author: WETHERELL, J.

text:
    MORRISON MANAGEMENT SPECIALISTS/XCHANGING INTEGRATED SERVICES GROUP, INC., Appellants, v. Stacey PIERRE, Appellee.
    No. 1D11-0998.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2011.

      H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellants.
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellee.
   WETHERELL, J.

The employer/carrier (E/C) appeals a final order awarding Claimant approximately $62,500 in attorney’s fees and costs. The E/C contends that, in awarding the fees and costs, the Judge of Compensation Claims (JCC) erred in ignoring its verified response to Claimant’s fee motion because even though the response was not timely filed, the E/C presented good cause for the untimely filing. Because there are factual disputes on the issue of good cause that were not resolved by the JCC, we reverse and remand for further proceedings.

Claimant was injured in October 2006 when a coworker accidentally sprayed de-greaser with acid on her face. Claimant sought workers’ compensation benefits, and in March 2009, a final order was issued awarding her an evaluation with a plastic surgeon for scars on her face. The order also found Claimant entitled to attorney fees and costs for securing that benefit, reserving jurisdiction to determine the amount.

On December 3, 2010, Claimant filed a verified motion seeking an award of fees and costs, as contemplated by Florida Administrative Code Rule 60Q-6.124(3). The motion was served on the E/C by email that same date. Thus, the deadline for the E/C to file a response to the motion was Monday, January 3, 2011.

The E/C did not file a response to the motion until Friday, January 7, which was four days late. The response was filed the day after the JCC denied the E/C’s motion to continue the fee hearing that had been set for January 18. The motion to continue, filed on December 30, represented that the day after the fee hearing was noticed, the E/C’s counsel conferred with Claimant’s counsel, who had no objection to the fee hearing being rescheduled. The order on the E/C’s motion to continue does not explain why the JCC denied the unopposed motion.

The E/C agreed in its response to the fee motion that Claimant was entitled to an upward deviation from the statutory guideline attorney’s fee, but the E/C asserted that the fee- should be based on a rate of between $200 to $250 per hour (rather than the $350 to $400 per hour asserted in the motion) and that the total attorney’s fees should be no more than $15,000. The response also asserted that “Claimant’s counsel agreed to ... allow additional time to prepare the response to the Motion given the anticipated continuance [of the fee hearing].”

The E/C later filed a verified “addendum” to its response in which it claimed that various time entries on which the fee request was based were secretarial, dupli-cative, irrelevant, excessive, or vague. The E/C subsequently filed a trial memorandum, in which it argued that the award requested by Claimant was excessive and should shock the conscience of the JCC because the benefit awarded to Claimant was worth only $1,350. The trial memorandum also explained the circumstances giving rise to the untimely filing of the response to the fee motion and asserted that Claimant was not prejudiced by the response being filed four days late.

On January 7, the same day the E/C filed its response to the fee motion, Claimant filed a request for entry of an order awarding the fees and costs requested in its motion because, pursuant to rule 60Q-6.124(3)(b), the E/C’s failure to file a timely response to the motion was an “acceptance of the allegations in the motion as true.” Claimant included a proposed order with her motion. That same day, the E/C filed an objection to Claimant’s proposed order in which counsel again asserted that she had the good faith belief that Claimant’s counsel had agreed to an extension of time to respond to the fee motion.

The fee hearing was held, as scheduled, on January 18. The E/C sought to introduce into evidence its verified response to the fee motion, and Claimant objected to it as untimely. The E/C’s counsel responded that she believed Claimant had agreed to additional time for the E/C to respond to the fee motion in light of the parties’ agreement to continue the fee hearing. Claimant’s attorney replied that his office agreed to a continuance of the fee hearing but he knew nothing about an extension of time to respond to the fee motion. The E/C’s attorney offered to testify in support of her response to the fee motion, but the JCC denied the request.

On January 26, the JCC issued a “Final Evidentiary Hearing Order Determining Amount of Attorney’s Fees and Costs” awarding Claimant $2,002.68 in costs and $60,550 in attorney’s fees. The fee award was based on the 173 hours and $350 hourly rate alleged in Claimant’s motion. The JCC found that “the date of the fee hearing (whether rescheduled or not) has no bearing on the time deadline imposed by 60Q-6.124(3) for the response to a motion for attorney’s fee hearing,” and that “the E/C’s mistaken interpretation of 60Q-6.124(3) does not qualify as ‘good cause’ ” for the untimeliness of the E/C’s response. The JCC then found that, pursuant to rule 60Q-6.124(3)(b), the allegations in the motion had been accepted as true and, as a result, she was “constrained” to award the amount requested by Claimant even though she found the hourly rate excessive based on the $200 to $250 hourly rate awarded in prior similar cases.

The E/C timely filed a motion for rehearing in which it argued, among other things, that the JCC failed to address whether the E/C had good cause for the untimely filing of its response based on its “good faith but ultimately mistaken belief’ that Claimant’s attorney had acquiesced to an extension of the deadline for filing the response to the fee motion. The E/C also denied having made the argument that the JCC did address in the order — that the filing deadline in rule 60Q-6.124(3) was tied to the date of the fee hearing. The JCC summarily denied the motion for rehearing. This appeal follows.

It is undisputed that the E/C’s response to Claimant’s motion for attorney’s fees and costs was untimely. The issue is whether there was good cause to excuse the late filing. We review the JCC’s determination on this issue for an abuse of discretion. See Martinez v. Collier County Pub. Schs., 804 So.2d 559 (Fla. 1st DCA 2002) (concluding that the JCC abused his discretion in dismissing petition based on counsel’s failure to appear at a pre-trial conference where counsel showed good cause for his failure to appear); Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 454 (Fla. 1st DCA 1993) (applying abuse of discretion standard in reviewing dismissal of complaint under Florida Rule of Civil Procedure 1.070Q), which requires dismissal of the action if complaint is not served within 120 days and plaintiff fails to show good cause for the untimely service).

Where, as here, entitlement to an award of attorney’s fees and costs has been established, but the parties are unable to agree upon the amount to be awarded, rule 60Q-6.124(3) requires the party seeking the award to file a motion. The motion must include a statement of the facts relied upon in support of the motion; the statutory and legal basis relied upon; a recitation of all benefits secured for the claimant through the attorney’s efforts, including projected future benefits reduced to present value; the statutory fee based on the benefits secured; a detailed chronological listing of all time devoted to the claim, if applicable; and a detailed list of all taxable costs advanced or incurred. See Fla. Admin. Code R. 60Q-6.124(3)(a)l.-6. The party opposing the award is required to file a response to the motion detailing all matters that are disputed. See Fla. Admin. Code R. 60Q-6.124(3)(b). The response must be filed within thirty days after the motion is served, and the rule provides that “[fjail-ure to file a timely and specific response to a motion for attorney’s fees and costs ... shall, absent good cause, result in an acceptance of the allegations in the motion as true.” Id. (emphasis added).

“Good cause” is not defined in rule 60Q-6.124 or any other workers’ compensation rule of procedure. The phrase is used in many other legal contexts and is generally defined as “a legally sufficient ground or reason” or “a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.” Black’s Law Dictionary 692 (6th ed. 1990); accord Carlton, 621 So.2d at 454 (construing the phrase “good cause” in Florida Rule of Civil Procedure 1.070(j) to require “some showing of ‘good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified’ ” rather than simple inadvertence or mistake of counsel or ignorance of the rules) (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985)). We ascribe the same meaning to the “good cause” provision in rule 60Q-6.124(3) and, thus, the issue for the JCC was whether the E/C had a legally sufficient good faith reasonable basis for its failure to timely file a response to Claimant’s motion for attorney’s fees and costs.

At the fee hearing, the JCC was presented with conflicting representations regarding the discussions between the parties’ attorneys. The attorney for the E/C represented that it was her understanding based on her conversation with Claimant’s counsel’s office that Claimant agreed to both a continuance of the fee hearing and an extension of the deadline for the response to the fee motion. Claimant’s attorney agreed there had been discussions on the continuance, but he denied any agreement on an extension of time for a response to the fee motion. The attorneys’ representations were not in the form of sworn testimony, but the representation made by the E/C’s attorney is consistent with the assertions in the response to the fee motion, which was sworn. Moreover, because the attorneys are officers of the court, their representations to the JCC were akin to sworn testimony, and because the attorneys’ conflicting representations raised a disputed issue of material fact regarding the reason for the E/C’s late filing of its response, the JCC should have received evidence and made findings on the issue in her order.

