author: ROTHENBERG, J. SCHWARTZ, Senior Judge

text:
    Peter ANDERSON, Appellant, v. UPPER KEYS BUSINESS GROUP, INC., et al., Appellees.
    No. 3D10-356.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied June 3, 2011.

      Michael J. Rosen, Miami, for appellant.
    Griffin & Serrano, P.A., and Eric D. Griffin, Jr., for appellees.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

On December 23, 2008, the Upper Keys Business Group (“UKBG”) filed suit in Monroe County Circuit Court against Peter Anderson (“Anderson”) and the Monroe County Tourism and Development Council (“the Council”) seeking declaratory and injunctive relief. UKBG sought to enjoin Anderson from interfering with its planned festival celebrating the satirical 1982 “secession” of the Florida Keys from the United States, which UKBG was marketing under the name “Conch Republic Days: Northernmost Territories.” Anderson counterclaimed with an unfair competition claim and for dilution against UKBG and Howard Kolbenheyer (“Kol-benheyer”), the chair of UKBG, alleging that the name under which UKBG chose to promote and market its festival infringed on and diluted the festival he has coordinated, marketed, publicized, and held since 1990 under the name “Conch Republic Independence Celebration.” Anderson claims a common law service mark interest and sought to enjoin UKBG and Kolben-heyer from promoting their festival under the name “Conch Republic Days': Northernmost Territories.” The trial court granted summary judgment in favor of UKBG and Kolbenheyer. For the reasons that follow, we reverse.

TRADEMARKS/SERVICE MARKS

A service mark is any “word, name, symbol, or device, or any combination thereof’ used by any person or entity “to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.” 15 U.S.C. § 1127 (2006). A trademark is identical to a service mark except it relates to goods rather than services. Restatement (Third) of Unfair Competition § 9, cmt. f (1994).

Anderson’s unfair competition claim is premised on common law and state and federal statutes, which all apply the same standards. The federal Lanham Act (“Act”) provides protection against the confusing use of corporate names. Great S. Bank v. First S. Bank, 625 So.2d 463, 467 (Fla.1993); see also 15 U.S.C. § 1114(1)(a) (providing civil liability for the use of another’s mark that is likely to cause confusion, mistake or deceit). Thus, to establish a claim of trademark or service mark infringement, Anderson was required to show that: (1) he owns a valid, protectable trademark (service mark); and (2)there is a likelihood of confusion caused by UKBG’s use of his mark. Gulf Coast Commercial Corp. v. Gordon River Hotel Assocs., No. 2:05-cv-564-FtM-33SPC, 2006 WL 1382072, at *4 (M.D.Fla. May 18, 2006); see also § 495.181, Fla. Stat. (2008) (“The intent of this chapter is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act of 1946, as amended.”); Gen. Conference Corp. of Seventh Day Adventists v. Perez, 97 F.Supp.2d 1154, 1157 (S.D.Fla.2000) (noting that 15 U.S.C. § 1114(1) of the Act provides that in a trademark infringement action, the plaintiff establishes a prima facie case if he shows that the mark is valid and the defendant’s use of his mark is likely to cause confusion).

To pursue a cause of action for injunc-tive relief based on unfair competition due to a tradename or trademark infringement, Anderson was required to prove the following:

(1) [He] first adopted and used a certain name (or mark ...) in a certain market or trade area, as a means of establishing good will and reputation and to describe, identify or denominate particular services rendered or offered by [him] ... and to distinguish them from similar services rendered or offered ... by others, and
(2) through [his] association with such services or goods [his] tradename (or mark, etc.) has acquired a special significance as the name of the services rendered ... by [him] in [his] trade area because [his] tradename (or mark, etc.)
(a) is inherently distinctive (fanciful, novel or arbitrary), or
(b) while ... descriptive, or geographic, [his] tradename (or mark, etc.) has, by actual usage, acquired in a certain trade area, a secondary, special or trade meaning as indicating, describing, identifying or denominating [him] as the source of certain services ... and
(3) [UKBG] has commenced, or intends to commence, the use of an identical or confusingly similar tradename (or mark, etc.) to indicate or identify similar services rendered ... by it in competition with [him] in the same trade area in which [he] has already established [his] tradename (or mark, etc.) and (4) as a consequence of [UKBG’s] action, or threatened action, customer confusion of source or as to the sponsorship of the services ... offered, or to be offered, by [UKBG] is probable (likely) or inevitable.

Am. Bank of Merritt Island v. First Am. Bank & Trust, 455 So.2d 443, 445-46 (Fla. 5th DCA 1984) (footnotes and citations omitted).

The first two elements- — primacy and distinctiveness — establish the validity of the mark; whereas the last two elements establish the likelihood of confusion. Primacy is self explanatory. The distinctiveness of the mark refers to “how easily customers identify petitioner’s mark with the represented services.” Coach House Rest, Inc. v. Coach & Six Rests., Inc., 934 F.2d 1551, 1559 (11th Cir.1991).

When determining whether a mark is distinctive, the mark must be classified as either: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful. Gulf Coast, 2006 WL 1382072 at *4 (citing Investacorp, Inc. v. Arabian Inv. Banking Corp., 931 F.2d 1519, 1522 (11th Cir.1991)). As will be first discussed, generic marks are afforded no protection. The three remaining marks will then be addressed in the order of them strength, beginning with the strongest and ending with the weakest.

DISTINCTIVENESS

A. Generic Marks

A generic mark suggests the nature of the service but is silent as to its source, Gulf Coast, 2006 WL 1382072 at *5, and is typically incapable of achieving service mark protection because it lacks distinctiveness. Investacorp, Inc., 931 F.2d at 1522. Whereas a trademark identifies the source of a product, generic terms are commonly used words to name a kind of goods or a particular service. Great S. Bank, 625 So.2d at 469 (citing J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition 12.01[1], [2] (3d ed. 1992)). For example, using the term “Milk Delivery” for a milk delivery service is a generic mark because the commonly used words suggest the nature of the service, but are silent as to their source. Investacorp, Inc., 931 F.2d at 1522. Thus, generic names are free for all to use and if the mark is generic, it is not protected under trademark law and the inquiry ends. Gulf Coast, 2006 WL 1382072 at *5.

B. Fanciful or Arbitrary Marks

The Florida Supreme Court explains that:

“Fanciful” marks consist of “coined” words that have been invented or selected for the sole purpose of functioning as a trademark. Such marks comprise words that are either totally unknown in the language or are completely out of common usage at the time, as with obsolete or scientific terms....
If, in the process of selecting a new mark, a seller sits down and invents a totally new and unique combination of letters or symbols that results in a mark that has no prior use in the language, then the result is a “coined” or “fanciful” mark.

Great S. Bank, 625 So.2d at 467. Examples of fanciful marks are: KODAK, POLAROID, and XEROX. Id.

“Arbitrary” marks use common words but have no relationship to the goods or services being offered, such as IVORY soap (which is not made of ivory), APPLE computers, and ROYAL baking powder. Id. Fanciful and arbitrary marks are inherently distinctive, and therefore do not require proof of secondary meaning. Gulf Coast, 2006 WL 1382072 at *4.

C. Suggestive Marks

“Suggestive” marks suggest the characteristics of the service or product and require the customer to employ some degree of imagination. Great S. Bank, 625 So.2d at 468. The examples provided by the Florida Supreme Court are: COPPERTONE (for sun tan oil), HEARTWISE (for low-fat foods), and GOBBLE GOBBLE (for processed turkey meat). Id. As with fanciful and arbitrary marks, suggestive marks are inherently distinctive and therefore do not require secondary meaning. Gulf Coast, 2006 WL 1382072 at *4.

D. Descriptive Marks

“A mark is ‘descriptive’ if it is descriptive of: the intended purpose, function or use of the goods, the size of the goods, the class of users of the goods, a desirable characteristic of the goods, or the end effect upon the user.” Great S. Bank, 625 So.2d at 468. Descriptive marks may be simply descriptive, lauda-torily descriptive or geographically descriptive. Id. Laudatory descriptive marks are “puffing” marks such as “Friendly,” “Dependable,” “Great,” “First,” and “Preferred.” Id. Geographically descriptive marks designate the geographical location of the origin of the goods and services. Id. Examples of geographically descriptive marks are “Bank of Texas” and “Inn on Fifth.” Gulf Coast, 2006 WL 1382072 at *5.

If a descriptive mark is inherently distinctive, it will be afforded legal protection without further proof. If a descriptive mark is not inherently distinctive, it will only be protected if it has become distinctive. “This acquisition of distinctiveness is referred to as ‘secondary meaning.’ ” Bank of Tex. v. Commerce Sw. Inc., 741 F.2d 785, 787 (5th Cir.1984). An example of an inherently distinctive descriptive mark immediately capable of protection without establishing a secondary purpose is “Sue’s Novelty Shop on Worth Avenue.” The mark identifies the source, location, and the goods offered. The name is not only descriptive of the services or goods offered and of the location of the establishment, it identifies the source of the services. Thus, the combination of the terms establishes a unique or distinctive descriptive mark.

