author: CORTIÑAS, J.

text:
    The STATE of Florida, Appellant, v. Tony BROWN a/k/a Andre Gonzalez, Appellee.
    No. 3D10-1633.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.

      Pamela Jo Bondi, Attorney General, Douglas J. Glaid, Senior Assistant Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

In the early morning hours of an October day, Michael Morris (“Morris”) and his friend, Nigel Whatley (“Victim”), exited a nightclub and walked to a parking lot where Morris intended to show his new car to the Victim. After arriving at the vehicle, which was parked next to a street light, Morris and the Victim began talking and were approached by the defendant. The defendant demanded that they hand their money over to him. After a brief argument between the three men, Morris threw his money and car keys on to the floor, but the Victim told the defendant that he would have to shoot him. The defendant then pulled out a gun.

By chance, a car drove by at that moment and the defendant briefly lowered his weapon. The Victim and Morris took advantage of this and pounced on the defendant. During the fight, the Victim was shot and fell face down to the ground. Morris attempted to crawl away, but was shot in the chest by the defendant. After being shot, Morris observed the defendant go over to the Victim, and although the Victim was still lying face down on the ground, the defendant shot him again. Morris attempted to escape but was shot by the defendant in the leg. Nevertheless, Morris managed to make it to a nearby restaurant where he was found by a police officer and was rushed to a hospital. Morris provided a physical description of his assailant to the police. After investigating the scene of the crime, the police located a black skully cap approximately 11 feet from the Victim’s body. The DNA found on the skully cap matched that of the defendant.

Approximately nine months later, on July 21, 2006, Detective Nanni met with Morris outside of his workplace and showed him a photo array. Morris identified the defendant, but did not sign the array. Two days later, on July 23, 2006, Morris met with Detective Nanni at the detective’s office, again identified the defendant, and this time, in the course of a sworn statement, signed the photo array. In his statement, Morris specified that the defendant had been wearing a skully cap at the time the crime was committed. Morris qualified his identification, however, by stating that he “was 60 percent certain” that the individual he selected from the array “is the person who shot [him] and murdered [the Victim].” He was not advised of the DNA match prior to making his identification. At trial, Morris explained:

I put 60 percent because I tend to quantify things based on my background. I am trained as a chemist; and it shows his face but it doesn’t show someone wearing a [skully]. And to be fair, and in an abundance of caution, I said 60 percent.

Morris also affirmed that he would have been more comfortable identifying the photographs if the individuals pictured had been wearing skully caps.

When the defendant was first told by Detective Nanni that his DNA had been recovered near the Victim’s body, he denied being at the crime scene at the time of the murder. Shortly thereafter he told the detective that he had been at the club, but had only been there to pick up a generator from his friend in the wake of a hurricane in late October 2005. The defendant was unable to provide the name of his friend when asked by the detective.

At trial, the defendant’s then-girlfriend testified that she was at the club with the defendant on the date of the murder. She testified that prior to' entering the club, the two had parked outside and she applied make-up while the defendant removed a black skully cap and a white “do-rag” from his head in order to brush his hair. According to her, the defendant placed the white do-rag back on his head but put the black skully cap on his lap. She did not know what happened to the skully cap after they exited the car.

The girlfriend further testified that she remained at the club with the defendant until very near closing time, which happens to coincide with the approximate time of the incident. She stated that she and the defendant left the club in the defendant’s ear, and after driving for a few minutes received a call from her friend, “Blinky,” who told her someone had been shot near the club. The girlfriend further testified that based on the description she received from Blinky, she feared one of her friends had been shot at the club and, therefore, she returned to the scene with the defendant. Upon arriving at the scene, she claims to have called 911 twice, but hung up on both occasions because the 911 operator was “acting confused.” There is no record of these alleged 911 phone calls. When asked the identity of the friend she believed had been shot, the girlfriend responded that his nickname was “Yellow.” When questioned about Yellow’s identity, she could not provide an actual name for this person. The girlfriend never presented her account of the events to the police, despite the investigation and subsequent arrest of the defendant. She said absolutely nothing about a supposed generator that the defendant had claimed to be picking up at the nightclub and, contrary to what the defendant had told the police, placed the defendant at the club during the early morning hours of the day of the murder.

During the State’s closing argument, the prosecutor stated:

And the defendant is the one who says, I go to the club to get the generator, that’s got to be how my [skully cap] gets there. The detective says, well, okay, if that’s your explanation to us, let’s put it on the record, let’s bring the steno in here, put it on tape, let’s make a record of what you just told me and that will be the end of that.
You don’t have that record, you don’t have that stenographic transcript, you don’t have a tape, because at that point the defendant said, no, I’m done.
That is basically the [S]tate’s evidence. You might want more, but that’s the [S]tate’s case.

Arguing that the State improperly commented on the defendant’s right to silence, the defense moved for a mistrial, which the trial court denied. After considering the evidence presented at trial, the jury found the defendant guilty of 1) second degree murder as a lesser included charge of premeditated first degree murder, 2) attempted first degree murder, 3) armed robbery, and 4) attempted armed robbery.

The defendant then filed a motion for a new trial arguing the sufficiency of the evidence, that the verdict was contrary to the weight of the evidence and the law, and that the court erred in denying the motion for mistrial based on the State’s comments regarding the defendant’s right to silence. At the hearing on the motion for a new trial, the trial court sua sponte announced that it wanted Morris and the girlfriend to submit to a polygraph test. The trial court added: “So, at this point you know that I’m preliminarily, anyway, headed towards a denial of your motion for new trial. However, on the issue of identification, if there are, you know, two polygraphs are done, and I want Mr. Morris’ polygraph done.” The court subsequently advised the parties that it wanted Detective Nanni, not Morris, to take the polygraph test. The State, however, objected and neither the detective nor Morris took the test.

Despite ordering the polygraph tests, the trial court unequivocally stated:

I’m inclined to deny the motion for new trial. I’m serious, I want you all understanding I’m inclined to deny it but I do want to give every opportunity, because I.D. cases are so important, so crucial.

Approximately three weeks later, another hearing was held and the defense submitted to the court the results of the polygraph tests of the defendant and the girlfriend. The State filed a motion in opposition to both the polygraph tests and to the motion for new trial. Acknowledging that Detective Nanni had not taken the polygraph test, and prior to ruling on the motion for new trial, the court told the parties:

[J]ust so that we are both clear, I can’t force anybody to take the polygraph ... [H]owever, just so that we are clear, the fact that the defendant took a polygraph test and passed it ... the fact that the alibi witness took and passed the polygraph ... that I’m not considering it in any capacity whatsoever for purposes of the hearing today; just so that we are all clear. I saw the State’s memorandum in opposition to it. I’m telling you all no, that that will not be considered in the motion or in the ruling on the motion.

The trial court then granted the motion for a new trial on the bases that the verdict was contrary to the weight of the evidence and that the State had improperly commented on the defendant’s right to silence. We reverse.

The trial court’s order granting the motion for a new trial is reviewed for a clear abuse of discretion. State v. Riggins, 314 So.2d 238, 240 (Fla. 4th DCA 1975). Furthermore, “when hearing a motion for new trial predicated on the verdict being contrary to the weight of the evidence the trial court must base its decision solely on the record and the evidence upon which the jury reached its verdict.” Id. (citing State v. Jones, 281 So.2d 220 (Fla. 4th DCA 1973)). Here, Morris was able to identify the defendant from a photographic array and, in the course of his sworn statement to the police, specified that the defendant was wearing a skully cap at the time the he and the Victim were robbed and shot. The police found a matching skully cap containing the defendant’s DNA approximately 11 feet away from the Victim’s body. The defendant first denied being present at the scene of the crime and later admitted to having been there, but was unable to provide any corroboration for his explanation that he was there to borrow a generator from an unidentifiable friend.

Several elements of the girlfriend’s testimony were equally unverifiable; she was unable to provide the name of either the person who allegedly called to tell her about the shooting or the friend who she claims she believed had been shot. Additionally, the cell phone records that would have proven that the girlfriend made the 911 calls were no longer available from the girlfriend’s cell phone provider and records of the calls were also unavailable from 911. It was well within the province of the jury to weigh the evidence, determine the credibility of the testifying witnesses and the evidence presented and arrive at the verdict.

The trial court erred in sua sponte asking certain witnesses and parties to submit to polygraph examinations in order to assuage its concerns over the identification of the defendant. In Florida, “polygraph evidence is inadmissible absent a stipulation between the parties.” Austin v. State, 679 So.2d 1197, 1199 (Fla. 3d DCA 1996); see Davis v. State, 520 So.2d 572 (Fla.1988). Fonticoba v. State, 725 So.2d 1244, 1245 (Fla. 3d DCA 1999). More specifically,

The courts of this state have repeatedly held that the factors contributing to the results of a polygraph test — the skill of the operator, the emotional state of the person tested, the fallibility of the machine, and the lack of a specific quantitative relationship between physiological and emotional states — are such that the polygraph cannot be recognized as a sufficiently reliable or valid instrument to warrant its use in judicial proceedings unless both sides agree to its use.

