author: LaROSE, Judge.

text:
    PACKAGING CORPORATION OF AMERICA, Great American Insurance Company, and Zurich American Insurance Company, Appellants, v. Gayle A. DeRYCKE, as Personal Representative of the Estate of Douglas C. DeRycke, Deceased, Appellee.
    Nos. 2D09-4116, 2D09-5207.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2010.
    Rehearing Denied Dec. 20, 2010.

      Ugo Colella and Eric Kuwana of Katten Muchin Rosenman LLP, Washington, D.C.; and Charles W. Hall and Mark D. Tinker of Banker Lopez Gassier P.A., St. Petersburg, for Appellants.
    George A. Vaka of Vaka Law Group, P.L., Tampa; and C. Steven Yerrid and David D. Dickey of the Yerrid Law Firm, Tampa, for Appellee.
   LaROSE, Judge.

Packaging Corporation of America (PCA) and its insurers appeal the final judgment awarding $5,165,413 in damages plus $400,000 in attorney’s fees and $110,000 in costs to Gayle DeRycke as personal representative of the Estate of Douglas DeRycke. We find merit in PCA’s arguments that the trial court erred in directing a liability verdict against PCA, in refusing to allow disclosure to the jury of a conditional settlement agreement, in denying PCA’s motion to offset damages with sums obtained from a collateral source, and in awarding attorney’s fees to Mrs. DeRycke. We affirm, without further discussion, two other issues presented on appeal by PCA. Athough we recognize that our decision will bring no immediate closure for Mrs. DeRycke, we are compelled to affirm in part, reverse in part, and remand for a new trial.

Factual Background

This case arises from a tragic automobile accident in which Mr. DeRycke was killed. Mr. DeRycke lived in New York; he worked for and was a shareholder of Buckeye Corrugated, Inc. Randall Knight lived in New Hampshire and worked for PCA. Mr. DeRycke and Mr. Knight were very close friends and business associates. In January 2001, Mr. DeRycke, Mr. Knight, and their spouses travelled to Florida. On January 18, 2001, Mr. Knight was driving everyone back to St. Peters-burg after dinner in Tampa. His vehicle overturned, killing Mr. DeRycke.

In 2002, Mrs. DeRycke, as personal representative, sued Mr. Knight; she sued PCA on a vicarious liability theory. Mr. Knight denied liability and asserted that a phantom vehicle caused the crash. PCA denied that Mr. Knight was acting within the course and scope of his employment.

A jury trial took place in December 2008. Mr. Knight admitted negligence and did not contest damages. PCA continued to deny liability and also asserted the phantom vehicle defense. Vernon Sum-walt, a former PCA vice-president who had retired and lived in South Carolina, was PCA’s corporate representative at trial. Mrs. DeRycke’s counsel had deposed Mr. Sumwalt several years before. At trial, Mr. Sumwalt unexpectedly testified that Mr. Knight caused the crash and Mr. DeR-ycke’s death. He also conceded that if Mr. Knight and Mr. DeRycke discussed business at dinner before the crash, it could have been a business-related dinner.

During his testimony, Mr. Sumwalt violated an order prohibiting any reference to Mrs. DeRycke’s settlement with another party. The trial court held Mr. Sumwalt in contempt. For a variety of reasons, the trial court eventually declared a mistrial. Thereafter, the trial judge recused himself. The judge to whom the case was transferred ordered retrial for June 2009 on the issues of the scope of Mr. Knight’s employment with PCA at the time of the crash and damages.

In anticipation of the retrial, PCA identified Mr. Sumwalt as its corporate representative. It came as no surprise, therefore, that at the May 13, 2009, pretrial conference, the trial court ordered PCA to produce Mr. Sumwalt for trial. Mrs. DeR-ycke’s counsel served Mr. Sumwalt with a South Carolina subpoena for video testimony to be shown live to the jury via a satellite feed. Mr. Sumwalt told the process server that he could not be in South Carolina for video testimony because he was supposed to be in St. Petersburg for the trial. At this point, the parties anticipated Mr. Sumwalt’s participation at the second trial.

Mr. Sumwalt, apparently, had a change of heart. In a May 29, 2009, letter, PCA’s counsel advised Mrs. DeRycke’s counsel that Mr. Sumwalt now claimed to have scheduling conflicts. Mrs. DeRycke’s counsel reminded PCA that the trial court had ordered Mr. Sumwalt to attend trial and sought assurances that he would honor the subpoena to testify. PCA’s counsel responded that he was making an effort to have Mr. Sumwalt appear at trial, but that PCA could not force Mr. Sumwalt to do so; he was retired and lived outside of Florida.

On June 1, 2009, Mr. Sumwalt, through his own counsel, filed a motion in South Carolina state court to quash the subpoena. PCA’s counsel informed Mrs. DeR-ycke’s counsel on June 3 that Mr. Sumwalt indicated he might be in Iowa at the time of trial. Mrs. DeRycke’s counsel moved to enforce the Florida trial court’s order requiring Mr. Sumwalt to appear at trial or, in the alternative, for sanctions.

At a June 4, 2009, hearing, the trial court reiterated that PCA must produce Mr. Sumwalt. PCA argued that Mr. Sum-walt was a former employee who had a bad experience with the court at the first trial, that he no longer wanted to be involved, and that PCA had no control over him. PCA objected to any sanctions if Mr. Sum-walt did not appear. PCA’s counsel recounted that he had been unsuccessful in reaching Mr. Sumwalt’s personal attorney. He tried to make arrangements for Mr. Sumwalt to appear. Mrs. DeRycke’s counsel again offered to allow Mr. Sumwalt to appear by video. PCA agreed to video testimony but repeated that it had no power to make him appear. PCA conceded, however, that it might be bound by Mr. Sumwalt’s previous testimony.

The trial court was unmoved. It stated that Mr. Sumwalt must appear and testify as PCA’s corporate representative. If he refused, the trial court would issue a bench warrant for his arrest. Finally, the trial court warned that PCA could be defaulted if it did not produce Mr. Sumwalt.

The next day, on June 5, 2009, the South Carolina court granted Mr. Sumwalt’s motion to quash the South Carolina subpoena and “granted protection ■ from any obligations to appear and give testimony at either trial or through video deposition.” The South Carolina court noted that the subpoena was unduly burdensome because Mr. Sumwalt had already testified at a deposition and at the first trial and that Mr. Sumwalt was going to be in Iowa to deal with a family health matter.

On the morning of trial, it was clear that Mr. Sumwalt would not appear. Mrs. DeRycke moved for a directed verdict against PCA. PCA repeated that it could not force Mr. Sumwalt to attend. PCA argued that Mr. Sumwalt’s absence would not unduly prejudice Mrs. DeRycke because she could use his deposition and prior trial testimony. PCA assured the trial court that it would not contest any of his prior testimony. The trial court granted the motion and proceeded on the damages issue only. Two damages-related issues surfaced on retrial. We will discuss these issues in more detail as we proceed.

The jury returned a verdict in favor of Mrs. DeRycke. Subsequently, the trial court entered a final judgment for $5,165,413. It awarded her $400,000 in attorney’s fees under a prior proposal for settlement and $110,000 in costs. See § 768.79, Fla. Stat. (2009); Fla. R. Civ. P. 1.442.

Directed Liability Verdict

PCA argues that the trial court erred in directing a liability verdict against it. We agree. “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (citations omitted). Yet, “the imposition of the most severe sanctions ... should be reserved for those occasions where the violation is flagrant, persistent, willful or otherwise aggravated.” Alvarez v. Alvarez, 638 So.2d 153, 153 (Fla. 2d DCA 1994); see Carazo v. Status Shipping, Ltd., 613 So.2d 1329, 1330 (Fla. 2d DCA 1992). “Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an abuse of discretion.” Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033, 1036 (Fla. 4th DCA 2001); see Insua v. World Wide Air, Inc., 582 So.2d 102, 103 (Fla. 2d DCA 1991).

PCA could not compel Mr. Sum-walt to testify at trial. It had “no method to compel an out-of-state witness to testify in a civil proceeding.” See Washington v. State, 973 So.2d 611, 613 (Fla. 3d DCA 2008); see also Scripto Tokai Corp. v. Cayo, 623 So.2d 828, 828-29 (Fla. 3d DCA 1993) (holding trial court departed from essential requirements of law by ordering Scripto to produce nonresident former corporate officer for videotape deposition because it was legally unable to procure his attendance). Mr. Sumwalt wanted to disengage himself from the proceedings. The South Carolina court accommodated him. “[JJudicial acts of courts in other states, properly exercising their jurisdiction, should be respected under the comity doctrine” where not inconsistent with Florida public policy interests. Jeep Corp. v. Sanders, 546 So.2d 1098, 1099 (Fla. 5th DCA 1989) (reversing, on comity grounds, trial court’s order directing American Motors Corporation to allow ex-employee to testify for plaintiffs in suit against Jeep despite Ohio injunction precluding ex-employee from testifying).

