text:
    NHB ADVISORS, INC., as liquidator of the Butler Liquidation Trust for Butler Services International, Inc. and related corporations, Appellant, v. Joseph A. CZYZYK, Appellee.
    No. 4D11-4500.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.

      Raymond A. Bragar of Bragar Wexler Eagel & Squire, P.C., New York, Pro Hac Vice and Higer Lichter & Givner, LLP, Aventura, for appellant.
    John E. McOsker and Allan E. Ceran of Burke, Williams & Sorensen, LLP, Los Angeles, Pro Hac Vice, and Scott A. Dimond and Lorenz M. Pruss of Dimond Kaplan & Rothstein, P.A., Coconut Grove, for appellee.
   TAYLOR, J.

NHB Advisors, Inc. (“NHB”), the plaintiff in an underlying suit against multiple defendants for various claims in connection with the sale of a corporation, appeals an order granting defendant Joseph Czyzyk’s motion to dismiss for lack of personal jurisdiction. Because the plaintiff successfully alleged the existence of a conspiracy and Czyzyk’s participation in it, and because the plaintiffs successfully alleged that other members of the conspiracy committed a tortious act in Florida, we reverse.

Factual Background

Before filing for bankruptcy protection under Chapter 11 in June 2009, Butler Services International, a Maryland corporation with a headquarters in Fort Laud-erdale, Florida, was engaged in the business of providing outsourcing, project management, and staff services to clients.

The plaintiff, NHB, as the liquidator of the Butler Liquidating Trust for Butler Services International and related corporations (collectively “Butler”), filed an Amended Complaint against McBreen & Kopko (“M & K”), Czyzyk, and a number of other defendants, including Butler’s officers and directors, for claims related to the management and ultimate sale of Butler. The gravamen of the complaint is that several of the defendants participated in a conspiracy to purchase Butler’s assets for far below their value or, failing that, to set up a competing company which would steal business from Butler using confidential information obtained from Butler. Czyzyk, a California resident, is the President and CEO of Mercury Air Group, a California corporation that unsuccessfully offered to purchase Butler’s assets.

The amended complaint alleged that, starting at least as early as December 2008, Edward Kopko, the CEO of Butler, provided confidential information to Czy-zyk and to Frederick Kopko, a partner at M & K and a board member at various Butler entities, as part of a conspiracy to either acquire Butler very inexpensively or to take key Butler employees and compete with Butler. The purportedly confidential information included details regarding Butler’s employees — such as their salaries, locations, and job descriptions — as well as details on the leases Butler held on all its locations in the United States. Edward sent an e-mail to Frederick and Czyzyk, attaching a spreadsheet that contained data on all of Butler’s U.S.-based staff. The spreadsheet was password-protected, but Edward provided Frederick and Czy-zyk with the password to open the document. Frederick, in turn, was allegedly “the lynchpin in the transmission of Butler confidential, password protected information consisting of Butler’s employees to Mercury.”

In February 2009, while he was already in Miami on unrelated business on behalf of Mercury, Czyzyk drove to Fort Lauder-dale and had dinner with Edward. Czyzyk claimed in an affidavit that the purpose of the dinner was to extend his condolences with respect to Edward’s wife’s passing, which had occurred four to five years earlier. During this dinner, Czyzyk and Edward discussed Mercury’s potential purchase of Butler. The amended complaint alleged that the “purchase” discussed was “no more than conspirators discussing how Mercury could steal Butler’s business.”

On March 5, 2009, Edward made a bid on behalf of Mercury to be assigned all of Butler’s customer relationships for no money, but for some sort of earn out that could be used to pay the lenders above the amount of the accounts receivable which the lenders could liquidate. However, Butler’s secured lenders rejected the offer. The next day, March 6, 2009, Edward and Frederick resigned from Butler, taking several senior Butler sales executives with them. On March 7, 2009, Edward and a Mercury subsidiary called “Mercury Z” began soliciting Butler’s customers. Using the employee lists, Edward and Mercury Z were able to take away some of Butler’s consultants and customers.

In June 2009, Butler filed for bankruptcy protection under Chapter 11. Butler was later sold for $27 million, which was lower than previous offers that had been made before Edward left the company.

Claims Against Czyzyk

The amended complaint alleges two causes of action against Czyzyk. Count VI is against Czyzyk and Mercury for aiding and abetting breach of fiduciary duty by acting “improperly and without privilege with the purpose of materially aiding and assisting Edward’s and Frederick’s breach of fiduciary duty to Butler.”

Count VII alleges a conspiracy to breach fiduciary duty against Czyzyk and other defendants. Count VII alleges that Edward, Frederick, Czyzyk, Mercury, and M & K conspired to breach Edward’s and Frederick’s fiduciary duties to Butler “by collectively concocting the plan to use Butler’s confidential information, stolen by password protected e-mail, to structure a competing company to Butler, all while Edward and Frederick were officers and directors of Butler.” Count VII further alleges that the conspiracy was successful in taking clients from Butler and, as a result, Butler was damaged.

Jurisdictional Allegations Regarding Czyzyk’s Contacts with Florida

The amended complaint alleged that jurisdiction was proper over Czyzyk under section 48.193(l)(b), Florida Statutes, because he committed a tortious act within this state. The amended complaint contains two factual allegations against Czy-zyk that are relevant for jurisdictional purposes: (1) he was the recipient of e-mail with confidential data on Butler employees; and (2) he met with Edward in Fort Lauderdale — during the time that he and several other defendants were conspiring to have Mercury steal Butler’s business using Butler’s confidential information — to discuss how Mercury could steal Butler’s business.

Motions to Dismiss for Lack of Personal Jurisdiction

Both M & K and Czyzyk moved to dismiss for lack of personal jurisdiction. Czyzyk submitted an affidavit in support of his motion to dismiss. As noted above, Czyzyk acknowledged that he met with Edward in Fort Lauderdale to express condolences over the passing of Edward’s wife, but claimed that he only briefly discussed the potential sale of Butler, that he spoke on behalf of Mercury, and that there was nothing tortious about the nature of the discussions. Czyzyk also acknowledged speaking with Edward approximately one time on the telephone regarding Mercury’s potential acquisition of Butler, but denied making any tortious communications into Florida. Czyzyk further stated that over the last four years, in his capacity as CEO of Mercury, he visited customers in Florida approximately twelve to fourteen times. However, none of these visits were related to the subject matter of this lawsuit. Czyzyk has never been a resident of Florida and has no other contacts with Florida.

The trial court denied M & K’s motion to dismiss, but granted Czyzyk’s motion. The court appeared to reason that the amended complaint did not sufficiently allege that Czyzyk engaged in tortious conduct in Florida. This appeal followed.

Analysis

A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002).

In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the Florida Supreme Court articulated a two-step analysis to determine whether personal jurisdiction exists over a nonresident defendant. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. Id. at 502. Second, if the long-arm statute is applicable, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. Id. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

“Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.” Venetian Salami, 554 So.2d at 502. “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.” Id. If the affidavits can be harmonized, the court can resolve the jurisdiction issue based upon facts which are essentially undisputed. Id. at 502-03.

Pursuant to Florida’s long-arm statute, a nonresident defendant may be subject to specific jurisdiction under section 48.193(1), Florida Statutes, where the person commits any of the acts enumerated in the subsection within Florida and the cause of action arose from the act. A Florida court has specific jurisdiction over a defendant who commits “a tortious act within this state.” § 48.193(1)(b), Fla. Stat.

