text:
    Kenneth NIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-593.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Kenneth Nix, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Nix appeals an order of the trial court summarily denying his timely, sixty-five page sworn pro se motion for postconviction relief. His motion raises twelve grounds for relief, including ten separate claims of ineffective assistance of counsel. We reverse.

Although the trial court considered a response filed by the state, it denied the motion without attaching or incorporating the response, stating any rationale for denial, or attaching any portions of the record to conclusively refute any of the grounds for relief, at least some of which facially appear to be meritorious.

When a trial court denies a rule 3.850 motion without an evidentiary hearing, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)).

In response to this court’s order to show cause, the state suggests it can be inferred from the trial court’s order that all of Nix’s grounds for relief are facially insufficient. However, if that were the case, then the trial court should have stricken them with leave to amend within a reasonable time period. See Spera v. State, 971 So.2d 754, 755 (Fla.2007) (holding that “in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected”).

Accordingly, the order is reversed and remanded for the attachment of portions of the record conclusively refuting the allegations of the motion or for an evidentiary hearing. See Fla. R.Crim. P. 3.850(d). On remand, if the trial court determines that any of Nix’s grounds are facially insufficient, it should strike them and allow Nix a reasonable amount of time in which to amend them.

Reversed and remanded.

GROSS, CIKLIN and GERBER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BARCLAY SQUARE ASSOCIATES, LTD., a Florida limited liability partnership, Appellant, v. PLANTFIND.COM, a Florida corporation, and Frank Ferraro, individually and Mike Ferraro, individually, Appellees.
    No. 4D10-991.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Bambi G. Blum and Edward Philip Green of Bambi G. Blum, P.A., Miami, and Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for appellant.
    Richard S. Tolbert, West Palm Beach, for appellees.
   PER CURIAM.

The parties entered into a lease agreement, whereby appellee Plantfind would take possession of the premises on August 1, 2004, after appellant Barclay made certain improvements. On October 21, 2004, Plantfind terminated the lease due to Barclay’s failure to deliver the premises. Barclay filed a complaint, alleging that the parties orally agreed to modify the lease and extend the August 1 deadline. The trial court entered summary judgment in favor of Plantfind, finding that the statute of frauds barred oral modification of the lease. Subsequent to the trial court’s decision, this court decided DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So.3d 313, 325 (Fla. 4th DCA), review granted, 47 So.3d 1288 (Fla.2010), which held that a party is prevented “from ignoring oral modifications to conditions of performance, where to do so, in light of one party’s reliance on the modifications, creates an injustice.” Because the trial court did not have the benefit of DK Arena, and because the parties agreed at oral argument that DK Arena is dispositive, we reverse and remand for the trial court to reconsider its decision in light of that case. We affirm without comment the trial court permitting Plantfind to amend its pleadings to assert a claim for attorney’s fees.

Affirmed in part, reversed in part, and remanded.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.


text:
    HERITAGE 5, LLC, a Florida Limited Liability Company, Appellant, v. Martin ESTRADA, an individual, Appellee.
    No. 4D10-1370.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    John J. Fumero and Thomas F. Mullin of Rose, Sundstrom & Bentley, LLP, Boca Raton, for appellant.
    Martin Estrada, Lake Worth, pro se.
   PER CURIAM.

We reverse a final judgment entered against Heritage 5, LLC, arising from a dispute between neighboring property owners. The evidence was that Martin Estrada altered his abutting property by filling in an east-west drainage ditch and cutting off water flow from the ditch to a north-south canal. The evidence showed that Estrada’s alterations harmed Heritage 5’s operations, and to a significant degree: the flooding destroyed mature plants, spread disease among young plants, and destroyed part of the nursery’s infrastructure.

Estrada’s use of his property violated the reasonable use rule adopted by the Supreme Court in Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959 (Fla.1989). In that case, the Court wrote:

[A] possessor of land is not unqualifiedly entitled to deal with surface waters as he pleases nor is he absolutely prohibited from increasing or interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make reasonable use of his land even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface waters is unreasonable.

Id. at 961. The court also discussed the parameters of the rule:

The principle that an upper landowner enjoys an easement across the lower tract for all naturally occurring surface water continues to apply to land in its natural state. However, when any party improves his land, thereby causing surface waters to damage his neighbor’s property, the reasonable use rule shall be applied in order to settle the controversy. The rule applies not only in cases involving the conduct of the upper owner but also to improvements by the lower owner, such as the construction of dams designed to protect against the natural flow of surface waters across the lower land.

Id. at 963 (citation omitted).

In employing its reasonableness analysis in Westland, the Supreme Court did not distinguish between land in its historical, i.e., natural state, and land that has been improved. The essence of the reasonable use rule is that natural surface flow should remain unobstructed. While man-made canals and ditches were added to the area over the years, they facilitated the natural flow of the water that had existed previously, from the north to the southwest. Considering the transition of the land from wetlands to agricultural use, the canal and ditches here at issue were part of a drainage scheme meant to preserve, but not change, the natural surface flow and drainage. Estrada’s alterations to this scheme unreasonably interfered with it, causing damage to Heritage 5’s property.

We reverse the final judgment and remand to the circuit court to determine damages and to set the terms of a permanent injunction.

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Ronald F. MELLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2981.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Ronald F. Mellor, Doral, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order denying appellant’s postcon-viction motion as untimely is reversed. Small v. State, 941 So.2d 555 (Fla. 1st DCA 2006). The two-year time limit for seeking postconviction relief did not begin to run until the mandate issued for this court’s affirmance of the belated direct appeal of appellant’s conviction and sentence. Mellor v. State, 968 So.2d 575 (Fla. 4th DCA 2007) (table) (mandate issued December 5, 2007). This matter is remanded for further proceedings on the postconviction motion.

Reversed and remanded for further •proceedings.

MAY, C.J., WARNER and STEVENSON, JJ., concur.


text:
    Alfredo KINDELAN-HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1590.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.

      Kathy Hamilton, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA).


author: WALLACE, Judge.

text:
    TID SERVICES, INC., Appellant, v. Tulsie DASS, Appellee.
    No. 2D09-5169.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    Catherine M. Taylor and Brian M. Mark of Brian Michael Mark, P.A., Kissimmee, for Appellant.
    Theodore W. Weeks IV of Ted W. Weeks IV, P.A., Lakeland, for Appellee.
   WALLACE, Judge.

