author: ORFINGER, C.J.

text:
    Jesse E. LARAMEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3865.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, C.J.

Jesse E. Laramee challenges his multiple convictions of sexually-related felonies, claiming that the trial court erred by failing to hold Nelson or Faretta hearings. We reverse.

The trial court initially appointed the public defender to represent Mr. Laramee. However, as a result of the public defender’s conflict of interest, attorney Edwin Tilton was appointed to represent Mr. Laramee. Several weeks before the scheduled trial, Mr. Laramee sent a letter to the trial judge, complaining that Mr. Tilton only met with him once and disregarded his direction to depose twelve specifically named people. Mr. Laramee attached a copy of a previously filed Florida Bar complaint, which alleged that Mr. Til-ton’s representation lacked competence because, in addition to meeting with him only once, Mr. Tilton said that he was not going to do any work on the case, refused to investigate alleged exculpatory evidence, and discussed the amount of money that he expected to bill the state for his representation. Mr. Laramee also attached a statement to his bar complaint, alleging that fellow inmate “Steven Haecky” (also referred to in the record as “Haecker” and “Hager”) confessed to his cellmate Hugh Riddick, that he and the victim’s mother had molested the victim. The letter claimed that Mr. Laramee informed Mr. Tilton about Mr. Haecky’s alleged confession, but Mr. Tilton refused to explore the issue.

At a pre-trial conference held one week before trial, the following exchange transpired:

MR. LARAMEE: Your Honor, may I say something?
THE COURT: Mr. Laramee, your attorney is on the phone.
MR. LARAMEE: I understand that, Your Honor. I got to address these issues with my — about my attorney. I’ve had him four and a half months and this guy has only seen me five minutes in jail, July 20th, that’s it. I got seven days to go to trial. He told me that he had a case last year with you in the summer and that you paid him $15,-000 — he did a bill and submitted it to you and you paid off on the bill after-wards at the trial, Your Honor.
And my people have called him and he gave inside details of my case to my people. I didn’t give him no privilege— no permission, Your Honor, to talk to these people.
THE COURT: Anything else, Mr. Laramee?
MR. LARAMEE: Yes, Your Honor. I’m going pro se — I’m filing. I refuse to go to court with somebody who ain’t seen me at all, and I’m supposed to go to trial and I have my life on the line.
THE COURT: Okay. Well your decision, your, quote, pro se decision to fire him is denied, and I’ll tell you why. It’s because there is a series of cases that say when we’re on the eve of trial and there is a request like that and nothing more than that, there is nothing more, you haven’t filed anything, there is nothing more than a statement here in the courtroom in the presence of your attorney of overall — or some dissatisfaction of your present status, is that is an insufficient reason to think that you can represent yourself pro se.
So, that having been said — and we are on the eve of trial — so that having been said, Mr. Tilton, we’ll see you on Monday morning at 8:80 to begin the jury selection.

On the morning of trial, the State moved to prohibit any mention of Mr. Haecky’s alleged statement to Mr. Riddick. The State asserted that Mr. Haecky was represented by counsel, would therefore invoke his Fifth Amendment privilege against self-incrimination if called as a witness, and, as a result, Mr. Riddick’s testimony would be hearsay. The trial court agreed that the defense could not call Mr. Haecky to the witness stand with knowledge that he would assert his Fifth Amendment right. The trial proceeded, and Mr. Lara-mee was found guilty on all charges and sentenced to multiple terms of life in prison.

Mr. Laramee first argues that the trial court erred in failing to conduct a proper Nelson inquiry before denying his request to discharge counsel. When a defendant complains that his appointed counsel is ineffective, the trial court is required to make a sufficient inquiry to determine whether appointed counsel is rendering effective assistance to the defendant. See Howell v. State, 707 So.2d 674, 680 (Fla.1998); Hardwick v. State, 521 So.2d 1071 (Fla.1988), superseded by rule, Fla. R.Crim. P. 3.111(d)(3), on other grounds as recognized in McKenzie v. State, 29 So.3d 272, 281 (Fla.2010). However, to trigger a hearing, a defendant must do more than merely express general dissatisfaction with his or her attorney. Morrison v. State, 818 So.2d 432, 440 (Fla.2002). A Nelson hearing is required only when the defendant makes a “clear and unequivocal” statement that he wishes to discharge appointed counsel, the discharge request is based on a claim of incompetence, and the alleged ineffectiveness arises from counsel’s current representation. Blanding v. State, 939 So.2d 173, 175 (Fla. 1st DCA 2006). Here, Mr. Laramee’s requests satisfied each prong of the Blanding test. The trial court should have conducted a full Nelson hearing.

Mr. Laramee next argues that the trial court erred in failing to conduct a Faretta hearing after his request to represent himself. We agree. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court explained that the Sixth Amendment grants each criminal defendant the right of self-representation, irrespective of consequences. State v. Bowen, 698 So.2d 248, 250 (Fla.1997). The choice to invoke this right “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’” Faretta, 422 U.S. at 834, 95 S.Ct. 2525 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). Before the trial court is required to conduct a hearing to decide whether to permit self-representation, the defendant’s request for self-representation must be clear and unequivocal. McCray v. State, 71 So.3d 848, 864 (Fla.2011); State v. Craft, 685 So.2d 1292, 1295 (Fla.1996) (“[O]nly an unequivocal assertion of the right to self-representation will trigger the need for a Faretta inquiry.”). Here, during the pre-trial hearing, Mr. Laramee stated, “I’m going pro-se — I’m filing. I refuse to go to court with somebody who ain’t seen me at all.... ” This statement was an unequivocal and clear request for self-representation and the court should have conducted a Faretta hearing.

The trial court denied Mr. Laramee’s request based on its conclusion that his dissatisfaction with counsel, expressed on the “eve of trial,” was an insufficient basis for him to invoke his right of self-representation. However, a defendant need not articulate a reason to invoke his right of self-representation. Nor was Mr. Laramee’s request untimely, as it was made one week before trial. While a defendant’s request for self-representation may be summarily denied if not timely asserted, ordinarily, a request is timely if made prior to the trial’s commencement. Compare Pasha v. State, 39 So.3d 1259, 1262 (Fla.2010) (reversing convictions where trial court denied defendant’s self-representation request made just prior to jury selection), with United States v. Young, 287 F.3d 1352 (11th Cir.2002) (holding defendant’s request for self-representation untimely per se if made after jury empanelled), United States v. Kosmel, 272 F.3d 501, 506 (7th Cir.2001) (holding that once trial begins, court retains discretion to deny right of self-representation after balancing interest of defendant against potential disruption of proceedings), United, States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986) (holding that after trial begins, right of self-representation is subject to trial court’s discretion, which requires balancing test), and Lyons v. State, 437 So.2d 711, 712 (Fla. 1st DCA 1983). The court was required to hold a Faretta hearing, and its failure to do so requires reversal.

Finally, we address one remaining issue that may present itself on retrial. Mr. Laramee should be given the opportunity to present all relevant exculpatory evidence. We understand that if called to testify, Mr. Haecky may invoke his Fifth Amendment right and refuse to testify. However, until he does so, outside the presence of the jury, neither the trial court, nor counsel, can invoke that right for Mr. Haecky, as the privilege is strictly a personal one that only he can assert. Nor should the court assume he would do so, absent a stipulation of the parties or an unequivocal statement to that effect from Mr. Haecky. See Jones v. Stoutenburgh, 91 So.2d 299 (Fla.1956); Perez v. State, 673 So.2d 160 (Fla. 4th DCA 1996). Should Mr. Haecky invoke his right against self-incrimination, Mr. Riddick’s testimony still may be admissible under the statement against interest hearsay exception, as Mr. Laramee argues on appeal. See Masaka v. State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009) (reiterating four-part test for admissibility to include; (1) whether declarant is unavailable, and if so, (2) whether statements are relevant, (3) whether statements tend to inculpate de-clarant and exculpate defendant, and (4) whether statements are corroborated); Henyard v. State, 992 So.2d 120 (Fla.2008) (holding declarant is “unavailable,” for purposes of hearsay exception for declaration against interest, if trial court sustains assertion of Fifth Amendment privilege against self-incrimination).

REVERSED and REMANDED for a new trial.

MONACO and COHEN, JJ. concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The record is unclear as to whether Mr. Tilton ever spoke to Mr. Haecky or Mr. Rid-dick.

      . The record suggests that the trial court only considered the statements that Mr. Laramee made in court when declining his request to discharge Mr. Tilton. However, the trial court should also have considered Mr. Laramee's complaint letter. Logan v. State, 846 So.2d 472, 476-77 (Fla.2003).

