPhyNet had failed to pay the physicians what they were entitled to because it “had inflated its expenses through a ‘phantom’ expense line of ‘Other Physician Benefits’ which reduced the profits available for bonus payments. Id. at 769 (emphasis supplied). Because the bonus provisions of the contracts contained no obligation to pay a percentage of the profits to the bonus pool, and the contract provision gave the petitioners “sole discretion” to determine the amounts to be placed in the bonus pool, we concluded that the claims required individual proof, and that common questions did not predominate:

To prove his claim that the physicians were entitled to a percentage of InPhy-Net’s profits, Dr. Soria relied on testimony of a company practice, not any written contract, that physicians would receive 60% of earnings before interest and taxes as part of the PIP plan at each facility. Because there is no written obligation to pay a percentage of profits to the bonus pool, InPhyNet’s liability would have to be established by oral promises, if any, made to the individual physicians beyond the four corners of the PIP plans themselves. These claims would necessarily require individualized determinations about what was promised to each physician .... Rather than being susceptible to class-wide proof, this case will ultimately require the very sort of mini-trials on liability which this court has explained are inappropriate for class treatment.

Id. at 773. Specifically, as to the “Other Physician Benefits” deduction from profits, we said, “[although there is a commonality of issues pertaining to the allegedly improper Other Physician Benefits deduction, individual issues regarding the formation of each contract, especially the inclusion of a particular bonus pool provision, will predominate over common issues such that class representation is not practical.” Id. at 774. We reversed the class certification, “as Dr. Soria has failed to prove that the common claim will predominate over the individual issues in this case.” Id. at 774.

As soon as the case returned to the trial court, Dr. Soria filed a second amended complaint seeking class status. In it he did not claim that he was entitled to any percentage of profits to be paid to the pool. Instead, he limited his claim to the “Other Physician Benefits.” He claimed that this was a phantom deduction which reduced profits, and thus distributions, to the physicians. While the petitioners maintained that this was the same claim as was brought in InPhyNet I, the trial court permitted the amendment of the complaint. The petitioners then filed this petition for writ of prohibition.

An appellate court has the inherent power to enforce its mandates and may issue any writ necessary or proper to the complete exercise of its jurisdiction. See Stuart v. Hertz Corp., 381 So.2d 1161, 1163-64 (Fla. 4th DCA 1980) (holding that trial court was without authority, upon issuance of the appellate mandate, to allow the filing of an amended third party complaint). Prohibition will therefore lie to prevent a trial court from proceeding contrary to an appellate court’s mandate. See State ex rel. Rimmeir v. Milledge, 104 So.2d 355 (Fla.1958). Prohibition is appropriate in situations “where a lower court, following an appeal, entertains proceedings inconsistent with the appellate court’s mandate.” State ex rel. Paluska v. White, 162 So.2d 697, 699 (Fla. 2d DCA 1964) (denying prohibition, but explaining a situation where it would be an appropriate remedy); see also State ex rel. Gibbs v. Circuit Court of Eleventh Judicial Circuit in and for Dade County, 140 Fla. 378, 380, 191 So. 699, 700 (1939) (“The law is settled in this State that when a cause has been appealed and judgment rendered by the Appellate Court, interference therewith on the part of the lower Court by any proceeding other than such as is directed by the Appellate Court will be prohibited. So, after a binding final judgment on appeal, the lower Court may be prohibited from allowing the same matter to be reliti-gated.”).

Here, prohibition is appropriate because the trial court, after the appellate mandate, allowed the plaintiff to proceed with one count of its second amended class action complaint. The trial court’s action was inconsistent with this court’s decision in InPhyNet I.

It is evident that a uniform “Other Physician Benefits” deduction would reduce profits to be paid to the bonus pool, as we noted in InPhyNet I. How the amount of that bonus pool is to be determined is not contained within the written agreement with each physician. As we explained in the prior opinion, that is a matter of individual proof. It is obvious from a careful reading of this court’s decision that any claims pertaining to the allegedly improper expense of “Other Physician Benefits” must proceed on an individualized basis. Id. at 773 (“Because there is no written obligation to pay a percentage of profits to the bonus pool, InPhyNet’s liability would have to be established by oral promises, if any, made to the individual physicians beyond the four corners of the PIP plans themselves. These claims would necessarily require individualized determinations about what was promised to each physician. ...”).

We grant the writ to the extent that the trial court is precluded from taking further action to certify the claims of the Second Amended Complaint as a class action. We do not preclude the assertion of an individual claim by Dr. Soria based upon the cause of action alleged.

STEVENSON and CONNER, JJ„ concur.

      . He made other claims, but the trial court dismissed all but the class action claim based upon the Other Physician Benefits deduction.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. TWO & TWO LLC d/b/a Complete Rehab & Medical Center of Hollywood, a/a/o Rafaela Campos-Cruz, Respondent.
    No. 4D11-900.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Lara J. Edelstein, Miami, for petitioner.
    No appearance for respondent.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for Amicus Curiae State Farm Mutual Automobile Insurance Co.
    Scott W. Dutton, Gregory J. Blackburn and Dale E. Tarpley of Dutton Law Group, P.A., Tampa, for Amicus Curiae Mercury Insurance Co.
   PER CURIAM.

Petition denied. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1089 n. 1 (Fla.2010) (“A purported verbal exam under oath without counsel in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage and the terms and limitations permitted under the statutory provisions.”).

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    WAL-MART STORES, INC., Petitioner, v. Nicolette STRACHAN, Continental Tire The Americas, LLC, Ford Motor Company, and Al Packer Ford West, Inc., Respondents.
    No. 4D11-2539.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.

      Timothy D. Kenison and David Tarlow of Quintarnos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Wal-Mart Stores, Inc. petitions for a writ of certiorari, seeking review of an order denying discovery of the settlement amounts the plaintiffs received from other co-defendants.

Plaintiffs were involved in an auto accident that was allegedly caused by tire failure. They sued the car manufacturer, the tire manufacturer, the car dealer, and Wal-Mart (the tire dealer/installer/servi-cer). Following mediation, three of the defendants entered separate confidential settlement agreements. Wal-Mart is the only remaining defendant.

In answer to the complaint, Wal-Mart raised an affirmative defense of set-off. In support of this defense, Wal-Mart requested the amounts of each settlement agreement, and the car manufacturer objected. Following hearings and supplemental memoranda, the trial court denied Wal-Mart’s motion to compel discovery. The court agreed with the tire manufacturer that the 2006 amendments to section 768.81, Florida Statutes, which abolished joint and several liability for economic damages, effectively abolished the right of a remaining defendant to seek a set-off. The court concluded that, following the abolition of joint and several liability, the settlement amounts are no longer relevant.

