text:
    Autavious M. CAPERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-782.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.

      Autavious M. Capers, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ.
   PER CURIAM.

Autavious M. Capers appeals an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. In Caper’s 8.850 motion, he set forth two grounds for relief. First, he asserted that his trial counsel was ineffective for failing to interview alibi witnesses. In our previous opinion regarding this matter, we agreed with the State that this claim is refuted by the record because Capers admitted his participation in the crimes during the plea colloquy and gave a proffer regarding his involvement in the crimes. As such, the trial court correctly summarily denied this claim. See Van Leer v. State, 983 So.2d 1228, 1229 (Fla. 5th DCA 2008).

In the second ground he sets forth, Capers alleged that trial counsel was ineffective for failing to file a timely notice of appeal. The trial court found that the right to an appeal was waived through the plea colloquy and summarily denied the claim.

We treated this request as a petition seeking a belated appeal. See Fla. R. App. P. 9.141(c). Because there appeared to be an actual dispute as to whether Capers made a timely request of his counsel to file an appeal, we relinquished jurisdiction to the division judge to act as a Commissioner of this Court to conduct an evidentiary hearing to take testimony from Capers and Caper’s counsel and make a factual finding as to whether Capers made a timely request of his counsel to file an appeal. See State v. Trowell, 739 So.2d 77, 81 (Fla.1999); Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999).

The trial court, acting as a Commissioner for this Court, and having conducted the evidentiary hearing, found that there was insufficient evidence to conclude that Capers requested that his trial counsel file an appeal. Accordingly, we deny Caper’s petition for belated appeal.

Affirmed in part; denied in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jorge M. SOLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-533.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    Jorge M. Soler, in proper person.
    Bill McCollum, Attorney General, and Lunar Alvey, Assistant Attorney General, for appellee.

      Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jorge M. Soler appeals from an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for attachment of records that conclusively refute Soler’s claim.

On appeal from a summary denial of a Rule 3.800(a) motion, this Court must reverse unless the post-conviction record conclusively shows that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that Soler is entitled to no relief.

Reversed and remanded for further proceedings.


text:
    BIRCH GLADE DEVELOPMENT COMPANY, Arthur C. Bunton, III, and Archibald Hovanesian, Jr., Appellants, v. BEACH COMMUNITY BANK, Appellee.
    No. 1D10-5540.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Archibald Hovanesian, Jr., Pensacola, for Appellants.
    William E. Bond, Kenneth B. Bell and Judson C. Brandt of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee.
   PER CURIAM.

DISMISSED. See Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BENTON and WETHERELL, JJ., concur. KAHN, J., concurs in result.


text:
    Vicky ARENSEN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and The Health Center of Merritt, Appellees.
    No. 1D09-5516.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.

      Laura M. Pichardo, Community Legal Services of Mid Florida, Inc., Orlando, for Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Sr. Attorney, Unemployment Appeals Commission Tallahassee, for Appellee.
   PER CURIAM.

Vicky Arensen appeals from a final order of the Unemployment Appeals Commission dismissing as untimely her appeal of a determination that she is ineligible for unemployment compensation benefits. We conclude that the appeal was timely and that due process concerns require that it be reinstated. Therefore, we reverse and remand for the appeals referee to hold a hearing on the merits of the claim.

Ms. Arensen worked for The Health Center of Merritt for eight years, until she was terminated on June 13, 2008. She applied for unemployment benefits, and an agency employee interviewed her about the circumstances regarding her separation from employment. The employee told her that he would have to contact her employer before benefits could be approved.

Two weeks after this eligibility interview, Arensen received a Wage and Transcript Determination, informing her that she had been approved. She then received regular unemployment benefits until the Spring of 2009. During this time, Ms. Arensen received written confirmation that she was eligible to collect unemployment compensation benefits. The agency sent her a formal notice on December 8, 2008, stating that she was entitled to receive additional benefits under the Emergency Unemployment Compensation Extension Act of 2008. Then, on April 20, 2009, the agency sent her another formal notice stating that she was entitled to receive additional benefits under the Act.

Nine days later, on April 29, 2009, approximately ten months after Arensen began receiving continuous unemployment benefits, the Agency for Workforce Innovation issued a non-monetary Notice of Determination, finding that she had been discharged for misconduct connected with work and that she was therefore ineligible for receipt of benefits. This notice also informed her that she was responsible for repaying the Agency the benefits she had received to date. Finally, the notice advised Arensen that she had twenty calendar days from the mailing date of the determination to file an appeal. The agency did not explain why it had failed to make this determination initially. Nor did it explain why it had implied that it had already determined that Arensen was eligible for benefits.

On May 13, 2009, the Agency mailed Arensen a monetary notice, stating that she had been overpaid $4,831.00, as a result of the determination that she was ineligible to receive benefits. It further stated that she was required to repay the amount of the overpayment. At the bottom of this monetary notice appeared a paragraph stating, “APPEAL RIGHTS: This overpayment determination will become final unless an appeal is filed within 20 calendar days after the mailing date shown. If the 20th day is a Saturday, Sunday or State holiday, the appeal may be filed on the next business day.” (emphasis in original) It went on to give the URL, mailing address and fax number for filing an appeal online, via U.S. mail, or via fax, respectively. It then explained that the filing date for appeals filed by mail is the postmark date. Below this paragraph appeared a line that read, “Appeal Deadline Date: 06/02/2009.” No similar line stating a specific appeal deadline date appeared on the non-monetary Notice of Determination mailed on April 29, 2009.

Subsequently, Ms. Arensen filed a handwritten letter of appeal. The first sentence of the appeal letter stated, “I am writing to appeal the determination of an overpayment of my unemployment benefits.” While the postmark on the appeal was more than twenty days after the mailing date of the April 29, 2009, non-monetary notice, it was within the twenty-day window for an appeal from the monetary notice the agency had mailed to Arensen on May 13th.

After she filed her notice of appeal, the Agency sent yet another monetary notice. This one indicated that it had been mailed on June 9, 2009. It was identical to the first monetary notice, except that it stated that Ms. Arensen had been overpaid an additional $3,864.00 for a total overpayment of $8,695.00, all of which Arensen was required to repay. At the bottom of this monetary notice appeared the same paragraph containing appeal information as in the first monetary Notice of Determination. Below this paragraph appeared a line that read, “Appeal Deadline Date: 06/29/2009.”

On June 11, 2009, two days after the second monetary notice, the agency mailed Arensen a third and final monetary notice. This notice informed her that she had been overpaid $200.00, in addition to the prior overpayment determinations, and that she was required to repay the total of all the overpayments, which now came to $8,895.00. Again, the third monetary notice contained the same appeal information paragraph, and below this paragraph appeared a line that read, “Appeal Deadline Date: 07/01/2009.”

A telephone hearing on Arensen’s appeal was held on July 1, 2009, at which Arensen represented herself. The appeals referee informed Arensen and the employer’s representative at the outset of the hearing that the first issue for determination would be whether the appeal had been timely filed and that, if it were found to be timely, the referee would go on to take evidence on the merits of the claim. After questioning Ms. Arensen, the appeals referee concluded that she had not timely filed the appeal, because more than twenty days had elapsed between the mailing date of the original nonmonetary notice and the date she mailed her appeal letter. The referee dismissed the appeal, and the Commission affirmed the dismissal. Ms. Arensen then filed a timely appeal to this court.

A claimant has twenty days after the agency mails its notice of determination to file an appeal of that determination. See § 443.151(3)(c) and (4)(b), Fla. Stat.; rule 60BB-5.007, Fla. Admin. Code. The time limit is jurisdictional and requires dismissal of appeals filed after the twenty-day deadline. The same twenty-day time limit applies to appeals from nonmonetary determinations. See § 443.151(3)(b), Fla. Stat.

Ms. Arensen plainly did not file her notice of appeal within twenty days from the April 29, 2009 mailing date of the original nonmonetary notice by the agency. However, at the hearing, she testified that she was confused by this notice, because the agency had led her to believe that she had been finally approved for benefits, by telling her repeatedly that she was approved for benefits and by paying her those benefits for ten months. In the circumstances of this case, we conclude that the appeal was timely and that it should not have been dismissed.

There is substantial basis in the record on which to conclude that the claimant relied on the first of the three monetary notices for the date by which she must file her appeal and that it was this first monetary determination that she intended to appeal. The nonmonetary notice was mailed on April 29, 2009. Shortly thereafter, the agency mailed the claimant the first of three nearly identical monetary notices on May 13, 2009. This first monetary notice, like the nonmonetary notice, was a one-page document entitled “Notice of Determination.” Unlike the non-monetary notice, it stated a specific date by which her appeal letter must be postmarked: June 2, 2009.

It is this initial monetary determination of May 13th that Ms. Arensen intended to appeal. Indeed, the first sentence of her appeal letter stated, “I am writing to appeal the determination of an overpayment of my unemployment benefits.” She may have believed that the monetary and the nonmonetary determination constituted a single agency action with the same appeal deadline. In any event, she seems to have been aware of the deadline for the first monetary determination and she filed her appeal by that date. Her appeal letter was postmarked May 26th, and if she was relying on the June 2nd deadline indicated in the first monetary notice, she would have had good reason to believe that her appeal was timely filed.