      . The failure to conduct a Nelson hearing is reversible error, Finfrock v. State, 84 So.3d 431 (Fla. 2d DCA 2012), but subject to a harmless error analysis. Marti v. State, 756 So.2d 224 (Fla. 3d DCA 2000). However, because we are reversing on other grounds, we need not engage in that analysis.

      . Florida law is clear that a trial court's failure to hold a Faretta hearing is not subject to a harmless error analysis, and is per se reversible error. See Tennis v. State, 997 So.2d 375, 377-80 (Fla.2008); State v. Young, 626 So.2d 655, 657 (Fla. 1993) ("[T]he United States Supreme Court decision in Faretta and our rule 3.111(d) require a reversal when there is not a proper Faretta inquiry.”); Rodriguez v. State, 982 So.2d 1272, 1274 (Fla. 3d DCA 2008) (holding that court's failure to conduct Faretta hearing was reversible error);
        Goldsmith v. State, 937 So.2d 1253, 1256-57 (Fla. 2d DCA 2006) (holding that denial of right of self-representation is not amenable to harmless error analysis).

      . We recognize that it is error for a trial court to permit a witness who is expected to invoke the Fifth Amendment to be allowed to testify in the jury’s presence solely for that purpose. Apfel v. State, 429 So.2d 85, 86-87 (Fla. 5th DCA 1983). Here, however, there is no basis in the record for the court to assume that Mr. Haecky would invoke that right. See United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973) ("Obviously, before excluding a witness, the court must first establish reliably that the witness will claim the privilege and the extent and validity of the claim.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael Scott TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2084.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael S. Tyler appeals his sentence imposed following a violation of probation. Tyler, who had previously waived his right to counsel, asserts he is entitled to a new sentencing hearing because the offer of counsel was not renewed. The State properly concedes error. Harris v. State, 79 So.3d 879 (Fla. 5th DCA 2012); Hays v. State, 63 So.3d 887 (Fla. 5th DCA 2011).

Accordingly, we vacate the sentence and remand for a resentencing hearing consistent with this opinion.

SENTENCE VACATED and REMANDED.

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


text:
    Jason Paul JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3015.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Frances Martinez, of Escobar & Assoc., P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

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


author: GRIFFIN, J. MONACO, J.,

text:
    Kimberly PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3065.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Kepler B. Funk, Keith F. Szachacz and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC., Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Kimberly Page [“Appellant”], seeks review of the trial court’s summary denial of Appellant’s rule 3.850 motion for postconviction relief. We agree that summary affirmance of claims three and four was proper; however, we conclude that Appellant is entitled to an evidentiary hearing on claims one and two. To be sure, as the trial court said, Appellant was aware that if her attorneys were unable to establish a legal ground for downward departure, her prison sentence would be thirty-seven years instead of the four-to-ten-year plea offer from the State. She was, however, entitled to be competently advised about the prospects of proving the downward departure ground, and she was entitled to competent representation in the sentencing hearing. There is enough in the record to warrant an evidentiary hearing to determine the facts.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, J., concurs.

MONACO, J., dissents, with opinion.

MONACO, J.,

dissenting.

I respectfully dissent.

My reading of the case is that the trial judge, who was not the judge who considered the appellant’s 3.850 motion, went to extraordinary lengths to warn the appellant that there would be no guarantees that she would receive a downward departure sentence, and that she should not think otherwise. She told her, moreover, that she should carefully consider the plea offer from the State, as an alternative to pleading open to the court:

So, I couldn’t give you any more than ten years, my hands would be tied if I accepted the plea, but I couldn’t give you any less than four years. But that limits it. That is the parameter that I am under.

A short time later the appellant’s counsel said to the court, “I submit that we are well able to prove that the facts — the facts supporting the downward departure.” The trial judge then cautioned that it is “very, very important” for her to understand that if her counsel did not prevail on the issue of a downward departure, the court would be compelled to give her at least the minimum calculated sentence. “I mean, that is in essence she would be getting out when she is like 70 years old if I got my math ... correct.” After gaining a positive response to the question of the appellant, “Do you understand that,” the judge spoke prophetically:

Okay, I don’t want there to be any surprises, like I never thought she could do that. I am going to have to do it unless there is a legal reason for departure. And even then, if I find it and the State appeals me, the appellate court can reverse me.... ”

The evidence did not develop as the appellant and her counsel thought it might and the court found no reason to downwardly depart.

While I fully understand that the minimum sentence for the appellant’s crime is exceedingly harsh, it seems to me that she was fully apprised of the risks, elected to roll the dice, and lost. True enough, the evidence from the witnesses called to establish the downward departure did not develop as the appellant and her counsel expected; but that risk always exists when dealing with live testimony. I do not think the record supports the conclusion that counsel was ineffective. I would, therefore, affirm.


text:
    Hector RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3356.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Hector L. Rivera, Orlando, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Affirmed. See Flowers v. State, 899 So.2d 1257 (Fla. 4th DCA 2005) (holding that when, as in the instant case, the trial court orders that probation is to commence after the defendant’s release from prison, the split sentences of incarceration and probation imposed in multiple counts do not overlap and the sentence is legal).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


text:
    George Harold LINKEL, Juan Benitez, Minata Elizabeth Nyanankpe, Tiffiny Samenfink, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D-11-4143, 5D-11-4181, 5D-11-4354, 5D-11-4581.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

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


text:
    Robert J. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-848.
    District Court of Appeal of Florida, First District.
    June 18, 2012.
    Robert J. Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The summary denial of appellant’s motion for postconvietion relief is reversed because the trial court failed to attach the portions of the record it relied upon in denying the motion. See Isaac v. State, 45 So.3d 42 (Fla. 1st DCA 2010). On the remand, the trial court is directed to attach the relevant portions of the record to its order. Id.

REVERSED and REMANDED with directions.

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


author: WARNER, J.

text:
    CRASTVELL TRADING LIMITED, Appellant, v. Michel L. MARENGERE, Bozel, LLC, and Bozel S.A., f/k/a Argoline S.A., Appellees.
    No. 4D10-815.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      G. Donovan Conwell, Jr. and Dineen Pashoukos Wasylik of Conwell Kirkpatrick, P.A., Tampa, for appellant.
    Kim Douglas Sherman of Sherman Law Offices, Chartered, Fort Lauderdale, for appellee Michel Marengére.
   WARNER, J.

Appellant, Crastvell Trading Ltd., timely appeals: 1) an order dismissing its complaint based upon forum selection clauses in loan agreements and a Deed of Guarantee; and 2) the corresponding denial of Crastvéll’s motion for rehearing and for leave to amend its complaint. Because the appellee was not a party to the loan agreement, he could not enforce the forum selection clause in those contracts which specifically precluded non-parties from such relief. As to the Deed of Guarantee, the contract specifically permitted the lender to pursue relief in any jurisdiction. Further, the court erred in denying the motion for rehearing where Crastvell had voluntarily dismissed those causes of action relying on the loan agreement prior to the involuntary dismissal entered by the court, thus eliminating causes of action based upon the mandatory forum selection clause.

Crastvell Trading, Ltd., filed a complaint against three defendants: Bozel S.A., a Luxembourg entity; Bozel, LLC, a Florida limited liability company based in Boca Raton; and Michel Marengére, an individual who allegedly “owns and controls” Bozel S.A. and Bozel, LLC through another entity. Although Crastvell alleged multiple claims, the complaint generally alleged that the defendants fraudulently induced Crastvell to loan several million dollars to Bozel S.A.; that Bozel S.A. failed to repay those loans; and that Bozel, LLC, breached its agreement to guarantee those loans after Marengére fraudulently diverted funds from Bozel, LLC.

Crastvell and another entity loaned Bo-zel S.A. substantial monies so that Bozel S.A. could acquire two companies. According to the complaint, Marengére made fraudulent representations to induce Crastvell to loan in excess of $13.5 million to Bozel S.A. Three separate agreements evidenced the loans.

To guarantee the loans made pursuant to the loan agreements, Bozel S.A. and its subsidiaries, including Bozel, LLC, entered into a Deed of Guarantee and Indemnity. Allegedly, Marengére then diverted millions of dollars of funds from Bozel, LLC’s, bank accounts into other entities in which he had a financial interest, thus converting that money for his own personal benefit. This, in turn, impaired the value of Crastvell’s security interest and prevented Bozel, LLC, from honoring its guarantee to repay the loans. The complaint specifically alleged that Marengére created Bozel S.A. and Bozel, LLC, for the purpose of obtaining the loans and then making the fraudulent transfers for his personal benefit and profit. It also alleged that Bozel S.A. and Bozel, LLC, were the alter egos of Maren-gére.