Descriptive marks that are not inherently distinctive require proof of a secondary meaning. “Secondary meaning is the connection in the consumer’s mind between the mark and the provider of the service.” Coach House Rest., Inc., 934 F.2d at 1560; see also Gen. Conference Corp., 97 F.Supp.2d at 1158 (“To establish secondary meaning, the owner of the mark must show that, in the minds of the public, the primary significance of a term is to identify the source of the product rather than the product itself.”); Bank of Tex., 741 F.2d at 787 (holding that “a plaintiff must show that the primary significance of the term in the mind of the consuming public is not the product but the producer”). The factors to consider in determining whether a name or mark has acquired secondary meaning are: (1) the length and manner of the mark’s use; (2) the nature and extent of advertising and promotion for the plaintiffs business; (3) the efforts made by the plaintiff to promote a conscious connection in the public’s mind between the mark and the plaintiffs business; and (4) the extent to which the public actually identifies the name with the plaintiffs service. Coach House Rest, Inc., 934 F.2d at 1560.

The burden necessary to establish secondary meaning is substantial. Bank of Texas, 741 F.2d at 787; see also Vision Ctr. v. Opticks, Inc., 596 F.2d 111, 118 (5th Cir.1979) (“[A] high degree of proof is necessary to establish secondary meaning for a descriptive term.”). And when a party is seeking a preliminary injunction, the movant must clearly establish a substantial likelihood it will succeed on the merits.

Given the extraordinary nature of the remedy, the courts require a movant to carry its overall burden clearly. Of course, that means that the movant must convince the Court, not that it might succeed, or could possibly succeed; rather, the movant must clearly convince the Court that they are substantially likely to succeed.

Gulf Coast, 2006 WL 1382072 at *8 (emphasis omitted).

The more distinctive the mark, the stronger it is. Thus, the strength and distinctiveness of the mark is a vital consideration in determining the scope of protection it should be accorded. Id. at *6. “A strong trademark is one that is rarely used by parties other than the owner of the trademark, while a weak trademark is one that is often used by other parties.” Id. (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973 (11th Cir.1983)).

The examples of descriptive marks previously cited by this Court, “Bank of Texas” and “Inn on Fifth,” were both found to contain common formative components that had been widely used by third parties, and thus relatively weak in their descriptiveness. Id. at *7. After examining the evidence to determine whether these marks had acquired secondary meaning, it was determined that neither were entitled to protection. Bank of Tex., 741 F.2d at 790; Gulf Coast, 2006 WL 1382072 at *13.

Thus, the most distinctive marks are fanciful, arbitrary, and suggestive marks. Because they are inherently distinctive, they require no proof of a secondary meaning. Descriptive marks, however, may or may not be inherently distinctive, and if they are not, secondary meaning is required. Generic marks are incapable of acquiring distinctiveness and are not protected by the Act. In other words, if a mark is generic it cannot obtain protection by establishing secondary meaning. A name may also be comprised of a combination of the various types of mark. When determining whether a compound mark is distinctive, one must examine it as a whole. Great S. Bank, 625 So.2d at 469 (concluding that the trial court erred “by failing to view the mark as a whole, as required”); Cebu Assoc. of Cal., Inc. v. Santo Nino de Cebu, USA, Inc., 95 Cal.App.3d 129, 157 Cal.Rptr. 102, 104 (1979) (“[A] mark composed of more than one word, must be considered in its totality.”).

If the first two elements are established — primacy and distinctiveness— then the validity of the mark is proven. However, to establish a claim of trademark or service mark infringement, Anderson was also required to show that there is a likelihood of confusion caused by UKBG’s use of his mark. Gen. Conference Corp., 97 F.Supp.2d at 1157; see also 15 U.S.C. § 1052(d) (providing that a trademark may be denied registration where it is likely to cause confusion).

INFRINGEMENT

Once the plaintiff in a trademark or service mark infringement action has made a prima facie case that its mark is valid, it must establish that the defendant’s use of his mark will likely cause confusion. The factors to be considered are:

(1) the degree of resemblance between the conflicting designations;
(2) the similarity of the marketing methods and channels of distribution;
(3) the characteristics of the prospective purchasers and the degree of care they exercise;
(4) the degree of distinctiveness of the senior user’s mark;
(5) where the goods or services are not competitive, the likelihood that prospective buyers would expect the senior user to expand into the field of the junior user;
(6) where the goods or services are sold in different territories, the extent to which the senior user’s designation is known in the junior user’s territory;
(7) the intent of the junior user; and
(8) evidence of actual confusion.

Great S. Bank, 625 So.2d at 469-70. To establish likelihood of confusion, all of these factors do not have to be resolved in favor of the plaintiff. Gen. Conference Corp., 97 F.Supp.2d at 1157; Safeway Stores, Inc. v. Safeway Disc. Drugs, Inc., 675 F.2d 1160, 1167 (11th Cir.1982).

DILUTION

Anderson alleges unfair competition and dilution. He claims that UKBG’s festival infringes on and dilutes the festival he has coordinated, marketed, publicized, and held since 1990. “Dilution differs from infringement in that it does not necessarily depend on either competing goods or likelihood of confusion.” Great S. Bank, 625 So.2d at 470. A violation of Florida’s dilution statute, section 495.151, occurs where a designation resembles the highly distinctive mark of another in a manner likely to cause a reduction in the distinctiveness of the other’s mark or “tarnishes” the images associated with the other’s mark. Id. In making this determination, the court will look to the distinctiveness of the two services or products, the duration and extent of its use and advertising, and the degree of recognition by prospective purchasers. Id.

THE TRIAL COURT’S ORDER

The trial court found that the terms “Conch Republic” and “Independence Celebration” are “entirely generic; together, the words do not constitute a distinctive, defensible brand or mark; and the right to celebrate the satirical secession and declaration of independence of the Florida Keys as the Conch Republic belongs to no one man.” Additionally, the trial court concluded that the names of the two events— “Conch Republic Independence Celebration” and “Conch Republic Days, Northernmost Territories” — are distinctly different names referring to separate events in separate trade markets separated geographically by seventy or eighty miles at different ends of the Florida Keys. Thus, the trial court found there is no likelihood of consumer confusion as to the source or sponsorship of the two events.

LEGAL ANALYSIS

As already discussed, to pursue a cause of action for unfair competition due to a trademark or service mark infringement or dilution, Anderson must prove he owns a valid protectable trademark or service mark interest. Once he has met that threshold, he must establish either an in-fringeraent by proving a likelihood of confusion caused by UKBG’s use of his mark, or dilution of his mark by UKBG. To establish a valid protectable mark, Anderson must establish primacy and distinctiveness.

The trial court did not address the first required element, primacy, and instead granted summary judgment in favor of UKBG based on its finding that Anderson’s mark, “Conch Republic Independence Celebration,” was generic, and thus not a valid protectable trademark even if primacy could be established. This was error. Anderson’s mark is a descriptive mark. His mark identifies its purpose — to celebrate the satirical 1982 secession of the Florida Keys from the United States. See Great S. Bank, 625 So.2d at 468. It also designates the geographical location of the origin of the celebration— the Conch Republic, which is the name Key West’s former mayor, Dennis Ward, coined for the Florida Keys in 1982.

A descriptive mark is a weak mark, and unlike an arbitrary, fanciful, or suggestive mark, it is not immediately capable of protection unless it is inherently distinctive. Bank of Tex., 741 F.2d at 787. Descriptive marks that are not inherently distinctive, require proof of secondai'y meaning. Id. Anderson’s mark, “Conch Republic Independence Celebration,” is not inherently distinctive, thus he is required to establish secondary meaning. The record reflects that Anderson did submit evidence as to this element, but that evidence was not evaluated by the trial court because the trial court incorrectly found that Anderson’s mark was generic, and incapable of protection.

The trial court also did not address primacy. To establish a valid protectable mark, Anderson must not only prove distinctiveness by establishing secondary meaning because his mark is descriptive and not inherently distinctive, he must also prove that he established his trademark or service mark interest prior to UKBG or Kolbenheyer. Our review of the record reflects that the issue of primacy is an unresolved factually disputed issue.

On remand, if, and only if, Anderson establishes primacy and his mark acquires distinctiveness through secondary meaning, the trial court must then resolve whether Anderson has established either infringement based on the likelihood of confusion, Great S. Bank, 625 So.2d at 469, or dilution based on either: (1) a likelihood of injury to business reputation; or (2) dilution of the distinctive quality of the tradename. Id. at 470. If Anderson does not prove primacy and distinctiveness, then he does not have a valid protectable mark and no findings are required as to possible confusion or dilution.

Accordingly, we reverse the trial court’s order finding Anderson’s service mark generic and granting summary judgment in favor of UKBG and Kolbenheyer, and we remand for further proceedings based on our conclusion that Anderson’s mark is descriptive, requiring secondary meaning and primacy to be protectable.

Reversed.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would affirm on the grounds well stated by the trial court:

The phrase “Conch Republic Independence Celebration” is a generic term and does not constitute a valid and protectable service mark under Florida law. Counsel for Defendant Anderson concedes in open Court that Defendant Anderson does not claim any exclusive rights to the use of the term “Conch Republic” and the two remaining words, to wit: “Independence Celebration,” are also entirely generic.- Thus, the words together do not constitute a distinctive, defensible brand or mark. Moreover, the right to celebrate a local historical event, to wit: the satirical secession and declaration of independence of the Florida Keys as the “Conch Republic” as declared by former Key West, Florida Mayor Dennis Wardlow in April 1982, belongs to no one man.