Although Ms. Arensen referred during the hearing to multiple notices, the referee appears to have been under the impression that she had received only the nonmone-tary notice or that she understood that it was the mailing date of the nonmonetary notice that controlled the timeliness of her appeal. The first monetary notice gave an appeal deadline of June 2, 2009. The non-monetary notice specified no deadline date; it merely stated that she had twenty days from the mailing date of the notice to appeal. If indeed the claimant saw the June 2nd date on the first monetary notice and took that as the controlling deadline, as it appears she did, this would not only explain the confusion at the hearing, but also her failure to file earlier than she did on May 26th, after admittedly reading the statement on the notices of the twenty-day time to appeal.

Assuming the claimant intended to appeal from the May 13th monetary notice, a reversal and remand for a merits hearing is required on due process principles. See Borkowski v. Fla. Unemp. Appeals Comm’n, 930 So.2d 634 (Fla. 1st DCA 2006) (reversing and remanding Commission’s dismissal as untimely of appeal that was timely as to overpayment determination but untimely as to ineligibility determination; holding that, on remand, claimant could raise defenses to eligibility determination in hearing of appeal from adverse benefits overpayment decision); Assam v. Florida Unemp. Appeals Comm’n, 871 So.2d 978 (Fla. 3d DCA 2004) (reversing and remanding the dismissal of an appeal from an eligibility determination on the ground that the appeal was timely from the date of a subsequent overpayment notice).

Apart from the fact that the appeal in this case was timely when measured from one in a series of interconnected notices, the agency acted so slowly in this case as to violate due process. Although the limited record suggests that the employer was partly to blame for the procedural delinquency in this case, the agency itself acted in a way that severely prejudiced the claimant. For whatever reason, it paid the claimant for at least ten months before finally notifying her that she was disqualified from receiving the nearly $9,000 in benefits it had paid her up to that point. It then ceased her benefits without affording her notice or an opportunity to be heard on the merits of her claim.

It is true that initial eligibility determinations are frequently issued, followed by the payment of benefits for a short time, which must ultimately be repaid when the agency later determines that the claimant is, in fact, disqualified from receiving benefits when the employer contests the claim in a timely fashion. Here, however, the record indicates in more than one way that, although it did not issue a written nonmonetary notice before April 29, 2009, the agency did indeed determine that the claimant was eligible for benefits within two weeks of the date she filed her claim. If not a formal determination, the agency certainly made a de facto determination of eligibility, by force of its actions and the documentation it issued over the course of nearly a year. Thus, the claimant essentially became entitled to the continued receipt of benefits, and the agency suddenly ceased them and demanded repayment on a retroactive finding of ineligibility, all without a hearing. In issuing the nonmon-etary notice on April 29, 2009, the agency was, in effect, making a redetermination, not an initial determination. In so doing, and in dismissing her appeal, it violated her due process rights.

The prolonged delay in the determination of ineligibility, after the agency took a number of actions leading her to believe that Ms. Arensen had been approved, including paying her benefits for the better part of a year, substantially impaired the fairness of the proceedings. As the record reveals, after filing her claim in June of 2008, Ms. Arensen spoke with an agency employee, who informed her that the agency would have to contact her employer before ruling on her claim. She then received benefits, which would lead her to believe that she was, in fact, eligible. This belief was undoubtedly reinforced by the subsequent notices informing her that she was entitled to receive additional unemployment compensation benefits under an emergency act of Congress.

It is understandable that Ms. Arensen was surprised to learn that her benefits had been disapproved and that she was required to reimburse the agency for the benefits she had been receiving. The non-monetary determination of ineligibility came almost a year after Ms. Arensen first started receiving payments and little over a week after the latter of two notices confirming her continuing eligibility for benefits under the federal emergency extension act. It appears from the transcript of the telephonic hearing that she was confused not only by the prolonged period of payment of benefits, but also by the multiple notices that she received after the original non-monetary notice.

For these reasons, we conclude that the appeal in this case was timely and that Ms. Arensen is entitled to contest both the amount of the overpayment and the original determination of eligibility. We reverse and remand for a hearing on the monetary determination, as well as on the underlying decision.

Reversed and remanded.

DAVIS, PADOVANO, and LEWIS, JJ., concur.


text:
    CITY OF JACKSONVILLE, Appellant, v. BLUE STONE CONSTRUCTION, INC., a Florida for-profit corporation, Appellee.
    No. 1D09-5447.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.

      Jason Teal, City of Jacksonville, Office of General Counsel, Jacksonville, for Appellant.
    Jeb T. Branham, Jacksonville Beach, for Appellee.
   PER CURIAM.

The City of Jacksonville appeals from the final order denying its amended counterclaim for injunctive relief and monetary penalties for alleged violations of the City’s ordinance code by appellee, Blue Stone Construction, Inc. For the following reasons, we reverse in part and remand for further proceedings.

Blue Stone is the owner of an aged commercial building which had been subject to code enforcement proceedings by the City of Jacksonville. In particular, one wall of the building was unstable and the building suffered various structural problems. In prior administrative action, the City of Jacksonville began code enforcement proceedings, but the emergency nature of those proceedings was extinguished by Blue Stone when it shored up the building. The instant case originated when Blue Stone sued to remove certain liens upon the property resulting from the City of Jacksonville’s previous code enforcement efforts. The City of Jacksonville counterclaimed for injunctive and monetary relief. Eventually, the liens Blue Stone sought to remove were released, leaving only the City’s amended counterclaim pending for trial. In its counterclaim, the City alleged that Blue Stone’s building violated code provisions in part 2 of chapter 518, entitled “Improved or Unimproved Lots and Exterior Conditions of Residential and Commercial Properties.” The trial court found that the situation at hand was more properly addressed via part 8 of chapter 518, titled “Unsafe Buildings & Structures” and that the City’s previous actions to enforce part 3 had been discontinued when the emergency nature of the building’s condition was alleviated. Because the City pled only violations of part 2, and not part 3, of chapter 518, the trial court denied relief under the City of Jacksonville’s amended counterclaim and denied the City’s motion to amend the pleadings.

While the City’s counterclaim might have been presented under part 3, the “Unsafe Buildings and Structures” provision of the code, the City is not precluded from seeking compliance under part 2, the public nuisance provisions of chapter 518. Section 518.202(10) of the code, which was alleged in paragraph 18 of the amended counterclaim, lists “[a]n unsafe or unsanitary condition not included within the meaning of the other terms as used herein which endangers the public health, welfare, or safety of the community.” Section 518.202(10) is not limited to public health concerns, but also encompasses public welfare and safety. The availability of part 3 of section 518 as grounds for the City’s claim for injunctive relief does not preclude the City’s claim for injunctive relief to compel repair or demolition of the unsafe and dangerous building under the code provision alleged in the amended counterclaim.

The trial court’s holding that the City failed to properly plead a cause of action for injunctive relief because chapter 518.202 is inapplicable to the unsafe structure at issue was erroneous and is thus REVERSED. The other provisions of the final judgment are AFFIRMED. This case is remanded for further proceedings consistent herewith.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Carter G. HAWKINS, Appellant, v. Mary G. HAWKINS, Appellee.
    No. 1D10-5103.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2010.
    Carter G. Hawkins, pro se, Appellant.
    Michael D. Weinstock, Niceville, for Ap-pellee.
   PER CURIAM.

The order on appeal fails to distribute the proceeds from the sale of the partitioned properties. Accordingly, it is neither a final order nor a non-final order for which an interlocutory appeal may be prosecuted under rule 9.130(a)(3), Florida Rules of Appellate Procedure. See generally Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (“[a] final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary”); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (dismissing appeal from order of dissolution of marriage that reserved jurisdiction to determine equitable distribution).

DISMISSED.

KAHN, VAN NORTWICK, AND THOMAS, JJ., concur.


author: NORTHCUTT, Judge. ALTENBERND, Judge,

text:
    Tracy Allen BURKE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6329.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2010.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

One evening in May 2008, Tracy Burke became intoxicated and started a domestic altercation that resulted in charges that he committed misdemeanor battery of his wife and child abuse of his son. A jury convicted him of both crimes. Burke does not dispute his conviction for battery. But he contends that the evidence was insufficient to prove he committed the crime of child abuse. We agree.

In the State’s case at trial, Burke’s wife testified that on the evening in question her husband was intoxicated to the point that he could hardly walk. He became belligerent and verbally abusive. As the tension escalated, she decided that she and the couple’s two children should stay at a neighbor’s for the night. She told the children to pack their overnight bags. This touched off a fracas in which Burke began yelling at his nine-year-old son, declaring that he, not the children’s mother, made the rules in the house. He ordered the boy to stop packing his clothes and to go to bed. Burke’s wife hurried to the bedroom, where she found Burke holding their son by his arms and shaking him as he was trying to make the boy drop his belongings. She separated the two and told Burke he was scaring the boy and that she and the children were leaving. Burke grabbed his wife and slammed her into the dining room table. Finally, the children and their mother escaped to a neighbor’s home. Both the mother and the neighbor related that the children were very scared.

The son testified about his father’s behavior in the bedroom. The boy said his father had his hand on his hair. Burke restrained him by wrapping his arm around him and pressing his back against Burke’s knee. When the boy’s mother came in, Burke grabbed his arm and began shaking him. When asked at trial whether he’d suffered any injuries that night, the son testified “My hair. That’s about it.” He did not have any bruises, but the neighbor testified he was rubbing his arm “like it had been twisted.”