After Crastvell stopped receiving payments due on the loans, it filed this lawsuit in Palm Beach County, Florida. Crastvell brought claims against all three defendants for fraudulent inducement, constructive fraud, and conversion. In addition, Crastvell raised a claim of civil theft against Marengére and Bozel, LLC. Crast-vell also sued Bozel S.A. for breach of the loan agreements. Finally, Crastvell sued Bozel S.A. and Bozel, LLC, for breaching the Deed of Guarantee, which had guaranteed the loans. Crastvell served its complaint upon Bozel, LLC, and Marengére, but did not serve Bozel S.A. in this case. During the pendency of the instant lawsuit in Florida, Crastvell concurrently sued Bo-zel S.A. in England for defaulting on the loan agreements.

After Crastvell filed the complaint, Mar-engére filed a verified motion to dismiss, raising a litany of grounds in support. Relevant to this appeal, Marengére argued that venue was improper in Florida because the forum selection clauses in the loan agreements provided that “exclusive jurisdiction” of any dispute rested with the courts of England.

Each of the loan agreements contained the following clause pertaining to choice of law and forum selection: “This Agreement is governed by and is to be construed in accordance with English law and the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement).” The loan agreements, however, provided that “[a] person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this shall not affect any right or remedy of a third party which exists or is available apart from the Act.” In addition, paragraph 6.3 of the amended version of the first Mezzanine Loan Agreement stated the following:

None of the terms of this Deed are enforceable by any person and no person shall enjoy the benefit of any term of this Deed other than:
6.3.1 the named parties to it; and
6.3.2 any person to whom the Secured Parties have assigned their rights or any part of their rights in accordance with the terms of this Deed.

Marengére was not a party to any of the agreements, nor did Bozel S.A. assign any rights in accordance with the loan agreement.

The Deed of Guarantee also contained a forum selection clause, which provided as follows:

21.1.1 This Deed is governed by, and shall be construed in accordance with, English law.
21.1.2 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”).
21.1.3 The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary.
21.1.4 This Clause 21.1.4 is for the benefit of the Lenders only. As a result, no Lender shall be prevented from taking proceedings relating to a Dispute in any other courts -with jurisdiction. To the extent allowed by law, the Lenders may take concurrent proceedings in any number of jurisdictions.

Marengére was not personally a party to the Deed of Guarantee.

At a hearing on the motion to dismiss, the court stated that it would “grant the motion to dismiss based upon the clear contractual terms of the exclusive jurisdiction. All this reads relating to this loan transaction is in England.” A few days after the hearing and prior to entry of the final order, the court presiding over Crast-vell’s case in England entered judgment in favor of Crastvell. The English court ruled that Bozel S.A. was in default under the loan agreements and owed Crastvell in excess of $14.5 million, plus interest and costs. Crastvell filed a notice of voluntary dismissal without prejudice of its claims against Bozel S.A. in the instant case. That same day, the trial court entered a final order of dismissal, finding that “the plaintiff is bound by the mandatory venue provisions of its contracts in issue” and that “[t]he plaintiffs claims, if they may be brought at all, must be litigated in England and not in the [Sjtate of Florida.”

Crastvell filed a motion for rehearing, arguing that, because of its voluntary dismissal as to Bozel S.A., the trial court’s reliance on the venue provision of the loan agreement was inapplicable, because now the loan agreement was not part of the case. The only venue clause left is the one in the Deed of Guarantee, which expressly gives Crastvell the right to bring an action in any court with jurisdiction. The motion also requested leave to file an amended complaint, attaching a proposed amended complaint and arguing that Crastvell could state claims against Marengére and Bozel, LLC “which are not brought in connection with or based upon the loan agreements with Bozel S.A.” Without explanation, the trial court denied rehearing. This appeal follows.

During the pendency of this appeal, Bo-zell, LLC, filed for bankruptcy. This resulted in an automatic stay of these proceedings. Eventually, Bozell, LLC, was released in bankruptcy from this claim by Crastvell. However, the claims remain against Marengére, and we now dispose of this appeal as to him.

Where an order of dismissal is based entirely on a forum selection clause in the parties’ contract, the standard of review is de novo. See Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 630 (Fla. 1st DCA 1999). Forum selection clauses are provisions of contracts, and where freely entered should be honored. Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986). Courts must recognize the legitimate expectations of contracting parties. Id. Manrique adopted the view expressed by the United States Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 8-9, 13, 92 S.Ct. 1907, 1912-13, 1914-15, 32 L.Ed.2d 513 (1972), that freely negotiated contracts should be given full effect. See also Maritime Ltd. P’ship v. Greenman Adver. Assocs., Inc., 455 So.2d 1121, 1123 (Fla. 4th DCA 1984) (likewise adopting this view).

Like any other contract, the loan agreements and Deeds of Guarantee should be construed according to their terms. The polestar guiding the court in the construction of a written contract is the intent of the parties. Bombardier Capital Inc. v. Progressive Mktg. Grp., Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001). Where the language of the contract is clear and unambiguous, the parties’ intent must be garnered from that language. Id. “Every provision in a contract should be given meaning and effect and apparent inconsistencies reconciled if possible.” U.S.B. Acquisition Co. v. Stamm, 660 So.2d 1075, 1080 (Fla. 4th DCA 1995) (citations omitted). “It is a well-settled principle of contract law that a contract provision specifically dealing with a particular subject matter controls over a provision generally dealing with that same subject matter.” Bridges v. City of Boynton Beach, 927 So.2d 1061, 1063 (Fla. 4th DCA 2006) (internal quotation marks and citation omitted).

Where the terms are clear and unambiguous, their plain meaning should control. Amquip Crane Rental, LLC v. Vercon Constr. Mgmt., Inc., 60 So.3d 536, 539 (Fla. 4th DCA 2011). Here the loan agreement unequivocally provides that no one who is not a party may enforce any of the provisions of the contract. By its all-encompassing language, that would include the forum selection clause. Based upon the clear language of the loan agreements, Marengére, a non-party to the loan agreements, may not enforce the forum selection clause.

Marengére contends, however, that he has standing to enforce the forum selection clause because he is closely related to Bozel S.A., and in fact, according to Crastvell, its alter ego. Thus, relying on cases such as Deloitte & Touche v. Gencor Indus., Inc., 929 So.2d 678, 683 (Fla. 5th DCA 2006), he claims that he may demand compliance with the forum selection clause. In Deloitte, the court enforced a forum selection clause against a non-signatory to the contract, because “there exists a close relationship between the non-signatory and signatory and the interests of the non-signatory are derivative of the interests of the signatory.” Id. Likewise, in Citigroup Inc. v. Caputo, 957 So.2d 98, 102 (Fla. 4th DCA 2007), we permitted a non-signatory to a contract to enforce a forum selection clause, because the non-signatory was integrally related to the party.

Neither of these cases, nor any other case that we could find, had a contractual provision precluding a non-party from enforcing any term of the contract, as does this contract. Because the non-signatory’s rights must derive from the contractual provisions themselves, where the contract specifically states that a non-party derives no rights, we would be interfering with a contract which was freely negotiated in order to award rights (and responsibilities) not intended by the contract. Under the specific terms of this contract, we conclude that Marengére did not have standing to enforce the forum selection clause of the loan agreement.

As to the Deed of Guarantee, the forum selection clause in that agreement specifically permits Crastvell to bring suit in any court having jurisdiction. Therefore, the forum selection clause applies only to suits by the debtor against the lender, not the other way around. Because this is a suit by the lender, Crastvell may, according to the terms of the contract, bring suit where jurisdiction may be obtained over the defendants.

Finally, the court also erred in denying the motion for rehearing. Prior to entry of the order of dismissal, Crastvell’s voluntary dismissal of Bozel S.A., the party to the loan agreements, removed those causes of action implicating the loan agreements themselves. Crastvell sought to amend its complaint to allege causes of action not involving the loan agreements. Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile. N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999).

Here, Crastvell had not amended its complaint prior to its request for leave to amend in connection with its motion for rehearing. In addition, Crastvell filed a proposed amended complaint which did not name Bozel S.A. as a party and which was not based on the loan agreements. The proposed amended complaint also dropped the claim for fraudulent inducement to enter the loan agreement. Instead, the amended complaint alleged various claims against Marengére, such as for breach of the guarantee agreement and for claims in connection with the alleged fraudulent transfers that prevented Bozel, LLC, from complying with the guarantee. Thus, in this case, leave to amend should have been granted, as the privilege had not been abused, there was no prejudice to the opposing party, and amendment would not have been futile.