The trial court exceeded its authority in directing a liability verdict. PCA explained its efforts to secure Mr. Sumwalt’s attendance and its inability to force him to appear. Quite simply, Mr. Sumwalt refused to participate further. See Herold v. Computer Components Int’l, Inc., 252 So.2d 576 (Fla. 4th DCA 1971) (holding trial court exceeded its proper discretion in dismissing case where plaintiff attempted to comply with order and sought to explain inability to do so). There was no showing that Mr. Sumwalt’s nonappearance would unduly prejudice Mrs. DeR-ycke. See Alvarez, 638 So.2d at 153-54. She could use Mr. Sumwalt’s prior deposition and trial testimony, which PCA agreed not to challenge. We must also note that our record is devoid of any facts suggesting that PCA orchestrated or otherwise played any role in Mr. Sumwalt’s decision not to provide testimony at the second trial.

As we did in Alvarez, we must conclude that the imposed sanction was unwarranted. See id. at 154. We are sympathetic to the fact that Mrs. DeRycke undoubtedly has endured turmoil in these proceedings. Nonetheless, we must reverse and remand for a new trial.

Mary Carter Agreement

Before the damages trial, Mrs. DeRycke moved in limine to prohibit any reference to settlement discussions. Responding to the trial court’s question of whether there was a settlement between Mrs. DeRycke and Mr. Knight, counsel advised as follows:

We don’t have a settlement. What we have is an agreement by the Plaintiff not to hold Mr. Knight responsible for a judgment in excess of his insurance coverage in return for his admission of liability and his agreement not to contest damages.... We will not know if he contests damages until the last testimony in the case is done.

Mr. Knight’s counsel labeled the arrangement a “conditional agreement.” Mr. Knight remained a party in the suit. PCA objected to the nondisclosure of the agreement to the jury based on the “Mary Carter” line of cases. The trial court granted the motion in limine, prohibiting disclosure of the agreement to the jury. It observed, however, that if settlement were reached during trial, it might tell the jury. PCA appeals that ruling. No discussion of the agreement occurred at trial, and it was not revealed to the jury.

The term “Mary Carter agreement” originated in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. 2d DCA 1967). There, the plaintiff agreed to limit the financial liability of two defendants and they agreed to continue as active defendants until all liability and damages questions were resolved between the plaintiff and the remaining defendants. Id. at 10. This “conditional agreement” would not be construed as a settlement and would not be revealed to the jury. Id. In Ward v. Ochoa, 284 So.2d 385, 387-88 (Fla.1973), the supreme court described a Mary Carter agreement in terms particularly applicable to the agreement between Mrs. DeR-ycke and Mr. Knight:

A “Mary Carter Agreement” ... is basically a contract by which one codefen-dant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other codefendants. Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the nonsigning defendants. By painting a gruesome testimonial picture of the other defendant’s misconduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret “Mary Carter Agreement.”

Id. at 387.

[Sjettling parties may enter a Mary Carter agreement to prejudice the nonset-tling defendant, particularly if the settling defendant has shallow pockets. The plaintiff may accept a fixed payment from the settling defendant (typically the full extent of his insurance coverage) in exchange for his assistance in securing a large judgment against his code-fendant.

John E. Benedict, Note, “It’s a Mistake to Tolerate the Mary Carter Agreement,” 87 Colum. L. Rev. 368, 372 n. 14 (1987). The Ochoa court concluded that Mary Carter agreements tend to mislead juries and judges and border on collusion and held that they would be admissible in evidence at the request of any other defendant who stood to lose as a result of such an agreement. 284 So.2d at 387-88.

Twenty years after Ochoa, the supreme court revisited Mary Carter agreements in Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993). That case involved an agreement by the plaintiff to settle all claims against one defendant in return for payment of her insurance policy limits and her continued participation in the litigation. Id. at 242. The trial court ruled that the agreement need not be disclosed to the jury unless the plaintiff called the settling defendant to testify at trial. Id. On appeal, the non-settling defendant argued that the trial court should have told the jury about the agreement. Id. The supreme court reversed and remanded for a new trial, concluding that ‘[t]he integrity of our justice system is placed in question when a jury charged to determine the liability and damages of the parties is deprived of the knowledge that there is, in fact, no actual dispute between two out of three of the parties.’ ” Id. at 247 (quoting Dosdourian v. Carsten, 580 So.2d 869, 872 (Fla. 4th DCA 1991)). The supreme court reasoned that the settling codefendant could influence the trial; even “[sjimple inaction on the part of one defendant can adversely affect the codefendant.” Id. at 247. The court explained further as follows:

Mary Carter agreements defeat the policies underlying all systems of allocation of liability among tortfeasors used in the United States today. Mary Carter agreements are used purposely to defeat any system of equitable sharing and to shift liability to the nonsettling defendant through manipulation of the trial process....
... In order to give a plaintiff and codefendant the freedom of making whatever arrangement they wish in settling their dispute, the civil litigation system and the nonsettling parties must pay the price of risking perjury, confusing juries and permitting evasion of the various allocation systems designed to ensure equitable sharing of liability among tortfeasors. Because it is not possible to ensure a fair trial for the nonsettling defendant when a Mary Carter agreement is involved, and because these agreements do not fairly encourage settlements, there is no reason to permit a Mary Carter agreement to determine the relative liability of those responsible to the plaintiff. Rather, public policy and an untainted adversary trial should determine the distribution of liability among the potential obligors.
The best solution is outright prohibition of Mary Carter agreements.

Id. at 245 (quoting June F. Entman, “Mary Carier Agreements: An Assessment of Attempted, Solutions,” 38 U. Fla. L. Rev. 521, 574, 579 (1986)). Dosdourian left the agreement intact and ordered that it be admitted into evidence at Dosdouri-an’s request but held that Florida courts would no longer recognize Mary Carter agreements. Id. at 246-48.

As with the agreement in Dosdou-rian, the agreement between Mrs. DeR-ycke and Mr. Knight limits his exposure in return for his continued participation in the litigation and various concessions on liability and damages. See 624 So.2d at 242; cf. La Costa Beach Club Resort Condo. Ass’n v. Carioti, 37 So.3d 303 (Fla. 4th DCA 2010) (holding settlement agreement between association and one officer was not an illegal Mary Carter agreement where it required only that officer make himself available for trial but not his full trial participation and where officer testified that he had settled and was no longer a defendant). Based on Dosdourian, PCA argues that if adversarial parties enter into a Mary Carter agreement, it must be disclosed to the jury. We note that Dos-dourian allowed the Mary Carter agreement to remain intact and ordered disclosure. Id. at 247-48. We also note that the parties did not argue below nor did they raise on appeal any issue as to whether the agreement was against public policy. See, e.g., Nieves v. Snapp Indus., Inc., 929 So.2d 623, 624 (Fla. 3d DCA 2006) (holding that trial court correctly denied motion by one of several defendants to enforce agreement, barred as a matter of law, that defendant would pay plaintiff $5000 in exchange for defendant’s agreement not to oppose summary judgment). Nevertheless, post-Dosdourian decisions compel us to conclude that the agreement with Mr. Knight was subject to disclosure.

In Goodyear Tire & Rubber Co. v. Ross, 660 So.2d 1109, 1110 (Fla. 4th DCA 1995), the plaintiff settled with one defendant before trial but did not dismiss that defendant from the trial until after she read the defendant’s responses to pretrial requests for admissions. The plaintiff persuaded the trial court that the settlement should not be disclosed to the jury. Id. The Fourth District, citing Dosdourian, reversed, holding that the failure to disclose the settlement agreement required a new trial. Id. at 1111; see also Naghtin v. Jones, 629 So.2d 1109 (Fla. 1st DCA 1994) (reversing and remanding for a new trial because trial court abused its discretion by failing to disclose to the jury plaintiffs settlement with defendant who remained in trial); cf. Peterson v. Morton F. Plant Hosp. Ass’n, 656 So.2d 501, 503 (Fla. 2d DCA 1995) (holding settlement not yet reduced to writing but where settling defendant remained only nominal defendant and played no role in trial was not Mary Carter agreement that must be disclosed to jury)-

The trial court erred in precluding disclosure of the agreement to the jury. We reverse the trial court’s ruling, but we leave the enforceability question for the trial court to address at retrial if raised by the parties.

Collateral Source Offset

Upon Mr. DeRycke’s death, his employer, Buckeye, paid his estate $941,760 for the book value of his company stock. To fund the stock repurchase, Buckeye used a portion of the proceeds of insurance policies it had purchased for itself designated for that purpose. Mrs. DeRycke sued Buckeye in Ohio state court, claiming that she was entitled to all proceeds from these policies. The Ohio Ninth Judicial District Court of Appeals agreed. It held that, under Buckeye’s Code of Regulations, the purchase price of stock from a deceased shareholder was the stock’s book value plus the amount of life insurance proceeds payable to Buckeye on account of the shareholder’s death. Buckeye Corrugated, Inc. v. DeRycke, No. 21459, 2003 WL 22797246, at *4-6 (Ohio Ct.App. Nov. 26, 2003). The Ohio court held that Buckeye must pay Mrs. DeRycke an additional $734,980, plus interest. Id. The proceeds of several other life insurance policies Buckeye had purchased for Mr. DeRycke, payable to the beneficiary of his choice, were also paid to the estate. Id. at *1.