We see no reason that attorneys cannot agree to extensions of the deadline in rule 60Q-6.124(3)(b) without the approval of the JCC, although it may be better practice to file a motion for extension of time. Here, with the benefit of hindsight, it is clear that the E/C’s attorney should have filed a motion for extension of time to respond to Claimant’s fee motion, either as soon as it became apparent that she could not meet the filing deadline or upon obtaining what she understood as consent from Claimant’s attorney to an extension of the filing deadline. But if the assertions made by the E/C’s attorney are true, her failure to do so is not entirely unreasonable because attorneys should be able to rely on each other’s representations. Whether this rises to the level of good cause is an issue for the JCC to determine in the first instance.

Moreover, while we recognize the importance of complying with deadlines set by the workers’ compensation rules of procedure, the law favors resolution of cases on the merits, not by default. Resolution on the merits is particularly important here because, by operation of rule 60Q-6.124(3)(b), the JCC felt “constrained” to award a fee she found excessive even though there does not appear to have been any prejudice to Claimant from the response having been filed four days late; indeed, the response was filed well in advance of the fee hearing and it substantially complied with the substantive requirements of rule 60Q-6.124(3)(b), thereby putting Claimant on notice of the issues in dispute and framing the issues to be resolved by the JCC at the fee hearing.

In sum, for the reasons stated above, we reverse the order awarding attorney’s fees and costs and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

THOMAS and SWANSON, JJ., concur.

      . Rule 60Q-6.124(3)(b) requires the response to be filed "[wjithin 30 days after the motion is served.” Here, the 30th day fell on a Sunday, so the deadline was extended to the next day. See Fla. Admin. Code R. 60Q-6.109. The deadline was not further extended by rule 60Q-6.108(6) because that rule only provides an additional five days after "service of any pleading ... is made by mail ” (emphasis added), and, here, the motion was served by email, not U.S. Mail.

      . The attorneys representing the parties in this appeal are not the same attorneys who appeared at the trial level, and when referring to the parties’ counsel, we are referring to trial counsel.

      . The JCC did not rule on the objection at the hearing, but the final order lists all of the documents submitted by the E/C (including the response) as "documentary exhibits” as if they had been received into evidence.

      . It appears that the JCC misunderstood the E/C’s argument because the E/C did not argue that the filing deadline in the rule was tied to the date of the fee hearing; rather, the E/C argued that the late filing of the response resulted from an apparent misunderstanding that because Claimant’s attorney agreed to a continuance of the fee hearing, he also had no objection to an extension of the filing deadline for the response.

      . Based on our disposition of this appeal, we need not consider whether the JCC erred in approving a fee award that she found to be excessive. Cf. Jackson v. Ryan’s Family Steak House, 27 So.3d 90 (Fla. 1st DCA 2010) (Hawkes, J., concurring) (suggesting that JCC has an independent duty to scrutinize fee motions so as not to award an excessive fee).


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    DEL MONTE FRESH PRODUCE COMPANY, Appellant, v. NET RESULTS, INC., Appellee.
    No. 3D10-1052.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 2011.
    Rehearing Denied Dec. 13, 2011.

      Holland & Knight, and Rodolfo Sorondo, Jr., Miami and Frances F. Guasch-De La Guardia, for appellant.
    Hicks, Porter, Ebenfeld & Stein, and Mark Hicks, Gary A. Magnarini and Erik P. Bartenhagen, Miami; Westlake Legal Group and Thomas K. Plofchan, Potomac Falls, VA, pro hac vice, for appellee.
    Before WELLS, C.J., and ROTHENBERG and SALTER, JJ.
   SALTER, J.

Del Monte Fresh Produce Company appeals a final judgment exceeding $15.7 million in favor of its telecommunications-cost consultant, Net Results, Inc., following a jury trial. We affirm the jury’s and trial court’s determinations that Del Monte breached the parties’ consulting contract, but we reverse the jury’s $10,000,000 consequential damages award and the prejudgment interest and attorney’s fees and costs subsequently added by the trial court. This is a business damages case in which the computation of Net Results’ “benefit of the bargain” losses requires grade-school arithmetic rather than a “damages model” long on assumptions and short on facts. The jury’s award is neither reasonably certain nor supported by substantial competent evidence.

I. Facts and Procedural History

A. The Consultative Services Agreement

In July 2002, Del Monte and Net Results signed Net Results’ “consultative services agreement” (“Agreement”). Essentially, Net Results agreed to review Del Monte’s local and long distance telephone bills, and its costs for certain data and information technology services, to look for past overcharges and future savings. Any such recoveries of overcharges or savings to Del Monte, including any refunds, rebates, credits, promotional awards, or renegotiated rates, would entitle Net Results to a consulting fee equal to thirty-five percent of the amount recovered or saved. The Agreement was also clear that “if there are no savings, [Net Results] receives no fee.”

The Agreement obligated Net Results to prepare a “Summary Benchmark Proposal,” referred to by the parties as an “SBP,” after researching Del Monte’s teleeommu-nications and information technology contracts and billings. The SBP was to be provided to Del Monte and, if the proposal disclosed cost reductions and savings opportunities above $300 per month, Del Monte had to elect within ten days from receipt whether to (a) terminate the agreement by written notice to Net Results or (b) pay the 35% fee on the credits and savings as invoiced by Net Results each month for the following twelve months. The Agreement also provided that it would automatically renew for a further twelvemonth term on each anniversary of the Agreement unless, at least sixty days before the expiration of an anniversary date, Del Monte cancelled it.

Regarding any “historic savings” that might be achieved by Net Results by, for example, demonstrating to a telecommunications carrier that Del Monte had been overbilled, Net Results was to be entitled to its 35% fee “back at least three years or for the life of any telecommunications agreement, equipment or facilities lease, cellular, paging or data service agreement negotiated by [Del Monte], by [Net Results], or by any other party for [Del Monte].” Finally, the Agreement specified that “[i]f any term is unclear or ambiguous it shall be interpreted to the benefit of [Net Results].”

B. Performance and the SBP

After the parties signed the Agreement, Del Monte executed written authorizations to its telecommunications and data vendors to turn over agreements and billing data to Net Results for research. In November 2002, Net Results provided a one-page memo and two-page attachment to Del Monte’s head of information technology and one of its lawyers. The attachment was the table of contents (with none of the actual findings of fact or conclusions of law) from a 2001 Federal Communications Commission order in favor of AT <& T regarding its complaint that Business Telecom, Inc. (“BTI”), charged consumers excessive “access rates.” Although there was no indication how Del Monte might save money because of such an FCC order, Net Results said in the cover memo:

Attached is one of many Federal Orders which underlay [Net Results’] efforts to recovery unfounded charges by AT & T (for Example) and for others such as Bell South, SBC, and even Equant in the mis-billing of local access charges with long distance on that local bill at dramatically incorrect rates, or even the incorrect re-bill of so many international frame relay circuits.
This is part of the our knowledge template with these carriers and we are using these to force AT & T and the other international carries such as British Telecom, Entel Chile, Telephono Mexico, Brazil’s Telecom, and many more into the USA mandated refunds and redress. This has been missed by Del Monte and AT & T and others for many years and there are apparently as much as $10,000,000 (estimated) of recoveries or credits due to Del Monte.

[All spelling and grammar are as in the original].

The memo went on to estimate that historic refunds and credits due might total $24,700,000 or more, and that prospective annual savings might be $7,600,000. The memo acknowledged that these amounts exceeded a full year of Del Monte’s entire national and international expenditures for the telecommunications services in question, and it noted that additional information and time would be required. The memo does not explain how the 2001 FCC order attached to it (pertaining to BTI’s permissible rates) might produce any savings or refunds to Del Monte, nor does it appear that Del Monte even did business with BTI during the applicable periods.

While the record does not appear to contain an SBP submitted to Del Monte with an identifiable title “Summary Benchmark Proposal,” Net Results maintains that its research was summarized and accepted by Del Monte when Del Monte paid a series of the Net Results invoices. The jury plainly accepted Net Results’ argument on this factual question.