The police officer who responded to the 911 call described injuries he saw on Burke’s wife, but he said nothing about any observable injuries on Burke’s son. No medical personnel testified at trial nor did any of the witnesses indicate that the boy was taken to a hospital or a doctor’s office for examination or treatment. There was no evidence that Burke had previously injured the child.

Burke was charged under section 827.03(1), Florida Statutes (2007), which makes it a third-degree felony for anyone to “knowingly or willfully abuse a child without causing great bodily harm, permanent disability or permanent disfigurement to the child.” Relevant to these facts, the statute describes child abuse as the “[i]n-tentional infliction of physical or mental injury upon a child;” or “[a]n intentional act that could reasonably be expected to result in physical or mental injury to a child.” § 827.03(l)(a), (b).

Many of the terms used in chapter 827 are not defined. Courts have, however, looked to chapter 39, a comprehensive chapter addressing proceedings related to children, to flesh out the meaning of terms used in section 827.03(1). See DuFresne v. State, 826 So.2d 272, 277-78 (Fla.2002); State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001). “Abuse,” as defined in section 39.01(2), Florida Statutes (2007), includes “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” Harm occurs when a person inflicts “physical, mental, or emotional injury.” § 39.01(31)(a). Thus, when we analyze whether the State has proved that a child was injured for purposes of a criminal conviction under section 827.03(1), we can be guided by the definition of “harm” in section 39.01(31). See McDonald, 785 So.2d at 646; see also Czapla v. State, 957 So.2d 676, 679 (Fla. 1st DCA 2007) (reading the definition of “harm” in chapter 39 in pari materia with the definition of child abuse in section 827.03(1)). Subsection 39.01(31)(a) suggests that the following facts be considered: “the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted.” Injury includes, but is not limited to, willful acts that result in, for example, “[sjprains, dislocations, or cartilage damage.” § 39.01(31)(a)(l)(a).

Considering the concepts in Chapter 39 in pari materia with section 827.03, it is apparent that for purposes of a criminal prosecution under the latter statute, a “physical injury” requires something more than mild or passing discomfort. Burke’s acts of twisting the boy’s arm, pressing him against his knee and holding him by the hair did not result in an injury or “harm” as described in section 39.01(31). While the laundry list of injuries that could cause harm contained in section 39.01(31)(a)(l) is not exclusive, it includes sprains, fractures, burns, and punctures. Here, the boy claimed only that his hair was injured, but he did not explain what that injury might be. None of the other witnesses mentioned his hair, and no one stated that his arm was even bruised. The State’s evidence was sufficient to prove an intentional act on Burke’s part, but that act did not result in a physical injury. See §§ 39.01(31); 827.03(1).

The same is true of the “mental injury” component of section 827.03(1). Mental injury to a child is defined in chapter 39 as “an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.” § 39.01(41); see also DuFresne, 826 So.2d at 278-79 (explaining that the definition of mental injury in chapter 39 puts a citizen on notice of what could constitute “mental injury to a child” under section 827.03(1)). Understandably, the boy was shaken-up and frightened by his father’s behavior that evening. But the State presented no evidence that the incident resulted in an impairment of the boy’s ability to function within the normal range of performance and behavior. See Baker v. State, 980 So.2d 616, 618 (Fla. 4th DCA 2008) (discussing the proof required to sustain a conviction for child abuse based on intentional infliction of a mental injury under section 827.03(1)).

We reverse Burke’s conviction for child abuse and remand with directions to discharge him for that crime.

KHOUZAM, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion, but write to emphasize that our occasional reliance on the definitions in chapter 39 when examining a criminal offense in chapter 827 should not be interpreted to be a judicial incorporation of those civil definitions into the criminal offenses. Portions of chapter 827 are so broadly written that they have been challenged as unconstitutionally vague. See, e.g., DuFresne v. State, 826 So.2d 272, 274 (Fla.2002). In that context, we have turned to chapter 39 for guidance in holding that these statutes, while not a “paradigm of legislative drafting,” are not unconstitutionally vague. Id. at 278-279.

Ultimately, section 775.021, Florida Statutes (2007), requires that we construe this statute most favorably to the accused. I believe that we have obeyed that requirement in this opinion. The State should not assume that we would rely on the definitions in chapter 39 to construe this statute against the defendant or to uphold a conviction when words in chapter 827 required interpretation.

      . We recognize that some of the injuries described in section 39.01(3 l)(a)(l), like brain damage or drowning, would cause "great bodily harm, permanent disability, or permanent disfigurement to the child” and thus would be pertinent to a charge of aggravated child abuse under section 827.03(2), rather than the charge of felony child abuse at issue here. We limit our discussion of injuries described in that subsection to ones that would not, perforce, cause the aforementioned harm, disability, or disfigurement.


text:
    Christian VELAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1862.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Hunter, 586 So.2d 319 (Fla.1991).

WARNER, POLEN and FARMER, JJ., concur.


text:
    In re GUARDIANSHIP OF Henry H. TAYLOR, Jr., Ward, Ernestina Taylor, Appellant, v. Sharon Candice Taylor Cosmides and James Cosmides, Appellees.
    No. 3D10-1702.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Arnaldo Velez, for appellant.
    Rohan Kelley and Shane Kelley, Fort Lauderdale; Dunwody, White & Landon and Jack A. Falk, Jr., Coral Gables; Alex Cuello; and Louis M. Hillman-Waller, Coconut Grove, for appellees.
    Before RAMIREZ, C.J., and CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006); In re Guardianship of Fuqua, 646 So.2d 795, 796 (Fla. 1st DCA 1994); Sun Bank & Trust Co. v. Jones, 645 So.2d 1008, 1017 (Fla. 5th DCA 1994).


text:
    William Chauncey POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2636.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2010.
    Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Baldwin, 686 So.2d 682, 686-87 (Fla. 1st DCA 1996).

DAVIS, HAWKES, and THOMAS, JJ., concur.


text:
    Anelin LARA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 3D10-926.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.

      Anelin Lara, in proper person.
    Louis A. Gutierrez, Tallahassee, Senior Attorney, for appellee, the Florida Unemployment Appeals Commission.
    Before CORTIÑAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

There is no evidence in the record to support the conclusion below that, as opposed to being discharged, the appellant voluntarily quit her employment so as to disqualify her from unemployment compensation benefits. Accordingly, we reverse the order below and remand with instructions to grant her the benefits claimed.

Reversed and remanded.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. John W. FORD, Appellee.
    No. 3D09-1659.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.

      Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant was charged with burglary and possession of burglary tools, and according to the sentencing guidelines, the lowest permissible sentence he could receive upon a conviction was 48.6 months. Although the State was seeking an enhanced penalty pursuant to the habitual offender statute, the trial court departed downward and sentenced the defendant to three years of probation with special conditions. The State appeals the defendant’s downward departure sentence. Because there is insufficient competent evidence to support the trial court’s ruling, we reverse.

In State v. Salgado, 948 So.2d 12 (Fla. 3d DCA 2006), this Court held that the decision whether to depart downward from the sentencing guidelines is a two-part process.

First, the trial court must determine whether there is a valid legal ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court’s determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion.

Id. at 15. Section 921.0026, Florida Statutes (2008), allows a trial court to depart downward from the lowest permissible sentence under the guidelines when the circumstances “reasonably justify the downward departure.”

The subsection the trial court relied on in its downward departure in the instant case is subsection (2)(d), which permits a downward departure where: “The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d).

Florida law, however, requires that, if a departure is to be permitted under subsection (2)(d), “the defendant must also establish, by a preponderance of the evidence, that the Department of Corrections cannot provide the required ‘specialized treatment.’” State v. Gatto, 979 So.2d 1282, 1283 (Fla. 4th DCA 2008) (emphasis added); see also State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005).

Testimony from a treating physician regarding the defendant’s mental disabilities and his need for specialized treatment—without more—does not satisfy the defendant’s burden for a departure under subsection (2)(d). For example, in State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005), the Second District held that the defendant did not meet her burden where her expert testified that “he was unsure whether treatment was available from the DOC ... based on his observations from the DOC website.” Likewise, in Gatto, the Fourth District found that the doctor’s testimony was insufficient to establish that the defendant could not receive the required specialized treatment for his disorder in prison where the doctor testified that the defendant “could get some treatment, which is better than no treatment.” 979 So.2d at 1233. The court concluded: “At most, Dr. Brannon’s testimony is susceptible to an interpretation that he believed Gatto might receive better or more treatment outside of a prison setting, but not that treatment was unavailable through DOC.” Id. at 1234.

In the instant action, the defendant clearly established that he requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction, based on numerous reports in the record detailing his history of mental illness, thus qualifying him for consideration of a downward departure under section 921.0026(2)(d). The defendant has also demonstrated that he is amenable to treatment and that he has benefitted from the treatment he is currently receiving. The defendant, however, failed to meet his burden of establishing by a preponderance of the evidence that the Department of Corrections cannot provide the specialized treatment he requires. The only evidence submitted by the defendant in this regard was a psychologist’s report, which merely stated: “At this time, [the defendant’s] treatment needs are not likely to be met in a state correctional facility, given the frequency and intensity of services warranted.” Such an inconclusive statement does not satisfy the defendant’s burden and does not provide sufficient competent substantial evidence to support the trial court’s ruling.

Because the defendant did not establish by competent evidence that the Department of Corrections cannot provide the specialized treatment the defendant requires, we reverse the downward departure sentence imposed. We do so, however, without prejudice to allow the defendant to satisfy — if he can — his burden.