Marengére’s only substantive response is that the trial court did not abuse its discretion because the motion for leave to amend was made after the final order of dismissal was entered. However, even after a final order has been entered, a party may seek leave to amend a complaint in connection with a motion for rehearing. See Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 422-23 (Fla. 5th DCA 2003) (holding that trial court abused its discretion in denying plaintiffs motion for rehearing and for leave to amend complaint after final summary judgment had. been entered).

We reverse the order dismissing this case based upon the forum selection clause. We remand for further proceedings and amendment of the complaint as requested by Crastvell as to Marengére only.

POLEN and CONNER, JJ., concur.

      . In addition, Bozel, LLC, filed a motion to quash service, but that was never ruled upon by the trial court.

      . Marengére did, however, sign the Deed of Guarantee as the director of both Bozel S.A. and Bozel, LLC.

      . The complaint included causes of action against Bozell, LLC. Because of the bankruptcy proceedings, those parts of the proceedings have been discharged.


author: STEVENSON, J. WARNER, J.,

text:
    Kay CULBERTSON, Appellant, v. Victor Brad CULBERTSON, Appellee.
    No. 4D11-1658.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Peter Jorgensen, Vero Beach, for appellant.

      No appearance for appellee.
   STEVENSON, J.

This appeal stems from entry of a final judgment of dissolution of marriage between Appellant (“the Mother”) and Ap-pellee (“the Father”). The parties have two minor children, K.C., a girl born in April 1999, and G.C., a boy born in December 2000. The Mother has raised three issues on appeal, alleging that the trial court erred in (1) permitting unsupervised and extended overnight time sharing of the children with the Father; (2) failing to designate the Mother as the parent responsible for the children’s major medical decisions; and (3) failing to specifically determine that a home the Mother brought into the marriage is a non-marital asset and order the Father to execute a quitclaim deed. We affirm as to all claims and write to briefly discuss only the time sharing issue.

This was a very difficult family law case. The trial court was presented with conflicting claims as to whether the Father was capable of providing adequate care to the parties’ daughter and son. The daughter suffers from brittle juvenile diabetes, asthma and damage to her nervous system. The daughter’s condition requires constant monitoring, including frequent insulin calculations and close observation for any, subtle, behavioral changes that indicate the daughter’s blood sugar has reached a dangerous level. When emergencies occur, the daughter requires a large Gluca-gon injection and immediate medical attention in order to save her life. The Mother argued that the Father is not prepared to provide the type of constant care the daughter needs during unsupervised, overnight visitation. The Mother argued that the Father had previously engaged in rough-house play with both K.C. and G.C. which had amounted, in the Mother’s view, to abuse. The Mother urged the trial court to allow the Father only restricted visitation with both children, and no overnight visitation. After considering the evidence, the trial court ordered time sharing with the Father on alternate weekends, from Friday 5:00 p.m. through Sunday 5:00 p.m., and approximately one-half of winter and spring breaks. The parents were to follow the “regular schedule” through the summer.

A trial court’s time sharing determination is reviewed under the abuse of discretion standard of review. See Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010). Restriction of visitation is generally disfavored, unless the restriction is necessary to protect the welfare of the child. See Allen v. Allen, 787 So.2d 215, 217 (Fla. 5th DCA 2001). Judge Kanarek heard extensive testimony concerning the Father’s ability to care for the daughter (“K.C.”) and to attend to her medical condition, and concluded that the evidence was sufficient to show that the Father was “prepared to meet any medical emergency that [K.C.] might have.” Although the Father had never administered Glucagon to K.C. during an emergency, the testimony was that he had been trained in its administration, had been present during the practice sessions involving it, and had been present and helped to hold K.C. while the Mother administered an emergency dose. There was also testimony that the Father had spent extensive time with a diabetic educator to learn how to manage K.C.’s condition. The Father was also trained in using the insulin pump which K.C. used and in calculating her insulin levels. The trial court concluded that “[t]he evidence shows that the father does have experience detecting changes in [K.C.]’s condition and is aware of how to deal with possible emergency changes in her blood sugar and has dealt with such emergencies.” The trial judge noted that the Mother’s primary objection to the Father’s time sharing “revolves around her belief that she needs to be the person constantly monitoring [K.C.].” As for G.C. and K.C., the trial court found that the Father was “not as protective” as the Mother, but there was no evidence that he did not love and care for the children as well.

While we acknowledge certain troubling aspects of the testimony, where the Father had occasionally been insensitive to the needs of the children in the past, we defer to the trial court’s superior vantage point in observing the Father’s sincerity and demeanor on the witness stand as he testified of his resolve to more properly fulfill his parental obligations. We will not disturb the trial court’s decision to award overnight shared visitation absent an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). We find no such abuse in the instant case.

Affirmed.

CONNER, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I dissent. A review of the entire record shows that the court did not have sufficient evidence to show that the father was “prepared to meet any medical emergency that [K.C.] might have,” or that he has extensive time with a diabetic trainer to learn how to manage K.C.’s diabetes. Moreover, the record simply does not support the conclusion that it is in either child’s best interest for the father to have additional timesharing with them at the present time.

The daughter, K.C., was diagnosed with juvenile diabetes when she was two years old. From that point on, she required constant monitoring, all of which was done by the mother. Her glucose levels fluctuate drastically and can crash at any moment, requiring the injection of insulin. These can be presaged by subtle changes in the child’s behaviors, which the mother can detect. Although she attends school, the mother is on call for any problem. The mother brings her home from school early two to three times a week due to her illness. She has 15 treating physicians, all coordinated by the mother.

K.C. carries with her an emergency treatment kit for severe hypoglycemia, which occurs about three to seven times a month. She uses an insulin pump, but she also requires on occasion a large injection which is first mixed in a bottle and then injected with a large needle into her thigh. The father has never administered this injection, although he has held K.C. while the mother has accomplished it. He attended training regarding her diabetes, but the training occurred when she was first diagnosed, nearly eight years earlier. The trainer also came to the home for a short period of time to instruct them in the use of the insulin pump approximately two or three years prior to the hearing. For the past two years he has not been involved in her treatments at all. In fact, when K.C. had an emergency while on a visit with him, he returned her to the mother to handle it.

K.C. has been hospitalized multiple times for her conditions, including for cardiac surgery. Her main treating physicians are located at Holmes Regional in Melbourne, as Indian River Memorial Hospital is not equipped to deal with her conditions. One time while in the hospital with severe ketoacidosis and tachycardia, K.C., who was hooked up to heart monitors and IVs, was crying and screaming that the doctors were trying to kill her. The father reacted by spanking K.C., which was reported by the doctor to the authorities. This has resulted in K.C. being terrified to let her father know that she was in the hospital. At trial the father did not deny spanking his daughter at the hospital.

The father moved to Port St. Lucie, further away from Holmes Regional than the home in Indian River County. The mother expressed grave concerns about his ability to manage her condition and the length of time it would take to get K.C. to Holmes Regional in the event of a glucose crash, which could put the child into danger.

In the two years prior to the final hearing, the children have spent time each weekend with their father but have spent a night with him only twice. The mother, her neighbor, and the mother’s older son (from a different marriage), all testified that the children are afraid of their father, because he is rough with them. Once, the father accidentally broke the younger son’s arm rough-housing with him. The younger son panics over visitation with his father, because his father is rough with him, hitting him with tennis balls so hard that marks are left. The younger son returns from visitation with bruises on his body. Both children have required extensive psychological counseling as a result of the visitation with their father.

One might think that the evidence could lead to the conclusion that the mother was overprotective and blew some of these incidents out of proportion, yet the mother’s concerns as to the safety of the children were not rebutted by the evidence presented. In fact, they were supported by the other witnesses and not contradicted by the father. The trial court’s conclusion that the father had the ability to detect changes to his daughter’s condition is not supported by the record, and the court’s finding that the father has dealt with emergencies is also not supported by the record. The father has been involved in such emergencies only in a supporting role.