C. Del Monte’s Attempt to Terminate the Agreement

After receiving Net Results’ recommendations and a series of invoices, several of which were paid by Del Monte, Del Monte abruptly decided to terminate the Agreement. In an internal email dated May 14, 2008, a letter purportedly terminating the Agreement before automatic renewal was forwarded to the Del Monte information technology officer who had signed the Agreement in July 2002. As prepared on Del Monte letterhead and as signed by that officer, the letter was backdated to May 1, 2003. At trial, Net Results argued that (a) the letter was fraudulently backdated in a transparent effort to prevent a further automatic one-year renewal of the Agreement and (b) the legal effect of that ineffectual, untimely notice was a repudiation and breach of the Agreement excusing further performance by Net Results.

The jury accepted Net Results’ claim of breach and liability. The trial court denied relief on that aspect of Del Monte’s motion and renewed motion for directed verdict, and subsequently on Del Monte’s motion for a new trial. As a result of the untimely notice, the Agreement was extended through a term ending July 8, 2004. Del Monte became liable for 35% of Del Monte’s savings that were identified, obtained, or could have been identified or obtained by Net Results, during that term (absent Del Monte’s repudiation), less Net Results’ costs of achieving any such results. As to any “historic savings” identified or obtained within that term, the three-year lookback provided a 35% fee to Net Results on rebates, refunds, or savings on covered billings and services back to July 3,1999.

D. Net Results’ “Damages Model”

To establish its damages, Net Results relied on its owner and senior officer, Joseph Chopek. Chopek was accepted as an expert by the trial court over Del Monte’s objection. He described how he had prepared a “model” to demonstrate Net Results’ damages following breach by Del Monte:

I take the data samples that I have, model them against the procedures and analyses formats and proof of concept in the contract, review the contract and attempt to create timelines and information events, statistical events for each of the categories of the contract, and then based on the terms of the contract, make some sort of predictive statistic by sampling the data furnished to me, the contract information furnished by the carriers, which has general outlines of information — bearing in mind, most of those came in years later. And then when we did get the data samples from a handful of the carriers, we used samples from that information to further validate the model.

At various points in his direct examination, Chopek stated or suggested that Del Monte had not provided complete information to him, that he lacked complete information from Del Monte’s telecommunications providers, and that Del Monte had delayed the production of these records and complicated Chopek’s research by including “trucking bills and florist bills and a bunch of other things.” Ultimately these recurring complaints resulted in objections and a motion for mistrial by Del Monte, all of which were denied by the trial court. There is no indication in the record that Del Monte, or any vendor providing services to Del Monte during the pertinent periods, failed to provide bills or payment histories regarding those services during pretrial discovery.

Chopek also stated that Net Results was entitled to “extrapolate” worldwide damages based on Del Monte’s alleged refusal to provide complete evidence of all telecommunications and information technology expenditures. Some of the savings were proven using actual vendor bills and rates, and, as noted, Del Monte paid several of Net Results’ bills for those savings. Other damages claims, however, assumed that Net Results would have been able to negotiate savings with vendors that did not testify, and whose rates to Del Monte did not improve during the remaining contract term following Del Monte’s repudiation of the Agreement. These actual and projected savings were computed by Chopek to total $5,171,262 over the term of the Agreement, and a 35% fee to Net Results on that total would have been $1,723,725. From there, however, Chopek introduced a series of remarkable estimates and a multiplier or “extrapolation” which added over $19,800,000 to that figure.

Chopek admitted that he created estimates for Del Monte’s global accounts for its traffic to and from its United States offices because he concluded that Del Monte had not disclosed information about various vendors and their global billings. Based on those estimates, he computed further savings to Del Monte of $12,294,417 to Del Monte and $4,363,045 as the 35% fee payable to Net Results. Adding this figure to the $1,723,725 in fees calculated for savings he testified were actually produced or could have been produced, he computed total fees payable to Net Results of $6,112,988 for telecommunications to and from Del Monte’s U.S. facilities. But based on a former Del Monte employee’s testimony that the U.S. business relied on only thirty circuits, with about eighty other circuits for its worldwide business, Chopek generously multiplied the $6,112,988 by a 2.7 multiplier to “extrapolate” a fee for the non-U.S. locations of $16,505,068. He testified repeatedly that he was “conservative” in his computations.

E. The Jury Verdict and Posh-Trial Motions

The jury had before it the two-page damages spreadsheet prepared by Chopek to summarize the results of his “model.” The jury found that Del Monte had breached the contract and that Net Results was entitled to $10,000,000 in consequential damages, just under one-half of the $22,618,056 shown on the spreadsheet. There is no apparent connection between the round $10,000,000 award and any of the fees claimed by Net Results for the categories involved in Chopek’s testimony. After Del Monte’s post-trial motions were denied and prejudgment interest was added to the damages, Del Monte commenced this appeal.

II. Analysis

Our review of Net Results’ method for computing damages involves a strictly legal issue and is assessed de novo. RKR Motors, Inc. v. Associated Uniform Rental & Linen Supply, Inc., 995 So.2d 588, 591 (Fla. 3d DCA 2008), review denied, 8 So.3d 1133 (Fla.2009). When the correct methodology has been utilized, however, our review is limited to a determination of whether the damages award is supported by competent substantial evidence.

Florida law and the Restatement (Second) of Contracts are aligned regarding the remedies available following a party’s repudiation of the contract and prevention of performance by the non-breaching party. The non-breaching party, here Net Results, may elect between reliance damages (those costs and expenses of preparing to perform, the recovery of which will place the recipient in the position it occupied before entering into the contract) or lost profits (the benefit of the bargain or “expectation interest”). Pathway Fin. v. Miami Int’l Realty Co., 588 So.2d 1000, 1005 (Fla. 3d DCA 1991). Having elected in this instance to claim lost profits, Net Results can recover only those prospective profits “which would have been possible only if the contract would have been, fully performed by the [non-breaching party].” Id.

In this case, Net Results’ underlying methodology is thus incorrect as a matter of law. As detailed below, Net Results offered no evidence regarding its costs of performing the contract, claiming, in effect, lost gross revenue rather than lost profits. But because the case is remanded for a new trial on damages, we also address the lack of required “reasonable certainty” in Net Results’ attempt to prove its damages at trial. Specifically, Net Results relied upon assumptions and extrapolation for over 90% of its claimed damages, pushing its proof into the realm of conjecture and speculation.

A. “Lost Profits” versus Lost Gross Revenue

This is not a soft tissue tort case in which it may be difficult for the parties or a jury to find yardsticks for the computation of money damages on account of pain and suffering. This was at its core a case about the repudiation and breach of a services contract. The services were rendered (and, post-repudiation, would have been rendered) by identifiable professionals paid by Net Results. Those employees pored over Del Monte’s telecommunications and information technology contracts in a search for overcharges and for future savings. Net Results’ professionals were to draw on their experience to assist Del Monte in renegotiating its telecommunications and information technology contracts at lower rates in order to achieve the savings that would thereby produce revenue to Net Results.

We have continuously held that the computation of damages in such a case requires the non-breaching party to deduct from anticipated contract revenue the costs incurred in performing the contractual services. Typically these include an appropriate allocation of overhead as well as any personnel expenses that would have been incurred. RKR Motors, Inc., 995 So.2d at 593; Marbella Park Homeowners Ass’n, Inc. v. My Lawn Serv., Inc., 12 So.3d 807, 809 (Fla. 3d DCA 2009) (“Here, although the contract price could easily be ascertained, [the non-breaching party] failed to produce evidence of its costs and expenses in performing the five-year contract.”).

In the case at hand, Net Results provided no evidence regarding its overhead, its historical profit margins on such contracts, or the costs of the professionals who worked (and would have been required to continue working, absent Del Monte’s repudiation of the Agreement) on the Del Monte project. Chopek was cross-examined about Net Results’ costs of performing the Agreement:

Q: NRI would have had additional costs, costs of doing business when it performed under the contract for Del Monte — had it performed under the contract for Del Monte?
A: Yes.
Q: Did you take any costs into account in any of your — any costs of NRI doing business into account in doing your damages calculations?
A: The contract doesn’t require me to do that, so the answer is no.

This methodology, unsuccessfully challenged by Del Monte in both the motion for directed verdict and motion for new trial, is invalid as a matter of law and the verdict and judgment based upon it must therefore be reversed.