Reversed and remanded.

      . See also State v. Hall, 981 So.2d 511 (Fla. 2d DCA 2008) (finding that the defendant was not entitled to a downward departure sentence where she "neither presented any evidence nor attempted to present any evidence that the Department of Corrections could not provide treatment for her bipolar disorder”); Scherber, 918 So.2d at 425 (holding that the trial court erred in finding that the defendant was eligible for a downward departure sentence where "the only testimony relating to the availability of treatment at the DOC” was the statement by the defendant's expert that DOC could provide the defendant with "any required medication ... [b]ut as far as any formal plan to deal with coping skills, dealing with life head-on, not to my knowledge”); Wheeler, 891 So.2d at 616 (reversing a downward departure where "the record is devoid of evidence concerning what treatment Wheeler requires ... [and] contains no showing either that Wheeler requires any treatment that cannot be provided by the Department of Corrections or that there is a reasonable possibility that treatment of his mental disorder would be successful”); State v. Porche, 826 So.2d 1062, 1063 (Fla. 2d DCA 2002) (reversing a downward departure sentence where the defendant "presented an abundance of evidence supporting his assertion that he suffers from numerous serious medical conditions,” but "there was no evidence that he will not receive the necessary treatment while in the custody of the Department of Corrections”).


text:
    Jairo ADDISON, Appellant, v. Joe CARBALLOSA, Jussara Carballosa and Modern Nature Design, Inc., Appellees.
    No. 3D09-1554.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.

      Ronald A. Hertel, Palm Coast, for appellant.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff and Teresa Ragatz, Miami, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA , JJ.

       Judge Lagoa participated in the decision but did not participate in the oral argument.

   ROTHENBERG, J.

Jairo Addison (“Addison”), the appellant here and the plaintiff below, was involved in a business venture with Joe and Jussara Carballosa (“the defendants”). Addison contends he was tricked into signing a contract that did not reflect the parties’ actual agreement concerning this business venture. After reviewing the pleadings and the record evidence, and considering the arguments of counsel, the trial court granted final summary judgment in favor of the defendants. We affirm.

Although Addison: (1) executed the Compensation Agreement at issue on July 26, 2006; (2) admits he was provided with a full and fair opportunity to read the Compensation Agreement before he signed it; (3) admits the defendants did nothing to hide the terms and conditions of the Compensation Agreement; (4) admits he reads and speaks English and the Compensation Agreement is in English; (5) does not deny that the Compensation Agreement was emailed to him for review before he went to the defendants’ home to sign it; (6) admits he received a copy of the signed Compensation Agreement to take with him when he left the defendants’ home; (7) the terms and conditions of the three page Compensation Agreement are clear, unambiguous, and conspicuous; and (8) he did nothing to contest the terms and conditions of the Compensation Agreement until he was terminated from the company over one year later, he contends that the trial court erred in granting summary judgment in favor of the defendants on the basis that there exists a material issue in dispute as to whether Addison was “tricked into signing a contract that did not reflect the parties’ actual agreement concerning [their] business venture.” We disagree with Addison, and conclude that summary judgment was properly granted in this case.

Our analysis begins, as it must, with a review of the pleadings, which without question are at odds with the evidence. In the general allegations of Addison’s Second Amended Complaint (“Complaint”), Addison alleges:

14. On July 26, 2006, JOE and JUS-SARA CARBALLOSA invited Plaintiff to their home for the signing of the Ownership Agreement. The CARBALLOSAS presented Plaintiff with a document that they represented to be the very same Ownership Agreement emailed to Plaintiff on June 19, 2006 (see paragraph 12, supra.). Due to Plaintiffs trust in JOE CARBAL-LOSA and Plaintiffs belief that JOE CARBALLOSA was his close friend, Plaintiff signed the Agreement, unknowingly relying on JOE CARBALLOSA’S misrepresentation that the document was identical to the Agreement emailed to Plaintiff on June 19, 2006.
15. The document that Plaintiff was fraudulently induced into signing was, in fact, NOT identical to the document emailed to Plaintiff on June 19, 2006....

(emphasis added).

Count I, which is entitled “FRAUD (MISREPRESENTED CONTRACT),” re-avers and alleges paragraphs one through thirty, and additionally alleges:

32.On July 26, 2006, at a meeting at the home of the CARBALLOSAS, the Defendants misrepresented to the Plaintiff that the “Compensation Agreement,” dated July 26, 2006 (attached hereto as Exhibit “B”), was the “Ownership Agreement,” dated June 19, 2006 (attached hereto as Exhibit “A”), when, in fact, the documents are different.
33. Defendants, the CARBALLOSAS, knew that the “Compensation Agreement” and the “Ownership Agreement” were not identical.
34. Defendants, the CARBALLOSAS, intended that their misrepresentation of the “Compensation Agreement” as being the “Ownership Agreement” emailed to Plaintiff on June 19, 2006, would induce the Plaintiff to rely on their misrepresentation and to sign the “Compensation Agreement” instead of the “Ownership Agreement.”
35. The Plaintiff has been denied his rightful 33% ownership of MODERN NATURE DESIGN, INC. due to the fact that Plaintiff had read the “Ownership Agreement” and agreed to its terms, and justifiably relied upon the CARBALLO-SAS’ representation that the “Compensation Agreement” document was identical to the “Ownership Agreement.”

(emphasis added).

As is clearly evident, Addison’s Complaint alleges that the defendants committed a “fraud” based on the following facts: on June 19, 2006, the defendants emailed him an agreement; on June 26, 2006, the defendants invited him to their home to sign the agreement; when the defendants presented Addison with the agreement, they represented that it was “the very same” agreement they emailed to him on June 19, 2006; Addison justifiably relied on their representations; and he signed the agreement.

Based on the discovery conducted by the defendants, Addison has admitted that these allegations are false. Addison admitted in his sworn deposition that an agreement was emailed to him on June 19, 2006. However, he refused to sign this agreement because he did not agree to the terms. He further admits that after negotiations with Mr. Carballosa, the parties agreed to make changes to the terms of the original agreement, and when he signed the agreement that was presented to him on June 26, he knew it was not “the very same” agreement the defendants had emailed to him on June 19. Addison, however, claimed in his deposition that the changes he had agreed to were not the changes that were reflected in the June 26 agreement that he signed. Addison’s admissions are completely inconsistent with, and contrary to, the allegations in Addison’s Complaint. Thus, summary judgment was properly granted. See Assad v. Mendell, 550 So.2d 52, 53 (Fla. 3d DCA 1989).

In Assad, the appellants (“buyers”) purchased a home from the appellees (“sellers”). After the buyers discovered leaks from the roof, they brought an action alleging that the sellers had fraudulently misrepresented the conditions of the roof to induce them to close the transaction. However, when the buyers were deposed, their deposition testimony conflicted with the allegations in their complaint. The trial court granted summary judgment, and this Court affirmed, finding that “[t]he buyers were bound by the issues as framed by their pleadings. The function of a motion for summary judgment is to determine if the respective parties can produce sufficient evidence in support of the operative issues made in the pleadings.” Id. at 53-54.

Because Addison’s sworn testimony completely refutes the allegations in his Complaint, and there is no record evidence that supports the allegations contained in his Complaint, the trial court properly granted summary judgment in favor of the defendants.

We also conclude that even if Addison had amended his Complaint to comport with his subsequent sworn testimony (which he clearly did not do), the trial court correctly granted the defendants’ motion for summary judgment. To establish a claim of fraudulent inducement, Addison had the burden to show that: (1) the defendants misrepresented a material fact; (2) the defendants knew or should have known that the representation was false; (3) the defendants intended that the misrepresentation would induce Addison to sign the Compensation Agreement; (4) Addison signed the agreement in justifiable reliance on the misrepresentation; and (5) Addison was injured. Hall v. Burger King Corp., 912 F.Supp. 1509, 1521 (S.D.Fla.1995). Based on Addison’s own sworn testimony and the record in this case, Addison failed to establish his claim of fraudulent inducement as a matter of law. See M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91, 95 (Fla.2002) (“Where the pleadings of the parties make it evident that reliance on the part of a purchaser was not justified as a matter of law, a trial court may certainly be correct in ruling as a matter of law that no cause of action exists.”).

One who signs a contract is presumed to know its contents. Hall, 912 F.Supp. at 1512. That is because it is generally the duty of a party to a contract to learn and understand its contents before he signs it. Pepple v. Rogers, 104 Fla. 462, 140 So. 205, 208 (1932); see also Parham v. E. Bay Raceway, 442 So.2d 399, 400-01 (Fla. 2d DCA 1983). “It thus follows that a party to a written contract cannot defend against its enforcement on the sole ground that he signed it without reading it.” Parham, 442 So.2d at 401 (citing All Fla. Surety Co. v. Coker, 88 So.2d 508, 510 (Fla.1956)).

However, if a party to a written contract was prevented from reading it or he was fraudulently induced to sign the contract without reading it due to misrepresentations upon which he justifiably relied, he may be able to defend against its enforcement. Parham, 442 So.2d at 401. Justifiable reliance, however, does not permit the recipient of a fraudulent misrepresentation to blindly rely on it. Uvanile v. Denoff, 495 So.2d 1177, 1180 (Fla. 4th DCA 1986). Thus, “a misrepresentation is not actionable where its truth might have been discovered by the exercise of ordinary diligence.” Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995); see also Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089, 1092 (Fla. 3d DCA 1979).