Davis, 520 So.2d at 573-74. Here, there clearly was no stipulation between the parties and the State strongly opposed the use of the polygraph examinations. Although the trial court asserted that it was not going to rely upon the results of the polygraph examinations, absent their consideration, it is extremely difficult to reconcile the sharp contrast in the trial court’s original emphasis on its inclination to deny the motion for a new trial and its subsequent granting of the motion. It is entirely clear from the record that the trial court requested the polygraphs, reviewed the results, and was, at least, minimally influenced by the polygraphs in arriving at its decision. The trial court abused its discretion in both requesting the examinations and reviewing their results prior to ruling on the motion for a new trial. Because this evidence was not considered by the jury in reaching its verdict, it could not be considered or relied upon by the trial court in determining that the jury verdict was contrary to the weight of the evidence. Riggins, 314 So.2d 238. It was error for the trial court to grant a new trial on this basis.

We also find that the trial court erred in ruling that the statements by the State during closing argument constituted improper comments on the defendant’s right to silence. Taken in the context of the State’s closing argument, the statement that “[y]ou don’t have that record, you don’t have that stenographic transcript, you don’t have a tape, because at that point the defendant said, no, I’m done. That is basically the [Sjtate’s evidence. You might want more, but that’s the [Sjtate’s case,” was merely highlighting the refusal of the defendant to give a recorded statement to the police. Under Florida law, addressing a defendant’s refusal to have his statements to the police recorded does not constitute an infringement on the defendant’s right to silence. See San Martin v. State, 705 So.2d 1337 (Fla.1997) (Explaining that because the accuracy and integrity of oral incriminating statements are often targeted by defense counsel, “[i]t is only reasonable that the State be permitted to elicit the fact that the accused was given the opportunity [to put his statement in writing] and declined.”) (quoting McCoy v. State, 429 So.2d 1256, 1257 (Fla. 1st DCA 1983)); Brack v. State, 919 So.2d 578, 580 (Fla. 4th DCA 2006) (“[T]he comment that the defendant declined to have his statement to the police recorded, after the defendant waived his Miranda rights and made a full statement, is not an impermissible comment on the defendant’s silence.”). As we have previously held:

Where ... a defendant has ... voluntarily given a statement to the police, it is not a comment on silence for the detective to explain that the defendant refused to memorialize the already-given oral statement in a tape recording. The defendant in such circumstances has already elected to speak. A refusal to write down, or record, what has already been said does not amount to invocation of the right to silence.

Fernandez v. State, 786 So.2d 38, 40 (Fla. 3d DCA 2001). Here, the State attorney was simply reiterating and highlighting the fact that the defendant had refused to give a recorded statement and, as a result, the only statements from the defendant available to the State were oral. Doing so, quite simply, did not constitute an improper comment on the defendant’s right to silence. Moreover, we note that when originally denying the motion for mistrial following closing arguments, the trial court said of the purported improper comments on defendant’s right to silence: “I never thought that was a comment on [defendant’s] right to remain silent.” Only after receiving the results of the polygraph examination and reviewing the trial transcript did the trial court rule that the statements constituted an improper comment on the defendant’s right to silence. Accordingly, a new trial should not have been granted on this basis.

Based upon the foregoing, we reverse the trial court’s order granting the motion for a new trial.

Reversed and remanded.

      . Officer Nanni testified that Morris did not sign the photo array on July 21 because it was necessary that Morris do so during the course of a sworn statement. Detective Nanni arranged to have a stenographer present on July 23, 2006, because Morris had the day off from work.

      . The murder of the Victim occurred on October 1, 2005. South Florida was impacted by Hurricane Katrina in late August 2005 and Hurricane Wilma in late October 2005. Although the defendant asserted that the hurricane occurred in late October 2005, this explanation could not account for the presence of his DNA outside the club the day of the murder.

      . Although the court had not requested the polygraph examination of the defendant, the defendant had previously taken a polygraph test in conjunction with a motion for pretrial release.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    William PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-1869.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA and EMAS, JJ.
   EMAS, J.

William Pierre (“Pierre”) was charged in a three-count information with sexual battery, burglary of an occupied dwelling with an assault or battery, and kidnapping. He was convicted as charged and appeals the trial court’s denial of his motion for judgment of acquittal on the burglary count. We reverse because the trial court erred in denying Pierre’s motion for judgment of acquittal on that count.

In the early morning hours of September 5, 2006, the victim was sleeping on the couch and was awakened by. a man who had tied her up and covered her face. The man told her he had a gun, and he then proceeded to commit a sexual battery upon her. After the man left, the victim ran to a neighbor’s house for help.

The attack took place in an efficiency apartment where the victim had, for the past three weeks, been staying with her friend, Natalie. Natalie’s boyfriend, (Pierre), had also lived with the women in the efficiency during this time period, and the victim slept on the couch. Two weeks before the incident, Natalie told the victim she (the victim) would soon have to vacate the efficiency because Natalie and Pierre were moving into another house on the same property (“the main house”). In the week before the attack, Natalie and Pierre began moving their belongings from the efficiency into the main house, but as of the night of the attack, some of their personal items, including a television and a crib, remained in the efficiency. On the night of the attack, the victim returned to Natalie her key to the efficiency before going to sleep; the victim was moving out the next day. On the night of the attack, the victim locked the door of the efficiency (from the inside) before going to sleep.

Following a police investigation, Pierre was arrested and charged as described previously.

At trial, the victim and Pierre both testified. Viewing the pertinent testimony in a light most favorable to the State, the evidence at trial established:

— Pierre, Natalie, and the victim all lived together in the efficiency for some period of time prior to the incident;
— Several days before the incident, Pierre and Natalie began moving out of the efficiency and into the main house;
— On the night of the incident, the victim slept at the efficiency and Pierre slept at the main house;
— Some personal items of Pierre and his girlfriend remained in the efficiency, including a television and a crib;
— Pierre continued to go back and forth between the main house and the efficiency even after he and Natalie began staying at the main house;
— The victim was a guest of Natalie, and the victim slept on the couch while staying at the efficiency, including on the night of the incident;
— Pierre’s name was on the lease and he had signed the lease, which covered both the main house and the efficiency;
— The victim did not pay rent for the efficiency, was not on the lease, and did not know whether Pierre or Natalie (or both) paid the rent;
— On the night of the incident, Pierre had a key to the efficiency or had access to the key, and the victim was aware of this;
— There was no evidence of forced entry into the efficiency on the night of the incident;
— Natalie had told the victim that she (the victim) had to move out of the efficiency. The victim returned her key to Natalie before going to sleep on the night of the incident, and intended to move out the next day.

At the close of the evidence, the defendant moved for a judgment of acquittal on the burglary charge, arguing the State failed to prove a burglary because it did not establish that the victim had a posses-sory interest in the efficiency superior to Pierre’s. The trial court denied the motion, concluding that this was a question of fact for the jury.

We review de novo the trial court’s denial of a motion for judgment of acquittal. L.J. v. State, 971 So.2d 942 (Fla. 3d DCA 2007); Jones v. State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA 2001) (“[T]he decision to grant or deny a motion for judgment of acquittal is not one that calls for the exercise of judicial discretion.”).

In proving the crime of burglary, a victim’s ownership of the building or structure is a material element of the crime. D.S.S. v. State, 850 So.2d 459, 461 (Fla.2008); In re M.E., 370 So.2d 795 (Fla.1979). However, the concept of “ownership” for purposes of proving a burglary is different than commonly-understood concepts of ownership under general property law: “Ownership means any possession which is rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control.” Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000), abrogated on other grounds by Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001), (citing M.E., 370 So.2d at 797). Because the victim (and not Pierre) was actually living in the efficiency on the night in question, the mere fact that Pierre held some legal interest in the efficiency (as a lessee) is not itself determinative of his possessory interest, because the crime of burglary involves “a disturbance to habitable security and not to the fee.” Id. Therefore, Pierre’s legal interest as a lessee is but one factor among the totality of circumstances to be considered in determining whether the victim had a superior possessory interest on the night in question. See Harper v. State, 169 So.2d 512, 515 (Fla. 2d DCA 1964). Nevertheless, we are compelled by the evidence in this case to conclude that the state failed to establish the victim had a possessory interest which was superior as against Pierre.

In Whetstone, the First District considered the conviction of a defendant who had attacked his wife at a home they leased together. The trial court denied the defendant’s motion for judgment of acquittal, finding he had abandoned the premises prior to the attack, and that his wife had established exclusive possessory interest in the premises (although she too had moved out before the attack), because she continued to pay the rent. The First District reversed the trial court’s denial of the motion for judgment of acquittal, finding that “based on the evidence, we believe appellant’s possessory interest in the jointly-leased premises was equal to that of his wife at the time of the incident.” Id. at 343. The court noted that to prove abandonment of a leased premises “there must be ‘an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.’ ” Id. at 342.

In Washington v. State, 11 So.3d 980, 981 (Fla. 5th DCA 2009), the appellate court affirmed a trial court’s denial of a motion for judgment of acquittal, finding there was “a question of fact as to whether the victim’s possessory interest in the residence was superior to Appellant’s at the time of the burglary.” The victim and the appellant had lived together prior to the burglary, but she kicked him out of the home a few weeks before the burglary and changed the locks when he refused to give her the key. The appellant had taken all of his belongings, except a couple of stray clothing items. In addition, the victim asked the landlord to take the appellant off the lease and paid the rent herself.

Finally, in Breen v. State, 68 So.3d 365, 365 (Fla. 1st DCA 2011), the First District Court of Appeal held the trial court erred in denying appellant’s motion for judgment of acquittal, finding no abandonment, where “evidence established appellant entered the apartment he shared with his girlfriend, he was paying at least half the bills and expenses for the apartment, and his belongings were still in the apartment.”