B. Assumptions and Extrapolation versus Reasonable Certainty

For the benefit of the parties on remand, we also address their contentions regarding the sufficiency of the “damages model” prepared by Chopek for Net Results. Net Results’ “summary calculations” exhibit, totaling $22,618,056 in “Total USA and World” damages, is primarily built upon assumptions and “extrapolation” rather than less ephemeral facts. Although it was apparently an established business with the requisite “track record” to allow proof of a company’s historical profit percentages, Net Results elected instead to focus exclusively on those prospective savings it claimed it would have produced for Del Monte had Net Results been permitted to complete its performance with full cooperation by Del Monte. The result was Chopek’s “model” with assumptions regarding missing vendors and bills, extra circuits assumed to have equal volumes, vendors, and savings, and “extrapolation” to produce damages figures inconsistent with Del Monte’s actual budgets.

Under Florida law, “an inability to establish the amount of lost profits with absolute exactness will not defeat recovery.” Nat’l Papaya Co. v. Domain Indus., Inc., 592 F.2d 813, 818 (5th Cir.1979) (citing Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936)). However, the countervailing rules require “reasonable certainty” in the proof of those damages and the assumptions underlying them. Id. at 822; see also R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA 1985). “Damages cannot be based upon speculation or guesswork, but must have some reasonable basis in fact.” Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989).

Applying those principles to the proof of damages in the record at hand, we find no substantiation or reasonable basis in fact for the assumptions made, and “extrapolation” performed by, Chopek on behalf of his company with respect to his “phase two — estimated worldwide” damages in his written “summary calculations.” Those “phase two” estimates comprised, or were the basis for extrapolation for, over 90% of the $22,618,056 total on that exhibit. We also find no record basis upon which to conclude that Net Results was somehow prevented or precluded from obtaining actual telecommunications and information system billings from non-party vendors, allegedly necessitating Chopek’s reliance on estimates and extrapolation. Accordingly, we reverse the verdict and final judgment as to damages.

III. Conclusion

Testimony and documents regarding hypothetical savings on corporate telecommunications services and data transfer are enough to perplex any juror or judge. If the backdated letter attempting to terminate the Agreement is the commercial equivalent of a punch in the nose, it may also seem fair to excuse any rigor in the proof of the resulting damages. But Florida contract law has constraints that were not observed in this case. If Del Monte is accused of hiding vendors, circuit usage, bills, and savings, that is a matter for pretrial discovery and proof rather than for wily use as a repetitive slogan at trial. Allegedly-missing figures are not a warrant to substitute their absence with guesswork.

Proof of damages for breach of this Agreement should not be rocket science. The actual charges for the covered services are susceptible of ready proof by Del Monte’s records and those of its vendors.

The claimed, realizable savings also should be demonstrable, and they should correlate in some reasonable way with the total budget to which the savings apply. The 35% fee on any such savings is simple arithmetic. Notwithstanding this, however, the proof of damages at trial was largely conjecture, and the resulting award by the jury — lost fees of $10,000,000 — translates to purported savings to Del Monte of some $28,571,428 over a term in which its total of annual budgets for the covered services did not approach that amount. Such a result is manifestly excessive.

Net Results’ damages methodology was also reversibly flawed because it failed to prove the other half of the ledger involved in a lost profits case — the expenses that Net Results would have borne to provide the performance excused by the breach.

For these reasons, we affirm the jury verdict, judgment, and post-trial rulings as they relate to Del Monte’s liability for breach; and we reverse and remand the case for a new trial on Net Results’ consequential damages.

      . The trial court added approximately $5.7 million in prejudgment interest to the jury's $10 million damages award. Our reversal for a new trial on damages makes it unnecessary to address at this time Del Monte’s argument that prejudgment interest should not have been added to the jury's award. Our reversal of the final judgment includes a reversal of the existing attorney’s fees and costs award, but without prejudice to any award that may be appropriate after the trial on damages is completed.

      . The Agreement was limited to enumerated categories of telecommunications, data, and information technology services: local access and long distance telephone service, and "ISP/web or Frame Relay” services (a reference to internet digital transmission technology). The Agreement did not specifically address an upgrade of Del Monte’s frame relay technology to the (then) newer Multi Protocol Listing Services or "MPLS."

      . A Net Results exhibit at trial prepared by Del Monte in September 2002 included a twelve-month lookback at Del Monte telecommunications vendors and payments; during that period Del Monte reported 1,307 separate bills from fourteen providers totaling $1,934,206.48.

      . In March 2003, Net Results submitted six invoices to Del Monte. Two were for refunds or credits on past bills ("historic savings,” under the Agreement) pertaining to a dispute with its vendor for telecommunications services in Chile, with savings to Del Monte computed at $109,000 and the resultant 35% fee to Net Results at $38,150. Four of the invoices were for prospective annual savings of $371,846 with AT & T for various services. Net Results invoiced for its fee on these projected savings at $10,845.50 per month, or an annual sum equal to 35% of those prospective annual savings. Del Monte paid approximately $60,000 to Net Results for the six invoices prior to its purported termination of the Agreement.

      . As noted, cancellation required written notice "at least 60 days before the expiration of one year from the anniversary date” — the anniversary date was July 3, 2003, and sixty days before that was May 4, 2003.

      . Ultimately the trial court read a curative instruction to the jury:
      There is no evidence or allegation of discovery violation by any party. Any reference to discovery at this time should be considered only in the context of when and how documents were received. There are no allegations of any wrongful conduct by any party during this trial with reference to providing discovery.
      Thereafter Chopek again testified repeatedly that Del Monte had not supplied information he had requested. The damages summary provided by Net Results to the jury included captions for "MISSING Global Accounts” and "Evidence Refused.”

      . Appellate review of Chopek's computations is impaired by the fact that he relied on his own notebooks of various types of records as the basis for his opinions. The notebooks themselves were not introduced into evidence or authenticated by Del Monte or the vendors whose charges were purportedly amenable to reduction. In addition, savings attributed to a change to a more modern type of transmission service (MPLS) were computed under assumptions, never proven, that (a) all circuits would bear equivalent volume and cost, and (b) higher speed and volume would produce actual budgetary reductions for Del Monte.

      . While several of these categories of purported savings- — as an example, an alleged right to refunds of certain federal excise taxes on Del Monte’s bills — rested exclusively on Chopek's testimony and were not corroborated by actual refunds or testimony from a tax attorney or a vendor, the trial court could properly have allowed them to be considered by the jury.

      . Chopek's resulting total fee claim for Net Results, $22,618,056, based on a 35%-of-sav-ings fee, would be payable only if Net Results produced $64,623,017 in total Del Monte savings in the enumerated categories of telecommunications and data services. This does not square with a record indicating annual Del Monte expenditures below $2,000,000. Cho-pek maintained that this disparity reflects Del Monte's failure or refusal to identify all its vendors and to supply all billings requested, but again there is no record support for that allegation.

      . Sections 347 and 349 address, respectively, compensation for the non-breaching party’s "expectation interest” and "reliance interest.”

      . Pro hac vice counsel for Net Results indicated repeatedly that this is "not a lost profits case.” But unless Net Results elects on remand to claim its reliance damages, Florida law requires proof of lost profits (income less expense) rather than merely lost gross revenue.

      . See, e.g., Sundie v. Lindsay, 166 So.2d 152, 153 (Fla. 3d DCA 1964).


author: PER CURIAM.

text:
    Timothy EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2437.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Timothy Edwards, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) (rejecting claim of unconstitutionality of section 893.101, Florida Statutes (2003)).


text:
    Michael Anoop CHATANI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2376.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Rehearing Denied Dec. 5, 2011.
    Michael Anoop Chatani, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Eddie SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2068.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Eddie Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
   An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John W. Thornton, Jr., Judge.

Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.

Affirmed. See Velez v. State, 988 So.2d 707, 708 (Fla. 3d DCA 2008).


author: SALTER, J. SHEPHERD, J.,

text:
    The STATE of Florida, Appellant, v. Gerald MASSINGILL and Elizabeth Torres, Appellees.
    Nos. 3D10-427, 10-426.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 2, 2011.

      Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellees.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

The State of Florida appeals orders granting downward departures from the sentencing guidelines for two co-defendants. We reverse. In the case of defendant and appellee Elizabeth Torres, the State was not afforded a reasonable opportunity to depose Ms. Torres’ expert witness on the primary issues presented by the defense motion (impaired capacity to appreciate the criminal nature of her conduct or to conform that conduct to the requirements of the law, and her need for specialized treatment for certain mental disorders) and to present a State psychiatric expert in response. Other findings in the order were not pertinent to the downward departure statutory provisions and were not supported by competent substantial evidence.