Additionally the Court finds as a matter of law that “Conch Republic Independence Celebration” versus what the Plaintiffs are seeking to use, to wit: “Conch Republic Days, Northernmost Territories,” are distinctly different names referring to separate events held in separate trade markets separated geographically by 70 or 80 miles at different ends of the Florida Keys. Thus, the Court finds that there is no likelihood of consumer confusion as to the source or sponsorship of the two events.

      . Inherently distinctive marks are immediately capable of protection. Marks that are not inherendy distinctive require proof of secondary meaning, which will be described in detail under "Descriptive Marks.”

      . The trial court incorrectly addressed the likelihood of confusion after finding that Anderson’s mark was generic and thus incapable of protection.

      3. I disagree with the court that there is anything "incorrect ...” (footnote 2, page 15) about the trial court’s giving another reason— the unlikelihood of confusion — for the result, in addition to the conclusion that the asserted mark was generic and thus unprotectable under any circumstances. Agreement with either ground would require affirmance. I agree with both.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony Ray WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2282.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied June 8, 2011.
    Anthony Ray Williams, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before, GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, 994 So.2d 337 (Fla. 3d DCA 2008), and cased cited.


author: SCHWARTZ, Senior Judge.

text:
    Ana and Ermes AGUILERA, Appellants, v. EQUITY ONE, LLC, Appellee.
    No. 3D09-3308.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing and Rehearing En Banc Denied June 2, 2011.

      Hicks, Porter, Ebenfeld & Stein, Kacey Bennett, Irene Porter and Shannon Kain, Miami, for appellants.
    Cole Scott & Kissane and Scott A. Cole, Miami, Erin K. Loeb and John S. Penton, Jr., West Palm Beach, for appellee.
    Before CORTIÑAS and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Mrs. Aguilera, a nurse’s aide who was injured in a fall-down accident on appellee-defendant’s premises, and her husband appeal from a judgment in their favor, pursuant to a jury verdict containing awards for several elements of damage, but which found her 90% and defendant 10% liable. Of the several issues presented, we find error only in the trial court’s failure to grant a new trial on the issues of her loss of future earnings and her husband’s alleged loss of consortium after the jury returned a verdict as to those items for zero damages. As to these elements, the evidence is uncontradicted that at least some damages were sustained as a result of the severe injuries sustained to the wife’s right shoulder and arm. See Peterson v. Sun State Int’l Trucks, LLC, 56 So.3d 840 (Fla. 2d DCA 2011) (where husband of plaintiff presented substantial, undisputed evidence sufficient to require an award of at least nominal damages, a zero verdict for loss of consortium claim was inadequate); Big Lots Stores, Inc. v. de Diaz, 18 So.3d 1065, 1068 (Fla. 3d DCA 2009) (finding that undisputed evidence presented on plaintiffs loss of consortium claim was sufficient to “require an award of at least nominal damages”); Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So.2d 1183, 1185 (Fla. 5th DCA 2009) (“[I]t is ... well settled that where sufficient undisputed evidence is presented on a consortium claim that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law.”); Watson v. Builders Square, Inc., 563 So.2d 721, 722 (Fla. 4th DCA 1990) (where appellants proved that Mrs. Watson suffered a permanent injury which affected her ability to work, a zero verdict for loss of future earning capacity was inadequate).

We reject, however, the same contention as to the zero award for future medical expenses. See Smith v. Fla. Healthy Kids Corp., 27 So.3d 692, 694 (Fla. 4th DCA 2010) (“It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning damages and reasonable men could believe that the plaintiff sustained no damage, a zero verdict will be upheld.”) (quoting Surety Mortg., Inc. v. Equitable Mortg. Res., Inc., 534 So.2d 780, 781 (Fla. 2d DCA 1988)); Truelove v. Blount, 954 So.2d 1284 (Fla. 2d DCA 2007).

Accordingly, the judgment below is for the most part affirmed and the cause remanded for a new trial as to the issues of the wife’s loss of future earnings and the husband’s loss of consortium, as to which the jury awards will be reduced by 90% comparative negligence.

Affirmed in part; reversed in part.


author: WELLS, Judge.

text:
    Mario Emilio FERNANDEZ-BALART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-587.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing and Rehearing En Banc Denied June 2, 2011.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Dan Hallenberg, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and EMAS, JJ.
   WELLS, Judge.

Mario Fernandez-Balart appeals from an order denying his Florida Rule of Criminal Procedure 3.850 motion to vacate a plea brought within the window provided by State v. Green, 944 So.2d 208 (Fla.2006), claiming that his 1979 plea, judgment and sentence must be set aside because of misadvice of counsel as to the immigration consequences of that plea. Because we find the trial court’s order denying Fernandez-Balart’s motion fully supported by competent, substantial evidence, we affirm. We do so, however, without prejudice to Fernandez-Balart’s right to file a new motion asserting any claim which he might have under Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).


author: EMAS, J.

text:
    Jonathan SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-505.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.

      Jonathan Simmons, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   EMAS, J.

The defendant, Jonathan Simmons, appeals the trial court’s order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We note that, between 2004 and 2010, Simmons has filed five appeals of orders denying motions for collateral relief. In four of those five appeals, Simmons raised the exact same issue raised in the instant appeal. In each instance, the trial court denied relief, and in each instance the order denying relief was affirmed by this Court. As we have done previously, we affirm the trial court’s order in all respects.

Simmons has engaged in the filing of meritless, frivolous and successive claims, and continues to seek relief from the trial court and this Court notwithstanding the repeated adverse determination of the claim on its merits. Simmons’ actions have caused this Court to expend precious judicial resources which could otherwise be devoted to cases raising meritorious claims. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009) (“A legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims.”).

We acknowledge that pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts. However, that right is not unfettered. Although termination of the right to proceed pro se undoubtedly will impose a burden on a litigant who may be unable to afford counsel, the courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse.

The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or meritless collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla.1999); see also Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (“It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.”). As our sister court has aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

The defendant, Jonathan Simmons, is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the lower court relating to his convictions, judgments and sentences in circuit court case number 88-43713. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to this circuit court case number unless it has been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by this defendant will subject him to appropriate sanctions, Spencer, 751 So.2d at 49, and a recommendation to the Florida Department of Corrections that the Department take disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2010).

Affirmed.

      . Simmons v. McNeil, 21 So.3d 827 (Fla. 3d DCA 2009); Simmons v. State, 17 So.3d 300 (Fla. 3d DCA 2009); Simmons v. State, 951 So.2d 849 (Fla. 3d DCA 2007); Simmons v. State, 931 So.2d 918 (Fla. 3d DCA 2006). In Simmons v. State, 888 So.2d 710 (Fla. 3d DCA 2004), Simmons' motion to correct illegal sentence raised a separate issue. Additionally, Simmons filed a motion for postconviction relief in 1993 and again in 1994, raising the same sentencing issue presented here. Both motions were denied and affirmed on appeal. Simmons v. State, 650 So.2d 126 (Fla. 3d DCA 1995); Simmons v. State, 645 So.2d 477 (Fla. 3d DCA 1994).

      . Art. I, § 21, Fla. Const. ("The courts shall be open to every person for redress of any injury ... ”)


author: RAMIREZ, C.J.

text:
    Terrell McKAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3380.
    District Court of Appeal of Florida, Third District.
    April 20, 2011.
    Rehearing Denied June 3, 2011.
    Carlos Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   RAMIREZ, C.J.

Terrell McKay appeals his judgment of conviction and sentence, arguing that he should receive a new trial because the trial court committed error when it denied his motion to strike a juror for cause and subsequent request for an additional peremptory challenge. We reverse because the trial court abused its discretion when it denied McKay’s request to strike a juror for cause.

The State of Florida filed an information charging McKay with the sale of cocaine within one thousand feet of a school zone. During the jury selection process, defense counsel moved to strike a prospective juror, A.F. (number fifteen in the venire), for cause arguing that this juror would hold it against the defense if McKay did not testify. During the initial colloquy, the following exchange took place.

MR. KRYPEL: Mr. [A.F.]?
PROSPECTIVE JUROR A.F.: Yes.
MR. KRYPEL: You are saying you want to hear from Mr. Terrell McKay?
PROSPECTIVE JUROR A.F.: Yes.
MR. KRYPEL: If you don’t hear from
Mr. Terrell McKay, you are going to be thinking what is that guy hiding? You know a bad answer is a false answer.
PROSPECTIVE JUROR A.F.: I understand that and I would rather speak in privately. I don’t want it to affect the jury. That is the only reason.