Although the court found that the standard parenting plan was in the “best interests of the children,” neither the record nor the court’s findings in the final judgment support that conclusion. The court’s order of immediate weekend visitation under these circumstances, and where the children have not had such visitation in the past, is an abuse of discretion. And while I do not question the court’s finding that the father loves his children, the evidence simply does not support the conclusion that the best interests of the children would be served by increased visitation. I would reverse the parenting plan as to both children and require the court to modify the visitation plan to phase-in increased visitation with the father on a gradual basis with some supervision of the children’s progress as the visitation expands. Their best interests are not served by the court’s current order.


author: JACOBUS, J.

text:
    RSC CORPORATION d/b/a Ace Wrecker and Ace Auto Parts, Appellant, v. HERTZ VEHICLES, LLC, individually, and Hertz Vehicles LLC f/b/o The Bank of New York Mellon Trust Company, NA, Appellees.
    No. 5D10-3978.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      Victor L. Chapman of Barrett, Chapman & Ruta, P.A., Orlando, for Appellant.
    Paul S. Jones and Douglas J. Petro of Luks, Santaniello, Petrillo & Jones, Orlando, for Appellees.
   JACOBUS, J.

RSC Corporation, LLC, d/b/a Ace Wrecker and Ace Auto Parts (collectively “RSC”), appeals a non-final order granting a motion for vehicle release filed by Hertz Vehicles, LLC. On appeal, RSC contends the court erred in returning the vehicle to Hertz pursuant to section 713.78, Florida Statutes. RSC also claims it complied with the notice requirements contained in section 713.78, Florida Statutes. We agree that it was error for the court to release the vehicle to Hertz; however, we must conclude that RSC did not provide proper notice to Hertz as required by statute. Therefore, the non-final order is affirmed in part and reversed in part.

On March 29, 2010, RSC, which is a company regularly engaged in the business of recovering, towing, and storing vehicles, towed a 2009 Chevrolet Tahoe at the request of the Orange County Sheriffs Office after a traffic stop and arrest. The Tahoe, which was titled in the Commonwealth of Virginia, had been stolen and was owned by Hertz. The Tahoe had a first-priority lien on its title in favor of Bank of New York Mellon Trust Company NA. After the Tahoe was stolen from Hertz, its proper Virginia license plate was replaced by a stolen Florida license plate.

After RSC towed the Tahoe to its lot, the Orange County Sheriffs Office provided it with a vehicle disposition report that identified the owner of the Tahoe as EAN Holdings, LLC. However, the Orange County Sheriffs Office obtained the information regarding ownership of the Tahoe by using the stolen tag to determine its VIN number and the owner. Since the tag had been stolen, it was not the correct VIN number for the Tahoe nor was EAN Holdings, LLC, the owner. Subsequently, the correct VIN number for the Tahoe was discovered by RSC, and RSC made two inquiries for identification and other information through the Orange County Tax Collector’s “Tag Talk System,” which accesses data from the Florida Department of Highway Safety and Motor Vehicles. After making the inquiry, RSC was unable to identify a registered owner, insurance company insuring the vehicle, or any lien-holders that might claim an interest in the vehicle. RSC then notified the Orange County Sheriffs Office that it had made a good faith effort to locate the owner, insurer, or lienholder without success. RSC then received a response from the Orange County Sheriffs Office identifying Hertz as the Tahoe’s owner. The response included a Virginia address for Hertz. RSC sent a notice of claim of lien and a notice of proposed sale concerning the Tahoe to Hertz at its address in Virginia and to EAN Holdings, LLC. Both notices were sent by certified mail. RSC was not contacted by anyone, including Hertz or any lienholder, claiming to have an interest in the Tahoe before the sale. RSC sold the Tahoe to Ace Auto Parts, which then sold the Tahoe to Fischer Nissan Dealership. Fischer Nissan sold the Tahoe to an undisclosed third party on May 21, 2010.

On June 30, 2010, Hertz learned RSC had towed the Tahoe. On July 9, 2010, Hertz filed a complaint in county court demanding the return of the Tahoe from RSC and Fischer Nissan. The Tahoe was not returned. Hertz then filed suit in the circuit court against RSC, Ace Auto Parts, Fischer Nissan and the third-party who purchased the vehicle. In its complaint, Hertz alleged: (1) wrongful possession and disposition in violation of section 713.78; (2) unjust enrichment; (3) conversion; and (4) civil theft.

Hertz then filed a motion for release of the vehicle. In that motion, Hertz agreed to pay the amount of the charges for towing and storage of the vehicle. Hertz requested that the county comptroller issue a certificate notifying RSC of the posting of the bond and directing RSC to release the Tahoe to Hertz’s custody. Hertz argued that RSC’s failure to comply with the notice requirements of section 713.78(4)(a) renders null and void the sale at which Ace Auto Parts purchased the Tahoe from RSC. As such, Hertz claimed it was the proper owner of the Tahoe.

The trial court granted Hertz’s motion and ordered the Tahoe to be returned to it. The court found that RSC failed to fully and strictly comply with the notice requirements of section 713.78 and that RSC had not made a good faith effort to determine the owner, any lienholders, or any insurance company as required by statute. The court further found that once RSC knew Hertz was located in Virginia it was required to check with Virginia’s Department of Motor Vehicles pursuant to section 713.78(4)(a) to identify the owner, lienholder, and insurance company. The court ordered RSC to immediately release the Tahoe into Hertz’s custody upon Hertz’s payment of a cash bond.

On appeal, RSC contends it was error for the court to order immediate possession of the Tahoe to Hertz because it complied with all requirements of section 713.78. In particular, RSC claims it complied with the notice requirements located in section 713.78(4).

An appellate court reviews a matter of statutory interpretation de novo. Gomez v. Vill. of Pinecrest, 41 So.3d 180, 185 (Fla.2010). In interpreting a state statute, a reviewing court must examine the plain meaning of the language used in the statute. Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So.2d 787, 790 (Fla. 2d DCA 2005). When the language of a statute is clear and unambiguous, a court may not resort to the rules of statutory construction. Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000). Rather, “the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). A statute is ambiguous if reasonable people “can find different meanings in the same language.” Rollins, 761 So.2d at 297 (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)).

Section 713.78 deals with liens for recovering, towing, or storing vehicles and vessels. When “a person regularly engaged in the business of transporting vehicles ... by ... tow truck removes, or stores a vehicle or vessel upon instructions from ... [a]ny law enforcement agency” he is entitled to “a lien on the vehicle for a reasonable towing fee and a reasonable storage fee.” § 713.78(2)(c), Fla. Stat. It is undisputed that RSC is in the business of regularly transporting vehicles by tow truck and that it was asked by the Orange County Sheriffs Office to transport the vehicle. Thus, this case is governed by section 713.78.

Section 713.78(4) sets forth the notice requirements that a towing company must follow when towing a vehicle. It states, in relevant part, as follows:

(4)(a) Any person regularly engaged in the business of recovering, towing, or storing vehicles or vessels who comes into possession of a vehicle or vessel pursuant to subsection (2), and who claims a lien for recovery, towing, or storage services, shall give notice to the registered owner, the insurance company insuring the vehicle notwithstanding the provisions of s. 627.736, and to all persons claiming a lien thereon, as disclosed by the records in the Department of Highway Safety and Motor Vehicles or of a corresponding agency in any other state.
(b) Whenever any law enforcement agency authorizes the removal of a vehicle or vessel ... the law enforcement agency of the jurisdiction where the vehicle or vessel is stored shall contact the Department of Highway Safety and Motor Vehicles, or the appropriate agency of the state of registration, if known, within 24 hours through the medium of electronic communications, giving the full description of the vehicle or vessel. Upon receipt of the full description of the vehicle or vessel, the department shall search its files to determine the owner’s name, the insurance company insuring the vehicle or vessel, and whether any person has filed a lien upon the vehicle or vessel as provided in s. 319.27(2) and (3) and notify the applicable law enforcement agency within 72 hours. The person in charge of the towing service, garage, repair shop, or automotive service, storage, or parking place shall obtain such information from the applicable law enforcement agency within 5 days after the date of storage and shall give notice pursuant to paragraph (a) ....

§ 713.78(a) & (b), Fla. Stat. (emphasis supplied).

Under subsection (4)(a), a towing company is required to give notice to the owner, insurance company, and all persons claiming a lien, as disclosed by the records of the Department of Highway Safety and Motor Vehicles or a corresponding agency in another state. Subsection (4)(b) applies when a law enforcement agency authorizes the removal a vehicle and contacts a towing company to accomplish that result. Here, the Orange County Sheriffs Office contacted RSC to remove the vehicle. Therefore, it is necessary to first look to subsection (4)(b) when determining the notice requirements RSC was required to follow.