TID Services, Inc., appeals the circuit court’s order denying its motion to vacate for lack of jurisdiction a default final judgment in favor of Tulsie Dass. A sheriffs deputy served TID by leaving a copy of the summons and complaint with the owner of a United Parcel Service (UPS) store where TID maintained a private mailbox. In several annual reports filed with the Florida Department of State before the service of Mr. Dass’s lawsuit, TID had provided the address of the private mailbox as the only address for its officers, directors, and registered agent, and as the address of its principal office and its mailing address. Nevertheless, substitute service on a corporation by serving the person in charge of a private mailbox is not authorized unless the only address for the person to be served, which is discoverable through the public records, is the private mailbox. Because Mr. Dass failed to establish that the only address discoverable through the public records for the corporation, its officers, directors, or registered agent was a private mailbox, we reverse the circuit court’s order.

I. THE FACTS

A. Background

In August 2002, Tateram Dinanath incorporated TID as a Florida corporation. Mr. Dinanath named himself as the sole director and the registered agent for TID. The initial registered office of the corporation and the address given for Mr. Dina-nath in the articles of incorporation was an address on Strihal Loop in Winter Garden, Florida. Mr. Dinanath resided at the Stri-hal Loop address with his wife, Indrani Manbahal. In 2003 and 2004, TID’s annual reports filed with the Secretary of State continued to list Mr. Dinanath as the registered agent for the corporation. The 2003 and 2004 annual reports also indicated that Mr. Dinanath was the sole officer and director of the corporation. The only address shown for the corporation and for Mr. Dinanath was the Strihal Loop address.

In January 2005, TID established a private mailbox account, number 211, at a UPS store located on West Colonial Drive in Winter Garden. In TID’s annual report for 2005, Mr. Dinanath changed his address as registered agent, president, and director of the corporation from the Strihal Loop address to the West Colonial Drive address. Afterward, from 2006 through 2008, the only address shown on TID’s annual reports for the corporation and for Mr. Dinanath was the West Colonial Drive address. In 2007, TID’s annual report added Ms. Manbahal as a corporate officer. Like her husband, Mr. Dinanath, the only address shown for Ms. Manbahal was the West Colonial Drive address.

Tulsie Dass, who resides in New Jersey, is Ms. Manbahal’s brother and the brother-in-law of Mr. Dinanath. In January 2006, TID and Mr. Dass jointly acquired title to a citrus grove (or groves) in Polk County. The grove property consists of approximately seventy-seven acres, together with improvements related to grove maintenance. The only address listed on the deed to the property for both TID and Mr. Dass is the West Colonial Drive address.

B. The Lawsuit

On July 17, 2008, approximately two and one-half years after the parties acquired the grove property, Mr. Dass filed an action in the Polk County Circuit Court against TID. In his action, Mr. Dass asserted multiple claims against TID for matters related to the parties’ joint ownership of the grove property. Mr. Dass alleged his claims in an eight-count complaint as follows: Count I, partition and sale of the property; Count II, damages for failure to pay Mr. Dass his share of the profits from fruit sales and for failing to properly manage the property; Count III, damages for conversion of the profits from fruit sales; Count IV, claims for an accounting, disgorgement of secret profits, and the imposition of a constructive trust; Count V, unjust enrichment; Count VI, quantum meruit; Count VII, damages in the amount of $66,000 for money lent, plus interest; and Count VIII, an action for waste, based on allegations that TID had failed to maintain the grove property. Mr. Dass requested “trial by jury on all issues so triable.”

C. Service of Process

Contemporaneously with the filing of the complaint, the clerk of the court issued a summons with a copy of the complaint attached. Service was to be made on TID in care of Mr. Dinanath as registered agent and president at the West Colonial Drive address. On July 30, 2008, at approximately 10:30 a.m., an Orange County sheriffs deputy went to the UPS store at the West Colonial Drive address in Winter Garden. There, the deputy spoke with Nathan Flashman, the owner and manager of the UPS store. Mr. Flashman confirmed for the deputy that TID and Mr. Dinanath maintained a private mailbox at the store and that the private mailbox account was active and in good standing. Based on that information, the deputy delivered the process to Mr. Flashman as the owner and store manager of the UPS store. Mr. Flashman accepted the process and placed it in TID’s private mailbox.

D. TID’s Neglect

The nature and scope of the claims that Mr. Dass asserted against TID were very serious. In addition to the several claims for substantial money damages, the partition claim had the potential to adversely affect TID’s interest in the grove property. So it is reasonable to assume that if TID had obtained actual notice of the filing of Mr. Dass’s complaint, TID would have retained counsel and defended the action. But for reasons unexplained in our record, visits by Mr. Dinanath and Ms. Manbahal to the UPS store on West Colonial Drive to retrieve the contents of the private mailbox were occasional and infrequent. The summons and complaint lay unread in the private mailbox for several months until after a final judgment was entered in the case. Copies of later filings in the case— all mailed to the West Colonial Drive address — suffered the same fate. Indeed, Mr. Dinanath and Ms. Manbahal failed to visit the private mailbox through December 2008, when the circuit court mailed a copy of the final judgment to TID at that address.

E.The Final Judgment

While the summons and complaint lay unread in TID’s private mailbox, Mr. Dass continued to pursue his claims against the corporation. On August 20, 2008, he filed a motion for the entry of clerk’s default based on TID’s failure to file or serve a written response to the complaint within twenty days. The clerk entered the requested default two days later. On December 10, 2008, Mr. Dass filed a “Motion for Final Judgment after Default, or in the Alternative, Motion for Final Summary Judgment.” This motion was accompanied by an affidavit from Mr. Dass and affidavits concerning attorney’s fees. Mr. Dass served a copy of the motion with the supporting affidavits and a notice of hearing by mail on TID in care of Mr. Dinanath as registered agent and president at the West Colonial Drive address.

On December 12, 2008, after a hearing at which TID was not represented, the circuit court entered a final judgment. In the final judgment, the circuit court found that the grove property, consisting of approximately seventy-seven acres, was “not capable of physical division.” Accordingly, the circuit court appointed a special magistrate to take immediate possession of and to sell the property in accordance -with section 64.061(4), Florida Statutes (2008). The circuit court also entered judgment in favor of Mr. Dass and against TID for $429,486.28. In the final judgment, the circuit court reserved jurisdiction to apply the proceeds realized from the sale of the grove property to the payment of the sum owed to Mr. Dass. The circuit court sent a copy of the final judgment to TID in care of Mr. Dinanath at the West Colonial Drive address.

F. The Motion to Vacate

While the papers relating to Mr. Dass’s lawsuit continued to accumulate unread in TID’s private mailbox, the court-appointed special magistrate put a “For Sale” sign on the grove property. An inquiry by a real estate broker who saw the “For Sale” sign prompted Mr. Dinanath and Ms. Manbahal to make an investigation that led to their discovery of the filing of the lawsuit and the entry of the final judgment.