At trial, PCA sought to offset the additional funds that Mrs. DeRycke received from the Buckeye insurance policies against the economic damages awarded by the jury for loss of income stemming from the premature sale of the stock. See § 768.76, Fla. Stat. (2009) (providing for reduction in damages award for amounts already paid to claimant from collateral sources). Section 768.76 provides, in part, as follows:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources....
(2) For purposes of this section:
(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

The trial court denied the motion for setoff because it found that the additional monies were life insurance policy proceeds excluded from setoff under section 768.76(2). PCA appeals that ruling.

We review the trial court’s construction of a statute de novo. Pinnacle Floor Covering, Inc. v. Dep’t of Transp., 16 So.3d 919, 921 (Fla. 2d DCA 2009). The funds at issue were not insurance proceeds paid directly to Mr. DeRycke’s estate. Buckeye was both the owner and beneficiary of these policies; the shareholder agreement obligated it to use the proceeds to repurchase Mr. DeRycke’s stock. The Ohio state court’s ruling settled the issue of stock valuation. The additional sums paid to the estate do not fall within the life insurance exception to the collateral source rule.

The jury awarded Mrs. DeRycke $692,308 in damages for her loss due to the premature sale of the stock. However, she already had been compensated $734,980 more than the book value of the stock. To allow double recovery would be a windfall for Mrs. DeRycke. See Pollo Operations, Inc. v. Tripp, 906 So.2d 1101, 1104 (Fla. 3d DCA 2005) (“The primary purpose behind the collateral source rule is to avoid double recovery by a plaintiff. The goal should be to make a plaintiff whole, not to bestow a windfall.”). Accordingly, we reverse the trial court’s ruling on this issue. On remand, the trial court shall offset this amount against any economic damages the jury awards for loss of income from the premature sale of the stock.

Attorney’s Fees

Pursuant to Mrs. DeRycke’s proposal for settlement, the trial court entered a judgment awarding her $400,000 in fees and $110,000 in costs. Because we are reversing and remanding for a new trial, we must, necessarily, reverse the award of fees and costs. See ARC Foods, Inc. v. MGI Props., 746 So.2d 514, 514 (Fla. 2d DCA 1999).

Affirmed in part, reversed in part, and remanded for a new trial.

WALLACE and BLACK, JJ., Concur.

      . Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. 2d DCA 1967), rejected by Ward v. Ochoa, 284 So.2d 385 (Fla.1973) (holding Mary Carter agreements must be disclosed to jury upon proper motion), abrogated by Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993) (holding Mary Carter agreements void and inadmissible).

      . Section 14.3(A) of the Code of Regulations provided that the purchase price, when purchased by Buckeye or another shareholder, was the stock’s value as determined by a majority shareholder vote at the annual meeting based on the Valuation Report. Section 14.3(B) provided that, if a share was purchased from a deceased shareholder and Buckeye owned an insurance policy on his life, the section 14.3(A) purchase price was to be increased by the difference between the book value of the policy and the amount of life insurance proceeds payable. Buckeye Corrugated, Inc. v. DeRycke, No. 21459, 2003 WL 22797246, at *4 (Ohio Ct.App. Nov. 26, 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gesuclais BRUTUS, Appellant, v. MEARS TRANSPORTATION GROUP and Bridgefield Insurance Company, Appellees.
    No. 1D10-2795.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Rehearing Denied Dec. 8, 2010.
    Gesuclais Brutus, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

By notice of appeal filed May 5, 2010, the appellant seeks review of an order rendered November 30, 2007. Because the notice of appeal appeared untimely, this court directed the appellant to show cause why the appeal should not be dismissed. The appellant has failed to respond to the show cause order. Accordingly, we dismiss this appeal for lack of jurisdiction. See § 440.25(5)(a), Fla. Stat. (2007) (providing that orders of judges of compensation claims “shall become final 80 days after mailing of copies of such order to the parties” unless timely appealed); Fla. R.App. P. 9.180(b)(3) (providing this court’s jurisdiction is invoked if notice of appeal is filed within thirty days of rendition of order to be reviewed); see also, e.g., Metellus v. State, 900 So.2d 491, 495 (Fla.2005) (noting jurisdictional rule cannot be altered by court or by agreement of parties); Metro. Dade County v. Vasquez, 659 So.2d 355, 356 (Fla. 1st DCA 1995) (dismissing untimely appeal for lack of jurisdiction). All pending motions are denied as moot.

DISMISSED.

WOLF, ROBERTS, and WETHERELL, JJ., concur.


author: PALMER, J.

text:
    Edwin MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3771.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2010.
    Rehearing Denied Dec. 13, 2010.

      Edwin Murphy, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Edwin Murphy (defendant) appeals his judgment and sentence on the charge of attempted sexual battery. Determining that the trial court committed fundamental error by sentencing the defendant without appointing him counsel for his sentencing hearing, we reverse and remand for resen-tencing.

A jury convicted the defendant of committing the crimes of attempted sexual battery and lewd or lascivious molestation. The defendant was sentenced to 30 years’ incarceration for lewd or lascivious molestation, including a 25-year mandatory minimum sentence. The court did not enter an order adjudicating the defendant guilty or sentence the defendant on his attempted sexual battery conviction because of the potential for a double jeopardy violation.

On direct appeal, this court reversed and remanded the defendant’s case, ruling:

In this [Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ] appeal, Edwin Murphy’s pro se brief raises one meritorious issue. Following a trial, Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At his sentencing hearing, Murphy sought dismissal of one of the two convictions on double jeopardy grounds. The trial judge, while conceding that a double jeopardy issue might exist, declined to rule on Murphy’s motion. Instead, the court adjudicated Murphy guilty of lewd or lascivious molestation and sentenced him to prison, while taking no action on the attempted sexual battery charge. The State concedes this was error.
A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act. Accordingly, we remand this matter to the trial court for the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime.

Murphy v. State, 16 So.3d 269 (Fla. 5th DCA 2009) (citations and footnote omitted). Judge Griffin concurred specially with the following opinion:

The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision in State v. Meshell, 2 So.3d 132 (Fla.2009), which may inform the trial court’s decision on remand.
In this case, count one charged capital sexual battery, alleging that defendant’s penis had union with the victim’s vagina. Defendant was found guilty of attempted sexual battery, which means that defendant did some act in furtherance of the charged offense but failed to complete it. See § 777.04(1), Fla. Stat. (2008). Count three, which charged lewd or lascivious molestation of the same victim, alleged that defendant intentionally touched her genitals or the clothing covering her genitals. Unlike count one, count three did not allege that defendant used his penis, but alleged a lewd touching.

Murphy, 16 So.3d at 269-70.

On remand, the trial court conducted a sentencing hearing on the defendant’s sexual battery conviction. The defendant was not appointed counsel for the hearing. The trial court adjudicated the defendant guilty and sentenced him to 15 years’ incarceration to run concurrent with his 30-year sentence for lewd and lascivious molestation.

The defendant argues that the trial court committed reversible error by not appointing him counsel for his sentencing hearing, citing to case law holding that where the sentencing error is due to judicial error the defendant is entitled to representation. See Nickerson v, State, 927 So.2d 114, 117 (Fla. 4th DCA 2006). The State concedes that a defendant is generally entitled to counsel at sentencing or re-sentencing. See Cross v. State, 18 So.3d 1235, 1236 (Fla. 1st DCA 2009) (stating that a defendant has the right to be represented by an attorney at resentencing). However, the State argues that the defendant was not entitled to the appointment of counsel because the trial court’s actions were ministerial. See generally Frost v. State, 769 So.2d 443, 444 (Fla. 1st DCA 2000) (holding that a trial court’s changing of the written sentence to conform with the oral pronouncement of sentence is ministerial); Navarrete v. State, 707 So.2d 803, 804 (Fla. 1st DCA 1998) (holding that a court’s correction of a scrivener’s error is a ministerial function); Williams v. State, 697 So.2d 584 (Fla. 4th DCA 1997) (holding that entering a written sentence where none exists is ministerial).

Here, the proceedings before the trial court were not ministerial. The court adjudicated the defendant guilty and sentenced him on the attempted sexual battery charge, and the court also rejected the defendant’s contention that his double jeopardy rights were violated by his convictions for both attempted sexual battery and lewd or lascivious molestation. As such, the defendant was entitled to the appointment of counsel.

The defendant also argues that his convictions for both attempted sexual battery and lewd and lascivious molestation violate his right against double jeopardy because both convictions arose from a single, continuous episode without a spatial or temporal break between each act to enable the defendant to form a new criminal intent for each separate act. We disagree.