The inquiry under the statutory prong of Venetian Salami is not whether the tort actually occurred, but whether the tort, as alleged, occurred in Florida. See Hunt v. Cornerstone Golf, Inc., 949 So.2d 228, 230 (Fla. 4th DCA 2007). In analyzing whether tortious conduct has occurred within Florida, courts have looked to whether the nonresident defendant “committed a substantial aspect of the alleged tort in Florida.” Watts v. Haun, 393 So.2d 54, 56 (Fla. 2d DCA 1981). A defendant’s physical presence in this state is not required. Wendt, 822 So.2d at 1260.

Moreover, if a plaintiff has successfully alleged a cause of action for conspiracy among the defendants to commit tor-tious acts toward the plaintiff, and if the plaintiff has successfully alleged that any member of that conspiracy committed tor-tious acts in Florida in furtherance of that conspiracy, then all of the conspirators are subject to the jurisdiction of Florida through its long-arm statute. See Wilcox v. Stout, 637 So.2d 335, 337 (Fla. 2d DCA 1994); see also Elandia Int’l, Inc. v. Ah Koy, 690 F.Supp.2d 1317, 1330 (S.D.Fla.2010) (“If an individual successfully alleges that any member of a conspiracy committed tortious acts in Florida in furtherance of the conspiracy, then all of the conspirators are subject to personal jurisdiction in Florida.”). However, a court will decline to apply the co-conspirator theory to extend jurisdiction over nonresidents if the plaintiff fails to plead with specificity any facts supporting the existence of the conspiracy and provides nothing more than vague and conclusory allegations regarding a conspiracy involving the defendants. See Washington v. Fla. Dep’t of Children and Families, 595 F.Supp.2d 1291, 1295 (M.D.Fla.2009).

Here, the plaintiff pleaded with specificity facts supporting the existence of a conspiracy. Indeed, the plaintiff pleaded more than vague and conclusory allegations. The amended complaint alleged that Czyzyk, along with other co-defendants, conspired to breach Edward’s and Frederick’s fiduciary duties to Butler “by collectively concocting the plan to use Butler’s confidential information, stolen by password protected e-mail, to structure a competing company to Butler, all while Edward and Frederick were officers and directors of Butler.” Further, the amended complaint contains two specific factual allegations against Czyzyk that are relevant for jurisdictional purposes: 1) he was the recipient of e-mail with confidential data on Butler employees; and 2) he met with Edward in Fort Lauderdale — during the time that he and several other defendants were conspiring to have Mercury steal Butler’s business using Butler’s confidential information — to discuss how Mercury could steal Butler’s business.

While Czyzyk’s mere receipt of confidential information about Butler may not have been tortious in and of itself, the factual allegation that Edward sent him confidential information about Butler does tend to demonstrate at least a colorable claim of the existence of a conspiracy and Czyzyk’s participation in it. And, although Czyzyk claimed in his affidavit that there was nothing tortious about his meeting with Edward in Florida to discuss the potential sale of Butler, this does not defeat personal jurisdiction. Under the statutory prong, the relevant question is not whether the tort actually occurred, but whether the tort, as alleged, occurred in Florida. Czy-zyk did not dispute that this meeting with Edward occurred in Florida. Furthermore, regardless of whether Czyzyk personally committed any tortious acts within the state of Florida, the plaintiff alleged with sufficient specificity that Czyzyk took part in a conspiracy where other principals committed tortious acts in Florida.

Accordingly, because the plaintiff successfully alleged the existence of a conspiracy and Czyzyk’s participation in it, and because the plaintiffs successfully alleged that other members of the conspiracy committed a tortious act in Florida, all of the conspirators are subject to the jurisdiction of Florida through its long-arm statute. Moreover, because Butler was a Florida resident, Czyzyk’s alleged participation in a conspiracy that aimed its tortious conduct at the state of Florida would allow Czyzyk to reasonably anticipate being haled into court in Florida. Therefore, exercising personal jurisdiction over Czyzyk does not offend due process.

Accordingly, we reverse the order granting Czyzyk’s motion to dismiss for lack of personal jurisdiction and remand for further proceedings.

Reversed.

MAY, C.J., and CIKLIN, J., concur.

      . In a separate appeal, we affirmed the denial of M & K’s motion to dismiss for lack of personal jurisdiction. See McBreen & Kopko, LLP v. NHB Advisors, Inc., 2012 WL 2685054 (Fla. 4th DCA July 5, 2012).

      . Even if Czyzyk's actions were on behalf of Mercury, a corporate officer who commits fraud or other intentional misconduct outside of Florida is not protected by the corporate shield doctrine. Kitroser v. Hurt, 85 So.3d 1084, 1088 n. 3 (Fla.2012). Here, Czyzyk cannot use the corporate shield doctrine against the plaintiff's intentional tort claims of aiding and abetting breach of fiduciary duty and conspiracy to breach fiduciary duty.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Sara MORIBER, Petitioner, v. Michael Paul DREILING, et al., Respondents.
    No. 3D12-300.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.

      Shutts & Bowen, Gary Bagliebter and Rachel H. LeBlanc, Ft. Lauderdale, for petitioner.
    Heller Waldman, P.L., and Glen H. Waldman, for respondents.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

FACTUAL AND PROCEDURAL BACKGROUND

I. INTRODUCTION

Sara Moriber (“the petitioner”) petitions for a writ of certiorari quashing the trial court’s denial of her motion to disqualify the respondents’ attorneys, Glen Waldman and Eleanor Barnett, of the law firm Heller Waldman P.L. (collectively, “Heller Waldman” or “the Heller Waldman attorneys”). Because the trial court did not depart from the essential requirements of the law in denying the petitioner’s motion to disqualify, we deny the petition.

II. THE INADVERTENT DISCLOSURE

The events that transpired in this case are not attributable to unethical conduct. Instead, they illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.

On October 9, 2009, the petitioner, as the personal representative of her mother’s estate, filed a four count complaint against her siblings, the respondents. Over the course of almost two years, the parties engaged in significant discovery and motion practice. Then, on September 30, 2011, counsel for the petitioner served a motion for partial summary judgment on the respondents by having his assistant (1) deliver an electronic copy by e-mail and (2) send a hard copy by regular U.S. mail to Heller Waldman.

The assistant to petitioner’s counsel thereafter realized that the initial e-mail to Heller Waldman did not mention that a hard copy also had been sent. She therefore sent a follow up e-mail, including the same text contained in the initial e-mail, and adding the statement, “I have also mailed you a hard copy today.” Unfortunately, while the assistant intended to reattach the electronic copy of the motion for summary judgment to the follow up email, she inadvertently attached a confidential mediation statement instead. The e-mails were sent to two attorneys at Heller Waldman, Glen Waldman and Eleanor Barnett, as well as their assistant, Nancy Curiel. Additionally, petitioner’s own counsel was copied on both e-mails.

The Heller Waldman attorneys and their assistant filed affidavits explaining the events that followed. Two of the three recipients at Heller Waldman — Glen Wald-man and Nancy Curiel — never reviewed the mediation statement. The only person at Heller Waldman who reviewed the mediation statement was Ms. Barnett. When the petitioner sent the e-mails, Ms. Barnett was out of town and without access to her computer. Thus, she initially received the e-mails on her cellular phone, and did not open the e-mails or their attachments. On Monday morning, when Ms. Barnett returned to the office, she instructed her assistant to print out a copy of the motion for summary judgment and “whatever came in while I was out related to this cause.” Thus, Ms. Barnett’s assistant printed out and provided to Ms. Barnett a copy of the petitioner’s motion for summary judgment and a copy of the mediation statement. Before Ms. Barnett read the documents, her assistant also forwarded the e-mails and their attachments to the respondents.