In the case of defendant Gerald Massin-gill, there was no record evidence to support findings that he was a “relatively minor participant in the criminal conduct,” that the offense was committed in an unsophisticated manner, or that it was an “isolated incident” for which he showed remorse.

The Charges and Course of Proceedings

The defendants were charged with aggravated abuse and neglect of Ms. Torres’ uncle, Louis Makrez, under section 825.102(2), Florida Statutes (2007). The elderly victim, the two defendants, and Ms. Torres’ son lived together in Miami in a home owned by the victim. The uncontro-verted facts are that Ms. Torres obtained from the victim a power of attorney at some time in April 2007 for the purpose of selling the victim’s residence. Using the power of attorney, Ms. Torres sold the home in June 2007 and placed approximately $126,000 in net proceeds in a joint bank account in her name and the victim’s name. The sales price was substantially below the home’s market value. Ms. Torres used approximately $90,000 of the net proceeds for shopping and living expenses before the remaining balance was frozen by a court. In October 2007 a workman saw the victim in an emaciated condition, lying in his own waste, and called fire/rescue. The victim lived another two months before passing away.

After the aggravated elder abuse/neglect charges were brought by the State, the defense moved for the appointment of a psychologist or psychiatrist to conduct a competency and psyehological/psychiatric evaluation of the defendants. The motion was granted. Following the evaluations, in April 2009 the defendants moved for downward departures from the sentencing guidelines. In December 2009, the defendants moved for and obtained an order authorizing retention of an expert for downward departure examinations. The case itself was scheduled for trial commencing January 25, 2010. On January 8, 2010, Dr. Sanford Jacobson conducted a further psychiatric evaluation of Ms. Torres for purposes of the pending downward departure motion. Dr. Jacobson prepared a report the following day, and the report appears to have been served on the State with a motion for continuance on January 20, 2010.

The downward departure hearing was conducted on January 26, 2010. Although the State was afforded a brief opportunity to discuss Dr. Jacobson’s report with him “out in the hall” before the hearing, there was no pretrial deposition, no 80-day disclosure regarding Dr. Jacobson on a pretrial witness list, and no reasonable opportunity to retain and prepare an opposing mental health expert. At the outset of, and repeatedly throughout, the downward departure hearing, the State raised these points and renewed the State’s request for an opportunity to retain an opposing expert.

The defense argued that the State had already had nine months of notice that Dr. Jacobson had been retained as Ms. Torres’ expert, and the trial court agreed. In fact, however, the State had no evaluations from Dr. Jacobson regarding the specific downward departure mitigators until a few days before the hearing. Earlier motions and orders authorized Dr. Jacobson’s retention but did not disclose that a downward departure evaluation had actually taken place, that a report had issued, or that the defense actually intended to call Dr. Jacobson as a witness until it was too late for a State witness to prepare for the hearing.

Analysis — Mr. Massingill

At oral argument, counsel for both defendants candidly acknowledged that the record did not establish that “the offense was committed in an unsophisticated manner” for purposes of section 921.0026(2)(j). Rather, Mr. Massingill relies upon mitigation under section 921.0026(2)(b), the “defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.” Mr. Massingill did not, however, provide competent substantial evidence to support such a ruling. See State v. Ford, 48 So.3d 948 (Fla. 3d DCA 2010). The limited State proffers allowed and considered by the trial court did not satisfy this requirement. As a result, the downward departure order must be reversed.

Analysis — Ms. Torres

In Ms. Torres’ case, the downward departure order included the finding regarding commission in an “unsophisticated manner,” now abandoned by the defense. However, the order also included findings regarding two other statutory mitigators: “the capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of the law was substantially impaired,” § 921.0026(2)(c), and “the defendant suffers from adjustment disorder, dysthymic disorder, and possibly a mood disorder, not related to substance abuse or addiction, and requires and is amenable to treatment,” § 921.0026(2)(d). As to each of these findings, the State is correct that it was not afforded adequate notice and an opportunity to prepare its own expert to meet Dr. Jacobson’s report and testimony.

The State argues that the downward departure hearing is subject to Florida Rule of Criminal Procedure 3.216(f):

(f) Court-Ordered Experts for Other Mental Health Defenses. If the notice to rely on any mental health defense other than insanity indicates that the defendant will rely on the testimony of an expert, who has examined the defendant, the court shall upon motion of the state order the defendant be examined by one qualified expert for the state as to any mental health defense raised by the defendant.

Emphasis supplied.

Ms. Torres argues first, that this provision of the rule is inapplicable to a downward departure hearing, and second, that “the State did nothing for nine months after being placed on notice that Ms. Torres’ mental condition would be raised as a ground for her motion to depart downward from the guidelines.” While it is true that Rule 3.216 is in part V of the Rules of Criminal Procedure, “Pretrial Motions and Defenses,” and sentencing is within part XIV of the Rules, “Sentence,” the hearing in this instance was a pretrial hearing conducted to facilitate plea negotiations a few days before the scheduled trial. Although we conclude that Rule 3.216(f) does govern the appointment of an opposing expert for downward departure issues involving mental health, the requirement for reasonable notice and an opportunity to present an opposing expert witness is also a matter of basic due process. And the State did not have “nine months” of prior notice regarding the defendants’ evidence for mitigation. That evidence was not available to the defense until January 9, 2010 and was not disclosed to the State with reasonable advance notice and a fair opportunity to address it.

Regarding the finding for mitigation based on “specialized treatment for a mental disorder” under section 921.0026(2)(d), we recently reaffirmed the further requirement for the defense to “establish, by a preponderance of the evidence, that the Department of Corrections cannot provide the required ‘specialized treatment.’ ” Ford, 48 So.3d at 950 (State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008) (emphasis supplied)). No such finding was made in this case.

Conclusion

Although both downward departure orders were correct that the defendants had no prior criminal history, that fact is not a statutory basis for a downward departure. Here, the appalling conditions in which the victim was found (while ostensibly in the care of the defendants) and the apparent planning, intention, and guile involved in misapplying the elderly victim’s interest in his residence for very substantial pecuniary gain, support the State’s objections and motion for time to prepare an opposing expert witness.

Each order is reversed and the cases are remanded for farther proceedings.

ROTHENBERG, J., concurs.

SHEPHERD, J.,

concurring in part, and dissenting in part.

I concur in the reversal of the order granting a downward departure to Gerald Massingill. Not only was a motion never filed by Massingill asking for a departure sentence, but also Massingill provided no evidence to support the order that was entered.

I would affirm the order granting a downward departure to Elizabeth Torres. The majority finds the State was sandbagged by the defense in its ability to readily oppose Ms. Torres’ Motion for Downward Departure. The majority makes light of the fact that Ms. Torres’ motion was filed nine months before the hearing on the motion. It fails to mention the motion expressly refers to Dr. Jacobson, his opinion that long-term incarceration of Ms. Torres “would cause her to further deteriorate from her current condition,” and, even then, “that she [should] be referred to outpatient treatment.” The majority states the defense’s formal motion to retain Dr. Jacobson was filed in “December, 2009” and that “[t]he case itself was scheduled for trial commencing on January 25, 2010,” but fails to state the motion was filed on December 2nd (and granted on December 4th), almost two months — a lifetime in the world of criminal trial practice — before the hearing. Furthermore, the motion to retain Dr. Jacobson stated, and the order granting the motion expressly reaffirmed, it was Ms. Torres’ intent “to retain Dr. Jacobson to testify at any hearing before the Court regarding said Downward Departure.”

The assistant state attorney first expressed her concern about being ready to confront Dr. Jacobson, or rebut his testimony, at the evidentiary hearing on Ms. Torres’ Motion for Downward Departure, held in place of Ms. Torres’ trial on Monday, January 25, after Dr. Jacobson was sworn as a witness. The assistant state attorney stated:

ASSISTANT STATE ATTORNEY: Judge, before Dr. Jacobson testifies, he was never listed as a witness for the defense. While I have never had an opportunity to depose [Dr. Jacobson], I did have an opportunity to speak to him in the hallway. I understand the court is willing to listen to Dr. Jacobson’s testimony this morning. What I am requesting Judge, is that we have our own expert [and] be allowed to evaluate Mr[s]. Torres for the same issue. I think that based upon what Dr. Jacobson did state to me in the hallway, I think the only equitable solution here is to have the State’s expert because there are issues that I can use as far as presenting evidence to the court.
THE COURT: Okay. So you think that the State is entitled to take the — to have an expert examine the defendant?
ASSISTANT STATE ATTORNEY: Yes, Judge.
THE COURT: Well, interesting. We will take that up after we finish Dr. Jacobson.
DEFENSE COUNSEL: Judge, I filed this motion for downward departure in April of 2009.