The differences in the character and type of crime proven are as important as the spatial and temporal aspects when considering whether multiple punishments are appropriate. An analysis of those differences, as noted by Judge Griffin in her concurring opinion in the defendant’s initial appeal, leads to the conclusion that the defendant’s convictions for attempted sexual battery and lewd and lascivious molestation did not violate his double jeopardy rights. See also State v. Meshell, 2 So.3d 132, 135 (Fla.2009)(holding that acts of oral, anal, and vaginal penetration, as prescribed by statute defining lewd and lascivious battery, are distinct criminal acts, such that separate punishments for those acts do not violate double jeopardy, despite the fact that they occurred in the same criminal episode).

Accordingly, the defendant’s sentence for attempted sexual battery is reversed and this matter is remanded for a resen-tencing hearing at which the defendant shall be appointed counsel.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ„ concur.


author: CLARK, J.

text:
    Walter N. SMITH, Appellant, v. Walter A. McNEIL, SECRETARY, Florida Department of Corrections, Appellee.
    No. 1D09-5630.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.
    Rehearing Denied Dec. 14, 2010.

      Walter N. Smith, pro se, Appellant.
    Bill McCollum, Attorney General, La-Dawna Murphy, Assistant Attorney General, and Kathleen Von Hoene, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   CLARK, J.

Walter N. Smith, a prisoner, in the custody of the Florida Department of Corrections, appeals the trial court’s final order denying the writ of habeas corpus and dismissing his petition as moot. Appellant’s petition was filed in the circuit court in July, 2009, challenging his retention in close management status within Florida State Prison. However, attached to its responsive pleading, the Department of Corrections submitted evidence showing that in August, 2009, Appellant was removed from close management status and transferred to another correctional facility where close custody is not a classification option.

On appeal, Smith asserts that the trial court erred in deeming his petition moot because his custody classification is capable of repetition yet evading judicial review, and because he continues to suffer adverse legal consequences from his former classification. See Martinez v. Singletary, 691 So.2d 537 (Fla. 1st DCA 1997).

Because the facts of this case distinguish it from Martinez v. Singletary, the trial court proceedings did not qualify for the exceptions to the mootness doctrine set out in that opinion. Unlike Martinez, Appellant’s close management classification was not temporarily suspended while he was transferred for treatment with the expectation that he would return to his original facility and custody status without further proceedings. Also unlike Martinez, Appellant is serving a life sentence, which precludes the prospects of gain-time and supervised release which might be collaterally affected by Appellant’s classification record. See § 944.275(2)(a), Fla. Stat.; Tal-Mason v. State, 700 So.2d 453 (Fla. 4th DCA 1997).

The trial court’s final order was not erroneous and is therefore AFFIRMED.

KAHN and LEWIS, JJ., concur.


author: ORFINGER, J.

text:
    Harold Dale LINDON, Appellant, v. DALTON HOTEL CORPORATION and Roy B. Dalton, Jr., Appellees.
    Nos. 5D08-4289, 5D09-210.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.

      Thomas Wade Young, of Dempsey & Associates, P.A. Winter Park, for Appellant.
    Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellees.

      . Judge Jacobus did not participate in oral argument but has reviewed the entire proceedings, including the video of the oral argument.

   ORFINGER, J.

Harold Lindon appeals an order granting Roy B. Dalton, Jr.’s motions for directed verdict and summary judgment, and Dalton Hotel Corporation’s (DHC) motions for directed verdict, judgment notwithstanding the verdict (JNOV), and summary judgment in a breach of contract and torts action. We affirm the summary judgment in favor of DHC and Dalton on Lindon’s tort claims, but reverse the court’s rulings on the motions for directed verdict and JNOV.

This ease presents a dispute between Lindon, a minority shareholder in DHC; Dalton, the majority shareholder; and DHC. Dalton was the president, sole director, and chief executive officer of DHC, which was formed in April 1998. DHC was the sole general partner of Dalton Hotel, Ltd., a Florida limited partnership. Dalton, an attorney with no experience operating hotels, and Lindon, who had significant experience in the hospitality industry, entered into an understanding in 1998 to work together to develop a hotel in downtown Orlando. In October 1998, Lin-don, whose tasks included development and operations, identified a potential hotel site and moved the project forward with the parent company of Embassy Suites. Lindon negotiated with Embassy Suites on behalf of DHC, arranged and executed construction contracts and was involved in obtaining financing for the project. For these efforts, Lindon understood that he was to receive twenty-five percent of DHC’s stock.

In February 1999, as agreed, Dalton transferred twenty-five percent of his 100 shares of stock in DHC to Lindon. Dalton transferred another five shares to his legal assistant. Dalton’s attorney prepared a shareholders’ agreement which the three shareholders and DHC executed in March 1999. Crucial to this case is the provision found in Article 11(a) of the agreement, which provides:

It is provided that a stockholder currently employed by the Corporation, if any, who ceases to be an employee of the Corporation shall be deemed to have served an offer to sell all of his shares of stock in the Corporation on the date such employment ceases.

(Emphasis added).

This provision became significant when Dalton informed Lindon that his employment with DHC would be terminated effective March 31, 2002, due to a significant downturn in business following the terrorist attacks of September 11, 2001. It is undisputed that Lindon was an employee of DHC when he was informed of his termination. However, a dispute existed as to when Lindon became a DHC employee, and, specifically, whether he was “currently employed” at the time that the shareholders’ agreement was executed in March 1999. The parties agree that Lin-don’s employment status is critical because if he was a DHC employee when he signed the agreement, he was obliged to sell his shares back to DHC at the agreed-upon price. But, if he was not employed by DHC when he signed the agreement, Article 11(a) of the agreement is inapplicable.

Dalton informed Lindon that due to his termination, he was deemed to have served an offer to sell all of his stock in DHC back to the corporation pursuant to Article 11(a). Dalton provided Lindon with a notice of a special meeting of DHC’s shareholders to address the buyback of Lindon’s stock. Lindon objected to the meeting and again registered his objection at the special shareholders’ meeting. Notwithstanding, on May 21, 2002, Dalton notified Lindon by letter that DHC “had effectuated the purchase of [Lindon’s] shares for the sum of $0,” an amount equal to the adjusted book value of the shares.

Almost four years later, Lindon sued Dalton and DHC, asserting claims for breach of the shareholders’ agreement against DHC and Dalton, and claims of breach of fiduciary duty and constructive fraud against Dalton. Through a series of rulings, the breach of fiduciary duty and constructive fraud claims were resolved adversely to Lindon and Lindon’s breach of contract claim against DHC was effectively limited to a claim for nominal damages. At trial, the court granted a directed verdict in favor of Dalton on the breach of contract claim. Lindon’s breach of contract claim against DHC was submitted to the jury, which found Lindon was not employed by DHC when he signed the agreement and was not, as a result, bound by the buy-back provisions of the shareholders’ agreement. The jury further found that the adjusted book value of Lindon’s shares on the buyout date was zero, but that Lindon was entitled to “nominal” damages of $180,000. The trial court granted DHC’s motions for directed verdict and JNOV, finding that no reasonable jury could have found that Lindon was not an employee of DHC at the time that he executed the agreement or could have awarded Lindon $180,000 in nominal damages, and entered final judgment in favor of DHC and Dalton. This appeal followed.

Tort claims

We conclude that the trial court correctly disposed of Lindon’s tort claims by way of summary judgment. See Vesta Constr. & Design, L.L.C. v. Lotspeich & Assoc., Inc., 974 So.2d 1176 (Fla. 5th DCA 2008); Detwiler v. Bank of Cent. Fla., 736 So.2d 757 (Fla. 5th DCA 1999).

Breach of Contract Claim against DHC

Lindon argues that the trial court erred in overriding the jury’s verdict on the pivotal issue in the case, i.e., whether he was an employee of DHC at the time that he signed the shareholders’ agreement. It was conceded below that if Lindon was not an employee at signing, the agreement’s terms allowed him to retain his stock after separation from employment with DHC. Lindon claims that given the jury’s verdict, Dalton wrongfully forced him to redeem his shares in 2002.

When deciding the appropriateness of a directed verdict or JNOV, Florida trial and appellate courts use the test of whether the verdict is, for JNOVs, or would be, for directed verdicts, supported by competent, substantial evidence. Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75, 79 (Fla. 5th DCA 2006). A motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the nonmoving party and the trial court therefore determines that no reasonable jury could render a verdict for that party. See Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999). If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law. Scott v. TPI Restaurants, Inc., 798 So.2d 907, 909 (Fla. 5th DCA 2001); see Etheredge v. Walt Disney World Co., 999 So.2d 669, 671 (Fla. 5th DCA 2008).

Here, the trial court misapplied this standard in granting the JNOV. While Dalton and DHC presented significant evidence supporting their position that Lin-don was an employee of DHC at the time that he executed the shareholders’ agreement, there was some evidence that supported the jury’s verdict that he was not so employed. For example, Lindon testified that he was not an employee at the time that he signed the shareholders’ agreement in March 1999, and he was also not receiving a salary. In addition, when the parties signed the shareholders’ agreement in March 1999, Lindon also executed a federal employee eligibility verification form (1-9), in which DHC declared, under penalty of perjury, “that the employee [Lindon] began employment on August 19, 1999.” The trial court minimized this evidence, explaining that Lindon’s testimony was self-serving and not competent substantial evidence; that the absence of a regular salary was understandable given that DHC was a start-up business, and Lindon received stock in lieu of a salary; and that the 1-9 verification form was not conclusive of employment status.

