author: EMAS, J. LAGOA, J.

text:
    Jorge ROBLES-MARTINEZ, et al., Appellants, v. DIAZ, REUS & TARG, LLP, Appellee.
    No. 3D10-1736.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 20, 2011.

      Bolivar C. Porta, for Appellants.
    Diaz, Reus & Targ, LLP, and Carlos F. Gonzalez, Chad S. Purdie and Margaret Perez, Miami, for Appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   EMAS, J.

Appellants seek review of the trial court’s order denying their motion to quash service of process, asserting that the trial court applied the incorrect legal standard and there was not competent substantial evidence to conclude substituted service was properly effectuated. We affirm.

FACTUAL BACKGROUND

Appellee law firm Diaz, Reus & Targ, LLP sued its client, Cesar Lindo Hoyos, for unpaid fees. It also sued Ana Cristina Robles-Martinez and Jorge Robles-Martinez, Mr. Hoyos’ daughter and son-in-law. These two individuals were not personally served; substituted service was effectuated on May 21, 2009, upon Maria Uribe (the mother of Ana Cristina Robles-Martinez), who resided at the address in question at the time of service.

Appellants filed a motion to quash service of process, alleging they were not living at the address at the time of service of process. In support of their motion, Appellants filed an affidavit of Ms. Uribe, who averred that Appellants were not living at the address in question on the date of service and did not live there during the month of May 2009.

At a subsequent hearing, the trial court found Ms. Uribe’s affidavit insufficient and granted Appellants twenty-one days to file their own affidavits, which they did. Thereafter, an evidentiary hearing was held on the motion to quash.

At the evidentiary hearing, Appellee presented the live testimony of the process server, Mr. Rodolfo Perez, who testified in relevant part:

Appellants’ last known address was an apartment within a condominium complex on Key Biscayne. Upon arrival, Mr. Perez was met by a security guard at the main entrance. The security guard verified and advised Mr. Perez that Appellants did in fact live at the address in question. Mr. Perez inquired whether anyone else lived with them, and the guard indicated that the mother of Mrs. Robles-Martinez lived with them and that the mother should be at the apartment.

The security guard permitted Mr. Perez to enter the complex; he went to the apartment in question and knocked on the door. The mother, Ms. Uribe, opened the door. Mr. Perez asked for Appellants by name, and Ms. Uribe said that they lived there with her, but that they were not home. Mr. Perez testified that Ms. Uribe said her daughter “wasn’t there but she’d be there shortly.” Mr. Perez asked Ms. Uribe if she would accept the summonses and Ms. Uribe agreed and signed the paperwork accepting service on behalf of Appellants. As he was leaving the complex, Mr. Perez again verified that Appellants and Ms. Uribe all lived together in the same apartment. Mr. Perez identified Ms. Uribe (who was present in court) as the person he served with the summonses. The summonses and verified returns of service were introduced into evidence without objection.

On cross-examination, Mr. Perez agreed that he did not specifically ask the security guard or Ms. Uribe whether Appellants were “currently” living in the apartment. However, Mr. Perez explained:

When [Ms. Uribe] told me that [her daughter and son-in-law] both lived there, that [the daughter] wasn’t home right now, that she had left and she would he hack shortly, then is when I asked if she [Ms. Uribe] lives there ... and she said yes. So she said if I wanted to wait for her [daughter] or could she take it for her and him, so that’s what I did.

(Emphasis added.)

Appellants presented the live testimony of Ms. Uribe, who testified in relevant part:

A process server came to the apartment with paperwork for her daughter and son-in-law. She told the process server that they did not live there, but that she would accept service on their behalf. Ms. Uribe testified that Appellants had not lived at the apartment for approximately eight months before the process server came to serve them. Ms. Uribe stated she lived alone in the apartment during that period. On cross-examination, Ms. Uribe acknowledged that during her deposition she testified that she could not recall what she had told the process server when he came to serve the summonses.

Appellants argued that there was insufficient evidence to, establish that the apartment was their “usual place of abode” as opposed to their residence, because there was no evidence that Appellants currently resided at the apartment at the time service was effectuated.

The trial court indicated that, after reviewing the court file, the testimony at the hearing, and the affidavits, Appellants had failed to establish by clear and convincing evidence that service was not proper, and denied the motion to quash.

DISCUSSION AND ANALYSIS

1. The Presumption and the Burden

Appellants contend that the trial court erred by placing the burden upon them to prove improper service. A trial court’s ruling on a motion to quash service of process, to the extent it involves questions of law, is subject to de novo review. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007). Service made under the substitute service provisions of section 48.031, Florida Statutes, must be strictly complied with, and these provisions are to be strictly construed. Clauro Enter., Inc. v. Aragon Galiano Holdings, Inc., 16 So.3d 1009, 1011 (Fla. 3d DCA 2009); Gonzalez v. Totalbank, 472 So.2d 861, 864 (Fla. 3d DCA 1985). While a plaintiff bears the ultimate burden of proving valid service of process, M.J.W. v. Dep’t. of Children & Families, 825 So.2d 1038, 1041 (Fla. 1st DCA 2002), a “return of service that is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996).

Here, the verified returns of service were regular on their face, containing all of the information in compliance with the specific requirements of section 48.031(l)(a). The trial court correctly determined that this created a presumption of valid service of process. This presumption shifted the burden to Appellants to establish at the evidentiary hearing, by clear and convincing evidence, that service of process was not properly effectuated.

The dissent posits that, although the return of service was regular on its face, the affidavits submitted by Appellants “made a prima facie showing that the return of service was defective, ” shifting the burden back to Appellee to prove valid service. However, Appellants’ affidavits do not challenge the facial regularity of the return; instead, the affidavits challenge the validity of the service of process itself. There is a significant difference between a facially defective return of service (for example, a return which, on its face, fails to contain the information required by statute) and an invalid service of process (for example, a claim that the residence where service was effectuated was not the defendant’s usual place of abode). This distinction is essential in properly allocating the burden of proof and production.

As we discussed in Gonzalez v. Totalbank, 472 So.2d at 864 n. 1:

When the return of service is regular on its face, the party challenging the service has the burden of overcoming the presumption of its validity by presenting clear and convincing evidence. Slomow- itz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983); Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1969). On the other hand, when, as in this case, the challenging party makes a prima facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service. George Fischer, Ltd. v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980).

Gonzalez involved a return that was shown prima facie to be defective on its face, and therefore the presumption of valid service was unavailable to the plaintiff. This determination was made by simply reviewing the four corners of the return to see if it contained all of the information required by the applicable statute:

Section 48.21, Florida Statutes (1979) requires those serving process to record, among other things, the manner of execution of the process and the name of the person served. A failure to record those facts invalidates the service, unless it is amended. The return here did not reflect the name of the person served, merely indicating that a Jane Doe was served. With regard to the manner of execution, there is no indication that the person served was over 15 years old. Consequently, under section 4.8.21 ... the return of service was defective and the service was invalid.

Id. at 864 (emphasis added).

Johnston v. Halliday, 516 So.2d 84, 85 (Fla. 3d DCA 1987), provides another example of what is meant by the concept of a return of service which is “regular on its face.” In Johnston, the process server attempted substituted service under section 48.031(1) by serving the defendant’s son. The return of service stated that a copy was left with the defendant’s son who was “of suitable age and discretion.” We held this language to be insufficient to meet the statutory requirements, because the return of service failed to state that the individual was over the age of fifteen.

In contrast with Johnston and Gonzalez, the instant case involves returns of service that are regular on their face; the returns contained all of the information required to show compliance with the statute. The affidavits offered by Appellants did not challenge the facial regularity of the return of service; rather, by alleging that Appellants were not living at the apartment on the date process was served, the affidavits challenged the veracity of the information on the face of the return; Appellants’ challenge is to the validity of the service of process itself, which created an issue of fact that required resolution at an evidentiary hearing. At that hearing, Ap-pellee was entitled to the presumption that valid service was effectuated, and Appellants had the burden of establishing, by clear and convincing evidence, that service of process was invalid. In the absence of such clear and convincing evidence, the presumption created by a return of service regular on its face satisfied Appellee’s burden of establishing valid service of process.

2. Residence v. Usual Place of Abode

Section 48.031, Florida Statutes, provides in pertinent part that service of process shall be made “by delivering a copy of it to the person to be served ... or by leaving [it] at his or her usual place of abode with any person residing therein who is 15 years of age or older ...” (emphasis added.)

The term “usual place of abode” means “the place where the defendant is actually living at the time of service.” Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). The word “abode” means “one’s fixed place of residence for the time being when service is made.” State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940). Therefore, if a person has more than one residence, that person must be served at the residence in which he is actually living at the time service is made. Id.

Appellants contend that the trial court focused on where Appellants “resided” rather than their “usual place of abode.” In doing so, Appellants argue, the trial court’s determination was erroneous as a matter of law. However, there is no record evidence indicating that the trial court based its determination upon Appellants’ “residence” as opposed to their “usual place of abode”

The mere fact that the process server, Mr. Perez, did not ask: “Are they currently living there?” does not carry the day for Appellants, given the other testimony presented at the evidentiary hearing; Ms. Uribe told Mr. Perez that her daughter and son-in-law “both lived there” and that her daughter “wasn’t home right now, that she had left and would be back shortly.” Ms. Uribe asked Mr. Perez if “he wanted to wait” for her daughter to return, or whether he wanted to leave the papers with her. This evidence, if found credible by the trial court, was sufficient to establish that Appellants, on the date of service, were living at the apartment with Ms. Uribe.

