author: LEWIS, J. WOLF, J.,

text:
    DePUY ORTHOPAEDICS, INC., a foreign corporation, Appellant, v. Peter WAXMAN, Scott Londy, and Justin Monteiro, Appellees.
    No. 1D12-897.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2012.
    Rehearing Denied Sept. 13, 2012.

      John R. Stiefel, Jr., of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville; Deborah Pollack-Milgate and Dwight D. Lueck of Barnes & Thornburg, LLP, pro hac vice, Indianapolis, IN, for Appellant.
    Warren D. Zaffuto and Harvey W. Gur-land, Jr., of Duane Morris LLP, Miami, James L. Beausoleil, Jr., of Duane Morris LLP, pro hac vice, Philadelphia, PA, for Appellees.
   LEWIS, J.

DePuy Orthopaedics, Inc. (“DePuy”), Appellant, timely appeals from the trial court’s non-final order denying its motion for temporary injunction seeking to enforce non-compete covenants included in the Employment Agreements of Peter Waxman, Scott Londy, and Justin Montei-ro, Appellees. We reverse and remand for entry of a temporary injunction.

I. FACTS AND PROCEDURAL HISTORY

DePuy manufactures and sells orthopedic products, and it promotes the sale of its products through independent distributors. However, the distributors do not resell DePuy’s products. Instead, the distributors take orders for the products and submit those orders to DePuy. The distributors retain sales representatives to sell DePuy’s products. The sale of orthopedic products involves the necessity of developing goodwill via relationships with hospital administrators and surgeons. Surgeons, patients, and hospital administrators associate the use of the products with DePuy, not with its distributors or sales representatives. In order to protect the goodwill developed through these relationships, DePuy requires its distributors to execute non-compete covenants with the distributor’s sales representatives; also, DePuy requires that the covenants be assignable to itself. DePuy provides extensive sales training and service programs to its distributors.

DePuy has sold its products in southern Florida since the 1970’s. From 1999 to May 1, 2011, Joint Venture, Inc. (“Joint Venture”), was DePuy’s distributor for southern Florida. During the time Joint Venture distributed DePuy’s products in southern Florida, it employed Waxman as a sales representative and later as a sales manager.

In December 2002, Waxman entered into an Employment Agreement with Joint Venture. In the Employment Agreement, Waxman agreed, upon termination of his employment, not to compete for a period of two years “in Indian River, St. Lucie, Okeechobee, Martin, Palm Beach, Broward, and Dade County, Florida, in the manufacturing, developing, marketing, selling, pricing, or performance of services or goods which are the same or similar to services or goods manufactured, developed, provided, sold, or leased by [Joint Venture].” The Employment Agreement was terminable at will. Further, the Employment Agreement provided in paragraph 34, under the heading “ASSIGNMENT,” as follows: “[Joint Venture’s] rights and obligations under this Agreement shall inure to the benefit of and be binding upon [Joint Venture’s] assigns and successors. Since this Agreement is personal to Employee, Employee’s obligations under this Agreement may not be assigned or transferred to any other.”

In January 2006, Waxman entered into another agreement containing a non-compete covenant with Joint Venture; in return, he was promoted to the position of sales manager. The new non-compete covenant also lasted for a period of two years and covered various counties, including Indian River, St. Lucie, Okeechobee, Martin, Palm Beach, Broward, and Dade County. The new non-compete covenant also provided that all of the terms and conditions in Waxman’s Employment Agreement remain in effect. Waxman performed services in most, if not all, of the southern Florida counties identified in the non-compete covenants.

Londy worked for Joint Venture as a sales representative for DePuy’s products for many years. In January 2003, Londy also entered into an Employment Agreement that contained a non-compete covenant that was effective for two years upon termination and covered the same counties as Waxman’s non-compete covenants. Londy performed services and received compensation for the counties covered by his non-compete covenant. Monteiro also worked for Joint Venture as a sales representative for DePuy’s products for many years, and his Employment Agreement, executed in August 2008, contained the same non-compete conditions described above. To the extent that Monteiro was not directly involved in sales in all of the counties covered in his non-compete covenant, he participated in sales meetings regarding all of the counties. Both Londy’s and Monteiro’s Employment Agreements contained a clause, identical to the clause that was agreed to by Waxman, that permitted assignment of the non-compete covenants. Like Waxman’s Employment Agreement, Londy’s and Monteiro’s Employment Agreements were terminable at will.

In March 2011, DePuy entered into an Amendment Agreement with Joint Venture and Mark DeBiase, Joint Venture’s President. In the Amendment Agreement, Joint Venture agreed that effective midnight on April 30, 2011, it would no longer be the distributor for DePuy’s products in Miami-Dade, Monroe, Broward, Palm Beach, Okeechobee, Martin, and St. Lucie Counties. The Amendment Agreement also provided that DePuy and its designees retain the sole right to enforce the non-compete covenants that Joint Venture had the right to enforce. Joint Venture assigned its rights in the identified counties, via the Amendment Agreement, in the following manner:

[Joint Venture] and [DeBiase] each hereby disclaims any right, title or interest in any and all intangible assets relating to the Counties, [DePuy’s] Products in the Counties or the right to act as a sales representative of [DePuy] in the Counties (“Intangible Assets ”). Such Intangible Assets include, without limitation, all intellectual property, goodwill, customer lists and the like regarding the Counties. If any rights in such Intangible Assets shall have become vested in [Joint Venture] or [DeBiase], each of them hereby assigns and conveys such rights to [DePuy].

On May 1, 2011, DePuy began distributing its products in these counties through a new distributor. Appellees learned before May 1, 2011, that Joint Venture would no longer be DePuy’s distributor. On May 1, 2011, Appellees began working for their new employer. Approximately three weeks after Appellees began working for their new employer, Appellees began calling accounts in their former DePuy territories. Appellees executed an agreement with their new employer that they would be compensated even if they were enjoined from working in their former DePuy territories. Shortly after Appellees began calling the accounts, DePuy experienced a drop in sales with those accounts. De-Puy’s relationships with its customers were damaged.

After learning that Appellees began calling accounts in their former DePuy tetri-tories, Joint Venture and DePuy confirmed the assignment of Joint Venture’s rights in an Assignment Document dated May 27, 2011. The Assignment Document provided in pertinent part as follows:

This assignment includes but is not limited to the right to enforce the covenants not to compete executed by the individuals and to pursue damages. The agreements and covenants assigned include but are not limited to the Employment Agreements between Joint Venture and [Appellees], and the Non-Compete Covenant between Joint Venture and Peter Waxman.

In July 2011, DePuy filed a verified complaint, claiming that Appellees violated their non-compete covenants. Also, De-Puy filed an emergency motion for temporary injunction. Following an evidentiary hearing on DePuy’s motion, the trial court entered an order denying DePuy’s motion for injunction, finding that DePuy failed to prove irreparable injury. While the trial court noted that DePuy provided evidence that it had a drop in sales revenue in the counties mentioned in the non-compete covenant provisions, it stated that it was speculative at that point to assume that Appellees caused the drop in sales revenue. DePuy filed a motion for reconsideration, arguing that the trial court erred in finding that there was no irreparable injury because the applicable statute creates a presumption of irreparable injury if there is a violation of an enforceable restrictive covenant. DePuy argued that it was entitled to this presumption because the covenants were reasonable as to time, area, and line of business, and DePuy had proven that it had legitimate business interests in protecting its goodwill with customers. The trial court agreed that it erred and vacated the order.

After the trial court vacated its order, the trial court entered another order denying DePuy’s motion for injunction. In its order, the trial court reasoned as follows:

The assignment clause of each defendant’s employment contract with Joint Venture[], Inc. specifically states that “Since this Agreement is personal to Employee, Employee’s obligations under this Agreement may not be assigned or transferred to any other.” In light of this language the assignment of May 27, 2011 by Joint Venture, Inc. to DePuy of the defendants’ obligations under the employment contracts is prohibited. This contract language is consistent with Florida law on the subject of assignability of non-compete agreements by a former employer to a subsequent buyer or assignee. Sun Group Enterprises, Inc. v. DeWitte, 890 So.2d 410 (Fla. 5th DCA 2004); Corporate Express Office Products, Inc. v. Phillips, 847 So.2d 406 (Fla.2003); also see Wolf v. James G. Barrie, P.A., 858 So.2d 1083 (Fla. 2d DCA 2003). Under the circumstances plaintiff has no standing to enforce the covenants not to compete. For the reasons stated above and set forth in [Appellees’] memorandum .... [DePuy’s] Emergency Motion for Temporary Injunction is denied.

This appeal follows.

II. ANALYSIS

The standard of review of a trial court’s order on a motion for injunction is a hybrid inquiry. Bookall v. Sunbelt Rentals, Inc., 995 So.2d 1116, 1117 (Fla. 4th DCA 2008). We review the trial court’s factual findings for an abuse of discretion. Id. at 1117. However, legal conclusions are subject to de novo review. Id. As a result, where a trial court’s order on a temporary injunction is based on an interpretation of a contract, de novo review is appropriate. See Envtl. Seros., Inc. v. Carter, 9 So.3d 1258, 1263 (Fla. 5th DCA 2009) (noting that appellate courts may independently evaluate the non-compete provisions to determine their meaning); see also Zupnik v. All Fla. Paper, Inc., 997 So.2d 1234,1238 (Fla. 3d DCA 2008).

