author: WARNER, J.

text:
    RIVER BRIDGE CORPORATION, a foreign corporation and River Bridge Realty Corporation, a foreign corporation, Appellants, v. AMERICAN SOMAX VENTURES, a Florida General partnership through its Partners, American Home Development Corp., Somax Development Corp., MSF International, Inc., a Florida corporation, Mobil Oil Corporation, a foreign corporation, and Mobil Land and Development Corporation, a foreign corporation, Appellees.
    Nos. 4D09-1589, 4D10-857.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Jorge A. Mestre and Ana C. Munoz of Rivero Mestre LLP, Miami and Michael B. Buckley and Bradley T. Guldalian of Buckley & Curtis, St. Petersburg, for appellants.
    Gerald F. Richman, Bruce A. Christensen and Michael J. Napoleone of Richman Greer, P.A., West Palm Beach, for appel-lees American Somax Ventures, American Home Development Corp., Somax Development Corp. and MSF International, Inc.
   WARNER, J.

Prior to reversal of a judgment of $8,573,804 in favor of appellee, American Somax Ventures (“ASV”), the trial court entered an award of attorney’s fees to the ASV of $3,553,376.09, based upon a lodestar amount and a Rowe contingency factor of 2.0. When the final judgment was reversed, the appellants moved for relief from the attorney’s fee judgment, because of the reversal of the underlying judgment. The trial court denied the same without a hearing. We reverse, concluding that a hearing is necessary to determine the proper attorney’s fee award.

The protracted dispute in this case arose out of a breach of contract lawsuit commenced by ASV in 2000 against the appellants, River Bridge Corporation and River Bridge Realty Corporation (collectively referred to as “River Bridge”). A detailed factual history of that litigation is set forth in this court’s opinion in River Bridge Corp. v. American Somax Ventures, 18 So.3d 648 (Fla. 4th DCA 2009). In brief, ASV had contracted with River Bridge to build homes in the first pod of a large development owned by River Bridge. Part of the contract obligated River Bridge to build amenities for the development and to market the homes built by ASV. River Bridge also gave ASV a right of first refusal for other pods in the development. ASV did not sell as many homes as it anticipated, and when River Bridge sent notices of its intent to sell the remaining pods, ASV considered these not in compliance with the right of first refusal and as constituting an anticipatory breach of contract.

Eventually, ASV filed suit for breach of contract in 2000. It alleged that River Bridge breached its contract both by failing to construct the amenities and by violating its right of first refusal. It also sued for a violation of the agreement to market the ASV homes.

As set forth in River Bridge, the jury made an award of $1,248,817 as damages for the River Bridge’s failure to build the amenities and properly market the property. The remaining sum [$7,324,987] was awarded for lost profits for each of the parcels subsequently built and sold by other builders in breach of the right of first refusal. Id. at 650. River Bridge appealed.

While the appeal was pending, ASV moved for and was awarded fees based upon the contract. The parties stipulated that ASV was entitled to fees as the prevailing party. The trial court applied a 2.0 contingency fee multiplier to a lodestar amount of $1,576,434.85 for an award of attorney’s fees in the amount of $3,152,869.70, plus prejudgment interest, resulting in a total fee judgment of $3,553,376.09. River Bridge appealed this judgment.

In River Bridge, this court reversed the award for breach of the right of first refusal, concluding that the testimony supporting the award of lost profits was too speculative to justify recovery. We remanded to the court to vacate that portion of the award. Thus, ASVs recovery was reduced by nearly 85%.

After the reversal, River Bridge moved the court for relief from the attorney’s fees judgment, arguing that the trial court should vacate the fee judgment and hold an evidentiary hearing to determine which party prevailed in the underlying action, and the amount of attorney’s fees and costs to which that party was entitled. During the pendency of the appeal of the fee judgment, this court relinquished jurisdiction for the trial court to consider appellants’ rule 1.540 motion. Without holding an evidentiary hearing, the trial court denied the motion, stating that it would have awarded the same amount had the jury awarded only the $1,248,817 which was upheld by the appellate court. River Bridge also appeals that order.

We address the denial of the motion for relief from judgment first. We hold that the trial court erred in failing to conduct an evidentiary hearing on the motion.

Florida Rule of Civil Procedure 1.540(b)(5) provides for relief from a judgment where “a prior judgment or decree upon which it is based has been reversed or otherwise vacated.” In this case, the attorney’s fees award was based upon the earlier final judgment which was substantially reversed by our court. Where a judgment on which attorney’s fees are predicated is reversed, the attorney’s fees judgment should generally be reversed for further proceedings also. See, e.g., Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1096 (Fla. 4th DCA 2006); Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999). Generally, an evidentiary hearing is required on a motion for relief, unless the allegations do not state a colorable entitlement to relief. See Schuman v. Int’l Consumer Corp., 50 So.3d 75 (Fla. 4th DCA 2010). Here, we conclude they do.

River Bridge contends that ASV is not the prevailing party after reversal of the right of first refusal portion of the judgment, which is a separate and distinct claim from the remaining claims on which it recovered. Although ASV claims that the various claims were'inextricably intertwined and arose out of a common core of facts, this is a matter substantially in dispute.

The determination of an award of attorney’s fees is within the sound discretion of the trial court and will not be disturbed on appeal, absent a showing of a clear abuse of that discretion. Centex-Rooney Constr. Co. v. Martin Cnty., 725 So.2d 1255, 1258 (Fla. 4th DCA 1999). “However, the determination of whether multiple claims within a lawsuit are separate and distinct is a matter of law to be reviewed de novo.” Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). Further, the party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible. Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003).

“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). However, in a multicount action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim. See Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986).

Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Pappert v. Mobilinium Assocs. V, 512 So.2d 1096, 1099 (Fla. 4th DCA 1987). Where the plaintiff achieved only limited success, the trial court should award only that amount of fees that is reasonable in relation to the results obtained. Id. However, in Chodo-row v. Moore, 947 So.2d 577 (Fla. 4th DCA 2007), we examined the principles to be applied in awarding fees where claims are inextricably intertwined:

In the event a party is entitled to an award of fees for only some of the claims involved in the litigation, i.e., because a statute or contract authorizes fees for a particular claim but not others, the trial court must evaluate the relationship between the claims and “where the claims involve a ‘common core’ of facts and are based on ‘related legal theories,’ a full fee may be awarded unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought [or were authorized ].”

Id. at 579 (emphasis and alterations in original) (citations omitted).

In addition to the issue of whether claims are related or separate and distinct, the reversed final judgment changes the “results obtained,” a factor in determining the lodestar amount for fee calculation under Rowe. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). As noted in Fashion Tile & Marble, Inc. v. Alpha One Constr. & Associates, Inc., 532 So.2d 1306 (Fla. 2d DCA 1988),

The results obtained factor may provide an independent basis for reducing the lodestar when a party prevails on a claim or claims for relief but is unsuccessful on other unrelated claims. Rowe. When a party prevails on only a portion of the claims made in the litigation, the trial court is required to evaluate the relationship between the amount of the fee awarded and the extent of success.