While the court’s analysis may have been relevant in considering DHC and Dalton’s alternative motion for a new trial based on a “manifest weight of the evidence” standard, it was inappropriate in considering a JNOV. Lindon’s testimony did not contradict his previous position in the litigation or a clear written understanding between the parties. Instead, his testimony was competent evidence of his status with DHC and was buttressed by the 1-9 verification form. Accordingly, we conclude that the trial court erroneously made a credibility determination by weighing Lindon’s testimony and other evidence. See Johnson v. Swerdzewski, 935 So.2d 57 (Fla. 1st DCA 2006) (explaining in context of reversing JNOV that once trial court submits case to jury, credibility assessment of testimony is assigned to jury).

Having concluded that Lindon presented some evidence in support of his contention that he was not an employee of DHC when he signed the shareholders’ agreement, we are compelled to reverse the JNOV order. In doing so, we remand for consideration of DHC’s alternative motion for a new trial. In considering that motion, the court should determine whether the verdict is contrary to the manifest weight of the evidence. If it is deemed to be so, the court should order a new trial on the breach of contract claim against DHC. See Smith v. Brown, 525 So.2d 868 (Fla.1988).

Breach of Contract Claim against Dalton

Lindon also contends that based upon the verdict, he was entitled to retain his DHC stock after separating from employment, and that Dalton wrongfully caused DHC to redeem his stock, thereby breaching the shareholders’ agreement. The trial court granted a directed verdict in favor of Dalton at the close of the evidence, concluding that section 607.0732(6), Florida Statutes (2002), insulates Dalton from personal liability from Lindon’s breach of contract claim. We disagree.

The shareholders’ agreement was one “among Dalton Hotel Corp.... Roy B. Dalton, Jr., Beth H. Nelson and Dale Lindon.” It provides that “any party may enforce this Agreement by specific performance, suit for damages or otherwise.” Dalton claims, and the trial court agreed, that section 607.0732(6) shields him from individual liability. Conversely, Lindon posits that because Dalton was a party to the shareholders’ agreement, his actions render him personally liable for breach of the agreement.

The validity of shareholder agreements is recognized by Florida law. § 607.0732, Fla. Stat. (2002). Specifically, section 607.0732(6) provides:

607.0732. Shareholder agreements
(6) The existence or performance of an agreement authorized by this section shall not be a ground for imposing personal liability on any shareholder for the acts or debts of the corporation even if the agreement or its performance treats the corporation as if it were a partnership or results in failure to observe the corporate formalities otherwise applicable to matters governed by the agreement.

As the statute clearly states, it protects individual shareholders who sign a shareholders’ agreement from personal liability for “the acts or debts of the corporation.” It does not insulate a shareholder from personal liability for his own breach, if any, of a shareholders’ agreement. See Stricker v. Epstein, 213 Ga.App. 226, 444 S.E.2d 91, 96 (1994) (recognizing that shareholders’ agreement is between shareholders and cannot bind corporation); see also Silverstein v. David J. Stone & Co., No. Civ. A. 11392-NC, 1998 WL 409151 (Del.Ch.1998) (unreported decision, finding that shareholders were personally liable as parties to shareholders’ agreements). We conclude that the trial court erred in directing a verdict in favor of Dalton on Lindon’s breach of contract claim.

Damages

Because we reverse the JNOV in favor of DHC and the directed verdict on the breach of contract claim against Dalton, we must address the issue of the proper measure of damages applicable to these claims. Preliminarily, we observe that if there is a retrial and the jury finds that Lindon was an employee of DHC when he executed the shareholders’ agreement, the agreement controls the valuation of his stock. However, if he was not an employee when he executed the agreement, the agreement’s valuation of his stock is irrelevant.

The measure of damages issue arose below in several ways. In a pre-trial order, the court denied Lindon’s motion to compel discovery of DHC’s post-2003 financial records. Lindon maintained such records were relevant to his damages resulting from the wrongful redemption of his stock. At trial, Lindon attempted to testify about the value of his stock post-redemption. However, the court excluded the testimony, ruling that the shareholders’ agreement, which provided that the stock would be valued at adjusted book value at the time of the stock’s redemption, would apply regardless of Lindon’s employment status. As such, the jury was instructed that the measure of damages “is the adjusted book value of [DHC] as of March 31, 2002.”

It is well-settled that the purpose of damages is to restore an injured party to the same position that he would have been in had the other party not breached the contract. Capitol Envtl. Servs., Inc. v. Earth Tech, Inc., 25 So.3d 593, 596 (Fla. 1st DCA 2009); Mnemonics, Inc. v. Max Davis Assocs., Inc., 808 So.2d 1278, 1280 (Fla. 5th DCA 2002). In restoring the injured party to the “same position,” he “is not entitled to be placed, because of that breach, in a position better than that which he would have occupied had the contract been performed.” Madison Fund, Inc. v. Charter Co., 427 F.Supp. 597, 608 (S.D.N.Y.1977) (applying Florida law); see Restatement (Second) of Contracts § 347 cmt. A (1981) (“Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of his bargain by awarding him a sum of money that will ... put him in as good a position as he would have been in had the contract been performed.”). Instead, the injured party may only recover those damages that naturally flow from the breach and can reasonably be said to have been contemplated by the parties at the time that the contract was made. Mnemonics, 808 So.2d at 1280; Scott v. Rolling Hills Place, Inc., 688 So.2d 937, 940 (Fla. 5th DCA 1996). It is not necessary that the parties have contemplated the exact injury that occurred as long as the actual consequences “could have reasonably been expected to flow from the breach.” Mnemonics, 808 So.2d at 1281.

Relying on Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037, 1040 (Fla.1982), DHC and Dalton fix damages as of 2002, the date of the alleged breach. In Hourihan, the court held that damages for breach of contract are measured as of the date of the breach and that “fluctuations in value after the breach do not affect the nonbreaching party’s recovery.” Id. While that correctly sets forth the general rule, it is subject to exceptions not implicated in Hourihan. See Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla. 2d DCA 1976). For instance, in James Wood General Trading Establishment v. Coe, 191 F.Supp. 330 (S.D.N.Y.1961), reversed on other grounds, 297 F.2d 651 (2d Cir.1961), and Mekrut v. Gould, 16 Misc.2d 326, 188 N.Y.S.2d 6 (N.Y.Sup.Ct.1959), the courts deemed evidence of the subsequent value of stock relevant in assessing damages for breach of contract or the negligent failure to sell the stock at a specific time. Due to the difficulty of establishing the value of stock in a close corporation, broad latitude is allowed in proving value, and thus, the value at times other than the date of sale may suffice. See Glick v. Campagna, 613 F.2d 31 (3d Cir.1979); 79A C.J.S. See. Regulation § 385 (2010); see generally Madison Fund, Inc., 427 F.Supp. at 609; Grimes v. Holt, 225 So.2d 566 (Fla. 3d DCA 1969) (holding that measure of damages for conversion of personal property is generally value of property at time of conversion, but damages for conversion of corporate stock are measured by value of stock within reasonable time after conversion).

Consequently, we are of the view that the “time of breach” standard is not an inflexible principle that served to freeze Lindon’s loss to the value of his stock at the time that it was allegedly wrongfully redeemed, a principle supported by the cases that DHC and Dalton rely upon. For instance, in Shearson Loeb Rhoades, Inc. v. Medlin, 468 So.2d 272 (Fla. 4th DCA 1985), the court held that the measure of damages for delay in delivery of stock certificates is the difference between the value when the certificates should have been delivered and the value when they were actually delivered. Importantly, the court added that had the plaintiff been able to adduce competent evidence that he communicated to the broker an intent to sell on a specific date or for a specific price, his damages could have been based on such values. Id. at 274. Further, in Totale, Inc. v. Smith, 877 So.2d 813 (Fla. 4th DCA 2004), the court determined that an investor, who sent a check for $100,000 to invest in a corporation, was entitled to out-of-pocket damages rather than benefit-of-the bargain damages when the money was not invested. The court explained that the evidence offered of the stock’s value was too vague and speculative to support “benefit of the bargain” damages. Here, Lindon was not permitted to offer evidence of the value of DHC stock after the date his shares were redeemed.

By the nature of this case, it is not certain when Lindon would have sold the shares following the termination of his employment, assuming that the shareholders’ agreement did not require him to redeem his shares. However, we think that it is unlikely that Lindon would have sold his shares back to DHC in 2002 for the price of $0. Fundamental justice requires that, as between Lindon, DHC, and Dalton, if the calculation of damages is less than precise, the “perils of such uncertainty [in the assessment of damages] should be ‘laid at the [appellees’] door’ ” if the jury concludes Lindon is not bound by the shareholders’ agreement. Madison Fund, Inc., 427 F.Supp. at 608 (quoting Kaufman v. Diversified Indus., Inc., 460 F.2d 1331, 1338 n. 8 (2d Cir.1972)). Otherwise, Lin-don would be required to prove what DHC and Dalton’s allegedly wrongful act precluded him from doing, i.e., demonstrating that he would have held or sold the stock, and if sold, when he would have sold it.