In the afternoon, Ms. Barnett read the motion for summary judgment and then began to “skim” the mediation statement to determine whether the arguments were generally the same as those set forth in the motion for summary judgment. When Ms. Barnett realized she was skimming a mediation statement, she paused to “con-fírm[ ] that the letter did not contain the usual header in bold and all caps stating that the letter was Confidential and for the Mediators [sic] Eyes Only.” Ms. Barnett noted that she had, on several occasions, copied opposing counsel with mediation statements when she thought doing so would assist in the resolution of a matter. Thus, Ms. Barnett assumed that the petitioner had purposely copied Heller Wald-man with the mediation statement.

Just before leaving her office, Ms. Barnett sent an e-mail to counsel for the petitioner. She advised that she had noticed in the mediation statement that the petitioner desired to schedule its motion for summary judgment to be heard during the same hearing as the respondents’ motion for summary judgment. Ms. Barnett explained that Heller Waldman did not, and would not, agree to such scheduling. Ms. Barnett then left her office for the day.

Minutes later, counsel for the petitioner received the e-mail and, for the first time, became aware of the inadvertent disclosure. He immediately sent Ms. Barnett an e-mail advising her that the mediation statement was confidential and had been sent in error, and requesting that all copies of the mediation statement be immediately destroyed. The next morning, at 6:49 a.m., Ms. Barnett responded that when she had skimmed the mediation statement she did not know it was confidential, and assured counsel for the petitioner that she would destroy all copies of the statement. Ms. Barnett made good on her word, and immediately had all copies of the mediation statement destroyed, including those received by the respondents.

III. THE MOTION TO DISQUALIFY

On October 12, 2011, the petitioner filed a motion to disqualify the Heller Waldman attorneys, arguing that they violated Rule 4^14(b) of the Rules of Professional Conduct by reviewing the mediation statement, and that this violation enabled them to obtain an unfair informational advantage. On November 16, 2011, the trial court conducted a hearing on the motion to disqualify. During the hearing, the parties noted that if the trial judge reviewed the mediation statement, she too might be subject to disqualification. Thus, at the urging of counsel for the petitioner, and with the consent of both parties, the trial court appointed a special master to review the mediation statement and make a recommendation.

The special master, after conducting a hearing and reviewing the mediation statement, motions for summary judgment, and the affidavits filed by the Heller Waldman attorneys and their assistant, concluded that “there is nothing within [the mediation statement] that gives rise to any possibility that Defendants gained an unfair advantage — or any advantage — by receiving it.” Specifically, the special master stated:

I reach this conclusion after comparing the contents of the Confidential Mediation Statement to the contents of the parties [sic] Motions for Summary Judgment. ... At this late stage and given the arguments made in open court by the parties through their competing motions on the merits, there is nothing in the Confidential Mediation Statement that would give the Defendants any possibility of an unfair advantage. For the most part, the statement outlines undisputed facts, makes passing comments on the obvious motivations of the parties and otherwise fairly tracks the legal issues now of record. There is nothing in the Confidential Mediation Statement that hints of any weakness in the Plaintiffs case or which, in the hands of Defendants, would afford any tactical, strategic or legal advantage. If I had to briefly capture the essence of the submission, I would say it is a well crafted position paper which states the obvious and disclosed well established positions of each side.

Based on this reasoning, the special master recommended that the trial court deny the petitioner’s motion to disqualify. The trial court reviewed the special master’s recommendation, and on January 6, 2012, entered a written order denying the petitioner’s motion to disqualify. This petition followed.

THE PETITION FOR A WRIT OF CERTIORARI

I. THE PETITIONER’S ARGUMENT

The petitioner contends that the trial court departed from the essential requirements of the law by denying her motion to disqualify. In support, the petitioner advances the same arguments as those advanced before the trial court, i.e., that the Heller Waldman attorneys violated Rule 4-4.4(b) of the Rules of Professional Conduct, and that this violation enabled the Heller Waldman attorneys to obtain an unfair informational advantage. We disagree.

II. THE GOVERNING CASE LAW

It is well settled that the “disqualification of a party’s chosen counsel is an extraordinary remedy and should be resorted to sparingly.” Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505, 506 (Fla. 4th DCA 1986). To obtain a writ of certiorari quashing a trial court’s denial of a motion to disqualify opposing counsel, the petitioner must establish that the trial court departed from the essential requirements of the law, and that the resulting error cannot be adequately remedied on post-judgment ap peal. See Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 724 So.2d 572, 573 (Fla. 3d DCA 1998) (“Abamar II”). On motions to disqualify, this standard is especially difficult to meet because the disqualification of counsel is left to the sound discretion of the trial court, as long as such discretion is exercised within the confines of the applicable law and the trial court’s express or implied findings are supported by competent substantial evidence. Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404, 408 (Fla. 4th DCA 2006) (“The standard of review for orders entered on motions to disqualify counsel is that of an abuse of discretion. While the trial court’s discretion is limited by the applicable legal principles, the appellate court will not substitute its judgment for the trial court’s express or implied findings of fact which are supported by competent substantial evidence.”) (citation omitted); see also Herschowsky v. Guardianship of Herschowsky, 890 So.2d 1246, 1247 (Fla. 4th DCA 2005) (“The trial court has discretion in ruling on a motion to disqualify counsel.... Petitioner has demonstrated an abuse of the trial court’s discretion in this case, which rises to the level of a departure from the essential requirements of law ... [because] the probate judge in this case focused on the wrong legal standard.”)

The receipt of an inadvertent disclosure warrants disqualification when the movant establishes that: (1) the inadvertently disclosed information is protected, either by privilege or confidentiality; and (2) there is a “possibility” that the receiving party has obtained an “unfair” “informational advantage” as a result of the inadvertent disclosure. See Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So.2d 1117, 1118 (Fla. 3d DCA 2008); Abamar II, 724 So.2d at 573-74. These two elements are, of course, interrelated, because only the inadvertent disclosure of privileged or confidential information can yield an “unfair” “informational advantage.” However, the fact that the inadvertently disclosed information is privileged or confidential, standing alone, does not automatically warrant disqualification. Abamar II, 724 So.2d at 574 n. 4 (“This holding is not to be construed as creating an automatic disqualification rule for inadvertent disclosure.”)

In this way, the second element is broader than the first. As part of the second inquiry, courts must look not only to the content of the inadvertent disclosure, but also “to the actions taken by the receiving lawyers” upon their receipt of the inadvertent disclosure. Atlas, 997 So.2d at 1118 (Rothenberg, J., concurring). Such actions are relevant in two ways.

First, it would be impossible to determine whether there is a possibility that the receiving attorneys obtained an unfair informational advantage without knowing how and to what extent they reviewed, copied, or disseminated the inadvertent disclosure. See id. at 1118-19. For instance, in Atlas, several of the petitioner’s privileged documents were inadvertently delivered to Ms. Ravkind, one of the partners of the firm representing the respondents. Id. at 1118. The petitioner deposed Ms. Ravkind regarding how and to what extent she and the other attorneys at her firm reviewed, copied, or disseminated the documents. Id. at 1119. Ms. Ravkind, however, refused to answer most of such questions, invoking the attorney-client and work product privileges. Id. The petitioner filed a motion to disqualify the respondents’ entire firm. Id. at 1118. The trial court, however, disqualified only Ms. Rav-kind, enabling the remaining attorneys at her firm to continue representing the respondents. Id.