In the instant case, we must determine whether the trial court erred in denying DePuy’s motion for injunction for the three reasons indicated in the trial court’s order. We address each reason in turn. First, the trial court stated that it was denying DePuy’s motion because Ap-pellees’ Employment Agreements contained a sentence providing that “[s]inee this Agreement is personal to Employee, Employee’s obligations under this Agreement may not be assigned or transferred to any other.” The trial court reasoned that this sentence precluded an assignment of the non-compete covenants. In employment agreements, as with all contracts, courts must apply the “most commonly understood meaning with regard to the subject matter and circumstances of the contract.” Gold Coast Media, Inc. v. Meltzer, 751 So.2d 645, 646 (Fla. 3d DCA 1999); see also Ferreira v. Home Depot/Sedgwick CMS, 12 So.3d 866, 868 (Fla. 1st DCA 2009) (noting that contracts must be “construed in accordance with the plain meaning of the words contained therein”). As such, the trial court erred in concluding that Joint Venture could not assign its non-compete covenants under the Employment Agreements because the sentence cited by the trial court was immediately preceded by the following sentence: “[Joint Venture’s] rights and obligations under this Agreement shall inure to the benefit of and be binding upon [Joint Venture’s] assigns and successors.” The second sentence relied upon by the trial court has nothing to do with Joint Venture’s ability to assign its rights and obligations. Rather, as noted by DePuy, the second sentence prohibits Appellees from assigning their obligations to third parties, such as their obligations to work under the Employment Agreements and abide by their obligations not to compete. On the other hand, Joint Venture assigned its rights, as it was permitted to do so, because of the language in the first sentence. In other words, the plain language of the Employment Agreements allowed Joint Venture to assign its “rights and obligations.” Thus, the trial court erred as a matter of law by ignoring the plain language of the Employment Agreements and reasoning that Joint Venture was prohibited from assigning the non-compete covenants.

Appellees also argue that Joint Venture did not assign to DePuy the right to enforce the non-compete covenants. We disagree. The Employment Agreements did not require a formal assignment to effect a transfer of these covenants because the plain language of the Employment Agreements provides that “[Joint Venture’s] rights and obligations under this Agreement shall inure to the benefit of ... [Joint Venture’s] assigns and successors.” Also, in the Amendment Agreement executed by Joint Venture and De-Puy in March 2011, Joint Venture stated that it assigned all of its intangible assets in the southern Florida territory to De-Puy, including “all intellectual property, goodwill, customer lists and the like regarding the Counties.” More importantly, the Amendment Agreement expressly provided that DePuy retained the sole right to enforce all non-compete covenants in favor of Joint Venture. These provisions clearly assigned to DePuy the right to enforce the non-compete covenants. Thus, as noted, all rights in the ongoing business were explicitly assigned to DePuy.

Next, Appellees also contend that Joint Venture could not assign only its right to enforce the non-compete covenants to DePuy because the Employment Agreements provided that Joint Venture could assign its rights and obligations. In other words, Appellees argue that continued employment of Appellees by the as-signee was a prerequisite to a valid assignment. However, this contention is contradicted by the Employment Agreements’ provisions providing that Appellees were terminable at will. Based on the plain language of the Employment Agreements, Appellees could not have expected that a valid assignment existed only if their employment continued into the future. Thus, Appellees’ argument is merit-less.

The second basis set forth in the trial court’s order for denying DePuy’s motion was the trial court’s conclusion that its holding was supported by “Florida law on the subject of assignability of non-compete agreements by a former employer to a subsequent buyer or assignee.” This was error because the Florida law relied on by the trial court is case law that applied the predecessor statute, which applied to non-compete agreements entered into before July 1, 1996, as explained below. In the first case cited by the trial court, Sun Group Enterprises, Inc. v. DeWitte, 890 So.2d 410, 411 (Fla. 5th DCA 2004), the Fifth District relied on Corporate Express Office Products, Inc. v. Phillips, 847 So.2d 406 (Fla.2008), which analyzed the predecessor statute, section 542.33, Florida Statutes (1985). In the second case, Corporate Express, the Florida Supreme Court analyzed and applied section 542.33 to the facts of that case. The Florida Supreme Court stated in pertinent part the following:

This statutory provision applies to non-compete agreements entered into before July 1, 1996, at which time section 542.33 was replaced by section 542.335, Florida Statutes (Supp.1996). See Ch. 96-257, §§ 1-2, at 983-87, Laws of Fla. Section 542.331, Florida Statutes (2002), specifically provides that the repeal of section 542.33 does not affect restrictive covenants entered into before July 1, 1996.

847 So.2d at 409 (footnote omitted). Under the predecessor statute, a non-compete covenant could be assigned, but only if the employee consented to the assignment. Id. at 413. In the third case, Wolf v. James G. Barrie, P.A., 858 So.2d 1083 (Fla. 2d DCA 2003), the Second District also analyzed and applied the predecessor statute, section 542.33, to the facts of that case.

However, the 2002 and 2006 non-compete covenants between Waxman and Joint Venture, the 2003 non-compete covenant between Londy and Joint Venture, and the 2003 non-compete covenant between Mon-teiro and Joint Venture are governed by section 542.335, Florida Statutes (2002), which replaced section 542.33. See Gup- ton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 478-79 (Fla.1995) (holding that the enforceability of a non-compete covenant is controlled by the law at the time that the agreement took effect). The pertinent portion of that statute expressly allows assignment of non-compete covenants executed after July 1, 1996, when the agreements so provide:

[ (1) ](f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s as-signee or successor.
(3) This act shall apply prospectively, and it shall not apply in actions determining the enforceability of restrictive covenants entered into before July 1, 1996.

§ 542.335(l)(f)2, (3). This statutory provision, which expressly allows assignment of non-compete covenants, rendered the case law relied on by the trial court that applied the predecessor statute, section 542.33, inapplicable to the facts of this case. As such, the trial court erred in relying on case law applying the predecessor statute; instead, it should have applied section 542.335, the new statute, to determine the enforceability of the assignment of the non-compete covenants to DePuy. As discussed above, the plain language of the Employment Agreements provided that Joint Venture could assign all of its rights and obligations to its assignees. Thus, Joint Venture properly assigned Appellees’ non-compete covenants to DePuy.

We note that Appellees briefly raised the point below in their response in opposition to DePuy’s motion for injunction that the Employment Agreements did not comply with the requirements of section 542.335(l)(f)2. Appellees did not argue this point during the hearing on the motion for injunction or in their subsequently-filed closing argument memorandum, nor have they raised this point in this appeal as a basis for affirming the trial court’s decision based on the tipsy coachman rule. Moreover, the record before us is devoid of a motion to dismiss or any other pretrial motion filed by Appellees in the proceedings below arguing this point. However, the dissent argues, apparently based on the tipsy coachman rule, that the trial court’s order may be affirmed on this point.

In our view, the record is not sufficiently developed to allow affirmance on this point. But, even if the record were sufficiently developed to allow affirmance on this point, this point would lack merit. We find Patel v. Boers, 68 So.3d 380 (Fla. 5th DCA 2011), which squarely addressed the point at hand, persuasive. In Patel, the purchaser of a dental practice filed a complaint for injunctive relief, seeking to enforce a non-compete covenant in the Provider Agreement entered into by the seller and the employee, a dentist. Id. at 381. The employee, unlike Appellees in this case, moved to dismiss the injunction claim, arguing that the purchaser lacked standing to enforce the restrictive covenant because the Provider Agreement did not comply with the requirements of section 542.335(l)(f)2. Id. The Provider Agreement that Patel was seeking to enforce contained a non-compete provision, and it “also contained a general assignment clause whereby [the parties] ‘specifically agreed that the mutual and reciprocal covenants and agreements, rights and obligations contained in this Provider Agreement are assignable.’ ” Id. The trial court in Patel found that this language was insufficient to allow assignment of the non-compete covenant because under section 542.335(l)(f), “restrictive covenants can only be enforced by an assignee if the requisite statutory language is included in the covenants.” Id. The Fifth District disagreed, finding that “[t]he assignment language contained in the instant Provider Agreement is sufficient to constitute an express authorization of enforcement by an assignee or successor as required by the statute.” Id. We note that the provision authorizing assignment in the instant case complies more explicitly with the statute than the language found in Patel. There, the Provider Agreement provided that the rights and obligations of the employer “are assignable,” see id., while in the instant case, the Employment Agreements provided under the heading “ASSIGNMENT” that the rights and obligations of Joint Venture “shall inure” to Joint Venture’s assignee. Therefore, like the Provider Agreement in Patel, the provisions at issue here are sufficient to constitute an express authorization of enforcement by an assign-ee or successor, as required by the statute and, on the record before us, there is no basis for affirming the trial court’s order based on the tipsy coachman rule.

Our conclusion on this point is further buttressed by section 542.335(l)(h), which provides that “[a] court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests.... A court shall not employ any rule of contract construction that requires a court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.” Additionally, “[t]he law is well established that an unqualified assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned.” State v. Family Bank of Hallandale, 667 So.2d 257, 259 (Fla. 1st DCA 1995). The legislature is presumed to know the law when it enacts statutes, and thus, the statutory requirement of an “expressly authorized enforcement” of the restrictive covenant to the assignee is satisfied by a general assignment clause in the contract creating the restrictive covenant. Had the legislature intended to exclude general assignment clauses as satisfying the statutory requirement, the legislature would have so stated. It is not difficult to envision a contract containing a restrictive covenant and a partial assignment clause that does not reference the restrictive covenant. In such a situation, the assignee would not be entitled to enforce the covenant, but that is not the case here.

The third basis for the trial court’s denial of DePuy’s motion was for the reasons contained in Appellees’ closing argument memorandum. Although the trial court’s order did not address the prerequisites for entry of a temporary injunction, Appellees asserted in their closing argument memorandum that DePuy did not establish any of the four elements needed to show that it was entitled to a temporary injunction. We disagree.