Id. at 1308.

An evidentiary hearing is necessary on these two issues. First, the court must address whether the issue of the right of first refusal constitutes a distinct claim which can be separated from the other issues. At the original hearing on attorney’s fees, the parties did not discuss the interrelatedness of the various claims. They didn’t have to. ASV had prevailed on all claims. With this court’s reversal, ASV has not prevailed on the right of first refusal claim. Our own review of the prior appeal, as well as the attorney’s fees hearing, indicates that the evidence presented on the right of first refusal claim appears to have been distinct and different from the evidence in support of the other claims, particularly with respect to damages. The parties also appear to have treated the claim for breach of the right of first refusal as separate and distinct from their other contractual claims, as the jury entered separate awards for damages on this claim. Without this issue being addressed in an evidentiary hearing, the record does not support ASV’s contention that the claims were inextricably intertwined.

Even though all claims arose out of the same contractual relationship, they can be separate and distinct for purposes of an award of prevailing party attorney’s fees. See, e.g., Avatar Dev. Corp. v. DePani Constr., Inc., 883 So.2d 344, 346 (Fla. 4th DCA 2004) (holding that construction lien claim was separate and distinct from claim for loss of future profits pled in a separate count, such that the prevailing party on each claim was entitled to attorney’s fees); Rosen Bldg. Supplies, Inc. v. Krupa, 927 So.2d 899, 900 (Fla. 4th DCA 2005) (holding that claim for unpaid wages was separate and distinct from claim for wrongful termination); Fielder v. Weinstein Design Group, Inc., 842 So.2d 879, 880 (Fla. 4th DCA 2003) (holding that interior designer’s claim for unpaid merchandise was separate and distinct from client’s counterclaim for improper charges even though both claims were based on a single contractual relationship); Warshall v. Price, 629 So.2d 905, 908 (Fla. 4th DCA 1993) (“The claim for failure to negotiate the partnership agreement in good faith, however, could have been researched, litigated and billed by Price’s counsel without the initial employment agreement ever existing.”). To the extent that it is separate, ASV would not be entitled to attorney’s fees for prosecuting it.

Second, even if the trial court concludes that the claims are not separate, the results obtained have drastically changed. This may or may not require a reduction of the amount claimed. At the very least, the court should review those significant portions of attorney’s fees and costs related to the proof of damages which was entirely rejected in our prior opinion and caused the reversal of the damage award.

As to the issues raised on the original appeal of the fee judgment, we affirm the trial court’s application of a 2.0 contingency fee risk multiplier, as it is supported by competent substantial evidence.

We thus reverse and remand for the trial court to conduct an evidentiary hearing in accordance with this opinion.

LEVINE and CONNER, JJ., concur.

      . The trial judge who conducted the hearing on attorney's fees did not also try the case and thus did not have personal knowledge of the various issues and how the case was tried.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Herman P. MAESTAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5349.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Herman Maestas appeals his conviction and sentence for possession of a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2010). The trial court sentenced him to 27.3 months in prison. On appeal, he argues (1) the trial court erred in sustaining the State’s objection based on improper impeachment; (2) the trial court erroneously imposed various costs and fees; and (3) the statute under which he was convicted, section 893.13, is facially unconstitutional. As to the first issue, we find that the record on appeal does not demonstrate reversible error and affirm without further comment. We find merit in Maestas’ second argument but reject his constitutional challenge to section 898.13.

After his conviction, the trial court imposed a $100 cost of prosecution fee, a $400 public defender fee, and an additional $25 fee, without orally pronouncing them in open court. We hold that the trial court correctly imposed the $100 fee for costs of prosecution, as section 938.27(8), Florida Statutes (2010), mandates that such costs shall be set at no less than $100 per case when a felony offense is charged, as is the case here. However, we agree with Maestas that the $400 public defender fee was erroneously imposed because the trial court failed to make factual findings warranting the imposition of the additional $300. § 938.29, Fla. Stat. (2010); Houle v. State, 33 So.3d 822, 823 (Fla. 4th DCA 2010). We therefore remand to the trial court to reduce the public defender fee to the statutorily required $100 or to hold a hearing with proper notice to Maestas, allowing him the opportunity to object to the additional $300 imposed. See Houle, 33 So.3d at 823. Regarding the additional fee of $25, Broward County Ordinance, section 21-16.2, pursuant to section 938.13, Florida Statutes, mandates that an additional cost of $15 shall be imposed when any person is found guilty of any misdemeanor involving the unlawful use of drugs or alcohol. Although the trial court lowered this fee to $15 in its order, the order was untimely rendered, and thus a nullity. We therefore remand for entry of a new order consistent with this opinion.

Maestas next argues for the first time on appeal that section 893.13 is facially unconstitutional for the reasons expressed in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). Maestas further argues that if section 893.13 is not unconstitutional, it is a strict liability crime, with a maximum sentence of two years’ imprisonment. We disagree and uphold the constitutionality of section 893.13 and conclude that section 893.101 does not create a strict liability crime. We find the reasoning of Shelton unpersuasive and decline to adopt its holding.

In Shelton, a judge of the United States District Court for the Middle District of Florida found section 893.13 to be unconstitutional on substantive due process grounds. Shelton, 802 F.Supp.2d at 1296-98, 2011 WL 3236040 at *4-*5. The opinion concluded that section 893.101 removed all mens rea as an element from section 893.13, thereby creating a strict liability offense. Id. As a strict liability offense, the court declared section 893.13 unconstitutional because its penalties are too severe. Id. at 1300-06, at *7-*12.

We first note that this court has already held that section 893.101, Florida Statutes, is constitutional. Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005). Moreover, decisions of lower federal courts, including rulings that a state statute violates the U.S. Constitution, are not binding on state courts; rather, they are persuasive, if well reasoned. State v. Dwyer, 382 So.2d 333, 334-35 (Fla.1976); Bradshaw v. State, 286 So.2d 4, 6-7 (Fla. 1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974). We find Shelton unpersuasive, as the decision is based on the faulty premise that section 893.101 removed all mens rea from section 893.13 offenses, such that a defendant is strictly liable for any unknowing possession or delivery. In our view, section 893.101 did not remove the guilty knowledge element from these offenses, thereby converting section 893.13 offenses into strict liability crimes. Instead, it merely abrogated the additional “knowledge of illicit nature” element, added by the supreme court in Chicone v. State, 684 So.2d 736 (Fla.1996). Section 893.13 remains constitutional.