On petition for writ of certiorari, this Court quashed the trial court’s latter ruling, determining that disqualification of the entire firm was required. Id. In a concurring opinion, Judge Rothenberg elaborated on the Court’s rationale. Because Ms. Ravkind refused to answer questions regarding how and to what extent the remaining attorneys at her firm reviewed, copied, or disseminated the privileged information, this Court had no way of assessing whether it was possible that the remaining attorneys obtained an unfair informational advantage. Id. at 1118-19. Thus, the only remedy was disqualification of the entire firm:

Ms. Ravkind ... reviewed several of these privileged documents ... and copied seventeen pages of these privileged documents. Ms. Ravkind subsequently-reviewed the hard copies and made notes on some of them.
It is undisputed that at least one of the privileged documents was also reviewed by another ... attorney representing the defendant in this action. It is unknown, however, whether the privileged documents and/or the information contained in the documents were provided or reviewed by other attorneys within the firm, as Ms. Ravkind asserted the attorney/client and work product privileges during her deposition. Because Ms. Ravkind refused to answer these questions, it is impossible to determine the extent of the tactical advantage [the respondents’ attorneys] may have obtained by viewing the privileged documents, and whether another remedy, short of disqualifying the firm, was available.

Id. at 1119.

Second, the actions of the receiving attorneys shed light on whether any informational advantage was obtained “unfairly.” See Abamar II, 724 So.2d at 574 n. 4. In this regard, “[a]n order involving the disqualification of counsel must be tested against the standards imposed by the Rules of Professional Conduct.” Morse v. Clark, 890 So.2d 496, 497 (Fla. 5th DCA 2004). For instance, in Abamar II, the petitioners inadvertently disclosed twenty-three privileged documents to counsel for the respondents. Abamar II, 724 So.2d at 573. The petitioners promptly requested that the documents be returned. Those requests, however, were refused. Thereafter, the respondents, over the petitioners’ objections, introduced the privileged documents at depositions and attached them as exhibits. The petitioner filed a motion to disqualify counsel for the respondents, which the trial court ultimately rejected.

This Court granted the petitioners’ petition for writ of certiorari, concluding that the trial court departed from the essential requirements of the law in rejecting the petitioner’s motion to disqualify. Id. at 572. In granting the petition, this Court focused on the respondents’ “recalcitrance in rectifying the disclosure,” id. at 574, and established that an attorney who complies with the Rules of Professional Conduct upon receiving an inadvertent disclosure will not be subject to disqualification. Id. at 574 n. 2 (“[A]n attorney who follows the dictates of the Ethics Opinion, and complies with the obligation to promptly notify and to return immediately the inadvertently produced documents without exercising any unfair advantage (such as photocopying the ‘confidential documents’ prior to returning them), will not be subject to disqualification.”).

III. LEGAL ANALYSIS

The trial court did not depart from the essential requirements of the law, as the trial court applied the correct analytical framework, and there was competent substantial evidence to support its express and implied factual findings. The trial court heard arguments regarding whether the mediation statement was privileged or confidential, and whether there was any possibility that the respondents’ attorneys obtained an unfair informational advantage as a result of the inadvertent disclosure. Further, the trial court acknowledged that “[t]he Court must look to the actions taken by the receiving lawyer or law firm in determining whether the drastic remedy of disqualification is warranted.”

The special master determined that, although the mediation statement was confidential, “there is nothing within [the mediation statement] that gives rise to any possibility that Defendants gained an unfair advantage — or any advantage — by receiving it.” (emphasis added). Upon our independent review, we conclude that this finding is supported by the record, and agree with the special master that “[f]or the most part, the statement outlines undisputed facts, makes passing comments on the obvious motivations of the parties and otherwise fairly tracks the legal issues now of record.” Importantly, we agree that “[t]here is nothing in the Confidential Mediation Statement that hints of any weakness in the Plaintiffs case or which, in the hands of Defendants, would afford any tactical, strategic or legal advantage.”

This finding is also supported by the actions taken by the receiving attorneys. First, unlike in Atlas, the Heller Waldman attorneys filed affidavits fully explaining how and to what extent they reviewed, copied, and disseminated the inadvertently disclosed information. The only Heller Waldman attorney to have reviewed the mediation statement was Ms. Barnett, who did not read or make notes on the statement, but merely skimmed it to determine more or less whether the arguments made in the mediation statement mirrored those in the motion for summary judgment. Importantly, upon learning that the statement was confidential, she immediately had all copies received by Heller Waldman and the respondents destroyed. The brevity of the Heller Waldman attorneys’ exposure to the inadvertently disclosed information, and the minimal degree to which they handled, reviewed, and disseminated it, supports the conclusion that there was no possibility that Heller Waldman obtained an unfair informational advantage.

Second, in denying the motion to disqualify, the trial court necessarily rejected the petitioner’s argument that the respondents violated Rule 4-4.4(b) of the Rules of Professional Conduct upon receiving the inadvertent disclosure. Rule 4-4.4(b) dictates that “[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” The record supports the conclusion that Ms. Barnett did not know that the mediation statement was confidential, and that such a lack of knowledge was reasonable under the circumstances.

Importantly, there is nothing inherent about a mediation statement, in and of itself, that would automatically place a recipient on notice of the statement’s confidential nature. It is not uncommon for a party to send a mediation statement to opposing counsel so as to enable the opposing party to better understand a particular point. Indeed, as the trial court noted, sometimes such submissions are mandated by judges.

In addition, as explained by the trial court, the mediation statement did not indicate, in bold, that it was to be deemed confidential. Although there is an admonition within the text of the first paragraph of the mediation statement clarifying that the statement was confidential, Ms. Barnett maintains that she did not read the first paragraph. Because the admonition was not placed in bold, underlined, italicized, capitalized, or otherwise designed to stand out to a reader who was merely skimming the document, it was reasonable for the trial court to conclude that Ms. Barnett overlooked the admonition.

Finally, as explained above, upon being notified that the documents were confidential, Ms. Barnett immediately had all copies of the mediation statement destroyed. Thus, unlike in Abamar II, the Heller Waldman attorneys were entirely cooperative, rather than recalcitrant, in rectifying the disclosure.

Because the trial court applied the correct legal standard and determined that there was no possibility that Heller Wald-man obtained an unfair informational advantage, and because the trial court’s express and implied findings were supported by substantial competent evidence, the trial court did not depart from the essential requirements of the law. Accordingly, we deny the petition.

Petition denied.

      . In other words, in moving to disqualify counsel, it is necessary, but not sufficient, to demonstrate that the inadvertently disclosed information is confidential or privileged.

      . The facts of Abamar II are fully set forth in Abamar I, Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So.2d 276, 277-78 (Fla. 3d DCA 1997).

      . The trial court initially granted the motion, but upon the respondents’ motion for reconsideration, vacated the disqualification order.


author: STEVENSON, J.

text:
    Mark HOLTZ, Appellant, v. Tammy Sue HOLTZ, Appellee.
    No. 4D11-2808.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Troy W. Klein of the Law Office of Troy W. Klein, West Palm Beach, for appellant.
    No appearance for appellee.
   STEVENSON, J.

This appeal stems from entry of a final judgment of dissolution of marriage between the appellant, former husband, and the appellee, former wife. Subsequent to entry of the final judgment, former wife filed a motion for civil contempt, alleging that former husband failed to make child support payments, alimony payments and an equitable distribution payment, as required by the final judgment. Because the order fails to comply with Florida Family Law Rule of Procedure 12.615(d)(1) and improperly holds former husband in contempt for non-payment of an equitable distribution payment, we reverse.

The trial court’s order granting former wife’s motion for contempt recites only the following findings and conclusions:

1. The Former Husband failed to make an equitable distribution payment of $61,158.00 to the Former Wife;
2. The Former Husband failed to pay alimony in the sum of $2500.00 per month to the Former Wife;
3. The Former Husband failed to pay child support in the amount of $771.00 per month to the Former Wife. Thereupon it is

ORDERED AND ADJUDGED as follows:

A. The equitable distribution payment of $61,158.00 shall be paid to the Former Wife no later than July 8, 2011;
B. The child support arrearage and alimony arrearage in the amount of $25,146.00 as of June 14, 2011 shall be paid to the Former Wife by July 8, 2011.
C. If the above amounts are not made by July 8, 2011, a Rule to Show Cause Order will be issued by this Court which will result in further penalty including, but not limited to, incarceration in the Palm Beach County Jail.