Based upon a synthesis of the relevant authorities, we conclude that in determining the applicable measure of damages in this case involving the alleged wrongful redemption of stock in a close corporation, the jury may consider evidence that (a) if the stock had not been wrongfully redeemed, Lindon would have tendered it for sale in accordance with Article II of the shareholders’ agreement (“Transfer of Stock During Lifetime”) on a date certain and the value of the stock on that date; (b) if the stock had not been wrongfully redeemed, Lindon would have retained the stock until Dalton disposed of his shares and the value of the stock on that date, or (c) if the stock no longer exists (or the business has been sold), evidence of the proceeds ultimately received for the stock by Dalton and/or DHC. We recognize the inherent uncertainty involved in assessing Lindon’s damages, if any. But, if the jury determines Dalton and/or DHC breached the shareholders’ agreement and wrongfully redeemed Lin-don’s shares, Lindon is entitled to be placed in as good a position as he would have been if the contract had not been breached. At the same time, we are mindful that “even where the defendant by his own wrong has prevented a more precise computation [of damages], the [fact finder] may not render a verdict [with respect to damages] based on speculation or guesswork.” Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946).

We thus conclude that the order denying the motion to compel discovery was erroneous, as was the trial court’s ruling disallowing Lindon’s testimony concerning the value of DHC’s stock post-redemption. On remand the jury shall be instructed on damages based upon these principles.

In summary, as to the breach of contract claims, the order granting a JNOV in favor of DHC and the directed verdict in favor of Dalton are reversed. The final judgments in favor of DHC and Dalton on those claims are reversed and the cause is remanded for further proceedings consistent with this opinion. The summary judgment in favor of DHC and Dalton on Lindon’s tort claims is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

JACOBUS, J„ concurs.

ROBERTS, C., Associate Judge, concurs.

      . Buy-back provisions of this type require an employee shareholder to sell back stock upon termination from corporate employment. Such a provision is designed to ensure that ownership of all the stock, especially of a close corporation, stays within the control of the remaining corporate owners-employees, those who will continue to contribute to its successes or failures. Gallagher v. Lambert, 74 N.Y.2d 562, 549 N.Y.S.2d 945, 549 N.E.2d 136, 137 (1989).

      . The shareholders' agreement established adjusted book value as the purchase price for shares purchased pursuant to Article 11(a).

      . After a vigorous dispute, the trial court instructed the jury that the measure of damages "is the adjusted book value of Dalton Hotel Corporation” as the date the buyout was exercised. The only evidence at trial was that the adjusted book value of Lindon’s stock at the time the stock was redeemed was zero. The jury was additionally instructed that if it found the defendants breached the shareholders’ agreement and that no actual loss resulted or loss "has not been established with sufficient certainty,” then an award of only nominal damages for the breach would be proper. The basis for the $180,000 damage award is a mystery.

      . Lindon observes that in pre-trial rulings denying summary judgment, the trial court on two occasions stated that the issue of whether he was "currently employed” by DHC when he signed the shareholders' agreement presented a disputed issue of material fact. However, the determination in a summary judgment context that a disputed issue of material fact exists is not dispositive of whether the plaintiff presented a case at trial sufficient to withstand a motion for directed verdict. See Ameriseal of N.E. Fla., Inc. v. Leiffer, 738 So.2d 993 (Fla. 5th DCA 1999).

      . Lindon did not prepare the 1-9 form.

      . DHC had alternatively moved for a new trial (and for remittitur) but because of its disposition of the motion for JNOV, the trial court deemed these motions to be moot.


text:
    Howard Dale SNIPES, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1667.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    Howard Dale Snipes, Daytona Beach, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Appellant, Howard Dale Snipes, appeals the denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. After reviewing his filings on appeal, we issued a Spencer show cause order directing Snipes to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. Having considered Snipes’ response and finding it to be unpersuasive, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, we now prohibit Howard Dale Snipes from filing with this Court any more pro se pleadings concerning Orange County, Ninth Judicial Circuit Court case number 04-CF-9832. The Clerk of this Court is directed not to accept any further pro se filings from Snipes concerning this case. Any additional pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of the Florida Bar. See Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from-filing further pro se pleadings with this Court after thirteen challenges to conviction and sentence); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

MONACO, C.J., SAWAYA, and JACOBUS, JJ„ concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Robert Lee HINSON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4605.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Rehearing Denied Dec. 19, 2010.

      Robert Lee Hinson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and CLARK, JJ., concur.


author: WARNER, J.

text:
    BERKOWITZ, DICK, POLLACK & BRYANT, Certified Public Accountants & Consultants, LLP., a Florida Limited Liability Partnership, Appellant, v. Barry SMITH, Appellee.
    No. 4D10-704.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Rehearing Denied Jan. 5, 2011.

      Roberta G. Mandel and Robert M. Klein and Richard M. Jones of Stephens, Lynn, Klein, Lacava & Puya, P.A., Miami, for appellant.
    Elizabeth K. Russo of the Russo Appellate Firm, P.A., Miami, and Jay Green of Green, Ackerman & Frost, P.A., Boca Ra-ton, for appellee.
   WARNER, J.

Appellant, the accounting firm of Ber-kowitz, Dick, Pollack & Brant (“Berkow-itz”), challenges the trial court’s denial of its motion to compel arbitration of a claim for professional malpractice in connection with appellee Barry Smith’s tax returns. Smith claimed that no arbitration agreement covered these claims. Berkowitz did not request an evidentiary hearing on the issue, so we have only the pleadings and supporting documents from which to determine the issue. Based upon those records, we affirm.

Smith’s complaint for malpractice contains the factual information on which both the trial court and we rely. Smith owned both Hopper Radio of Florida, Inc., and its subsidiary, a foreign corporation, Memcorp Asia Limited. Hopper was a Sub-S corporation, meaning that the tax liabilities flowed through the corporations to Smith’s individual tax return. He engaged Ber-kowitz in 1996 to prepare his personal tax returns, as well as to provide tax advice.

The IRS audited Hopper in 2002, and Berkowitz participated in the audit. During the audit, the IRS questioned some intercompany loans between Hopper and Memcorp, and issued a report on them, but did not change Smith’s personal income tax return as a result. In his complaint he alleges that Berkowitz failed to notify him of the federal tax consequences of these intercompany loans from a foreign corporation to a U.S. corporation, and thus the resulting consequences to its shareholder.

When the IRS audited Hopper Radio in 2005, it discovered such loans between Memcorp and Hopper, resulting in additional income to the corporation during both the 2004 and 2005 tax years. The tax liability flowed through to Smith, amounting to millions of dollars of increased tax obligations. Smith sued Berkowitz for professional malpractice in failing to advise him of the tax consequences of the inter-company loans. He alleges that Hopper had sufficient cash to pay off the loans at the end of each tax quarter which would have rectified the problem and avoided the additional tax liabilities.

Berkowitz filed a motion to compel arbitration, based upon arbitration clauses which were contained in contracts between it and Hopper Radio. On behalf of Hopper and Memcorp, Smith had entered into three agreements for Berkowitz’s services. One, dated March 2, 2005, provided services to compile unaudited combined balance sheets, income statements, as well as tax consultation services and preparation of the company’s tax returns. A second agreement, dated May 23, 2005, provided services for an audit of the consolidated balance sheet of Hopper and its subsidiaries as of April 30, 2005. No tax advice was included as part of the services provided. A final agreement dated December 7, 2005, provided for the audit of the consolidated balance sheet of Hopper and its subsidiaries for the eight months ending December 31, 2005. No tax services were included within the scope of this agreement. Each of these agreements contained an arbitration clause, where the client agreed to submit any dispute “in connection with this agreement” to arbitration.

Berkowitz did not request an evidentia-ry hearing on the issue of arbitration. Smith opposed the motion on the ground that he signed those agreements as a corporate representative and not individually. He contended that because he was suing for his individual losses, he should not be bound by the arbitration agreement. He also produced a 1997 agreement between Berkowitz and himself, individually, for income tax preparation, including consultation for tax matters. This agreement did not include an arbitration provision. After reviewing the documents and the complaint the court denied the motion to compel. Berkowitz appeals.

“An order granting or denying a motion to compel arbitration is reviewed de novo.” DFC Homes of Fla. v. Lawrence, 8 So.3d 1281, 1282 (Fla. 4th DCA 2009). Any findings of fact the trial court makes in ruling on the motion must be supported by competent, substantial evidence. United HealthCare of Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA 2008). The trial court’s denial was based upon the language of the various contracts, and a decision construing a contract presents an issue of law. See, e.g., Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999).

Courts must consider three factors prior to ruling on a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Construction of arbitration provisions is a matter of contract interpretation, and “the determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the intent of the parties.’ ” Id. (quoting Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982)).