On January 20, 2009, TID filed its motion to vacate the final judgment and the clerk’s default. Both Mr. Dinanath and Ms. Manbahal verified the motion under oath. In the motion, TID contended that the final judgment was void because the service of process on TID at the private mailbox was invalid. TID asked the circuit court to vacate the final judgment and the clerk’s default.

G. The Hearing

The circuit court conducted two hearings on TID’s motion to vacate. At the first hearing, the parties presented legal arguments but did not offer any testimony. TID made two arguments pertinent to our discussion. First, TID asserted that the service was invalid because another address for the corporation — the Strihal Loop address — was discoverable from the public records. With regard to its first argument, TID relied on copies of two documents from the Polk County public records reflecting the Strihal Loop address for the corporation. Mr. Dass relied on multiple copies of documents from the public records reflecting the West Colonial Drive address, including the property appraiser’s records for the grove property.

In its second argument, TID contended that service of process was invalid because the corporation did not maintain a private mailbox at the UPS store on West Colonial Drive when the service was made. In support of the second argument, Mr. Dina-nath and Ms. Manbahal had sworn in their motion that TID did not maintain a private mailbox at the West Colonial Drive address on July 30, 2008, the date service was made. Other than the sworn motion, neither of the parties offered any evidence on this critical issue of fact at the hearing. At the conclusion of the first hearing, the circuit court announced that it would continue the hearing on the motion to vacate and reschedule the matter for a second hearing. At the rescheduled hearing, the parties were to present evidence directed to the issue of whether TID maintained a private mailbox at the UPS store on West Colonial Drive when service was made.

Before the second hearing, the parties took the deposition of Nathan Flashman, the owner and manager of the UPS store. In his deposition, Mr. Flashman confirmed that TID had maintained private mailbox number 211 at the UPS store on July 30, 2008, the day service of the process was made. In fact, Mr. Dinanath himself had paid the box rental fee for one year in advance on May 21, 2008, a little over two months before service was made. Before the hearing began, Mr. Dass also filed an affidavit from the Orange County sheriffs deputy who had served the process on Mr. Flashman. The affidavit provided additional details concerning the service. When the hearing reconvened, the parties once again presented their arguments, supplemented by the copies of the documents they had previously filed, the deposition of Mr. Flashman, and the affidavit from the Orange County sheriffs deputy.

H. The Order

After the hearing, the circuit court entered a written order denying the motion to vacate. Relying on Mr. Flashman’s deposition testimony and the May 21, 2008, payment record, the circuit court found: “[TID] was lawfully served at the address provided by it to the State of Florida Secretary of State as the business address of the corporation and its [registered] agent.” Although Ms. Manbahal was present at the second hearing as the corporate representative of TID, she did not explain the inaccurate statement contained in TID’s verified motion that it did not maintain a private mailbox at the UPS store when service was made. It may have been the absence of any explanation that prompted the circuit court to write in its order that it was “gravely concerned with the untruthful nature of the factual assertion in the [] motion to vacate that TID Services, Inc., has not maintained a mailbox at the UPS store located at the service location since 2006.” Indeed, the circuit court viewed the inaccurate statement in the verified motion so seriously that it referred the matter to the Office of the State Attorney of the Tenth Judicial Circuit for further consideration.

II. DISCUSSION

In Florida, domestic corporations and foreign corporations qualified to do business in the state are required to designate a registered agent and a registered office. §§ 48.091, 607.0501, 607.1507, Fla. Stat. (2008). The statutory requirements relative to keeping the office open are explicit, but not particularly burdensome: § 48.091(2). The purpose of keeping the registered office open and having the registered agent on the premises for at least two hours on every business day is to provide an alternative to service of process on the corporate officers. The statutory requirements contemplate a physical address at which service of process may be made on the registered agent. Thus supplying a post office box address does not meet the statutory requirements relative to designating a registered office. See Radiation, Inc. v. Magnetic Sys. Corp., 173 So.2d 741, 742 (Fla. 2d DCA 1965).

Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these hours. The corporation shall keep a sign posted in the office in some conspicuous place designating the name of the corporation and the name of its registered agent on whom process may be served.

Designating a private mailbox as the address for the corporation’s registered office causes a problem similar to the designation of a post office box address. But the problem posed by the designation of the private mailbox address is more subtle. The registered agent is no more likely to be found at a private mailbox than at a post office box, but the private mailbox address generally gives the appearance— at least on paper — of a physical address for the registered office.

In 2004, the Florida Legislature addressed the problem posed by the designation of private mailboxes as the registered office for corporations with two amendments to chapter 48 of the Florida Statutes. First, the legislature added subsection (b) to section 48.081(3) as follows:

If the address provided for the registered agent, officer, director, or principal place of business is a residence or private mailbox, service on the corporation may be made by serving the registered agent, officer, or director in accordance with s. 48.031.

Ch. 2004-273, § 2, at 1656, Laws of Fla. Second, the legislature added subsection (6) to section 48.031, as follows:

If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location.

Ch. 2004-273, § 1, at 1656, Laws of Fla. The enactment of these two amendments appears to have been intended to avoid the situation in which a corporation could — by listing a private mailbox — feign compliance with the statutory requirement but evade service of process by concealing the physical whereabouts of its registered agent, officers, directors, and place of business. Cf. Montesdeoca v. Krams, 194 Misc.2d 620, 755 N.Y.S.2d 581, 582-83 (N.Y.Civ.Ct. 2003) (observing that if service of process at a private mailbox could never be good service, “then a person bent upon thwarting service, creditors, and other legitimate means of communication, could always hide behind the shield of a private mailbox”). Although the legislature did not provide a definition of the term “private mailbox,” we conclude that this term certainly includes a private mailbox service provided by a commercial mail receiving agency such as the UPS store in this case.

But the statutory amendments do not give claimants carte blanche to make service of process on corporations at private mailbox addresses. On the contrary, delivery of process to a person in charge of a private mailbox will be invalid unless the claimant can establish strict compliance with the statutory requirements:

In order to perfect service of process on [a] corporation by serving the person in charge of a mailbox store, Plaintiff must establish that certain conditions exist. Plaintiff must show (1) that the address of record of the corporation’s officers, directors, registered agent and principal place of business was a private mailbox, (2) that the only address discoverable through public records for the corporation, its officers, directors, or registered agent was a private mailbox, and (3) that the process server properly determined that the corporation, or its officer, director, or registered agent maintains a mailbox at that location pri- or to serving the person in charge.

Cruz v. Petty Transp., LLC, No. 6:08-cv-498-Orl-22KRS, 2008 WL 4059828, at *1 (M.D.Fla. Aug.27, 2008); see also Clauro Enters., Inc. v. Aragon Galiano Holdings, LLC, 16 So.3d 1009, 1012 (Fla. 3d DCA 2009) (outlining the conditions under which service at a private mailbox under section 48.031(6) is permitted).