Courts are obligated to construe statutes in a manner which avoids an unconstitutional interpretation. State v. Giorgetti, 868 So.2d 512, 518 (Fla.2004). Interpretations of statutes as not requiring a mens rea element are disfavored, and absent clear legislative intent to dispense with scienter, courts will assume guilty knowledge is required and will read a guilty knowledge component into a statute that is silent as to mens rea. Id. at 515-20. Although knowledge of presence is not expressly required by the text of section 893.13, such knowledge has always been required in drug possession cases. Id.; State v. Oxx, 417 So.2d 287, 290 (Fla. 5th DCA 1982). Section 893.13 is no exception. Indeed, the standard jury instruction for possession of a controlled substance requires the jury find that “([defendant) had knowledge of the presence of the substance.” Fla. Std. Jury Instr. (Crim.) 25.2.

In Chicone, the court recognized that “guilty knowledge” is required for a conviction under section 893.13 and that knowledge of presence must be established in a drug possession cases. Chicone, 684 So.2d at 740-41. However, Chicone went further, creating an additional scienter requirement: Knowledge of the “illicit nature” of the substance. Id. at 744. The legislature superseded this fourth element with the enactment of section 893.101. Miller v. State, 35 So.3d 162, 163 (Fla. 4th DCA 2010). See also Garcia v. State, 901 So.2d 788, 791-93 (Fla.2005) (recognizing that “guilty knowledge” includes knowledge of presence and is an element of the offense of possession that must be proven beyond a reasonable doubt).

Lack of knowledge of the illicit nature of a substance is distinct from lack of knowledge of the presence of the substance. See Barrientos v. State, 1 So.3d 1209, 1217 (Fla. 2d DCA 2009); De La Cruz v. State, 884 So.2d 349, 351 n. 1 (Fla. 2d DCA 2004). A defendant’s claim that he or she did not know that white powder was concealed in an item possessed is different from the claim that he or she did not know that the concealed powder was an illegal drug.

In response to the holdings in Chicone and Scott v. State, 808 So.2d 166 (Fla. 2002), the legislature enacted section 893.101, which provides:

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla.2002) and Chicone v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

Id. (emphasis added). “The statute does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense.” Wright, 920 So.2d at 24 (emphasis added). The statute does not indicate any intent to do away with all guilty knowledge or to remove knowledge of presence as an element. As such, “[a] defendant charged under section 893.13 can concede all the elements of the offense, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he did not know of the illicit nature of the specific substance.” Burnette v. State, 901 So.2d 925, 927 (Fla. 2d DCA 2005) (emphasis added).

Section 893.101 recognizes that “actual or constructive possession” must be found for the presumption to apply. See also Fla. Std. Jury Instr. (Crim.) 25.7 (“[Y]ou are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance”) (emphasis added). The State must prove knowledge of presence in order to establish actual or constructive possession. Thus, the permissive presumption that a defendant knew the illicit nature of the substance does not apply if a defendant is unaware of the presence of the substance.

Section 893.13 offenses are general intent crimes and, although not expressly stated in the statute, require that the defendant voluntarily commit the proscribed act. See, e.g., Linehan v. State, 442 So.2d 244, 246-48 (Fla. 2d DCA 1983) (describing the distinction between general and specific intent crimes). Contrary to the holding of Shelton, the statute does not punish strictly an unknowing possession or delivery.

Finally, the existence of the affirmative defense set out in section 893.101 undermines the notion that the legislature has created a strict liability crime. To this point, we agree with the reasoning set forth by the First District in its recent opinion of Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011):

[Shelton] misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So.2d at 25 (explaining that section 893.101 “does not require the defendant to prove or disprove knowledge”); rather, the statute provides that if the defense is raised, the state has the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs. Id.; see also Fla. Std. Jury Instr. (Crim.) 25.7 (explaining that the jury should find the defendant not guilty if they “have reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance”). Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies.

Id. at 140-41 (footnote omitted).

We hold that section 893.101 did not remove scienter from section 893.13 offenses and did not create an unconstitutional strict liability crime.

Affirmed in part, and Reversed and Remanded in part.

GROSS and CONNER, JJ., concur.

      . Maestas filed a motion to correct sentencing error, pursuant to rule 3.800, Florida Rules of Criminal Procedure, thus preserving this issue for appeal. See Ortiz v. State, 884 So.2d 77, 78 (Fla. 2d DCA 2004) (holding that appellant preserved this issue by filing a rule 3.800(b) motion). However, the trial court entered its order, denying Maestas’ rule 3.800 motion, but lowering the additional $25 cost to $15, more than sixty days after Maestas filed his motion. Pursuant to rule 3.800(b)(2), the motion is deemed denied and the subsequent order on the motion is a nullity. Sessions v. State, 907 So.2d 572, 573 (Fla. 1st DCA 2005) (citing Campbell v. State, 789 So.2d 1213 (Fla. 1st DCA 2001)); Wilson v. State, 853 So.2d 1119 (Fla. 4th DCA 2003).

      . The facial constitutionality of a statute can be raised for the first time on direct appeal. Jean v. State, 764 So.2d 605, 606 (Fla. 4th DCA 1999); Trushin v. State, 425 So.2d 1126, 1129 (Fla. 1982).

      . The State is entided to a jury instruction allowing a jury to infer knowledge of presence from actual or exclusive constructive possession. See State v. Williamson, 813 So.2d 61, 64-65 (Fla.2002); State v. Medlin, 273 So.2d 394 (Fla. 1973). This inference allows the State to make a prima facie case of knowledge of presence without direct proof but does not eliminate knowledge of presence as an element that the jury must find to convict. Permissive inferences, which are also known as permissive presumptions, have repeatedly been upheld and ruled constitutional because they do not shift the burden of proof. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 156-57, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Walker v. State, 896 So.2d 712, 715-20 (Fla.2005).


author: ROTHENBERG, J.

text:
    GROVE ONE REALTY, LLC, et al., Appellants, v. OCEAN BANK, Appellee.
    No. 3D10-2270.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Bushell Appellate Law, P.A., and Daniel A. Bushell, Boca Raton, for appellants.
    Carlton Fields, P.A., and Jack R. Reiter, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The appellants, Grove One Realty, LLC (“Grove Realty”), Grove One Management, LLC (“Grove Management”) (collectively, “Mortgagors”), Guy Mitchell, and Amelia Mitchell, appeal from a final judgment of foreclosure entered in favor of Ocean Bank. We affirm, but remand solely for a modification of damages and liability consistent with this opinion.

In September 2008, Grove Realty obtained a loan from Ocean Bank, which was secured by a promissory note (“the September 2008 Grove Realty Note”) and a mortgage on real property owned by Grove Realty (“the September 2003 Grove Realty Mortgage”). Thereafter, in November 2003, Grove Management obtained a loan from Ocean Bank, which was secured by a promissory note (“the November 2003 Grove Management Note”) and a mortgage filed on property owned by Grove Management. Finally, in December 2005, Grove Realty obtained a second loan from Ocean Bank, which was secured by a promissory note (“the 2005 Grove Realty Note”) and a mortgage on the same property encumbered by the September 2003 Grove Realty Mortgage. Guy Mitchell guaranteed all three notes, whereas Ame-ba Mitchell guaranteed the two notes executed in 2003.