(emphasis added).

The record reflects, however, that the State did not press the issue after Dr. Jacobson completed his testimony. Instead, counsel for Ms. Torres rested, and the parties and the court engaged in a lengthy colloquy, greater in length than the earlier testimony of Dr. Jacobson, during which the court on two separate occasions candidly indicated it was inclined to grant a downward departure. In the first, the court asked counsel for the State:

Why is it that — I find I think you would agree that often in cases here in this building with no priors, when it is not a willful act, it is not unusual to come off the guidelines and not go to state prison or offer some type of probation and treatment.
What do you think about the case or the circumstances that have made the State feel strongly that this is a prison case, that these people should go to prison despite their deficit that they have, I guess in their functioning, for lack of a better words?

A few minutes later, the court again addressed counsel for the State:

Tell me why you are so opposed to these — why are you so insistent these people go to prison? That is really what I want to know, okay? Obviously they could have done more, maybe could have done more. This was not a good thing what happened. These conditions are horrific, they are awful, terrible and it happened but why should these people be locked up in prison at about $35,000 a year to me and you and everybody in here as opposed to putting them on probation, make them go through some intensive, you know, treatment, therapy, whatever?
Why is it so important that prison and not therapy[.] That is what I want to hear.

It was not until thirty-three transcript pages later, with her plight showing no signs of improving, that counsel for the State finally made another request to obtain a mental health expert:

ASSISTANT STATE ATTORNEY: Judge, if the court is inclined to depart from the guidelines I would be respectfully requesting to reset to have my own psychologist evaluate Elizabeth Torres.

(emphasis added). Counsel’s request is, of course, nothing more than a common, ordinary motion for continuance. The trial court was well within its discretion to deny the request. See Bouie v. State, 559 So.2d 1113, 1114 (Fla.1990); Wade v. State, 30 So.3d 640, 642 (Fla. 4th DCA 2010); Holmes v. State, 992 So.2d 328, 328-29 (Fla. 3d DCA 2008).

However, in what surely will be a surprise to this state’s criminal defense bar (and prosecutors around the state as well for whom the court’s pronouncement likely will beget its own train of unintended consequences), the majority reverses the downward departure findings in this case on the basis that Florida Rule of Criminal Procedure 3.216 applies to downward departure hearings, obligating a defendant to disclose the name of any mental health professional he intends to call at such a hearing thirty days before the date scheduled for the hearing, see Maj. op. at p. 4, and affording the State an unconditional right, upon motion made, to obtain a rebuttal mental health expert witness to examine the defendant and testify. The majority misunderstands the purpose of the rule and misreads it as well.

The first hint of the flaw in the court’s reasoning appears from the title of the rule itself, “Insanity at Time of Offense or Probation or Community Control Violation: Notice and Appointment of Expert.” Adopted in 1980, see In re Rules of Criminal Procedure, 389 So.2d 610, 624-626 (Fla.1980), Rule 3.216 was added to the Florida Rules of Criminal Procedure, based upon this Court’s urging in Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977), to regularize the procedure to be used by a defendant who intends to assert the defense of insanity or incompetency to proceed at trial, or during any other guilty-phase proceeding. See Fla. R.Crim. P. 3.216, committee notes (1980 amend.). In 1996, subdivisions (e) and (f) were added to Rule 3.216, at the urging of the Florida Supreme Court, to conform the rule to the Court’s decision in State v. Hickson, 630 So.2d 172 (Fla.1993), in which the Court, for the first time, approved the use of evidence of the battered spouse syndrome to support a claim of self-defense at trial. See Amendments to Florida Rules of Criminal Procedure, 685 So.2d 1253, 1255, 1267-70 (Fla.1996). The two new subdivisions read as follows:

(e) Time for Filing Notice of Intent to Rely on a Mental Health Defense Other than Insanity. The defendant shall give notice of intent to rely on any mental health defense other than insanity as soon as a good faith determination has been made to utilize the defense but in no event later than 30 days prior to trial. The notice shall contain a statement of particulars showing the nature of the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant expects to prove the defense, insofar as possible. If expert testimony will be presented, the notice shall indicate whether the expert has examined the defendant.
(f) Court-Appointed Experts for Other Mental Health Defenses. If the notice to rely on any mental health defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the defendant, the court shall upon motion of the state order the defendant be examined by one qualified expert as to the mental health defense raised by the defendant. Upon a showing of good cause, the court may order additional examinations upon motion by the state or the defendant. Attorneys for the state and defendant may be present at the examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state shall not be entitled to a compulsory examination of the defendant.

Fla. R.Crim. P. 3.216 (emphasis added).

It is clear from just a casual perusal of these two subdivisions of Rule 3.216, their genesis, the purpose and history of the rule itself, and the placement of the new subdivisions within the Florida Rules of Criminal Procedure, that neither the drafters of these revisions nor the Florida Supreme Court ever contemplated or intended this rule to be applicable in a sentencing proceeding. For these reasons, I cannot join in the majority’s single-minded focus on one subdivision of Rule 3.216, subdivision (f), to reach a contrary conclusion.

This is a case of an assistant state attorney who did not think she could lose. Her lament, after the trial court advised her for the second time during the course of the proceeding that it was unsympathetic to the State’s position in this case, is telling: “Judge if this is not a ease of neglect of the elderly I don’t know what is....” The trial court found, based upon all that was before it, the State was “on notice” that defense counsel intended to use Dr. Jacobson as a witness at the downward departure hearing, and the notice was sufficient. Our supreme court has said, and it oft has been repeated, that a trial court abuses its discretion “when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1208 (Fla.1980). The trial court did not abuse its discretion in declining to continue the downward departure hearing so the State could regroup.

The court provided two reasons to support its decision to grant a downward departure to Ms. Torres: (1) “[t]he capacity of the defendant to appreciate the criminal nature of her conduct or to conform that conduct to the requirements of the law was substantially impaired,” see § 921.0026(2)(c), Fla. Stat. (2007); and (2) “[t]he defendant suffers from an adjustment disorder, dysthymic disorder, and possibly a mood disorder, not related to substance abuse or addiction, and requires and is amenable to treatment,” see § 921.0026(2)(d), Fla. Stat. (2007). Aside from its conclusion in this case that the State was not afforded its right to prepare to rebut Dr. Jacobson at the downward departure hearing, the majority articulates no flaw in the decision of the trial court on the first of the two grounds. I would affirm the downward departure as to Ms. Torres on this ground.

      . Case No. 3D 10-426.

      . Case No. 3D10-427. Ms. Torres and Mr. Massingill are husband and wife.

      . The record contains a conflicting reference to the victim as Ms. Torres’ father, but it appears that the victim was an uncle who lived with the defendants and was "considered" by Ms. Torres to be her father.

      .The downward departure hearing was conducted two days before the defendants accepted pleas; as to Torres, adjudication was withheld and she was placed on probation for three years with special conditions including a psychiatric evaluation, therapy and compulsory medication. As to Massingill, similar terms were imposed. The State's evidence in opposition to the downward departures was principally introduced through Ms. Torres’ son.

      . A separate expert was retained for evaluation of Mr. Massingill, but that expert’s report and testimony were not presented at the downward departure hearing.

      . These disorders are asserted to require "specialized treatment” for purposes of paragraph (2)(d).

      . Among other reasons, mental health "defenses” and mental health mitigators under section 921.0026 may overlap and may be addressed, as here, by the same defense expert.