Here, Mr. Dass satisfied the first and third requirements for service at the private mailbox outlined in the Cruz ease. The address of record for TID’s officers, directors, registered agent, and the principal place of business was the private mailbox address on West Colonial Drive. And the process server confirmed that TID maintained a private mailbox at the location before leaving the process with the owner of the UPS store. TID’s claim that it did not have a private mailbox at the UPS store was shown to be without any basis in fact.

But Mr. Dass did not demonstrate compliance with the second requirement for service at the private mailbox. He failed to show that the only address discoverable through the public records for the corporation, its officers, directors, or registered agent was a private mailbox. It appears that the inaccurate statements in TID’s motion to vacate concerning whether it maintained a private mailbox at the West Colonial Drive address on the date service was made apparently caused the circuit court to focus on the third requirement to the exclusion of the second. The circuit court did not address the second requirement in its order. We certainly do not condone the inaccurate assertions of fact made in TID’s sworn motion. But any inaccurate statements made by TID relative to the third requirement did not excuse Mr. Dass from carrying his burden of establishing compliance with the second requirement. We turn now to an examination of the evidence pertinent to this issue.

Unfortunately, neither of the parties assisted the circuit court by presenting any testimony relative to the second requirement. Such testimony could have been provided relatively easily by a person who had made a search of the public records concerning the address or addresses on record for the corporation. TID did attach to its motion copies of two documents demonstrating that the Strihal Loop address was discoverable from the public records of Polk County. The first document reflecting the Strihal Loop address for TID was a billing record from the tax collector’s office for the 2007 tangible personal property taxes assessed against the personal property located at the grove property. The second document was a 2008 record maintained by the property appraiser’s office for a different parcel of real estate that TID owned jointly with another entity. Although no one elaborated on the significance of these documents at the hearing, Mr. Dass did not challenge their authenticity or explain why reference to these documents in the public record would not have disclosed the Strihal Loop address as another address for TID. Thus service at the private mailbox was not an appropriate method of substitute service on TID because Mr. Dass failed to prove that the only address for TID, which was discoverable through public records, was a private mailbox. See Beckley v. Best Restorations, Inc., 18 So.3d 125, 126 (Fla. 4th DCA 2009). It follows that the circuit court erred in denying TID’s motion to vacate.

III. CONCLUSION

This case highlights some of the problems posed for litigants and lawyers by the widespread use of private mailboxes. Persons who designate a private mailbox as the registered office for a corporation or as a receptacle for the receipt of important papers should check the mailbox regularly. Those who fail to check their mailbox may remain ignorant of legal proceedings that may adversely affect them. For claimants, it is important to ensure that the statutory requirements have been met before attempting service of process at a private mailbox. The failure to do so may result, as here, in a declaration that the service is invalid.

For the reasons outlined above, we reverse the order denying TID’s motion to vacate. We remand this case to the circuit court with directions to vacate the final judgment and the clerk’s default and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

KELLY and BLACK, JJ„ Concur.

      . A corporation apparently owned the UPS store. Mr. Flashman owned the corporation and served as its registered agent.

      . The circuit court apparently made this finding based on an uncontested allegation to that effect in Mr. Dass’s verified complaint. The circuit court did not appoint commissioners in accordance with section 64.061(1), Florida Statutes (2008).

      . The figure of $429,486.28 was comprised of the following amounts: (1) money lent, $66,000; interest on the money lent at seven percent, $13,037.26; waste to the property, $89,610; ownership interest in harvested crop, $255,000; attorney's fees, $5509.02; and $330 costs.

      .Based on our disposition of the case, we need not address TID’s other arguments.

      . We note that TID's appellate counsel did not represent TID in the circuit court and were not involved in the preparation of the motion to vacate.

      . The omission to provide a definition of this term prompted one well-known commentator on Florida civil practice to ask, "What is a private mailbox?” Henry P. Trawick, Jr., Florida Practice and Procedure § 8:6 n. 10 (2010 ed.).

      . We speculate that this personal property was used for grove maintenance.


author: SUAREZ, J.

text:
    Robin SIMON, D.O. and South Florida Orthopedics, Inc., etc. and Health-South Corporation, Appellants/Cross-Appellees, v. Maria MALDONADO, etc. et al., Appellees/Cross-Appellants.
    Nos. 3D08-2639, 3D08-2640.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied July 19, 2011.

      Carlton Fields and Wendy F. Lumish and Cristina Alonso, Miami; Cole, Scott & Kissane, and Scott A. Cole and Alejandro Perez, Miami, for appellants/cross appel-lees.
    Billbrough & Marks and G. Bart Billb-rough and Geoffrey B. Marks, Coral Gables, for appellees/cross appellants.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Robin Simon, D.O. (“Dr. Simon”), South Florida Orthopedics, Inc., and Health-South Corporation appeal a final order granting a new trial after a jury verdict and juror interview. Plaintiffs (“Maldona-dos”) cross-appeal the denial of the admission of a Fabre defendant on the verdict form and the denial of cross-examination of Dr. Simon on her medical background. We reverse the order granting a new trial and affirm the issues on cross-appeal.

The Maldonados brought an action against Dr. Simon and her employers, South Florida Orthopedics, Inc. and HealthSouth Corporation, alleging negligent failure to diagnosis and treat their minor daughter’s cancer after a broken femur. On the first day of jury selection, the potential jurors filled out juror questionnaires. The trial lawyers and judge asked individual jurors about some of their answers. Juror Subaran was placed on the jury without objection. The jury returned a verdict for the defense finding that there was no negligence on the part of Dr. Simon that was a cause of injury. Ten days after the verdict, on March 28, 2008, the Maldonados filed a motion for new trial on grounds that the trial court erred in not allowing the Maldonados to impeach Dr. Simon on her background and training and on grounds including that the trial court erred in permitting the defense to argue that the subsequent treating physician was negligent in the care and treatment of the minor plaintiff. This post trial motion did not allege any factual bases for a juror interview nor did it request such an interview. On March 31, 2008, more than ten days after the jury verdict, the Maldonados filed for the first time a motion to interview jurors alleging that juror Subaran had failed to disclose that she previously had been involved in an automobile accident and had concealed material facts relevant to the issues in the case. The motion was filed along with an affidavit of plaintiffs’ counsel stating that it was his “good-faith belief’ that Subaran was involved in an automobile accident and that a resulting claim was “likely” made against her. The Maldonados later filed a first supplemental motion to interview jurors alleging that “it would appear that juror Subaran ... may have been a named party defendant to a number of prior lawsuits,” and attached a court docket to the motion. , The trial court granted the motion to interview juror Subaran, limiting inquiry into the answers on the questionnaire and voir dire on her past involvement as a party to lawsuits and whether any claims had been made against her. The trial court held a hearing on the motion to interview jurors and ordered a new trial on the basis of Subaran’s alleged non-disclosures. Dr. Simon, South Florida Orthopedics, Inc., and HealthSouth Corp. appeal the granting of a new trial.