The evidence at trial, viewed in a light most favorable to the state, failed to establish that the victim had a possessory interest that was superior to that of Pierre. The evidence established that Pierre had both a legal interest in the property (which was superior to the victim’s) and a posses-sory interest in the property that was at least equal to the victim’s temporary pos-sessory interest. Pierre had access to the efficiency, lived in the main house, which was a part of the property under the lease, had belongings which remained in the efficiency even on the date of the incident, and continued to go back and forth between the efficiency and the main house even after he and his girlfriend began living in the main house. The evidence failed to establish Pierre had “abandoned” his possessory interest in the efficiency.

The trial court erred in denying Pierre’s motion for judgment of acquittal on the charge of burglary with an assault or battery. We reverse and remand with instructions to vacate the conviction and sentence for the burglary and enter a judgment of acquittal on that count.

Reversed and remanded with instructions.

      . In the interest of privacy, the victim is not referred to by name in this opinion.

      . Pierre’s girlfriend, Natalie, did not testify at trial. However, the investigating detective testified to statements made to him by Natalie in the course of his police investigation.

      .Natalie was at work at the time of the incident.

      . Pierre testified to this, as did the investigating detective, who had obtained this information from Natalie.

      . Pierre testified that he paid the rent (for the efficiency and the main house) every month. The victim testified that she was not sure who paid the rent for the efficiency, but that it was possible both Pierre and Natalie (or one of them) paid for it. The victim also testified that Natalie and Pierre would sometimes get into fights; when that happened, Natalie would kick Pierre out of the efficiency and he would stay with his mother.

      .The detective testified that, according to Natalie, the "key to the efficiency was kept in the main part of the house because the defendant and the girlfriend were the actual leasers [sic] of the property, and so they were maintaining possession of the key.”


text:
    Glenda DAVIS, as Trustee of the James H. Davis Trust U/W/D 05/28/95 F/B/O Hays A. Davis, Appellant, v. ESTATE OF James H. DAVIS, Appellee.
    No. 3D11-560.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Cohen, Chase, Hoffman & Schimmel and Robert M. Sondak, Miami; Nolan K. Klein, Miami, for appellant.
    Adrian Philip Thomas, Fort Lauderdale, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

The Estate of James H. Davis (“Estate”) was closed in 1998 following a lengthy administration. During its administration, the Estate devised cash and real property to its two residual beneficiaries, the James H. Davis Trust U/W/D 05/28/95 F/B/O Hays A. Davis (“Trust”) and Brenda Webb (‘Webb”). Despite being closed, the Estate nevertheless pursued a claim against Marcus & Marcus, P.A. (“Marcus”). Approximately eight years later, Marcus obtained a judgment for attorneys’ fees against the Estate in the amount of $103,949.91, based upon an unaccepted offer of judgment. In 2006, following a motion by Marcus and a corresponding notice of claim relating to its judgment (“Claim”), the Estate was reopened.

Attorney Gregory Ebenfeld was eventually appointed personal representative of the Estate (“Personal Representative”). Shortly thereafter, upon motion by Glenda Davis, as Trustee of the Trust (“Trustee”), the probate court entered an order limiting the powers of the personal representative (“Limiting Order”). Specifically, the Limiting Order provided:

ORDERED AND ADJUDGED that any personal representative appointed to conduct the subsequent administration of this Estate should have no powers, duties, responsibilities, or authority ... to take possession or control of the decedent’s property, except to the extent that it may ultimately become necessary, as authorized in Florida Statute 733.812, to seek the return of assets or funds to pay the Marcus & Marcus Judgment.

The Personal Representative hired the law firm Snyder & Snyder, P.A. (“Snyder Firm”) to represent him. Approximately six months later, in an effort to negotiate a resolution of the Claim, and with the parties’ agreement, the court entered an order tolling the time to litigate the Claim. Despite the entry of the tolling order, and the Trustee’s willingness to fund her share of any settlement of the Claim, the Personal Representative hired a second law firm, the Law Offices of Adrian Phillip Thomas, P.A. (“Thomas”). Nearly nine months after being retained, Thomas filed a motion to withdraw, noting that it had been “discharged” by the Personal Representative. Thomas filed a motion for the award of attorneys’ fees from the Estate and a hearing was held.

According to the testimony of Mr. Shawn Snyder at the hearing, Thomas was retained “with the idea that it was becoming more and more likely that we would have to hire a civil litigator in order to defend against this.” Mr. Snyder further elaborated that “the initial purpose of Mr. Thomas’ firm was to go ahead and reclaim the assets,” and that “[t]he final reason why Mr. Thomas’ firm was brought in was due to the lack of communication with Mrs. Webb.” The probate court granted Thomas’ motion and entered a judgment in favor of Thomas in the amount of $36,980.36. This appeal followed.

We review the question of legal entitlement to attorney’s fees de novo. See Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007).

Section 733.613, Florida Statutes provides that

Except as otherwise provided by the will or court order ... a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(19) Employ persons, including, but not limited to, attorneys, accountants, auditors, appraisers, investment advisers, and others, even if they are one and the same as the personal representative or are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties

§ 733.613, Fla. Stat. (2008) (emphasis added).

Section 733.106, Florida Statutes, provides, in pertinent part, that “[a]ny attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” § 733.106, Fla. Stat. (2008). The right to recover attorney’s fees, however, is dependent upon whether the attorney has “rendered services that have ‘benefited the estate.’ ” Cushing v. Estate of Reynolds, 489 So.2d 1204, 1205 (Fla. 3d DCA 1986) (citation omitted); In re Estate of Rayhill, 489 So.2d 87 (Fla. 3d DCA 1986). Furthermore, “[t]he standard for awarding attorney’s fees from estate funds has long been well established. In order to be entitled to a reasonable attorney’s fee from estate funds, the lawyer’s services, must have been either necessary for or beneficial to the probate estate.” Heirs of the Estate of Waldon v. Rotella, 427 So.2d 261, 263 (Fla. 5th DCA 1983).

Here, the Personal Representative was “strictly limited to addressing the Marcus & Marcus claim.” It is undisputed that the Personal Representative, an attorney himself, hired the Snyder Firm as his counsel. However, the Personal Representative appears to have put the cart before the proverbial horse by retaining yet another law firm, to recapture assets for the payment of attorney’s fees in the purported anticipation of litigation that never actually came to pass. While Mr. Snyder testified as to the purported grounds for hiring Thomas, Thomas’ retainer agreement, states that he was “retained to represent [the Personal Representative] to recapture assets in order to have attorney’s fees and costs of the estate paid.”

While Thomas filed motions for the recapture of assets and to compel mediation as to his motions, we find nothing in the record demonstrating that Thomas’ services were either necessary or beneficial to the Estate. Accordingly, we find no support for the award of Thomas’ attorney’s fees from the Estate.

Reversed.


author: PER CURIAM.

text:
    Alexander OSPINO, Appellant, v. BEACH DEVELOPER, LLC, et al., Appellees.
    No. 3D11-1342.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Alexander Ospino, in proper person.
    Robert P. Frankel, Miami, and Ralph Mora, for appellees.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   PER CURIAM.

On the Court’s own motion following consideration of the record and initial brief, and pursuant to Florida Rule of Appellate Procedure 9.315(a), the final judgment below is affirmed.

Affirmed.


text:
    YU WU, Appellant, v. XIAOMING XING, Appellee.
    No. 3D11-1423.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Rehearing Denied Dec. 5, 2011.

      Irene Annunziata, Fort Lauderdale, for appellant.
    Xifen Yu, for appellee.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   EMAS, J.

After review, we determine the final judgment of dissolution of marriage is insufficient as a matter of law. Following a final hearing in which Appellant proceeded pro se, the trial court awarded appellee sole legal ownership of the marital home, the parties’ only significant asset, without articulating specific findings of fact, based on competent substantial evidence, to support this award, as required under Chapter 61. See § 61.075(3), Fla. Stat. (2008); Lee v. Lee, 56 So.3d 819 (Fla. 2d DCA 2011) (stating the trial court must articulate specific findings of fact to justify an unequal distribution); Guobaitis v. Sherrer, 18 So.3d 28 (Fla. 3d DCA 2009) (remanding case to trial court where final judgment failed to include specific findings to support disproportionate distribution of parties’ assets and liabilities); Austin v. Austin, 12 So.3d 314 (Fla. 2d DCA 2009); DeLillo v. DeLillo, 848 So.2d 454 (Fla. 4th DCA 2003); Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999).

In addition, the final judgment awarded permanent periodic alimony without articulating the basis for such an award. See § 61.08(2)(a)-(g), Fla. Stat. (2010); Jahnke v. Jahnke, 804 So.2d 513 (Fla. 3d DCA 2001); Austin, 12 So.3d at 317. Because the absence of statutory findings in the final judgment frustrates meaningful appellate review in this case, we reverse in part and remand for the trial court to amend its final judgment to include the requisite factual findings to support its award of the marital home, permanent periodic alimony and attorney’s fees and costs in accordance with Chapter 61, Florida Statutes. See Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001) (noting that reversal is appropriate where the absence of statutory findings in a final judgment frustrates the court’s appellate review). We find the other issues raised by Appellant to be without merit and affirm in all other respects the final judgment of dissolution.