Rule 12.615(d)(1) provides that:

An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.

The trial court failed to make the findings that former husband had the present ability to pay and that he willfully failed to comply with the final judgment. This is grounds for reversal. See, e.g., Orsini v. Orsini, 909 So.2d 558, 560 (Fla. 4th DCA 2005) (reversing and remanding order finding former husband in contempt because order contained no finding that former husband possessed ability to pay ordered monthly arrearages). Further, the trial court could not use its contempt power to enforce the equitable distribution provision of the final judgment. See Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) (“ ‘If an obligation is in the nature of settlement of property rights as opposed to alimony, support or maintenance of one to whom the duty is owed, the contempt power of the court cannot be invoked.’ ”) (quoting Filan v. Filan, 549 So.2d 1105 (Fla. 4th DCA 1989)). Thus, the trial court’s order is reversed.

Reversed.

CIKLIN, J., and WALSH, LISA S., Associate Judge, concur.


text:
    NATIONAL CITY BANK, Appellant, v. Kristin A. NAGEL, et al., Appellee.
    No. 4D11-3172.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Robert R. Edwards of the Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for appellant.
    No appearance for appellee.
   STEVENSON, J.

National City Bank filed a foreclosure suit against Kristin A. Nagel, et. al.; the complaint alleged that the note and mortgage had been executed in favor of First Franklin Financial, but that plaintiff was now the “owner” of the note. No answer, pleading, or paper of any kind was filed by the defendants. Thereafter, National City Bank filed a “Motion to Substitute Party Plaintiff,” alleging the note had been assigned subsequent to the filing of the foreclosure suit. The trial court sua sponte reviewed the public records and concluded that National City Bank did not own the note at the time the suit was filed and therefore lacked standing. The trial court thereafter dismissed the action. We reverse. “A trial judge may not sua sponte dismiss an action based on affirmative defenses not raised by proper pleadings” as a dismissal under these circumstances “denies the parties due process because the claim is being dismissed without ‘notice and an opportunity for the parties and counsel to be heard.’ ” Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (quoting Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1249 (Fla. 4th DCA 1998)).

Reversed and remanded for further proceedings.

CIKLIN, J., and WALSH, LISA S., Associate Judge, concur.


author: PER CURIAM.

text:
    Anthony Joseph SHALEESH, Appellant, v. Karin Marie SHALEESH, Appellee.
    No. 3D11-3137.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Brett P. Rogers, Fort Lauderdale, for appellant.
    Dirk Lorenzen, Coral Gables, for appel-lee.
    Before CORTIÑAS, SALTER and EMAS, JJ.
   PER CURIAM.

We affirm in all other respects the order granting the former wife’s motion for attorney’s fees, but remand for the trial court to enter an amended order addressing two issues:

1. The trial court acknowledged in its order that the former wife’s counsel “has received only $9,300 on account, which was the sum that the Court ordered on October 4, 2011 for temporary fees — and he had to file a Motion for Contempt to enforce that order to receive that payment.” The order makes no further reference to this payment of $9300 by the former husband, and it remains unclear whether the trial court intended to include (and in fact included) a credit for that amount in its calculation of the ultimate fee award of $85,000. The trial court shall amend the order to reflect whether such a credit was intended to be included and, if so, how that credit was applied in the court’s calculation and award.

2. The order contains an “acceleration clause.” On appeal, the former wife stipulated that she will not seek enforcement of that clause, and the trial court shall remove the acceleration clause from its order granting attorney’s fees.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

      . The former wife’s counsel submitted 264.45 hours performed by a partner and an associate within the firm. Counsel for the former wife proposed using a blended hourly rate of $376.25, for a total amount of $99,499. Upon the former wife’s agreement, the trial court concluded that sixteen hours of billed associate time should be removed from the fee award (leaving 248.45 hours at a blended rate of $376.25 for a total new amount of $93,479). The trial court also determined the proposed blended rate was “somewhat high for the issues and resources of these parties,” and reduced the blended rate by 10% (to $338.62) which, when multiplied by 248.45 hours, results in a fee award amount of $84,131. This amount closely approximates the ultimate fee award of $85,000, but does not account for the $9300 in temporary fees alleged to have been paid by the former husband to the former wife, and for which the former husband sought a credit.

      . The order required former husband to pay the $85,000 at a monthly rate of $1,000. It further provided: "If Mr. Shaleesh defaults in any monthly payment of this obligation, the then remaining balance shall accelerate and become payable in full immediately.”


text:
    P.K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-727.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The juvenile appeals from a finding of guilt and withhold of adjudication for attempted petit theft. Based on the State’s proper confession of error, we hold the trial court erred and remand for a new trial on the charge of petit theft.

Reversed and remanded.


text:
    Derrick ALLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1915.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Derrick Allen, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This appeal is from what is at least the twenty-first unsuccessful attempt at relief from the defendant’s 2000 criminal conviction. Notwithstanding that the petition was filed below by a member of the Florida Bar, Andrew F. Rier, thus obviating the prohibition of further pro se post-conviction filings we ordered in Allen v. State, 16 So.3d 152 (Fla. Bd DCA 2009), the present action is just as meritless and, under the circumstances, even more oppressive than the previous ones.

Affirmed.

      . Among other things, the petition stated:
      Th[e] cornerstone requirement which ensures that Rule 3.850 claims are not summarily denied out of judicial convenience was never complied with here and due to Mr. Allen's inability to retain private counsel he had no advocate at the time to ensure his rights were protected and his claims properly adjudicated on the merits. However, that time has now come and it is finally time to rectify the injustice that has prevailed for far too long in this case. Mr. Allen would respectfully request an eviden-tiary hearing in which to properly address and adjudicate each and every cognizable claim that he timely filed in his Rule 3.850 motion, which he would argue remains pending because it was never addressed to any satisfactory level of legal compliance with the basic tenants [sic] of Rule 3.850. (Appellant’s Mot. to Vacate J. & Sent. 11) (emphasis added).
      Rule of Professional Conduct 4-8.2(a) provides:
      A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.


text:
    Nicholas BAMBACH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1837.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Robbins, Tunkey, Ross, Amsel, Raben & Waxman, and Benjamin S. Waxman, Miami-Dade, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Maikel RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1940.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Julia Kefalinos, Miami, for appellant.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Phillip Lee ALDRIDGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3131.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).


author: SUAREZ, J.

text:
    Marc Michael GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-424.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2012.
    Ricardo R. Corona and Sahar Razzaghi-Awal, Coral Gables.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).


text:
    Sarah ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5904.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Clyde M. Taylor, Jr., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Jermaine L. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6533.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2012.
    Jermaine L. Walker, pro se.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: CLARK, J.

text:
    D’Andre PLUMMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5760.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.

      D’Andre Plummer, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appel-lee.
   CLARK, J.

D’Andre Plummer appeals the denial of his motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure. Appellant was convicted, after jury trial, of aggravated battery on a pregnant victim, and sentenced as a Prison Release Reoffender (“PRR”) to 15 years incarceration. See § 775.082(9)(b), Fla. Stat. The judgment and sentence were affirmed on direct appeal. Plummer v. State, 43 So.3d 697 (Fla. 1st DCA 2010).