Dr. Simon raises two issues on appeal. Dr. Simon claims that the affidavit filed by the Maldonados in support of the motion to interview jurors was factually insufficient, and, as such, the trial court erred in granting the motion to interview, and, even if sufficient, the trial court erred in ordering a new trial as the alleged undisclosed claims were not relevant or material to the issues at trial and did not constitute concealment. Second, Dr. Simon contends that the trial court abused its discretion in ordering a new trial as the Maldonados’ motion was untimely filed and good cause was not shown for the late filing.

We agree with the Appellants that the affidavit was not factually sufficient to require the juror interview. A post trial juror interview “is never permissible unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial.” Baptist Hosp. v. Maler, 579 So.2d 97, 100 (Fla.1991). In considering whether to authorize inquiry into alleged juror misconduct, the trial court must determine exactly what type of information will be elicited from the jurors. Maler, 579 So.2d at 97. This rule rests on a policy of preventing litigants or the public from invading the privacy of the jury room. Maler, 579 So.2d at 99. The affidavit submitted in support of the motion for juror interview was based factually on speculation, alleging only that there was a “possibility” of juror misconduct. Such speculation is not sufficient to warrant the trial court to order a juror interview. Albertsons, Inc. v. Johnson, 442 So.2d 371, 372 (Fla. 2d DCA 1983) (holding that allegations in a motion for juror interview cannot be “bottomed on mere conclusory statements based on speculation and surmise that, if interrogated, the jurors might have something to say that would be material to whether or not the court should award a new trial”). The allegations must be certain as to the proof required to substantiate nondisclosure or concealment relevant to the facts at issue. De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).

Even if the affidavit were sufficient to warrant the interview, the facts revealed at the Subaran interview were not relevant or material to the issues to be tried and, therefore, a new trial should not have been granted. Under De La Rosa, the party seeking a new trial on the basis of juror non-disclosure has the burden of establishing entitlement to it. In determining whether a juror’s non-disclosure of information during voir dire warrants a new trial, courts generally have utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case; second, that the juror concealed the information during questioning; lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence. See De La Rosa, 659 So.2d at 241. Appellate courts have reversed for juror interviews or new trials where a potential juror has failed to disclose prior litigation history or where other information relevant to jury service was not disclosed. But the mere possibility that a juror was involved in prior claims does not show in and of itself that his point of view was affected so as to deprive the defendant of a fair and impartial trial. Here, it cannot be said that Subaran’s failure to disclose prior litigation deprived the Maldonados of a fair and impartial trial. It cannot be said that the allegedly undisclosed legal claims — two of which were liens, two were minor-collection related suits and two were mortgage foreclosures — were relevant or material to this case. The hospital lien was filed more than eleven years before trial and it was never shown that it was against Subaran individually. A contractor roof repair lien was resolved without litigation or involvement of attorneys. A six-year-old subro-gation action brought against Subaran’s husband without her knowledge, as well as an AT & T bill with a stipulation for payment, were not material and relevant to this litigation. The foreclosure actions did not show that service was effected or that they were filed until after jury selection in this case. Moreover, another juror, who disclosed that he was involved in an automobile accident which resulted in a lawsuit and who identified several other lawsuits that he was involved in, was seated on the jury. Therefore, the first prong of De La Rosa, the requirement of showing that any alleged disclosure was material and relevant, has not been met.

Likewise, the elements of concealment and due diligence have not been demonstrated. Juror Subaran answered on her juror questionnaire that she had made a legal claim. It was never shown that the information sought as to whether there had been any legal claims against her or her family had been asked for directly on voir dire to explain the answer she had given on the juror questionnaire. It was never shown that juror Subaran was aware of any possible liens, subrogation or foreclosure actions because they had been dismissed for lack of service or were brought against her husband. Because there was no demonstration that these questions had been asked prior to the motion for juror interview, or that juror Subaran had failed to answer them directly, the element of concealment has not been demonstrated. See Parra v. Cruz, 59 So.3d 211 (Fla. 3d DCA 2011) (holding that alleged undisclosed prior litigation history not squarely asked for was not concealed, and because not shown relevant to case, does not warrant juror interview). Similarly, it has not been shown that lack of diligence on the part of the Maldonados in filing the motion for juror interview was attributable to the alleged failure to disclose the information.

Setting aside the arguments of Dr. Simon that the motion to interview was not timely filed and that good cause for the late filing was not shown, we find that the motion to interview jurors and accompanying affidavit failed to state a legally sufficient reason to conduct a juror interview, as the motion was based upon conclusory allegations and on the mere possibility of juror misconduct without supporting documentation or a direct showing that the juror had failed to answer truthfully or disclose information in response to direct questions on voir dire. Parra v. Cruz, 59 So.Sd 211.

For these reasons, we find that the Mal-donados failed to meet their burden of showing that nondisclosure entitled them to a new trial, and we hold that the trial court abused its discretion in ordering a juror interview and a new trial based on the alleged non-disclosure of a juror.

The Maldonados cross-appeal the trial court’s ruling excluding cross examination trial testimony of Dr. Simon to show that she received low rating evaluations during her residency. The proffered evidence also showed that, as a result of the ratings, the doctor brought a gender discrimination lawsuit. The trial court ruled that the probative value of the low ratings did not outweigh the potential harmful effect of the testimony concerning the discrimination suit and the confusion that such evidence would have brought to the overall trial. It must be shown that the probative value of admitting evidence of the training and residency of Dr. Simon, outweighs the prejudice which would have resulted in the admission of evidence concerning the gender discrimination lawsuit brought by Dr. Simon in response to her evaluations. See Sims v. Brown, 574 So.2d 131 (Fla.1991). The collateral issue of a gender discrimination lawsuit, as an explanation of the doctor’s performance in training and residency, would have resulted in such prejudice outweighing the probative value of the admission of the evidence and, therefore, the trial court was correct in refusing to allow cross examination on the training and residency of the doctor at trial.