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

      . We also note that the final judgment fails to provide that the award of permanent periodic alimony terminates upon the former wife’s remarriage or the death of either party. See § 61.08(8), Fla. Stat. (2010); Calderon, 730 So.2d at 403.

      . DeLillo, 848 So.2d at 454.


text:
    Nikki MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2408.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Nikki Martinez, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   PER CURIAM.

Nikki Martinez appeals the denial of his motion to mitigate his sentence under Florida Rule of Criminal Procedure 3.800(c), titled Motion for Modification of Sentence under Rule 3.800, which sought to reduce his two-year prison sentence to 364 days in county jail, followed by probation. A trial court’s denial of a motion to mitigate a sentence under Rule 3.800(c) is not appealable. See Concepcion v. State, 8 So.3d 1223, 1223 (Fla. 3d DCA 2009). Accordingly, we dismiss the appeal.

Appeal dismissed.


text:
    Gary Noel PARKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2575.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    C. Marie Brevitt-Schoop, Miami, and Orville McKenzie, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before, SALTER, and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006).


text:
    Freedom TYLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2280.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellee.
    Pamela Jo Bondi, Attorney General and Lunar Claire Alvey, Assistant Attorney General, for appellant.
    Before RAMIREZ, SUAREZ, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. Cumbie, 380 So.2d 1031, 1034 (Fla.1980).


text:
    TRAN CONSTRUCTION, INC., Appellant, v. MIAMI-DADE COUNTY, etc., Appellee.
    No. 3D10-2445.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    David J. Valdini, Fort Lauderdale, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eduardo W. Gonzalez, Assistant County Attorney, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 255.20(1)(a), Fla. Stat. (2008); Liberty Cnty. v. Baxter’s Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982); Exile v. Miami-Dade Cnty., 35 So.3d 118 (Fla. 3d DCA 2010).


author: CORTINAS, J.

text:
    Lazaro RANGEL, Appellant, v. Pablo TORRES, Appellee.
    No. 3D10-2824.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.

      Golden & Cowan and William H. Glasko, Miami, for appellant.
    Pablo Torres, in proper person.
    Before CORTINAS and ROTHENBERG, JJ., and LEVINE, Associate Judge.
   CORTINAS, J.

Appellant, Lazaro Rangel (“Rangel”), seeks review of a permanent injunction imposed against him by the trial court. We reverse.

In June 2010, appellee, Pablo Torres (“Torres”), filed a Petition for Protection Against Repeat Violence alleging three instances of violence by Rangel against him. Torres testified at the hearing on the petition that he had been told, by his mother and his brother, that two months prior to the filing of the petition, Rangel had been to Torres’ dwelling with a handgun on his person. Torres concluded, apparently because Rangel had not previously taken a gun to the residence, that Rangel must have come with the intent to kill him. Five years prior to the filing of the petition, Torres and Rangel had engaged in a physical altercation, the result of which was that Torres had been arrested. Without offering any details or timeframes, Torres also alleged that during verbal altercations with Rangel, Rangel had threatened to kill him. Torres also testified, after prompting by the trial court, that Rangel had once tried to kill Torres’ sister, an allegation he had not made in his petition. He offered no further elaboration as to the date of the purported attempt, nor any other details concerning this allegation.

No further evidence was admitted to support the issuing of the injunction. At the hearing, Rangel testified that all the allegations were false. Rangel also sought to elicit testimony from other witnesses, but was not allowed to do so by the trial judge. The trial court did not believe Rangel’s blanket denial, and issued the injunction.

To the extent that a trial court order imposing a permanent injunction rests on factual matters, appellate review is extremely deferential, and reversal is warranted only when abuse of discretion is found. However, review is more expansive when a trial court orders an injunction on solely legal grounds. “To the extent it rests on purely legal matters, an order imposing an injunction is subject to full, or de novo, review on appeal.” Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993). In this instance, taking the testimony of Torres as entirely credible, accurate and reliable, we find that, as a matter of law, Torres failed to meet the legal requirements for the issuance of a permanent injunction under section 784.046, Florida Statutes (2010).

To be granted an injunction for protection against repeat violence, a petitioner must show that he or she has actually been the victim of repeat violence. § 784.046(4)(a), Fla. Stat. (2010). “Repeat violence” involves at least “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b), Fla. Stat. (2010). “Violence” is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a), Fla. Stat. (2010).. Because nothing in Torres’ testimony alleged assault, battery, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury within six months prior to the filing of the petition, the injunction should not have been granted. Accordingly, we reverse.

Reversed.


text:
    David MOORE, a/k/a David Smith, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-290.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2011.
    David Moore, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

The defendant appeals an order denying his Florida Rule of Criminal Procedure 8.800 motion seeking prison credit for the time he served on the incarcerative portion of his probationary split sentence. Because the trial court has failed to attach documentation conclusively refuting the defendant’s allegation, we reverse and remand for further proceedings. The defendant was resentenced in December 2005, following a confession of error and opinion of this Court. Moore v. State, 840 So.2d 274 (Fla. 3d DCA 2003).

A defendant is entitled to credit for the time served on the incarcerative portion of a probationary split sentence. Yarbrough v. State, 926 So.2d 448 (Fla. 1st DCA 2006); Davis v. State, 869 So.2d 766 (Fla. 1st DCA 2004); Pierson v. State, 801 So.2d 1055 (Fla. 1st DCA 2001). While the court relied on documents showing credit for the time the defendant spent in county jail, the trial court did not attach documents that conclusively show that the defendant received credit for the time spent in prison on this charge, or that he waived any such credit at the time of resentencing. It is true that the pro se defendant referred to the credit that he was seeking as “jail credit” on the form motion. However, in the context of the motion as a whole it was clearly a request for credit for prison time served.

Reversed and remanded.


text:
    UNITED FUNDING, LLC, Appellant, v. Victor BRANDAO, et al., Appellees.
    No. 3D11-245.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      Kluger, Kaplan, Silverman, Katzen & Levine and Alan J. Kluger and Richard I. Segal, Miami, for appellant.
    Robert H. Cooper, Hallandale Beach, for appellee Nack Holding, LLC.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

United Funding, LLC (“United”) seeks review of an order denying its motion to vacate filed pursuant to Florida Rule of Civil Procedure 1.540. Because under the circumstances of this case we conclude that an abuse of discretion occurred, we reverse the trial court’s order and remand for re-entry of the three Final Judgments at issue.

On August 3, 2010, the trial court entered three Final Judgments (“Judgments”) for Attorney Fees and Costs against Stuart Kalb (“Kalb”) as Trustee and United. United argues that it did not receive copies of the Judgments until the time for filing a Motion for Rehearing already had passed and only three (3) days before the time to file a Notice of Appeal had lapsed. The trial court denied United’s motion.

In support of its argument, United relies on three cases: Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980) (holding that “mistake or inadvertence” under 1.540(b) occurred due to the court’s failure to mail copies of the judgment to the parties and no substitution for that formal notice was presented); Bien-Aime v. MSRH Board Walk, LLC, 41 So.3d 1117 (Fla. 4th DCA 2010) (finding that the court abused its discretion in denying appellant’s 1.540 motion to vacate the order when appellant never received a copy of the final order of dismissal and appellee filed no evidence to rebut the argument); and Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298 (Fla. 4th DCA 1998) (holding that the court abused its discretion in denying appellant’s motion to vacate when no copy of the court’s written order was served on appellant until more than two months after the order of dismissal, when appellant received a copy from appellee’s counsel). We find these cases persuasive.

Appellee argues, however, that even if United lacked formal notice, United received actual knowledge of the Judgments when Kalb filed an Emergency Motion to Vacate the Judgments on August 20, 2010, thirteen (13) days before the deadline for appeal. Appellee asserts that this actual knowledge cures the lack of formal notice. We disagree. This type of notice is “no substitute for the formal notice requirement imposed by Rule 1.080(h)(1).” Gibson, 381 So.2d at 851.

Rule 1.080(h)(1) requires that conformed copies of all orders must be mailed to the parties. When a party demonstrates that he or she did not receive a copy of a final order, the trial court abuses its discretion in refusing to vacate and re-enter that order to permit that party to appeal.

Bien-Aime, 41 So.3d at 1117 (citations omitted).

In the instant case, United received a copy of the order after the time for rehearing had passed, but with three days remaining to file an appeal. We find that the untimely receipt of the trial court’s order, for no cause attributable to United, left United with an unreasonably short time frame within which to determine whether to seek a full appeal. Further, by receiving the order after the expiration of the ten-day period for filing a motion for rehearing, United was prevented from seeking certain relief available under that rule but not on appeal. See, e.g., Fla. R. Civ. P. 1.530(b) (upon a motion for rehearing, trial court has authority to take additional testimony).

Because the evidence before this Court supports United’s argument that it did not receive copies of any of the three orders at issue, and no contrary evidence was produced, we find that the trial court abused its discretion in refusing to vacate and reenter the three final judgments for fees and costs. See Bien-Aime, 41 So.3d at 1117. As we are reversing the trial court’s denial of the Rule 1.540(b) motion, we need not address the remaining issues raised by United on appeal.