Appellant asserted in his motion for postconviction relief that: 1) defense counsel was ineffective for failure to call a requested witness (the victim) to testify at the sentencing hearing; 2) the sentence was illegal because the mandatory term of the PRR sentence did not comport with the sentence orally pronounced; and 3) defense counsel was ineffective for failing to convey a plea offer to Appellant.

The trial court denied grounds one and two without an evidentiary hearing and attached portions of the record conclusively showing that Appellant was entitled to no relief. See Fla. R.Crim. P. 3.850(d); Fla. R.App. P. 9.141(b)(2)(D). Having reviewed the order and attachments, we find that the trial court committed no error in denying these grounds and properly supported its ruling with portions of the record of the trial proceedings.

On ground three, the trial court conducted an evidentiary hearing which included testimony by defense counsel and by Appellant. Fla. R.Crim. P. 3.171(c)(2)(A). The testimony clearly refuted Appellant’s claim that counsel failed to convey the State’s plea offer of seven years. All parties agreed that the seven-year plea offer was discussed for weeks prior to trial, that Appellant counter-offered seeking a six-year agreement, and that the plea offer continued to be discussed among all concerned, including the court, until minutes before the jury returned its verdict. Even if Appellant’s assertion of counsel’s ineffectiveness is interpreted as a claim that counsel violated rule 3.171(c)(2)(B), Florida Rules of Criminal Procedure, by insufficiently advising Appellant of the particulars of the plea, in contrast to the consequences of rejecting the plea and accepting the jury’s verdict, the testimony during the evidentiary hearing and the transcript of the trial proceedings, where the judge clearly informed Appellant of the PRR sentence if the jury found him guilty, refuted this claim as well.

In addition to the trial court’s denial of his postconviction motion, Appellant challenges on appeal the trial court’s denial of his motion for appointment of counsel to represent him at the evidentiary hearing. Appellant has failed to show that the trial court abused its discretion by denying appointed counsel in this case. Wheeler v. State, 807 So.2d 94 (Fla. 1st DCA 2002).

For all the foregoing reasons, the trial court’s orders are AFFIRMED.

BENTON, C.J. and MAKAR, J., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Carneri Fred SHINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5657.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.

      Carneri Fred Shine, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order denying a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court’s order denied the motion on the basis that it was procedurally barred. The order stated, in part:

The Court, being fully advised in the premises, finds that the defendant filed a notice of appeal from the original judgment and sentence, two motions for post-conviction relief and a motion to correct sentencing error. This Court has denied all prior claims and the rulings have been upheld on appeal. Defendant is barred from re-litigating this claim.

Collateral estoppel bars a party from re-litigating an identical claim that has been previously decided on the merits. See State v. McBride, 848 So.2d 287, 290 (Fla.2003). Here, the order on appeal does not indicate whether Appellant’s current Rule 3.800(a) motion raises claims identical to those previously litigated by Appellant or whether those prior claims were decided on the merits. Because the record does not show conclusively that Appellant is entitled to no relief, we must reverse the order on appeal and remand for further proceedings. See Fla. R.App. P. 9.141(b)(2)(D); Pleasure v. State, 931 So.2d 1000 (Fla. 3d DCA 2006).

Reversed and remanded for further proceedings.

DAVIS and RAY, JJ., concur; THOMAS, J. Dissents with Opinion.

THOMAS, J.,

Dissenting.

I respectfully dissent. In my view, it is not necessary to remand to require the trial court to attach Appellant’s previous motion to prove that it correctly denied the current motion on the basis of collateral estoppel. We should hold that it is Appellant’s burden to attach his previous motion, as it the losing party’s burden to demonstrate reversible error in the trial court’s ruling, and the State is the prevailing party. Furthermore, the Florida Supreme Court has recently held that it is not the burden of this court, the trial court, or the State to disprove Appellant’s stale claim filed under Florida Rule of Criminal Procedure 3.800, where he has failed to provide adequate documentation at trial to support his argument that his agreed-upon sentences are illegal. Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011) (“The State has no obligation to refute a defendant’s claim raised under rule 3.800(a). On the contrary, ‘the burden [is on] the petitioner to demonstrate an entitlement to relief on the face of the record.’ ” (citation omitted)). Thus, I would not follow the rationale of the Third District in Pleasure v. State, 931 So.2d 1000 (Fla. 3d DCA 2006).

A trial court’s ruling is presumed correct. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Although this principle is not always recognized in collateral cases, in my view it should be, as it is the controlling law. While I understand and recognize the rule regarding the trial court’s obligation to attach records to support summary denials in claims regarding ineffective assistance of counsel filed under Florida Rule of Criminal Procedure 3.850, that same principle is not binding on trial courts when summarily denying claims filed under Florida Rule of Criminal Procedure 3.800(a), as relief is available under this latter rule only where a defendant can show an entitlement to relief based on the records alone. I agree with the State that this court should not remand, where Appellant has failed to provide an adequate record establishing an entitlement to relief, which is his burden under section 924.33, Florida Statutes.

I would affirm the trial court’s order on appeal.

       The record on appeal is limited to "the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.” Fla. R.App. P. 9.141(b)(2)(A). As noted by the State, neither party is permitted to supplement the record on appeal with other documentation attempting to support or challenge the order denying relief.


text:
    Adam McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0041.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2012.
    Adam McCray, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (July 12, 2012).

VAN NORTWICK, ROBERTS, and MARSTILLER, concur.


text:
    Lourdes L. CORTINA, Appellant, v. Luis F. LORIE, Appellee.
    No. 5D11-2774.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.

      Maureen Monaghan Matheson, of Matheson Appellate Law, P.A., Satellite Beach, for Appellant.
    Richard J. Feinberg, Indialantic, for Ap-pellee.
   PER CURIAM.

The former wife, Lourdes Cortina (“Cor-tina”) appeals from a final order reducing the amount of child support arrearages owed by the former husband, Luis Lorie (“Lorie”). She correctly argues that the trial court erred in reducing the amount of arrearages.

Child support obligations vest at the time payments are due. Puglia v. Puglia, 600 So.2d 484, 485 (Fla. 3d DCA 1992). Thus, accrued child support, or child support in arrears, become vested rights of the payee and vested obligations of the payor that are not subject to retroactive modifications. Id.; Prio v. Barouh, 834 So.2d 263, 265 (Fla. 3d DCA 2002); Waldman v. Waldman, 612 So.2d 703, 704 (Fla. 3d DCA 1993).

Despite the seemingly bright line rule against retroactive modification of child support arrearages, some cases contain a narrow exception to this rule, and permit modification with a proper pleading and proof of compelling circumstances. See, e.g., State, Dep’t of Revenue ex rel. Brinson v. Evans, 706 So.2d 933 (Fla. 2d DCA 1998) (reversing order cancelling child support arrearages accrued while ap-pellee was in prison and stating, “We reverse that part of the order extinguishing the vested child support arrears Mr. Evans owes because the trial court cannot modify this obligation absent a pleading and proof of compelling circumstances such as laches, estoppel, waiver, or other equitable reasons.”); Dep’t of Revenue ex rel. Johnston v. Whiting, 684 So.2d 281, 282 (Fla. 5th DCA 1996) (“The court, without any pleadings to do so, reduced the amount of arrearages. This was error.”); Dep’t of Health and Rehab. Servs. ex rel. Newhall v. Smith, 605 So.2d 1335, 1336 (Fla. 5th DCA 1992) (“We conclude that the trial court erred in modifying the support order because the father failed to file an appropriate pleading invoking the court’s subject matter jurisdiction .... nor did he file any pleading requesting an elimination of past due child support payments.”); State, Dep’t of Health and Rehab. Servs. ex rel. Davis v. Canady, 473 So.2d 273, 274 (Fla. 2d DCA 1985) (reversing order cancelling child support arrear-ages accrued while appellee was in prison, stating that proper pleading must precede judicial adjustment of child support arrears; absent compelling circumstances or valid defense, trial court lacks authority to retroactively cancel or reduce past due child support payments); Manning v. Varges, 413 So.2d 116, (Fla. 2d DCA 1982) (“A decree adjudicating an issue not presented by the pleadings nor litigated by the parties during the hearing on the pleadings is, at least, voidable upon appeal.”).