Outside of the presence of the other jurors, the following exchange took place:

PROSPECTIVE JUROR A.F.: Just the answer to the question counsel asked. The reason why I said I didn’t want to explain wasn’t only because as an attorney I have worked in the past — not criminal law, but administrative law. It is almost the government versus an individual. So just as a philosophical versus an individual. So just as a philosophical point as an attorney, the way I would advise my client in this situation, tell me the truth and we will work from there. And I understand counsel. They may have their reason why and strategically and everything else, “Just take the offer.”
My concern is if counsel for whatever reason does not want his client to testify and State presents the evidence and it is credible, then I am going to be more inclined to basically convict and that is what I want to say. I didn’t want to say it in front of the jury because I didn’t want somebody to sit there, “If he is an attorney, then he must know something,” and that is why I asked for the privacy.
THE COURT: We appreciate it.
The question is when you say credible, is that different than proof to the exclusion of every reasonable doubt, if the State doesn’t meet their burden?
PROSPECTIVE JUROR A.F.: If the State doesn’t meet their burden?
THE COURT: What is the verdict?
PROSECTIVE JUROR A.F.: Innocent.
THE COURT: Not guilty?
PROSPECTIVE JUROR A.F.: Not guilty because the State did not meet their burden.
THE COURT: Would it matter to you at all whether or not Mr. McKay decided to testify? Is there an issue?
PROSPECTIVE JUROR A.F.: It is not necessarily — it is not necessarily an issue, but as I said my only concern is if the State presents the case.
THE COURT: And they meet—
PROSPECTIVE JUROR A.F.: And they meet their burden and I didn’t hear anything from Mr. McKay’s side?
THE COURT: Let me ask you this.
His lawyer is going to ask questions of the State’s witness.
PROSPECTIVE JUROR A.F.: Okay.
THE COURT: What you are telling me, if you are not convinced beyond and to the exclusion of every reasonable doubt, that it would still be an issue for you as to why Mr. McKay—
PROSPECTIVE JUROR A.F.: No.
THE COURT — didn’t testify?
PROSPECTIVE JUROR A.F.: It would not be an issue, but I just wanted to give that opportunity to present that. I thought it was something that both sides should know. I will if both sides — we would like to be part of the jury. I will do my best.
THE COURT: I appreciate your candor and your openness. In the context of an administration while commenting that it was somewhat similar and you want your clients to make full disclosure.
From a practitioner’s point of view, from procedural and administrative procedure it is far different than criminal proceedings. You are talking about it in terms of your own practice and what would be your normal practice.
PROSPECTIVE JUROR A.F.: Exactly. Any follow-up questions?
MR. NIXON: Nothing from the State.
MR. PONT: I am still confused.
THE COURT: They thought it was pretty clear.
MR. PONT: Bottom line, are you still going to be affected if you are chosen as a juror in this case if the defendant does not testify? It sounds like you may be affected.
PROSPECTIVE JUROR A.F.: I think it is only — this is just being the lawyer part of me. But for all consideration if the State presents their evidence and I find — hypothetically speakiny, I find the evidence to be credible and yet despite cross examination I don’t hear from counsel and from your client, then that is goiny to sway me to the direction to the State’s burden. This is the way I am speaking hypothetically. MR. PONT: All right.

Thank you for that hypothetical answer, (emphasis added). The trial judge denied defense counsel’s request to strike juror A.F. for cause. Defense counsel thereafter used a peremptory challenge on juror A.F.

Defense counsel ultimately exhausted all of his peremptory challenges. He then requested an additional challenge against another juror which the trial court granted, stating that the court would “allow one and only one.”

Thereafter, defense counsel renewed his request for one more peremptory challenge based upon the denial of defense challenges for cause directed at A.F. and others, including juror eleven. The trial court denied this request. Defense counsel advised the court that if he had been allowed the additional peremptory, he would have exercised it to strike juror eleven.

At the conclusion of jury selection, the defense reserved its objection before the jury was sworn. The jury ultimately found McKay guilty as charged. The jury ultimately found McKay guilty as charged.

We now turn to defense counsel’s initial request to strike juror A.F. for cause. The standard of review of a trial court’s decision to deny a challenge for cause is whether the court abused its discretion. See Pentecost v. State, 545 So.2d 861, 862-63 (Fla.1989); Leon v. State, 396 So.2d 203, 205 (Fla. 3d DCA 1981). Absent manifest error, a determination of whether a challenged juror is competent will not be disturbed. See Puiatti v. Dugger, 589 So.2d 231 (Fla.1991); Miller v. State, 934 So.2d 580, 581 (Fla. 3d DCA 2006); Hall v. State, 682 So.2d 208, 209 (Fla. 3d DCA 1996). There is manifest error when a juror responds with equivocal or conditional answers that thereby raise a reasonable doubt as to whether the juror possesses the requisite state of mind necessary to render an impartial decision. See Salgado v. State, 829 So.2d 342, 344 (Fla. 3d DCA 2002).

Based upon the totality of juror A.F.’s responses, we must conclude that the statements clearly established a reasonable doubt as to whether he could render an impartial decision. Juror A.F. initially stated that he wanted to hear from McKay and requested to speak in private so that his comments would not affect the jury. Outside the presence of the jury, he unequivocally stated that if the State presented credible evidence and McKay did not testify, he would “be more inclined to basically convict.” This statement is entirely at odds with a defendant’s presumption of innocence and right to remain silent at trial, two of the most basic tenets at the heart of our system of justice. It served to create a reasonable doubt as to whether this juror could be impartial. If a prospective juror’s statements raise reasonable doubts as to that juror’s ability to render an impartial verdict, the juror should be excused. See Turner v. State, 645 So.2d 444, 447 (Fla.1994). Juror A.F. thus should have been excused.

The State argues that the trial court did not abuse its discretion, that manifest error did not occur, and that the judge, from her vantage point at the trial court level, correctly determined that there was no doubt that juror A.F. was fit to serve as a juror. We disagree.

None of the statements juror A.F. made following his initial comments served to erase the reasonable doubt his answers gave as to whether he could render an impartial verdict if the State presented credible evidence and McKay failed to testify. Juror A.F. indeed noted that he would consider the evidence and that, unless the State proved that a defendant was guilty, the defendant would be innocent. He further stated that: he was an attorney, a defendant is not guilty if the State failed to meet its burden, and that he would “do his best” as a juror.

Furthermore, any attempt to rehabilitate juror A.F. were unsuccessful. At no time did juror A.F. state that, if the State satisfied its burden, he would not hold it against the defense if McKay did not testify. He instead clearly stated that if he found the State’s evidence to be credible, despite cross-examination, and he did not hear from McKay, he would be swayed toward “the direction [of] the State’s burden.” This response, given at the conclusion of the exchange that occurred outside of the presence of the jury, sufficiently placed doubt upon this juror’s ability to be an impartial juror, notwithstanding any attempt at rehabilitation. Because the impartiality of jurors is critical to the operation of the justice system, “[cjlose cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.” See Sydleman v. Benson, 463 So.2d 533 (Fla. 4th DCA 1985); Price v. State, 538 So.2d 486, 489 (Fla. 3d DCA 1989).

Therefore, we reverse McKay’s judgment of conviction and sentence, and remand for a new trial.


author: THOMAS, J.

text:
    Robert K. BRYANT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and The Mercer Law Office, a Professional Association, Appellee.
    No. 1D10-4920.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Rehearing Denied May 25, 2011.

      Robert K. Bryant, pro se, Appellant.
    A. Robert Whaley, General Counsel, Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   THOMAS, J.

In this unemployment compensation appeal, we must decide whether an attorney who becomes unemployed loses eligibility by working full time as a sole practitioner when his law firm earned a nominal amount of income during the relevant time period. We hold the Commission erred as a matter of law in its interpretation of the statutory definition of “totally unemployed” in section 443.036, Florida Statute, because that statute requires that a person work and receive remuneration. We interpret the statute to create two criteria that must be met before a person can be found ineligible under the statute’s definition of “totally unemployed.” We thus reverse and remand for further proceedings.

Appellant worked with a law firm, then left the firm and began his own firm in 2009. From his firm’s inception, he received no profits and drew no salary or other remuneration for the remainder of 2009 until March 5, 2010. Appellant’s 2009 tax return showed a loss of ordinary business income. Appellant prepared an income statement which was identified as his firm’s profit and loss standard for the period of August 1, 2009 through March 5, 2010, which reflects $190 in net ordinary income, and no expense for salary. Appellant received none of this amount, and he denied that the $190 was a “profit.” He testified that during this period, his firm had revenues of just under $12,000. During this time, he received one payment from his former employer, which was his only personal income. He lived on savings and unemployment benefits.

The former employer argued that Appellant was only entitled to unemployment benefits until his new law firm showed positive net income. Appellant argued that he had not earned any personal income, and even if the $190 was considered as such, the amount could not disqualify him receiving unemployment compensation.

The Commission ultimately determined that Appellant was not entitled to unemployment compensation because he was not “totally unemployed” during the relevant period of August 1, 2009, through March 5, 2010. The Commission interpreted the following statutory language to disqualify Appellant: “An individual is ‘totally unemployed’ in any week during which he or she' does not perform any services and for which earned income is not payable to him or her.” § 443.036(43)(a), Fla. Stat. (emphasis added). “Earned income” is defined as “gross remuneration derived from work, professional service, or self-employment ... [including] commissions, bonuses, ... and the cash value of all remuneration paid in a medium other that cash.” § 443.036(16), Fla. Stat.

The Commission’s appeals referee determined that Appellant was not unemployed because he worked full time, and thus he did “perform any services.” The appeals referee made no findings concerning remuneration. Appellant argues that the appeals referee erred in this conclusion because the statute requires that a person perform services and receive remuneration. We agree. See Grover v. Brumell Investigations, Inc., 915 So.2d 750 (Fla. 2d DCA 2005); Momsen v. State, Unemployment Appeals Comm’n, 706 So.2d 927 (Fla. 2d DCA 1998). While the Commission attempts to distinguish these cases and relies on DeLisi v. Florida Unemployment Appeals Commission, 646 So.2d 798 (Fla. 2d DCA 1994), we find the arguments unpersuasive. The-plain language of the relevant statutory provisions excludes only those persons who work and earn income from the definition of “totally unemployed.” The Commission’s contrary interpretation is clearly erroneous.