Reversed and remanded.


author: PER CURIAM. SALTER, J.

text:
    Ofelia L. LUIS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D10-1093.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Ofelia L. Luis, in proper person.
    M. Elaine Howard, Deputy General Counsel, Florida Unemployment Appeals Commission for appellees.
    Before RAMIREZ, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Ms. Ofelia Luis, a non-lawyer representing herself, appeals Florida Unemployment Appeals Commission and Agency for Workforce Innovation orders finding that her unemployment compensation benefits appeal was filed a day late. Based on the findings of fact by the appeals referee at the administrative level, we are obligated to affirm the dismissal of her appeal. Section 443.151(3), Florida Statutes (2010); de la Torre v. Siguanea, LLC, 10 So.3d 1164 (Fla. 3d DCA 2009).

Affirmed.

SALTER, J.

(specially concurring).

I concur that we are obligated to affirm the order by the Commission and findings of the referee in this case. I write to provide additional facts and analysis, however, for the benefit of the Agency for Workforce Innovation, its adjudicators and appeals referees.

Ms. Luis was a housekeeper at a Holiday Inn Hotel. She maintains that on July 9, 2009, she told her supervisor that she was not feeling well and could only work until midday. She alleges that her supervisor told her that was not a problem, but the next day she was not allowed to clock in to work and was told that the employer had no more work for her.

She applied to the Agency for unemployment benefits and, based on her work history and base wages, received a determination of eligibility for weekly benefits of $144.00 on August 26, 2009. With no apparent basis in the record, a computer-generated notice of determination nearly four months later (December 16, 2009), determined that she was ineligible because she “failed to respond to the Agency’s request for information to substantiate good cause attributable to the employer for quitting the job.” This notice also advised her that she would need to return benefits previously received, $1,872.00, and that any appeal would have to be filed “within 20 calendar days after the mailing date of this determination.” Her appeal was filed one day late and thus was dismissed by the appeals referee below.

Though compelled to join in affirming the dismissal of Ms. Luis’s untimely appeal, I note two recurring problems which call into question the integrity of the administrative appellate process in unemployment compensation cases. First, when the adverse determination was provided to Ms. Luis (and later, when she appealed and a notice of telephonic hearing was sent to her), the record indicates that the adjudicator and Office of Appeals did not include copies of the correspondence, employer responses, or any investigative report on which the adjudicator’s single-sentence adverse determination was based. Because this makes it difficult for the non-attorney claimant to (a) frame his or her written “appeal explanation” on the Agency’s form, and (b) understand what she or he must do to overcome the adjudicator’s conclusion during a telephonic hearing before the referee, I have previously criticized this omission, also noting that the Agency itself states in its Form UCA Bulletin 6E that “copies of all documents available to the referee are enclosed with the Notice of Telephonic Hearing.” Lopez v. A Aaron Super Rooter, Inc., 54 So.3d 575, 578 (Fla. 3d DCA 2011).

Second, when the Agency initially issues a wage transcript and determination of eligibility and commences paying benefits, but then takes several months to issue an adverse administrative adjudication (including a demand for the return of benefits paid in the interim), it can be argued that the delay “substantially impaired the fairness of the proceedings.” Arensen v. Fla. Unemployment Appeals Comm’n, 48 So.3d 936, 940 (Fla. 1st DCA 2010) (reversing and remanding for due process considerations including a ten-month delay between the initial determination and a subsequent adverse administrative determination). Though acknowledging the Agency’s heavy burden during the current economic recession, there is something palpably unfair about a system in which a claimant, already dealing with the trauma of losing a job and income, is allowed only 20 days (including the transit time for the Agency’s notice) within which to file her or his appeal (or be jurisdictionally barred), versus the open-ended time (here, almost four months) allowed the Agency to change its mind and reverse its determination. I recognize, however, that this disparity ultimately is a matter for the Legislature rather than the judicial system, and I therefore concur in the result in this appeal.

      . The record does not establish who alleged that she "quit,” what information was requested, or when it was requested. Any documents from the employer, statements taken by the Agency adjudicator, or facts purportedly required to have been submitted by Ms. Luis, were not identified in the December notice of determination terminating benefits, and are not in the record before us.


text:
    Anthony FIGUEROA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-27.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS and LAGOA, JJ.
   CORTINAS, J.

This is an appeal challenging the jury instructions given by the trial judge for manslaughter as fundamental error. The issue on appeal was squarely addressed and rejected by the Second District in Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011) and the Fourth District in Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010).

In Morgan, as in this case, the trial court gave the amended 2008 manslaughter instruction that “included language clarifying that a conviction for attempted manslaughter by act does not require proof of an intent to kill.” Id. at 863. The Fourth District held that the giving of the 2008 pattern jury instruction on manslaughter did not constitute fundamental error. Id. The fact that, in 2010, the manslaughter instruction was further clarified does not render the giving of the 2008 instruction fundamental error. The issue is simply whether or not the 2008 manslaughter instruction sufficiently addressed the concerns raised in State v. Montgomery, 39 So.3d 252 (Fla.2010).

In Daniels, the Second District also addressed the issue before us and correctly concluded that the giving of the 2008 amended instruction did not constitute fundamental error. Daniels, 72 So.3d at 229-30. In Daniels, the Second District relied on our own court’s opinion in Moore v. State, which held that the 2008 amended instruction “materially differs from the instruction given in Montgomery.” Id. (citing Moore v. State, 57 So.3d 240, 244 (Fla. 3d DCA 2011)). In Daniels the Second District analyzed the differences between the jury instruction in Montgomery and the 2008 and 2010 amended instructions, concluding that both amended instructions did not require the jury to find that the defendant intended to kill the victim. Daniels, 72 So.3d at 229-30.

In Montgomery, the Florida Supreme Court addressed the pre-2008 manslaughter instruction and found that the giving of that instruction constituted fundamental error because it led jurors to believe that the State was required to prove that the defendant intended to kill the victim. Montgomery, 39 So.3d at 257. Especially relevant to our inquiry is the fact the Court in Montgomery distinguished the instruction in that case from the 2008 as well as the 2010 manslaughter instructions. The Court stated as follows:

Since Montgomery’s trial, this Court has approved an amendment to the standard jury instruction on manslaughter by act. The amendment, approved by this Court in December of 2008, added additional language to clarify that the requisite intent for manslaughter by act is the intent to commit an act that caused the death of the victim:
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007).
In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008). Thus, the relevant intent is the intent to commit an act which caused death, and the State is not required to prove that the defendant intended to kill the victim.

Montgomery, 39 So.3d at 257 (emphasis added).

In so doing, the Supreme Court clearly and unequivocally found that the 2008 amendment to the instruction satisfied the concerns they raised in the Montgomery opinion. Id. The 2008 amendment specifically instructed jurors that the intent that is required to be proven is “only an intent to commit an act which caused death.” This is clearly different than the prior version of the instruction, which did not clarify the relevant intent requirement for the crime of manslaughter.

Recently, in Solano v. State, 76 So.3d 897, 898 (Fla.2011), the Florida Supreme Court explained its holding in Montgomery as follows:

In State v. Montgomery, we held that because defendant Montgomery, who was convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error in his case because it erroneously required the jury to find that the defendant intentionally caused the death of the victim.

Thus, once again, our Supreme Court expressly stated that its concern with the pre-2008 manslaughter jury instruction was that it erroneously required that the defendant intentionally caused the victim’s death, something that the 2008 amendment clearly and unequivocally corrected. Id.

We are aware of the First District’s holdings in Noack, Riesel, and Pryor. Noack v. State, 61 So.3d 1208 (Fla. 1st DCA 2011); Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010); Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010). Riesel held that the instructions at issue were not materially distinguishable from the instructions given in Montgomery. Riesel, 48 So.3d at 886. As such, Riesel is clearly in conflict with the Second’s District’s decision in Daniels as well as the Fourth District’s opinion in Morgan.

The Riesel court did not at all consider that the Supreme Court, in Montgomery, specifically referenced the amended 2008 jury instruction and found that instruction to be materially different insofar it makes clear that “the relevant intent is the intent to commit an act which caused death, and the State is not required to prove that the defendant intended to kill the victim.” Montgomery, 39 So.3d at 257.

Based on our holding, we agree with the Second District’s opinion in Daniels and the Fourth District’s opinion in Morgan, and certify express and direct conflict with the First District’s opinions in Noack, Riesel, and Pryor.

Affirmed.


author: LEVINE, J.

text:
    Earleen TUCKER, Appellant, v. Patricia KORPITA, as Personal Representative of the Estate of Andrew Korpita, Appellee.
    No. 4D10-3292.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Bradley G. Harper of Olds, Stephens & Harper, P.A., West Palm Beach, for appellant.
    William T. Abel of Adams, Adams & Baca, West Palm Beach, for appellee.
   LEVINE, J.

The issue in this case is whether appellant was entitled to an intervening cause jury instruction. We find, under the facts of this case, that the trial court erred by not instructing the jury as requested. We reverse and remand.

In December 2007, appellee rear-ended appellant while driving in West Palm Beach. Appellant filed a claim for negligence. Appellee admitted negligence and a trial ensued only on the issues of causation and damages.

At trial, appellant called several expert witnesses. Dr. Robert Simon testified about performing a minimally invasive dis-cectomy on appellant. Dr. Simon started treating appellant in 2008 regarding pain in her lower back. After appellant visited Dr. Simon on several occasions with continuing neck and back pain, the doctor performed a percutaneous discectomy on appellant. Appellant responded positively to the procedure, and the doctor reduced the impairment rating from 12% to 7%.