Generally, to demonstrate that a temporary injunction is warranted, a party must plead and establish four elements: “(1) the likelihood of irreparable [injury], (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.” Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009); see also Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005). We address each element that DePuy must establish to demonstrate that a temporary injunction is warranted.

A. Substantial Likelihood of Success on the Merits

We first address Appellees’ argument that DePuy failed to establish that it had a substantial likelihood of success on the merits. In that regard, we look to section 542.335(l)(b), which addresses the enforceability of a non-compete covenant and provides as follows:

[l](b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

Here, Joint Venture properly assigned its right to enforce the non-compete covenants to DePuy. As required by section 542.335(l)(b) to enforce a non-compete covenant, DePuy presented unrebutted evidence that it had legitimate business interests justifying the non-compete covenants. DePuy has sold its products in southern Florida since the 1970’s. Joint Venture’s customers contract directly with DePuy and are invoiced by DePuy. Appellees promoted DePuy’s products and took orders, but surgeons, patients, and hospital administrators associate the use of its product with DePuy, not with its distributors or sales representatives. Additionally, DePuy presented unrebutted evidence that its substantial relationships with existing customers were damaged. Moreover, Joint Venture assigned all of its goodwill to DePuy in the Amendment Agreement. DePuy also presented a legitimate business interest in the specialized training, advertising, and professional support it gave to Appellees. Further, DePuy established that the non-compete covenants are reasonably necessary to protect its legitimate business interests, as Appellees began calling accounts it had while working for Joint Venture in the counties listed in the non-compete covenants. Thus, DePuy met its burden of establishing that it is substantially likely to succeed against Ap-pellees in its verified complaint.

B. Likelihood of Irreparable Injury

Next, we address Appellees’ argument that DePuy failed to establish that it had a likelihood of suffering irreparable injury. Section 542.335(l)(j) provides in pertinent part that “[t]he violation of an •enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant....” Once a violation of a non-compete covenant is established by prima facie evidence, the statute shifts the burden to the respondent to establish the absence of injury. See Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (“ ‘[A] party seeking to enforce a restrictive covenant by injunction need not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined .... ’ the statute operates to create a presumption of irreparable injury to the employer and ... the burden shifted to [the employee] to establish the absence of such injury.”) (quoting Am. II Elees., Inc. v. Smith, 830 So.2d 906, 908 (Fla. 2d DCA 2002)).

DePuy presented a prima facie case that Appellees violated their non-compete covenants, and Appellees failed to establish the absence of an injury. Simply stated, DePuy established the presumption, and Appellees failed to rebut the presumption of irreparable injury created by section 542.335(l)(j). Moreover, in vacating its prior order, the trial court agreed with DePuy that DePuy was entitled to the presumption. Instead of showing an absence of injury, the record evidence reflects that Appellees began calling the same hospitals and surgeons that they had as accounts while working for Joint Venture in the counties listed in the non-compete covenants. Finally, DePuy presented unrebutted evidence that it was significantly harmed by Appellees’ actions; specifically, it showed that shortly after Appellees began calling their former accounts, DePuy experienced a drop in sales with those accounts and that DePuy’s relationships with its customers were damaged. While DePuy acknowledges that the presumption of irreparable injury can be rebutted under the appropriate facts, we agree with DePuy that the presumption was not rebutted here. Accordingly, DePuy presented a prima facie case of a violation of an enforceable restrictive covenant and is entitled to the statutory presumption of irreparable injury.

C. Unavailability of an Adequate Remedy at Law

Neither the trial court’s order nor Appellees’ memorandum directly addressed the third prerequisite for the entry of a temporary injunction, the unavailability of an adequate remedy at law. Nevertheless, we find that the record before this Court demonstrates that DePuy established this prerequisite that was not specifically addressed in the trial court’s order or Appellees’ memorandum. Any continued breach of the Employment Agreements and non-compete covenants could further damage DePuy’s goodwill and relationships with its customers, and nothing short of an injunction would prevent this loss. See Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (explaining that, “[t]he focus of preliminary injunctive relief is on maintaining long standing relationships and preserving the goodwill of a company built up over the course of years of doing business ... Plaintiffs ... argument that there is no irreparable harm because Plaintiffs injuries, if any, are subject to a monetary judgment, is equally without merit and has been rejected by other courts, where, as here, there is a statutory presumption of irreparable harm.”) (quoting N. Am. Prods, v. Moore, 196 F.Supp.2d 1217, 1280-31 (M.D.Fla.2002)).

D. The Public Interest in Issuing an Injunction

Next, Appellees argue that an injunction disserves the public interest and that the balance of harms favors them because they would suffer harm if they were enjoined. Appellees’ argument is without merit. The record evidence demonstrates that Appellees would receive the same compensation even if they were enjoined. Also, Appellees’ argument is in conflict with section 542.335(l)(g)l, which states as follows: “In determining the enforceability of a restrictive covenant, a court ... [sjhall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.”

Furthermore, a trial court must specifically articulate an overriding public policy reason if it refuses to enforce a non-compete covenant based on public policy grounds. § 542.335(l)(i). Neither the trial court nor Appellees identified any such public policy that would override enforcement of the valid non-compete covenants in the instant case. Thus, DePuy met its burden.

III. CONCLUSION

We find that the record before this Court demonstrates that DePuy established each prerequisite needed for entry of a temporary injunction. Accordingly, the trial court reversibly erred in denying the motion for temporary injunction. Based on the foregoing, we reverse the trial court’s order denying DePuy’s motion for temporary injunction and remand with instructions to enter a temporary injunction against Appellees, to begin on the date on which the trial court enters its order. Pursuant to Florida Rule of Civil Procedure 1.610(b), the trial court is advised that it is required to set an injunction bond.

REVERSED and REMANDED with instructions.

THOMAS, J., concurs; WOLF, J., Dissents with Opinion.

WOLF, J.,

Dissenting.

The trial court was correct in determining that appellant, assignee of the non-compete agreements, could not enforce the covenants against its predecessor’s employees, the appellees. The majority’s holding that the non-compete provision was enforceable by an assignee without language expressly authorizing such enforcement ignores the unambiguous language in section 542.335(l)(f), Florida Statutes. I, therefore, dissent.

The employment contracts at issue were entered into after July 1, 1996. They all contain non-compete provisions. Nowhere within the non-compete provisions is there any language, either expressly or implicitly, referring to assignment of the restrictive covenant. Near the end of the contracts, totally separate from the non-compete provision, is a short general assignment provision which reads, “Company’s rights and obligations under this Agreement shall inure to the benefit of and be binding upon Company’s assigns and successors.” No reference is made to assignment of the non-compete restriction within this general assignment provision or anywhere else in the contract.

Contracts entered into after July 1, 1996, are governed by section 542.335(l)(f), which states:

(f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.

(Emphasis added). The emphasized language attempts to balance the legitimate business interests of the employers and the rights of the employees to make informed decisions concerning future restrictions on their careers. Section 542.335(l)(f) superceded prior law. Therefore, contracts must contain express language notifying the employee of the right to assign the restrictive covenant for the rights to be assignable. A general assignment clause does not meet this requirement.

Few cases have discussed whether a general provision that an employment contract may be assigned meets the requirement of section 542.335(l)(f) that a “restrictive covenant expressly authorize[ ] enforcement by a party’s assignee.”

In Sun Group Enterprises, Inc. v. De-Witte, 890 So.2d 410 (Fla. 5th DCA 2004), the Fifth District considered whether employment contracts that were entered into after July 1,1996, could be assigned, along with their non-compete provisions. Because the contracts were entered into after July 1, 1996, section 542.335 should have applied. Sun Group discussed section 542.335 as it related to attorney’s fees in that case, but failed to discuss the language of section 542.335(l)(f) concerning the assignment of the non-compete provisions. Id. at 411-12. Sun Group relied entirely on Corporate Express Office Products, Inc. v. Phillips, 847 So.2d 406 (Fla. 2003), for the proposition that the employees’ consent was necessary for an assignment. Id. at 411. The Sun Group court found in that case, there was “no evidence” that the employees consented to the assignment of their personal service contracts. Id. at 412.

More recently in Patel v. Boers, 68 So.3d 380 (Fla. 5th DCA 2011), the Fifth District addressed the issue before us. In Patel, a personal service contract contained a non-compete provision, and it “also contained a general assignment clause whereby [the employee] ‘specifically agreed that the mutual and reciprocal covenants and agreements, rights and obligations contained in this Provider Agreement are assignable.’ ” Id. at 381. The trial court found this language was insufficient because under section 542.3S5(l)(f), “restrictive covenants can only be enforced by an assignee if the requisite statutory language is included in the covenants.” Id. The Fifth District disagreed, finding “[t]he assignment language contained in the instant Provider Agreement is sufficient to constitute an express authorization of enforcement by an assign-ee or successor as required by the statute.” Id. Patel relied on Price v. RLI Insurance Co., 914 So.2d 1010, 1013-14 (Fla. 5th DCA 2005), for the proposition that “an assignment is a transfer of all the interests and rights to the thing assigned and that the assignee stands in the shoes of the assignor and may enforce the contract against the original obligor.” Patel, 68 So.3d at 381. The Patel court based its decision on the general definition of an assignment but failed to address the specific requirements of section 542.335. The failure of the Patel court to address the statutory language is problematic. In Patel, as here, the restrictive covenant does not expressly authorize enforcement by a party's assignee or successor. Neither the Patel court nor the majority in this case should be free to ignore the policy choice made by the Legislature, that an employee must be specifically informed of the right to assign the non-compete provision.