The denial of discovery is generally not renewable by certiorari. Power Plant Entm’t, LLC v. Tramp Hotels & Casino Resorts Dev. Co., 958 So.2d 565, 567 (Fla. 4th DCA 2007); see also Romanos v. Caldwell, 980 So.2d 1091, 1092 (Fla. 4th DCA 2008). In this petition, however, Wal-Mart asserts that certiorari is the appropriate remedy because it will suffer material irreparable harm without any alternative evidence to prove its entitlement to a set-off at trial. Wal-Mart contends that the trial court’s order denying the discovery request effectively abrogates its set-off defense and deprives it of any practical way to determine after a judgment how the requested discovery would have affected the outcome of the proceedings.

In arguing that it is irreparably harmed, Wal-Mart relies on Anderson v. Vander Meiden ex rel. Duggan, 56 So.3d 830 (Fla. 2d DCA 2011). In Anderson, the beneficiary of trusts brought separate complaints against the defendant and other nonparties alleging mishandling of the trusts. After settling claims against nonparties, the defendant sought discovery of the settlement documents, asserting that any settlement amount between the nonparties and beneficiary would act as a set-off against damages which defendant might be ordered to pay. The trial court denied the discovery request, whereupon the defendant sought relief by a petition for writ of certiorari. The Second District granted the petition, reasoning that the defendant needed the settlement documents to prove whether the claims the beneficiary asserted against the nonparties arose out of the same injury as the claims made against the defendant. Without those documents, the court concluded, the defendant’s affirmative defense of set-off would be eviscerated and he would be unable to meet his burden of proof required by Florida Statutes sections 46.015(2) and 768.041(2). Id. at 832.

Unlike the defendant in Anderson, Wal-Mart is seeking discovery of the settlement amounts, not discovery to ascertain whether the settled claims arose from the same injury. Here, it is undisputed that all of the claims in this case relate to the auto accident and arise from the same injuries. Wal-Mart cannot show that discovery of the settlement amounts is necessary to determine entitlement to set-off; it has not shown that the denial of this discovery will eviscerate its defense. At trial, Wal-Mart can ask the fact-finder to determine its percentage of fault. It does not need the settlement information to show that the claims arise from the same injury. The settlement information is not admissible or likely to lead to the discovery of admissible information.

Even if the trial court erred in concluding that Wal-Mart is not entitled to a set-off as a matter of law, Wal-Mart has an adequate remedy on appeal. The alleged error is based on a question of law, not unknown facts as in Anderson. If on appeal Wal-Mart is determined to be entitled to a set-off, the case can be remanded for the trial court to allow discovery of the settlement amounts and to set-off these amounts from the final judgment.

Because Wal-Mart has not shown that the discovery order departed from the essential requirements of law and caused Wal-Mart any irreparable harm that cannot be remedied on appeal, we dismiss the petition. See Bared & Co., Inc. v. McGuire, 670 So.2d 15B (Fla. 4th DCA 1996).

Petition Dismissed.

GROSS, TAYLOR and CONNER, JJ., concur.

      . Anderson does not address section 768.81 and the 2006 amendments. Wal-Mart also relies on W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79, 83 (Fla. 4th DCA 2010), which does not address section 768.81. Our records reflect the action in W &W Lumber arose prior to 2006 and would not have been affected by the statutory amendments.


text:
    Karren PLAINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4323.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Michael L. Rhodes, Crestview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 17, 2011, the Court has determined that its jurisdiction was not timely invoked. Contrary to the appellant’s assertion, the Motion to Mitigate Sentence did not delay rendition of the Judgment and Sentence. Fla. R.App. P. 9.020(h). Accordingly, the appeal is hereby DISMISSED.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Bobby Brian PHILLIPS, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, o/b/o Christina LAND, Appellee.
    No. 1D11-0725.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2011.
    Joy N. Owenby and Amanda Meyer, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Bobby Brian Phillips appeals a Final Administrative Order Reinstating Support Obligations entered by the Department of Revenue on January 27, 2011. The Department of Revenue professionally and correctly concedes that the order was entered without notice to Phillips as required by section 409.2563, Florida Statutes (2010). Accordingly, the order under review is VACATED, and the cause is REMANDED.

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


author: MARX, KRISTA, Associate Judge.

text:
    REALAUCTION.COM, LLC and Lloyd E. McClendon, III, Appellants, v. GRANT STREET GROUP, INC., Appellee.
    Nos. 4D10-548, 4D10-1894.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Katherine E. Giddings and Nancy M. Wallace of Akerman Senterfitt, Tallahassee, and John P. Seiler of Law Offices of Seiler, Sautter, Zaden, Rimes & Weihe, Wilton Manors, for appellants.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, and George F. Fames, Pittsburgh, PA, for appellee.
   MARX, KRISTA, Associate Judge.

Realauction.com, LLC, and Lloyd E. McClendon, III, President of Realauction, appeal the final judgment in favor of Grant Street Group, Inc., in a suit filed by Grant Street alleging defamation and tortious interference with Grant Street’s business relationship with Broward County. Realauction and McClendon argue that their post-verdict motion for directed verdict should have been granted as to a 2006 tortious interference claim. We agree and reverse. Our resolution of this issue renders moot the additional argument advanced by Rea-lauction regarding damages. We find no merit in the issues raised by Grant Street’s cross-appeal and affirm the trial court’s decision to grant a directed verdict on all other claims.

Grant Street develops software applications and provides internet auction and tax collection services to government and financial institutions. In February of 2005, Broward County began negotiations with Grant Street for an annual contract for services. In furtherance of the negotiations, an April 22, 2005 meeting was scheduled between Grant Street and the County-

Realauction is a competitor of Grant Street in providing online tax sale auction services. On April 20, 2005, Realauction’s President, Lloyd McClendon, III, sent an email to Broward County Commissioner Lois Wexler. The email alleged in pertinent part:

Grant Street is involved in multiple law suits and is currently being sued by some of the major institutional buyers because of their business practices during last year’s sale, I understand the State Attorneys [sic] General Office has also started an inquiry into Grant Street’s pricing and possible conflict of interest.

On April 22, 2005, Grant Street received notice from the County’s Director of Revenue Collection, Judith Fink, that the County was terminating the negotiations.

Six months later, the County issued a Request for Proposals (RFP) for online services to be provided for 2006. After the RFP process, Grant Street was selected and contract negotiations resulted in a proposed contract with the County. The 2006 contract also failed to come to fruition. As a result, Grant Street asserted that Realauction’s email tortiously interfered with its business relationship with the County in both 2005 and 2006.