Dr. Jane Bistline testified about performing a lumbar discogram and epidural steroid injections on appellant. The doctor diagnosed three bulging discs, as well as a herniation in the disc between the lumbar spine and sacrum. In performing the discogram, the disc between the lumbar spine and sacrum tested positive for pain. Dr. Bistline opined that appellant suffered a permanent injury. On cross-examination, appellee asked Dr. Bistline whether the spinal wand used by Dr. Simon in the discectomy had “been deemed not to be reasonable or necessary for the treatment of low back pain.” Dr. Bistline stated that this particular wand was “really good” for low back pain.

An expert witness for appellee, Dr. Jordan Grabel, opined that the small abnormalities suffered by appellant were not caused by the 2007 car accident. Dr. Gra-bel testified that the accident did not cause permanent injury to appellant and that surgery was not warranted. According to Dr. Grabel, appellant suffered from spon-dylolisthesis in the lower lumbar spine. Dr. Grabel opined that the crash did not exacerbate any preexisting condition and that the percutaneous discectomy was entirely unnecessary.

Dr. Robert Kagan, a radiologist, reviewed appellant’s MRI results. Dr. Kagan testified that on appellant’s MRI from 2004, there was a “problem” between the L5 vertebra and the sacrum, as well as some “slippage” to the L5 vertebra. Dr. Kagan testified that, in his opinion, appellant’s issues appeared to be “congenital.” Dr. Kagan did not note any condition that would improve or benefit from a percuta-neous discectomy. Dr. Kagan testified on cross-examination that a percutaneous dis-cectomy could accelerate the degeneration in appellant’s lumbar spine.

Appellee asked Dr. Kagan whether appellant would “benefit from having some type of percutaneous diskectomy performed.” Dr. Kagan responded,

No, not at all. Because percutaneous diskectomy is meant for a herniated disk. Diskectomy means to remove a herniated disk. There was never a herniated disk to begin with here, so you’re not going to help the situation with a percutaneous diskectomy. This is a pseudo herniation, it’s not a herniation.

On cross-examination, Dr. Kagan elaborated further that the disc “looks just like a herniation, but it’s not called a herniation. It’s called a pseudo herniation.” Dr. Kagan concluded that since appellant does not have a herniation, then a percutaneous discectomy would be “inappropriate” since “you don’t do a percutaneous disconnect when someone has spondylolisthesis. Forget about the herniation. Spondylolisthe-sis does not respond to percutaneous dis-kectomy.” Dr. Kagan concluded that a “[pjercutaneous diskectomy” would be “totally contraindicated in this patient. Wouldn’t do anything except accelerate the degenerative process, which would make things worse or could make things worse clinically.”

At the jury charge conference, appellant requested the following jury instruction derived from Emory v. Florida Freedom Newspapers, 687 So.2d 846 (Fla. 4th DCA 1997):

Where one who has suffered personal injuries as a result of the negligence of another seeks medical treatment from a physician or surgeon, and the injured person’s injuries are thereafter aggravated or increased by the negligence, mistake or lack of skill of such treatment, the law regards the negligence of the one causing the original injury as the proximate cause of the damages flowing from the later negligent, unskillful, or unsuccessful treatment of the physician or surgeon.

The trial court denied the instruction. The jury found appellant did not suffer any permanent injury as a result of the accident, but still awarded appellant $17,700 for past medical expenses and lost wages. This appeal ensues.

“In formulating jury instructions, the trial court is accorded broad discretion, and ‘its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the jury instructions were reasonably calculated to confuse or mislead the jury.’ ” Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So.3d 991, 997 (Fla. 4th DCA 2010) (citation omitted).

“[A] party is entitled to have the jury instructed upon his theory of the case when there is evidence to support the theory.” Seaboard Coastline R.R. v. Addison, 502 So.2d 1241, 1242 (Fla.1987). In order to demonstrate reversible error in a trial court’s exclusion of a proposed instruction, “appellant must prove that the requested instructions contained an accurate statement of the law, that the facts in the case supported a giving of the instructions, and that the instructions were necessary for the jury to properly resolve the issues in the case.” Brown Distrib. Co. of W. Palm Beach v. Marcell, 890 So.2d 1227, 1232 (Fla. 4th DCA 2005) (citation omitted).

Specifically, in this case, appellant claims that the testimony from appel-lee’s expert witness that the percutaneous discectomy was unnecessary or improper for appellant’s condition necessitated the court giving a proffered jury instruction on an intervening cause. “The law is well-settled that the initial tortfeasor may also be held liable for subsequent injuries caused by the negligence of health care providers.” Emory, 687 So.2d at 847.

The Florida Supreme Court stated in Stuart v. Hertz Corp., 351 So.2d 703, 707 (Fla.1977):

Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor.

(quoting J. Ray Arnold Lumber Corp. of Olustee v. Richardson, 105 Fla. 204, 141 So. 133 (1932)). See also Nason v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010) (finding that defense expert’s testimony attacking reasonableness and necessity of physician’s treatment, combined with the denial of plaintiffs requested jury instruction, constituted reversible error); Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994) (same).

We, therefore, find that the specific testimony presented to the jury mandated the intervening cause instruction as requested. The specific testimony in this case went beyond merely questioning the medical advisability of the treatment advocated by appellant’s experts, or questioning the wisdom of the diagnosis, prognosis, or causal relationship between the purported injuries and the alleged incident. Rather, ap-pellee’s experts concluded that the treatment utilized by appellant’s experts “would make things worse or could make things worse clinically.” The former scenario may not generally require an intervening cause instruction, while the latter situation, like in the case at bar, should result in the instruction being given as requested.

As in Emory, the admission of testimony regarding inappropriate medical treatment, and the fact that it specifically could “accelerate the degenerative process” in appellant according to the appel-lee’s expert witness, “created a reasonable possibility that the jury was indeed misled” “in the absence of a jury instruction addressing the issue.” 687 So.2d at 848. As such, we reverse and remand for a new trial.

Reversed and remanded.

TAYLOR and HAZOURI JJ., concur.

      . Appellee further claims that the intervening cause instruction should not be given since appellant “invited” the testimony regarding the necessity of the percutaneous discectomy. It is well-settled that
      when evidence is presented that the plaintiff's injuries are the result of inappropriate medical treatment, the jury must be instructed that the original tortfeasor is liable for any aggravation of the plaintiff's injuries caused by subsequent medical treatment for those injuries. Even if ... plaintiff's counsel "opened the door” to such evidence, the evidence was before the jury, and the jury should have been properly instructed on the law that applied to that evidence.

        Doubek v. Wal-Mart Stores, Inc., 804 So.2d 347, 349 (Fla. 4th DCA 2001) (citations omitted). Therefore, regardless whether appellant "invited” the testimony or not, the instruction would still be mandated.


text:
    Andre BISHRAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2032.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Morsman, 394 So.2d 408, 409 (Fla.1981) (“Under Florida law it is clear that one does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time.”); Nieminski v. State, 60 So.3d 521, 527 (Fla. 2d DCA 2011) (“[I]f the address ... had been a more traditional lot in a residential neighborhood surrounded by a white picket fence and a gate that closed but did not lock, no one would reasonably suggest that the knock and talk was improper or that officers were required to describe the picket fence in the affidavit used to obtain the warrant.”); see generally Shapiro v. State, 390 So.2d 344, 347 (Fla.1980) (“In order for [the defendant] to claim that his fourth amendment rights were violated, he must first establish that he had a reasonable expectation of privacy to be free from this particular intrusion.”).


author: SCHWARTZ, Senior Judge.

text:
    L.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1431.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The juvenile appellant was adjudicated delinquent on the basis of several violations of the law only one of which is challenged on this appeal. We uphold his contention that he was improperly found guilty of carrying a concealed weapon under section 790.01(1), Florida Statutes (2009). The so called “weapon” was a BB gun which lacked a C02 air cartridge, was not loaded with pellets, and as to which there was no testimony describing its operation or the nature and characteristics of the injuries, if any, it was capable of inflicting. As we held in the virtually identical case of E.S. v. State, 886 So.2d 311 (Fla. Bd DCA 2004), this showing was insufficient as a matter of law to establish, as required, that the instrument was indeed a “deadly weapon.” § 790.001(13), Fla. Stat. (2009) (defining “weapon” as any of several enumerated items not including a BB gun or “other deadly weapon”). There, as here, the BB gun had no cartridge or pellets, and, although it was introduced in evidence, there was no testimony regarding its operation. We follow E.S. in reversing the challenged adjudication. Accord K.C. v. State, 49 So.3d 841, 843 (Fla. 4th DCA 2010) (reversing adjudication on the ground that “there was no evidence that [the BB gun] was loaded and no testimony describing the BB gun’s operation or the nature and character of injuries it was capable of inflicting”).

The remaining adjudications are affirmed.

Affirmed in part, reversed and remanded for dismissal in part.

      . On this issue, the arresting officer testified only that a BB gun ''[i]s propelled by an air cartridge,” and "the bullets for this gun are actually pellets that are loaded from the top.”


text:
    Rebekah PARIZ, Appellant/Cross-Appellee, v. Helen M. COLON, individually, and as Trustee of the Helen M. Colon Revocable Living Trust and Helen M. Colon Revocable Living Trust, Appellee/Cross-Appellant.
    No. 3D10-843.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    S. Peter Capua; and Roy D. Wasson, Miami, for appellant/cross-appellee.
    Joseph B. Heimovics, Boca Raton; and Gene Reibman, Plantation, for appel-lee/cross-appellant.
    Before SALTER, and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Rebekah Pariz appeals the trial court’s Amended Final Judgment awarding her a $385,000 equitable lien on real property located in Coral Gables, Florida, on her breach of fiduciary duty claim against the defendant Helen M. Colon, individually and as trustee of the Helen M. Colon Revocable Living Trust. We reverse and remand.