The next issue on cross-appeal is whether evidence of the subsequent, treating doctor’s alleged negligence was admissible to show the cause of the plaintiff’s injuries. Such evidence is admissible unless the plaintiff can prove that the original defendant, Dr. Simon, was liable as a matter of law. If not, it is for the jury to decide whether both defendants were liable. See Barrios v. Darrach, 629 So.2d 211 (Fla. 3d DCA 1993); see also Haas v. Zaccaria, 659 So.2d 1130 (Fla. 4th DCA 1995). We find that the trial court was correct in admitting evidence of the subsequent, treating doctor’s alleged negligence, and was correct in allowing the subsequent, treating doctor as a Fabre defendant on the jury verdict form since it was not shown that Dr. Simon was liable as a matter of law. Accordingly, we affirm the trial court’s rulings on cross-appeal.

Affirmed in part, reversed in part.

      . Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

      . Juror Subaran answered yes to the question of whether she or a family member had ever made a legal claim. She followed the answer with a description of a claim she had made.

      . The trial court questioned juror Subaran as to whether the fact that she worked for doctors in an emergency room would affect her ability to be fair. She responded that it would not. She revealed that she had made a claim against a doctor in 2005, but that it would not affect her ability to be fair and impartial. She admitted to having an accident at work where she dislocated a disk and was seen by a physician’s assistant and orthopedic specialist. Although dissatisfied with her treatment, she stated that she would be fair and honest in dealing with the case. Su-baran told plaintiffs' counsel that she had a medical assistant diploma and worked in the emergency room at Jackson South verifying insurance. She did not raise her hand when asked if there were any nurses, doctors or healthcare professionals in her close family.

      .The plaintiffs submitted eleven exhibits, including a claim of lien by Homestead Hospital against the juror for hospitalization, and a report showing a possible accident or insurance subrogation claim in which she may have been involved. The juror disclaimed knowledge of the hospital lien, could not remember the accident and had no knowledge of the subrogation claim as it was handled by her husband. However, she admitted to being involved in an accident resulting in hospitalization for a fractured pelvis. She stated that she did not tell the court about these accidents during jury selection because she did not recall them at the time and she described them as being minor. Other documents introduced included a printout of a case in circuit court, a printout of a debt collection action, a mortgage foreclosure action filed after her jury service and other lawsuits against her husband, of which she had no knowledge and which were unserved or dismissed, a lien for roof repair, resolved by payment, and complaints against other individuals with the same last name.

      . Juror Subaran answered on her juror questionnaire, "yes/no," in answer to whether anyone close to her worked as a doctor. The record does not show that she was ever asked directly if anyone close to her was a doctor. We reject the Maldonados' contention that Subaran concealed this information.

      . Florida Rule of Civil Procedure 1.431(h) provides:
      (h) Interview of a Juror. A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time.
      The Maldonados' motion was filed one day late requiring a showing of good cause for the late filing. See Beyel Bros. v. Lemenze, 720 So.2d 556 (Fla. 4th DCA 1998) (holding that a motion to interview jurors filed three months after the return of the jury verdict was untimely; citing Fla. R. Civ. P. 1.530(b), which requires a motion for new trial to be served not later than ten days after the return of the jury verdict).


text:
    Ronnell D. McKINNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1355.
    District Court of Appeal of Florida, First District.
    April 27, 2011.
    Rehearing Denied June 24, 2011.
    Ronnell D. McKinney, 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.

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


text:
    Herbert RUPPRECHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0451.
    District Court of Appeal of Florida, First District.
    April 27, 2011.
    Rehearing Denied June 24, 2011.
    Herbert Rupprecht, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Floyd v. McNeil, 985 So.2d 599 (Fla. 1st DCA 2008).

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


author: SUAREZ, J. SCHWARTZ, Senior Judge

text:
    AVISENA, INC., Appellant, v. Alberto C. SANTALO, and CareCloud Corporation, Appellees.
    No. 3D10-178.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.

      Proskauer Rose and Allan H. Weitzman and Andrea R. Bernstein, Boca Raton, for appellant.
    Coffey Burlington and Kevin C. Kaplan, for appellees.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Avisena, Inc., (“Avisena”), a Florida corporation, appeals from a non-final order denying its motion for a preliminary injunction against Alberto C. Santalo (“Santalo”) and CareCloud Corporation (“CareCloud”) for alleged violation of a non-competition agreement. We affirm, as Avisena cannot prove a likelihood of success on the merits.

The parties have stipulated that Santalo, the founder, former president, and chief executive officer of Avisena, was terminated without cause on September 15, 2008. While with Avisena, Santalo entered into an employment agreement which contains the post-employment non-competition provisions in question. The period of time in which the employee could be restricted from competing was dependent upon whether, and for what reason, the employee was either terminated by Avisena or chose to leave the company’s employ. Santalo interpreted the non-competition provisions of his employment agreement to mean that, because he was terminated by Avisena without cause, a twelve-month “Restricted Period” applied pursuant to the express wording of section 8.9 of the employment agreement. Avisena disagreed, claiming that the general, two-year non-competition provision of section 8.1 applied.

After leaving Avisena, Santalo formed CareCloud and on September 16, 2009, one year and three days after being terminated from Avisena, started directly competing with Avisena. Avisena filed the present complaint and request for a temporary injunction. Santalo testified at the temporary injunction hearing that he incorporated CareCloud in January, 2009, and began competing with Avisena on September 16, 2009, two days after what he claimed was the end of the twelve month Restricted Period. The trial court refused to grant the temporary injunction and this appeal followed.

A party seeking a temporary injunction must establish all four of the following elements: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (8) the threatened injury to the petitioner outweighs any possible harm to the respondent, and (4) the granting of a temporary injunction will not disserve the public interest. The burden of persuasion rests on the applicant. See Cordis Corp. v. Prooslin, 482 So.2d at 489, 490 (Fla. 3d DCA 1986). The essential issue in this appeal is whether Avisena met its critical burden of establishing a substantial likelihood of success on the merits. Specifically, Avisena must prove that the two-year non-competition clause of the employment agreement applied to the facts of Santalo’s termination without cause, and not the one-year non-competition provision. The trial court properly denied the temporary injunction as Avisena cannot, as a matter of law, demonstrate substantial likelihood of success on the merits; the plain wording of the employment agreement provides that the one-year, and not the two-year, non-competition restriction applies.

First, the clear and unambiguous provisions of the employment agreement provide for a twelve-month non-competition period following a termination of the employee without cause by the company, as happened here. Based on that fact alone, Avisena cannot demonstrate substantial likelihood of success on the merits. The employment agreement first states in Section 5, Termination of Employment, the following , three reasons that an employee’s employment may be terminated either by the company or by the employee: 1) Subsection 5.2, Termination by Company For Cause, states how and why the company could terminate an employee “for cause” and what actions by the employee constitutes “for cause”; 2) Subsection 5.4, Termination by Employee for Cause, states how and why an employee could terminate his or her own employment “for cause” and what actions by the company constitutes “for cause”; and 3) Subsection 5.5, Termination by Company without Cause, states that the employee may be terminated by the company for any reason or for no reason. The employment agreement next specifies varying lengths of non-competition periods depending on which of the three subsections of Section 5 applied to the employee’s departure from the company. The parties stipulated that Santalo was terminated without cause pursuant to subsection 5.5.