As stated above, the trial court granted Realauction’s post-verdict motion on all counts but let stand the tortious interference count for the 2006 business relationship. Realauction argues that Grant Street failed to prove this count as well. Grant Street is correct that this court does not sit as a “second trier of fact” and that an appellate court may override a jury verdict only if there is “no competent substantial evidence” to support that verdict. Ruskin v. Ryan, 859 So.2d 1218, 1219-20 (Fla. 4th DCA 2003) (quoting MMH Venture v. Masterpiece Prods., Inc., 559 So.2d 314, 316 (Fla. 3d DCA 1990)). Further, the evidence must be evaluated “in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in [the] plaintiffs favor.” Am. Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981). In reviewing this case with this standard firmly in mind, we first discuss the 2005 tortious interference claim because the facts are inextricably intertwined with our conclusion on the 2006 claim.

To prove tortious interference, Grant Street had to prove the following elements: 1) the existence of a business relationship not necessarily evidenced by an enforceable contract under which the plaintiff has rights; 2) the defendant’s knowledge of the relationship; 3) an intentional and unjustified interference with the relationship by the defendant; and 4) damage to the plaintiff as a result of the interference. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999). A business relationship is evidenced by “an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla.1994). Therefore, Grant Street was required to put on evidence that, in all probability, the County would have entered into the contract for services but for Realauction’s email. See St. Johns River Water Mgmt. Dist. v. Femberg Geological Servs., Inc., 784 So.2d 500, 505 (Fla. 5th DCA 2001); see also ISS Cleaning Seros. Group, Inc. v. Cosby, 745 So.2d 460, 462 (Fla. 4th DCA 1999) (reversing denial of directed verdict where there was not competent substantial evidence' of an agreement “which in all probability would have been completed had the alleged interference not occurred.”).

Grant Street failed to make this requisite prima facie showing. The testimony of the two County staff members who made the decision to terminate negotiations in April 2005 directly contradicts Grant Street’s claim. Judith Fink and her supervisor, Broward County Chief Financial Officer Phil Allen, testified that Rea-lauction’s email had nothing to do with the decision to terminate negotiations.

In addition, there is significant testimonial and documentary evidence which supports the trial court’s finding that no deal had yet been struck. Even before the April 20, 2005 email was sent, there were numerous unresolved impediments to the agreement. Some of the County’s - concerns included: entering into a sole source contract when other vendors had entered the marketplace, the cost effectiveness of an online auction compared to manual auctions, a proposed security audit, and receiving timely approval from the Broward County Board of Commissioners. Importantly, the County was concerned regarding liquidated damages. The County had requested that Grant Street indemnify it in the event of a lawsuit challenging the validity or legality of the online tax certificate auction process and post a litigation bond. Nothing in the record indicates that these issues would have been resolved at the April 22, 2005 meeting.

Despite strong evidence that the County would not have entered into the contract even if the email did not exist, Grant Street argues that its claim was supported by an inference arising from the evidence. While a court may consider inferences arising from facts, these inferences must be reasonable. See Miller v. State, 75 So.2d 312, 315 (Fla.1954). It is uncontroverted that Grant Street presented no documents or witness testimony other than the speculative testimony of its own president, Myles Harrington, which indicated the email was the reason for the termination of the contract. Speculative testimony is not competent substantial evidence. See Balboni v. LaRocque, 991 So.2d 993, 996 (Fla. 4th DCA 2008). The requisite showing of causation cannot be supported by mere supposition that defendant’s interference caused the cessation of the business relationship. See Rockledge Mall Assocs., Ltd. v. Custom Fences of S. Brevard, Inc., 779 So.2d 554, 558 (Fla. 5th DCA 2001) (reversing denial of directed verdict on tortious interference claim where only evidence of causation was plaintiffs “circumstantial evidence”). In light of the unrebutted direct testimony offered by Realauction and the mere speculative testimony offered by Grant Street, it was unreasonable for the court or jury to “infer” that the negotiations were terminated because of the Realauction email. See Kam Seafood Co. v. State, 496 So.2d 219 (Fla. 1st DCA 1986) (reversing trial judge’s ruling which was based on an inference that was unreasonable because it contradicted clear direct evidence). Based on these facts, we find the trial court properly entered a directed verdict for the 2005 tortious interference counts.

It is clear from the facts that this case involves two separate and distinct business relationships. Judith Fink, in an unequivocal April 22, 2005 email, terminated negotiations with Grant Street for services to be provided in 2005. In a separate email, CFO Allen indicated that while the negotiations between Grant Street and the County for 2005 had broken off, Grant Street would “have the same opportunity as other firms to submit a formal proposal as part of the bidding process” for future services.

Grant Street received this opportunity six months later. In November of 2005, the County issued an RFP for services to be provided in 2006. As a result of Grant Street’s top ranking under the bidding process, negotiations began anew and took place between November 2005 and February 2006. Eventually, a proposed contract was sent to the Board of County Commissioners for review and possible award in February. Grant Street ultimately was not awarded the contract.

Grant Street’s amended complaint alleges that Realauction and McClendon continued to repeat the “false and defamatory statements contained in their April 20, 2005 email.” They allege that this caused the termination of their business relationship with the County in 2006. However, there is no record evidence that Realauction wrote, said or repeated anything derogatory concerning Grant Street after the April 20, 2005 email was sent. Grant Street’s CEO Myles Harrington conceded this at trial, leaving only the email as the source of alleged interference.

When the email was sent in April of 2005, Grant Street could have had only a speculative hope that it would receive business from the County in the future. Speculative hope of future business is not sufficient to sustain the tort of interference with a business relationship. Douglass Fertilizers & Chem., Inc. v. McClung Landscaping, Inc., 459 So.2d 335, 337 (Fla. 5th DCA 1984) (holding that plaintiffs claim for loss of future business was too speculative to support the verdict).

Under these circumstances, we need not analyze whether a business relationship existed in February 2006 nor reach the issue of causation. The tortious interference claim fails as a matter of law. Even if the 2006 business relationship was proven, it did not exist when Realauction’s email was sent. The law is clear that to sustain a tortious interference claim, “[t]here must be a relationship in existence at the time of any alleged interference.” Bernstein v. True, 636 So.2d 1364, 1366 (Fla. 4th DCA 1994). Grant Street did not make this requisite prima facie showing. Because the relationship did not exist when the alleged interference occurred, the tortious interference claim fails.

We reverse the final judgment and remand with directions to enter final judgment in favor of Realauction. Based on this ruling, we reverse the cost judgment as well.