      . The Florida Supreme Court has explained the effect of the new statute as follows:
      According to the Senate Staff Analysis, section 542.335 "substantially expands and clarifies the non[-]compete statute governing validity and enforcement of contracts in restraint of trade.” Fla. S. Comm. on Judiciary, SB 282 (1996) Staff Analysis 5 (Mar. 27, 1996). Section 542.335(1) allows for enforcement of contracts that restrict or prohibit competition so long as the contracts are "reasonable in time, area, and line of business.” Section 542.335(l)(h) provides that a court "shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate interests established by the person seeking enforcement.” Section 542.335(1 )(i) further provides:
      No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.

        Corp. Express Office Prods., Inc. v. Phillips, 847 So.2d 406, 409 n. 2 (Fla.2003).

      . The tipsy coachman rule provides that " ‘if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.' " Malu v. Sec. Nat. Ins. Co., 898 So.2d 69, 73 (Fla.2005) (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.. 1999)). The supreme court has explained the rule as follows:
      “[I]t follows that an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court.... [A]n appellee need not raise and preserve alternative grounds for the lower court's judgment in order to assert them in defense when the appellant attacks the judgment on appeal.”

        Id. (quoting Radio Station WQBA, 731 So.2d at 645).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Valerie WALKER, Appellant, v. BROADVIEW ASSISTED LIVING and Chartis Claims, Inc., Appellees.
    No. 1D11-6293.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.
    Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant.
    Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation (JCC) erred in finding she failed to sustain her burden of proof under section 440.02(32), Florida Statutes (2009), regarding “occupational causation” of her left shoulder injury. For the reasons that follow, we agree and reverse the order denying benefits.

Claimant, a receptionist for the Employer, was requested to drop off a package for shipping at UPS and had placed it in her car in anticipation of doing so. When a UPS driver arrived at the Employer’s place of business, Claimant left her desk, went to her car, retrieved the package, and gave it to the driver. As she was returning to her desk, she turned a corner in the hallway and, as found by the JCC, “ ‘felt her right foot slip’ from under her.” It is undisputed that Claimant sustained a left rotator cuff tear as a result of her fall and had no history of prior problems with her left shoulder. The JCC found that Claimant had no pre-existing conditions that may have caused the fall. Relying on Duval County School Board v. Golly, 867 So.2d 491 (Fla. 1st DCA 2004), and Hernando County v. Dokoupil, 667 So.2d 275 (Fla. 1st DCA 1995), the JCC denied com-pensability because “claimant’s accidental injury on the employer’s premises did not arise out of her employment because her work activity at the time of the incident was not the major contributing cause of her fall or injury.”

The JCC’s reliance on these cases was error; neither applies to the facts now before us, as both involved situations wherein the claimants had pre-existing conditions which contributed to the accident or the injury. In Golly, the fall itself was caused by a medical condition — seizure and syncopal episode — not related to the workplace. 867 So.2d at 491-92. In Dokoupil, the injury was caused by the claimant’s pre-existing osteoporosis. 667 So.2d at 275-76. As such, it was necessary for the Golly and Dokoupil claimants to establish that “the employment itself created the hazard of the risk.” Dokoupil, 667 So.2d at 276.

In the instant case, by contrast, because neither the accident nor the injury was in any way impacted by a pre-existing condition, Claimant’s burden to prove occupational causation was that as set out in our recent opinion in Caputo v. ABC Fine Wine & Spirits, 93 So.3d 1097 (Fla. 1st DCA 2012). We determined in Caputo that “in the absence of any evidence which could support a finding that there were competing causes of Claimant’s accidental injuries, the JCC erred in ruling that his injuries were not compensable.... [I]t is undisputed that the JCC found that Claimant had no pre-existing conditions which may have caused Claimant to fall. In the absence of competing causes of Claimant’s accident injuries, Claimant satisfied the major contributing cause requirement. ...” Id. at 1099. See also Lanham v. Dep’t of Envtl. Prot., 868 So.2d 561, 563 (Fla. 1st DCA 2004) (holding that if “there was only one cause of claimant’s injuries, rather than competing causes, claimant was not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries.”).

Here, it was not disputed that Claimant was actively engaged in a work-related activity at the time of the accident. Thus, the only remaining question was whether that activity was the major contributing cause of the accident and resulting injury. Because there were no competing causes of the accident and injury, Claimant’s work activity was de facto the major cause. Consequently, the JCC erred in finding that Claimant failed to establish that work performed within her employment caused her left shoulder injury. Accordingly, the order denying compensability is REVERSED and REMANDED for further proceedings consistent with this opinion.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


author: LAGOA, J. SCHWARTZ, Senior Judge,

text:
    P.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-767.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2012.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

P.B., a juvenile, appeals from an order withholding adjudication for corruption by threat against a public servant and resisting an officer without violence. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The State charged P.B. with corruption by threat against a public servant to influence her arrest and/or detention, and resisting an officer without violence.

In response to a BOLO involving a black male allegedly casing a home, Officer Las-siter (“Lassiter”) drove in his police vehicle to the location. Lassiter observed P.B., a black female, walking away from the home on the swale area. He recognized P.B. when she turned toward him and he told her to stop. P.B. used an expletive and continued walking. Lassiter testified that he wondered why she was not in school on a school day. Lassiter then exited the police vehicle and told P.B. to stop and “come over here.” When P.B. continued walking, he grabbed her arm, took her to his car and “said get over here and have a seat in the back.” When he asked her to have a seat in the back of the ear, P.B. began “swinging around” and Officer Lassiter told her that she was under arrest. He forcibly put her in the car and she continued “yelling, ... flailing around.”

When Lassiter drove from the area, and started doing paperwork, P.B. cursed, screamed and kicked the windows. She also said that “I’m going to kill you. I’m going to have you killed. I’ve got two brothers in prison for murder and when they get out they’re going to come get you.... She said if you arrest me, if you arrest me I’ve got two brothers in prison for murder, and they’re going to take care of you. They’re going to have you killed.”

Additionally, during trial Lassiter testified that he knew P.B. was under 18. On cross-examination, he was asked whether, if, after he grabbed P.B. by the arm, he stated to her, “stop, you’re under arrest,” and he answered, “yes.” On redirect, Las-siter testified that he knew she should be in school.

After the State rested, the defense moved for a judgment of dismissal, arguing that Lassiter did not have a reason to stop P.B.; that P.B. did not match the BOLO; that she was engaged in innocent behavior; and that there was no evidence that she was of school age or that she should have been in school. Defense counsel also argued that P.B. had no ability to carry out the threats and that there was no evidence that the alleged threats were intended to influence the performance of a legal duty. The trial court denied the motion.

P.B. testified that she was not enrolled in school on the incident date, but that she intended to enroll when she obtained her birth certificate. She stated that she lives in the area and was walking to the pay phone when Lassiter pulled up in his police vehicle and ordered her to stop. She told him that she didn’t do anything, the officer again told her to stop, but that she continued walking. P.B. further testified that Lassiter drove his vehicle in front of her, jumped from his vehicle, grabbed her by the hand and neck, pushed her toward his vehicle, handcuffed her, hit and slapped her, and shoved her into his vehicle. P.B. denied threatening Lassiter.

After the defense rested, the State recalled Lassiter, who denied grabbing P.B. by the neck, choking or hitting her. The defense moved for judgment of dismissal on both counts, on the ground that both require a legal duty and that Lassiter did not have a lawful basis to stop P.B. The trial court denied the motion, found P.B. delinquent on both counts and withheld adjudication of delinquency. P.B. was sentenced to probation. This appeal ensued.

II. ANALYSIS

On appeal, P.B. raises two issues. With respect to the first issue, P.B. argues that her motion for dismissal of the offense of resisting without violence should have been granted as Lassiter was not lawfully engaged in a legal duty when he stopped her.

Similarly, with respect to the second issue, P.B. argues that her motion for dismissal of the offense of corruption by threat against a public servant should have been granted because she was already under arrest when she threatened Lassiter.

We will address each argument separately.

A. Resisting An Officer Without Violence

To support a conviction under section 843.02, Florida Statutes (2009), the State must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that duty. See M.J. v. State, 67 So.3d 1189, 1190 (Fla. 3d DCA 2011); N.H. v. State, 890 So.2d 514, 516-17 (Fla. 3d DCA 2005); Jay v. State, 731 So.2d 774 (Fla. 4th DCA 1999). Here, P.B. does not contest that Lassiter is an officer and that she resisted Lassiter. The issue before this Court is whether Lassiter was engaged in a lawful execution of a legal duty. An officer is engaged in the lawful execution of a legal duty when the officer legally detains an individual during an investigatory stop. See C.W. v. State, 76 So.3d 1093, 1095 (Fla. 3d DCA 2011).

In K.A.C. v. State, 707 So.2d 1175, 1177 (Fla. 3d DCA 1998), this Court held that officers “were certainly authorized to conduct an investigatory stop to ascertain the facts” as to whether a juvenile was absent from school without authorization. At the adjudicatory hearing, Lassiter testified that upon seeing P.B. he immediately recognized her and believed she should be in school. P.B.’s refusal to stop when asked to do so by Lassiter obstructed the officer’s investigation. ‘While perhaps an argument could be made that a citizen does not have to cooperate with the police if that citizen reasonably believes that the officers are not engaged in the lawful exe-ration of a legal duty.... [P.B.] went far beyond simply refusing to cooperate.” Billips v. State, 777 So.2d 1094, 1096 (Fla. 3d DCA 2001) (holding that evidence was sufficient to support conviction of obstruction of justice). P.B. struck the officer and when placed in the police vehicle proceeded to kick the windows of the vehicle with her feet. As such, based on the authority of K.A.C., we find that Lassiter was lawfully engaged in a legal duty when he stopped P.B., and we affirm the trial court’s order withholding adjudication for resisting an officer without violence.