REVERSED and REMANDED. On remand, the Commission shall determine whether Appellant’s earned income was payable to him during the period in question.

WOLF and ROWE, JJ., concur.


text:
    Nellie LOGUERRE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Winter Haven Hospital, Inc., Appellees.
    No. 1D10-3713.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Rehearing Denied June 1, 2011.

      Nellie Loguerre, pro se, Appellant.
    A. Robert Whaley, General Counsel, M. Elaine Howard, Assistant General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

In this unemployment compensation appeal, Appellant challenges the Unemployment Appeals Commission’s order denying benefits. An appeals referee originally awarded benefits, determining Appellant’s failure to pass a necessary certification exam did not rise to the level of disqualifying misconduct defined in section 443.036(29)(a), Florida Statutes (2009). Appellant’s employer appealed the decision to the Commission, which determined the referee’s decision was not supported by competent, substantial evidence. The Commission concluded the only competent, substantial evidence in the record supported the conclusion that Appellant was discharged for misconduct connected with her work.

We are compelled to reverse the Commission’s order under the supreme court’s and this court’s precedent. See Gulf County Sch. Bd. v. Washington, 567 So.2d 420 (Fla.1990); Caro v. Fla. Unemployment Appeals Comm’n, 734 So.2d 1077 (Fla. 1st DCA 1999). In Washington, a teacher was discharged after failing a required certification exam three years in a row. Washington, 567 So.2d at 420. The court reasoned that under well-settled law, an employee who is discharged for inadequate work performance is entitled to benefits, and no meaningful distinction exists between an employee who cannot meet a known condition of work and one who simply fails to measure up to the job requirements. Id. at 423. The teacher was thus entitled to benefits. Id. The court noted that had the school board proven the teacher failed to adequately prepare for the exam, she may have been denied compensation for engaging in misconduct. Id. at 422.

Here, although some evidence exists to find that Appellant did not adequately prepare for the required exam and that she avoided admitting she failed, this court has held that such evidence does not rise to the level of disqualifying misconduct. See Caro, 734 So.2d at 1078 (following Washington, and holding that while the claimant may have demonstrated poor judgment by failing to adequately prepare for teacher’s exam, she was not guilty of misconduct). Therefore, the Commission erroneously concluded that Appellant engaged in misconduct connected to her work.

REVERSED and REMANDED.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    James E. LANG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1447.
    District Court of Appeal of Florida, First District.
    April 21, 2011.
    Rehearing Denied May 31, 2011.
    James E. Lang, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

James E. Lang’s “petition for permission to file a habeas corpus petition alleging manifest injustice in the county where incarcerated, or motion to certify conflict with Second District Court of Appeal concerning habeas corpus usage, or motion for permission to file manifest injustice habeas corpus with this court” will be-treated by this court as a habeas corpus petition. In case number 1D11-0739 Lang has appealed the order of the Circuit Court for Dixie County which transferred his habeas corpus petition to the Circuit Court for Pinel-las County, where Lang was sentenced. Because he has invoked an adequate and available legal remedy in that appeal, the instant petition for writ of habeas corpus is denied.

BENTON, C.J., WEBSTER and VAN - NORTWICK, JJ., concur.


text:
    Pedro ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2535.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Julio Gutierrez, Hialeah, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

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


text:
    EMG HOLDINGS, INC., Appellant, v. AUTUMN PARTNERSHIP, LLP, Appellee.
    No. 3D10-2328.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 13, 2011.
    Harvey D. Rogers, Miami, for appellant.
    Jose Garcia-Pedrosa, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 45.061(2), Fla. Stat. (2010); In re Jet 1 Ctr. Inc., 335 B.R. 771, 772 (Bankr.M.D.Fla.2005); Lennar Corp. v. Muskat, 595 So.2d 968 (Fla. 3d DCA 1992).


text:
    DADE COUNTY POLICE BENEVOLENT, etc., et al., Appellants, v. The CITY OF NORTH BAY VILLAGE, Florida, Appellee.
    No. 3D09-352.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 3, 2011.
    Slesnick & Casey and James C. Casey, for appellants.
    Robert D. Soloff, Plantation, for appel-lee.
    Before GERSTEN and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989).


text:
    Luis Reinaldo PEDRAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-629.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 3, 2011.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and SALTER, JJ.
   PER CURIAM.

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


text:
    Alexander Antonio BRENES, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-611.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Rehearing Denied June 3, 2011.

      Martin J. Rivas, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

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


text:
    Oreste GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-263.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Oreste Garcia, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Denard JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1550.
    District Court of Appeal of Florida, First District.
    April 28, 2011.
    Rehearing Denied June 1, 2011.
    Denard Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    Kelvin M. BRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0762.
    District Court of Appeal of Florida, First District.
    May 4, 2011.
    William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has filed an appeal of an order striking his postconviction motion but granting him leave to amend. Such an order is not a final, appealable order. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006). Thus, we DISMISS the appeal. We deny as moot the appellant’s motion for extension of time to file an initial brief.

BENTON, C.J., WEBSTER, and VAN NORTWICK, JJ., concur.


text:
    Robert M. BARON, Appellant, v. Irma BARON, Appellee.
    No. 3D10-1481.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.
    Neil G. Taylor, Bradenton; Marcia J. Silvers, Miami, for appellant.
    Raymond J. Rafool, Coral Gables, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. Bowen v. Bowen, 471 So.2d 1274 (Fla.1985); Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002).


text:
    Corey SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-858.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.

      Corey Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Clines v. State, 912 So.2d 550, 553 (Fla.2005) (holding to qualify as a habitual violent felony offender, a defendant must have been convicted of one prior enumerated felony); Williams v. State, 898 So.2d 966 (Fla. 3d DCA 2005) (stating only one prior qualifying conviction is required to sentence a defendant as a habitual violent felony offender).


author: SUAREZ, J.

text:
    Gary Joseph ELIANOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-81.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.
    Andre D. Pierre, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and LAGOA, JJ.
   SUAREZ, J.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (certifying questions and conflict with Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010)).


text:
    Charles D. BYRD, Petitioner, v. STATE of Florida, Respondent.
    No. 3D11-759.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.
    Charles D. Byrd, in proper person.
    Pamela Jo Bondi, Attorney General, for Respondent.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   PER CURIAM.

Petition denied. Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (holding erroneous jury instruction on manslaughter by intentional act not fundamental error where trial court also instructed jury on manslaughter by culpable negligence); Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010) (same); Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010) (same); Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010) (same).


author: ORFINGER, J.

text:
    WEKIVA SPRINGS RESERVE HOMEOWNERS, etc., Petitioner, v. John J. BINNS and Renee Binns, Respondent.
    No. 5D10-3521.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Patryk Ozim, of Larsen & Associates, P.A., Orlando, for Petitioner.
    Renee Binns, of Binns Family Law Assoc., Ft. Myers, for Respondent.
   ORFINGER, J.

Wekiva Springs Reserve Homeowners Association, Inc. (“Association”) seeks second-tier certiorari review of an opinion of the circuit court sitting in its appellate capacity. The circuit court reversed a county court judgment entered in favor of the Association following a non-jury trial. In its opinion, the circuit court disagreed with the county court’s conclusion that Respondents, John and Renee Binns, were not entitled to an award of damages based on the Association’s failure to comply with the Binns’s written record request pursuant to section 720.303(5), Florida Statutes (2006), because the Association’s actions were not willful. The circuit court’s order represents a departure from the essential requirements of law. Therefore, we grant the petition, and quash the circuit court’s decision.

District courts apply a two-prong test on second-tier certiorari review: whether the circuit court applied the correct law and whether the circuit court afforded the procedural due process. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003). Pursuant to these principles, the district court should grant the second-tier certio-rari “only when there has been a violation of a clearly established principle of law resulting in the miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010). In determining whether the circuit court has applied the correct law in its review of a county court judgment, a district court must consider whether the circuit court failed to apply the correct law as clearly established. Clearly established law can be derived not only from case law dealing with the same issue of law, but also from “an interpretation or application of a statute, a procedural rule, or a constitutional provision....” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

It is axiomatic that an appellate court, in this case the circuit court, is not permitted to reweigh the evidence or substitute its judgment for that of the county court. State v. Kirby, 752 So.2d 36, 37-38 (Fla. 5th DCA 2000). “[A] lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence.... ” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009). In the instant case, it is clear that the circuit court reweighed the evidence to reach a conclusion different from the county court. This was improper and violates clearly established law. As a consequence, we quash the circuit court’s opinion.

CERTIORARI GRANTED; CIRCUIT COURT OPINION QUASHED.

MONACO, C.J., and COHEN, J., concur.


text:
    WPTV-TV, WFTS-TV, Naples Daily News, Scripps Treasure Coast Newspapers, and The Associated Press, Petitioners, v. STATE of Florida and Casey Marie Anthony, Respondents.
    No. 5D11-1452.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.

      Judith M. Mercier and Gennifer B. Powell, Holland & Knight, LLP, Orlando, for Petitioners.
    Lawson Lamar, State Attorney and Linda Drane Burdick, Jeffrey L. Ashton, and Frank George Assistant State Attorneys, Orlando, for Respondent, State of Florida.
    J. Cheney Mason, of J. Cheney Mason, P.A., Orlando, for Respondent, Casey Marie Anthony.
   PER CURIAM.