DAMOORGIAN and GERBER, JJ., concur.


text:
    NATIONAL CITY BANK, as successor by merger to Fidelity Federal Bank Trust, Appellant, v. ACCENT MARKETING ASSOCIATES, LLC d/b/a Accent Homes, Inc., a Florida corporation, Napoleon G. Bequer, Glenna G. Bequer, Salvador Ramos and John W. Dalton, Jr., Appellees.
    No. 4D11-1171.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Stephen T. Maher, Don A. Lynn and John W. Bustard of Shutts & Bowen, LLP, Miami, for appellant.
    Stephen E. Tunstall, P.A., Coral Gables, for appellees, Napoleon G. Bequer and Glenna G. Bequer.
   PER CURIAM.

We hold that our decision in a previous appeal of this ease did not preclude the trial court on remand from deciding a legal issue that was not presented and considered in the former appeal.

This ease concerns a dispute between Napoleon and Glenna Bequer, Accent Marketing Associates, LLC, and National City Bank that arose following the bank’s loan of money to the Bequers for Accent’s construction of a home. The lawsuit began when Accent sued the Bequers to foreclose on a construction lien for work it did on the Bequers’ home. The Bequers filed a third-party complaint against the bank; they alleged that the bank had improperly disbursed money to Accent, which constituted a breach of the lending contract by the bank.

The bank did not respond to the third-party complaint, and the clerk entered a default. The circuit court entered a default judgment against the bank. The bank moved to set aside the default and to vacate the final judgment, making two separate and distinct arguments. First, the bank argued that its failure to answer the Bequers’ complaint was the result of excusable neglect, it had meritorious defenses, and it had exercised due diligence upon discovering the default, so that the default and final judgment should be set aside. Second, the bank alternatively argued that the final judgment should be vacated. On this point, the bank asserted it should be able to contest the amount of the Bequers’ damages, even if it could not contest liability, because the damages were unliquidat-ed. The bank argued the Bequers were not automatically entitled to ■ the entire amount of the disputed disbursement, since some of the paid-for work may have actually been completed.

The circuit court granted the bank’s motion to set aside the default and final judgment on the ground that the bank had shown excusable neglect, meritorious defenses, and due diligence. Because of this ruling, the court expressly did not address the bank’s second argument turning on whether the damages at issue were unliq-uidated.

The Bequers appealed the circuit court’s order. In Bequer v. National City Bank (Bequer I), 46 So.3d 1199, 1200 (Fla. 4th DCA 2010), this court reversed, holding that the bank had failed to establish excusable neglect. We addressed the limited scope of the holding, saying, ‘We do not address the issue of meritorious defense or due diligence, since we find appellee failed to demonstrate excusable neglect, and as such, the trial court erred in vacating the default final judgment.” Id. at 1201. We did not reach or mention the bank’s due process argument.

On remand, the bank moved for a hearing on its argument that due process allowed it an opportunity to contest unliqui-dated damages. The bank observed that the trial court had never ruled on that issue and that this court did not consider it in Bequer I. The Bequers attacked this motion as “a second bite of the apple.” They argued that the bank’s motion was barred by operation of the doctrines of res judicata and law of the case, a violation of the opinion in Bequer I and the mandate in that appeal. The circuit judge denied the bank’s motion.

The circuit court had never ruled on the due process aspect of the bank’s attack on the default judgment and, as a result, this court never considered the issue. If the damages sought by the Be-quers’ third-party complaint were unliqui-dated, then the bank was entitled to have the damages issue set for trial pursuant to Florida Rule of Civil Procedure 1.440. See Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006); Pierce v. Anglin, 721 So.2d 781, 788 (Fla. 1st DCA 1998).

Res judicata did not preclude the trial court from considering the bank’s motion to set aside the final judgment and hold a trial on unliquidated damages. Res judicata has been defined as follows:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (emphasis in Juliano) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (quoting Wade v. Clower, 94 Fla. 817, 114 So. 548, 552 (Fla.1927))). “Where successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one, is involved.” Id. (citation omitted). Thus, res judicata was not the relevant doctrine for this case, since it involves successive appeals.

While law of the case is a doctrine that gives effect to the ruling of a former appeal in the same case, it does not apply here. The doctrine of law of the case

requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case.

Id. at 105-06 (internal citations omitted). The law of the case doctrine is “ ‘limited to rulings on questions of law actually presented and considered on a former appeal.’ ” Id. at 106 (emphasis in Juliano) (quoting U.S. Concrete Pipe v. Bould, 487 So.2d 1061, 1063 (Fla.1983)).

The trial court never ruled on the bank’s second argument in its rule 1.540(b) motion — that it was denied due process because the case had never been set for trial on unliquidated damages. Bequer I did not rule on this issue; it was not properly before the court and our holding was expressly limited to the issue of excusable neglect. Nothing in Bequer I precluded the court from considering the due process issue on remand. Law of the case had no application here. See Analyte Diagnostics, Inc. v. D’Angelo, 792 So.2d 1271 (Fla. 4th DCA 2001) (similar facts).

On remand the trial court should consider whether the Bequers’ third-party complaint involves unliquidated damages; if it does, then the final judgment, but not the default, should be set aside and the case should be set for trial on the damages issue. If the court decides that the cause of action seeks liquidated damages, then it should deny the bank’s rule 1.540 motion.

POLEN, GROSS and CONNER, JJ., concur.

      . As to the due process issue, the trial court said, "I have some concerns about whether it was liquidated or unliquidated, but frankly, I don’t need to get to that point because I’m going to find that sufficient standard has been met to set aside both the default and the default final judgment.”

        . "Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bowman v. Kingsland Dev. Co., 432 So.2d 660, 662 (Fla. 5th DCA 1983) (explain-mg that actions for sums directly due on negotiable instruments are actions for liquidated damages). "[D]amages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Id. at 663.


text:
    William Rock WRIGHT, Husband, Appellant, v. Jacqueline A. WRIGHT, Wife, Appellee.
    No. 1D11-4877.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2011.
    Chris E. Cadenhead, Destín, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

A judgment of dissolution of marriage that reserves jurisdiction over integrally related issues, although titled a final judgment, is not a final appealable order. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). In Hoffman, the Court dismissed the appeal for lack of jurisdiction because the order appealed retained jurisdiction to determine equitable distribution of the parties’ marital assets and liabilities. Id. The pendency of these issues “necessarily renders the order nonfi-nal.” Id.; see Canfield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming the traditional test for finality requiring that “no further action by the court will be necessary”); Thomas v. Thomas, 902 So.2d 881 (Fla. 1st DCA 2005) (dismissing appeal where “final” order of dissolution reserved jurisdiction to consider reduction in value of asset distribution in equitable distribution). Because this appeal is from an order containing similar reservations of jurisdiction, the appeal is premature. Fla. R.App. P. 9.11(l).