According to subsection (4)(b), the law enforcement agency of the jurisdiction where the vehicle is stored must contact the Department of Highway Safety and Motor Vehicles, or the appropriate agency of the state of registration, and provide the full description of the vehicle. Thereafter, the department must search its files to determine the owner’s name, the insurance company of record, and whether a person has filed a lien on the vehicle. It must then notify the law enforcement agency. The person in charge of the towing company must then contact the relevant law enforcement agency within five days after the date of storage and obtain that information. The towing company must thereafter give notice pursuant to section 713.78(4)(a). Subsection (4)(a) requires the towing company to give notice to the owner, insurance company insuring the vehicle, and all lienholders, “as disclosed by the records in the Department of Highway Safety and Motor Vehicles or of a corresponding agency in any other state.”

Sections 713.78(4)(a) and (b) are clear and unambiguous. When read together, these provisions require law enforcement to initially contact the Department of Highway Safety and Motor Vehicles and relay that information to the towing company. After this has been accomplished, the tow company must comply with subsection (a) and contact the owner, insurer, and any lienholder. Subsection (a) clearly states that the towing company shall provide notice as disclosed by the Department of Highway Safety and Motor or a corresponding agency in another state if necessary. Nothing in subsections (a) or (b) states that a towing company may rely solely on the information provided by law enforcement. Rather, subsection (4)(a) suggests a towing company is required to contact another state, if the car is registered outside of Florida, to determine the identity of the owner, insurer, and any lienholders that may exist.

Here, the evidence establishes that RSC contacted Orange County’s “Tag Talk System.” When RSC contacted the Orange County Sheriffs Office, it identified Hertz as the owner and provided RSC with the address for Hertz, which was located in Virginia. Based on this information, RSC sent a notice of sale to Hertz in Virginia. Even though RSC knew that the vehicle’s owner was located in Virginia, it did not contact any agencies in Virginia to determine whether there was an insurer or a lienholder having an interest in the vehicle. Because this was error under the notice requirements contained in section 713.78(4), the court was correct in finding RSC did not fully comply with the notice requirements of section 713.78. As such, RSC was not entitled to any charges that arose from storing the vehicle. See § 713.78(9), Fla. Stat. (“Failure to make good faith best efforts to comply with the notice requirements of this section shall preclude the imposition of any storage charges against such vehicle or vessel.”); Ford Motor Credit Co. v. Sw. Transp., Inc., 668 So.2d 1068, 1070 (Fla. 3d DCA 1996) (towing company must forfeit storage charges for vehicle where it did not use good faith best efforts to comply with requirements of section 713.78).

RSC also claims the court erred in returning the Tahoe to Hertz after it was sold at auction. Section 713.78(5)(a) allows the owner of a vehicle or any person claiming a lien on the vehicle to file a complaint in the county court of the county in which the vehicle is stored within ten days of knowing where the vehicle is located. The purpose of the complaint is to allow the owner to determine whether his property was wrongfully taken or withheld from him. The remainder of section 713.78(5) reads as follows:

(b) Upon filing of a complaint, an owner or lienholder may have her or his vehicle or vessel released upon posting with the court a cash or surety bond or other adequate security equal to the amount of the charges for towing or storage and lot rental amount to ensure the payment of such charges in the event she or he does not prevail. Upon the posting of the bond and the payment of the applicable fee set forth in s. 28.24, the clerk of the court shall issue a certificate notifying the lienor of the posting of the bond and directing the lienor to release the vehicle or vessel. At the time of such release, after reasonable inspection, she or he shall give a receipt to the towing-storage company reciting any claims she or he has for loss or damage to the vehicle or vessel or the contents thereof.
(c) Upon determining the respective rights of the parties, the court may award damages, attorney’s fees, and costs in favor of the prevailing party. In any event, the final order shall provide for immediate payment in full of recovery, towing, and storage fees by the vehicle or vessel owner or lienholder; or the agency ordering the tow; or the owner, lessee, or agent thereof of the property from which the vehicle or vessel was removed.

Section 713.78(6) discusses the remedies available to an owner or lienholder if he learns of his vehicle’s location after the vehicle has been sold by the towing company. It states, in relevant part:

(6) Any vehicle or vessel which is stored pursuant to subsection (2) and which remains unclaimed, or for which reasonable charges for recovery, towing, or storing remain unpaid, and any contents not released pursuant to subsection (10), may be sold by the owner or operator of the storage space for such towing or storage charge after 35 days from the time the vehicle or vessel is stored therein if the vehicle or vessel is more than 3 years of age or after 50 days following the time the vehicle or vessel is stored therein if the vehicle or vessel is 3 years of age or less. The sale shall be at public sale for cash.... The owner or lienholder may file a complaint after the vehicle or vessel has been sold in the county court of the county in which it is stored. Upon determining the respective rights of the parties, the court may award damages, attorney’s fees, and costs in favor of the prevailing party.

§ 713.78(6), Fla. Stat. (emphasis supplied).

It is clear from these provisions of the statute that subsection (5) applies when an owner or lienholder files a complaint while the vehicle is in storage. Subsection (6), on the other hand, applies when an owner or lienholder files a complaint after his vehicle has already been sold at auction.

Here, RSC sold the Tahoe on May 21, 2010. Hertz learned of the vehicle’s location on June 30, 2010, and filed its complaint on July 9, 2010. Given this timing, subsection (6) applies to the present circumstances. Subsection (6) plainly states that “[t]he owner or lienholder may file a complaint after the vehicle ... has been sold in the county court of the county in which it is stored. Upon determining the respective rights of the parties, the court may award damages, attorney’s fees, and costs in favor of the prevailing party.” § 713.78(6), Fla. Stat. (emphasis supplied). There is no mention in this subsection that the court may return the vehicle to an owner or lienholder who prevails in his suit against a towing company. The lack of express language in the statute allowing an owner or lienholder to recover his vehicle suggests the legislature did not intend for such a remedy to be available. See Fed. Ins. Co. v. Sw. Fla. Ret. Ctr., Inc., 707 So.2d 1119, 1122 (Fla.1998) (concluding that absence of express language in statute is clear evidence that legislature did not intend to provide discovery rule in statute). The fact that subsection (5)(c) requires that the final order provide for the payment of “recovery fees,” but section (6) does not discuss “recovery fees” is further evidence that the legislature did not intend for a lienholder or owner filing a complaint after the sale of the vehicle to be able to recover the vehicle. See United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (“[W]here Congress has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.”). Because suit was filed after the Tahoe was sold, section 713.78(6) controls and Hertz was entitled to recover “damages, attorney’s fees, and costs,” but it was not entitled to recover the Tahoe. Therefore, the order granting possession of the Tahoe to Hertz is reversed and the matter is remanded for further proceedings pursuant to section 713.78(6).

REVERSED and REMANDED.

SAWAYA and PALMER, JJ„ concur.

      . We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(ii) (orders that determine "the rights to immediate possession of property” are appealable non-final orders); Boalt v. Hanson, 412 So.2d 880, 881 (Fla. 3d DCA 1982) (district court has jurisdiction pursuant to rule 9.130(a)(3)(C)(ii) to review order granting immediate right of possession of automobile).

      . The 2009 Tahoe was towed March 29, 2010. Thus, pursuant to the statute, RSC was required to wait 50 days to sell the Tahoe from the time it was towed. RSC complied with this requirement, as it sold the Tahoe 53 days after it was towed.


text:
    Anat BANIEL, Appellant, v. AURORA LOAN SERVICES, LLC, et al., Appellee.
    No. 5D10-3155.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Michael E. Rodriguez, of Foreclosure Defense Law Firm, Tampa, for Appellant.
    Talina Bidwell, of Broad & Cassel, West Palm Beach, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellant, Anat Baniel, appeals the Final Judgment of Foreclosure rendered pursuant to a Motion for Summary Judgment filed by Appellee, Aurora Loan Services, LLC. Appellee confesses error and requests that the Final Judgment be reversed and this case remanded to the trial court so that Appellee may properly address the affirmative defenses filed by Appellant and refile an appropriate Motion for Summary Judgment. Accordingly, we reverse and remand this case to the trial court for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J. SAWAYA and TORPY, JJ., concur.


text:
    HEARTLAND EXPRESS, INC., OF IOWA, a foreign corporation, Petitioner, v. Juan TORRES, Respondent.
    No. 1D12-596.
    District Court of Appeal of Florida, First District.
    June 25, 2012.

      E. T. Fernandez, III, and Gregory E. Blackwell, of Fernandez Trial Lawyers, P.A., Jacksonville, for Petitioner.
    Dennis R. Schutt and Jeffrey D. Devon-chik of Schutt, Schmidt & Noey, Jacksonville, for Respondent.
   PER CURIAM.