WPTV-TV, WFTS-TV, Naples Daily News, Scripps Treasure Coast Newspapers, and the Associated Press petition this court, pursuant to Florida Rule of Appellate Procedure 9.100(d), to review a trial court order regarding the disclosure of the location of jury selection proceedings. The order provides that the media organizations must sign a “Confidentiality Agreement” devised by the trial court in order to receive advance notice of this information. Petitioners contend that we should vacate the Confidentiality Agreement and order the lower court immediately to provide the media with the location of the impending jury selection proceedings. We agree in part.

In this criminal case, which has generated an immense amount of publicity and public interest, it was determined by the trial court that an impartial jury could not likely be obtained in Orange County, where the case originates. The trial court ordered a change of location for the limited purpose of jury selection in order to comply with its duty to prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice. One aspect of that duty is to insure that the jury selection process yields an impartial and untainted jury. As the Supreme Court of Florida has explained: “[A] trial court has the inherent power to control the conduct of the proceedings before it, and it is the trial court’s responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten [the] fairness of his trial and the abrogation of his constitutional rights.” State ex rel. Miami Herald, Publ’g Co. v. McIntosh, 340 So.2d 904, 909 (Fla.1977) (footnotes omitted).

Petitioners contend that the trial court is legally required to immediately disclose the location of the jury selection proceedings to them. We disagree. We find no legal authority to require the trial court to immediately publish that information. At the hearing below, the trial court indicated its desire to “get a set number of individuals into a jury room and instruct them about not reading, watching, or listening to any news accounts” prior to their exposure to intensive pretrial media coverage on the morning of trial. Given the exceptional media coverage and public interest in this criminal trial, we do not find that the trial court’s decision to withhold the location of jury selection until a time proximate to the commencement of trial to be a material departure from the essential requirements of the law. In this case, the trial court has said that it will provide notice sufficient to enable the media to travel to the jury selection location from the Orange County Courthouse prior to the beginning of court proceedings.

Petitioners also contend that the trial court erred in conditioning their advance receipt of the location of jury selection proceedings upon their agreement to confidentiality. We agree. In this case, the trial court, in a commendable attempt to address the logistical issues caused by the change of location for jury selection proceedings, devised a Confidentiality Agreement to be entered into by participating media organizations. The agreement provides that any media organization that binds itself to the terms of the agreement will receive the jury selection location a day in advance of those that do not sign the agreement.

In exchange for receiving the location in advance of those who chose not to execute the Confidentiality Agreement, the media organizations would have been required to commit to the following terms:

1. The term “I” as used in this Agreement includes me individually, my employing organization, and the organization’s owners, executives, officers, employees and contractors. I hereby state that I have the authority to bind said organization.
2. I will not disclose said location to anyone except for those extremely limited number of people in my organization who have an immediate need to know in order to make logistical arrangements for coverage of the proceedings. I will ensure that those persons know that the location is confidential and cannot be disclosed to anyone else.
3. I will not go to the venue location prior to the jury selection proceedings for any reason in connection with the case except for overnight lodging immediately prior to the start of proceedings.
4. I will not broadcast, publish or in any way disclose the location of the venue change on any type of media, including but not limited to, the internet, social media, radio, television or publication of any type based solely on the information given to me by the court.
5. If, however, I determine the location where the jury selection will take place by independent means, I acknowledge that I am free to publish, broadcast or otherwise use said information in any way. The Court though will not confirm or deny any information in connection with the location of the venue change discovered through independent means.
6. I can be released from this Agreement after I am officially told the location of the venue by the Court upon receiving permission from the Court in the event other media outlets are broadcasting or otherwise publicizing the information.
7. If I fail to comply with this Agreement, my court-issued media credentials and the court-issued media credentials held by members of my organization will be revoked for the entire proceedings in this case and I may be held in contempt of court which could result in incarceration, a fine, or both.

An infirmity in the Confidentiality Agreement is that the trial court cannot selectively disclose a court order or decision to some members of the media while withholding it from others. There is no suggestion in this record that this information is confidential under Florida law or that public access may be limited in the manner contemplated by the Confidentiality Agreement. See Fla. R. Jud. Admin. 2.420. If the information at issue here were contained in a court record, it would be entirely clear that the trial court could not selectively give the order to some members of the media while withholding it from others. Art. I, § 24(a), Fla. Const. There is some indication in this case that the information to be disclosed under the Confidentiality Agreement was to be verbally communicated to the members of the media that signed the agreement before being subsequently reduced to writing in the form of an order. We consider, however, that the principle is the same and the outcome is the same. Further, the proposed agreement reflects inherent difficulties in both implementation and enforcement. As such, the Confidentiality Agreement cannot stand.

We vacate the portion of the order that implements the Confidentiality Agreement, but deny the request to order the trial court to immediately disclose the location of jury selection proceedings.

PETITION GRANTED in part and DENIED in part.

GRIFFIN, PALMER and EVANDER, JJ. concur.

      . The patties have identified no case law directly addressing the issues presented in this case, and we have found none.

      . Due to the unusual nature of the order at issue, it may reasonably be questioned whether we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.100(d); however, even if rule 9.100(d) does not confer jurisdiction, we have certiorari jurisdiction. See Fla. Publ'g Co. v. Brooke, 576 So.2d 842 (Fla. 1st DCA 1991). Petitioners acknowledge that the standard of review is "a material departure from the essential requirements of the law.”

      . The time the venire arrives and the time the trial commences are generally matters within the trial court’s discretion.

      . We need not address the constitutional issue of whether a media organization can be sanctioned for failure to comply with a "voluntary” prior restraint.


author: THOMAS, J. MARSTILLER, J.,

text:
    The SHAKESPEARE FOUNDATION, INC., and The Herd Community Development Corporation, Appellants, v. George JACKSON, Kerry Jackson, and Jackson Realty Team, Inc., a Florida corporation, Appellees.
    No. 1D10-1049.
    District Court of Appeal of Florida, First District.
    May 9, 2011.

      Leonard E. Ireland, Jr. of Clayton-Johnston, P.A., Gainesville, for Appellants.
    Jean Marie Downing of Downing Law Offices, P.A., Panama City Beach, for Ap-pellees.
   THOMAS, J.

In this appeal we consider whether the terms of a real estate contract required Appellants to arbitrate their tort claim. The trial court below determined the contract’s arbitration clause required arbitration, and dismissed the complaint. We reverse, finding that Appellants’ claim was not significantly related to the contract; thus, the contract’s arbitration clause did not govern the dispute. We further hold that opinions applying the Federal Arbitration Act do not control, because the transaction at issue here does not affect interstate commerce.

FACTS

The parties’ contract was for real property owned by Appellees. Appellees advertised the property in the local Multiple Listing Service, and included the following sentence: “Wetlands study verifies No Wetlands.” Appellants agreed to the price of $253,000 for the property, and signed a uniform real estate contract. The contract included the following provision:

14. DISPUTE RESOLUTION: This Contract will be construed under Florida law. All controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled as follows:
(b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the county where the Property is located. The arbitrator may not alter the Contract terms or award any remedy not provided for in this Contract .... This clause will survive closing.

(Some emphasis in original.) After closing, Appellants visited the property and became concerned that it contained wetlands. A new wetlands study ordered by Appellants revealed that wetlands covered approximately 26% of the property.

Appellants filed a complaint in March 2009, alleging the decision to buy the property was based on the advertisement, and they would not have purchased the land had they known 26% of the property was wetlands. Appellants asserted the advertisement was knowingly false when made, because before posting them advertisement Appellees possessed a study which indicated that 25% of the property was wetlands. Appellants alleged they missed a favorable housing market due to the wetlands and suffered more than $15,000 in damages because of Appellees’ fraudulent misrepresentation.

Appellees moved to dismiss the complaint, arguing the above-quoted contract language required arbitration. The trial court granted Appellees’ motion to dismiss, finding that the contract was the subject matter of the litigation, and the contract mandated arbitration.

ANALYSIS

Arbitration Not Compelled, By The Contract

Because the trial court’s dismissal is based upon the court’s construction of a contract, review is de novo. See Auchter Co. v. Zagloid, 949 So.2d 1189, 1191 (Fla. 1st DCA 2007). When ruling on a motion to dismiss, the trial court may look no further than the four corners of the complaint, and all allegations in the complaint must be accepted as true.” Nevitt v. Bonomo, 53 So.3d 1078, 1081 (Fla. 1st DCA 2010).

Florida public policy generally favors arbitration, and all doubts regarding the scope of an arbitration clause should be resolved in favor of arbitration, when practicable. Maguire v. King, 917 So.2d 263, 266 (Fla. 5th DCA 2005); Auchter, 949 So.2d at 1195 (“[Arbitration clauses are to be given the broadest possible interpretation in order to accomplish the purpose of resolving controversies out of court.”). The natural corollary to the general rule is that the parties’ intent controls which claims are arbitrable; parties cannot be forced to submit a dispute to arbitration that they have not agreed to arbitrate. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). When balancing these principles and determining whether to grant a motion to compel arbitration under either federal or state law, courts consider three elements: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id.

The issue here, Appellant’s fraud claim, primarily concerns the second prong. Following the Florida Supreme Court’s analysis in Seifert, we begin by examining wording of the arbitration clause. Id. at 636-37.