Based solely on the agreements and the complaint, we cannot conclude that the court erred in denying the motion to compel, because no valid written agreement to arbitrate these claims exists. The complaint alleges failure to give proper tax advice regarding intercompany loans which resulted in an increased tax liability primarily for 2004 and some in 2005. The contracts containing the arbitration provision were not entered into until 2005. Therefore, we cannot glean from what has been provided that those contracts could have covered any tax advice before or during 2004 when the intercompany loans were made and not satisfied. As to 2005, the first of the agreements was not entered into until March, and we have no understanding from this record when in 2005 the suspect intercompany loans were made which incurred liability. Without more, Berkowitz did not carry its burden of showing that the arbitration agreements, signed after the loan transactions incurring tax liability took place, covered the claims addressed in the complaint.

On the basis of the record presented, we affirm the trial court.

MAY and LEVINE, JJ., concur.


text:
    Laurentina KOCIK, M.D., Inphynet South Broward, Inc., Jason Strong, M.D., and Inpatient Clinical Solutions, Inc., Appellants, v. Lisa STRONG and Donald Strong, individually and as natural parents and guardians of Jesse Strong and as minor children, Appellees.
    Nos. 4D09-896, 4D09-1010.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.
    Rehearing Denied Jan. 6, 2011.
    Geoffrey B. Marks of Billbrough & Marks, P.A., and James J. Nosieh of McGrane, Nosieh & Ganz, P.A., Coral Gables, for appellants Laurentina Kocik, M.D., and Inphynet South Broward, Inc.
    Mark L. Rosen of Lubell & Rosen, L.L.C., Fort Lauderdale, for appellants Jason Strong, M.D., and Inpatient Clinical Solutions, Inc.
    Edna L. Caruso of Edna L. Caruso, P.A., John A. Shipley and Jack P. Hill of Searcy, Denney, Scarola, Barnhart & Ship-ley, P.A., West Palm Beach, and Robert W. Kelley of Kelley Uustal, P.L.C, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999).

HAZOURI, CIKLIN and LEVINE, JJ., concur.


author: PER CURIAM. RAMIREZ, C.J.

text:
    Tamara DUNCAN, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D10-687.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Opinion Denying Rehearing Dec. 22, 2010.

      Lopez & Best, and Virginia M. Best, for petitioner.
    Thomas L. Hunker, Miami, for respondent.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Tamara Duncan petitions for second-tier certiorari review of an order entered by the appellate division of the circuit court reversing a final summary judgment which the trial court entered in a case involving a suit for personal injury protection (PIP) benefits. We deny the petition because the petitioner has an adequate remedy on appeal.

Certiorari review of non-final orders under Florida Rule of Appellate Procedure 9.030(b)(2)(A) is “an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993). Furthermore, we remind counsel that a certiorari petition must satisfy three requirements before a district court can grant relief from an erroneous interlocutory order. “A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995).

Accordingly, we deny the petition because the petitioner has an adequate remedy on appeal.

ON MOTION FOR REHEARING

RAMIREZ, C.J.

In the Motion for Rehearing and the Response to the Motion for Rehearing, both sides agree that this Court mistakenly applied the standard for first-tier certio-rari jurisdiction to a second-tier petition. Because we disagree with both sides, we write to clarify our reasoning.

The county court granted summary judgment. Petitioner argues that this was a final order. We do not quarrel with that assessment. Indeed we agree with it. But once the circuit court reversed that summary judgment and remanded the case back to the county court, all that has been determined by the circuit court is that there are genuine issues of material fact that prevent the entry of summary judgment. The petitioner may still ultimately prevail on the merits. We have been cited to no case law that requires the second-tier reviewing court to grant certiorari where the petitioner still has an adequate remedy on appeal. In fact, the petitioner has an adequate remedy at the trial level. All that has been determined is that she is not entitled to prevail on summary judgment on the limited issue of whether a doctor can properly perform a peer review where he did not personally perform the medical examination.

Petitioner quotes from Ross v. Phillips, 913 So.2d 771, 773 (Fla. 2d DCA 2005) that “ ‘an appeal from a final order calls up for review all necessary interlocutory steps leading to that final order, whether they were separately appealable or not.’ ” (quoting from Saul v. Basse, 399 So.2d 130, 133 (Fla. 2d DCA 1981)). While this is the rule with appeals, it is not necessarily applicable to a second-tier petition for writ of certiorari. In Haines City Comty. Dev. v. Heggs, 658 So.2d 523, 526 n. 3 (Fla.1995), the court stated:

It has been noted that there are at least four distinguishing features between review by common-law certiorari and review by appeal which is provided by law. G-W Dev. Corp. v. Village of N. Palm Bch. Zoning Bd. of Adjustment, 317 So.2d 828, 830 (Fla. 4th DCA 1975). First, common-law certiorari is available only “where no direct appellate proceedings are provided by law.” Id. Second, common-law certiorari is entirely discretionary with the court, as opposed to an appeal which is taken as a matter of right. Id. Third, the scope of review by common-law certiorari is traditionally limited and much narrower than the scope of review on appeal. That is, on appeal, all errors below may be corrected: jurisdictional, procedural, and substantive; and judgments below may be modified, reversed, remanded with directions, or affirmed. Fourth, common-law certiorari will only lie to review judicial or quasi-judicial action, never purely legislative action, in contradistinction to review by appeal which is provided by law and by which the legislature can authorize review of a wider scope. Id. at 831.

Rather than explain why she has no remedy on appeal, the petitioner instead has argued eloquently why the county court order was final. But the petition does not seek review of the county court order; it seeks review of the circuit court reversal of the county court order. As the Florida Supreme Court recently stated in Custer Medical Center v. United Automobile Insurance Company, 35 Fla. Law Weekly S640, S642, — So.3d -, -, 2010 WL 4340809 (Nov. 4, 2010), “[t]he policy behind prohibiting certiorari to function as a second appeal is that the circuit court possesses final appellate jurisdiction in cases originating in the county court.”

The motion for rehearing does not quarrel with our characterization that whatever error was committed below, it can be corrected on postjudgment appeal. Instead, petitioner basically argues that we should grant the extraordinary and discretionary writ of certiorari to resolve a matter in which she may ultimately prevail without our interference. We decline to do so.

It seems to us that the Florida Supreme Court has established over the years a basic requirement for all writs of certiorari, that the petitioner have no adequate remedy on appeal. See De Groot v. Sheffield, 95 So.2d 912, 915-16 (Fla.1957) (stating that “certiorari is a discretionary-writ bringing up for review by an appellate court the record of an inferior tribunal or agency in a judicial or quasi-judicial proceeding. The writ is available to obtain review in such situations when no other method of appeal is available.”). The Court has then further restricted second-tier certiorari review by stating that “[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader.” Haines City Cmty. Dev., 658 So.2d at 530. Thus, on second-tier review, district courts may only look to see “whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.” Id. On second-tier review, we have been admonished not to review eases that do not meet this criteria, even if the litigants will have no adequate remedy on appeal. We have been cited to no case that requires us to review on certiorari a case where the litigants still have an adequate remedy on appeal from a final judgment. In fact, the Supreme Court made the same observation in Custer Medical Center, stating that “the decision of the circuit court did not deprive the parties of their day in court, and did not foreclose United from proving its affirmative defense on remand.” 35 Fla. Law Weekly at S642, — So.3d at -. Likewise here, the decision of the circuit court does not deprive Duncan of her day in court and does not foreclose her from prevailing on the merits of her complaint.

Motion denied.


author: WETHERELL, J.

text:
    Kathleen GREEN and Lee Ann Moody, Appellants, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Real Estate, Appellee.
    No. 1D09-5022.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 8, 2010.

      Thomas M. Brady, Pensacola, for Appellants.
    Garnett W. Chisenhall, Chief Appellate Counsel, Tallahassee, for Appellee.
   WETHERELL, J.

Appellants, a certified residential real estate appraiser and a registered trainee appraiser, seek review of the final order entered by the Florida Real Estate Appraisal Board (Board) finding them guilty of four statutory and rule violations and imposing probation and administrative fines. Appellants raise a number of issues on appeal, including an argument that the Board erred in finding them guilty of the three violations that the Administrative Law Judge (ALJ) found not to have been proven. We agree with Appellants on this issue and, thus, reverse the final order and remand for further proceedings consistent with this opinion. We affirm all of the other issues raised by Appellants.

The Department of Business and Professional Regulation, Division of Real Estate (Division), issued an eight-count administrative complaint alleging that Appellants committed various statutory and rule violations related to a residential real estate appraisal that they conducted in March 2007. The alleged violations included Appellants’ failure to retain appraisal reports and supporting data for at least five years in violation of section 475.629, Florida Statutes (2006) (count II); failure to maintain supporting data in a work file in violation of the Ethics Recordkeeping Rule of the Uniform Standards of Professional Appraisal Practice (2006) (hereinafter “US-PAP”) and section 475.624(14), Florida Statutes (2006) (count V); failure to record in the appraisal report non-misleading and sufficient information for the intended users to understand the report in violation of USPAP Standards Rule 2-l(a) and (b) and section 475.624(14) (count VII); and failure to document in the summary appraisal report the information analyzed, the appraisal methods and techniques used and the reasoning supporting the analyses, opinions and conclusions in violation of US-PAP Standards Rule 2 — 2(b)(viii) and section 475.624(14) (count VIII). Appellants disputed the allegations in the administrative complaint, and a formal hearing was held before an ALJ.