3. Competent Substantial Evidence

Finally, Appellants contend that there was no competent substantial evidence to support the trial court’s finding that Appellants were served at their usual place of abode. We disagree. As previously discussed, the verified returns of service, regular on their face, created a presumption of valid service of process. It was Appellants’ burden to establish by clear and convincing evidence that the apartment in question was not their usual place of abode. The testimony and other evidence presented by the parties required the trial court, as the factfinder, to make credibility determinations and resolve the conflicts in the evidence. It is not the function of this court to re-weigh the evidence or substitute its judgment for that of the trial court, but rather to determine whether there was competent substantial evidence to support the trial court’s factual determinations. Shaw v. Shaw, 334 So.2d 13 (Fla. 1976). We hold that there was competent substantial evidence to support the trial court’s determination.

CONCLUSION

The verified returns of service were regular on their face, creating a presumption of valid service. Appellants failed to overcome the presumption of valid service by clear and convincing evidence, and there was competent substantial evidence to support the trial court’s determination that the apartment in question was Appellants’ usual place of abode on the date of service. We affirm the trial court’s denial of Appellants’ motion to quash.

Affirmed.

RAMIREZ, J., concurs.

LAGOA, J.

(dissenting).

I respectfully dissent as I find that the plaintiff did not prove valid service under the substituted service provision of section 48.031(l)(a), Florida Statutes (2010), and I would remand for further proceedings as set forth below.

Section 48.031(l)(a), which must be strictly construed, only allows for substitute service by “leaving the copies at [the defendant’s] usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.” (emphasis added). The Florida Supreme Court, this Court, and our sister courts have drawn an important distinction between the term “residence” and the statute’s more restrictive term, “usual place of abode.”

The phrase “usual place of abode” means “the place where the defendant is actually living at the time of service.” Thompson v. State, Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (emphasis added) (quoting Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001)); see State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940); Cordova v. Jolcover, 942 So.2d 1045, 1046-47 (Fla. 2d DCA 2006) (reversing trial court and holding that defendant was not served at his “usual place of abode”; defendant submitted affidavits and other evidence replete with facts that he was not served at his usual place of abode); Busman v. State, Dep’t of Revenue, 905 So.2d 956, 958 (Fla. 3d DCA 2005) (reversing trial court and holding that father was not properly served pursuant to substituted service of process; father presented clear, convincing and uncontrovert-ed evidence that address was not his “usual place of abode”). “The word ‘abode’ means ‘one’s fixed place of residence for the time being when service is made.’ If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.” Torres v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004) (quoting State ex rel. Merritt, 195 So. at 147); see Stern v. Gad, 505 So.2d 531, 532 (Fla. 3d DCA 1987).

The “burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court,” i.e., the plaintiff, not the defendant. Thompson, 867 So.2d at 605 (citing M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1041 (Fla. 1st DCA 2002); see also Torres, 867 So.2d at 587 (“[T]he party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process.”). While “a process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary,” Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996), “[i]f the party challenging service ‘makes a prima facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service.’ ” Haueter-Herranz v. Romero, 975 So.2d 511, 518 (Fla. 2d DCA 2008) (quoting Gonzalez v. Total-bank, 472 So.2d 861, 864 n. 1 (Fla. 3d DCA 1985)).

Here, the defendants made a prima facie showing that service was defective. The defendants submitted undisputed affidavits showing that the service was defective and that they were not served at their “usual place of abode.” See Thompson, 867 So.2d at 605 (finding that defendant’s affidavit made a prima facie showing that he was not served at his “usual place of abode” by valid substituted service). Specifically, defendant Jorge Robles-Martinez averred:

1. I am a defendant in the instant matter.
2. I was born on December 8,1965.
3. I currently reside outside The United States of America.
4. I am not a citizen nor a legal resident of The United States of America.
5. Since before March, 2009,1 have not resided at 765 Crandon Boulevard, Apt. 112, Key Biscayne, Florida 33149.
6. Since before March, 2009, Ana Cristina Lindo Uribe did not reside at 765 Crandon Boulevard, Apt. 112, Key Biscayne, Florida 33149.

Defendant Ana Cristina Lindo Uribe also averred:

1. I am a defendant in the instant matter.
2. I was born on August 24,1973.
3. I currently reside outside The United States of America.
4. I am a citizen of The United States of America.
5. Since before March, 2009,1 have not resided at 765 Crandon Boulevard, Apt. 112, Key Biscayne, Florida 33149.
6. Since before March, 2009, Jorge Robles-Martinez did not reside at 765 Crandon Boulevard, Apt. 112, Key Biscayne, Florida 33149.

Moreover, at the evidentiary hearing, Maria Victoria Uribe Velez, Ana Cristina Lindo Uribe’s mother, and Jorge Robles-Martinez’s mother-in-law, specifically testified that at the time of service the defendants did not live at the Key Biscayne condominium:

Q. Can you tell the Court a little bit about what you remember happened that day.
A. A process server came to bring a notification for Ana Cristina and George. I told him that they don’t live there. But I accepted to sign to notify that the notification had been received, but I told him that they didn’t live there.
Q. Approximately how long had Jorge Robles Martinez and Ana Cristina Lindo Uribe not been living at that apartment?
A. Approximately eight months.
Q. So you were living alone at that apartment?
A. Yes.

Once the defendants met their prima facie showing, the burden shifted to the plaintiff to prove valid service. Plaintiff, however, failed to rebut defendants’ contention that they did not reside at the Key Biscayne address on the date of service. Significantly, as the majority concedes, the process server testified that he never determined whether the defendants currently lived at the Key Biscayne residence at the time of service, and therefore, whether the Key Biscayne residence was their “usual place of abode.”

Q. Now, you never requested from the security guard whether they were currently living there or they simply owned an apartment there? You never got that information, right?
MR. PURDIE: Objection, asked and answered.
THE COURT: Overruled.
THE WITNESS: No, I asked them if they lived there, and they told me yes. BY MR. PORTA:
Q. Did you exclude the possibility that they simply owned a condo there?
A. No, I didn’t do that.
Q. Did you exclude the possibility that they no longer resided there?
A. No. I asked them if they lived there.
THE COURT: Did you ask them anything else or that’s all you asked?
THE WITNESS: That’s all.
Q. Did you ask security if they had seen the two defendants that week?
A. No, I didn’t ask them that. They told me that they lived there.
Q. So you didn’t ask any questions as to whether they actually had been residing in that apartment the week you served them or the month you served them or the two months prior to you serving them, you did not get into those conversations?
A. I didn’t get into that conversation because the lady that I served, she told me that they lived there, so I didn’t need to ask that.

In an identical factual scenario, this Court in Portfolio Recovery Associates, LLC v. Gonzalez, 951 So.2d 1037 (Fla. 3d DCA 2007), affirmed the trial court’s order quashing substituted service of process “secured, purportedly under section 48.031(l)(a), Florida Statutes (2006), by leaving a copy of the summons and complaint at [the] home with a woman who was the mother of one defendant and the mother-in-law of the other.” Id. at 1038. This Court affirmed the trial court’s ruling “because an undisputed affidavit demonstrated that neither of the defendants had lived at that address for five years, and thus that it was not their ‘usual place of abode’ as the statute requires.” Id.

Here, the record contains not only two undisputed affidavits demonstrating that neither of the defendants lived at the address in question at the time of service and therefore it was not their “usual place of abode” as the statute requires, but also the testimony of the mother/mother-in law at the evidentiary hearing that the defendants did not live at the apartment at the time of service and therefore it was not their “usual place of abode” as the substituted service statute requires.

On appeal, the defendants contend that the trial court applied the incorrect legal standard in denying the motion to quash, ie. “the focus of the hearing below was improperly on where the defendants ‘lived’ instead of their usual place of abode.” (Initial Br., p. 9). I agree.

The majority opinion states that “there is no record evidence indicating the trial court based its determination upon appellants’ ‘residence’ as opposed to their ‘usual place of abode,’” and further concludes that “there was competent substantial evidence to support the trial court’s determinations that the apartment in question was Appellants’ usual place of abode on the date of service.” The record, however, is devoid of any determination by the trial court that the apartment in question was the defendants’ “usual place of abode” on the date of service.

First, at the conclusion of the hearing, the trial court found as follows:

Without further comment, the Court has had the opportunity to review the court file and hear the testimony and review the affidavits.
This basically turns into a he-said-she-said situation. However, the verified return of service has been properly admitted into the courtroom.
The standard is clear and convincing for the Court to determine — if the Court was to determine that they were not properly served upon the defendants.
The Court finds that the defense has not reached the level of clear and convincing evidence. Therefore, the motion to quash service of process at this time is denied.

Moreover, in its subsequent written order denying the motion to quash, the trial court found as follows:

The Court finds that the verified return of service was properly admitted into evidence and that the testimony produced by both sides has produced nothing more than a “he said-she said” situation. Given that, the Court finds that the Defendants have not met the burden of clear and convincing evidence to overcome the verified return of service that is regular on its face.

As such, neither the trial court’s oral or written findings apply the correct legal standard for determining whether there was valid service under the substituted service provision of section 48.031(l)(a). Once the defendants made a prima facie case of invalid service, the return of service was not entitled to a presumption of correctness, and the burden shifted back to the plaintiff to establish that the Key Biscayne address was the defendants’ “usual place of abode.” As the record currently stands, the plaintiff failed to meet its burden. Indeed, the trial court made no findings as to whether the Key Biscayne address was the defendants’ “usual place of abode.”