      . Massingill argues a State proffer, made at the request of the court, at the close of the evidence offered on behalf of Ms. Torres sufficed because Ms. Torres' counsel did not object to or limit the purpose of the proffer. I find no merit in this argument. The record does not reflect anything resembling what could be characterized as a State proffer. Rather, the record reflects an evidentiary hearing, which, after the defense rested, devolved into a desultory discussion initiated by a trial court request of counsel for the State to provide a "bit of an opening statement in a nutshell about the case as well as ... why you don’t think these people qualify or shouldn’t be given consideration under the mitigation statute.”


text:
    Gary Jamel CANNON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4368.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gary Jamel Cannon, Jr., appeals his conviction on the charge of attempted second-degree murder, with special jury findings that he actually possessed and discharged a firearm while committing the crime. His sole argument on appeal is that the jury instruction on the lesser included offense of attempted voluntary manslaughter constituted fundamental error. We agree and reverse, remanding for a new trial on the charge of attempted second-degree murder. See Burton v. State, — So.3d - (Fla. 5th DCA 2011). As in Burton, we certify that this decision expressly and directly conflicts with the Fourth District’s decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

REVERSED and REMANDED; CONFLICT CERTIFIED.

GRIFFIN, TORPY and LAWSON, JJ., concur.

      . Cannon was charged with attempted first-degree premeditated murder.


author: PER CURIAM; .

text:
    Demetric POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-876.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2011.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM; .

AFFIRMED. See Adkins v. State, 71 So.3d 184 (Fla. 1st DCA 2011).

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


author: EMAS, J.

text:
    Jimmy VELEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1591.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Jimmy Velez, in proper person.

      Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
   EMAS, J.

Jimmy Velez appeals the trial court’s order denying, without evidentiary hearing, his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

In his motion, Velez asserted two claims of ineffective assistance of his trial counsel:

1. Trial counsel provided affirmative misadvice which caused Velez to reject a “favorable” plea offer and proceed to trial. Velez claims that, but for the affirmative misadvice, he would have accepted the plea offer.
2. Trial counsel failed to properly move for a judgment of acquittal based upon the State’s failure to prove the “knowledge” element of trafficking in heroin.

The State, in its response to this Court, candidly and properly concedes that the first claim should be remanded to the trial court for further consideration. We reverse the trial court’s order on this claim and remand for the trial court to consider whether Velez is entitled to an evidentiary hearing.

As to Velez’s second claim, the trial court attached to its order a portion of the trial testimony of one of the narcotics officers, as well as the recorded post-Miranda statement of Velez (which was introduced into evidence at trial).

In his post-Miranda statement, Velez told the officer:

— Velez bought the substance “from a person who brought it from Colombia”;
— Velez did not know the person he bought the substance from and did not know that person’s name;
— The person who sold it to Velez “told me it was drugs”;
— When asked what Velez thought the substance was, Velez told the officer: “I think it was heroin”;
— Velez “bought it to sell it”;
— Velez purchased “one hundred thirty grams” of the substance;
— Velez paid “two thousand dollars” for it;
— Velez was going to sell it “to some man named Gonzalez” for “three thousand” dollars;
— Velez met with Gonzalez at a Publix supermarket the day before the sale was to take place, and gave Gonzalez “a sample” of the substance;
— The next day, Velez returned to Publix to meet Gonzalez and complete the sale;
— Before the sale could take place, Velez saw police arriving and Velez quickly left the Publix and “threw [the drugs] in the garbage.”

These record attachments conclusively show that Velez is entitled to no relief on this claim. See Fla. R.Crim. P. 3.850(d). Had trial counsel argued in the motion for judgment of acquittal that the State failed to prove Velez knew the substance in his possession was heroin, the motion would have been denied, since this was not an essential element of the crime. Trial counsel cannot be deemed ineffective for failing to make a meritless argument. Maharaj v. State, 778 So.2d 944 (Fla.2000); Ridel v. State, 990 So.2d 581 (Fla. 3d DCA 2008). We affirm the trial court’s order denying postconviction relief on this claim.

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

      . The State acknowledges that both the State and the trial court misconstrued Velez’s first claim as a claim for ineffective assistance of counsel in conceding guilt to a lesser included offense in opening statement. The trial court denied the claim based upon a colloquy conducted during trial in which Velez expressly agreed to this opening statement strategy. However, the first claim as presented by Velez, both in his motion and on appeal, asserts that he received misadvice prior to trial and that, but for this misadvice, he would have accepted the state's plea offer and would not have proceeded to trial.

      . In 1996, the Florida Supreme Court in Chicone v. State, 684 So.2d 736 (Fla.1996) held that, in a prosecution for possession of controlled substances, the state must prove, as an essential element, that a defendant knew the illicit nature of the substance. See also Scott v. State, 808 So.2d 166 (Fla.2002), superseded by statute (reiterating holding in Chicone and holding it was error to fail to instruct jury on this element even if defendant failed to raise lack of knowledge). In response to those two decisions, the Florida Legislature in 2002 enacted section 893.101, Florida Statutes, which expressly provides that a defendant’s knowledge of the illicit nature of the substance is not an element of any offense under Chapter 893, but rather an affirmative defense. Therefore, in January of 2006 (which is when this crime occurred), Velez’s knowledge of the illicit nature of the substance was no longer an essential element of the crime of trafficking in illegal drugs, and counsel could not in good faith have argued that a judgment of acquittal should have been granted for the state’s "failure” to prove defendant’s knowledge. Even if such knowledge was an element of the offense to be proven by the state, the evidence introduced at trial forecloses any reasonable probability that a motion for judgment of acquittal would have been granted.


text:
    S.V.-R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellees.
    No. 3D11-1580.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.

      Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Miami, Assistant Counsel, for appellant.
    Karla Perkins, Miami, for appellee, Department of Children & Families; Hillary S. Kambour, for appellee, Guardian ad Li-tem; Herscher & Herscher, and llene Herscher, Coral Gables, for appellee, Father, H.B.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

The appellant is the mother of two children, K.B. (age nine at the time of the proceedings below) and A.V. (age three). She appeals an order denying her motion for reunification with K.B. in a circuit court dependency case following her substantial compliance with the tasks in her case plan. She has also appealed orders approving a general magistrate’s report finding that custody of K.B. should remain with her father (with visitation by her mother), terminating supervision by the Department of Children and Families (DCF), and terminating the circuit court’s jurisdiction. This case requires us to consider the applicability of different and apparently inconsistent statutory provisions relating to reunification, sections 39.522(2) and 39.621(10), Florida Statutes (2010).

We reverse the orders below, and remand the case for a restoration of the status quo and further proceedings, because we find that section 39.522(2) was applicable, that neither DCF nor the Guardian Ad Litem (GAL) proved (nor did the magistrate or trial court find) endangerment of the “safety, well-being, and physical, mental, and emotional health of the child” pursuant to that provision, and that the permanency determination granting custody to KB.’s father instead incorrectly applied the “best interest” factors set forth in section 39.621(10).

I. Background

The dependency case was opened in February 2010 when, according to the initial affidavit and petition, the appellant/mother “neglected and placed her child [A.Y.] in danger by leaving her in the care of her paramour ... while he was intoxicated and under the influence of alcohol.” Following the “paramour’s” arrest for DUI with A.V. in the car, the police and DCF child protective investigators also determined that KB. was at risk and placed K.B. with her father. The following month, the mother consented to the allegations in the petition and to the placement of K.B. in the temporary custody of the father, ultimately with supervised visitation by the mother. Prior to the filing of the petition, the mother had custody of both children and KB.’s father had visitation with her. The approved DCF case plan specified that the primary goal was for KB. to be reunited with her “parents,” with a concurrent goal of remaining with her father. The plan noted the mother’s stated willingness to cooperate with services.

The mother’s tasks and services generally required her to cooperate with assessment and evaluation, to authorize the release of appropriate records and information to DCF and the GAL Program, to participate in supervised visits with K.B., to complete a course of psychotherapy as well as classes on parenting skills and domestic violence, to contribute financially to the care of her younger child, and to demonstrate stable housing and income. The trial court approved the case plan in April 2010, and the mother began to perform those tasks assigned to her. Compliance was monitored by DCF staff and contractors. The mother exercised her visitation rights. In January 2011, the mother was reported by DCF to be in substantial compliance with her plan. The primary goal of that plan was still the reunification of K.B. with her parents, and the mother moved for reunification.