In addressing the justifiable reliance element of a fraudulent inducement claim in M/I Schottenstein, the Florida Supreme Court reaffirmed its earlier position in Besett v. Basnett, 389 So.2d 995, 997 (Fla.1980), and recognized that “there may be cases in which the falsity of a statement is obvious, and under those circumstances no cause of action could be stated, [and] it would be entirely proper for a trial court to rule against the plaintiff as a matter of law.” M/I Schottenstein, 813 So.2d at 95; see also Wasser, 652 So.2d at 413 (noting that “a negligent purchaser is not justified in relying upon a misrepresentation which is obviously false, and ‘which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation’ ”) (quoting Besett, 389 So.2d at 997); Gonzalez v. Patane, 234 So.2d 8, 8 (Fla. 3d DCA 1970) (finding no cause of action for misrepresentation where the purchasers failed to exercise diligence to discover readily available information).

Specifically addressing the record in the instant case, Addison alleges in his Complaint that when he signed the Compensation Agreement on June 26, 2006, the defendants represented to him that this was “the very same” agreement they had emailed to him on June 19, 2006, and in reliance on this representation, he signed the Compensation Agreement without reading it. Addison now admits that he did not agree to the terms contained in the proposed agreement (“Ownership Agreement”) sent to him on June 19; the parties renegotiated the terms of their proposed business venture after June 19; he knew the agreement he signed on June 26, was not “the very same” agreement that was sent to him on June 19; and when he signed the Compensation Agreement on June 26, he knew the terms were not the same as the Ownership Agreement originally sent to him on June 19. He now contends, contrary to the allegations in his Complaint, that the parties had agreed to make Addison an officer of the company after eighteen months; this was the only change the parties agreed would be made to the parties’ Ownership Agreement; and he signed the Compensation Agreement on June 26, believing that this was the only change made, and therefore, not realizing that the agreement he was signing did not give him an ownership interest in Modern Nature Design, Inc.

Putting aside the clear conflict between the Complaint and Addison’s sworn testimony, a cursory review of the two documents reveals that they are completely different. The document emailed to Addison on June 19, is titled in large bold print: Modern Nature Rugs, Inc. Compensation Agreement. In contrast, the document emailed to Addison on June 26, is titled in large bold print: Modern Nature Rugs, Inc. Ownership Agreement. The terms and conditions of these very brief, three page documents are entirely different and readily apparent. In fact, each and every paragraph has been materially changed.

Addison admits that the defendants sent him the Ownership Agreement on June 19, he reviewed the proposed agreement, he did not agree to the terms, and the parties renegotiated the agreement. The defendants aver that the revised agreement, which was changed from an Ownership Agreement to a Compensation Agreement, was emailed to Addison for his review prior to June 26. Addison does not dispute this claim; he does not remember one way or the other. Addison does admit, however, that before he signed the Compensation Agreement he was provided with a full and fair opportunity to read it, the defendants did nothing to hide the terms and conditions contained in the Compensation Agreement, the Compensation Agreement is in English, he reads and speaks English, and he was immediately given a copy of the Compensation Agreement after the parties signed it.

Addison also admits that Joe Carballosa specifically pointed out to him the change the parties agreed to: that Addison would be made an officer of the company after he worked for the company for eighteen months. Importantly, this provision is contained on the first page of the Compensation Agreement that clearly and boldly identifies itself as a “Compensation Agreement,” not an “Ownership Agreement,” and the section that contains the “officer” provision is contained in section three on the first page. Section three of the Compensation Agreement is boldly headed with the words “Compensation Due to Jairo Addison,” whereas section three of the “Ownership Agreement” is boldly headed with the words: “Ownership Share and Profit Distribution.” The differences between the two documents were readily apparent, and were, in fact, highlighted by the defendants.

Thus, Addison had a duty to read the Compensation Agreement before he signed it, see Pepple, 140 So. at 208; Parham, 442 So.2d at 400-01. Because the changes to the document were obvious, with the exercise of ordinary diligence, any misrepresentation as to its content was easily discoverable. It was therefore entirely proper for the trial court to rule against Addison as a matter of law and to grant summary judgment in favor of the defendants. M/I Schottenstein, 813 So.2d at 95; Besett, 389 So.2d at 997; Wasser, 652 So.2d at 413; Uvanile, 495 So.2d at 1180; Gonzalez, 234 So.2d at 9.

We note that the United States District Court came to the same conclusion in Hall. In Hall, the plaintiffs brought an action against Burger King Corporation. Burger King filed a motion for summary judgment seeking dismissal of the plaintiffs’ claims on grounds that they were barred by the general release signed by the parties. The plaintiffs sought to set aside the release, contending that an employee of Burger King misrepresented the nature of the release and fraudulently induced them to sign it. The United States District Court concluded that even if the representations were false, and these representations induced the plaintiffs to sign the release, their reliance was unjustified where the terms were clear. Hall, 912 F.Supp. at 1521-22.

Therefore, even assuming arguendo that someone at BKC represented to plaintiffs that this agreement only canceled the lease at Burger King® Restaurant No. 561, even a cursory reading of this two (2) page document would have shown this representation to be in conflict with the agreement’s plain terms. The agreement is boldly entitled “Agreement of Cancellation and Termination of Lease/Sublease Agreement and General Release”. Further, Paragraph 2 of the agreement explicitly provides that the parties to it were mutually releasing each other from “any and all claims whatsoever in law or in equity” which they had against each other arising out of “any ... cause or circumstance”.
Under these circumstances, plaintiffs’ alleged reliance on BKC’s purported misrepresentation was unreasonable as a matter of law.

Hall, 912 F.Supp. at 1521-22.

In conclusion, we quote from the Restatement (Second) of Torts § 541, cmt. a (1977): “[I]f one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect.”

Affirmed.


author: HAZOURI, J.

text:
    HILB ROGAL & HOBBS OF FLORIDA, INC. f/k/a Hilb Rogal and Hamilton Company of South Florida, Appellant, v. Mark GRIMMEL, individually, and Egis Insurance Advisors, L.L.C., a Florida limited liability company, Appellees.
    No. 4D10-1309.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Cathy M. Stutin and David M. Gobeo of Fisher & Phillips, L.L.P., Fort Lauder-dale, for appellant.
    Stephen J. Padula of Padula & Grant, P.L.L.C., Boca Raton, for appellees.
   HAZOURI, J.

Hilb Rogal & Hobbs of Florida, Inc. (HRH) appeals the trial court’s order granting Mark Grimmel and Egis Insurance Advisors, LLC’s (Grimmel) motion to dissolve its temporary injunction. We reverse.

HRH is an insurance broker that provides insurance services for its customers. HRH hired Grimmel as a producer to service its existing customers, to expand the business of those existing customers, and to generate new customers. At the time Grimmel was hired, he signed an employment agreement with HRH, which included a non-piracy clause prohibiting Grimmel from soliciting HRH’s customers following the termination of his employment. Approximately four years after being hired by HRH, Grimmel resigned to operate his own competing insurance brokerage firm, Egis Insurance Advisors. Following Grimmel’s resignation, HRH filed a verified complaint for injunctive relief and damages against Grimmel and his newly created company. It alleged that Grimmel violated the non-piracy covenant in his employment agreement with HRH by misappropriating business from HRH to Egis. HRH filed an ex-parte emergency motion for a temporary injunction, requesting that the court prohibit Grimmel from soliciting HRH’s customers, from accepting business from such customers, from continuing to do business with such customers, and from using confidential or trade secret information. HRH obtained an ex parte order granting a temporary injunction against Grimmel and posted a bond of $160,000.

Grimmel moved to dissolve the injunction and a hearing was held before a magistrate. The general magistrate issued a Report and Recommendation proposing that the temporary injunction be dissolved. HRH timely filed its exceptions to the general magistrate’s report and requested a hearing. On that same day, the trial court adopted the Report and Recommendation of the general magistrate without a hearing. HRH appealed the order and this court remanded, ordering the trial court to hold a hearing on the exceptions. See Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 16 So.3d 167 (Fla. 4th DCA 2009).

On remand, the trial court held a hearing which resulted in the trial court denying the exceptions filed by HRH, granting the motion to dissolve the temporary injunction, and ratifying and approving the general magistrate’s Report and Recommendation.

“The standard of review of trial court orders on requests for temporary injunctions is a hybrid.” E.I. DuPont de Nemours & Co. v. Bassett, 947 So.2d 1195, 1196 (Fla. 4th DCA 2007) (citing Collucci v. Kar Kare Auto. Grp., Inc., 918 So.2d 431, 436 (Fla. 4th DCA 2006)). “To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Id.