The statute for substituted service, however, must be strictly construed, and failure to comply with it renders service void. See Shurman, 795 So.2d at 954; Busman, 905 So.2d at 958; Milanes v. Colonial Penn Ins. Co., 507 So.2d 777, 778 (Fla. 3d DCA 1987). “Indeed, because statutes authorizing substituted service are exceptions to the general rule requiring a defendant to be served personally, due process requires strict compliance with their statutory requirements.” Torres, 867 So.2d at 586. The majority’s opinion constitutes a departure from not only this Court’s existing precedent but from also those of our sister courts.

As this Court recognized in Stern, 505 So.2d at 532, the terms “usual place of abode” and “residence” are not synonymous. Because the trial court did not find that the defendants were served at them “usual place of abode,” I would reverse. I would hold, as this Court held in Stem, “that the record in this case will not support a finding that the appellant/defendant was served at a ‘usual place of abode’ in this county and remand the matter to the trial court” to make a finding as to whether the Key Biscayne address was the defendants’ “usual place of abode” on the date suit papers were delivered.

      . Mr. Hoyos is not a party to this appeal.

      . Appellants did not attend the evidentiary hearing and the trial court did not permit their depositions to be taken prior to the hearing.

      . "Clear and convincing evidence” is "evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.” Fla. Std. Jury Inst. (Civ.) 405.4 (adopting definition set forth in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)).

      . That subsection provides: "Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.”

      . See, e.g., Gonzalez, 472 So.2d at 861 (return of service was not regular on its face where return itself failed to contain a statement of the manner in which service was made and the name of person served, both of which are required under section 48.21, Florida Statutes); Nat’l Safety Assocs., Inc. v. Allstate Ins. Co., 799 So.2d 316 (Fla. 2d DCA 2001) (defendants made prima facie showing that return of service was facially defective where return failed to include (as required by § 48.081(1)) statement that all superior corporate officers designated in the statute were absent when service was attempted on inferior corporate officer).

      . See, e.g., Busman v. State, 905 So.2d 956 (Fla. 3rd DCA 2005) (return of service was regular on its face and therefore presumptively valid; defendant thus had burden of proving, by clear and convincing evidence, that he was not served at his usual place of abode).

      .The dissent relies upon Thompson v. State, Department of Revenue, 867 So.2d 603 (Fla. 1st DCA 2004), for the proposition that an affidavit alleging that defendant was not served at his usual place of abode is a challenge to the facial regularity of the return of service. In Thompson, our sister court appeared to blur the distinction between prima facie evidence showing a facially defective return of service versus proof of invalid service of process: "Thompson’s motion and affidavit are based on the fact that the service did not comply with section 48.031 and was therefore legally deficient ... Thompson's affidavit makes a prima facie showing that he was not served at his usual place of abode.” Id. at 605. However, such a claim is a challenge to the validity of the service of process, rather than a challenge to the facial regularity of the return of service. As our Court previously has held, once a return of service is shown to be valid on its face, a presumption of valid service attaches, and a defendant who thereafter claims that service was not made at the defendant's usual place of abode must establish such a claim by clear and convincing evidence. See Busman, 905 So.2d at 956; Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996); Fla. Nat’l Bank v. Halphen, 641 So.2d 495 (Fla. 3d DCA 1994); Gonzalez, 472 So.2d at 861.

      . The return of service was additionally defective in failing to state (as required under section 48.031(1)) that the individual served resided with the defendant and that the process server informed him of the contents of the papers.

      . Stated another way, the ultimate burden of proving valid service of process always remains upon the plaintiff. However, a return of service, regular on its face, creates a presumption of valid service, which is sufficient to satisfy this burden in the absence of clear and convincing evidence to the contrary.

      . It is ironic that Appellants would argue this distinction, given that each Appellant averred in their affidavit merely that “before March, 2009, I have not resided at 765 Cran-don Boulevard, Apt. 112, Key Biscayne, Florida, 33149.” Absent from each affidavit is an averment that, on May 21, 2009 (the date of service of process), they were not living at that apartment.

      . At the conclusion of the May 21, 2010 evidentiary hearing, counsel for the defendants specifically argued that the correct legal standard for granting or denying motions to quash involving substituted service was "usual place of abode.” Specifically, counsel for the defendants argued:
      Your Honor, when it comes to these types of statutes, they must be strictly construed. And the usual place of abode is not this apartment and we have presented clear and convincing evidence that that is not the usual place of abode via live testimony, via her affidavit, via the two other affidavits from the defendants that your Honor requested us to file, which have been filed, which indicate that they do not reside at that location.

      . Nor does either ruling by the trial court apply the burden shifting required by the statute and case law.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cristobal Jesus MAIRENA, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1779.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Oct. 4, 2011.
    Cristobal Jesus Mairena, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: LAGOA, J.

text:
    Eusebio MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2154.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Rehearing Denied Oct. 7, 2011.
    Eusebio Medina, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Eusebio Medina (“Medina”) appeals an order summarily denying his Rule 3.800(a) motion. We affirm in part and reverse in part. Medina raises three grounds for reversal. We find no merit as to grounds two and three. However, on ground one, we reverse the order.

Upon imposition of Medina’s original sentence, the trial court awarded him 566 days credit for time served in jail before sentencing. Subsequently, Medina sought post-conviction relief, arguing that he was entitled to resentencing under the 1994 guidelines pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). On consideration of a certified question from this Court, the Supreme Court agreed with Medina’s position and the cause was remanded for re-sentencing. Medina v. State, 760 So.2d 929 (Fla.2000). At the October 23, 2000, resentencing, the trial court stated that it awarded Medina credit for all time served, but the written sentence only awarded the 566 days credit for time served in jail prior to imposition of his original sentence. Following review of the resentence, Medina sought post-conviction relief addressing credit for time served, including the current motion to correct his sentence as illegal, which was denied.

On appeal, the State properly concedes that Medina may be entitled to credit for the time he spent in jail prior to resentenc-ing, as reflected in the Miami-Dade County Corrections and Rehabilitation Department certificate. See Kitchen v. State, 20 So.3d 975 (Fla. 4th DCA 2009) (holding that defendant is entitled to credit for time served in jail prior to resentencing). A review of the jail certificates indicates that Medina was not awarded credit for time spent in jail after his original sentence was reversed and before he was resentenced on October 23, 2000. We, therefore, reverse the order in part, and remand for a determination of an award of additional credit for the time Medina served in jail before he was resentenced.

Affirmed in part, reversed in part, and caused remanded for further proceedings.

      . Medina also sought this relief in a previously-filed Rule 3.800(a) motion. The motion was denied and this Court affirmed. Medina v. State, 13 So.3d 1065 (Fla. 3d DCA 2009) (table). The trial court denied the present motion on this ground as successive. However, as the State suggests, we may consider this issue pursuant to the manifest injustice exception. See State v. Akins, 69 So.3d 261 (Fla.2011); State v. McBride, 848 So.2d 287 (Fla.2003).

      . The record contains two certificates. The certificate concerning pre-resentencing jail time includes the time period from July 20, 2000, until the October 23, 2000, resentenc-ing.

      .In his reply, Medina also contends that he did not receive credit for eleven days served in jail after his original sentence was imposed, as shown on the jail certificates. This claim must be addressed by the Department of Corrections. See Salazar v. State, 892 So.2d 545, 547 (Fla. 3d DCA 2005) ("If an inmate believes that the Department has not granted correct [post-sentencing] credit in accordance with the section 921.161 jail certificate, then the inmate must seek relief through the inmate grievance procedure.”); see also Jenkins v. State, 999 So.2d 729 (Fla. 3d DCA 2008).


text:
    Jorge Mesa BETANCOURT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-475.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Rehearing Denied Oct. 20, 2011.
    Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: ROTHENBERG, J.

text:
    Herman MINOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1524.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 7, 2011.
    Herman Minor, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   ROTHENBERG, J.

Herman Minor appeals the trial court’s order denying his motion to correct an illegal sentence pursuant to rule 3.800(a). Minor admits to at least three prior unsuccessful attempts to obtain a new sentencing hearing based on the same grounds he has raised in the instant motion, but claims his prior motions were denied “on procedural grounds” and the relief he seeks is based on a “manifest injustice.” Because the sentencing transcript, when read in its entirety, establishes that Minor’s claim is without merit, we affirm.

Minor claims he was illegally sentenced as a habitual violent offender because the trial court failed to orally sentence him as such. The sentencing transcript refutes Minor’s claim, as do the Clerk’s minutes, docketing information, and the Sentencing Guidelines Scoresheet prepared by the State and signed by the trial judge at the sentencing hearing.

Affirmed.


text:
    Oriol Gonzalez DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2020.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 7, 2011.
    Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: EMAS, J.

text:
    Jermaine THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 3D11-1863.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 7, 2011.
    Jermaine Thompson, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Petition denied. Fla. R.Crim. P. 3.140(o), 3.190(c). Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).


author: SUAREZ, J.

text:
    CEDARS HEALTHCARE GROUP, LTD. d/b/a Cedars Medical Center, Petitioner, v. Myrian Ampuero-MARTINEZ, as Personal Representative of the Estate of Sergio Ampuero, deceased, Respondent.
    No. 3D11-34.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.
    Rehearing Denied Oct. 27, 2011.
    Carlton Fields and Stephen J. Bronis, Christina Alonso, and Jessica Zagier Wallace, Miami, for petitioner.
    Rossman, Baumberger, Reboso, Spier & Connolly and Lincoln J. Connolly, Miami, for respondent.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   SUAREZ, J.