Petitioner Heartland Express, Inc. seeks certiorari review of an order compelling disclosure of information concerning its risk management investigation. Heartland asserts that the information sought by respondent Juan Torres through deposition questions posed to Heartland’s corporate representative is privileged work-product and that Torres made no showing of need and undue hardship necessary to compel disclosure of such work-product. We grant the petition in part and quash the order with respect to questions 1, 2, 5, and 7. We deny certiorari relief without further discussion with respect to questions 3, 4, 6, 8, 9, and 10.

FACTS AND PROCEDURAL HISTORY

Torres sued Heartland in a negligence action arising from a traffic accident. Torres filed a notice of taking deposition duces tecum of Heartland’s corporate representative, seeking certain information relating to the accident. At the deposition, Torres’ attorney asked the risk manager, who Heartland had designated as its corporate representative, the following questions:

1. Was a final determination made that the accident was preventable?
2. If Mr. Jones applied for jobs at another company as a driver, and that company contacted your company, would you feel obligated to report to the hiring company that Mr. Jones had been in a preventable accident?
5. Okay. And did you make the determination one way or the other, preventable or not preventable, before litigation commenced?
7. Was the amount of time he traveled from the time he recognized the vehicle traveling slow to the time of impact unclear to you at the time you completed your investigation into the accident?

Counsel for Heartland objected to each question and instructed the witness not to answer. Torres moved to compel discovery, and Heartland moved for a protective order.

The trial court granted Torres’ motion to compel. The trial court ruled that Heartland had asserted no legally cognizable justification for privilege with respect to questions 1 and 2. For questions 5 and 7, the trial court ruled that the information sought by Torres was not privileged and that the case law cited by Heartland supported only the proposition that claims files themselves were work-product. The trial court also ruled that “Nowhere in the Florida Rules of Civil Procedure is there a provision that states that an attorney may instruct a witness not to answer a question.” Heartland seeks review of the trial court’s order.

ANALYSIS

To obtain certiorari review of a trial court’s order, the petitioner must demonstrate that the order is a departure “from the essential requirements of law thereby causing irreparable injury which cannot be remedied on appeal following final judgment.” Avante Villa at Jacksonville Beach, Inc. v. Breidert, 958 So.2d 1031, 1032 (Fla. 1st DCA 2007). An order erroneously compelling discovery of privileged information is reviewable by certio-rari because an order requiring disclosure of privileged information may cause irreparable injury. Id.; see also Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995) (holding discovery of material protected by privilege or work product may cause irreparable injury because the erroneous discovery is deemed “cat-out-of-the-bag” in nature).

Heartland asserts that the trial court’s order compelling disclosure of information regarding its risk manager’s investigation departed from the essential requirements of law by requiring disclosure of work-product, which disclosure may cause irreparable injury to Heartland. We agree.

The work-product doctrine protects both fact work-product (information which relates to the case and is gathered in anticipation of litigation), as well as opinion work-product (the attorney’s mental impressions, conclusions, opinions and theories concerning litigation). See Acevedo v. Doctors Hosp., Inc., 68 So.3d 949 (Fla. 3d DCA 2011). Where information qualifies for protection as fact work-product, a party seeking discovery may obtain disclosure of such information only upon a showing of need and undue hardship to obtain the substantial equivalent of the materials through other means. See Fla. R. Civ. P. 1.280(b)(3).

Information received by attorneys prepared in anticipation of trial by investigators or non-attorneys has been determined to qualify for work-product protection. Southern Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994). Work-product protection also extends to information gathered in an investigation conducted in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department. See, e.g., Metric Engineering, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003); Florida East Coast Railway L.L.C. v. Jones, 847 So.2d 1118, 1118 (Fla. 1st DCA 2003); Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713, 718 (Fla. 3rd DCA 2007) (holding that incident reports filled out by employees and filed with the risk management department to be used to defend against potential litigation are protected as work-product); see also Orange Park Christian Academy v. Russell, 899 So.2d 1215 (Fla. 1st DCA 2005) (holding that a principal’s notes and memoranda regarding an accident at the school prepared in anticipation of litigation were work-product). It is not necessary that a lawsuit be filed for information gathered in an accident investigation to qualify for work-product protection. See Royal Caribbean Cruises, Ltd., 964 So.2d at 718; District Bd. of Trustees of Miami-Dade Community College v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) (holding that even if a specific claim has not been filed, sending documents to a risk management department anticipates litigation).

Here, Torres sought discovery of information concerning Heartland’s risk management investigation through the deposition of Heartland’s risk manager. Because the risk management investigation was conducted in anticipation of litigation, information relating to the investigation qualifies for work-product protection. Questions 1, 2, 5, and 7 sought information gathered in the course of the risk manager’s investigation of the accident. Questions 1, 2, and 5 sought information related to the preventability of the accident, which is information that Heartland could have obtained only through its risk management investigation. Question 7 requested that the risk manager disclose whether his investigation of the accident revealed the speed at which Heartland’s driver was traveling at the time of the accident. Because the information sought by Torres would require Heartland to disclose information gathered in the course of the investigation by its risk manager, and because Torres made no showing of need or undue hardship, the trial court’s order compelling disclosure was a departure from the essential requirements of law. See Avante Villa, 958 So.2d at 1032.

We, therefore, grant the petition for cer-tiorari with regard to questions 1, 2, 5, and 7, and quash the order with regard to questions 1,2,5, and 7.

DENIED IN PART, GRANTED IN PART.

ROBERTS, WETHERELL, and ROWE, JJ., concur.

      . The trial court also erred in ruling that the Florida Rules of Civil Procedure prohibit counsel from instructing a deponent not to answer a question. Florida Rule of Civil Procedure 1.310(c) specifically provides for such an instruction in certain circumstances: "A party may instruct a deponent not to answer only when necessary to preserve a privilege.” See, e.g., American Home Assur. Co. v. Vreeland, 973 So.2d 668, 672 (Fla. 2d DCA 2008).


text:
    FLORIDA DEPARTMENT OF REVENUE obo Megan A. JOHNSON, Appellant, v. Kaleb A. ZACKERY, Appellee.
    No. 1D11-6359.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Department of Revenue (“Department”), on behalf of Megan A. Johnson, appeals a Final Administrative Support Order that deviated from the standard child support guidelines. The Department argues that the administrative law judge (“ALJ”) erred in deviating from child support guidelines based on a visitation agreement that was not court-ordered or approved. We agree with the Department and find that reversal is compelled by this court’s precedent in Department of Revenue ex. rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011); Department of Revenue ex. rel. Bohm v. Koehler, 77 So.3d 253 (Fla. 1st DCA 2012); and Department of Revenue ex. rel. Rambert v. Williams, 79 So.3d 240 (Fla. 1st DCA 2012).

Deviation from the child support guidelines is authorized “only where there exists a written, court-authorized parenting-plan.” Daly, 74 So.3d at 168. Because the visitation arrangement between the parents in this case was not court-authorized, the ALJ was not permitted to deviate from the child support guidelines. Thus, we reverse and remand this case to the Division of Administrative Hearings for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    DEPARTMENT OF REVENUE obo Amanda G. BOECKLER, Appellant, v. William G. CAVANAUGH, Appellee.
    No. 1D11-6622.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Department of Revenue (“Department”), on behalf of Amanda G. Boeekler, appeals a Final Administrative Support Order that deviated from . the standard child support guidelines. The Department argues that the administrative law judge (“ALJ”) erred in deviating from child support guidelines based on a visitation agreement that was not court-ordered or approved. We agree with the Department and find that reversal is compelled by this court’s precedent in Department of Revenue ex. rel. Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011); Department of Revenue ex. rel. Bohm v. Koehler, 77 So.3d 253 (Fla. 1st DCA 2012); and Department of Revenue ex. rel. Rambert v. Williams, 79 So.3d 240 (Fla. 1st DCA 2012).

Deviation from the child support guidelines is authorized “only where there exists a written, court-authorized parenting-plan.” Daly, 74 So.3d at 168. Because the visitation arrangement between the parents in this case was not court-authorized, the ALJ was not permitted to deviate from the child support guidelines. Thus, we reverse and remand this case to the Division of Administrative Hearings for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PADOVANO, ROWE, and RAY, JJ„ concur.


text:
    Tonya LONG, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Suncoast Gifts, Appellees.
    No. 1D12-0923.
    District Court of Appeal of Florida, First District.
    June 25, 2012.
    Tonya Long, pro se, Petitioner.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Respondent.
   PER CURIAM.