A trial court may grant a temporary injunction if the complainant proves “(1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.” Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009); see also Coined, 918 So.2d at 438. Environmental Services further held:

Post-employment restrictive covenant agreements are valid restraints of trade or commence under certain conditions. Specifically, section 542.335, Florida Statutes (2005), which took effect on July 1, 1996, contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants contained in employment contracts. A violation of an enforceable restrictive covenant creates a presumption of irreparable injury. Section 542.335 employs the term “restrictive covenants” and includes all contractual restrictions such as non-competition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade. If valid, a restrictive covenant may be enforced by way of temporary and permanent injunctive relief. § 542.335(l)(j), Fla. Stat. (2005).
Section 542.335(1), Florida Statutes, permits enforcement of contracts that restrict or prohibit competition, but only “so long as such contracts are reasonable in time, area, and line of business .... ” The statute also requires “that any restrictive covenant be set forth in a writing signed by the person against whom enforcement is sought, and that the restraint be shown to be reasonably necessary to protect a ‘legitimate business interests [sic]’ justifying the restriction.” A “legitimate business interest” includes “substantial relationships with specific prospective or existing customers ... or clients.” § 542.335(l)(b)3., Fla. Stat. (2005). The party seeking enforcement of the non-eompete agreement must present a prima facie case that the restrictions are reasonably necessary to protect its legitimate business interests. § 542.335(l)(c), Fla. Stat. (2005). The opposing party then has the burden of proving the contractual restraint is overbroad, overlong, or otherwise not reasonably necessary to support the restriction.

Envtl. Servs., 9 So.3d at 1261-62 (citations and footnote omitted).

The Employment Agreement signed by Grimmel provided in pertinent part:

5. NONPIRACY COVENANTS. For the purpose of this Agreement, the following terms shall have the following meanings:
“Customers” shall be limited to those customers of Employer for whom there is an insurance policy or bond in force or to or for whom Employer is rendering services as of the date of termination of Employee’s employment;
“Known Customers” shall be limited to those “Customers” with whom Employee had personal contact, or for whom Employee handled insurance or bonds, or whose risk management characteristics became known to Employee, in the course of the performance of Employee’s employment duties for Employer;
“Prohibited Services” shall mean (i) services in the fields of insurance or bonds or (ii) services performed by Employer, its agents or employees in any other business engaged in by Employer on the date of termination of Employee’s employment. “Field of insurance” does not include title insurance, but does include all other lines of insurance sold by Employer, including, without limitation, property and casualty, life, group, accident, health, disability, and annuities;
“Restricted Period” shall mean the period of two (2) years immediately following the date of termination of Employee’s employment.
Employee recognizes that over a period of many years the Employer (as defined in paragraph 4) has developed, at considerable expense, relationships with, and knowledge about, Customers and Prospective Customers which are legitimate business interests and constitute a major part of the value of the Employer. During the course of Employee’s employment by Employer, Employee will have substantial contact with these Customers and Prospective Customers. In order to protect the Employer’s legitimate business interests, Employee covenants and agrees that, in the event of the termination of Employee’s employment, whether voluntary or involuntary, whether with or without cause, Employee shall not, directly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, as an owner, stockholder, director, employee, partner, agent, broker, consultant or other participant during the Restricted Period:
(a) solicit a Customer or accept an invitation from a Customer for the purpose of providing Prohibited Sendees to such Customer;
(b) solicit a Known Customer or accept an invitation from a Known Customer for the purpose of providing Prohibited Sendees to such Known Customer;

The general magistrate’s report held that HRH did not provide competent evidence of what can be construed as a legitimate business interest when applied to the action HRH was seeking to enjoin. The basis for this holding was that the evidence demonstrated that every customer was brought to HRH by Grimmel and that they sought Grimmel because of who he was and not because he worked for HRH.

In Brown & Brown, Inc. v. Ali, 494 F.Supp.2d 943 (N.D.Ill.2007) (applying Florida law), the court held: “There is little question under Florida law that an employer has a legitimate business interest in prohibiting solicitation of its customers with whom the employee has a substantial relationship.” Id. at 950 (quoting N. Am. Prods. Corp. v. Moore, 196 F.Supp.2d 1217, 1228 (M.D.Fla.2002)). “ ‘[T]he right to prohibit the direct solicitation of existing customers’ is a legitimate business interest, and a covenant not to compete which includes a non-solicitation clause is breached when a former employee directly solicits customers of his former employer.” Atomic Tattoos, LLC v. Morgan, 45 So.3d 63, 65 (Fla. 2d DCA 2010) (quoting Dyer v. Pioneer Concepts, Inc., 667 So.2d 961, 964 (Fla. 2d DCA 1996)).

Based upon the statute’s provision that “substantial relationships with specific prospective or existing customers” is a legitimate business interest, it appears that even though Grimmel brought these customers into HRH, Grimmel was HRH’s employee and that was what his job entailed. He was a sales producer and it was his job to find customers. Even though he was acquainted with some of these people before he worked for HRH, he did not have a prior business relationship with them.

In Atomic Tattoos, the court held that the right to prohibit solicitation of existing customers by an employee is a legitimate business interest. The general magistrate factually found that each of the representatives of the management groups solicited Grimmel. In Environmental Services, the former employees, against whom the injunction was entered, argued that their employer’s customers elected to end their relationship with the employer of their own accord and, therefore, the employer lacked any legitimate business interest worthy of protection by way of enforcement of the non-compete clause. Citing Scarbrough v. Liberty National Life Insurance Co., 872 So.2d 283, 285 (Fla. 1st DCA 2004), the Fifth District noted the following:

[T]he First District discussed the situation where former clients initiate contacts with employees at their new place of business, explaining that “solicitation” can include a transaction in which the employee was proactive, regardless of whether the customer or employee initiated the transaction. Here, Carter confirmed that he discussed his new business venture, NRC, with ESI clients. There was also ample evidence that Carter actively enticed existing customers away from ESI. More importantly, regardless of who initiated the contact, the agreements clearly prevent the former employees from “[performing] services for any current, former or prospective customers [ESI] with whom employer [sic] had any business-related contact (contact intended to advance the Company’s business interests) during his/her employment with the Company.”

Envtl. Servs., 9 So.3d at 1266. Under the agreement in force here, Grimmel was prohibited from both soliciting and accepting an invitation from a known customer for the purpose of providing prohibited services. The general magistrate incorrectly applied the law and the contract to the facts, thus making her finding of no legitimate business interest clearly erroneous.

The general magistrate was also in error in finding that the public interest would not be served by maintaining the injunction. In the general magistrate’s report, she held:

The public interest will not be served if a temporary injunction is issued. The Plaintiffs former customers are not owned by the Plaintiff. These customers are not bound to Plaintiff based upon a[sic] Employment Agreement between Plaintiff and Grimmel, as the former customers are not parties to the Employment Agreement or any restrictive agreement with the Plaintiff.

In Pitney Bowes Inc. v. Acevedo, 2008 WL 2940667 (S.D.Fla.2008), in holding a former employee be enjoined from, inter alia, soliciting prospective and current customers of the employer, the court held as to the public interest element:

I also conclude that an injunction here will not be adverse to the public interest. On the contrary, the public has a cognizable interest in the protection and enforcement of contractual rights. This interest is particularly strong with respect to non-compete agreements, as the Florida Legislature has determined that the enforcement of such agreements is in the public’s best interest. See Autonation [ Inc. v. O’Brien, Jr.,] 347 F.Supp.2d [1299][,] 1308 [ (S.D.Fla.2004) ] (“the Florida Legislature has determined that in order to refuse enforcement of an otherwise enforceable restrictive covenant based on public policy considerations, the specified public policy must substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint”).

Id. at *6 (citations omitted). The fact that the customers will have to use a different insurance broker does not make the enforcement of this agreement against public policy. See, e.g., Scarbrough, 872 So.2d at 286 (insurance agent enjoined from soliciting customers of former employer on behalf of current employer).

The trial court erred when it adopted the Report and Recommendation of the general magistrate and dissolved the temporary injunction against Grimmel. HRH proved that it had a legitimate business interest in its substantial relationships with specific existing customers; that the restrictive covenant prohibiting the piracy of those customers was no broader than necessary to protect that interest; that Grimmel solicited and serviced those customers contrary to the terms of the agreement; and that HRH was irreparably damaged as a result, both as a matter of fact and of statutory presumption.

The trial court abused its discretion in adopting the Report and Recommendation of the general magistrate which was based on both an erroneous view of the law and an erroneous assessment of the evidence. We, therefore, reverse the trial court’s order dissolving the temporary injunction.

Reversed.

CIKLIN and LEVINE, JJ., concur.

      . Other "legitimate business interests" under section 542.335(l)(b) include trade secrets, valuable confidential business and professional information that otherwise does not qualify as trade secrets, and customer, patient or client goodwill, which includes "extraordinary or specialized training.”


author: FARMER, J.

text:
    CITY OF WILTON MANORS, Florida, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 4D09-4435.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Adam P. Levinson, Robert D. Klausner and Stuart A. Kaufman of Klausner & Kaufman, P.A., Plantation, for appellant.
    Thomas E. Wright, Tallahassee, for ap-pellee.
   FARMER, J.

The City appeals a refusal by the Division of Retirement of the Department of Management Services to distribute to the City certain revenues from a fund derived from a tax on casualty insurance written on property within its borders. We affirm the final order of the agency.

In 1953, the Legislature enacted statutory provisions for police (and, later, firefighter) pensions. The statute authorized cities to assess an excise tax on casualty insurance for property within the city, the revenues from which could go to the existing police officer retirement trust fund. See now § 185.08, Fla. Stat. (2009). The statute contained minimum benefit requirements and imposed limitations on municipal use of the tax revenue generated thereby within the city for police pensions. See now § 185.06(2), Fla. Stat. (2009) (permissible investments); § 185.16 (age of eligibility, minimum benefit calculation, vesting requirements); § 185.161 (optional forms of retirement benefits). These statutes established a board of trustees in every such municipality, including a specified number of serving police officers, to govern and manage this police retirement trust fund. Over the years, the Legislature has amended chapter 185 from time to time, altering minimum benefit criteria and limitations on the use of such funds.