Section 8 of the Employment agreement, entitled Exclusive Employment and Non-Competition, specifically in subsection 8.9, Restricted Period, states that

The “Restricted Period ” shall mean that eighteen-month period of time immediately following the Employee’s termination from the Company if the employee is terminated With Cause pursuant to Section 5.2 of this Agreement. If the Employee is terminated Without Cause pursuant to Section 5.1 of this Agreement or terminates this Agreement for Cause pursuant to Section 5.3 of this Agreement, the Restricted Period shall be the twelve-month period immediately following the Employee’s termination from the Company.

As Santalo was terminated without cause pursuant to subsection 5.5, then according to subsection 8.9 the applicable period of non-competition was twelve months from the date of termination.

The next question is whether San-talo violated the non-competition provision during the twelve months following his termination. There is no evidence in the record that CareCloud solicited Avisena’s customers or employees prior to expiration of the twelve-month Restricted Period. See, e.g., Harllee v. Professional Serv. Indus., Inc., 619 So.2d 298 (Fla. 3d DCA 1992) (holding that mere preparation to open a competing business, such as assisting in the opening of a bank account, the obtaining of office space and other services with respect to the future employer are insufficient to demonstrate a breach) (citing to Fish v. Adams, 401 So.2d 843 (Fla. 5th DCA 1981)); see also Furmanite America, Inc. v. T.D. Williamson, Inc., 506 F.Supp.2d 1134 (M.D.Fla.2007) (same); Grant v. Robert Half Intern., Inc., 597 So.2d 801 (Fla. 3d DCA 1992) (finding temporary injunction appropriate where employer proved that former employee solicited employer’s clients and damaged its goodwill and business reputation). There is no evidence in this record that Santalo violated the non-competition provision of his employment agreement. As such, Av-isena cannot prove a substantial likelihood of success and the trial court correctly denied Avisena’s motion for a temporary injunction.

Avisena argued below and on appeal that subsection 8.1 applies and not subsection 8.9; alternatively, Avisena argued that the contract is ambiguous. We disagree with both arguments. Subsection 8.1 states that “Employee shall not for a period of two (2) years during the period of time immediately following the Employee’s termination of employment with the company_” The language of this provision, “Employee’s termination of employment with the company,” unambiguously refers to the employee’s own termination of his or her employment. As stated earlier in this analysis, Section 5 specifically refers to only three termination events— when the Company terminates the employee with and without cause, and when the employee terminates the employment for cause. The only scenario not covered in Section 5 is when the employee terminates his or her employment without cause. That event is clearly provided for by subsection 8.1, and requires a harsher, two-year period of non-competition. It does not, however, apply to the facts presented here.

Affirmed.

ROTHENBERG, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would reverse with directions to enforce a two year non-compete requirement.

I

The Agreement

First, I think that Section 8.1 of the agreement unambiguously so provides. It says:

8.1Non-Competition Covenant. Employee shall not for a period of two (2) years during the period of time immediately following the Employee’s termination of employment with the Company, in any and all places or areas within the continental United States (“Restricted Territory ”),: (i) engage in any activity which....

The word “termination” is a noun which simply means the end of a given period of time or relationship, regardless of how it occurs. Thus, the promise made was that after termination — whether caused by the employee or employer, the employee would not engage in the enumerated activities. Plainly put, the words “Employee’s termination” describe whose termination not who was doing the terminating. To hold otherwise is to read language into the parties’ agreement that simply is not there. See Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995) (“[A] court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties.”).

Moreover, section 8.9, upon which the court relies, has no application. Section 8.1 prohibits a number of activities by the employee for a two year period; this section is a broad prohibition of activities and does not use the term “restricted period” as defined in section 8.9 at all; section 8.1.1 prohibits a narrow range of activities for a “restricted period,” and it is a violation of that section which would require reference to section 8.9. The employer claimed a violation of section 8. 1, therefore, section 8.9 had no application and the real and only question for the trial court was whether that provision as written was enforceable. Because there was no violation of section 542.335, Florida Statutes (2010), either in terms of the activity or the time period prohibited, the preliminary injunction sought should have been granted. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979) (“Every provision in a contract should be given meaning and effect and apparent inconsistencies reconciled if possible.”); Transport Rental Sys., Inc. v. Hertz Corp. 129 So.2d 454, 456 (Fla. 3d DCA 1961) (“If a contract contains clauses which are apparently repugnant to each other, they must be given such an interpretation as will reconcile them if possible.”); see also Izadi v. Machado (Gus) Ford,, Inc., 550 So.2d 1135, 1138 (Fla. 3d DCA 1989) (same).

II

The Intent of the Parties

Thus, on either or both grounds, I do not believe the contract, taken either as a whole or in part, is ambiguous. If, however, as shown by the fact that both the majority and I believe it unambiguously provides two direct opposites, the resulting conflict must be resolved by considering the parties’ mutual intentions as to the term in question. Gulf Cities Gas Corp. v. Tangelo Park Serv. Co., 253 So.2d 744, 748 (Fla. 4th DCA 1971) (“Where the language of a contract is ambiguous or unclear as to a particular right or duty, the court may receive evidence extrinsic to the contract for the purpose of determining the intent of the parties at the time of the contract.”); see also Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010) (same); Killearn Homes Ass’n, Inc. v. Visconti Family Ltd. P’ship, 21 So.3d 51, 54 (Fla. 1st DCA 2009) (“When the terms of a written document are ambiguous and susceptible to different interpretations, extrinsic evidence may be considered by the court to ascertain the intent of the parties or to explain or clarify the ambiguous term.”).

On that issue, the principals of the appellant specifically testified that their financial investor insisted on an unqualified two year period of non-competition by the employee and that he in turn, unequivocally replied “no problem.” (The last minute change from the one year period that had previously been contained in section 8.1 to the two year term, which was not reflected in changes to the other terms of the draft agreement, is undoubtedly responsible for whatever confusion may exist among the final sections.) In discovery, Mr. Santalo could only offer the familiar, lame response that he “didn’t recall the incident.” Such a statement does not create a cognizable contradiction to clear evidence as to what actually occurred. See e.g., Fox v. Dep’t of Health, 994 So.2d 416, 418 (Fla. 1st DCA 2008) (“A witness’ testimony that he or she does not remember an incident does not constitute competent, substantial evidence that the incident did not occur.”); Home Ins. Co. v. C & G Sporting Goods, Inc., 453 So.2d 121, 123 (Fla. 1st DCA 1984) (“As C & G conceded in its own motion, the depositions of its employees showed only that its employees did not recall receiving the letters. That testimony was not competent to prove the negative.”).