In the instant case, Lorie filed an Answer and Affirmative Defenses in response to Cortina’s petition to set the amount of arrearages. He alleged three affirmative defenses related to the amount of arrearages: payment, inability to pay while in prison, and verbal modification of obligation to pay while in prison. The trial court’s reduction of arrearages cannot be upheld based on any of the grounds that Lorie raised below. He offered no evidence that he paid child support while in prison. He waived his inability to pay argument by not filing a motion to modify child support at the time of his incarceration. Puglia, 600 So.2d at 485 (“Although the father could have sought modification of the child support order in advance, he did not do so. Having failed to do so, it is too late to seek this remedy retroactively.”). And, the trial court rejected his verbal modification argument.

Rather, the trial court’s stated reason for reducing the arrearages was that the parties’ grown children were unlikely to benefit from repayment of the child support owed while in prison; only Cortina would benefit. That ground was neither pled, argued nor supported by any evidence. Put simply, even if Lorie’s child support obligation could be retroactively modified for the reason stated by the trial court, see Jackson; Puglia, the stated basis for the modification was clearly beyond the scope of the pleadings or any matters tried by consent. See, e.g., Sabine v. Sabine, 834 So.2d 959 (Fla. 2d DCA 2003) (where former husband filed motion to terminate alimony and former wife filed motion to enforce alimony payments, trial court’s modification of alimony was not framed by the pleadings, noticed for hearing, or litigated by the parties, implicating due process concerns and failing to invoke the court’s jurisdiction).

Accordingly, we reverse the order on appeal and remand for entry of a final order that does not reduce Lorie’s child support arrearages.

REVERSED AND REMANDED.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.

      . Even forward-looking modification of child support due to incarceration is far from automatic. See Dep’t of Revenue v. Jackson, 846 So.2d 486 (Fla.2003). In Jackson, while establishing a procedure and standards for seeking to modify child support while incarcerated, the supreme court also cautioned that "any accruals which vested prior to filing the petition to modify remain and clearly must be paid in full.” Id. at 492.

      . Lorie raised a fourth affirmative defense of laches at the hearing, but failed to prove this orally asserted defense as well. With respect to the verbal modification defense, Lorie does not challenge the trial court’s findings rejecting that defense on appeal.


text:
    Jimil SHEIKH, Appellant, v. Zulle-Huma MUGHAL, Appellee.
    No. 5D12-1140.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.

      Jimil M. Sheikh, Sanford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jamil Sheikh appeals from an order of civil contempt, making numerous arguments based upon matters not included in the record. Without a record, and because there is no error apparent on the face of the order itself, we affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding that a trial court’s order is presumed correct and that where appellant does not provide a record of the trial proceedings, the appellate court has no basis to conclude that the trial court’s judgment is not supported by the evidence). See also Poling v. Palm Coast Abstract & Title, Inc., 882 So.2d 483, 485 (Fla. 5th DCA 2004).

AFFIRMED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    JAG AUTO BODY, INC., d/b/a Wekiva Auto Body, Appellant, v. Antoni CAPONE, Appellee.
    No. 5D11-2299.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.
    J. Marshall Gilmore, Winter Park, for Appellant.
    Richard W. Smith, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   PER CURIAM.

JAG Auto Body appeals the trial court’s order enforcing a settlement agreement with Antoni Capone. Because Capone failed to meet his burden to show that JAG Auto Body’s counsel had “the clear and unequivocal authority to settle on the client’s behalf,” we are compelled to reverse. See Collado v. Pavlow, 951 So.2d 69, 71 (Fla. 5th DCA 2007); Sharick v. Se. Univ. of the Health Scis., Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004). Mere employment of an attorney does not give the attorney the implied or apparent authority to compromise the client’s cause of action or settle the client’s claim. Collado, 951 So.2d at 71; Sharick, 891 So.2d at 565.

We also reject any contention that the desire to settle the case prior to a scheduled pretrial conference constitutes an “emergency” justifying an unauthorized settlement. See Johnson v. Skarvan, 992 So.2d 873 (Fla. 5th DCA 2008).

REVERSED and REMANDED.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    William Malcolm FABRE, Appellant, v. Stephanie M. FABRE and Kevin Michael O’Keefe, Appellees.
    No. 5D11-1038.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.
    Clyde M. Taylor, III, of Taylor & Taylor, PA, St. Augustine, for Appellant.
    Scott Ellerin of Ellerin Hutchinson, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Appellant challenges the dismissal of his petition to establish paternity of his biological child. The petition alleged that Appellant and Stephanie M. Fabre conceived the child while Ms. Fabre was married to, but separated from, Kevin O’Keefe. Appellant is apparently now married to and living with Ms. Fabre, who has primary residential responsibility for the child pursuant to a final judgment dissolving her marriage to Mr. O’Keefe. Ms. Fabre agrees with and consented to the petition to establish paternity, but Mr. O’Keefe objected and moved to dismiss the petition. The trial court dismissed the petition, concluding that the final judgment dissolving the marriage of Ms. Fabre and Mr. O’Keefe established that Mr. O’Keefe was the father and was res judicata. This was error because Appellant was not a party to that action. Van Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983). Mr. O’Keefe nevertheless argues that we should affirm because Appellant did not make sufficient allegations to establish standing under a best-interests-of-the-child analysis. We decline to affirm on this basis. Appellant attempted to amend his petition to allege standing but the petition was dismissed before the amendment was considered. Appellant should be permitted to amend the petition to assert standing. See G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla. 5th DCA 1997).

REVERSED AND REMANDED.

SAWAYA, TORPY and LAWSON, JJ., concur.


text:
    ORANGE COUNTY, Florida, Appellant, v. Beryle S. BUCHMAN, et al., Appellees.
    No. 5D11-654.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2012.
    Jeffrey J. Newton, County Attorney, Henry M. Brown, Assistant County Attorney, and Edward Chew, Senior Assistant County Attorney, Orlando, for Appellant.
    Tracy A. Marshall and Rachael M. Crews of Gray Robinson, P.A., Orlando, for Appellees.
   PER CURIAM.

This is an appeal of the judgment for costs in an eminent domain proceeding. Because we reversed in part the underlying judgment and remanded it for a new trial, we reverse and remand the judgment under appeal. See Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA.1999).

REVERSED AND REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Kenneth Duwayne WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6203.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    Bonhomme BEAUSSICOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3849.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Bonhomme Beaussicot appeals his conviction and sentence for sexual battery with a deadly weapon and false imprisonment. The trial court permitted the State to introduce Williams rule evidence, through the testimony of M.C., in the M.B. trial for the purpose of showing appellant’s alleged common plan or scheme and to rebut his defense of consent. We hold that this was error and reverse and remand for a new trial.

The M.B. incident

The charges stemmed from an incident involving appellant and M.B., the alleged victim. At trial, M.B. testified that on the night of the incident, she left work at 5:00 p.m. and met her former boyfriend for dinner and drinks. She left dinner around 9:00 p.m. and spent another hour or so visiting other friends. M.B. then walked to a nearby gas station to use a pay phone. While at the gas station, she saw appellant drive past her in a white van and circle back. She had been a prostitute in the past and thought he was looking for a “date.” She talked to appellant through the passenger window and agreed to have sex with him for $20. She got in the van, and appellant told her he was going to park somewhere private.