Pertinent to this appeal, in 1995 the Legislature adopted the following statute creating a “premium tax trust fund” for these police (and firefighter) pensions:

“The Police and Firefighters’ Premium Tax Trust Fund is created, to be administered by the Division of Retirement of the Department of Management Services. Funds credited to the trust fund, as provided in chapter 95-250, Laws of Florida, or similar legislation, shall be expended for the purposes set forth in that legislation.” [e.s.]

§ 185.105 Fla. Stat. (2009); see also § 175.1215 Fla. Stat. (2009); and Ch. 95-249, § 1, Laws of Fla.

In 1999 the Legislature enacted new legislation to “provide a uniform retirement system for the benefit of police officers as hereinafter defined.... ” See § 41, Ch. 99-1, Laws of Fla. Included in the omnibus legislation enacted with that statement of purpose was the following provision:

“Any board of trustees operating a local law plan on July 1, 1999, which is combined with a plan for general employees shall hold an election of the police officers, or police officers and firefighters if included, to determine whether a plan is to be established for police officers only, or for police officers and firefighters where included. Based on the'election results, a new board shall be established as provided in subparagraph 1. or sub-paragraph 2., as appropriate. The municipality shall enact an ordinance to implement the new board by October 1, 1999. The newly established board shall take whatever action is necessary to determine the amount of assets which is attributable to police officers, or police officers and firefighters where included. Such assets shall include all employer, employee, and state contributions made by or on behalf of police officers, or police officers and firefighters where included, and any investment income derived from such contributions. All such moneys shall be transferred into the newly established retirement plan, as directed by the board.” [e.s.]

§ 185.05(l)(b)3, Fla. Stat. (2009). The new legislation further provided:

“In order for a municipality and its retirement fund to participate in the distribution of premium tax moneys under this chapter, all the provisions shall be complied with annually, including state acceptance pursuant to part VII of Chapter 112.” [e.s.]

§ 185.10(2), Fla. Stat. (2009); see also § 185.35, Fla. Stat. (2009) (requiring local law plans to meet the requirements and standards in chapter 185). Finally, the legislature has specified that municipal participation in the premium tax program is not mandated but is instead purely voluntary:

“A municipality may revoke its participation under this chapter by rescinding the legislative act, or ordinance which assesses and imposes taxes authorized in s. 185.08, and by furnishing a certified copy of such legislative act, or ordinance to the division. Thereafter, the municipality shall be prohibited from participating under this chapter, and shall not be eligible for future premium tax moneys.”

§ 185.60, Fla. Stat. (2009) (entitled Optional participation).

Several years before 1999, the City, of Wilton Manors had established its General Employees and Police Officers Retirement Plan. It is a defined benefits plan combining both general municipal employees and its police officers. The City also exercised its authority to assess and impose an excise tax against casualty insurers covering property within the City limits. The taxes generated are collected by the State Department of Revenue and transferred to the Police and Firefighters’ Premium Tax Trust Fund and there administered by the Division of Retirement. For the years preceding 1999, the premium taxes collected from casualty insurers were remitted by the Division to the City of Wilton Manors and there used to fund retirement benefits to be paid from its combined plan to both police officers and all other city employees entitled to retirement benefits.

In April 1999, the Division notified the City and the board of trustees of the combined plan that, to continue to receive benefits under the new law, an election of police officers must be held to detach police officers from the combined plan into a plan covering police officers only. The notice cited § 185.05(l)(b)3. The City of Wilton Manors has refused to hold such an election since that notice was sent. Its local law plan (defined benefits retirement) continues to pay benefits from its trust funds to both general municipal employees as well as police officers. The City of Wilton Manors declines to establish a separate retirement plan only for police officers (which may also include firefighters) from the combined local law plan. It refuses thus to amend the combined plan to limit it to employees other than police officers (and firefighters).

In November 2000, the Division informed the City that it was withholding the City’s share of the premium tax revenue for the year 1999 because the City’s combined plan no longer complied with the chapter 185 requirements set forth above. The Division advised that it understood the 1999 legislation to provide that combined plans covering both general employees and police officers do not conform to the statutory requirements for sharing in the premium tax revenue. Since that year the Division has also taken the same position for the revenues in the succeeding years.

The City sought and was granted a formal hearing to contest the agency action. Ultimately the case was tried to an administrative law judge (ALJ) who entered a recommended order. In sum, the ALJ found essentially the foregoing facts. As to the applicable law, the ALJ concluded that the failure to hold an election and separate police from the combined local plan did not authorize the Division to withhold premium tax revenues from the City for the years since the 1999 statutes were enacted. The ALJ’s recommended order would require that the City’s share of the premium tax revenues withheld for the subject years be distributed to the City as before and continued to be used to fund the combined plan.

On review of the recommended order, the Division rejected only finding of fact number 6, essentially objecting only to the use of the term “forfeited” to describe the consequence of failing to hold the election provided by § 185.05(l)(b)S. But the agency rejected several of the ALJ’s conclusions of law. It concluded that the 1999 legislation established that combined plans would no longer be eligible to receive any premium tax revenues, that those municipalities with combined plans must allow their police (and firefighters as well) to vote to detach their retirement plan from the combined plan, so that a separate plan solely for police (and firefighters) could continue to receive premium tax revenues. The Division further concluded that the 1999 legislation effectively made those combined plans not making such a separation no longer eligible to receive premium tax revenues. It is that decision that has been appealed by the City.

The issue on this appeal is ultimately one of interpretation of a statutory scheme. Review is thus de novo.

The Florida Constitution allows the Legislature to create a tax and distribute the revenue from it to local governments. Art. VII, § 8, Fla. Const. (1980) (“State funds may be appropriated to the several counties, school districts, municipalities or special districts upon such conditions as may be provided by general law”). The Legislature is also empowered to limit the governmental and corporate power of municipalities by statute. Art. VIII, § 2(b), Fla. Const.

Because we are reviewing an agency’s interpretation of the law it is charged with enforcing, we must recognize that:

“an agency’s interpretation of a statute it is charged with enforcing is entitled to great deference. The party challenging an order of the Commission bears the burden of overcoming those presumptions by showing a departure from the essential requirements of law.”

As the supreme court has also phrased such required agency deference:

“we note the well established principle that the contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight. The courts will not depart from such a construction unless it is clearly unauthorized or erroneous.”

We must therefore review the Division’s construction of chapter 185 with these important principles of review in mind.

Construction of a specific statute is not served by isolating it from the rest of the body of statutory law. The meaning of specific phrasing in a statute may seem odd by itself, but its true import may become apparent when viewed in the context of other statutes touching and concerning the subject of the statute.

The critical text here is:

“Any board of trustees operating a local law plan on July 1, 1999, which is combined with a plan for general employees shall hold an election of the police officers, or police officers and firefighters if included, to determine whether a plan is to be established for police officers only, or for police officers and firefighters where included.” [e.s.]

§ 185.05(l)(b)8. Fla. Stat. (2009). There can be no misunderstanding as to the text in bold above. The words shall hold an election are not permissive but mandatory. The purpose of the requirement to “hold[ ] an election” may seem odd but it is not ambiguous.

On the other hand, the statutory scheme adopted in 1999 manifests an obvious purpose to allocate premium tax revenues solely to police retirement plans, thereby prohibiting intermingling them in combined local law plans. That new tax revenue allocation policy obviously necessitates changing local law plan terms and provisions in those cities having combined such plans.

Although none of the statutes expressly state that the failure to separate police pension plans from other municipal employee plans will result in the loss of eligibility to share in the premium tax revenues, that is patently the only conclusion that seems to fit the specific provisions enacted. It does not appear, therefore, that the Division’s interpretation of the 1999 legislation is anything but coherent with the entire body of law affecting the eligibility of municipal police retirement plans to receive premium tax revenues.

Also, we know that municipal participation in the premium tax revenues is not mandatory; a City may take itself out of the program at any time. See § 185.60, (entitled Optional participation). We know also that chapter 185 now specifies that the premium tax revenue must be expended only for the purposes specified in chapter 185 — that is, only for local law plans providing police retirement pension trust benefits. § 185.105. We know further that “for a municipality and its retirement fund to participate in the distribution of premium tax monies under chapter 185, all the provisions [of chapter 185] shall be complied with annually.” § 185.10. And it is indisputable that, after the 1999 legislation became effective, all municipalities with combined local law pension plans— including the City of Wilton Manors — were required to have their police officers vote on whether the police pension should be separated from the combined local law plan. § 185.05(l)(b)3. If combined local law plans could continue to remain eligible for premium tax revenues, there would be no apparent purpose for requiring municipal police to decide whether to have a separate local law plan for police only.

The record suggests that the City of Wilton Manors decided voluntarily not to separate its local law plan into two plans (a new one for police and firefighters, and the original for all other employees) for simple fiscal reasons. Its City Manager testified in the formal hearing that the City had estimated the costs to administer two separate plans and concluded that the premium tax revenues would not offset the additional administrative costs.

The AL J did not seem to understand the legal authorities in the same way Division of Retirement does. Rather, the ALJ seemed fixed upon semantics in the sentence about holding an election and thus to search for other constructions based on assumed ambiguity. On the other hand, the agency obviously understood the import of the new statute.