DISMISSED.

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


text:
    Anthony TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4474.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Anthony Torres was charged with two counts of burglary (Count I and II), one count of resisting without violence (Count III), and one count of stalking (Count IV). Torres was found guilty on all counts. On Counts I and II, Torres was sentenced on each count to fifteen years and one day in prison, followed by five years of probation. On Counts III and IV, Torres was sentenced on each count to 364 days. All sentences were to run concurrently. Torres appeals the trial court’s denial of his motion for judgment of acquittal on Counts I, II, and IV and its denial of his motion to suppress. We find merit to Torres’ claim that the trial court reversibly erred by denying his motion for judgment of acquittal on Counts II and IV, and reverse his convictions and sentences on those counts. We affirm Torres’ convictions and sentences on Counts I and III and the denial of his motion to suppress without discussion.

By way of background, the burglary charges arose out of two separate incidents. The first occurred on August 31, 2007, and the second on September 6, 2007. In regards to the September 6th incident, Torres came to the rear door of the victim’s house. The victim heard Torres knocking on the door several times asking for people who did not live there. The victim also observed Torres looking through the windows. Torres testified that he went to the victim’s house to look for two women whom he knew from his childhood.

The following facts were adduced at the motion to suppress hearing and at trial in regards to the stalking charge. The first time Torres went to the victim’s house was earlier in August before the first burglary. He repeatedly knocked on the front door and would not go away. The victim told Torres that whoever he was looking for did not live there, and Torres left. Torres came back to the victim’s house every day between August 31st and September 6th. On each occasion, Torres would turn the knobs and look through both the front and back windows. Torres told the police that “God told him to go up to the house and to look for those girls Yvonne and Yvette.”

Torres argues that his motion for judgment of acquittal should have been granted on the second burglary charge because the State failed to prove that he entered the victim’s house with the intent to commit an offense therein. “Tn reviewing a motion for judgment of acquittal, we apply a de novo standard of review.’ ” L.O. v. State, 44 So.3d 1290, 1293 (Fla. 4th DCA 2010) (quoting Romero v. State, 901 So.2d 260, 264 (Fla. 4th DCA 2005)). If there is competent, substantial evidence of each element of the charged crime, the denial of a motion for judgment of acquittal will be affirmed. Johnson v. State, 969 So.2d 938, 955 (Fla.2007).

Section 810.02(l)(b)l., Florida Statutes (2007), defines burglary as: “Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein ....” § 810.02(l)(b)l., Fla. Stat. Section 810.07(1), Florida Statutes (2007), provides, “In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.” § 810.07(1), Fla. Stat. See Collins v. State, 839 So.2d 862, 863 (Fla. 4th DCA 2003) (“Proof of the entering of a structure stealthfully, and without the consent of the owner or occupant, may justify a finding that the entering was with the intent to commit a crime.... ”).

On September 6th, Torres never gained entry into the home, and he testified that he went to the home only to look for childhood friends. Additionally, it cannot be inferred that Torres intended to enter the home, because he did not act stealthily. The victim testified that when Torres came to the door on September 6th, he knocked several times and asked for individuals who did not live there. Because Torres never entered the victim’s home and made his presence known to the victim, there is no evidence that Torres intended to commit a crime in the residence. Accordingly, the State failed to prove an essential element of the burglary charge relating to the September 6th incident.

Torres also claims that the trial court erred in failing to grant his motion for judgment of acquittal on the stalking charge. Section 784.048(2), Florida Statutes (2007), provides, “Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.” § 784.048(2), Fla. Stat. Both Torres and the State argue over whether the behavior of Torres was willful, malicious, and repeated. However, the critical question is whether Torres’ actions were directed specifically at the victim. “ ‘Harass’ means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a), Fla. Stat. (2007).

Torres’ actions were not targeted at the victim. The first time that Torres went to the victim’s house in August, the victim told him that whoever he was looking for did not live there, and he left. Torres stated that he went to the victim’s residence in August and September to look for two other women named Yvonne and Yvette. The victim even admitted that she knew Torres was not looking for her. Accordingly, the State failed to prove an essential element of the stalking charge that Torres’ actions were aimed at the victim.

We, therefore, affirm as to Counts I and III, reverse as to Counts II and IV, and remand for entry of a judgment of acquittal as to Counts II and IV. Since Torres’ sentence on Count I is a mandatory minimum, there is no necessity for resentenc-ing as to that count.

Affirmed in Part; Reversed in Part and Remanded for proceedings consistent with this opinion.

WARNER and GERBER, JJ., concur.


text:
    Alonzo P. NEWSOME, Appellant, v. The GEO GROUP, INC., G. Gintoli, Timothy Budz, Florida Civil Commitment Center and Paul M. Pye, Appellees.
    No. 4D10-1611.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.

      Alonzo P. Newsome, Arcadia, Pro Se.
    Gwendolyn P. Adkins and Scott J. Sea-gle of Coppins Monroe Adkins & Dincman, P.A., Tallahassee, for appellees.
   PER CURIAM.

Alonzo P. Newsome, a civil detainee under the Jimmy Ryce Act, appeals an order requiring payment of court costs from his trust account. We reverse.

Newsome brought a negligence action against the Florida Civil Commitment Center (FCCC) and related defendants. During that proceeding, the trial court granted appellant’s motion for indigency status. Subsequently, the trial court granted the defendants’ motion for judgment on the pleadings and entered final judgment in favor of the defendants. Appellant filed a notice of appeal of that final judgment in Case No. 09-5157.

After the final judgment was entered in favor of the defendants, the trial court entered an Order to Pay Court Costs and Fees. That order provided as follows:

THIS CAUSE came before the Court on the Palm Beach County Clerk & Comptroller’s request that this court order the indigent Plaintiff to make payments for court costs and fees. Under § 57.085(5), Florida Statutes, “[w]hen the clerk has found the prisoner to be indigent, the court shall order the prisoner to make monthly payments of no less than 20 percent of the balance of the prisoner’s trust account as payment of court costs and fees. When a court orders such payment, the Department of Corrections or the local detention facility shall place a lien on the inmate’s trust account for the full amount of the court costs and fees, and shall withdraw money maintained in that trust account and forward the money, when the balance exceeds $10, to the appropriate clerk of the court until the prisoner’s court costs and fees are paid in full.”
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff shall make payments for court costs and fees.