In September 2008, Ocean Bank filed an action seeking to foreclose the three mortgages, asserting that pursuant to the mortgages, the three notes were in default because a receiver was appointed over a substantial part of the Mortgagors’ assets, and the order appointing the receiver had remained unstayed for more than thirty days. Thereafter, in 2009, Ocean Bank filed an amended complaint, alleging an additional default because the Mortgagors failed to make monthly payments or pay the real property taxes.

Ocean Bank filed a motion for summary judgment, attaching supporting affidavits. The trial court granted the motion for summary judgment, and thereafter, on July 30, 2010, entered a final judgment of foreclosure in favor of Ocean Bank and against the guarantors, Guy Mitchell and Amelia Mitchell, and the Mortgagors. As to the September 2003 Grove Realty Note, Ocean Bank was awarded $6,359,678.65; as to the November 2003 Grove Management Note, Ocean Bank was awarded $492,698; and as to the 2005 Grove Realty Note, Ocean Bank was awarded $2,227,849.05. This appeal followed.

In this appeal, the appellants contend the trial court erred by granting Ocean Bank’s motion for summary judgment where the Mortgagors did not default. In addition, the appellants contend that even if the trial court properly concluded that the Mortgagors defaulted, the trial court erroneously calculated the damages and erroneously held Amelia Mitchell liable for the 2005 Grove Realty Note. We affirm the entry of final judgment of foreclosure without any further discussion as the trial court properly concluded that the Mortgagors defaulted, but remand for a modification of the final judgment to reflect that Amelia Mitchell is not liable for the 2005 Grove Realty Note, and for a modification of. the amounts awarded to Ocean Bank consistent with this opinion.

First, as to the September 2003 Grove Realty Note, the trial court erroneously determined that the default interest rate ran from April 30, 2008, to March 11, 2010, instead of through the date of the final judgment, July 30, 2010. Therefore, we instruct the trial court to modify the final judgment to reflect that the default rate on the September 2003 Grove Realty Note runs through the date of the final judgment, July 30, 2010, and to recalculate the amount owed to Ocean Bank.

Second, as to the November 2003 Grove Management Note, the trial court found that the default interest rate ran from August 6, 2008, to March 11, 2010, instead of through the date of the final judgment, July 80, 2010. Therefore, as with the September 2003 Grove Realty Note, we instruct the trial court to modify the final judgment to reflect that the default interest rate runs through the date of the final judgment, July 30, 2010, and to recalculate the amount owed to Ocean Bank.

Finally, as to the 2005 Grove Realty Note, as the final judgment correctly reflects that the default interest rate runs through the date of the final judgment, July 30, 2010, we find no error in the calculation of those damages.

Accordingly, we affirm entry of the final judgment of foreclosure in favor of Ocean Bank, but remand for a modification as reflected in this opinion.

Affirmed, but remanded for a modification.

      . Ocean Bank concedes that Amelia Mitchell is not liable for the 2005 Grove Realty Note as she did not sign a personal guaranty for that loan.


author: PER CURIAM. EMAS, J., LAGOA, J.

text:
    MARSHALL, AMAYA & ANTON, etc., et al., Appellants, v. Karin ARNOLD-DOBAL, D.O., Appellee.
    No. 3D10-1939.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Genovese Joblove & Battista, and Richard Sarafan, Miami, for appellants.
    Robert H. Fernandez, for appellee.
    Before RAMIREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

This is an appeal from an order denying appellants Marshall, Amaya & Anton, etc., et al.’s, motion to compel arbitration based on an arbitration clause contained in an Employment Agreement, the validity and enforceability of which the appellants simultaneously challenge. The case law supports the appellants’ argument that unless there is a challenge to the arbitration provision which is separate and distinct from any challenge to the underlying contract, the case should be submitted to arbitration. See Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir.1990) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 895, 402-04, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). We therefore reverse and remand with directions to order arbitration.

RAMIREZ and EMAS, JJ., concur.

EMAS, J.,

concurring.

I concur that reversal is warranted, as the trial court erred in denying arbitration under the allegations of the second amended complaint. I write to further explain why arbitration should have been compelled even before the filing of the second amended complaint.

Dobal filed a complaint against Marshall Amaya and others, alleging that Dobal was employed by Damus, Ecker, Rosenthal and Marshall, M.D., P.A., (“Damus Ecker”) in 1997 pursuant to a written employment agreement (“the Employment Agreement”). Dobal attached the Employment Agreement to the complaint and alleged that, at the time she entered into the Employment Agreement, Damus Ecker orally promised Dobal a multi-year partnership agreement (“Oral Partnership Agreement”). Dobal alleged it was further agreed that this partnership would be accomplished by a written addendum to the Employment Agreement. In 2009, when no partnership materialized for Do-bal, she left her employment and filed suit. Her initial complaint alleged that Marshall Amaya was sued as the “successor entity” to Damus Ecker, and that Marshall Amaya assumed the responsibilities and liabilities under the Employment Agreement. Do-bal asserted causes of action for, inter alia, breach of the Employment Agreement.

Marshall Amaya filed a motion to dismiss, raising various defenses, including a statute of frauds defense to the Oral Partnership Agreement. The motion to dismiss also asserted that Dobal was required to arbitrate her claims pursuant to the arbitration provision in the Employment Agreement. The trial court granted the motion to dismiss and gave Dobal leave to amend her complaint.

An amended complaint was filed and, like the original complaint, also attached, relied upon, and made reference to the terms of, the Employment Agreement. Dobal continued to assert that Marshall Amaya was the successor entity to Damus Ecker and, as such, expressly or impliedly assumed the obligations and liabilities of Damus Ecker under the original Employment Agreement. Dobal alleged that the oral promise of a multi-year partnership, made at the time of her employment, was intended to be a “partnership addendum” to the original Employment Agreement. Dobal asserted claims against Marshall Amaya for constructive termination and breach of both the Employment Agreement and the Oral Partnership Agreement.

Marshall Amaya moved to dismiss the amended complaint, raising several defenses. As with the initial complaint, Marshall Amaya again sought to compel arbitration under the express terms of the Employment Agreement.