The following month, the general magistrate conducted a hearing on the motion for reunification and (simultaneously) for judicial review and permanency. The general master found, and the trial court approved those findings, that: KB.’s father was a non-offending parent with a “presumptive right to custody” pending any reunification; under section 39.521(3)(b)2, Florida Statutes (2010), changing custody back to the mother as a permanency disposition should be based on the “best interest of the child” standard and the six factors enumerated in section 39.621(10)(a) through (f); although the mother had “in general” complied with the tasks in her case plan and “the specific circumstances that caused the removal of the children are not present,” K.B. should remain in the custody of her father with regular visitation by the mother. Separate orders denied the mother’s exceptions to the general magistrate’s amended recommendations and order, terminated supervision by DCF, and terminated the court’s jurisdiction. The mother’s appeal ensued.

II. Analysis

This Court has not previously addressed the inconsistency of the statutory reunification standards advanced by the parties in this case. We begin with the undisputed fact that the mother had custody of K.B. before the dependency case began. The second vital and undisputed fact is that the mother substantially complied with the tasks in her case plan, in effect reasonably relying on the prospect that KB. would be returned to her custody upon compliance.

KB. clearly enjoyed some stability in her father’s home during the pendency of the proceeding, and she testified that she would prefer to remain in her father’s custody, with visitation allowed for her mother and half-sibling. Nor do we question the general magistrate’s assessment of the “best interest” factors in section 39.621(10)(a) through (f).

The difficulty with the case is that a different statutory standard applies when a non-offending parent seeks to become the permanent custodial parent upon the closing of the dependency proceeding even though the offending parent, the mother, achieved her tasks for reunification. In such a circumstance, the controlling standard is set forth in section 39.522(2):

In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

The general magistrate’s charge, therefore, was not to select the “better” permanency option. Instead, having determined that the mother substantially complied with her ease plan, the general magistrate was obligated to allow reunification with the mother unless that would “endanger” K.B. as described in section 39.522(2). Our application of these statutes is generally consistent with the analysis of the Second and Fifth Districts. In re A.F., 39 So.3d 1288 (Fla. 2d DCA 2010); M.M. v. Dep’t of Children & Families, 29 So.3d 1200 (Fla. 5th DCA 2010). Two decisions of the Fourth District Court of Appeal, however, imply that the “best interests of the child” standard applies to reunification generally. C.S. v. Dep’t of Children & Families, 12 So.3d 309 (Fla. 4th DCA 2009); E.I. v. Dep’t of Children & Families, 979 So.2d 378 (Fla. 4th DCA 2008).

In the case at hand, the appellees did not demonstrate, and the general magistrate did not find, that the “safety, well-being, and physical, mental, and emotional health of the child” would be endangered by reunification. We therefore reverse the orders below and remand the case to the trial court for further proceedings consistent with this opinion. Upon remand, the parties will be returned to the status quo (K.B.’s placement will remain with the father pending the further proceedings, with visitation by the mother) until the trial court considers whether reunification will “endanger” KB. under section 39.522(2). For the sake of all parties, and in particular K.B., we trust that any such proceedings will be conducted and completed expeditiously.

III. Conclusion

The “best interests” and “endangerment” standards are markedly different. The latter standard applies to a reunification or permanency hearing in which reunification is the primary goal and, as here, the offending parent has substantially complied with her or his case plan. As the incorrect standard was applied below, we reverse the circuit court orders and remand the case for further proceedings applying the correct “endangerment” standard.

Reversed and remanded, with directions.

      . Section 39.522 is captioned "Postdisposition change of custody.” Subsection (2) provides:
      In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

      . Section 39.621 is captioned "Permanency determination by the court.” Subsection (10) provides:
      The court shall base its decision concerning any motion by a parent for reunification or increased contact with a child on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include:
      (a) The compliance or noncompliance of the parent with the case plan;
      (b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
      (c) The stability and longevity of the child’s placement;
      (d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
      (e) The recommendation of the current custodian; and
      (f) The recommendation of the guardian ad litem, if one has been appointed.

      . By separate order, the younger half-sibling, A.V., was reunified with the appellant. Any finding of endangerment of K.B. in the same home would seem to be inconsistent with the reunification of the younger child with the appellant.

      . In A.F., the final paragraph directs the trial court to determine whether "reunification would be in the manifest best interests of A.F.,” and the citation to M.M. suggests that the statutory test is whether "reunification would be detrimental to the children.” A.F., 39 So.3d at 1289. We conclude that the statutory question, whether the child will be "endangered” by a return to the home, is the controlling inquiry.

      . We have not certified conflict with these decisions because it is far from clear whether the cases and contentions of the parties are sufficiently similar to warrant that action. Additionally, in C.A. v. Department of Children & Families, 27 So.3d 241, 242-43 (Fla. 4th DCA 2010), the Fourth District clearly identified "endangerment” as the applicable standard.


author: ROTHENBERG, J.

text:
    JOHNSON NG, Shuck Wah Tam, Wing Fat Kwan, Wai Chiu Mui, Chak Yuen Lau and King Lin Lau a/k/a Kenny Kam Yuen Lau, Appellants, v. The UNITED STATES ON LEONG/CHINESE MERCHANTS ASSOCIATION and Bo-Man Mui, Appellees.
    No. 3D10-2363.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.

      Stuart D. Sloan and Agnes Chau, Orlando, for appellants.
    Greenspoon Marder and Joseph S. Geller, Fort Lauderdale, for appellees.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendants, Johnson Ng, Shuck Wah Tam (“Tam”), Wing Fat Kwan (“Kwan”), Wai Chiu Mui, Chak Yuen Lau and King Lin Lau (collectively, “the Defendants”), appeal from a non-final order granting a temporary injunction in favor of the plaintiffs, The United States On Leong/Chinese Merchants Association (“National On Leong”) and Bo-Man Mui (“Bo-Man”) (collectively, “the Plaintiffs”). We affirm.

In February 2010, On Leong Merchant Association, Inc. (“Miami On Leong”), which is a local chapter of National On Leong, suspended the membership of its co-president, Bo-Man. Thereafter, in June 2010, National On Leong reinstated Bo-Man. However, Miami On Leong’s then acting co-presidents, defendants Tam and Kwan, would not recognize Bo-Man’s reinstatement.

The Plaintiffs filed a complaint for declaratory and injunctive relief, and a Verified Motion for Temporary Injunction, seeking, in part, to oust the Defendants from their positions at Miami On Leong. Following an evidentiary hearing, the trial court entered an order, finding, in part, that Miami On Leong is required to follow National On Leong’s bylaws; the Defendants’ actions violated National On Leong’s bylaws; the Defendants altered Miami On Leong’s corporate records maintained by the State of Florida; and National On Leong has the power to intervene when its bylaws are not being followed by a local chapter. The trial court also found: (1) the Plaintiffs have been irreparably harmed as a result of the Defendants’ actions, (2) the Plaintiffs do not have an adequate remedy at law, (3) the Plaintiffs have a substantial likelihood of success on the merits, and (4) the entry of a temporary injunction “is in keeping with public policy and the public interest.” Based on these findings, the trial court granted the temporary injunction, ordering, in part, that Bo-Man be temporarily reinstated as co-president of Miami On Leong and that the Defendants be temporarily removed from their positions at Miami On Leong. This non-final appeal followed.

In this non-final appeal, the Defendants do not challenge the trial court’s finding that National On Leong’s bylaws control the affairs of Miami On Leong or the temporary reinstatement of Bo-Man as co-president of Miami On Leong. The Defendants, however, contend that the order granting the temporary injunction fails to state with particularity the irreparable harm, and that the Plaintiffs failed to establish that the entry of the temporary injunction would serve the public interest or that the threatened injury to the Plaintiffs outweighs any possible harm to the Defendants. See Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 775 (Fla. 4th DCA 2009) (holding that a party seeking a temporary injunction must show that: (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest); see also NRD Invs., Inc. v. Velazquez, 976 So.2d 1, 3 (Fla. 3d DCA 2007). We disagree. We also conclude that the temporary injunction is not overbroad. Carricarte v. Carricarte, 961 So.2d 1019, 1020 (Fla. 3d DCA 2007) (quoting Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006)) (“A trial court is afforded broad discretion in granting, denying, dissolving or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb -the trial court’s decision.”); Cohen Fin., LP v. KMC/EC, LLC, 967 So.2d 224, 226 (Fla. 3d DCA 2007) (“In reviewing a trial court’s ruling on a request for a temporary injunction, we must affirm unless the appellant establishes that the trial court committed a clear abuse of discretion.”).

We decline to specifically address the remaining arguments raised by the Defendants based on our finding that they lack merit.

Affirmed.