The trial court denied appellant’s motion for rehearing and appellant appealed.

Appellant argues that the trial court’s payment order must be reversed because he is not a prisoner, but rather is a civil detainee in the custody of the Department of Children and Families. Thus, he argues, the trial court erred in ordering a lien on his trust account based on section 57.085.

Section 57.085(5), Florida Statutes (2009), provides in pertinent part that “[w]hen the clerk has found the prisoner to be indigent, the court shall order the prisoner to make monthly payments of no less than 20 percent of the balance of the prisoner’s trust account as payment of court costs and fees.” (Emphasis added). The term “prisoner” is defined as “a person who has been convicted of a crime and is incarcerated for that crime or who is being held in custody pending extradition or sentencing.” § 57.085(1), Fla. Stat. (2009).

Here, appellant is not a prisoner within the meaning of section 57.085(1). Appellant is not serving a term of incarceration for a crime, nor is he being held in custody pending extradition or sentencing. A civil detainee under the Jimmy Ryce Act does not fall within the purview of section 57.085(l)’s definition of a prisoner because the detention is not part of punishment for a previous criminal conviction. See State v. Harris, 881 So.2d 1079, 1084-85 (Fla.2004) (explaining that the involuntary civil commitment of sexually violent predators under the Jimmy Ryce Act is not punishment). The Eleventh Circuit has likewise concluded that a civil detainee under the Jimmy Ryce Act is not a prisoner for purposes of a similar payment provision in the federal Prison Litigation Reform Act. See Troville v. Venz, 803 F.3d 1256, 1259-60 (11th Cir.2002).

Because the statutory definition of “prisoner” does not include civilly committed detainees, the trial court erred in applying the payment provision of section 57.085(5) to appellant. Accordingly, we reverse the trial court’s payment order.

Reversed.

WARNER, TAYLOR and CONNER, concur.

      . Initially, we sua sponte consolidated this appeal with 4D09-5I57, but we subsequently vacated that consolidation order and are now considering these appeals separately. In 4D09-5157, Newsome v. GEO Group, Inc., 72 So.3d 168 (Fla. 4th DCA 2011), we reversed the order that granted the defendants' motion for judgment on the pleadings and remanded for further proceedings in appellant’s negligence action.


text:
    Rodrick CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-384.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.
    Rodrick Carter, Crestview, pro se.
    No appearance required for appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

We previously affirmed the trial court’s summary denial of Carter’s motion for postconviction relief in Carter v. State, 70 So.3d 598 (Fla. 4th DCA 2011). We write here to explain why we now impose sanctions on Carter for his clear abuse of the post-conviction relief process.

Carter has been before this court many times challenging his sentence and conviction for robbery with a firearm under Palm Beach County case number 1993CF018073AXX. As the State noted in its Request For Issuance Of Show Cause Order As To Why Defendant Should Not Be Prevented From Filing Any Further Post Conviction Motions filed in the trial court, during the course of the last sixteen years since Carter’s conviction and sentence became final, he has filed five motions for postconviction relief, three motions to correct illegal sentence, one petition for writ of habeas corpus, a motion for postconviction/DNA testing, and others. The following is a more detailed list of cases Carter filed in this court.

On August 12,1996, Carter appealed the denial of his motion for post-conviction relief in which he challenged his conviction of robbery with a firearm and his habitual felony offender sentence to life in prison. Carter v. State, 687 So.2d 1321 (Fla. 4th DCA 1997). On April 29, 1997, Carter appealed the trial court’s denial of his motion to correct an illegal sentence. The denial was affirmed and a mandate issued on September 5, 1997. Carter v. State, 766 So.2d 1057 (Fla. 4th DCA 1997). On August 19, 1997, Carter appealed the denial of his second motion for post-conviction relief. The denial was affirmed and a mandate issued October 31, 1997. Carter v. State, 701 So.2d 880 (Fla. 4th DCA 1997). On December 5, 1997, Carter appealed the trial court’s order denying his motion for post-conviction relief after conducting an evidentiary hearing pursuant to this court’s March 31, 1997 mandate. The denial was affirmed and a mandate issued on December 28, 1998. Carter v. State, 727 So.2d 938 (Fla. 4th DCA 1998).

In 2001, Carter appealed the trial court’s denial of his motion for post-conviction relief alleging the court erred in sentencing him as a habitual offender. This court affirmed the denial and a mandate issued on December 27, 2001. Carter v. State, 801 So.2d 941 (Fla. 4th DCA 2001). On May 20, 2002, Carter appealed the trial court’s denial of his motion to correct an illegal sentence. The order denying the motion was affirmed and a mandate issued on January 31, 2003. Carter v. State, 835 So.2d 1143 (Fla. 4th DCA 2002). In 2004, Carter appealed the trial court’s denial of his motion for post-conviction relief/DNA. This order was affirmed and a mandate issued April 2, 2004. Carter v. State, 869 So.2d 565 (Fla. 4th DCA 2004). In 2006, Carter appealed the denial of his petition for writ of habeas corpus which was affirmed on appeal and mandate issued February 16, 2007. Carter v. State, 946 So.2d 1076 (Fla. 4th DCA 2006). In 2008, Carter appealed the denial of his motion for post-conviction relief and motion for rehearing. This court affirmed the denial and a mandate issued January 30, 2009. Carter v. State, 14 So.3d 1015 (Fla. 4th DCA 2008).

Carter’s history of filing untimely and successive motions presents a picture of unceasing abuse of the post-conviction relief process. McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010). By order of August 31, 2011, Carter was directed to show cause why he should not be prohibited from filing further pro se appeals or petitions in this court arising out of his conviction and sentence for robbery with a firearm in this case. Carter’s response suggests that because the grounds in his most recent filing have not been previously raised, he cannot be barred from filing further pro se papers in this court. We disagree, relying upon our holding in Wimberly v. State, 50 So.3d 785 (Fla. 4th DCA 2010). In Wimberly, the court held: “ ‘[a] claim need not be repetitive to be frivolous or to be an abuse of the post-conviction process. Under section 944.279, a court may sanction any frivolous post-conviction filing and/or appeal regardless of the prisoner’s history of filing.’ ” Id. at 788 (quoting Johnson v. State, 44 So.3d 198, 200 (Fla. 4th DCA 2010)).

Upon consideration of Florida Rule of Criminal Procedure 3.850(m) and Carter’s response to this court’s order to show cause, we impose the sanction of prohibiting further pro se filings in this Court by Carter arising from his criminal conviction for robbery with a firearm under Palm Beach County case number 1993CF013073AXX, and direct the clerk of this Court to reject any future attempts by appellant to file such papers. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). Rehearing will not be entertained.