At the hearing on the motion to dismiss the amended complaint, the trial court denied the motion to dismiss, finding that Dobal’s amended complaint stated a cause of action. In announcing its decision, the trial court stated:

[B]ased upon the fact that you have alleged that ... your partnership agreement was an addendum to the original [written] agreement, I’m inclined to say, if it cannot stand on its own, meaning if your partnership agreement is not independent and cannot stand on its own, and it is simply an addendum, than I also think that I have to look at this arbitration clause that is in the contract that says that you all need to arbitrate.
The only thing that is going to happen is counsel is going to come in, once I have stated you have a cause of action, counsel is going to come in and move to compel arbitration.
I’m just telling you what I’m thinking. And if this addendum is part of your cause of action, I think it goes to arbitration, based upon the way it is plead. If it is not, then it — I have already stated that you stated a cause of action.

The court entered a written order which provided that “with the exception of the arguments concerning arbitration, [Marshall Amaya’s] Motion to Dismiss the Amended Complaint is hereby DENIED.” With regard to Marshall Amaya’s “arguments concerning arbitration”, the trial court stated in its order:

The court is concerned that the current allegations of the Amended Complaint appear based upon an alleged Employment Agreement containing a clear and express provision requiring arbitration of all disputes arising under or relating to such agreement under the rules of the American Arbitration Association; and the Court notes that Defendants, from the outset and consistently thereafter, raised this arbitration provision in their defensive motions.

However, instead of granting Marshall Amaya’s motion to compel arbitration, the trial court, in the very same order in which it denied the motion to dismiss the amended complaint, granted Dobal leave to amend the complaint again to avoid being bound by the Employment Agreement’s “clear and express provision requiring arbitration.” In this regard, the trial court erred. As this Court held in Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006): “When considering a motion to compel arbitration, three factors need to be considered: (1) whether a valid agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived.” One need look no further than the trial court’s order denying the motion to dismiss to conclude that the trial court had considered all three factors and had concluded (absent another attempt to amend the complaint) that arbitration was required. Upon finding that Dobal’s amended complaint stated a cause of action (and denying the motion to dismiss the amended complaint), and having determined that there was a valid agreement to arbitrate, an existing arbitrable issue, and no waiver of the right to arbitrate, the trial court should have followed the requirements of section 682.03(1), Florida Statutes, which provides:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

LAGOA, J.

(dissenting).

For the following reasons, I respectfully dissent. In 1997, the appellee, plaintiff below, Karin Arnold-Dobal (“Dobal”), entered into an original employment agreement with Damus, Ecker, Rosenthal and Marshall, M.D., P.A. d/b/a Emergency Room Medical Associates (“ERMA”). The employment agreement contained the following arbitration clause:

All claims, disputes and other matters in question between the parties arising out of, or relating to this Agreement, or the breach thereof, shall be decided by three person arbitration in accordance with the rule of the American Arbitration Association unless the parties mutually agree otherwise in writing, (emphasis added)

Although there were multiple restructures of the entity doing business as Emergency Room Medical Associates, it is undisputed that Dobal continued to work as an emergency room physician and received a salary and benefits. The appellants, defendants below, Marshall, Amaya & Anton, P.L., Jorge Amaya, and Xavier Anton, were not signatories to the employment agreement. Only one of the defendants, John Marshall, signed the employment agreement; however, Marshall signed the employment agreement as president of Damus, Ecker, Rosenthal & Marshall, M.D., P.A., and not in his individual capacity.

At all times below, the defendants claimed that they were not parties to the employment agreement and that they could not be bound by its terms. Despite the defendants’ claim, and their claim that Dobal was not employed under the em~ ployment agreement, defendants simultaneously asserted that Dobal’s claims under her Second Amended Complaint were subject to the arbitration clause in the employment agreement.

Dobal’s claims are based on an alleged breach of an offer in 2006 to make Dobal a partner in ERMA in early 2008. Contrary to the concurring opinion’s assertion in footnote 1 that there is an “undeniable nexus and inextricable link” between Do-bal’s claims in the Second Amended Complaint and the 1997 employment agreement, Dobal’s allegations regarding the terms of the offer and its breach do not rely on or reference the 1997 employment agreement. Nor does Dobal seek relief under the employment agreement.

Because the claims asserted by Dobal in her Second Amended Complaint do not arise out of or relate to the 1997 employment agreement, the defendants’ claim that the trial court erred in failing to grant the motion to compel arbitration is without merit.

“When considering a motion to compel arbitration, three factors need to be considered: (1) whether a valid agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived.” Roth, 941 So.2d at 499. In order to compel arbitration, there must be a sufficient nexus between the claim and the contract containing the arbitration clause. Id. (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999)). As the Florida Supreme Court stated in Seifert, in order for a claim to be considered “arising out of or relating to” a contract, “it must, at a minimum, raise some issue the resolution of which requires reference to or construction of some portion of the contract itself.” 750 So.2d at 638. Additionally, the “mere fact that the dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one ‘arising out of or relating to’ the agreement.” Id.

Here, Dobal’s claims against Marshall, Amaya & Anton, P.L., Jorge Amaya, Xavier Anton, and John Marshall do not raise issues the resolution of which require “reference to or construction of’ the 1997 employment agreement. A review of the factual allegations, paragraphs 18 through 82 (R. 342-347), show that each of Dobal’s claims rely upon a partnership offer that began with oral communications by Marshall in 2006, and was later memorialized in e-mail communications dated from February 9, 2008 (Ex. G-P, R. 385^409). Count I in the Second Amended Complaint alleges a breach of contract “arising out of the partnership agreement between Dobal and ERMA to become a partner in ERMA as of February 1, 2008.” Specifically, “[a]s memorialized in the e-mails and communications between the parties, ERMA was required by the partnership agreement to make Dobal’s partnership effective February 1, 2008.” (R. 349) (emphasis added). Dobal’s four other counts also assert claims based only upon the e-mails and oral communications: Count II claims breach of implied duty of good faith and fair dealing “by failing to honor and formalize the partnership agreement as promised and agreed upon by the parties in e-mails and other communications” (R. 350); Count III claims fraudulent inducement based upon representations both “orally and in writing that they would make Dobal a partner in ERMA ... as of February 1, 2008”; Count IV for negligent representation and Count V for promissory estoppel both base claims upon representations by ERMA, Marshall, Amaya, and Anton “both orally and in writing that they would make her a partner in ERMA effective February 1, 2008.” None of Do-bal’s claims rely upon or require an interpretation of the employment agreement entered into between Dobal and Damus, Ecker, Rosenthal and Marshall, P.A., and therefore do not “aris[e] out of or relat[e] to” that employment agreement.

The defendants argue that Dobal’s claims against them are “inextricably linked” to the employment agreement despite continually claiming below that, although Dobal was undoubtedly providing services for them, they were not parties to the employment agreement. In order to assert this claim, the defendants make much of the fact that Dobal attached the employment agreement as “Exhibit A” to her Second Amended Complaint. However, it is clear that Dobal’s reference to the agreement was by way of explaining the factual history of her relationship with the defendants, and, as the Supreme Court stated in Seifert, the fact that the “dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by. itself to transform a dispute into one ‘arising out of or relating to’ the agreement.” 750 So.2d at 638.