Following a thorough review of the petition . for writ of certiorari, the response, and the reply, and after a thorough review of the statutes and case law in question, we grant the petition in part and deny in part.

The petition requests this Court quash the trial court’s order requiring production of documents requested in the Plaintiffs First Request to Produce dated November 19, 2009. Petitioner argues many separate grounds, each of which it claims is grounds for granting the petition. We grant the petition solely on the ground that the request to produce asks for records of adverse medical incidents involving patients other than the plaintiff but does not limit the production of those records to the same or substantially similar condition, treatment, or diagnosis as the patient requesting access. See § 381.028(7)(a), Fla. Stat. (2010). By not limiting the request as required by the statute, the trial court departed from the essential requirements of the law.

We therefore quash that portion of the trial court’s order on Cedar’s Exceptions to the General Magistrate’s Report and Recommendations that requires production of records of adverse medical incidents that are not limited to the same or substantially similar condition, treatment, or diagnosis of the patient requesting access.

Petition for writ of certiorari granted in part and denied in part.

      . We deny the petition for certiorari on all other grounds raised in the petition as we find the trial court’s ruling on these grounds did not depart from the essential requirements of the law.


author: SHEPHERD, J.

text:
    The PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, Petitioner/Appellant, v. Shaniah ROLLE, etc., et al., Respondents/Appellees.
    No. 3D10-1018.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Rehearing Denied Oct. 20, 2011.

      R.A. Cuevas, Jr., County Attorney, and Eric K. Gressman, Assistant County Attorney; Fowler, White, Burnett, et al., and Christopher E. Knight and June Galkoski Hoffman; Hall Booth Smith & Slover and Jack G. Gresh, Pro-Hac Vice, Atlanta, Ga., for petitioner/appellant.
    Burlington & Rockenbach and Philip M. Burlington, West Palm Beach; Sheldon J. Schlesinger and Crane A. Johnston, Ft.Lauderdale; Michael B. Solomon, for respondents/appellees.
    Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   SHEPHERD, J.

The Public Health Trust of Miami-Dade County petitions for certiorari relief from a trial court order denying its motion for summary judgment on its defense of sovereign immunity and motion for judgment on the pleadings, asserting it was immune from liability under Florida’s Good Samaritan Act, section 768.13 of the Florida Statutes (2004). We deny the petition.

This is a ten-year-old medical malpractice case in which the respondents, Shani-ah Rolle, a minor, through her natural parent, Queen Seriah Azulla Dabrio, and Queen Seriah Azulla Dabrio, individually, have sued some twenty-five medical doctors, their professional associations, the Broward Hospital District d/b/a Memorial Regional Hospital, the Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital, and the University of Miami d/b/a University of Miami School of Medicine, for negligent treatment and care from the day Shaniah was born, August 16, 1996, through the time of suit. Shaniah was born with multiple medical and physical abnormalities and conditions, including gastric perforation, a life-threatening condition for which she underwent surgery the day after her birth at Memorial Regional Hospital. After an extended neonatal stay in Memorial Regional, she was discharged into the care of multiple pediatric and gastroenterology physicians, some of whom also are named defendants in this action, for her conditions.

On June 11, 1999, Shaniah presented to the emergency room of Jackson Memorial Hospital in danger of death. Emergency room physicians quickly diagnosed Shani-ah as suffering from multiple virulent conditions, including ischemia from a disseminated pneumococcal infection, which had stopped the flow of blood to her extremities, and gangrene. After consultation with Shaniah’s mother, a team of Jackson physicians conducted a four-extremity amputation on the young girl — removing both arms below the elbow and both of her legs below her knees. Although it is not seriously disputed this emergency surgery saved Shaniah’s life, Shaniah and her mother, through counsel, now allege, inter alia, that Jackson emergency physicians failed to act quickly enough — during the first hour and a half or more from Shani-ah’s arrival at the hospital — to provide her with appropriate fluids and antibiotics, which they contend would have avoided the need for the amputations. Since the filing of this action, Broward Memorial Hospital has settled with Shaniah and her family for the sum of $200,000.

The Public Health Trust advances two principle arguments in support of its petition. First, it argues it is sovereignly immune from suit under section 768.28(5) of the Florida Statutes (2004), because another government entity, the Broward County Hospital District, acting on behalf of Memorial Regional Hospital, has paid up to the amount of the cap for which the State and its political subdivisions can be required to pay in this case. Section 768.28(5) reads as follows:

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

The argument does not afford the Trust any relief at this non-final stage of this proceeding. Assuming the Trust has some liability to Shaniah and her mother for her condition, it is by no means certain at this time that the Trust’s alleged negligence “[arose] out of the same incident or occurrence” as did the alleged negligence of Memorial Regional Hospital, now settled. This is a question for another day, should it arrive. Moreover, as we recently have explained, even if the Rolles have been paid the statutory maximum permitted under the statute, the trial court still has jurisdiction to enter a judgment against the Trust for purposes of supporting a potential claims bill to the legislature. See State Dep’t of Envtl. Prot. v. Garcia, — So.3d -, -, 2011 WL 3300540 (Fla. 3d DCA 2011) (citing Gerard v. Dep’t of Transp., 472 So.2d 1170 (Fla.1985)).

The Trust next asserts it is immune from suit under Florida’s Good Samaritan Act, section 768.13, Florida Statutes (2004). This Act provides that any health care provider, including a public hospital, such as Jackson Memorial Hospital, “shall not be held liable for any civil damages as a result of [emergency] medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.” § 768.13(2)(b)l., Fla. Stat. (2004) (emphasis added); see also Recent Developments, 32 Fla. St. U. L. Rev. 973, 997 (2005) (discussing parameters for liability under the Act). The Trust argues the Rolles have not properly pled around the ordinary negligence bar contained in the statute. However, even if they have, it is our view that, despite some language in the statute that arguably might lead to a contrary conclusion, the Act, by its terms, provides the Trust with a defense to liability if it meets the exculpatory requirements of the Act, but it does not provide it sovereign immunity from suit.

Our reading of the Act is consistent with guidance recently received from the Florida Supreme Court in Wallace v. Dean, 3 So.3d 1035 (Fla.2009), clarifying the difference between lack of duty and thus non-liability and sovereign immunity. The Florida Supreme Court stated:

When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the waiver present in section 768.28, Florida Statutes.

Id. at 1044 (footnote omitted). As the court further explained, “the absence of a duty of care renders the defendant nonlia-ble as a matter of law because his, her, or its actions are therefore non-tortious vis-a-vis the plaintiff.” Id. at 1045. Based on Wallace, just days ago in Miami Dade County v. Rodriguez, 67 So.3d 1213 at 1216 (Fla. 3d DCA 2011), we clarified our own decisional law in this area, stating we “will no longer exercise our certiorari jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated.” As Professor Prosser succinctly stated, “Duty is only a word with which we state our conclusion that there is or is not to be liability.” William L. Prosser, Palsgrqf Revisited, 52 Mich. L. Rev. 1, 15 (1953).

In this case, the sovereign seeks to invoke a provision of the Act to except it on the facts and circumstances of this case from the “waive[r of] sovereign immunity for liability for torts” provided by section 768.28(1) of the Florida Statutes. This is a fact-specific defense for which the Trust will have the burden of affirmative proof at trial. See, e.g., Christensen v. Cooper, 972 So.2d 207, 209 (Fla. 5th DCA 2007) (asserting the Act as an affirmative defense); accord N. Miami Med. Ctr. v. Prezeau, 793 So.2d 1142 (Fla. 3d DCA 2001); Frawley v. City of Lake Worth, 603 So.2d 1327 (Fla. 4th DCA 1992). It does not fall within that narrow range of cases involving “discretionary functions of government [that] are inherent in the act of governing and are [therefore] immune from suit.” See Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985) (citing Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla.1979)).

Petition denied.

      . Section 768.13(2)(c)3 states that the legislative intent of the immunity provision of the Act "is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation.” We find this sub-sub paragraph of the Act unhelpful on the immunity from liability/immunity from suit issue we are called upon to decide in this case.


text:
    Diego JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1280.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Diego Jimenez, in proper person.
    Pamela Jo Bondi, Attorney General and Jill D. Kramer, Assistant Attorney General for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   EMAS, J.

This is an appeal from an order denying without evidentiary hearing Diego Jimenez’s motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. The trial court’s order denied the motion on the basis that it was successive and untimely.

As the State properly concedes, the claims raised by Jimenez are not barred as successive or untimely. See Pleasure v. State, 931 So.2d 1000 (Fla. 3d DCA 2006) (holding successive motions are permitted under Rule 3.800(a) so long as the identical claim has not previously been adjudicated on the merits); accord Mims v. State, 994 So.2d 1233 (Fla. 3d DCA 2008). See also Fla. R.Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence imposed by it....”). The trial court erred in summarily denying Jimenez’s motion on these grounds.

Reversed and remanded for proceedings consistent with this opinion.


text:
    Gilbert JUARBE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D11-742, 3D11-2065.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Gilbert Juarbe, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999); Rincon v. State, 996 So.2d 922, 923 (Fla. 4th DCA 2008); Kline v. State, 858 So.2d 1257 (Fla. 1st DCA 2003); Lanier v. State, 826 So.2d 460, 461 (Fla. 1st DCA 2002).


text:
    Oscar Socias VEGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2283.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Rehearing Denied Oct. 13, 2011.
    Rhonda F. Gelfman, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Cristobal Jesus MAIRENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2260.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 2011.
    Cristobal Jesus Mairena, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: ROTHENBERG, J. SHEPHERD, J.,

text:
    PORTUONDO-TARAJANO INTERNATIONAL CORP., Appellant, v. FARM STORES GROCERY, INC., Greener Pastures Trading, Inc., Autumn Partnership, LLP, and The Golden Cow, LLC, Appellees.
    No. 3D10-2785.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.