Thereafter, appellant stopped and told M.B. to get in the back of the van. When M.B. asked for the money first, appellant pulled out a gun and told her to do whatever he said. M.B. complied. Appellant then forced M.B. to have sexual intercourse. He kept the gun by his side during the sexual episode. Appellant then ordered M.B. to get out of the van, told her to walk forward, and told her that if she yelled out, he would shoot her in the back.

The M.C. incident

The Williams rule evidence at issue involved an incident in which appellant allegedly sexually battered another woman, M.C., approximately one week after the attack on M.B. M.C. described the attack as follows. M.C. was walking home from the library, at around 7:00 p.m., when she observed a white van parked on the corner of an intersection. The driver of the van, who turned out to be appellant, approached M.C. for directions. When she turned her back to point out the directions, appellant pointed a gun at her and told her to get in the van. She got in the passenger seat of the van. Appellant then demanded money. M.C. offered all the money she had. Appellant said that was not enough and asked for bank or credit cards. Appellant then drove a short distance, pulled into an alley, and stopped the van. He told M.C. to get in the back of the van and to take her clothes off. She complied. Appellant then put the gun between the seats and forced M.C. to have sexual intercourse with him.

After getting dressed, appellant told M.C. that they were going to a bank. The gun was still on the floor within appellant’s reach. When they arrived at the bank, he gave M.C. back her bank card and walked with her to the automated teller machine with the gun pointed at her. M.C. withdrew $460, which she gave to appellant. When they got back in the van, appellant asked her where she lived and dropped M.C. off near her home. He told her to walk straight and instructed her not to look back.

The jury found appellant guilty as charged, and the trial court adjudicated him guilty in accordance with the verdict. This appeal followed.

This court reviews a trial court’s ruling on the admissibility of Williams rule evidence for abuse of discretion. McWatters v. State, 36 So.3d 613, 628 (Fla.2010). The codification of the Williams rule provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2010). On appeal, this court “considers both similarities and dissimilarities between the collateral crimes and the charged offense when reviewing whether ‘a sufficiently unique pattern of criminal activity [justifies] admission.’ ” McWatters, 36 So.3d at 627 (quoting Peek v. State, 488 So.2d 52, 55 (Fla.1986)).

To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.... In addition to the above requirements, the evidence must be relevant to a material fact in issue such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident.

Macias v. State, 959 So.2d 782, 784 (Fla. 4th DCA 2007) (quoting Heuring v. State, 513 So.2d 122, 124 (Fla.1987)).

In McWatters, the supreme court affirmed the trial court’s admission of collateral crimes evidence:

As in Williams,[ ] we find that the evidence in this case established that McWatters likewise employed a common plan or scheme to gain access to his victims. McWatters knew each of his victims. On the nights of the attacks, he engaged in conversation with the women in public settings but offered them either drugs or a shower to convince them to leave the public settings and accompany him to dark, secluded locations. He refrained from attacking the victims until they reached that secluded location ....
... The crimes occurred from around March 28, 2004, through May 31, 2004, within three miles of one another. The victims were all white women and were known to have substance abuse problems. The attacks all occurred at night in dark, secluded areas. The victims were all found nude from the waist down, with their upper clothing pushed up into a similar position, and the cause of death in each case was manual strangulation. Each of the women was found near where she was last seen walking with McWatters, and an effort had been made to conceal each body.

36 So.3d at 628-29.

In this case, we acknowledge that there are similarities between the M.B. and M.C. incidents: Appellant’s initial contact with both victims was consensual; appellant forced both victims to have sex -with him at gun point; and both sexual batteries took place inside appellant’s van in the same general vicinity. However, we agree with appellant that the two incidents were not “strikingly similar” enough to warrant admission of the M.C. incident as Williams rule evidence in the M.B. trial.

First, in contrast to Williams and Crump, the victims were not strikingly similar: M.B. was a prostitute (or at least, she was prostituting on the night in question); M.C. was not. Second, appellant’s method of approaching each victim — and getting them into his van — was different in both instances: M.B. initiated contact with appellant, while he was in his van, while appellant initiated contact with M.C., by asking her for directions while he was outside of his van. Thus, the evidence shows that M.B. voluntarily entered the van, while M.C. did not. Finally, the two incidents are different when examining what transpired once each victim entered the van. Regarding M.B., appellant immediately refused to pay her for sex, and instead, forced her to have sex by threatening her with a gun — he did not rob, or attempt to rob, her. In contrast, upon M.C. entering his van, appellant immediately attempted to rob her; it was not until after M.C. revealed that she had only $10-$15 that appellant forced her to have sex with him.

The trial court relied on Conde v. State, 860 So.2d 930 (Fla.2003). We find Conde distinguishable. Unlike this case, the collateral crimes admitted over defense objection in Conde were “strikingly similar”: (1) Each victim was a prostitute who worked within a limited area and was killed by strangulation late at night; (2) each body was found within a small radius of Conde’s home, re-dressed and face down in a seemingly posed position; (3) the lividity patterns of each body indicated it had been initially on its back and then turned face down; (4) matching fiber, tire, DNA, and semen evidence was found on many of the bodies; and (5) the word “third” was written on the third victim, indicating the serial nature of the crimes. Id. at 944. We find the facts of this case to be more like Helton v. State, 365 So.2d 1101, 1102 (Fla. 1st DCA 1979) (“The only similarities between the two incidents are that they occurred in wooded areas, the victims allegedly did not consent to the encounters, and the victim in each case hailed a passing car for help. There are numerous dissimilarities.”).

We also agree with appellant that the trial court erroneously relied on the fact that appellant wiped himself with the victims’ clothing, and the fact that appellant did not use a condom with either victim during sex. The fact that appellant wiped himself clean with the victims’ clothing after he committed the sexual batteries does not demonstrate a common scheme or plan to lure the women into his van. Likewise, the fact that appellant did not use a condom with either victim during sex also is not indicative of consent or a lack thereof and does not tend to show a common scheme or plan utilized by appellant to gain access to the women in order to sexually abuse them.

“Erroneous admission of collateral crimes evidence is presumptively harmful.” Czubak v. State, 570 So.2d 925, 928 (Fla.1990) (citing Castro v. State, 547 So.2d 111, 116 (Fla.1989)). On this record, the State has not proved that the erroneous admission of M.C.’s testimony was harmless beyond a reasonable doubt.

Reversed.

WARNER, POLEN and DAMOORGIAN, JJ., concur.

      . Williams v. State, 110 So.2d 654, 659-60 (Fla.1959).

      . Williams v. State, 621 So.2d 413 (Fla.1993).

      . Crump v. State, 622 So.2d 963 (Fla.1993).

      . In Williams, the supreme court disagreed with Helton to the extent that "other crime evidence is never relevant to the issue of consent.” Williams, 621 So.2d at 416. However, the Williams court approved of the result reached in Helton: "[In Helton], there was nothing about the prior incident other than the fact that the woman involved did not consent that shed any light on whether the victim of the charged crime consented.” Id.


text:
    Jose Rene CANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5567.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2012.
    Nancy A. Daniels,' Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences for lewd and lascivious molestation (Count 1) and sexual battery (Count 3). We reverse Appellant’s conviction and sentence for sexual battery (Count 2). As the State concedes, its evidence was insufficient to support that conviction. See Beber v. State, 887 So.2d 1248 (Fla.2004).

AFFIRMED in part and REVERSED in part.

DAVIS, CLARK, and MARSTILLER, JJ., concur.