B. Corruption By Threat Against A Public Servant

With regards to the second issue raised on appeal, P.B. was charged with violating section 838.021(l)(a), Florida Statutes (2009). P.B. argues that the trial court erred in denying her motion for judgment of dismissal because she was already under arrest when she threatened the officer. Section 888.021(l)(a), however, contains no language which requires that the threat be made before the arrest or detention. See, e.g., J.G. v. State, 915 So.2d 274 (Fla. 4th DCA 2005) (threats made after juvenile was ordered to go to school suspension room or to obtain proof of shots); Smith v. State, 754 So.2d 889, 890 (Fla. 5th DCA 2000) (threats made “during the arrest”); In re P.J., 579 So.2d 299 (Fla. 4th DCA 1991) (threats made while juvenile was under arrest and handcuffed). Indeed, to prove the offense of corruption by threat against a public servant, the State must present evidence of “proof that the threat of harm was used to influence the person threatened to do, or not do, some official act.” Teele v. State, 954 So.2d 1195, 1201 (Fla. 3d DCA 2007).

Here, P.B.’s threat was clearly an attempt to cause Lassiter to rescind his decision to arrest and/or detain her and to transport her to the police station. We conclude that P.B.’s reliance on Kositsky v. State, 974 So.2d 614 (Fla. 4th DCA 2008), is misplaced. In Kositsky, after the defendant was arrested for DUI, he told the arresting officer that “he would slit his throat if the cuffs were removed.” Id. at 616. In dicta, the Fourth District stated that “[t]he result would be different if appellant had threatened to slit the officer’s throat if the handcuffs were not removed.” Id. at 616. As such, the holding in that case rests on the meaning of the threat itself, i.e., whether the threat could not have influenced the officer, rather than, as suggested by P.B., the defendant’s arrest status. Accordingly, because we find that P.B.’s statement demonstrated a threat to influence Lassiter, we affirm the trial court’s order withholding adjudication of delinquency for corruption by threat against a public servant.

Affirmed.

SHEPHERD, J„ concurs.

SCHWARTZ, Senior Judge,

(dissenting in part).

The court justifies the stop of P.B., who otherwise was doing nothing wrong, on the officer’s allegedly reasonable ground to take her into custody under section 984.13, Florida Statutes (2009), because he said he thought she was under eighteen and it was noon on a school day. This was not enough. In fact, section 1003.21, Florida Statutes (2009), requires attendance at school only of children between the ages of six and fifteen; P.B. did not look as if she were under fifteen; indeed, she was seventeen and was not, in fact, at the time enrolled in any school to which he could deliver her. See § 984.13(l)(b), Fla. Stat. (2009). He therefore could not have been acting in the lawful performance of any duty when she resisted him without violence. I therefore dissent from the affir-mance of her adjudication for that offense.

•I agree with affirmance as to Count 1.

      . Section 843.02 states as follows:
      Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . While truancy is not a crime that warrants an arrest, Lassiter did have the authority to stop her and transport her to school. See C.G. v. State, 689 So.2d 1246 (Fla. 4th DCA 1997).

      . Section 838.02l(l)(a) states as follows:
      (1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his or her immediate family, or to any other person with whose welfare the public servant is interested, with the intent or purpose:
      (a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

      . P.B. does not argue that her statement to Lassiter does not constitute a threat under the statute.


author: WALLACE, Judge.

text:
    FLORIDA GEORGIA GROVE, LLP, Appellant, v. COLLIER COUNTY, a political subdivision of the State of Florida; Ted Smallwood’s Store, Inc., a Florida nonprofit corporation; and T.D. Bank, N.A., a national bank, Appellees.
    No. 2D11-5636.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Steven J. Chase and Hunter G. Norton of Shumaker, Loop & Kendrick, LLP, Sarasota, for Appellant.
    Jeffrey A. Klatzkow and Steven T. Williams, Office of the County Attorney, Naples, for Appellee Collier County.
    Rachael S. Loukonen, Richard C. Grant, and Michael T. Traficante of Grant, Frid-kin, Pearson, Athan & Crown, P.A., Naples, for Appellee Ted Smallwood’s Store, Inc.
    No appearance for Appellee T.D. Bank, N.A.
   WALLACE, Judge.

Florida Georgia Grove, LLP, appeals a temporary injunction entered in an action filed by Collier County and Ted Small-wood’s Store, Inc. (Smallwood), against Florida Georgia and others. In their action, Collier County and Smallwood sought to establish a right of access over Mamie Street on Florida Georgia’s property to the adjacent property owned by Small-wood. The events which precipitated the filing of the action were the erection by Florida Georgia of barricades blocking access to Smallwood’s property and the destruction by Florida Georgia of the pavement on the portion of Mamie Street crossing its property. The circuit court granted a temporary injunction requiring Florida Georgia to remove the barricades and to “restore and repave Mamie Street” to provide a “sufficient paved surface that can accommodate and allow for ingress and egress by [Smallwood] and the general public to and from the Smallwood Property.”

On appeal, Florida Georgia raises multiple arguments challenging the entry of the order granting the temporary injunction. However, after careful review of the record, the arguments, and the applicable law, we conclude that each of Florida Georgia’s arguments is without merit, save one. We agree with Florida Georgia that the circuit court erred in directing Smallwood to post a bond in the amount of $10,000 without first holding an evidentia-ry hearing to address the appropriate amount of a bond.

Florida Rule of Civil Procedure 1.610(b) provides, in pertinent part, as follows:

No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision thereof, the court may require or dispense with a bond, with or without surety, and conditioned in the same manner, having due regard for the public interest.

Thus, although Collier County may not be required to post a bond, Smallwood was required to do so.

The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s costs and damages if the injunction is wrongfully issued. Longshore Lakes Joint Venture v. Mundy, 616 So.2d 1047, 1048 (Fla. 2d DCA 1993). Since damages recoverable for wrongfully obtaining an injunction are limited to the amount of the injunction bond, the court must provide both parties the opportunity to present evidence as to the amount of an appropriate bond. Id.

Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994) (emphasis added); see also Offshore Marine Towing, Inc. v. Sea Tow Servs. Int'l Inc., 778 So.2d 510, 511 (Fla. 4th DCA 2001) (noting same).

Here, Florida Georgia specifically requested the opportunity to present evidence on the appropriate amount of a bond, noting that it could not do so until it knew the nature of any relief granted by the circuit court. The circuit court apparently recognized that Florida Georgia was entitled to such an evidentiary hearing. Nevertheless, after announcing its oral ruling granting the temporary injunction, the circuit court simply set the bond amount at $10,000. In making his ruling, the circuit court judge acknowledged that he was “not a highway person” for the purpose of determining the type of paving required for the restoration of Mamie Street. Yet he determined the amount of the bond to cover the cost of such paving without hearing any evidence about the appropriate amount or giving the parties the opportunity to present such evidence.

Based on the foregoing authorities, we conclude that the circuit court erred in setting a bond without holding an eviden-tiary hearing on the appropriate amount. See Richard, 647 So.2d at 978; Offshore Marine Towing, 778 So.2d at 511. Accordingly, we direct the circuit court on remand to hold an evidentiary hearing on the appropriate amount of a bond and to enter an order requiring Smallwood to post a bond in an amount consistent with the circuit court’s findings based on the evidence. Pending the evidentiary hearing and the circuit court’s determination of the appropriate amount of the bond, the $10,000 bond shall remain in effect.

We reject Florida Georgia’s other appellate arguments, and we affirm the issuance of the temporary injunction without further discussion.

Affirmed in part and remanded for further proceedings in part.

NORTHCUTT and VILLANTI, JJ., Concur.

      . The Appellees also sued T.D. Bank, N.A., as a mortgagee of Florida Georgia’s property, but T.D. Bank did not file a brief in this appeal.

      . Evidence presented at the hearing established that the public had used Mamie Street since 1906 to access the Smallwood property, a former post office, trading post, and general store. We note that the Ted Smallwood Store, which is located on Chokoloskee Island in the Everglades National Park, has been listed on the National Register of Historic Places since 1974. See National Register of Historic Places, http://www.nationalregisterof historicplaces.com/fl/Collier/state.html. The Ted Smallwood Store is currently operated as a museum.

      . We express no opinion on the adequacy of the current $10,000 bond amount.


author: GRIFFIN, J.

text:
    Bernard RUBRECHT and Caryn Rubrecht, Appellant, v. CONE DISTRIBUTING, INC., and Nicole Jean Radank, Appellee.
    No. 5D10-1894.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Rehearing Denied Sept. 18, 2012.

      Kristin A. Norse, Stuart C. Markman and Robert W. Ritsch, of Kynes, Markman & Feldman, P.A., Tampa, for Appellant.
    Kasey L. Prato and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   GRIFFIN, J.

This appeal arises from a June 3, 2008, automobile accident in which a pick-up truck driven by Bernard Rubrecht [“Ru-brecht”] was rear-ended by an SUV which, in turn, had been rear-ended by a Cone Distributing, Inc. [“Cone”] truck driven by Cone’s employee, Nicole Jean Radank [“Radank”]. Rubrecht, and his wife, Car-yn Rubrecht, appeal a final judgment which awarded Rubrecht $20,000 in damages, consisting of $15,000 in past medical expenses and $5,000 for future medical expenses. His wife took nothing.