      Hall, Lamb and Hall, P.A., and Andrew C. Hall, Adam J. Lamb, and Roarke Maxwell, Miami, for appellant.
    Jose Garcia-Pedrosa, for appellees.
    Before SHEPHERD, ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

Plaintiff Portuondo-Tarajano International Corp. (“PTI”) appeals from a final order dismissing its Third Amended Complaint with prejudice in favor of the defendants, Farm Stores Grocery, Inc. (“Farm Stores”), and several of Farm Stores’ subsidiaries and/or affiliates, Greener Pastures Trading, Inc., Autumn Partnership, LLP, and The Golden Cow, LLC (collectively, “the Defendants”). PTI also appeals a prior order postponing trial and requiring PTI to amend its Second Amended Complaint based on an accepted Offer of Judgment made solely by Farm Stores to Manuel J. Portuondo (“Portuon-do”), PTI’s sole shareholder and officer. We reverse the order dismissing the Third Amended Complaint with prejudice, remand for further proceedings consistent with this opinion, and find that the trial court erred by ordering PTI to file the Third Amended Complaint and by postponing trial.

I. FACTUAL AND PROCEDURAL HISTORY

In April 2005, Portuondo, a former employee and officer of Farm Stores, filed a complaint against the Defendants, alleging that Farm Stores breached a written Stock Option Agreement (Count I) and an oral Business Generation Agreement as to a “Velda Farms-Associated Grocers-Farm Stores” transaction (“Velda Farms transaction”) (Count II) and a “Retail-Dealer Franchising Program” (“Franchising Program”) (Count III). In August 2005, Por-tuondo filed an amended complaint against the Defendants, alleging that Farm Stores breached the Stock Option Agreement (Count I), and the Defendants (as opposed to only Farm Stores) breached the Business Generation Agreement as to the Vel-da Farms transaction (Count II) and the Franchising Program (Count III). The Defendants answered and asserted affirmative defenses, and Farm Stores filed a counterclaim against Portuondo, asserting that he breached his fiduciary duty, converted confidential information, and misappropriated trade secrets.

In December 2007, Portuondo was granted leave to file a Second Amended Complaint to add PTI as an additional plaintiff (PTI and Portuondo, collectively referred to as “the Plaintiffs”). The Second Amended Complaint alleges that Farm Stores breached the Stock Option Agreement (Count I), and alternatively, that Portuondo seeks to reform the Stock Option Agreement (Count IV). Further, Count II alleges that the Defendants breached the Business Generation Agreement as to the Velda Farms transaction, asserting that the Defendants initially-agreed to pay Portuondo 8% of all revenue he generated in negotiating and finalizing the Velda Farms transaction. However, prior to making the first payment due under the agreement, Farm Stores and Portuondo agreed that payment due under the agreement would be paid to Portuon-do’s consulting firm, PTI, “who would be deemed to have provided [Portuondo’s] business generation services to [Farm Stores], entitling [PTI] to the 3% fee.” After the Velda Farms transaction closed, the Defendants, through Greener Pastures, paid PTI $200,000 or approximately 2.5% of the fee due. Therefore, PTI is owed an additional 0.5%. The allegations in Count III are similar to the allegations in Count II, except that Count III pertains to the Franchising Program, and alleges that the Defendants breached the Business Generation Agreement by failing to pay PTI the 3% due. In Counts II and III, the Plaintiffs allege that, in the alternative, the remaining sums are due to Por-tuondo.

In June 2008, the Defendants served separate offers of judgments on PTI ($1,000) and Portuondo ($40,000), pursuant to Florida Rule of Civil Procedure 1.442, and section 768.79, Florida Statutes (2008). The offer made to Portuondo specifically stated that it was made “to settle and resolve any and all claims that POR-TUONDO had, has or will have in this lawsuit against any and/or all of the Defendants individually and/or collectively, inclusive of PORTUONDO’S attorney’s fees and costs.” Further, it provided that the offer “does not include or cover any claims by and/or against the other Plaintiff, [PTI].” (emphasis in original). The offer made to PTI contained the same language as the offer made to Portuondo, except that it was made to settle all of PTI’s claims, and did not include the claims raised by Por-tuondo. Neither offer was accepted.

More than a year later, in August 2009, Farm Stores, pursuant to rule 1.442 and section 768.79, offered Portuondo $70,000 to settle. Like the June 2008 offer made by the Defendants to Portuondo, this offer provided: “This proposal does not include or cover any claims by and/or against the other Plaintiff, [PTI].” However, unlike the June 2008 offer, this offer was made only by Farm Stores (as opposed to by all of the Defendants), and stated that an “[acceptance of this offer will result in a voluntary dismissal of FARM STORES’ counterclaim.” Further, no separate offer was made to PTI. Portuondo timely accepted Farm Stores’ Offer.

In September 2009, the Defendants filed a Motion for Dismissal Due to Settlement, asserting that as a result of Portuondo’s acceptance of Farm Stores’ Offer, “every existing and possible claim” Portuondo had against Farm Stores under the alleged Business Generation Agreement was “settled and released.” At a hearing held on the day trial was to commence, PTI argued that the Offer applied only to Por-tuondo and it specifically excluded PTI’s claims. The trial court inquired as to whether PTI is separate and distinct from Portuondo, and stated, “I don’t see any separate and distinct claim for damages.” The trial court entered an order postponing the scheduled trial and requiring PTI to amend the Second Amended Complaint due to Portuondo’s acceptance of Farm Stores’ Offer.

As ordered by the trial court, PTI filed its Third Amended Complaint, asserting a breach of the Business Generation Agreement as to the Velda Farms transaction (Count I), and the Franchising Program (Count II). PTI also moved for reconsideration of the trial court’s earlier order and sought to reset the trial.

The Defendants filed a motion to dismiss the Third Amended Complaint with prejudice based on Portuondo’s acceptance of the Offer. The Acting Circuit Court Judge entered an order denying PTI’s motion for reconsideration and to reset the trial, but dismissed PTI’s Third Amended Complaint with prejudice. PTI’s appeal follows.

II. ISSUE

The primary issue we must determine is whether the trial court erred, as a matter of law, by dismissing with prejudice Por-tuondo’s and PTI’s Third Amended Complaint based on Portuondo’s acceptance of Farm Stores’ offer of judgment, which was made only to Portuondo. As we conclude that Portuondo’s acceptance of Farm Stores’ Offer did not bar PTI’s separate and distinct claims, we reverse the order dismissing the complaint with prejudice, and remand for further proceedings consistent with this opinion.

III. ANALYSIS

Section 768.79(2)(b) provides, in part, that “[a]n offer must ... [njame the party making it and the party to whom it is being made,” and rule 1.442(2)(A) utilizes similar language: “A proposal shall ... name the party or parties making the proposal and the party or parties to whom the proposal is being made.” Further, “the only parties bound by [an] offer of judgment [are] the parties who made the offer and the parties who accepted the offer,” unless the liability of the remaining parties is “derivative or subsumed within the claims of the other parties to the offer.” Sec. Professionals, Inc. v. Segall, 685 So.2d 1381, 1383 (Fla. 4th DCA 1997); see also Video Super Stores of Am., Inc. v. Mastriana, 575 So.2d 326 (Fla. 4th DCA 1991) (holding that settlement agreement is not binding on individual who was not a party to the settlement agreement). Here, a review of the Offer demonstrates that it was made only to Portuondo, and therefore, PTI is not bound by the Offer.

The Defendants assert that even if PTI is not bound by the Offer, the trial court properly dismissed the action with prejudice because PTI did not plead any separate and distinct claims in the Second Amended Complaint, which is the operative complaint as it was the complaint upon which the Offer was made to and accepted by Portuondo. Based on our review of the Second Amended Complaint, we disagree.

Counts I and IV of the Second Amended Complaint, which relate to the Stock Option Agreement, were clearly settled by the Offer. Thus, our review of the Second Amended Complaint is limited to Counts II and III pertaining to the Defendants’ alleged breach of the Business Generation Agreement as to the Velda Farms transaction (Count II) and the Franchising Program (Count III). Counts II and III allege that PTI would be deemed to have provided the business generation services and that the fees are due to PTI, not Portuondo. The Plaintiffs, however, alleged that, in the alternative, the fees are due to Portuondo. Thus, Portuondo’s acceptance of Farm Stores’ Offer did not extinguish or settle PTI’s independent claims raised in Counts II and III of the Second Amended Complaint. Therefore, in addition to the claims relating to the Stock Option Agreement, the Offer also settled Portuondo’s alternative claims relating to the breach of the Business Generation Agreement in Counts II and III. Accordingly, we conclude that the trial court erred, as a matter of law, by dismissing the action with prejudice, and remand for further proceedings.

Based on our resolution of the above issue and our independent review of the Second Amended Complaint, we find that the trial court erred by requiring PTI to file the Third Amended Complaint and by postponing the trial. Therefore, on remand PTI will have the option of going forward on its Second Amended Complaint or its Third Amended Complaint.

The remaining argument raised by PTI need not be addressed based on our determination of the primary issue raised on appeal.

Reversed and remanded.