Ill

As we have said,

Contract interpretation is for the court as a matter of law, rather than the trier of fact, only when the agreement is [a] totally unambiguous, or [b] when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties’ intentions is undisputed .... [e.s.]

Land O’ Sun Realty Ltd. v. REWJB Gas Invs., 685 So.2d 870, 872, n. 3 (Fla. 3d DCA 1996). I believe that both of these principles apply. Each requires a decision contrary to that of the court.

      . The mere fact that a contract is complex and requires some analysis to interpret it does not, by itself, render the agreement ambiguous. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003).

      .We note that the references made in subsection 8.9 to subsections 5.3 and 5.4 are clearly scrivener’s errors, and should be read as referring instead to subsections 5.4 and 5.5 of the Employment agreement.

      . Mis-identified in subsection 8.9 as subsection 5.4.

      . See Footnote 1, above.

      . Black’s Law Dictionary (9th ed. 2009) ("[T]ermination, n. (15c) 1. The act of ending something; EXTINGUISHMENT < termination of the partnership by winding up its affairs>.”); see La Fata v. Raytheon Co., 302 F.Supp.2d 398, 409 (E.D.Pa.2004) ("When the relevant statute failed to define the term ‘employment termination,’ the Third Circuit defined the word ‘terminate’ in an employment context as: ‘To discontinue the employment of.’ Moore v. Warehouse Club, 992 F.2d 27, 29 (3d Cir.1993) (citing American Heritage Dictionary, 2nd Edition 1254 (1982)). Black's Law Definition of ‘termination’ is used in this opinion as opposed to the Third Circuit’s definition in Moore of "terminate" because the Severance Pay Policy and the Termination of Employment Policy use the noun "termination.” The difference between the noun "termination” and the verb "terminate” is material in the instant case because a verb implies that an actor and an object is required, whereas a noun does not. Moore's definition of the verb "terminate” is less applicable.”).


text:
    Charles DOLBY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 5D09-2140.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Rehearing Denied July 11, 2011.
    Charles Dolby, Homosassa, pro se.
    Jeffery C. Close, State of Florida Department of Environmental Protection, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal, Charles Dolby challenges the Final Order of the Administrative Law Judge sustaining the allegations of the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment filed by the Florida Department of Environmental Protection. The charges against Mr. Dolby in the Notice of Violation were based on his actions in dredging and filling a portion of the wetlands on his property without a permit. Having thoroughly reviewed the record and relevant authorities, we conclude the issues raised by Mr. Dolby on appeal are without merit. We therefore affirm, with one exception.

We find it necessary to reverse in part and remand for the correction of what appears to us to be a scrivener’s error in the Final Order. This is an error pointed out by the Department in its Answer Brief. Specifically, the $2,000 penalty assessed for the “filling” violation charged in Count II of the Notice of Violation should be reduced to $1,000 because less than one-quarter of an acre was filled; in contrast, the $2,000 penalty for the “dredging” violation charged in Count I was appropriate because more than one-quarter of an acre, but less than a half acre, was dredged. See § 403.121(3)(c), Fla. Stat. (2008). The ALJ cited the correct statute, but then assessed the wrong penalty amount with regard to Count II. Accordingly, we reverse the $2,000 penalty assessment on Count II and remand for reduction of that penalty to $1,000 in accordance with section 40S.121(3)(c). The Final Order and penalties assessed therein are affirmed in all other respects.

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

GRIFFIN, COHEN, and JACOBUS, JJ., concur.


text:
    Carlos GERMAN, Appellant/Cross-Appellee, v. RYTA FOOD CORPORATION, Appellee/Cross-Appellant.
    No. 1D10-4102.
    District Court of Appeal of Florida, First District.
    May 9, 2011.
    Rehearing Denied July 6, 2011.
    Jorge A. Calil of the Law Offices of Jorge A. Calil, P.A., Miami, for Appellant/Cross-Appellee.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Ricardo Morales of the Law Office of Ricardo Morales, PLC, Doral, for Appellee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals, and the Employer cross-appeals, an order of the Judge of Compensation Claims (JCC) denying payment of all medical bills save one, and awarding costs and attorneys’ fees associated with that bill. For the reasons stated below, we affirm the issues raised on appeal. We reverse the award of the single medical bill, and the costs and attorney’s fees associated therewith, challenged on cross-appeal.

The JCC admitted, over the Employer’s authenticity and hearsay objections, the medical and billing records of Jackson Memorial Hospital (“Hospital”). This was error, because Claimant failed to present the elements necessary to prove their admissibility. Records of regularly conducted business activity are admissible under section 90.803(6), Florida Statutes, if it is shown that they were “ T) made at or near the time of the event recorded, 2) by, or from information transmitted by, a person with knowledge, 8) kept in the course of a regularly conducted business activity, and 4) it was the regular practice of that business to make such a record.’ ” Lowe’s of Tallahassee v. Giaimo, 552 So.2d 304, 305 (Fla. 1st DCA 1989) (citing Saul v. John D. and Catherine T. MacArthur Foundation, 499 So.2d 917, 920 (Fla. 4th DCA 1986)). Here, although the medical and billing records were admitted via deposition of their respective records custodians, Claimant’s counsel failed to elicit evidence of the first and second elements set forth above, even though the Employer timely objected at both depositions and the final hearing for failure to establish authenticity or a predicate to any exception to hearsay.

Specifically, the medical records custodian testified she obtained the records from the file room, they were kept in the normal course of doing business, they were kept in that file room in the normal course of doing business, and they are “an accurate reflection of what the medical records are for Mr. Carlos German.” From this evidence, the JCC could conclude the information was kept in the course of a regularly conducted business activity and it was the regular practice of that business to make such a record. The JCC could not conclude, however, that the records were made at or near the time of the events, nor that they were made by a person with knowledge.

Likewise, the billing records custodian for the Hospital testified the bills were kept in the “normal course of business,” and she printed the electronic file of the current billing records. Additionally, when asked whether she is the person with the most knowledge of the bills, she testified, ‘Yes. I serve as billing records custodian for Jackson Memorial Hospital.” This evidence also does not support a conclusion that the records were made at or near the time of the events by a person with knowledge.

Because the JCC erred in admitting the billing and medical records, it was error to award payment of one of those bills, and any error in denying payment of the other bills is harmless. It follows that the JCC erred in awarding costs and attorneys’ fees associated with those bills.

AFFIRMED in part and REVERSED in part.

HAWKES, THOMAS, and ROBERTS, JJ., concur.