After the verdict, Rubrecht filed a motion for an additur or, in the alternative, a motion for a new trial. He asserted that the damages awarded by the jury bore no relationship to the evidence presented during the trial, and requested that the trial court enter a verdict for past medical expenses in the amount of $414,554.92, and future medical expenses in the amount of $500,000. Alternatively, Rubrecht requested that the trial court grant a new trial on the issue of damages. On the same day, Rubrecht filed a motion for new trial, arguing that the verdict was against the manifest weight of the evidence. He also asserted that the trial court had erred by allowing the defense to impeach him using the contents of an offer of settlement letter his attorney had presented for an automobile accident that occurred approximately one month before the one at issue in the trial, and by publishing to the jury a portion of an appellate opinion in the divorce case of Rubrecht’s expert witness.

The trial court entered its order denying Rubrecht’s motions. As to the first evi-dentiary issue, the court concluded that it was proper to admit into evidence in the trial of the second rear-end collision the statements his attorney had made in offering to settle the first case. As for the second issue — publishing portions of the appellate opinion issued in the dissolution of marriage of Rubrecht’s expert witness — the court did not defend the ruling, but said that any error could not have been harmful. We conclude that both evi-dentiary rulings constitute reversible error.

The settlement issue arose because, approximately one month before the June 3, 2008, rear-end accident involving Cone, Rubrecht had been involved in another accident in which Rubreeht’s truck was rear-ended by another vehicle. The trial court allowed defense counsel to impeach Rubrecht by questioning him about statements made in a settlement offer letter that was written by his attorney with respect to the May accident. The at-fault driver in that case had insurance of only $10,000, and the settlement letter concluded by offering to settle for the $10,000 policy limits. The following exchange about the settlement took place during Rubrecht’s cross-examination:

Q. Good morning, Mr. Rubrecht.
A. Good morning.
Q. All right. I’ve got a little bit left and then we’ll wrap it up. We’ve heard testimony in this trial about the impact of the first accident and the second accident. I want to follow up a little bit on that.
A. Okay.
Q. Have you, sir, after the second accident, taken the position that, in fact, you would have future medical losses as a result of the first accident for the rest of your life at 3,000 dollars a year or 99,000 dollars, total?
A. Yes, sir, through my attorney.
Q. With respect to the first accident versus the second accident, have you, sir, taken the position that it is certain that your injuries from the first accident and the necessary future medical treatment from that first accident would cause you to sustain substantial economic losses in the future?
A. Can you say that again, please?
Q. Yeah. Did you take the position after the second accident—
A. Okay.
Q. Let me ask it this way. Did you take the following position after the second accident with respect to the first accident: That it is certain that your injuries and the necessary future medical treatment will cause you to sustain substantial economic losses in the future?
A. Yes, sir.
Q. Did you take the following position after the second accident with respect to the first accident: If your economic losses were based on a work life of 19 years at a minimum of four dollars an hour, your future wage losses would exceed 158,000 dollars as a result of the first accident?
A. Yes, sir.
Q. After the second accident, did you take the following position with respect to the first accident: As a result of the May accident, you will need to seek a new vocation, one where you are not driving many hours?
A. I’m not sure.
Q. After the second accident—
A. Okay.
Q. —but with respect to the first accident, did you take the following position: That the driving aggravates your neck and low back, and currently the reason why you are undergoing surgery with Dr. Nucci?
A. Yes.

Defense counsel did not offer the settlement letter in evidence, but each of the foregoing “positions” inquired about by defense counsel came verbatim from the offer of settlement letter.

On re-direct, Rubrecht testified in part that he was hurt in the first accident, that the second accident made him worse, that his medical bills had gone up as a result of the second accident, and that he presently was not able to work at all. When asked why the second accident made his condition “a lot worse,” Rubrecht explained:

I’m not a doctor, but I think the first accident helped me get worse from the second accident. You know what I mean? It was sort of intertwined.
If I wouldn’t have had the first accident, I wouldn’t have got as hurt as much as the second accident; but, you know, it’s a chicken and an egg kind of thing.

Rubrecht contends that the trial court, in allowing defense counsel to cross-examine him concerning statements made by his attorney in an effort to negotiate a settlement of his claim arising out of the first accident, violated section 90.408, Florida Statutes.

Section 90.408, Florida Statutes (2010), provides:

Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

Appellees counter that their interrogation was not within the limitations of section 90.408 because the settlement negotiations in the first case did not involve the claim in the second case. Moreover, defense counsel did not introduce the demand letter into evidence and did not reference the settlement. They assert that, because Ru-breeht took the position in the settlement demand letter for the first accident that his injuries and damages were caused by the first accident, but took the position during the trial of the second accident that his injuries and damages were either completely attributable to the second accident or, alternatively, could not be apportioned between the two accidents, it was proper for defense counsel to impeach Rubrecht with his prior inconsistent position.

We start with the proposition that, in Florida, “settlements or offers of settlement have never been considered admissions against interest binding on the parties making them.” Mortg. Guar. Ins. Corp. v. Stewart, 427 So.2d 776, 780 (Fla. 3d DCA 1983); see also Sullivan v. Galske, 917 So.2d 412, 414 (Fla. 2d DCA 2006) (“Because parties often make offers to settle for economic reasons, an offer is not treated like an admission of liability and would be of marginal relevance to the issues at trial. This evidence is also excluded to encourage settlement discussions”).

The first question is whether evidence of statements made during settlement negotiations is inadmissible to prove liability or the absence of liability or the value of a claim in the lawsuit other than the one in which the offer was made. In Rease v. Anheuser-Busch, Inc., 644 So.2d 1383, 1388 (Fla. 1st DCA 1994), the First District Court of Appeal discussed section 90.408, Florida Statutes, and said that “[a] fundamental premise for the application of this [statutory] rule is that the offer to compromise must relate to the claim disputed in the lawsuit.”

Here positions taken by Rubrecht’s counsel in negotiating settlement of the claim for the first accident are related to the claim at issue in this lawsuit because a key issue was whether Rubrecht’s claim for damages could be apportioned between the two accidents. When defense counsel was allowed to question Rubrecht about the statements by Rubrecht’s counsel, the purpose of which was to obtain the $10,000 policy limits settlement of the first accident, Rubrecht’s position in this case that his damages were attributable to the second accident, or that damages could not be apportioned between the two accidents, was directly affected. See generally City of Coral Gables v. Jordan, 186 So.2d 60, 62 (Fla. 3d DCA 1966).

Rubrecht relies upon Sea Cabin, Inc. v. Scott, Burk, Royce & Harris, P.A., 496 So.2d 163 (Fla. 4th DCA 1986), and Charles B. Pitts Real Estate, Inc. v. Hater, 602 So.2d 961 (Fla. 2d DCA 1992), for the proposition that section 90.408 is applicable to settlements with different parties if the claim is related. In Sea Cabin, the Fourth District Court of Appeal found that “it was error for the trial court to admit a letter from appellants’ counsel to another party suggesting that the other party was responsible for appellants’ damages and proposing a settlement of appellants’ claim against that party.” 496 So.2d at 164. It explained that “[i]n addition to the fact that the letter was not authored by appellants, Section 90.408, Florida Statutes (1983) bars the receipt into evidence of offers to compromise,” and that it “ha[d] ruled that this bar applies to settlement offers made to third parties as well as parties to the litigation.” Id.

In Hater, after a real estate sales transaction failed to close, the real estate brokers brought suit against the sellers based upon allegations that they were entitled to a $400,000 brokerage fee under the terms of the real estate sales contract. 602 So.2d at 962-63. Under the terms of the real estate sales contract, the brokers were to receive a $400,000 brokerage fee at the time of closing; however, in the event that the transaction did not close, the brokers would still receive the $400,000 if the failure to close was due to the sellers’ failure to perform, but would only receive 50% of the deposit, $2,500, if the failure to close was due to the buyer’s failure to perform. Id. at 962. The case went to trial, and “[t]he jury determined that the transaction had not closed due to the failure of [the buyer] to perform and, accordingly, awarded the Brokers only $2,500.” Id. at 963.

On appeal, the brokers argued that the trial court had erred by prohibiting evidence of a settlement in a lawsuit between the sellers and buyer for specific performance of the real estate sales contract, wherein the parties stipulated to dismissal of the lawsuit, and the sellers paid the buyer “$540,000 for the settlement and received an assignment of the buyers’ rights, if any, under the agreement to sell.” Id. at 963. The Second District Court of Appeal found that the trial court did not abuse its discretion in prohibiting evidence of the settlement, explaining that “[although the settlement in the case between the [sellers] and [buyer] was not an offer or [of] settlement in [the case under review], it was a settlement of a closely related issue in the earlier case,” and that “[i]t [was] quite analogous to a settlement with a codefendant.” Id.

The Second District concluded that the brokers “ha[d] not demonstrated that the settlement had any probative value that was not substantially outweighed by the danger of unfair prejudice or confusion.” Id. It noted:

We have not overlooked the possibility that a settlement of this sort could “col- or” the testimony of the settling parties in the subsequent lawsuit and that the settlement might become admissible on an issue of credibility. In this case, the critical witnesses from [the buyer] had been deposed in at least one of the lawsuits before the settlement. One of the key witnesses from [the buyer] had given the Brokers a lengthy affidavit to support their motion for summary judgment in this case long before the settlement. Thus, the Brokers did not establish in the trial court that this settlement fit within any conceivable exception to the general rule against admissibility.

Id.