SALTER, J., concurs.

SHEPHERD, J.,

dissenting.

I dissent.

      . Based on PTI’s motion, the original trial court judge recused herself.

      . As we noted, in June 2008, the Defendants served separate offers of judgments on PTI and Portuondo, which were not accepted. Defendants thus were aware of the need to address all claims and claimants in the suit to buy peace through settlement.


text:
    NESS RACQUET CLUB, LLC, Appellant, v. OCEAN FOUR 2108, LLC, Appellee.
    Nos. 3D11-459, 3D10-3039.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.

      Richard and Richard and Dennis Richard, Miami and' Michael R. Tolley, for appellant.
    Barakat Law and Brian Barakat, Michelle Alvarez Barakat, and Bruce Jacobs., Miami, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   SUAREZ, J.

Ness Racquet Club, LLC (“Ness”), appeals a final summary judgment in favor of Ocean Four 2108, LLC (“Ocean Four”), the defendant, and a non-final order denying Ness’s motion to dissolve writ of garnishment. We reverse the final summary judgment and the order denying the motion to dissolve.

On November 1, 2006, Ness, a developer, and Ocean Four entered into a precon-struction purchase and sale agreement for a condominium unit at Eloquence on the Bay in Fort Lauderdale. Pursuant to the contract, Ocean Four placed deposits on the condominium unit totaling $177,600.00 in escrow with Attorney’s Title Insurance Fund (“the Fund”), and Ness agreed to substantially complete the unit within two years of the signing of the contract. The purchase and sale agreement provided for the closing to take place subsequent to the seller obtaining a temporary certificate of occupancy. It also provided that the issuance of a temporary certificate of occupancy would constitute conclusive evidence of substantial completion as follows:

6. CLOSING
(a) TIME OF CLOSING. This transaction shall close subsequent to Seller’s obtaining the temporary Certificate of Occupancy from the proper Governmental agency responsible for issuing said Certifícate on the floor in the building in which the Unit is situated. Seller shall give fifteen (15) calendar days written notice of the closing date to Purchaser at Purchaser’s address as same appears on the signature page hereof. Issuance of said Certifícate for the Condominium shall constitute conclusive evidence of substantial completion of the Unit, as provided in this Contract. The fact that there may be items to be corrected or completed shall not delay nor postpone the Closing nor require the holding of any portion of the purchase price in escrow until the completion thereof.

On October 15, 2008, within two years of the parties’ entering into the purchase and sale agreement, a temporary certificate of occupancy (“TCO”) was issued for the unit. The closing then was set to take place on October 81, 2008. Pursuant to a request from Ocean Four, the parties agreed to extend the closing until December 1, 2008. Before the closing could take place, Ocean Four sent a letter seeking to rescind the contract and demanded return of its deposit, asserting that the building had not been completed and that Ocean Four could not move into the unit. After Ocean Four did not close on the unit by December 1, 2008, Ness sent written notice to Ocean Four that it was in default under the contract, and that it had twenty days from the notice to close or it would be in breach of the contract. On April 23, 2009, Ocean Four filed an eight-count complaint, including a count for breach of contract, against both Ness and the Fund seeking return of its deposit. Ness counterclaimed for breach of contract for failure to close. In September, 2009, the parties agreed to the dismissal of the Fund from the lawsuit. All parties agreed that the Fund would hold in escrow the funds in question until such time as the court directed disbursement, the time for appeal had expired, and the Fund received a copy of the final order. On August 19, 2009, Ness filed a motion for summary judgment on all counts in the complaint and on the counterclaim. The trial court denied Ness’s motion for summary judgment and, sua sponte, entered summary judgment in favor of Ocean Four, which had never filed or moved for summary judgment. The trial court entered final summary judgment in the amount of $177,600.00 in favor of Ocean Four. On December 13, 2010, Ocean Four served the Fund with a writ of garnishment seeking to garnish the funds in escrow. Ness filed a motion to dissolve the writ, which the trial court denied. This appeal followed. We reverse both of these orders.

We reverse the final summary judgment for two reasons. The first reason concerns the lack of opportunity for the opponent of the summary judgment motion to oppose its issuance where the trial judge sua sponte entered summary judgment for the non-moving party. Although it is the better practice for both parties to file cross motions for summary judgment, where one party has moved for summary judgment, the court, in the absence of a timely and meritorious objection, may dispose of the matter by granting judgment to either party if there is no genuine issue of material fact and if it finds that the facts, properly construed against the prevailing party, show that such prevailing party is entitled to summary judgment as a matter of law. Carpineta v. Shields, 70 So.2d 573 (Fla.1954). Where a party has not filed a summary judgment motion or where no notice or opportunity to be heard has been given to the opposing side to present opposing affidavits, a trial court may not sua sponte grant summary judgment in favor of the non-movant. See Hotel 71 Mezz Lender, LLC v. Tutt, 66 So.3d 1051 (Fla. 3d DCA 2011) (holding that summary judgment in favor of non-movant especially disfavored where case requires resolution of material issues of fact); Univ. of Miami v. Sosa, 629 So.2d 172 (Fla. 3d DCA 1993) (holding that sua sponte entry of summary judgment in favor of non-movant improper where material factual issues remain to be resolved); see also Kelly v. Militana, 595 So.2d 113 (Fla. 3d DCA 1992) (holding that trial court may not grant a summary judgment where no summary judgment motion is pending and where there is no notice or opportunity to present opposing affidavits).

The second reason for reversal concerns the presence of disputed issues of material fact that preclude the granting of summary judgment. Generally, whether there has been a breach of the terms of the contract is a question of fact, and the issue of whether there is a defense that excuses the breach is typically a question of fact. 23 Williston on Contracts § 63.15 (4th ed. 2002). The record before us reflects the existence of disputed and genuine issues of material fact that are disposi-tive of the issue of whether there has been a breach of the terms of the contract between the parties. The contract, by its very own terms, presents a disputed issue of material fact as to whether there has been substantial completion under the contract, and that question alone precludes the entry of summary judgment. See CDI Contractors, LLC v. Allbrite Elec. Contractors, Inc., 780 So.2d 963, 965 (Fla. 5th DCA 2001) (“[Wjhether a subcontractor has substantially performed is a question of fact and should not be decided as a matter of law.”); Nat’l Constructors, Inc. v. Ellenberg, 681 So.2d 791 (Fla. 3d DCA 1996)(same). The fact that a TCO has been issued is “solid evidence” of substantial compliance to be used in deciding the factual issue of whether a breach of contract occurred. See CDI, 780 So.2d at 965.

We therefore reverse the summary judgment in favor of Ocean Four.

Since the escrow agreement between the parties provides that the deposits being held by the Fund remain with the Fund in escrow until such time as the court directs disbursement, the time for appeal has expired and the Fund receives a copy of the final order, the trial court erred in entering a writ of garnishment. See Van Vorgue v. Rankin, 41 So.3d 849, 853 (Fla.2010) (holding that disputed funds were restricted funds being held in escrow by agreement of the parties and the order disbursing the funds was in error). We reverse the order denying the motion to dissolve the writ of garnishment.

Reversed and remanded for further proceedings.

      . We also find that the trial court erred in holding that the provision in the agreement which states that the issuance of a temporary certificate of occupancy constitutes conclusive evidence of substantial completion of the unit creates an unconstitutional irrebuttable presumption. We find that the provision is not unconstitutional as it is between two private parties to the contract.


text:
    SANTA BARBARA TOWNHOMES OF HOMESTEAD, INC., and United Homes International, Inc., Petitioners, v. BANCO POPULAR NORTH AMERICA, Respondent.
    No. 3D11-559.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.

      Kluger, Kaplan, Silverman, Katzen & Levine, and Abbey L. Kaplan, Miami, and Jamie L. Zuckerman, for petitioners.
    Broad and Cassel, and Gary E. Lehman, Miami; Broad and Cassel, and Beverly A. Pohl, Fort Lauderdale, for respondent.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Following review of the petition for writ of certiorari and the response and reply thereto, we grant the petition only with respect to the provision in paragraph 3 of the February 1, 2011, order contingently providing for the issuance ex parte of a writ of bodily attachment for Silvio Cardo-so without a further hearing. The petition is denied in all other respects.


text:
    Welch MONESTIME, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-800.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Welch Monestime, in proper person.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Welch Monestime appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of trial counsel. After an evidentiary hearing, the trial court based its ruling on a credibility determination in favor of trial counsel. This Court will not substitute its judgment for that of the trial court on issues of credibility as long as the trial court’s findings are supported by competent substantial evidence. See Gore v. State, 846 So.2d 461, 468 (Fla.2003). Because the trial court’s findings here were supported by trial counsel’s testimony, we affirm.

Affirmed.


text:
    Sigifredo BENITEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-2293.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Sigifredo Benitez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Corria v. State, 932 So.2d 530 (Fla. 3d DCA 2006).


text:
    Juan Ortiz MUNGUIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2234.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Julio Gutierrez, Hialeah, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See Dumenigo v. State, 988 So.2d 1201 (Fla. 3d DCA 2008).


text:
    Johnny RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-2144.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Carlos J. Martinez, Public Defender and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela J. Bondi, Attorney General and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Morrison v. State, 818 So.2d 432 (Fla.2002); Karp v. State, 698 So.2d 577 (Fla. 3d DCA 1997).


text:
    Wichelson DELHOMME, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 3D10-1865.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.

      Wichelson Delhomme, in proper person.
    Louis A. Gutierrez, Sr. Attorney, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   EMAS, J.