The ALJ issued a recommended order finding Appellants guilty of only the recordkeeping violation charged in count V. The ALJ recommended a reprimand for this violation. The ALJ recommended that the Board dismiss the remaining counts of the administrative complaint because those alleged violations had not been proven by clear and convincing evidence.

Both parties filed exceptions to the recommended order. The final order issued by the Board rejected Appellants’ exceptions and adopted the Division’s exceptions verbatim. The Board adopted the ALJ’s finding of guilt on count V, and also found Appellants guilty of the violations alleged in counts II, VII, and VIII. The Board rejected the reprimand penalty recommended by the ALJ and instead imposed one year of probation plus administrative fines. Appellants timely appealed the final order to this court.

Appellants raise a number of issues on appeal, only one of which merits discussion: whether the Board erred in finding Appellants guilty of counts II, VII, and VIII. We affirm the other issues raised by Appellants without further comment, including the finding of guilt on count V.

Count II of the administrative complaint charged Appellants with violating section 475.629, Florida Statutes, which provides:

An appraiser registered, licensed, or certified under this part shall retain, for at least 5 years, original or true copies of any contracts engaging the appraiser’s services, appraisal reports, and supporting data assembled and formulated by the appraiser in preparing appraisal reports. The period of retention of the records applicable to each engagement of the services of the appraiser runs from the date of the submission of the appraisal report to the client. These records must be made available by the appraiser for inspection and copying by the department on reasonable notice to the appraiser. If an appraisal has been the subject of or has served as evidence for litigation, reports and records must be retained for at least 2 years after the trial.

The ALJ interpreted this statute as addressing only the retention period for the work file, not the quality or completeness of the file. However, the Board interpreted the statute to require that an appraiser have the requisite supporting data assembled and formulated by the appraiser in the work file and retain such data in the work file for five years.

Section 120.57(1)(Z), Florida Statutes, provides that the Board “in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction.” The Board must state particular reasons for rejecting or modifying the conclusion of law and must find that its substituted conclusion is as or more reasonable than that which was rejected or modified. Id. This court defers to the agency’s interpretation of a statute it is charged with administering so long as the interpretation is not clearly erroneous and is supported by substantial competent evidence. See Kessler v. Dep’t of Mgmt. Servs., 17 So.3d 759, 762 (Fla. 1st DCA 2009).

The Board’s interpretation of section 475.629 is clearly erroneous. The statute requires an appraiser only to retain the data and records that are actually present in the work file for the requisite five-year period; it does not address the adequacy of the information present in the file. The statute cannot be logically interpreted to require an appraiser to retain records that were never part of the work file and may not even be in existence, but that is clearly the effect of the interpretation advocated by the Division and adopted by the Board. Although, as in this case, an incomplete or inadequate work file may constitute a violation of the USPAP Ethics Recordkeep-ing Rule, it does not also constitute a violation of section 475.629. Accordingly, the Board erred in rejecting the ALJ’s more reasonable interpretation of the statute, and because there was no evidence that Appellants failed to retain all of the records that were present in their work files for the requisite period, the Board erred in finding Appellants guilty of violating section 475.629, as alleged in count II of the administrative complaint.

Count VII of the administrative complaint charged Appellants with violating USPAP Standards Rule 2-1, which provides in pertinent part: “Each written or oral real property appraisal report must: (a) clearly and accurately set forth the appraisal in a manner that will not be misleading; (b) contain sufficient information to enable the intended users of the appraisal to understand the report properly.” The ALJ found several errors and omissions in the appraisal report, but he concluded that the errors and omissions did not affect the accuracy or credibility of the appraisal, and that even with the errors and omissions, the appraisal report was not misleading and contained sufficient information for the intended users to understand the report. The Board adopted the ALJ’s factual findings, but rejected his ultimate conclusion regarding the adequacy of the appraisal report.

Although labeled in the recommended order as a conclusion of law, the ALJ’s determinations that the appraisal report was not misleading or insufficient were actually factual findings. See, e.g., Beckett v. Dep’t of Fin. Servs., 982 So.2d 94, 99 (Fla. 1st DCA 2008) (noting that a finding regarding whether a person had violated a statutory provision was a factual finding); Gross v. Dep’t of Health, 819 So.2d 997, 1003 n. 8 (Fla. 5th DCA 2002) (citing numerous cases for the proposition that “the issue of whether an individual violated a statute or deviated from a standard of care is generally an issue of fact to be determined by the [ALJ] based on the evidence and testimony”). These findings are not infused with policy considerations, but rather are susceptible to ordinary methods of proof and, thus, the Board was not permitted to reject these findings unless they were not supported by competent substantial evidence. § 120.57(l)(i), Fla. Stat.; see also Verleni v. Dep’t of Health, 853 So.2d 481, 483 (Fla. 1st DCA 2003) (reversing final order that adopted findings set out in exceptions to the recommended order contrary to the ALJ’s findings that were supported by competent substantial evidence). Competent substantial evidence exists in the record to support the ALJ’s factual findings concerning the sufficiency of the appraisal report, and in determining that Appellants violated the requirements of Standards Rule 2-1, the Board improperly reweighed the evidence and substituted its own findings of facts for those of the ALJ. Accordingly, the Board erred in finding Appellants guilty of count VII of the administrative complaint.

Count VIII of the administrative complaint charged Appellants with violating USPAP Standards Rule 2-2(b)(viii), which provides in pertinent part:

(b) The content of a Summary Appraisal Report must be consistent with the intended use of the appraisal and, at a minimum:
(viii) summarize the information analyzed, the appraisal methods and techniques employed, and the reasoning that supports the analyses, opinions, and conclusions; exclusion of the sales comparison approach, cost approach, or income approach must be explained;....

The Board rejected the ALJ’s finding that the summary report met these minimum requirements. In doing so, the Board improperly reweighed the evidence and substituted its judgment for the findings made by the ALJ regarding the adequacy of the information summarized and explained in the appraisal report. As was the case with count VII, competent substantial evidence supports the ALJ’s determination that the appraisal report met the requirements in Standards Rule 2 — 2(b)(viii) despite the errors and omissions found by the ALJ. Accordingly, the Board erred in finding Appellants guilty of count VIII.

The final order states that the Board’s decision to reject the ALJ’s recommended penalty was based “primarily” on its determination that the violations were more than just the recordkeeping deficiencies established in count V. Because we conclude that the Board erred in finding Appellants guilty of the additional violations in counts II, VII and VIII, leaving only the guilty finding for the recordkeeping deficiencies, it follows that the penalty imposed by the Board must be reversed and remanded for further consideration. On remand, the Board “may accept the recommended penalty in [the] recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.” § 120.57(l)(i), Fla. Stat.; see also Werner v. State, Dep’t of Ins. & Treasurer, 689 So.2d 1211 (Fla. 1st DCA 1997) (reversing and remanding for reevaluation of penalty as the imposed penalty relied upon violations which had not been proven).

Accordingly, the final order is REVERSED and this case is REMANDED to the Board for further proceedings consistent with this opinion.

WOLF and DAVIS, JJ., concur.

       The 2006 version of the USPAP was in effect at the time of the appraisal at issue in this case. See Fla. Admin. Code R. 61J1-9.001, as amended Aug. 29, 2006. We find no merit to Appellants’ contention that the Board should have applied the 1991 version of the USPAP, rather than the 2006 version.


text:
    Ashley TRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5170.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Rehearing Denied Jan. 5, 2011.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Dismissed. See Marshall v. State, 978 So.2d 279 (Fla. 4th DCA 2008).

HAZOURI, CIKLIN and LEVINE, JJ., concur.


text:
    Kevis McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-164.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Kevis McCray, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Edwards v. State, 35 So.3d 121 (Fla. 4th DCA 2010).

WARNER, POLEN and FARMER, JJ., concur.


text:
    Travis CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-172.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Travis Cunningham, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Licata v. State, 788 So.2d 1063 (Fla. 4th DCA 2001).

WARNER, POLEN and FARMER, JJ., concur.


text:
    Stefan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-650.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Rehearing Denied Jan. 5, 2011.
    Stefan Johnson, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying appellant’s motion for return of property is affirmed for reasons other than those given by the trial court. Appellant’s motion was facially insufficient. See Almeda v. State, 959 So.2d 806 (Fla. 2d DCA 2007).

Affirmed.

MAY, CIKLIN and LEVINE, JJ., concur.


text:
    Tori MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5904.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Tori Moore, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Edward L. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5900.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Edward L. Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Kenneth Lynn MASON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3326.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.
    Kenneth Lynn Mason, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Kenneth Lynn Mason is hereby granted belated appeal from judgment and sentence in Clay County case number 2007-CF-000740. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

Counsel shall be appointed to represent petitioner on direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, DAVIS, and ROWE, JJ., concur.