The Seifert court differentiated between narrow and broad arbitration provisions. Id. Narrow arbitration clauses are those that require disputes “arising out of’ or “under” a contract to arbitration. Id. When a narrow arbitration clause is present, arbitration is limited to those claims that have a direct relationship to the contract’s terms or provisions, or directly relate to contract interpretation or performance. Id. Broad arbitration provisions are those that require claims “arising out of or relating to” a contract to be arbitrated. Id. “The test for determining arbitrability of a particular claim under a broad arbitration provision is whether a ‘significant relationship’ exists between the claim and the agreement containing the arbitration clause, regardless of the label attached to the legal dispute.” Id. at 637-38 (quoting Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93-94 (4th Cir.1996)).

Based on the court’s instruction in Seifert, we hold the arbitration provision in this case is broad because, according to the contract, it requires “[a]ll controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach” to be arbitrated. Next, we must determine whether Appellants’ fraud claim has a significant relationship to the real estate contract.

This “contractual nexus” question is not answered in the affirmative simply because the dispute would not have arisen but for the contractual relationship. See Seifert, 750 So.2d at 638. Appellants and Appellees obviously would not be in this adverse situation had they not agreed to the contract; however, the claim at the center of the dispute arose from a general duty owed under common law, not from the contract. “[F]or a tort claim to be considered ‘arising out of or relating to’ an agreement, it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself.” Id.

Like the case sub judice, the parties in Seifert signed a real estate contract containing a broad arbitration provision. Id. at 635. U.S. Home Corporation built the Seiferts’ home and placed the air conditioning handling unit in the garage. Id. Mr. Seifert was killed when the air conditioner picked up carbon monoxide emissions from a car left running in the garage and distributed carbon monoxide in the home. Id.

The Seifert court agreed that the wrongful death action in that case was predicated on a common-law negligence theory unrelated to the rights and obligations created by the contract. Id. at 640. The absence of any language concerning the parties’ rights in the event of a personal injury arising out of tortious conduct created an ambiguity to be construed against the drafting party. Id. at 641. Like the contract here, the contract in Seifert specifically anticipated arbitration of disputes arising from interpretation, performance, and breach of contract, but not tort claims. Id. Finally, the Seifert court determined the factual allegations in the wrongful death claim were not dependent on U.S. Home Corporation’s contractual duties; the builder would have been liable to anyone harmed by its dangerous design. Id.

Applying the supreme court’s analysis to this case, we hold that Appellants’ fraud claim is not significantly related to the contract. Appellants’ common-law fraud claim does not require reference to or construction of the contract, nor does it invoke any contractual provision; Appellants’ arguments rest solely on Appellees’ allegedly false advertisement. The Florida Supreme Court has, in other areas of contract law, distinguished between tort claims that lie outside the contract. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239-40 (distinguishing fraudulent inducement from breach of contract for purposes of economic loss doctrine). The court further agreed that “ ‘a suit on a contract and a suit for fraud inducing the contract are two different causes of action with separate and consistent remedies.’ ” Id. (quoting Bankers Trust Co. v. Pacific Employers Ins. Co., 282 F.2d 106, 110 (9th Cir.1960)).

The contract here is incidental to the dispute, because Appellants theoretically could have raised their fraud claim even before the contract was signed if Appellants detrimentally relied on Appellees’ advertisement. In addition, the arbitration clause in the contract expressly contemplates remedies in case of breach by either party, but it specifically prohibits an arbitrator from awarding remedies not provided in the contract. None of the contractual language suggests the parties contemplated that intentional fraud claims would be resolved under the agreement.

Appellees rely on Beazer Homes Corp. v. Bailey, 940 So.2d 453, 455 (Fla. 5th DCA 2006), in support of their argument that the fraud claim here bore a significant relationship to the contract. Beazer Homes, however, did not result in an opinion of the Fifth District, as two judges on the panel concurred in result only. See Rowe v. Winn-Dixie Stores, Inc., 714 So.2d 1180, 1181 (Fla. 1st DCA 1998) (noting that where one member of an appellate panel concurs in result only, and another panel member dissents, there is no majority and the opinion does not stand as precedent), disapproved on other grounds by Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001); see also Tedder v. State, 12 So.3d 197 (Fla.2009) (holding no majority opinion existed from which review could be taken where second judge concurred in result only with written opinion, and third judge concurred in part and dissented in part from written opinion). See generally State v. Leveson, 147 So.2d 524 (Fla.1962) (explaining district court judgment reversing trial court should be supported by a majority opinion for trial court’s guidance on remand). Thus, we decline to discuss that judgment in our analysis.

Federal Arbitration Act Is Not Applicable

Appellees rely on Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), in which the United States Supreme Court reiterated that the Federal Arbitration Act requires “claims of fraud in the inducement of the contract generally” to be submitted to arbitration; claims alleging the agreement to arbitrate was fraudulently induced are properly submitted to the courts. 546 U.S. at 444-45, 126 S.Ct. 1204 (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). Thus, we acknowledge we would be forced to affirm if the parties’ dispute were governed by the Federal Arbitration Act. See Buckeye, 546 U.S. at 446, 126 S.Ct. 1204 (holding federal arbitration law applies in state and federal courts); see also Kaplan v. Divosta Homes, L.P., 983 So.2d 1208, 1210-11 (Fla. 2d DCA 2008) (applying Buckeye where contract expressly provided Federal Arbitration Act controlled).

Application of the Federal Arbitration Act in state court is premised on Congress’ power to regulate interstate commerce. See Prima Paint, 388 U.S. at 404, 87 S.Ct. 1801. A transaction involves commerce under the Federal Arbitration Act if it “in fact” affects interstate commerce. Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 280, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Here, the dispute does not affect interstate commerce because it involves the sale of one parcel of real estate in Panama City, Florida. Regarding the sale of real estate, the phrase lex loci rei sitae applies. See Kyle v. Kyle, 128 So.2d 427, 429 (Fla. 2d DCA 1961) (explaining an instrument conveying title in real property, which has its situs within a state, is governed by the law of the state). Several courts have reached the same conclusion: the sale of real estate is inherently intrastate; thus, the Federal Arbitration Act does not automatically govern arbitration agreements in contracts for the sale of real property. See Saneii v. Robards, 289 F.Supp.2d 855, 858-59 (W.D.Ky.2003); SI V, LLC v. FMC Corp., 223 F.Supp.2d 1059 (N.D.Cal.2002); Cecala v. Moore, 982 F.Supp. 609 (N.D.Ill.1997); Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348, 356-60 (Ala.2002); see also O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 184 (Fla.2006) (noting parties agreed Florida Arbitration Code applied in lieu of Federal Arbitration Act where two Florida corporations entered into agreement to construct condominium). This is true regardless of whether the transaction involves out-of-state purchasers. See id. More complex transactions related to real estate may involve interstate commerce. See Allied-Bruce, 513 U.S. at 268, 115 S.Ct. 834 (discussing lifetime termite prevention plan to protect personal home); Jansen Prop. of Fla., Inc. v. Real Estate Assoc., Ltd. VI, 674 So.2d 210, 212 (Fla. 4th DCA 1996) (holding real estate refinancing agreement involving diverse escrow corporations arbitrable under federal law). Because state law governs the parties’ contract, we must follow the Florida Supreme Court’s controlling precedent in Seifert.

Conflict Certified

We next address the Fifth District’s decision in Maguire v. King, 917 So.2d 263, 266 (Fla. 5th DCA 2005), as that decision could be read to support Appellees’ position. The plaintiffs in Maguire agreed to purchase property and relied upon a representation by the seller’s representative that the transaction would include two acres of drainage rights. Id. at 264. Important to our decision here, the parties in Maguire executed a written addendum to their real estate contract which included the drainage rights. Id. After closing, the plaintiffs discovered the seller previously transferred one acre of the drainage rights in a different transaction. Id. The plaintiffs sued for breach of contract in two counts, and three counts of fraud in the inducement, fraud, and negligent misrepresentation, all based on the same factual allegations. Id. at 265. Reasoning that the tort claims were “nonsensical when divorced from the contractual obligation” to deliver two acres of drainage rights, the court reversed and remanded so that the trial court could impose arbitration. Id. at 266-67. Because the parties’ dispute was directly related to duties arising from the contract, Maguire is distinguishable from this appeal. As that decision notes, “Though couched as torts, the [tort] allegations ... are identical to those supporting King’s breach of contract claim.” Id. at 267. To the extent that the decision in Maguire cannot be distinguished, we certify conflict.

Addressing the dissent’s position regarding Appellants’ contractual requirement to engage in due diligence by conducting an environmental evaluation, this does not require arbitration of Appellants’ fraudulent inducement claim, which is based on Appellees’ allegedly false advertisement. Appellants allege that Appellees knowingly concealed information that the property contained wetlands, despite them advertisement proclaiming “Wetlands Study Verifies No Wetlands.” Appellants allege an intentional tort, not negligence; thus, the contractual provision imposing a due diligence requirement may be admissible at trial regarding damages, but it does not compel arbitration.

CONCLUSION

Appellants’ fraud claim is not subject to arbitration because it was not significantly related to or dependent upon any duties or obligations created by the contract.

REVERSED and REMANDED; CONFLICT CERTIFIED.

VAN NORTWICK, J., concurs; MARSTILLER, J., dissents with opinion.

MARSTILLER, J.,

dissenting.

I respectfully dissent for I find two flaws in the majority’s analysis. First, the contract language shows the parties intended to arbitrate Appellants’ fraudulent inducement claim. Second, unlike the wrongful death claim in Seifert, the fraud claim in this case cannot stand in the absence of the parties’ contractual relationship because resolution of the claim requires reference to the contract.