In this unemployment compensation appeal, the Unemployment Appeals Commission (“UAC”) reversed the appeals referee’s finding that the claimant/appellant, Tonya Long, had been discharged, instead concluding that the claimant voluntarily left her employment without good cause attributable to the employer. The UAC thereby reversed the determination of the claimant’s eligibility for unemployment benefits. The claimant appealed.

The UAC now moves to relinquish jurisdiction on the ground that it has determined the decision of the appeals referee in this case to be “internally inconsistent.” In its motion to relinquish jurisdiction, dated May 10, 2012, the UAC essentially concedes error, admitting that the claimant’s testimony “may support the referee’s ultimate conclusion that the claimant was discharged from her employment.”

The UAC’s motion to relinquish jurisdiction to the lower tribunal is treated as a concession of error. See Stacey v. Dep’t of Professional Regulation, 547 So.2d 241 (Fla. 1st DCA 1989). Consistent therewith, this matter is reversed and remanded.

REVERSED AND REMANDED.

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


text:
    PALM BEACH COUNTY SHERIFF’S OFFICE and USIS, Appellants, v. Karly GALLART, Appellee.
    No. 1D12-2417.
    District Court of Appeal of Florida, First District.
    June 25, 2012.

      Christine M. Tomasello of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Appellants.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Ap-pellee.
   PER CURIAM.

Upon review of Appellants’ timely response to this Court’s May 22, 2012, order to show cause, the Court dismisses this appeal for lack of jurisdiction because the order under review is neither a final order nor an appealable nonfinal order under Florida Rule of Appellate Procedure 9.180(b)(1). See Massey Services, Inc. v. Knox, 80 So.3d 1140 (Fla. 1st DCA 2012) (dismissing appeal as one taken on nonfi-nal order where JCC awarded TPD benefits “but reserved jurisdiction as to the amount of those benefits due”); see also Life Care of Winter Haven v. Benjamin, 22 So.3d 152 (Fla. 1st DCA 2009) (concluding order is nonappealable and nonfinal where JCC reserves jurisdiction to determine exact amount of benefits due under order “should the parties be unable to administratively” determine such amounts). We dismiss this appeal without prejudice to the Appellants’ right to seek review upon the rendition of an appealable order. See Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001) (dismissing workers compensation appeal without prejudice to appellant’s right to seek review upon entry of appealable order).

DISMISSED.

DAVIS, WETHERELL, and SWANSON, JJ„ concur.


text:
    S.F., Mother of L.F., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-2491.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2012.
    Nickole E. Frederick, Orlando, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Laura E. Lawson, Tavares, for Guardian ad Litem.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellees’ joint concession of error, the Final Judgment of Termination of Parental Rights on appeal is reversed and this cause is remanded to the trial court with instructions to vacate said order.

REVERSED and REMANDED.

PALMER, MONACO and JACOBUS, JJ., concur.


text:
    Willie Raymond PETTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2578.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Willie Raymond Petty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


text:
    Samuel WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2899.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Samuel White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Kenneth NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2798.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Kenneth Nelson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Christopher D. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2441.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Christopher D. Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Janet Elizabeth BATISTA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1504.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Curtis D. Mendenhall, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010); contra Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012).

BENTON, C.J., PADOVANO, and ROBERTS, JJ., concur.


text:
    Earl Anthony JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0331.
    District Court of Appeal of Florida, First District.
    June 28, 2012.
    Nancy A. Daniels, Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Upon consideration of the appellant’s response to the Court’s order of February 7, 2012, as well as the record on appeal, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Rendition of the appellant’s November 14, 2011, judgment and sentence was delayed by the filing of a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(1). See Fla. R.App. P. 9.020(h). However, the notice of appeal was filed more than 30 days after rendition of the order denying that motion. Thus, the notice of appeal is untimely, see Florida Rule of Appellate Procedure 9.110(b), and the appeal is accordingly dismissed. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Michael Andrew DEBOLT, Former Husband, Appellant, v. Valerie Jean DEBOLT, Former Wife, Appellee.
    No. 1D11-3075.
    District Court of Appeal of Florida, First District.
    June 28, 2012.
    Rhonda S. Clyatt of Clyatt & Blow, Panama City, for Appellant.
    Valerie Jean Debolt, pro se, Appellee.
   PER CURIAM.

The former husband appeals the trial court’s order granting the former wife’s supplemental complaint for modification. We affirm the trial court’s award of permanent periodic alimony to the wife without discussion. We, however, decline to exercise our jurisdiction as to the former wife’s entitlement to attorney’s fees because the order does not set the amount of fees, and thus, the issue is not ripe for review. See Miller v. Miller, 801 So.2d 1056 (Fla. 1st DCA 2001). Accordingly, we dismiss the portion of the appeal directed to entitlement.

AFFIRMED IN PART; DISMISSED IN PART.

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Leah EVERHART, individually and on behalf of all others similarly situated, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 1D11-4532.
    District Court of Appeal of Florida, First District.
    June 28, 2012.
    David S. Farber of the Law Office of David S. Farber, P.A., Coral Gables; Daniel B. Rogers and Alfred J. Saikali of

      Shook, Hardy & Bacon, LLP, Miami, for Appellant.
    Gina G. Smith of Butler, Pappas, Weih-muller, Katz, Craig, LLP, Tallahassee; Farrokh Jhabvala and Ari H. Gerstin of Jorden & Burt, LLP, Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Ceballo v. Citizens Prop. Ins. Corp., 967 So.2d 811, 815 (Fla. 2007) (holding that proof of entitlement to the face value of the policy “does not affect [the insured’s] obligation to show that [she has] incurred an additional loss in order to recover under the supplemental [law and ordinance] coverage”). See also K.R. Exch. Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So.3d 889, 894 (Fla. 3d DCA 2010) (“It is well settled that the court must consider an exhibit attached to the complaint together with the complaint’s allegations, and that the exhibit controls when its language is inconsistent with the complaint’s allegations.”); Magnum Capital, LLC v. Carter & Assocs., LLC, 905 So.2d 220, 221 (Fla. 1st DCA 2005).

BENTON, C.J., and CLARK, J., concur.

MAKAR, J., Specially Concurs with Opinion.

MAKAR, J.,

specially concurring.

I find no fault in affirming the dismissal of the third-amended complaint with prejudice given its lack of definitive allegations showing that claimant, Leah Everhart, actually took steps to incur the liability (such as by entering a written contract to rebuild her storm-damaged home) necessary to trigger supplemental coverage available under her policy for “law and ordinance” coverage (the amount of which, $29,000, was determined via the policy’s appraisal process). I question whether we need even address the issues presented, however. As counsel at oral argument acknowledged, Everhart has sold the property at issue (apparently some time shortly after the trial court’s order was issued). That she no longer owns the real property at issue means she will not be rebuilding her former home and thereby is not eligible for the additional law and ordinance coverage that exists to cover the costs of complying with the more stringent building code that now exists. Had she chosen to rebuild the home, she would have entered contracts and incurred the type of liability that would have triggered her entitlement to an award under the law and ordinance portion of her policy; but she never included any such allegation in any of her many complaints. Because it appears she has not, and will not, be rebuilding her former home, the issues presented are moot. See Godwin v. State, 593 So.2d 211 (Fla.1992) (“A case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist. A moot case generally will be dismissed.”) (internal citations omitted). Dismissal, whether on the merits below or due to mootness on appeal, is appropriate.


text:
    Lisa McCLAIN, Appellant, v. PENSACOLA HABITAT FOR HUMANITY, INC., Appellee.
    No. 1D12-0258.
    District Court of Appeal of Florida, First District.
    June 28, 2012.

      Lisa McClain, pro se, Appellant.
    Charles P. Hoskin, of Emmanuel Sheppard & Condon, Pensacola, for Appellee.
   PER CURIAM.

DISMISSED. Upon consideration of the appellant’s responses to the Court’s orders of May 2, 2012, and May 22, 2012, the Court has determined that its jurisdiction to review the specified orders was not timely invoked. Accordingly, the appeal is dismissed for lack of jurisdiction.

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Pablo VALDIVIESO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5323.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Hilliard E. Moldof, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   On Appellant’s Motion for Rehearing and Clarification

PER CURIAM.

Defendant files a motion for clarification and rehearing after this Court per curiam affirmed the denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850.

We grant his motion and withdraw the previous opinion. Upon reconsideration of the record, we find that Defendant’s August 23, 2010 motion for postconviction relief was untimely. State v. Green, 944 So.2d 208 (Fla.2006). Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to this 2004 plea. See Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011) (citing Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011)); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011).

Affirmed.

STEVENSON, TAYLOR and LEVINE, JJ., concur.