Appellees distinguish Sea Cabin because the letter offering to settle was admitted into evidence in that case, but, here, the demand letter offering to settle the claim for the first accident was not admitted into evidence. This is a distinction without a difference. Under section 90.408, in addition to evidence of an offer to settle, evidence of statements made during settlement negotiations is inadmissible to prove liability or the absence of liability or the value of a claim. See Benoit, Inc. v. Dist. Bd. of Trustees of St. Johns River Cmty. Coll. of Fla., 463 So.2d 1260, 1261 (Fla. 5th DCA 1984) (agreeing with Atwater v. Gulf Maintenance & Supply, 424 So.2d 135 (Fla. 1st DCA 1982), that “any part of a letter offering a settlement between the parties is barred by section 90.408;” “[t]he old common law rule was that statements of independent facts made in an offer to compromise were admissible;” “[t]his section alters the common law rule by giving greater protection to the offeror, thus furthering the public policy of this state which favors amicable settlement of disputes and avoidance of litigation” (footnotes omitted)).

Appellees contend that under Hater, evidence of Rubrecht’s prior positions was admissible as an exception to the general rule of inadmissibility because it was offered for purposes of impeaching Ru-brecht’s credibility. There is language in Hater that does suggest that evidence of a settlement might be admissible for purposes of impeaching a settling party’s testimony, but in Hater, the court appeared to reference a situation where a settlement might include an agreement or other means to “color” a settling party’s case. This does not apply here. Here, Ru-brecht’s counsel’s task in attempting to settle the May 2, 2008, accident claim was to offer the most compelling case and the most persuasive argument why the insurer in the first suit ought to tender the $10,000 policy limits. That is precisely the kind of negotiation the statute is designed to protect. See Saleeby v. Rocky Elson Constr., 3 So.3d 1078, 1081-82 (Fla.2009), (trial court erred by admitting evidence that a previous defendant, a truss-manufacturing company, had settled out of the lawsuit where the basis for admission of the evidence was impeachment of the testimony of the President of the truss manufacturing company).

The purpose of the statute is to allow counsel to communicate freely in an effort to settle litigation without the risk that any statement made will be used against his clients. By their nature, such communications have limited probative value. Because the evidence of positions taken in negotiating settlement of the claim for the first accident suggested that Ru-brecht’s damages were largely attributable to the first accident, and because the issue of apportioning damages between the two accidents was disputed in this case, the positions taken by Rubrecht’s counsel in negotiating settlement of the claim for the first accident were inadmissible. The admission of evidence of the positions taken by Rubrecht’s counsel in negotiating settlement of the claim for the first accident was inherently and highly prejudicial with respect to the disputed issue of apportionment of damages between the two accidents. Its admission, therefore, constituted reversible error. See Saleeby, 3 So.3d at 1085.

We also agree with Rubrecht that the trial court reversibly erred by taking judicial notice of statements in Nucci v. Nucci, 987 So.2d 135 (Fla. 2d DCA 2008), in order to discredit his key witness, Dr. Robert Nucci, M.D.

Prior to the start of the trial, the trial court addressed Rubrecht’s motion in li-mine, which included a request to exclude any argument or testimony that Dr. Nucci had stated in his divorce action that a large percentage of his practice was based upon letters of protection. Prior to trial, Dr. Nucci’s video deposition had been taken. The following exchange occurred during the deposition, on cross-examination:

Q. Okay. Doctor, again, my name is Jeff Pearson. I represent the defendants. You accepted this case with a letter of protection, did you not?
A. That is true.
Q. Okay. And, realistically, you don’t get paid unless there’s a recovery connected with the letter of protection; is that correct?
[RUBRECHT’S COUNSEL]: Which I object to.
A. Well, I can’t really say on Mr. Ru-brecht. I mean, he’s, of course, responsible for his bills. I offered him the courtesy of not to ask him for payment until his legal matter is done, but I expect him to pay his bill, of course.
Q. Is it true that a hundred percent of your income comes from letters of protection?
[RUBRECHT’S COUNSEL]: Objection.
[DR. NUCCI’S COUNSEL]: I’m going to object as well.
[DEFENSE COUNSEL]: Okay.
A. Well, that’s not time.
Q. Okay. Have your firm — has your firm or has anyone on behalf of you or anyone that you know added up your letters of protection in the last five years?
[DR. NUCCI’S COUNSEL]: I’m going to object, and I’m going to move for a protective order and — just so that maybe we cure this objection, sir, I would remind you that Dr. Nucci is a treater and not an expert.
[DEFENSE COUNSEL]: Okay. I’m not asking for an expert opinion on that. I think that question was straight forward.
[DR. NUCCI’S COUNSEL]: Okay. Well, impermissible discovery, and I’m instructing my client not to answer.
[DEFENSE COUNSEL]: Okay. We’ll certify that and take it up with the court.

Dr. Nucci’s deposition was read at trial. Prior to the close of evidence, the trial court heard lengthy argument from the parties regarding the issue of whether two sentences from the Second District Court of Appeal’s opinion in Dr. Nucci’s divorce case should be published to the jury. The sentences at issue were the following:

Dr. Nucci is a successful surgeon with a lucrative practice limited to patients involved in personal injury litigation. His fees are paid from the litigation proceeds pursuant to letters of protection from the patients’ personal injury attorneys.

Nucci, 987 So.2d at 136. Defense counsel conceded that he was at fault for not having filed a motion to compel Dr. Nucci’s testimony after he was instructed by his counsel not to answer questions on the topic of the letters of protection during his deposition. He informed the trial court that, in an effort to cure the defense’s oversight, the defense was requesting that the trial court take judicial notice of the statements in the Second District’s opinion.

Rubrecht’s counsel objected to publication of this passage to the jury. He argued that it was not competent evidence, lacked probative value and was not of any use as impeachment because it did not conflict with Dr. Nucci’s testimony. Defense counsel argued:

But to get to the heart of your argument, I think it goes to the weight, not the admissibility. And I do not intend to say “100 percent.” I intend to say precisely what’s in that opinion. I will probably have it in front of me to read it to make sure I don’t get it wrong.
But it gets down to the heart of what you’re talking about, which is this is not just a small percentage, but this is at least a significant percentage of his livelihood. And it just goes straight to bias. So my response is it goes to weight, not admissibility.

At the close of evidence, the trial court “took judicial notice” of the statements in the Nucci opinion as follows:

The Defendants have asked that I take judicial notice of a brief portion of a — of the following information out of an opinion from the Second District Court of Appeal called Nucci, N-u-c-c-i, v. Nucci. That’s Dr. Nucci you’ve heard about earlier.
Okay. This is a part of the opinion in the Nucci divorce case from the appellate court that reads as follows:
“Dr. Nucci is a successful surgeon with a lucrative practice limited to patients involved in personal injury litigation,” period. “His fees are paid from the litigation proceeds pursuant to letters of protection from the patients’ personal injury attorneys,” period. That’s the end of the judicial notice.

Immediately thereafter, the defense rested.

As an initial matter, while the parties assert that the statements from the Nucci opinion were admitted for purposes of impeaching Dr. Nucci, the nature of the impeachment is unclear. The defendants appear to have wanted to use this language in Nucci’s divorce to impeach him on the subject of whether all (or 100%) of his income derived from letters of protection. Rubrecht is correct that it was not viable for such a purpose. The court, on the other hand, appeared to have allowed the statements from the Nucci opinion to show a motive why Dr. Nucci might falsely testify about the extent of injury and its causation, namely that his interest in getting paid through proceeds from litigation might have biased him to falsely give testimony favorable to Rubrecht.

In taking judicial notice of the statements in the Nucci opinion, the trial court did not say whether they were being admitted under section 90.201 or section 90.202, Florida Statutes, although, prior to reading from the Nucci opinion, while hearing argument from the parties, the trial court referenced section 90.201. Relying upon Dufour v. State, 69 So.3d 285 (Fla.2011) and BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So.3d 874 (Fla. 3d DCA 2010), Rubrecht contends that the trial court erred by taking judicial notice of the statements in the Nucci opinion.

In Dufour, one of the issues addressed by the Florida Supreme Court was whether a postconviction court had erred by taking judicial notice of a “2002 postconviction proceeding and certain letters within the court file.” 69 So.3d at 253. The Court said that while a court may take judicial notice of court records under section 90.202(6), Florida Statutes, “the fact that a record may be judicially noticed does not render all that is in the record admissible.” Id. It further provided:

Thus, while the court may take judicial notice of documents in a court file that were properly placed there, this notice would not make the contents of the documents admissible if they were subject to challenge, such as when a document is protected by privilege or constituted hearsay. In addition, taking judicial notice of an entire prior proceeding may be expeditious for the current proceedings, but it does not allow the substance of the underlying materials to be entered into evidence without compliance with the rules of evidence.

Id. at 254.

In BDO Seidman, the Third District Court of Appeal found that a “bankruptcy order was not a proper subject of judicial notice, nor properly admissible evidence” where “[t]he trial court [had taken] the view that the facts determined by the bankruptcy court were properly admissible in [the] case.” 38 So.3d at 880. In reaching its finding, the Third District explained:

“Inadmissible evidence does not become admissible because it is included in a judicially noticed court file.” The Florida Bar, Evidence in Florida § 2.12, at 2-7 (7th ed. 2008). “Although a trial court may take judicial notice of court records, it does not follow that this provision permits the wholesale admission of all hearsay statements contained within those court records.” Stoll v. State, 762 So.2d 870, 876 (Fla.2000) (citation omitted). “[T]here has been a ‘seemingly widespread but mistaken notion that an item is judicially noticeable merely because it is part of the “court file.” ’ ” Id. at 877 (citation omitted).
“A court judgment is hearsay ‘to the extent that it is offered to prove the truth of the matters asserted in the judgment.’ ” United States v. Sine, 493 F.3d 1021, 1036 (9th Cir.2007) (citation omitted). As to those matters, there must be an applicable hearsay exception. Stoll, 762 So.2d at 876; § 90.805 (2009); see also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 204.2, at 85 & n. 5 (2009).
Under the Evidence Code, a request for judicial notice is also subject to analysis under section 90.408, Florida Statutes. See § 90.204, Fla. Stat. “[judicial findings of fact ‘present a rare case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice.’ ” Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir.1993); see also Secada v. Weinstein, 563 So.2d 172, 173-74 (Fla. 3d DCA 1990)....