To determine whether Appellants’ claim is arbitrable, “[t]he plain language of the agreement containing the arbitration clause is the best evidence of the parties’ intent.” Ballenisles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009) (citing Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993)). “The arbitration clause must be read together with the other provisions in the contract.” Id. This the majority has failed to do, focusing instead only on the arbitration language.

As to arbitration, the contract provides:

14. DISPUTE RESOLUTION: ...
All controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled as follows:
(b) All other disputes: Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve the matter through mediation, failing which the parties will resolve the dispute through neutral binding arbitration in the county where the Property is located. The arbitrator may not alter the Contract terms or award any remedy not provided for in this Contract.... This clause will survive closing.

(Second emphasis added.) Elsewhere in the contract and relevant to the condition of the property, which Appellants claim Appellees fraudulently misrepresented, there is this:

6. LAND USE: Seller will deliver the Property to Buyer at the time agreed in its present “as is” condition, with conditions resulting from Buyer’s inspections and casualty damage, if any, excepted.
(c) Inspections: (check (1) or (2) below)
(1) Feasibility Study: Buyer will, at Buyer’s expense and within 30 days from Effective Date (“Feasibility Study Period”), determine whether the Property is suitable, in Buyer’s sole and absolute discretion, for _ use. During the Feasibility Study Period, Buyer may conduct a Phase I environmental assessment and any other tests, analyses, surveys and investigations (“inspections”) that Buyer deems necessary to determine to Buyer’s satisfaction the Property’s engineering, architectural and environmental properties ... to determine the Property’s suitability for the Buyer’s intended use.
Buyer will deliver written notice to Seller prior to the expiration of the Feasibility Study Period of Buyer’s determination of whether or not the Property is acceptable. Buyer’s failure to comply with this notice requirement will constitute acceptance of the Property as suitable for Buyer’s intended use in its “as is” condition. If the Property is unacceptable to the Buyer and written notice of this fact is timely delivered to Seller, this Contract will be deemed terminated as of the day after the Feasibility Study period ends and Buyer’s deposit(s) will be returned after Escrow Agent receives proper authorization from all interested parties.
(2) No Feasibility Study: Buyer is satisfied that the property is suitable for Buyer’s purposes.... This Contract is not contingent on Buyer conducting any further investigations.

(Second emphasis added.) The contract reflects option (1) is checked.

It is evident the parties contemplated the property may turn out not to be suitable for Appellants’ purposes. Hence they made the sale of the property contingent on Appellants’ obtaining a feasibility study — to include an environmental assessment — and accepting the property, and provided contractual remedies should Appellants deem the property unsuitable. The arbitration provision covers “all” controversies or claims arising from or relating to “this transaction” (i.e., the sale of the property) or “this Contract.” The gravamen of Appellants’ claim is that Appel-lees fraudulently sold them land that cannot economically be built upon because it contains environmentally sensitive wetlands. As such, the fraudulent inducement claim squarely addresses the issue of the property’s suitability for Appellants’ purposes. Reading the land use and suitability provisions together with the unambiguous language in the arbitration provision, the ineluctable conclusion is that Appellant’s claim is precisely the type the parties intended would be arbitrated.

Appellants point out that under the contract, an arbitrator cannot award any remedy not provided for in the contract. They assert that because they are seeking damages including lost profits, and the contract does not provide for such damages, the parties did not intend to arbitrate the fraud claim. The majority seems to agree. Maj. op. at 1199. But parties to a contract surely can agree to limit their remedies. Cf. Kaplan v. Kimball Hill Homes Florida, Inc., 915 So.2d 755, 761 (Fla. 2d DCA 2005) (stating that parties can relinquish right to jury trial via contract and that agreement to arbitrate claims necessarily involves such a waiver). Thus the fact that recoupment of lost profits is not a remedy available to Appellants does not bear on whether the fraud claim is arbitrable. The court in Maguire v. King, 917 So.2d 263 (Fla. 5th DCA 2005), dismissed the same argument made by the party seeking to avoid arbitrating fraud and fraud in the inducement claims. The court reasoned, “these terms merely delineate the powers of the arbitrator and [are] remedial limitations, rather than restrictions on the scope of arbitration.” Id. at 267.

Not only does the parties’ contract evidence their intent to arbitrate Appellants’ fraudulent inducement claim, but under Seifert, the claim is arbitrable. “[T]he test for determining arbitrability of a particular claim under a broad arbitration provision is whether a ‘significant relationship’ exists between the claim and the agreement containing the arbitration clause, regardless of the legal label attached to the dispute (i.e., tort or breach of contract).” Seifert, 750 So.2d at 637-38 (citing Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93-94 (4th Cir.1996)). There must be “some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638. “[F]or a tort claim to be considered ‘arising out of or relating to’ an agreement, it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself.” Id. Certainly, the wrongful death claim at issue in Seifert could be resolved without reference to the parties’ home construction contract. As to the fraudulent inducement claim at issue in this case, the majority holds:

Appellants’ fraud claim is not significantly related to the contract. Appellants’ common-law fraud claim does not require reference to or construction of the contract, nor does it invoke any contractual provision.... The contract here is incidental to the dispute, because Appellants theoretically could have raised their fraud claim even before the contract was signed if Appellants detrimentally relied on Appellees’ advertisement.

Maj. op. at 1199.

But Appellants’ complaint refers to and attaches the parties’ contract. According to the complaint, Appellees advertised property for sale in the Multiple Listing Service, stating “Wetlands study verifies No Wetlands.” The complaint further alleges:

15. Based on the representation of no wetlands ... Plaintiffs entered into a Contract to purchase the property for the sum of $253,000 (Contract). A copy of the Contract is attached hereto as Exhibit B.
20. The representation made by the Jacksons and Jackson Realty in the Multiple Listing Service advertisement were [sic] knowingly false when made. If Plaintiffs had known that 26% of the land was wetlands they would not have purchased the subject property because 26% wetlands made the [affordable housing] project economically unfeasible.

Thus the detrimental reliance element of Appellants’ claim is the contract. In other words, but for the contract under which Appellants purchased the property, there is no fraudulent inducement claim. Moreover, resolution of the claim will necessarily implicate the contract’s land use and suitability provisions set forth swpra. Although, as the majority suggests, Appellants could, in the abstract, bring a common law fraud in the inducement claim that is independent of the parties’ contract, that is not the correct analysis under Sei-fert The question is whether this claim has a nexus to the contract. And the answer is decidedly yes. “ ‘[D]uties alleged under theories such as fraud in the inducement of a contract [and] fraud in the performance of a contract ... are duties dependent upon the existence of a contractual relationship between the parties.’” Kimball Hill Homes, 915 So.2d at 759 (quoting Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003)). “ ‘[T]here is a nexus between [such] tort claims’ and the contractual relationship.” Id. (quoting Henderson v. Idowu, 828 So.2d 451, 453 (Fla. 4th DCA 2002)).

For these reasons, I respectfully disagree with the majority’s analysis in this case and conclude the trial court’s order dismissing Appellants’ complaint should be affirmed.

      . "The essential elements to establish a claim for fraudulent inducement are: (1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another’s reliance; and (4) the other party justifiably relied on the false statement to its detriment.” Rose v. ADT Sec. Servs., Inc., 989 So.2d 1244, 1247 (Fla. 1st DCA 2008).

      . The fact that this is a uniform real estate contract did not preclude the parties from excising the land use provisions had they seen fit to do so.

      . I concur that under Seifert, the arbitration provision at issue in this case is properly classified as broad.

      . Notably, in the paragraph preceding their demand for jury trial, Appellants allege: "Pursuant to the terms of the Contract referred to herein as Exhibit B, Plaintiffs are entitled to have their attorneys’ fees paid by the Defendants.” The only fee provision in the contract follows the arbitration provision and reads, in pertinent part:'
      (c) Mediation and Arbitration; Expenses: ... The parties will equally divide the mediation fee, if any.... Each party to any arbitration will pay its own fees, costs and expenses, including attorneys’ fees, and will equally split the arbitrators’ fees and administrative fees of arbitration. In a civil action to enforce an arbitration award, the prevailing party to the arbitration shall be entitled to recover from the nonprevailing party reasonable attorneys' fees, costs and expenses.

      (Emphasis added.)


text:
    Chievy JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1733.
    District Court of Appeal of Florida, First District.
    May 9, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Chievy Jones, asserts that the trial court erroneously conducted a resentencing hearing without the presence of counsel or Appellant. We agree.

Appellant filed a Motion to Correct an Illegal Sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. The trial court granted the motion in part, concluding that the HVFO designation on the armed kidnapping counts and the 15-year minimum mandatory sentences should be stricken. However, the trial court conducted the resentencing without Appellant or his counsel present. Cross v. State, 18 So.3d 1235, 1236 (Fla. 1st DCA 2009). Accordingly, we reverse and remand for a resentencing hearing in the presence of Appellant and his counsel. Id.; Bines v. State, 837 So.2d 1146, 1147 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

WOLF, PADOVANO, and ROWE, JJ., concur.


text:
    Raymel J. ROQUE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-862.
    District Court of Appeal of Florida, Third District.
    May 11, 2011.
    Raymel J. Roque, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Holmes v. State, 11 So.3d 444 (Fla. 3d DCA 2009).