HAZOURI, DAMOORGIAN and CIKLIN, JJ„ concur.


text:
    Jeffrey HINCKLEY, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-2964.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2011.
    Rehearing Denied Jan. 30, 2012.
    Jeffrey Hinckley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, C. Ian Garland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Smith v. McNeil, 49 So.3d 298 (Fla. 1st DCA 2010).

WOLF, HAWKS, and ROBERTS, JJ., concur.


author: GRIFFIN, J.

text:
    Frank W. KENNIASTY, et al., Appellant, v. BIONETICS CORPORATION, etc., et al., Appellee.
    Nos. 5D07-3625, 5D07-3646.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    Rehearing Denied March 19, 2012.

      Frank W. Kenniasty, Melbourne, pro se.
    Elizabeth Siano Harris, of Stadler & Harris, P.A., Titusville, for Appellants, William Moore and Judith Deitz.
    Joe Teague Caruso, of Caruso, Swerbi-low & Camerota, P.A., Merritt Island, for Appellee.
   OPINION AFTER REMAND

GRIFFIN, J.

Upon receipt of the decision of the Florida Supreme Court, Bionetics Corp. v. Kenniasty, 69 So.3d 943, (Fla.2011), quashing the decision of this Court to the extent that it is inconsistent with the supreme court’s decision, we accordingly withdraw our prior opinion and substitute the following in its stead.

Frank W. Kenniasty [“Kenniasty”] and Judith Deitz and William Moore d/b/a Teehniarts Engineering [“Deitz and Moore”] appeal the trial court’s entry of final judgment awarding Bionetics Corporation [“Bionetics”] $39,025.78 in attorney’s fees and costs against each pursuant to Section 57.105, Florida Statutes. We affirm in part and reverse in part.

This case arose as a result of Deitz and Moore having prevailed in earlier litigation. In that case, Bionetics had filed a complaint against Deitz and Moore in 1999, alleging an ownership interest in motion picture film-processing [“MOPIX”] equipment that Deitz and Moore had purchased from the Defense Reutilization and Management Office. In its complaint, Bionet-ics also sought sequestration of the MO-PIX equipment. The court granted an order of sequestration, and the MOPIX equipment was sequestered in a temperature and humidity-controlled environment at Deitz’s and Moore’s facility. There, the MOPIX equipment remained substantially assembled.

Deitz and Moore sought relief from the sequestration, offering to post a bond “in lieu of sequestration of the MOPIX [e]quipment so that [they] could continue their business opportunities.” Bionetics rejected the offer, and the trial court denied the motion. Later, Deitz and Moore filed a motion to amend the order of sequestration because the lease had expired on their facility. The trial court ordered the Sheriff to move the MOPIX equipment to Bionetics’ facility for storage.

The ease went to trial and Deitz and Moore prevailed as the legal owners of the MOPIX equipment, and the trial court vacated the order of sequestration. When Deitz and Moore entered Bionetics’ facility, they found the MOPIX equipment in a seriously degraded condition in a non-secure area with “a leaking roof, no air conditioning units, ... lack of ventilation, and extreme filth and dust.” The equipment was disassembled and scattered on the facility’s floor.

In 2001, Deitz and Moore, with Ken-niasty as counsel, filed a four-count complaint against Bionetics, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics filed a motion to dismiss all counts. The trial court denied the motion as to count one, deferred in ruling as to count two, and granted the motion as to counts three and four with leave to amend.

Deitz and Moore filed an amended four-count complaint on February 13, 2002, alleging malicious prosecution in count one, negligent sequestration in count two, misappropriation of trade secrets in count three, and tortious interference with business relations in count four. Bionetics once again filed a motion to dismiss all counts. The trial court granted the motion with prejudice as to count two, and with leave to amend as to counts one, three and four.

On April 10, 2002, Deitz and Moore filed a second amended complaint, which consisted of six counts: malicious prosecution in count one, misappropriation of trade secrets in count two, tortious interference with business relations in count three, invasion of privacy in count four, trespass to property in count five, and violation of the Procurement Integrity Act (41 U.S.C. § 423) in count six. Again, Bionetics filed a motion to dismiss all counts. The trial court granted the motion with leave to amend counts one through five, and with prejudice as to count six.

Deitz and Moore filed a third amended complaint on September 17, 2002, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and tortious interference with business relations in count three. Bionetics filed a motion to dismiss all counts. The trial court denied the motion as to count one but granted the motion as to counts two and three with leave to amend.

On November 12, 2002, Deitz and Moore filed a fourth amended complaint, alleging malicious prosecution in count one, misappropriation of trade secrets in count two, and defamation in count three. Bionetics filed a motion to dismiss counts two and three. The trial court denied the motion as to count two, but granted the motion as to count three with leave to amend.

On March 28, 2003, Bionetics filed a motion for award of attorney’s fees pursuant to section 57.105, Florida Statutes (2002). The trial court deferred consideration and ruling on the award of attorney’s fees until the conclusion of the trial. The case was tried without a jury and, at the close of Deitz’s and Moore’s case, Bionetics moved for involuntary dismissal, which the trial court granted. On July 21, 2004, Bionetics filed a second motion for an award of attorney’s fees pursuant to section 57.105, Florida Statutes. The trial court awarded section 57.105 fees.

Kenniasty and Deitz and Moore argue on appeal that the trial court erred in awarding section 57.105 fees because Bionetics failed to provide proper notice under the safe harbor provision of the statute. This has been decided against them in Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla.2011). Therefore, we affirm on that issue.

Appellants also contest the award of fees for the tortious interference count under section 57.105. We are somewhat hampered in our examination of the trial court’s award of fees under section 57.105 for the tortious interference with business relations count because the judge who entered the order made no findings and he is now deceased. See Daniels v. Reeves, 712 So.2d 839, 840 (Fla. 1st DCA 1998) (award of section 57.105 attorney’s fees reversed “because the order awarding attorney fees contain[ed] no findings of fact”); see also Glisson v. Jacksonville Transp. Auth., 705 So.2d 136, 137 (Fla. 1st DCA 1998). This matter is further complicated because the trial court’s sanction was for a claim it denominated “tortious interference with contract,” a claim never filed by Deitz and Moore. The complaints alleged “tortious interference with business relations.” There is simply no way to ascertain whether the trial court simply made a scrivener’s error or whether it made a substantive error.