Id.

Although the Appellees correctly point out that “[njeither case addresses a trial court’s decision to take judicial notice of a portion of an appellate opinion,” we think the many reasons why this excerpt from the Nucci divorce ease is inadmissible in this case should be obvious. Hearsay is the basic reason. An appellate opinion is a writing by a judge that derives its substance from many sources. A statement made in the opinion may be true only as far as evidence appears in that case; it may be an interpretation of evidence. A statement made in an appellate opinion cannot substitute for proof of the fact.

In the order denying the motion for new trial below, the trial judge himself did not defend publication of the opinion to the jury, but merely remarked that it could not have been harmful to Rubrecht’s case. On appeal, Appellees have adopted a similar approach. Dr. Nucci’s testimony was critical to the plaintiffs ease, however, and any evidence purporting to impugn his credibility or demonstrate bias was harmful. No doubt that was the very reason defense counsel labored so intently to convince the judge to admit it. The effect of the passage was enhanced precisely because it was the publication of a judicial opinion of an appellate court. The timing and manner of its presentation to the jury as a sort of ex cathedra pronouncement at the close of evidence gave emphasis to something entirely lacking in evidentiary value. The recitation of a statement made in an appellate opinion in one case cannot substitute for the presentation of evidence in another case. Under whatever standard for harmless error may prevail in Florida, we cannot say this error was harmless. Appellant is entitled to a new trial.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . Section 90.408, Florida Statutes, was enacted in 1976. Ch. 76-237, § 1, at 562, Laws of Fla.

      . See generally Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011).


text:
    Pamela T. WIESENFELD, former wife, Appellant, v. David Matthew WIESENFELD, former husband, Appellee.
    No. 1D11-4235.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.

      Corrine A. Bylund, Jacksonville, for Appellant.
    William S. Graessle, William S. Graessle, P.A., Jacksonville, for Appellee.
   PER CURIAM.

The former wife appeals a final modification judgment that granted the former husband’s petition for modification and terminated the former wife’s permanent periodic alimony retroactively to the filing date of the petition. We affirm the modification judgment in part, reverse in part, and remand with instructions to vacate only that part of the judgment requiring the former wife to reimburse the former husband for alimony payments she received before becoming self-supporting.

The former husband, as the petitioner, met his burden to show a substantial, material, unanticipated, involuntary, and permanent change in the former wife’s financial circumstances. § 61.14(1), Fla. Stat. (2010); Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). Competent, substantial evidence in the record supports the trial court’s findings that the former wife remains able to perform the duties of a paralegal, and that her receiving a substantial inheritance from her parent will allow her to become self-supporting. Selembo v. Selembo, 591 So.2d 1112, 1113 (Fla. 2d DCA 1992) (concluding that former wife’s receiving a large inheritance was a substantial change in circumstances justifying termination of her permanent periodic alimony); Bedell v. Bedell, 523 So.2d 166 167-68 (Fla. 1st DCA 1988) (concluding that the former wife’s receiving an inheritance from both parents was a substantial change in circumstances that might warrant a downward modification of alimony paid by the former husband). We find no abuse of discretion in the court’s decision to terminate alimony without reserving jurisdiction over the issue of alimony or awarding a nominal amount.

One part of the modification ruling requires reversal, however. The record supports the court’s determination that the former wife received her inheritance in June 2010. This was the requisite change in financial circumstances. The court ordered the revocation of alimony to be retroactive to the February 2010 filing date of the petition for modification, rather than effective upon the receipt of the inheritance. We review for an abuse of discretion the decision to revoke alimony retroactively. Vitro v. Vitro, — So.3d —, 2012 WL 2012458 (Fla. 4th DCA 2012); Cleary v. Cleary, 872 So.2d 299, 303 (Fla. 2d DCA 2004). Permanent alimony is based on the concept the requesting party cannot be self-supporting. Griffith v. Griffith, 528 So.2d 1325, 1326 (Fla. 5th DCA 1988). Therefore, where alimony or its modification is at issue, the trial court must determine the payee’s actual financial need. Potter v. Potter, 477 So.2d 67, 68 (Fla. 1st DCA 1985). A trial court is authorized to modify alimony retroactively to the filing date of the petition for modification “as equity requires, giving due regard to the changed circumstances or the financial ability of the parties.” § 61.14(1).

Absent any findings of fact demonstrating the former wife was capable of self-support during the interim between the petition filing date and the date when she received the inheritance, we reverse that part of the order that required the former wife to reimburse the former husband for alimony payments she received for the months before June 2010. See Suarez v. Sanchez, 43 So.3d 118, 123 (Fla. 3d DCA 2010) (finding the trial court erred in decreasing former husband’s permanent periodic alimony obligation as of a date before the substantial, permanent change in circumstances, his retirement, occurred). On remand, the trial court may implement the revocation of alimony retroactively upon proper findings relating to the former wife’s ability to support herself.

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

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


text:
    FAMSUN INVEST, LLC, Petitioner, v. Daniel THERAULT, Respondent.
    No. 4D12-1642.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.

      Mark J. Abate, Fort Lauderdale, for petitioner.
    Daniel Therault, Dania, pro se.
   PER CURIAM.

Famsun Invest, LLC, a commercial landlord, petitions for a writ of second-tier certiorari from an appellate decision of the circuit court which reversed and remanded the county court’s default judgment. The default judgment entitled the landlord to immediate possession of the property based on the tenant’s failure to deposit rent into the court registry as ordered by the court pursuant to section 88.232, Florida Statutes (2012). We grant the petition.

The commercial landlord sued the tenant in county court for eviction and for damages. The county court, pursuant to section 83.232, Florida Statutes, entered an order determining the amount of rent to be paid into the court registry. The tenant did not comply but appealed that order to the circuit court. The circuit court then entered an order requiring the tenant to pay rent into the court registry or the appeal would be dismissed. The tenant did not comply and then filed a “non-final” appeal of that order with this court.

The following day, the circuit court dismissed the appeal, and the county court entered a default judgment awarding possession to the landlord based on the tenant’s failure to pay rent into the court registry. This court later affirmed the “non-final appeal” that had been filed in this court. Subsequently, the circuit court entered the opinion at issue in which it determined that the county court should not have entered the default judgment while a “non-final appeal” was pending in this court.

The circuit court reversed based on Florida Rule of Appellate Procedure 9.130(f) which provides that “the lower tribunal may not render a final order disposing of the cause pending [non-final] review.” The circuit court’s ruling is incorrect. The county court’s order awarding the landlord possession was not a “final order disposing of the cause” within the meaning of the rule because the issue of damages remained pending. Further, given the purpose of the statute at issue, we hold that rule 9.130(f) does not prohibit entry of a default judgment for possession where the commercial tenant fails to abide by an order requiring deposit of rent into the court registry.

Section 83.232 is designed to protect a commercial landlord from irreparable harm where a tenant holds over during eviction proceedings without paying rent. If the tenant lacks resources to pay rent, or from which the landlord may obtain damages, the landlord suffers irreparable harm in the loss of rental income and could even be in danger of losing the premises. To protect against this harm, the statute requires payment of rent into the court registry and provides:

Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.

§ 83.232(5), Fla. Stat. (2012) (emphasis added). A default under this statute determines only the possessory interest and does not resolve a dispute for damages. Premici v. United Growth Props., L.P., 648 So.2d 1241 (Fla. 5th DCA 1995). This court has observed:

Where the tenant has not paid the rent into the registry of the court in accordance with court order and the statute, the landlord is entitled to a writ of possession without further hearing. The trial court exercises no discretion, and the landlord is entitled to the issuance of the writ of possession as a matter of right.

Poal Wk Taft. LLC v. Johnson Med. Ctr. Corp., 45 So.3d 87, 38 (Fla. 4th DCA 2010) (holding that no equitable exception to the statute exists).

Although second-tier review is narrow in scope and the standard is stringent, see Custer, 62 So.3d at 1092-93, we conclude that the circuit court’s appellate decision in this case rises to the level of a departure from the essential requirements of law and results in a miscarriage of justice. The court’s holding, which sets precedent controlling county court cases, would permit commercial tenants to frustrate the purposes of section 83.232. Tenants could file frivolous appeals of non-final orders which, pursuant to the circuit court’s holding, would prevent commercial landlords from obtaining the remedy of immediate possession and the protection afforded by the statute.

Accordingly, the petition is granted, and the circuit court’s opinion is quashed. The landlord shall be entitled to immediate possession.

Petition granted; opinion quashed.

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.

      . Because the proceeding in this court sought second-tier review of an appellate decision of the circuit court, the case should have been designated as a petition for writ of certiorari, not a non-final appeal. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010).

      . Technically, because the “non-final appeal” to this court should have been a petition for second-tier certiorari, rule 9.130 should not have applied.

      .The statute provides: “If the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.” § 83.232(1), Fla. Stat. (2012).