We agree with Pariz that the trial court was under the erroneous impression that it could not order the transfer of title of the subject property to Pariz. The trial court had in rent jurisdiction over the property because the property was located in Miami-Dade County, Florida. See Ruth v. Dep’t of Legal Affairs, 684 So.2d 181, 185 (Fla.1996). In addition, a court sitting in equity has the discretion to award specific performance. See Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005). Here, the trial court had the jurisdiction and discretion to order in the final judgment that the title to the subject property be conveyed to Pariz. See Alt. Dev., Inc. v. St. Lucie Club & Apartment Homes, 608 So.2d 822 (Fla. 4th DCA 1992).

Accordingly, we reverse the Amended Final Judgment and remand this cause to the trial court for reconsideration, in light of its in rem jurisdictional and equitable powers. The trial court is to reconsider, based on the evidence and equities presented, whether the appropriate remedy is to award Pariz the equitable lien on the property or whether title to the subject property should be transferred to Pariz. We further conclude Colon’s cross-appeal to be meritless.

Reversed and remanded with instructions.


text:
    Jasper LITTLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2463.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Jasper Little, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Rejecting the holding of Shelton v. Sec’y, Dep’t of Corrs., 802 F.Supp.2d 1289 (M.D.Fla.2011) and State v. Washington, No. F11-11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006), that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord, e.g. Parker v. State, 77 So.3d 707, 2011 WL 5375081 (Fla. 3d DCA 2011) (per curiam affirmance citing Taylor); Holcy v. State, — So.3d -, 2011 WL 5299328 (Fla. 5th DCA 2011) (per curiam affirmance citing Flagg); Edwards v. State, 77 So.3d 676, 2011 WL 5061344 (Fla. 3d DCA 2011) (per curiam affirmance citing Taylor); Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010), rev. denied 51 So.3d 465 (Fla.2010); Miller v. State, 35 So.3d 162 (Fla. 4th DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is

Affirmed.

      . Taylor states:
      The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, 928 So.2d 336 (Fla.2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not.
      929 So.2d at 665.


author: SUAREZ, J.

text:
    Modesto LEON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1916.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Ricardo Corona, Coral Gables, and Juan Freire, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   SUAREZ, J.

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


text:
    Thelma Cecilia WASSMANN, Appellant, v. Michel A. BUHLER, Appellee.
    No. 3D11-1634.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Raymond J. Rafool, Coral Gables, for appellant.
    Orshan & Fajardo, Robert D. Orshan, and Eliot R. Weitzman, for appellee.

      Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

No abuse of discretion has been demonstrated in the trial court’s award of temporary attorney’s fees in this dissolution case. See Fisher v. Bond, 906 So.2d 1248, 1249 (Fla. 3d DCA 2005); Young v. Young, 898 So.2d 1076 (Fla. 3d DCA 2005).

Affirmed.


text:
    William Ray STOKES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-598.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before CORTINAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Stephens v. State, 787 So.2d 747, 755-56 (Fla.2001); Downer v. State, 375 So.2d 840, 843 (Fla.1979).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. H REHAB, INC. a/a/o Paula A. Villa, Respondent.
    No. 3D11-965.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.
    Seipp & Flick and Douglas H. Stein, Miami, for petitioner.
    Stuart B. Yanofsky, Plantation, for respondent.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

The Petitioner, State Farm Mutual Automobile Insurance Company (“State Farm”), petitions for Writ of Certiorari to review the decision of the circuit court of the Eleventh Judicial Circuit, in and for Miami-Dade County, sitting in its appellate capacity. That court’s decision affirmed the trial court’s order granting the Respondent’s, H Rehab Inc., a/a/o Paula A. Villa, Plaintiff below, motion to compel production of State Farm’s surveillance video prior to allowing State Farm the opportunity to depose the subject of the video. For the second time as between these two parties, we grant State Farm’s petition for certiorari, and quash only that part of the order below granting the Plaintiffs motion for production, as the circuit court violated a clearly established principle of law. See Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980) (holding that the trial court’s discretion to allow discovery deposition before disclosure is “an appropriate middle road to ensure that all relevant evidence reaches the trier of fact in a fair and accurate fashion”).

We, therefore, grant the petition, quash only that part of the order under review that granted the Plaintiff/Respondent’s motion to compel production of the surveillance video/DVD, and remand with instructions that State Farm is not required to produce the surveillance video/DVD pri- or to taking the deposition of the Plaintiff and insured/Plaintiffs assignor, Paula A. Villa. The above issue was the only portion of the trial court’s order appealed to the Appellate Division of the Eleventh Judicial Circuit and the only issue raised in this second tier certiorari. We thus express no opinion as to the remainder of the order under review.

      . And determining the identical issue; see State Farm Fire & Cas. Co. v. H Rehab Inc. a/a/o Martha Alava, 56 So.3d 55 (Fla. 3d DCA 2011) (holding that the trial court could not order the insurer to produce surveillance video before giving the insurer an opportunity to depose the subjects of the video).

      . Item 4 of the September 9, 2008, Order on review, Case No. 07-21373 SP 25(03).


author: FERNANDEZ, J.

text:
    TERRA TITLE CORPORATION, INC., Appellant, v. Andrew B. HELLINGER, Receiver, Appellee.
    No. 3D10-3439.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      David J. Feingold & Kam, and Neil Rose, Hollywood, for appellant.
    Katz, Barron, Squitero, Faust, and H. Eugene Lindsey, III, Miami, for appellee.
    Before, SALTER, and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Terra Title Corporation, Inc. appeals the trial court’s order granting the receiver’s, appellee Andrew B. Hellinger’s, amended motion to compel Terra Title to transfer escrow funds. We treat this appeal from this non-final order as a petition for writ of certiorari, pursuant to rule 9.100, Florida Rules of Appellate Procedure, and deny the petition because there is no departure from the essential requirements of the law.

iStar Tara, LLC filed the underlying foreclosure suit against developer Royal Palm Miami Holding, LLC upon the default of a promissory note for a condominium project for which Terra Title was the escrow and closing agent. Hellinger, the court appointed receiver for the project, requested that Terra Title turn over documents relative to the escrow funds and transfer escrow funds to the new escrow agent. Terra Title ultimately produced documents, but it did not fully transfer escrow funds. The trial court thus ordered Terra Title to transfer escrow funds.

The order under review does not result in any of the circumstances for which certiorari relief is warranted. The applicable standard of review is whether the challenged order constitutes a departure from the essential requirements of the law which causes material injury throughout the lawsuit that leaves the petitioner with no other adequate remedy to review the alleged erroneous order. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Terra Title is mistaken that the order deprives it of its immediate right to the possession of the escrow funds in violation of the escrow and purchaser agreements. The receiver acted well within his broad authority, and the transfer of escrow funds is necessary and relevant to an effective accounting of the real and personal property encumbered by the mortgage in the underlying foreclosure action. Further, no irreparable injury has yet occurred, and none is certain to follow.

Accordingly, we deny the petition.


author: RAMIREZ, J.

text:
    Carlos MONTESINOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2687.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2011.

      Carlos Montesinos, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   RAMIREZ, J.

We treat Carlos Montesinos’ petition for belated appeal as an appeal from the summary denial of his postconviction relief under Florida Rule of Criminal Procedure 3.850, and reverse for a determination on the merits.

After a trial, Montesinos was convicted and sentenced to life imprisonment. His appeal from the conviction and sentence was affirmed by this Court and the mandate was issued on January 9, 2008. Montesinos v. State, 972 So.2d 193 (Fla. 3d DCA 2007). Thereafter, Montesinos filed a motion for postconviction relief under Rule 3.850, which subsequently he attempted to amend. Within the two-year period, Montesinos requested an extension of time to file the amended motion. However, the trial court denied his request and has not ruled on the amended motion which Montesinos nonetheless filed. Under Spera v. State, 971 So.2d 754 (Fla.2007), Montesinos was entitled to amend his postconviction motion. Accordingly, we reverse and remand for the trial court to determine the merits of Montesinos’ postconviction motion.

Reversed and remanded.


author: LAGOA, J.

text:
    KJB VILLAGE PROPERTY, LLC, and Siam Bagel, Inc., Appellants, v. CRAIG M. DORNE, P.A., and Craig M. Dorne, Appellees.
    No. 3D11-231.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Rehearing Denied Feb. 2, 2012.

      Warren R. Trazenfeld, Miami, for appellants.
    Beasley & Demos and Stephanie E. Demos, Miami, and Jennifer Perez Alonso, for appellees.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

KJB Village Property, LLC, and Siam Bagel, Inc. (collectively “Appellants”), appeal from an Order Granting Motion for Entry of Final Judgment and Final Judgment in Favor of Defendants Craig M. Dome P.A. and Craig M. Dome, Esq. (collectively “Dome”). For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Jerome Berman (“Berman”) purchased Siam Bagel, a store located in the Shoppes of North Bay Village (“Shoppes”). When Berman purchased Siam Bagel, he took over the existing lease, which ran several more years. Dome represented Berman in the purchase of Siam Bagel.