Wichelson Delhomme (“Delhomme”) appeals a final order of the Unemployment Appeals Commission (“UAC”) which affirmed the decision of the unemployment compensation appeals referee. The referee determined that Delhomme was disqualified from receiving unemployment benefits on the basis that he voluntarily left his job without good cause attributable to the employer.

The issue in this case is whether an employee who voluntarily quits a part-time job after being dismissed from full-time employment is subject to a total disqualification of unemployment benefits. We affirm the decision of the UAC.

Delhomme was laid off from his full-time position at Rainbow Tile in early 2008. As a result, Delhomme was eligible for, and began receiving, unemployment benefits. At the time of his dismissal, Delhomme was also working part-time at Long John Silver’s. The neighborhood in which the Long John Silver’s is located was known by the police to be a high crime area. Delhomme told his manager he was concerned about the neighborhood being unsafe, and raised a particular concern that his obligation to close the store (around 10 or 11:00 p.m.) could be dangerous. The manager told Delhomme “he had nothing to worry about and nothing was going to happen.”

Delhomme never made these concerns known to anyone other than his manager, and he took no other actions based upon these concerns. Further, no incidents of crime occurred at that particular Long John Silver’s restaurant while Delhomme worked there. Nevertheless, in July of 2008, and within a week of speaking with his manager about his apprehensions, Del-homme quit his job, admittedly due to his fear that he might be robbed.

Delhomme did not apply for additional benefits after quitting his part-time position at Long John Silver’s. In January of 2010, however, a Notice of Determination was issued to Delhomme, advising him that he was no longer eligible to receive benefits since his reason for quitting his part-time job at Long John Silver’s was not attributable to the employer. Delhomme was also advised that he had been overpaid in unemployment benefits. Delhomme timely appealed, contending that the benefits he had been receiving were based upon his dismissal from Rainbow Tile, not his resignation from Long John Silver’s.

On March 9, 2010, Delhomme and the employer’s representative participated in a hearing before the appeals referee. At the hearing, Delhomme admitted that he quit his job at Long John Silver’s, that he was never robbed, and that getting robbed was just “a possibility.” He testified that he quit his part-time job because he did not feel safe at work, and he conceded that he neither spoke to anyone above his manager nor put his concerns in writing.

The appeals referee issued an order in which it determined that Delhomme voluntarily quit his job without good cause attributable to his employer and was overpaid $229 in benefits. The UAC adopted the referee’s factual findings and affirmed the referee’s decision. This appeal followed.

Section 443.101, Florida Statutes (2010) provides:

An individual shall be disqualified for benefits:
(l)(a) For the week in which he or she has voluntarily left work without good cause attributable to his or her employing unit ...
1. Disqualification for voluntarily quitting continues for the full period of unemployment next ensuing after the individual has left his or her full-time, part-time, or temporary work voluntarily without good cause and until the individual has earned income equal to or greater than 17 times his or her weekly benefit amount ... the term “good cause” includes only that cause attributable to the employing unit which would compel a reasonable employee to cease working or attributable to the individual’s illness or disability requiring separation from his or her work ...

The current provision was amended in 1999; at that time, the Florida Legislature added the following underlined language:

Disqualification for voluntarily quitting continues for the full period of unemployment next ensuing after the individual has left his or her full-time, part-time, or temporary work voluntarily without good cause....

Ch. 99-131, § 2, Laws of Fla., at 781, codified at § 443.101(l)(a)l., Fla. Stat. (2010).

Our Court recently construed the 1999 amendatory language. In Rumayor v. Biohealth Med. Lab., Inc., 45 So.3d 984 (Fla. 3d DCA 2010), we found this statutory language unclear and looked to the legislative history, including the staff analysis, to determine the Legislature’s intent. We noted in Rumayor that the committee report and staff analysis reveal the 1999 amendment was intended to address the problem of “a claimant who is laid off of a full-time job, and upon being awarded unemployment benefits, quits a part-time job.” Id. at 985. We quoted the specific staff analysis to support this conclusion:

In 1981, Florida’s Second District Court of Appeal held in Neese v. Sizzler Family Steak House, 404 So.2d 371 (Fla. 2d DCA 1981), that an individual is not totally disqualified for benefits when he/ she works a full-time and part-time job simultaneously, qualifies for partial unemployment benefits based on being laid off by the full-time employer, then subsequently quits the part-time job. The court ruled that, in such instances the individual is entitled to partial benefits which is equal to the weekly benefit amount reduced by what the individual would have earned had he/she continued the part-time employment. The district courts have continued to follow the Neese decision, despite legislative amendment in 1994 aimed at overturning Neese.

Id. at 985-86, (quoting Staff Analysis of Finance & Taxation Comm. FoR H.B. 1951, 16th Leg., Reg. Sess., Rep. on Unemployment Comp. (Fla. 1999)).

The staff analysis further explained the intended effect of this 1999 amendment:

The bill would overturn Neese and its progeny Berger v. ASOLO Center for the Performing Arts, Inc., 686 So.2d 649 (Fla. 2d DCA 1996); Alderman v. Unemployment Appeals Commission, 664 So.2d 1160 (Fla. 5th DCA 1995); Tierney v. Florida Unemployment Appeals Commission, 640 So.2d 154 (Fla. 2d DCA 1994); Stewart v. Dollar Tree, 635 So.2d 73 (Fla. 1st DCA 1994); Coelho v. Balasky, 631 So.2d 335 (Fla. 3d DCA 1994). This bill would require the total disqualification of individuals who work a full-time and part-time job simultaneously and qualify for partial benefits based on being separated from the full-time employer, if they subsequently quit the part-time job.
Id.

Thus, where an employee is laid off from his full-time job, obtains unemployment benefits, and then voluntarily quits his remaining part-time job, the act of voluntarily quitting the part-time job is a disqualifying event under section 443.101(l)(a)l.

Here, Delhomme unquestionably qualified for benefits as a result of his dismissal from his full-time position at Rainbow Tile. Delhomme concedes, however, that after being dismissed from his full-time position, he voluntarily quit his part-time job at Long John Silver’s, based on his safety concerns. Because Delhomme voluntarily quit his part-time position without good cause attributable to his employer, he is disqualified from all benefits.

We recognize that some may perceive an inequity created under these factual circumstances. That one will be disqualified from benefits legitimately received after being dismissed from a full-time position due to a subsequent resignation from a dissatisfying part-time job creates a disincentive for a dismissed employee to mitigate his losses. The Legislature, however, has made plain its intent in amending section 443.101(l)(a)l., and “when construing a statutory provision, legislative intent is the polestar that guides our inquiry[.]” McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998). It is neither our duty nor our prerogative to modify this clearly expressed legislative intent. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).

Affirmed.

      . Although there may not be judicial unanimity on the value of relying upon legislative staff analysis in discerning legislative intent, see, e.g., Massey v. David, 979 So.2d 931 (Fla. 2008); GTC, Inc. v. Edgar, 967 So.2d 781, 789 n. 4 (Fla.2007), it is clear that such analyses can at least provide "one touchstone of the collective legislative will.” White v. State, 714 So.2d 440, 443 n. 5 (Fla.1998), (quoting Sun

        Bank/S. Fla., N.A. v. Baker, 632 So.2d 669, 671 (Fla. 4th DCA 1994)).


author: CORTIÑAS, J.

text:
    Kimani SAMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1632.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Rehearing Denied Oct. 27, 2011.
    Carlos Martinez, Public Defender, and Joanna G. Ingalls and Kathryn Strobach, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before CORTEÑAS, ROTHENBERG, and LAGOA, JJ.
   CORTIÑAS, J.

Kimani Sampson (“defendant”) appeals from his conviction and sentence for burglary of an occupied dwelling. We affirm.

Defendant was arrested for the burglary of his former wife’s residence. The evidence revealed that the former wife and her new boyfriend were awoken during the night by loud banging on the back door of their home. When the boyfriend went to investigate, he saw the defendant. Shortly thereafter, the boyfriend, the former wife, and her son left the home. As they left, the boyfriend saw the defendant enter the home. During the subsequent investigation, the detectives observed blood on the back door. The detectives later spoke with the defendant who told them that on the night in question he was at a church event. However, other than saying it was somewhere in Richmond Heights, the defendant could not identify the church. The detectives also noticed that the defendant had abrasions on his knuckles and index finger. The State charged the defendant with burglary of an occupied dwelling and criminal mischief.

Prior to trial, at defense counsel’s request, the trial court ordered that the defendant be evaluated to determine if he was competent to proceed to trial. The trial court appointed two experts, but the defendant refused to speak to them. Nevertheless, the trial court held a competency hearing at which the trial court questioned the defendant regarding his understanding of the charges against him and what would occur at the trial. Satisfied with the defendant’s answers, the trial court found the defendant to be competent.

The case proceeded to trial before a successor judge. Throughout the proceedings, the defendant was disruptive. The defendant continually commented on the witnesses’ lack of veracity, accused the judge and defense counsel of suppressing the truth and being biased against him, and refused to wear a suit, instead of his prison clothes, to trial. Outside the presence of the jury, the trial court admonished the defendant several times, and, at one point, held him in contempt.

Against his counsel’s advice, the defendant decided to testify. He testified that his former wife had fraudulently married him for immigration purposes, and made several false reports against him. During her testimony, the former wife had denied filing any complaints against the defendant. Outside of the jury’s presence, the defendant argued that the former wife was being allowed to testify falsely because she had instigated domestic violence proceedings against him. Pursuant to a pre-trial motion in limine, the parties were precluded from presenting evidence of the domestic violence proceedings which took place after the incident giving rise to the criminal case. However, at the defendant’s insistence, the trial court interrogated the former wife regarding the domestic violence injunction. Ultimately, the jury returned a verdict of guilty to the burglary charge, and this appeal followed.