The defendants also rely upon the fact that in the factual allegations of her Second Amended Complaint Dobal refers to the alleged partnership agreement as being an “addendum” to the employment agreement. However, Exhibit “O” to the Second Amended Complaint, an e-mail from Xavier Anton to Dobal, shows that the “addendum” refers to an addendum to the partners’ LLC agreement, not the employment agreement, and indeed even asks Dobal, “Did you sign the old contract or have you always been an Employee at will?”

The majority opinion relies upon two federal cases which stand for the undisputed — and inapplicable — proposition that a party may simultaneously challenge the existence or enforceability of a contract and move to enforce an arbitration clause contained in the contract. See Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir.1990); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). In those cases, the plaintiff asserted claims that fell within the terms of the contract. In other words, the arbitration clause covered the dispute because the claims concerned the contract. As discussed above, that is not the case here.

Another issue in this case is the fact that the defendants are nonsignatories to the employment agreement. Although nonsig-natories generally may not compel a signatory to submit to arbitration, Rolls-Royce PLC v. Royal Caribbean Cruises LTD., 960 So.2d 768, 771 (Fla. 3d DCA 2007), “equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances.” MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999). As explained in MS Dealer:

First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause “must rely on the terms of the written agreement in asserting [its] claims” against the nonsignatory. When each of a signatory’s claims against a nonsignatory “makes reference to” or “presumes the existence of’ the written agreement, the signatory’s claims “arise[] out of and relatef ] directly to the [written] agreement,” and arbitration is appropriate. Second, “application of equitable estop-pel is warranted ... when the signatory [to the contract containing the arbitration clause] raises allegations of ... substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” Otherwise, “the arbitration proceedings [between the two signatories] would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.”

177 F.3d at 947 (citations omitted). See also Kolsky v. Jackson Square, LLC, 28 So.3d 965, 969 (Fla. 3d DCA 2010); Rolls-Royce, 960 So.2d at 771; Armas v. Prudential Sec., Inc., 842 So.2d 210 (Fla. 3d DCA 2003); Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc., 776 So.2d 940 (Fla. 3d DCA 2000).

As explained above, Dobal’s claims do not “arise out of or relat[e] to” the employment agreement, because their resolution does not require reference to or construction of some portion of the employment agreement. Nor does the Second Amended Complaint raise allegations of substantially interdependent and concerted misconduct by both the nonsignatories and one or more of the signatories to the employment agreement. Although one of the individual defendants, John Marshall, signed the employment agreement, he signed in his representative capacity as president of Damus, Ecker, Rosenthal and Marshall, M.D., P.A., rather than in his individual capacity. See Benaja Props., Inc. v. Murno, P.A., 603 So.2d 548 (Fla. 2d DCA 1992) (where defendant was personally and individually joined as a defendant, he could not be found liable under a contract which he signed specifically as president of appellant company). Thus there are no allegations of concerted misconduct by both nonsignatories and a signatory defendant. Therefore, I believe that the trial court did not err in denying the defendants’ motion to compel arbitration. Accordingly, I would affirm.

      . The second amended complaint, like the initial and amended complaints, attached as an exhibit, incorporated into the pleading, and made specific references to, the terms of the Employment Agreement, which is the operative agreement containing the arbitration provision at issue. There is an undeniable nexus and inextricable link between Dobal's claims, as asserted in all iterations of her complaint, and the original Employment Agreement.

      . The Employment Agreement provided: "All claims, disputes and other matters in question between the parties arising out of, or relating to this Agreement, or the breach thereof, shall be decided by three person arbitration in accordance with the rules of the American Arbitration Association unless the parties mutually agree otherwise in writing. The foregoing agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.”

      . For example, Dobal's amended complaint alleged: "This is an action for breach of contract arising out of the [Employment] Agreement and the subsequent partnership addendum to the [Employment] Agreement ...”

      . We have previously held that a "motion to dismiss is, in substance, a simultaneous motion to compel arbitration and a demand for arbitration.” Hirschfeld v. Crescent Heights, X, Inc., 707 So.2d 955 (Fla. 3d DCA 1998).

      .During the hearing, the trial court suggested to Dobal’s counsel: "[M]aybe what you want to do is amend it to not have it as an addendum....”

      . Dobal has (properly) never contested the arbitrability of the issues. Nor could she do so, given the broad language of the arbitration clause in the Employment Agreement. See, e.g., Seifert v. U.S. Home Corp. 750 So.2d 633, 637 (Fla.1999) (recognizing that adding the phrase "relating to” to the phrase “arising out of” has the effect of broadening the scope of the arbitration clause).

      . Although the concurring opinion states that the trial court erred in denying arbitration of the Second Amended Complaint, that opinion then goes on to address itself instead to the trial court’s April 21, 2010, Order on Motion to Dismiss Amended Complaint, in which the trial court (1) denied the defendants' motion to dismiss, (2) granted Dobal leave to file her Second Amended Complaint, and (3) "deferred] resolution of the arbitration issue.” Respectfully, this is not the order on appeal. The defendants appealed from the trial court's July 7, 2010, Order Denying Defendant’s Motion to Compel Arbitration.
      The operative pleading before the trial court at the time it considered the defendants' motion to compel arbitration was Dobal’s Second Amended Complaint. See Caraffa v. Carnival Corp. 34 So.3d 127, 130 (Fla. 3d DCA 2010) (stating rule that "[p]rior pleadings are superceded by the amendment”); see also Barnes v. Horan, 841 So.2d 472, 475 n. 1 (Fla. 3d DCA 2002). Therefore, to the extent the concurring opinion relies upon the allegations in the amended complaint, rather than the Second Amended Complaint, its conclusion as to whether an arbitrable issue exists is erroneous.
      Moreover, if, as the concurring opinion states, the trial court considered all three factors set forth in Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006), in the April 21 order and determined that arbitration was required, then that order was appealable as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The defendants, of course, did not appeal from that order because (1) the trial court made no such consideration and determination, and (2) indeed specifically "defer[red] resolution of the arbitration issue” in the order, (emphasis added). The concurring opinion, therefore, improperly addresses the issues of whether the amended complaint was subject to arbitration and whether the trial court improperly permitted Dobal leave to amend.

      . We review an order denying a motion to compel arbitration de novo. See Roth, 941 So.2d at 496; Murphy v. Courtesy Ford, LLC, 944 So.2d 1131 (Fla. 3d DCA 2006); accord Briceño v. Sprint Spectrum, L.P., 911 So.2d 176 (Fla. 3d DCA 2005).


text:
    Peter WENZEL, etc., et al., Appellants, v. Gary BURMAN, etc., et al., Appellees.
    No. 3D11-1098.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    John H. Schulte, for appellants.
    Dimond Kaplan & Rothstein, and David A. Rothstein and Lorenz Michel Prüss, Miami, for appellees.
    Before CORTIÑAS, ROTHENBERG, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Peter Wenzel, et al., (‘Wenzel”) appeal the trial court’s non-final orders granting Gary Burman’s (“Burman”) motion to appoint a receiver. Because we find that the record supports the trial court’s findings, and no abuse of discretion has been shown, we affirm.