When Berman bought Siam Bagel, he believed the shopping plaza was going to be improved or updated; Shoppes, however, intended to develop the property into condominium units. On or about July of 2002, the principal of Shoppes, Scott Greenwald (“Greenwald”), introduced himself to Berman, and later offered $100,000 for Siam Bagel’s early termination of its lease. Berman refused that offer and countered with a demand for $500,000, which Greenwald did not accept. Green-wald then offered 1600 square feet of retail space in exchange for early termination of Siam Bagel’s lease, which Berman accepted. When it came time to memorialize the agreement, however, Greenwald instead offered Berman one of ten condominium units to be built on the property. Berman discussed this offer with Dome, and Ber-man ultimately agreed to accept Unit 1105.

In the course of negotiating the final agreement, Berman communicated directly with Greenwald. Counsel for Shoppes drafted the first lease termination agreement. In the process of finalizing the negotiations, Dome wrote to Shoppe’s attorney and requested a copy of the agreement for his review. Berman reviewed the multiple drafts of the Agreement exchanged between the parties, participated in the revisions to the draft, and read the final draft (at least in part) before its execution.

In the course of the negotiations, Ber-man contemplated the possibility that there could be a lien on the property when he received it. Thus, Berman negotiated that Siam would receive a condominium unit that was “free and clear” of any liens or mortgages. Dome told Berman that “marketable title” meant “free and clear,” and Berman admits he was warned by Dome that it was possible that the unit would not be delivered if the condo was never built. Despite the warning, Berman decided to go through with the deal, which included a provision requiring Shoppes to “transfer and convey fee simple marketable title in and to Unit 1105” to Siam Bagel within sixty days from the date of the certificate of occupancy. In the event Shoppes did not deliver the Unit within forty-two months of the lease termination date, Shoppes agreed to payment of $443,900.

Near the end of the forty-two months, the new owner of the property, Lexi Development (whose principal was also Greenwald) delivered a Special Warranty Deed conveying Unit 1105 to KJB Village Property LLC (an entity owned by Ber-man). This deed failed to disclose that Unit 1105 was encumbered by a construction loan mortgage. As a result of the undisclosed construction loan, Siam and KJB sued Shoppes, Lexi and Greenwald (collectively, the “Developer”) for the failure to deliver a unit free of any encumbrances and for their failure to disclose the mortgage at the time of conveyance. Appellants, however, dropped the lawsuit against the Developer in part because Greenwald advised Berman that he might go into bankruptcy and “was not going to pay [Berman] a penny no matter what.”

On September 25, 2009, Siam filed a complaint against Dome alleging legal malpractice. Subsequently, Dome filed a Motion for Final Summary Judgment, arguing that Appellants could not establish the requisite redressable harm and proximate causation needed to prevail on its malpractice claim. The trial court subsequently granted the motion and entered an Order Granting Motion for Entry of Final Judgment and Final Judgment in Favor of Defendants. This appeal followed.

II. ANALYSIS

In any legal malpractice suit, the plaintiff is required to prove: 1) the attorney’s employment; 2) the attorney’s neglect of reasonable duty; and 3) that such negligence resulted in and was the proximate cause of actual loss to the plaintiff. See Maillard v. Dowdell, 528 So.2d 512, 514 (Fla. 3d DCA 1988). If the client cannot show that it would not have suffered harm “but for” the attorney’s negligence, the client will not prevail. See, e.g., Oteiza v. Braxton, 547 So.2d 948, 949 (Fla. 3d DCA 1989) (“[A] party who has been denied his right to appeal due to an attorney’s failure to timely file a petition for review to the appropriate court must show that but for the attorney’s negligence, the appeal most probably would have been successful.”). Proximate cause may be determined as a matter of law where “the evidence supports no more than a single reasonable inference.” City of Ocala v. Graham, 864 So.2d 473, 478 (Fla. 5th DCA 2004). Moreover, “no cause of action for legal malpractice ‘should be deemed to have accrued until the existence of re-dressable harm has been established.’” Bierman v. Miller, 639 So.2d 627, 628 (Fla. 3d DCA 1994) (quoting Diaz v. Piquette, 496 So.2d 239, 240 (Fla. 3d DCA 1986)).

To prevail on a motion for summary judgment against a client in a legal malpractice action, an attorney must demonstrate that the client did not suffer re-dressable harm as result of his or her work. See Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So.2d 315, 319 (Fla. 3d DCA 1985) (holding summary judgment proper where the attorney’s alleged negligence could not have been the cause of the plaintiffs claimed loss). This can be done by showing that a court in a related proceeding construed a purportedly deficient agreement in the client’s favor (thus obviating any potential claim of harm from the attorney’s work on the agreement). See Roth v. Rosa Bros. Inc., 513 So.2d 709, 709 (Fla. 3d DCA 1987) (“[I]t could not possibly constitute legal malpractice for plaintiffs counsel to advise the plaintiff, as he did, to sign a lease which, as subsequently enforced, fully comported with the intent of the parties to the lease, including the intent of the plaintiff.”); cf. Bierman, 639 So.2d at 628 (abating an action for legal malpractice until a trial court ruled on the validity of an agreement that was allegedly drafted negligently). Alternatively, if the issues in the related suit can be decided as a matter of law, the court deciding the malpractice action can assess whether or not the lawyer’s actions precluded the client from obtaining full relief in the related action, thereby obviating any potential claim of harm as against the attorney. Cf. Oteiza, 547 So.2d at 949; Hatcher v. Roberts, 478 So.2d 1083 (Fla. 1st DCA 1985).

The interpretation of a contract is generally a matter of law. See Peacock Constr. Co. v. Modern Air Conditioning Inc., 353 So.2d 840, 842 (Fla.1977). As such, this Court can examine the agreement drafted by Dome to determine whether Appellants would have been entitled to recover against the Developer under that agreement in the underlying action. Cf. Oteiza, 547 So.2d 948; Hatcher, 478 So.2d 1083. If so, Appellants would not have suffered redressable harm from Dome’s action and would thus be barred from bringing a legal malpractice action.

Here, Appellants argue that the harm occurred because 1) Dome failed to include a recording provision in the agreement, and 2) Dome did not advise Siam of the risk involved in proceeding. That is, Appellants claim that this action is not precluded because the harm occurred long before the underlying action against the Developer was filed. However, because the agreement would have allowed the Appellants to recover damages from the Developer’s breach of contract up to the value of the subject property, Appellants cannot establish the requisite redressable harm from Dome’s actions.

The final agreement required delivery of “marketable title” to Unit 1105 within forty-two months of execution of the agreement or, if title was not delivered, the payment of $443,900. Under Florida law, the term “marketable title” encompasses “undisclosed liens, encumbrances, exceptions or qualifications constitute defects in the title to real property which render title unmarketable within the meaning of the standard real estate contract employed by the parties.” Bailey v. First Mortg. Corp. of Boca Raton, 478 So.2d 502, 504 (Fla. 1st DCA 1985). “When words or terms having a definite legal meaning and effect are knowingly used in a written instrument, as was done in the case at bar, the parties thereto will be presumed to have intended such words or terms to have their proper legal meaning and effect, in the absence of any contrary intention appearing in the instrument.” Wilcox v. Atkins, 213 So.2d 879, 881 (Fla. 2d DCA 1968). Because the deed that was conveyed to Appellants had an undisclosed mortgage (which is an encumbrance on the property), the Developer breached the agreement by not transferring “marketable title” to Appellants. See Bailey, 478 So.2d at 504 (“[A] mortgage standing undischarged of record against land sold by executory contract constitutes a defect in the vendor’s title. -”). Appellants would thus have been able to recover against the Developer had they not abandoned their earlier lawsuit against the Developer. As the proximate cause of Appellants’ harm was abandoning the lawsuit to enforce the agreement against the Developer, and not the terms drafted by Dome in the agreement, Appellants suffered no redressable harm from Dome’s work and are thus barred from pursuing an action for legal malpractice. Accordingly, we affirm the entry of final summary judgment in favor of Dome.

Affirmed.

      . Appellants’ Motion for Summary Judgment against the Developer was pending at the time Appellants filed their Notice of Voluntary Dismissal.

      . During his deposition, Berman testified that he did not know and had never confirmed if Greenwald was in fact in bankruptcy.

      . We review a trial court’s decision granting summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000).

      . Appellant’s effort to create an issue of fact as to the meaning of the term "marketable title” through the use of expert testimony is improper. See Thundereal Corp. v. Sterling, 368 So.2d 923, 928 (Fla. 1st DCA 1979) ("Opinion testimony of expert lawyers upon legal questions, other than that as to the law of another jurisdiction, or expert or nonexpert opinion generally, that amounts to a conclusion of law, cannot be properly received in evidence, for the determination of such questions is exclusively within the province of the court.” (quoting 31 Am.Jur.2d Expert and Opinion Evidence, § 69 (1967))).

      . An encumbrance “is every right to or interest in the land, which may subsist in a third party, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.” Gore v. Gen. Props. Corp. 149 Fla. 690, 6 So.2d 837, 839-840 (1942). A mortgage is such an interest. Transcon Trailers, Inc. v. Northland Ins. Co., 436 So.2d 380, 382 (Fla. 5th DCA 1983).