On appeal, the defendant raises three trial court errors. First, the defendant contends that the trial court erred in not re-evaluating the defendant’s competency during the trial. Next, the defendant argues that the trial court erred in admitting evidence regarding the domestic violence proceedings which had been precluded pre-trial. Finally, the defendant asserts that the trial court erred and became an advocate when the trial court directly questioned the former wife about the domestic violence proceedings. We find no merit in defendant’s arguments.

Turning first to the issue of the defendant’s competency, Florida Rule of Criminal Procedure 3.210 provides that criminal proceedings should not be held against a person who is mentally incompetent. “A defendant is incompetent to proceed ... if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.” § 916.12(1), Fla. Stat. (2010). Rule 3.210 also states that, where there are reasonable grounds to believe that the defendant is not competent, the trial court may order the defendant to be examined by up to three experts prior to a competency hearing. Nevertheless, “[t]he reports of experts are ‘merely advisory to the Court, which itself retains the responsibility of the decision.’ ” Muhammad v. State, 494 So.2d 969, 973 (Fla.1986) (citing Brown v. State, 245 So.2d 68, 70 (Fla.1971)).

Here, the trial court followed the procedures set forth in Rule 3.210 and ordered that two experts examine the defendant. However, the defendant refused to cooperate with the experts. In Muhammad, the Florida Supreme Court stated: “If the court has followed the procedures of the rules and the defendant’s own intransigence deprives the court of expert testimony, the court must still proceed to determine competency in the absence of such evidence.” Id. There, the Florida Supreme Court upheld the trial court’s determination of competency based upon the trial court’s observation of the defendant. Likewise, we approve of the original trial judge’s determination of the defendant’s competency in this case based on her questioning and observation of the defendant. Moreover, although the defendant was disruptive during the trial, nothing in the record suggests that the defendant was incompetent. Therefore, the successor judge was not required to change the initial competency determination. See Kilgore v. State, 688 So.2d 895, 898-99 (Fla.1996).

With regard to the admission of the domestic violence evidence, we find that the defendant either waived the issue by failing to object or invited the error by claiming that the trial court was allowing his former wife to testify falsely. See Lawrence v. State, 614 So.2d 1092, 1094 (Fla.1993) (stating that contemporaneous objection rule applies to evidence about other crimes even where there is a pretrial motion in limine); Ashley v. State, 642 So.2d 837 (Fla. 3d DCA 1994) (“[A] party may not make or invite error at trial and then take advantage of the error on appeal.”).

Finally, the trial court did not abuse its discretion in briefly questioning the former wife concerning the domestic violence injunction. Again, the questioning was at the defendant’s insistence that the trial court was suppressing the truth and allowing the witness to testify falsely. Thus, the error, if any, was invited. See Ashley, 642 So.2d at 837. Further, the trial court did not go beyond questions to clarify the former wife’s prior testimony. See R.O. v. State, 46 So.3d 124 (Fla. 3d DCA 2010).

Accordingly, we affirm the judgment and sentence entered below.

Affirmed.


text:
    Juan HURTADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2347.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.

      Mavel Ruiz, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    BDO SEIDMAN, LLP, etc., Appellant, v. Kenneth A. WELT, etc., et al., Appellees.
    No. 3D10-3204.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Greenberg Traurig and M. Hope Keat-ing, Tallahassee and Elliot H. Scherker and Brigid F. Cech Samóle, Miami, for appellant.
    Berger Singerman and James C. Cunningham, Jr., Miami, for appellees.
    Before WELLS, C.J., RAMIREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999).


text:
    Lidia NISR f/k/a Lidia Barakat, Appellant, v. Maged BARAKAT, Appellee.
    No. 3D10-2909.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Orshan & Fajardo, and Eliot R. Weitz-man and Robert D. Orshan, for appellant.
    Maged Barakat, in proper person.
    Before RAMIREZ, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See C.J. v. Dep’t of Children & Family Servs., 9 So.3d 750, 755 (Fla. 2d DCA 2009) (holding that when an issue is tried by implied consent, due process concerns are alleviated; noting that “[ijmplied consent arises when arguments and evidence are presented on the issue without objection by the opposing party”); Foerster v. Foerster, 885 So.2d 927, 929 (Fla. 2d DCA 2004) (“Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.”) (emphasis added); Todaro v. Todaro, 704 So.2d 138, 139 (Fla. 4th DCA 1997) (holding that “when issues not raised by the pleadings are tried by implied consent, they are to be treated as if they had been raised in the pleading”; finding that issue regarding child support reduction was not tried by implied consent where ex-wife “objected to the trial court hearing evidence on matters that were not properly pled”); Brickell Station Towers, Inc. v. JDC (Am.) Corp., 549 So.2d 203, 203 (Fla. 3d DCA 1989) (“In granting relief which was neither requested by appropriate pleadings, nor tried by consent, the trial court entered the order in violation of ... due process rights.”) (emphasis added).


author: RAMIREZ, J. WELLS, C.J.,

text:
    Dimitrios Georgos KAVOURAS, a/k/a Dimitri Kavoura, Petitioner, v. MARIO CITY RESTAURANT CORPORATION, etc., et al., Respondents.
    No. 3D11-612.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Kasowitz, Benson, Torres, & Friedman and Scott B. Cosgrove and Audrey Pumar-iega, Miami, for petitioner.

      Rumrell & Brock; Hershoff, Lupino & Yagel; Hicks, Porter, Ebenfeld & Stein, Michael S. Hirsehkowitz and Shannon Kain, Miami, for respondents.
    Before WELLS, C.J., RAMIREZ and CORTIÑAS, JJ.
   RAMIREZ, J.

Dimitidos Georgos Kavouras a/k/a Dimi-tri Kavoura seeks certiorari review of an order severing equitable and legal claims and setting a bench trial followed by a jury trial in a minority shareholder’s suit for breach of fiduciary duties. We grant the petition because the order departs from the essential requirements of law, leaving the petitioner with no remedy on appeal.

Dilig M. Jagasia, a purported minority shareholder of Mario City Restaurant Corporation, sued Kavouras, majority shareholder of the corporation, for breach of fiduciary duties. Jagasia claims that Ka-vouras diverted millions of dollars from Mario City for his personal benefit. After amendments, Jagasia’s complaint included claims for: (1) constructive trust on behalf of Mario City; (2) accounting on behalf of Mario City; and (3) damages on his own behalf. Both parties agree that the facts underlying all three claims are interrelated.

The constructive trust and accounting claims are equitable, while the damages claim is an action at law. The trial court severed the constructive trust and accounting claims from the damages claim. The trial court also ruled that the equitable claims would be tried by the court first and the damages claim would be tried later by a jury. In a petition for writ of certio-rari, Kavouras contends that the trial court’s order is a departure from the essential requirements of law which cannot be remedied on appeal. We agree.

When a nonfinal order from a trial court departs from the essential requirements of law and cannot be remedied on appeal, this Court has certiorari jurisdiction. See Banc of Am. Inv. Servs., Inc. v. Barnett, 997 So.2d 1154, 1157 (Fla. 3d DCA 2008). Certiorari is an appropriate remedy for orders severing or bifurcating claims which involve interrelated factual issues because severance risks inconsistent outcomes. ACT Servs., Inc. v. Sch. Bd. of Miami-Dade Cnty., 29 So.3d 450, 453 (Fla. 3d DCA 2010); Bethany Evangelical Covenant Church of Miami, Fla., Inc. v. Ca-landra, 994 So.2d 478, 479 (Fla. 3d DCA 2008). Moreover, it is well settled that where mixed equitable and legal claims are presented on interrelated facts, the trial court first must have a jury decide the case so as to preserve the parties’ right to a jury trial. See, e.g., Yer Girl Tera Mia v. Wimberly, 962 So.2d 993, 996 (Fla. 5th DCA 2007); Billian v. Mobil Corp., 710 So.2d 984, 992 (Fla. 4th DCA 1998); Marshall v. Sprecher, 559 So.2d 1280, 1281 (Fla. 2d DCA 1990); Vine v. Scarborough, 517 So.2d 726, 728 (Fla. 3d DCA 1987).

Appellees contend that in this case there is no irreparable injury because there is no risk of inconsistent verdicts. This argument, however, ignores the reality of the situation. In the constructive trust claim, the plaintiff asks the court to declare a trust for corporate funds which Kavouras allegedly misdirected. To do this, the trial court first must determine that Kavouras misdirected corporate funds. In the damage claim, the plaintiff alleges he was injured as a result of Kavouras’ misappropriation or misdirection of corporate funds. Therefore, the jury must determine that Kavouras misapplied or misdirected corporate funds before it can award any damages. The facts required to prove a misappropriation or misdirection of funds are the same for the separate claims. Thus, separate trials create a risk of inconsistent findings regarding whether Kavouras misapplied or misdirected corporate funds.

Because the danger here is the same as that in ACT Services and Calandra, we grant the petition for writ of certiorari, quash the trial court’s order severing and ordering separate trials, and remand the cause for a jury to determine the findings of facts and liability.

Petition granted, order quashed, and cause remanded with instructions.

CORTINAS, J., concurs.

WELLS, C.J.,

dissenting.

I would deny the petition.