The company at issue, Community Property Management Group, Inc. (“CPMG”), is a real estate management company formed by Burman and Wenzel, who each own fifty percent of the company and serve as its sole officers and directors. The company’s affairs came to halt after a contractual dispute developed between Wenzel and Burman. Wenzel contends that in December 2010, he and Burman agreed that Wenzel would purchase Bur-man’s fifty percent share of the company for an initial payment of $4,638.03 and specified continuing benefits. Wenzel drafted and signed a stock purchase agreement reflecting this alleged agreement and incorporating certain changes that Wenzel insists were requested by Burman. According to Wenzel, he tendered the $4,638.03 initial payment to Burman based on Burman’s representation that he would sign the final agreement, but after receiving the payment, Burman refused to sign the agreement or return the $4,638.03. Burman, on the other hand, claims he never agreed to sell his fifty percent interest in CPMG, and that the $4,638.03 payment was proffered to him pursuant to a settlement agreement between himself and Wenzel for unrelated matters. This contested contractual issue has not been factually resolved below.

After Burman refused to sign the agreement or return the $4,638.03, Wenzel, without Burman’s consent, assigned CPMG’s sole assets-two condominium management contracts — to Real Equities Inc., a company partially owned by Wen-zel. In response, Burman filed a six-count complaint against CPMG, Wenzel, and Real Equities, and subsequently filed an emergency motion for appointment of a receiver. After conducting a hearing, the trial court entered an order granting the motion, finding that the directors of CPMG are deadlocked, the shareholders of CPMG are unable to break the deadlock, and CPMG has suffered irreparable injury. Thereafter, the trial court issued a modified order requiring the cost of the receiver to be paid out of CPMG’s assets. Wen-zel appeals both orders.

Pursuant to section 607.1430(2)(a), Florida Statutes (2011), a circuit court may appoint a receiver if, in a proceeding by a shareholder, “it is established that ... [t]he directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered.” “The appointment of a receiver rests within the sound discretion of the trial court and, therefore, the trial judge’s discretion should not be disturbed unless an abuse of discretion is clearly shown.” Puma Enters. Corp. v. Vitale, 566 So.2d 1343, 1344 (Fla. 3d DCA 1990).

In its order granting Burman’s emergency verified motion to appoint a receiver, the trial court found that all of the requirements under section 607.1430(2)(a) for the appointment of a receiver were met. Specifically, the trial court determined that “[t]he directors of [CPMG] are deadlocked. The shareholders of CPMG are unable to break the deadlock between the directors. CPMG has suffered irreparable injury.” The record contains competent evidence supporting each of the trial court’s findings. The shareholder agreement identifies both Wenzel and Burman as shareholders of CPMG; Burman testified that he is a shareholder of CPMG; on cross-examination, Wenzel admitted that Burman is a shareholder; Burman testified that CPMG’s only assets were “stolen” by Wen-zel, leaving CPMG with “virtually nothing”; and Burman testified that the company’s good will is being spoiled because CPMG cannot continue to conduct its business affairs in light of the shareholder deadlock. Accordingly, we conclude that the trial court did not abuse its discretion by: (1) finding that the directors of CPMG are deadlocked, the shareholders are unable to break the deadlock, and, as a consequence of this deadlock, CPMG has suffered irreparable injury, and (2) appointing a receiver based on these findings.

Affirmed.

      . To the extent Wenzel relies on Phillips v. Greene, 994 So.2d 371 (Fla. 3d DCA 2008), for the proposition that a party seeking a receiver must show that there is "a strong likelihood of success upon the merits at trial, and that the remedy at law is inadequate,” we conclude that: (1) the language Wenzel relies on is dicta; (2) the authority the Phillips Court relied on, Apalachicola N.R. Co. v. Sommers, 79 Fla. 816, 85 So. 361, 362 (Fla. 1920), predates the receivership statute; and (3) the primary issue in Phillips was whether a receivership hearing must be properly noticed, and this is not the issue in this appeal.


author: SWANSON, J.

text:
    BANK OF AMERICA, N.A., Appellant, v. Nancy A. LANE and Robert G. Lane, Appellees.
    No. 1D11-609.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Amy J. Winarsky of Marcadis Singer, P.A., Tampa, for Appellant.

      Ryan M. Barnett of Whibbs & Stone, P.A., Pensacola, for Appellees.
   SWANSON, J.

Appellant seeks review of the trial court’s order setting aside a default judgment against appellees based upon a finding of excusable neglect. Because the trial court acted on its own motion without ap-pellees making the required evidentiary showing of excusable neglect, a meritorious defense, and due diligence, we reverse and remand for further proceedings.

Appellant filed a complaint against ap-pellees for breach of contract, open account, and unjust enrichment relating to the purchase of a motor home. The complaint was served on appellees, both of whom resided in Santa Rosa County, Florida. When appellees failed to file an answer or any other pleading, the clerk of the court entered a default, and the trial court entered a default judgment. Over three months later, appellees filed a motion to vacate the default judgment as void, claiming the trial court lacked subject matter jurisdiction over the case because the contract contained a forum selection clause indicating that “[i]n the event of a dispute, the exclusive forum, venue, and place of jurisdiction will be in Pennsylvania, unless otherwise required by law.”

The trial court granted appellees’ motion and vacated the default judgment upon finding that the forum selection clause deprived the trial court of subject matter jurisdiction. The trial court also dismissed appellant’s complaint. Appellant then filed a motion for rehearing. At the conclusion of the hearing on the rehearing motion, the trial court concluded it did have subject matter jurisdiction in the case, but determined on its own motion that the default judgment should be set aside based upon excusable neglect. The trial court then entered an order granting appellant’s motion for rehearing, reinstating the case, and vacating the default judgment based upon excusable neglect. This appeal follows.

As an initial matter, we note the trial court is restricted in providing relief from judgments, decrees, or orders to the limited number of grounds set forth in Florida Rule of Civil Procedure 1.540. Bortz v. Bortz, 675 So.2d 622, 625 (Fla. 1st DCA 1996); Pruitt v. Brock, 437 So.2d 768, 778 (Fla. 1st DCA 1983). The trial court’s ruling on a motion for relief from a default judgment is reviewed under the abuse of discretion standard. Se. Land Developers, Inc. v. All Fla. Site & Utils., Inc., 28 So.3d 166, 167 (Fla. 1st DCA 2010). A greater showing of abuse of discretion is needed to reverse the grant of a motion to vacate a default than to reverse the denial of such a motion. Tutwiler Cadillac, Inc. v. Brockett, 551 So.2d 1270, 1272 (Fla. 1st DCA 1989); Zimmerman v. Vinylgrain Indus. of Jacksonville, Inc., 464 So.2d 1353, 1354 (Fla. 1st DCA 1985). “The longstanding policy in Florida is one of liberality toward vacating defaults, and any reasonable doubt with regard to setting aside a default should be resolved in favor of vacating the default and allowing trial on the merits.” Allstate Ins. Co. v. Ladner, 740 So.2d 42, 43 (Fla. 1st DCA 1999).