In Magre v. Charles, 729 So.2d 440, 443-44 (Fla. 5th DCA 1999), this Court identified the four elements of tortious interference with business relations as follows:

1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with that relationship by the defendant; and 4) damage to the plaintiff as a result of the breach of the relationship.

Kenniasty contends that a cause of action for tortious interference with business relations was sufficiently stated and that the trial court erred in finding it frivolous either as a matter of law or fact. After examining this claim, we are bound to agree that it does not meet the threshold required for a finding of frivolousness under section 57.105. We reverse the award of attorney’s fees in favor of Bionetics.

The trial court also erred in assessing costs against Kenniasty personally. Whether the quality of his representation might support a claim on the part of Deitz and Moore to recover any portion of costs assessed against them is not determinable in this appeal. Based on the foregoing, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

TORPY and JACOBUS, JJ., concur.

      . Kenniasty and Deitz and Moore separately filed notices of appeal. This Court consolidated both cases for purposes of appeal.


author: CLARK, J.

text:
    Stacy NABINGER, n/k/a Stacy Knight, Former Wife, Appellant, v. Richard H. NABINGER, II, Former Husband, Appellee.
    No. 1D11-2616.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Jan. 30, 2012.
    Leonard E. Ireland, Jr. of Clayton-Johnson, P.A., Gainesville, for Appellant.
    Jesse Caedington of Scruggs & Carmichael, P.A., Gainesville, for Appellee.
   CLARK, J.

Stacy Knight (“former wife”) appeals the final order of enforcement and modification which granted her petition for modification of child support but denied her request that the modification apply retroactively. The order modifying child support increased Richard Nabinger’s (“former husband”) monthly child support amount from $800.00 per month to $947.74 per month. The trial court’s modification order erred in the calculation of the new child support amount by offsetting the Child Support Guidelines amount by the adoption subsidy received by the former wife for the support and maintenance of the child. §§ 61.30 & 409.166, Fla. Stat. In all other respects, the order on appeal is affirmed.

During the parties’ six-year marriage, they adopted a child and received financial “adoption assistance” pursuant to section 409.166, Florida Statutes. The final judgment of dissolution was entered on May 6, 2008. Under that final judgment and the marital settlement agreement as incorporated therein, among other things, the former husband was required to pay $800.00 per month for child support and the former wife would receive the adoption subsidy. No mention of the child support guidelines or any relationship between the guidelines amount and the adoption subsidy is contained in the final judgment and marital settlement agreement. Neither party appealed the final judgment of dissolution.

In her petition for modification, the former wife sought an upward modification of child support based upon two substantial changes in circumstances: 1) the former husband’s increased income; and 2) the former husband’s refusal to have regular, meaningful contact with the child, requiring the former wife to “assume 100% of the responsibility for the needs of the child.” The trial court received evidence, found facts supporting these substantial changes in circumstances, and granted the upward modification. No abuse of discretion occurred in these rulings. However, the amount of the upward modification calculated by the trial court was erroneous and must be reversed.

The trial court’s calculation of the new child support amount used the parties’ net incomes to arrive at the guidelines amount set by section 61.30, Florida Statutes. The trial court then adjusted that figure by “[allowing a credit for the entire adoption subsidy against the Former Husband’s child support obligation,” reducing the guidelines amount to $473.87 bi-weekly or $947.74 per month. The record contains no request by either party that the adoption subsidy be factored into the equation during the modification proceedings and no change of circumstances pertaining to the subsidy was ever raised. The marital settlement agreement, as incorporated into the final judgment of dissolution, did not provide that former husband’s child support payment was reduced by the adoption subsidy amount. That agreement merely fixed a child support amount, deemed former wife the recipient of the adoption subsidy on behalf of the child, acknowledged that the child’s health care expenses would be paid by Medicaid and required the parties to split the child’s dental and orthodontic expenses.

The final judgment contains no mention of any “offset” or “credit” to former husband’s child support payment resulting from the subsidy. Even if the parties had intended such a relationship between the amounts, they did not include any language in the marital settlement agreement indicating this connection. Consequently, the “credit” awarded by the trial court in its modification order is not the reapplication of a formula agreed upon and used in the original settlement agreement and final judgment. It is a material change in the calculation of child support which was not requested by either party. In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. Escobar v. Escobar; 76 So.3d 958 (Fla. 4th DCA 2011). In addition, the scope of modification proceedings is narrower than the original plenary proceeding to establish the need and amount of support in the first place. See Woodward v. Berkery, 714 So.2d 1027 (Fla. 4th DCA 1998) (scope of discovery in modification proceeding “necessarily narrower” than for original proceeding and limited to “the precise change in circumstances properly alleged and cognizable in the requested modification.”).

Not only was the “credit” not contained in the final judgment or marital settlement agreement, the trial court’s application of it does not comport with public policy. The legislative intent underlying the adoption maintenance subsidy for children adopted out of the state’s foster care system is to “protect and promote each child’s right to the security and stability of a permanent family home,” for those children in the foster care system “who, because of his or her needs, has proven difficult to place in an adoptive home.” § 409.166(1), Fla. Stat. It has been recognized that “no provision of section 409.166 absolves adoptive parents of the financial responsibility incurred in the care of special needs children.” In Interest of T. S., 511 So.2d 435, 436-187 (Fla. 2d DCA 1987). Similar statutory adoption incentives in other states have been found to be in “addition to a parent’s obligation of financial support.” Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371 (Ariz.App.2002) (emphasis added). The supplemental nature of the subsidy is apparent because “[h]ad the parties not separated, the child would have enjoyed the benefit of both parents’ incomes, as well as the subsidy.” In re Marriage of Bolding-Roberts, 113 P.3d 1265, 1268 (Colo.App.2005).

The trial court’s modification order, giving the former husband dollar-for-dollar credit against his child support obligation under the guidelines, is inconsistent with the supplementary purpose of the subsidy, removes the benefit intended for the special needs child, and reduces, rather than maintains, the resources intended to meet the child’s needs. Section 61.30, Florida Statutes, provides the trial court with discretion to consider many factors in adjusting a total minimum child support award to achieve an equitable result. § 61.30(ll)(a), Fla. Stat.; see also, § 61.14, Fla. Stat. (equitable result desired in modification proceedings). However, the offset fashioned by the trial court in this case defeats the legislative purpose of the adoption subsidy under section 409.166 and its intended benefit to the child.

For all the foregoing reasons, the modified child support amount set by the trial court is reversed and the case remanded for recalculation of the new child support amount consistent with the child support guidelines and without regard to the adoption subsidy. In all other respects, the order of the trial court is affirmed.

PADOVANO, and LEWIS, JJ., concur.