It is clear that the following policy of review applies to the final agency action in this case:

“[T]he ultimate authority to administratively interpret chapter 447 and article I, section 6, of the Florida Constitution, which deal with state regulation of labor organizations, resides with [PERC] and not a hearing officer. [PERC] has the principal responsibility of interpreting the statutory provisions consistent with the legislature’s intent and objectives. We also agree that [PERC] has the authority to overrule a statutory interpretation made by one of its hearing officers. Further, we agree that a reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” [c.o.]

Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). In this instance, where related employment consequences intersect with the authority of the Division of Retirement to interpret and administer the laws respecting the distribution of premium tax revenues only to eligible local law retirement plans, the Division stands in the same shoes as PERC did in Dade County Police Benevolent. The Division’s interpretation of § 185.05(l)(b)3. is harmonious with its plain text and the surrounding body of law affecting the same subject. Affirmed.

WARNER and POLEN, JJ., concur.

      . No one disputes that the City of Wilton Manors combined plan is a "local law plan” as that term is defined in § 185.02(10), Fla. Stat. (2009), and used throughout chapter 185.

      . "The Division interpreted (and continues to understand) [§ 185.05(l)(b)3] as requiring municipalities, such as the City, whose combined local law plans as of July 1, 1999, covered both general employees and police officers (or police officers and firefighters) only, i.e. no general employees included — or forfeit the opportunity to continue receiving distributions of the premium tax revenue.”

      . Abram v. State of Fla., Dep’t of Health, Bd. of Med., 13 So.3d 85, 88 (Fla. 4th DCA 2009).

      . Gulf Coast Elec. Co-op. Inc. v. Johnson, 727 So.2d 259, 262 (Fla.1999); AmeriSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997); see also Morris v. Div. of Ret., 696 So.2d 380, 384 (Fla. 1st DCA 1997) ("Even if somehow problematic, 'an agency's interpretation of a statute it is charged with enforcing is entitled to great deference.' ").

      . PW Ventures Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988); U.S. Gypsum Co. v. Green, 110 So.2d 409, 414 (Fla.1959); Gay v. Canada Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952); see also Warnock v. Fla. Hotel & Rest. Comm’n, 178 So.2d 917 (Fla. 3d DCA 1965).


author: SUAREZ, J.

text:
    Joseph DiGIORGIO, Appellant, v. Tina DiGIORGIO, Appellee.
    No. 3D10-1835.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Restani Dittmar & Hauser and Helen Ann Hauser, Coral Gables, for appellant.

      John R. Sutton and Brett Sumbley, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

Joseph DiGiorgio (“the husband”) appeals a non-final order denying, with prejudice, his motion to strike execution and sheriffs sale. We have jurisdiction. See Fla. R.App. P. 9.130(a)(2)(C)(ii). We reverse the order below and remand for an evidentiary hearing on the issue of whether the property in question constituted the homestead of the husband and barred the sheriffs levy, execution, and scheduled sale.

Mr. and Mrs. DiGiorgio were divorced in Ohio, in 2006. Mrs. DiGiorgio petitioned to domesticate the foreign divorce judgment in Miami-Dade County, alleging the failure of the husband to pay child support and claiming that he had fraudulently conveyed marital property. The Miami-Dade County Circuit Court domesticated the foreign divorce judgment and, incorporating the portion of the judgment requiring the husband to pay Mrs. DiGiorgio $785,000.00, ordered Mrs. DiGiorgio to recover from the husband that amount, plus interest, and allowed execution to issue forthwith. Mrs. DiGiorgio moved for an order setting a sheriffs sale of two properties located in Miami-Dade County which were owned by the parties as tenants-in-common, but which were not included in the final divorce judgment. The husband moved to strike the sheriffs levy and execution. The husband then filed a Notice of Homestead Affidavit claiming the properties to be his homestead since March of 2006, exempt from levy and execution under Article X, Section 4 of the Florida State Constitution. The trial court denied the husband’s motion to strike, without prejudice, and deferred ruling on the motion until it could be heard by a successor judge. The successor judge heard the motion a day before the scheduled sale and denied the motion with prejudice. The trial court entered a stay for ten days. This appeal followed the stay and this Court extended the stay pending outcome of the appeal.

The husband asserts on appeal that the levy and execution of the property that he alleges is his homestead is impermissible under Article X, Section 4 of the Florida State Constitution. The husband’s Notice of Affidavit of Homestead states that the properties attempted to be levied upon have been his homestead since 2006. Mrs. DiGiorgio contends that, because the husband filed the Notice of Homestead Affidavit after the money judgment lien had already attached to the property, she is entitled to levy and execution even if the property is determined homestead. We disagree.

Article X, Section 4 of the Florida State Constitution states that no judgment shall be a lien on property owned as homestead, as follows:

SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person....
(1) a homestead, if located outside a municipality ... or if located within a municipality ... upon which the exemption shall be limited to the residence of the owner or the owner’s family.

Under the statute, it is the place of the actual residence of a party, not the filing of a claim for exemption, which determines if the property constitutes homestead. Solary v. Hewlett, 18 Fla. 756 (1882). The filing of the husband’s Notice of Homestead Affidavit, wherein he makes a claim for homestead exemption, is not the determining factor of whether or not the property is the husband’s homestead and it matters not if the Notice of Homestead Affidavit was filed after the judgment lien. The question of whether the property constitutes homestead can be answered only upon proof of the husband’s residence. While we agree with the husband that the levy and execution of the parties’ property may be barred by the protection of homestead, the question of whether the property is, in fact, the husband’s homestead can only be answered by evidentiary proof. Only after the question of whether the property is the husband’s homestead is answered by evidentiary proof can it be determined if the trial court properly denied the motion to strike execution and sheriffs sale. The determination of whether the property is homestead is a question of fact to be resolved by the trier of fact below. Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943); Barton v. Oculina Bank, 26 So.3d 640 (Fla. 4th DCA 2010).

We therefore reverse and remand for an evidentiary hearing to determine if the property was, in fact, the homestead of the husband before concluding that he was entitled to a bar on execution of the money judgment.

Reversed and remanded with directions.

      . The non-final appeal from the July 13, 2010 order denying with prejudice a motion to strike execution and sheriff's sale is timely. The May 25, 2010 order denying, without prejudice, the motion to strike execution and sheriff's sale specifically deferred ruling to the successor judge and, therefore, was not ripe for appeal under Rule 9.130, as it did not determine the right to possession of property, but merely deferred ruling on that determination to the successor judge.

      . We note that the remedy of partition available to a joint owner, despite the claim of homestead, was never pled or requested below. See Tullis v. Tullis, 360 So.2d 375 (Fla.1978).


text:
    Vanesa FLORES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Weiser Security Services, Inc., Appellees.
    No. 3D09-1749.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Vanesa Flores, in proper person.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee Unemployment Appeals Commission.
    Before WELLS, LAGOA, and SALTER, JJ.
   PER CURIAM.

Vanesa Flores appeals the Florida Unemployment Appeals Commission’s final order affirming the decision of the Unemployment Compensation Appeals Referee dismissing Flores’s appeal as untimely filed. We affirm, as the claimant did not appeal the decision until after the 20-day statutory time limit had expired. See § 44S.151(3)(a), Fla. Stat. (2009). Accordingly, the Appeals Referee was legally bound to dismiss the appeal.

Affirmed.


author: RAMIREZ, C.J.

text:
    Luis ROMERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2871.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Jepeway & Jepeway, and Louis M. Jepe-way, Jr., for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J„ and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Luis Romero appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand because the record does not refute conclusively Romero’s claim of ineffective assistance of counsel.

Romero was charged by information with aggravated assault. He was convicted of attempted aggravated assault. Romero appealed, and this Court affirmed his judgment and sentence. Romero v. State, 2 So.3d 1114 (Fla. 3d DCA 2009).

Romero then filed his rule 3.850 claim. In his motion, Romero claimed that trial counsel negligently failed to request the jury instruction on abandonment of the attempt to commit an aggravated assault. He alleged that testimony from the State indicated that Romero voluntarily renounced and abandoned any criminal intent when he stopped pointing his firearm at the off-duty police officer in the car next to him. No portion of the trial record or transcript was attached to the motion.

The State filed its Response, attaching several pages from the trial transcript. One page contained a portion of Romero’s testimony, which indicated that Romero had stopped pointing his gun at the off-duty police officer.

The trial court denied Romero’s motion, without holding an evidentiary hearing. The trial court stated in its written order that the failure to request an abandonment instruction was a strategic decision on the defense’s part. The trial court further attached a portion of the record, consisting of seventeen pages. Romero then filed this appeal.

We find that the trial court erred in holding that Romero did not request an abandonment instruction, without first holding an evidentiary hearing. A trial court cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentiary hearing. Gordon v. State, 608 So.2d 925 (Fla. 3d DCA 1992).

Moreover, with respect to Romero’s argument that he was entitled to a jury instruction on abandonment, he has raised a facially sufficient claim for rule 3.850 relief that the trial court, by summarily denying the motion, failed to conclusively refute. A defendant is entitled to a jury instruction on the defense of abandonment when the evidence warrants it. Longval v. State, 914 So.2d 1098, 1100 (Fla. 4th DCA 2005). The post-conviction record now before us does not conclusively preclude an abandonment defense.

Accordingly, we reverse the trial court’s denial without a hearing of Romero’s motion for post-conviction relief. We remand to the trial court with instructions either to hold an evidentiary hearing, or if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Romero’s claim. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded with instructions.