In this case, appellant claims the trial court abused its discretion in vacating the default judgment against appellees based upon a finding of excusable neglect, asserting that appellees never moved to vacate the default judgment on this ground and never offered evidence of excusable neglect, a meritorious defense, and due diligence. Although the applicable rule was not specifically identified in the trial court’s order, it appears the trial court vacated the default judgment pursuant to rule 1.540(b)(1), which permits a court to vacate a judgment based upon “mistake, inadvertence, surprise, or excusable neglect.” Appellant correctly notes appel-lees never sought to vacate the default judgment pursuant to rule 1.540(b)(1); rather, they sought to vacate the default judgment as void pursuant to rule 1.540(b)(4) because the forum selection clause in the contract deprived the trial court of subject matter jurisdiction over the case.

Ultimately, the trial court correctly concluded the forum selection clause in the contract did not deprive the court of subject matter jurisdiction over the case. See Manrique v. Fabbri, 493 So.2d 487, 439 (Fla.1986); Taurus Stornoway Invs., LLC v. Kerley, 38 So.3d 840, 842 (Fla. 1st DCA 2010); Copeleo Leasing Corp. v. Best Photo Shop, Inc., 678 So.2d 17, 18 (Fla. 4th DCA 1996). Accord R.H. Donnelley Publ’g & Adver., Inc. v. Law Office of Patricia K. Herman, P.A., 44 So.3d 208, 208 n. 1 (Fla. 5th DCA 2010). Instead, the trial court determined on its own motion at the conclusion of the hearing on appellant’s motion for rehearing that the default judgment should be set aside based upon excusable neglect. However, the trial court could not set aside the default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties. See Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003) (“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.”). Moreover, appellant correctly asserts, and appellees properly concede, that appellees failed to make the necessary evi-dentiary showing of excusable neglect, a meritorious defense, and due diligence. See Household Fin. Corp. III v. Mitchell, 51 So.3d 1238, 1241 (Fla. 1st DCA 2011) (holding that a party moving to set aside a default must show that the failure to file a timely responsive pleading was due to excusable neglect, that there is a meritorious defense to the claim, and that the request for relief from default was made with reasonable diligence after it was discovered).

For the first time in their answer brief, appellees claim the trial court properly set aside the default judgment because appellant failed to properly allege personal jurisdiction over appellees in its complaint. However, it appears undisputed that appellees were served with process in Florida, where they are currently living. Moreover, a challenge to personal jurisdiction is waived if it is not raised in a party’s first filing in the case. Chancelor v. BWC Invs., 57 So.3d 969, 971 (Fla. 4th DCA 2011). Because appellees participated in the proceedings below without making any objection to the lack of personal jurisdiction, appellees waived their right to contest the trial court’s exercise of personal jurisdiction. See Scott-Lubin v. Lubin, 49 So.3d 838 (Fla. 4th DCA 2010); Caldwell v. Caldwell, 921 So.2d 759 (Fla. 1st DCA 2006); Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005); Boice v. Wamstedt, 696 So.2d 448 (Fla. 4th DCA 1997); EGF Tampa Assocs. v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So.2d 1318, 1321 (Fla. 2d DCA 1988).

If this court rejects their argument that the trial court’s order should be affirmed based on a lack of personal jurisdiction, appellees claim they could establish excusable neglect, a meritorious defense, and due diligence on remand. Appellant responds this would be improper and fundamental error, citing Purcell v. Deli Man, Inc., 411 So.2d 378 (Fla. 4th DCA 1982), which held the trial court committed fundamental error in entertaining a second rule 1.540(b) motion to set aside a default judgment when the grounds in the second motion could have been raised in the first motion, which had been denied and never appealed. Clearly, the second motion in Purcell was barred under principles of res judicata. See also Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). The procedural posture of this case is quite different from Purcell since it involves remanding the case to the trial court following the reversal of an order granting an initial rule 1.640(b) motion to set aside a default judgment. Unlike in Purcell, there is no res judicata issue here. Given the liberal policy toward the vacating of defaults, we believe it is appropriate to remand with directions that appellees be given the opportunity to file an amended rule 1.540(b) motion and to present evidence of excusable neglect, a meritorious defense, and due diligence. See Potter v. Potter, 293 So.2d 718 (Fla. 1st DCA 1974); In re Aston’s Will, 262 So.2d 246 (Fla. 4th DCA 1972).

REVERSED and REMANDED with directions.

WETHERELL and MARSTILLER, JJ., concur.


author: PER CURIAM.

text:
    Jessie BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2609.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Butler, 655 So.2d 1123 (Fla.1995).

TAYLOR, DAMOORGIAN and GERBER, JJ., concur.


text:
    Timothy Michael ROTHE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2883.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Timothy Michael Rothe seeks reversal of an Order of Modification of Community Control the trial court entered after finding he possessed cocaine in violation of his previously ordered community control. Rothe asserts the court based its finding solely on hearsay testimony from his community control officer that both the random urinalysis she performed and the subsequent formal laboratory test detected a level of cocaine in Rothe’s system of 605 nanograms per milliliter. We disagree and affirm because the State also presented evidence that Rothe admitted possessing cocaine.

A court may not rely only on hearsay evidence to find a violation of community control. See Melton v. State, 65 So.3d 96, 97 (Fla. 1st DCA 2011); Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997). But hearsay may be used in such proceedings to supplement or explain competent, non-hearsay evidence. See Carter v. State, — So.3d—, 2011 WL 3558153 (Fla. 1st DCA 2011). Here, the officer’s testimony about the results of the drug test she performed on Rothe is hearsay for she admitted on cross-examination that she has no specialized training, expertise or certification in drug testing. See Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011); cf. Terry v. State, 777 So.2d 1093, 1094 (Fla. 5th DCA 2001) (probation officer’s testimony about results of field drug test sufficient to support finding of violation of probation where officer possessed state certification to administer such tests). The same is true of her testimony about the results of the independent laboratory test. See Carter v. State, — So.3d -(Fla. 1st DCA 2011). But the trial court’s finding that Rothe violated community control does not rest only on this evidence.

The violation affidavit alleged Rothe “was in possession of a drug or narcotic not prescribed by a physician, to-wit: Cocaine .... ” Rothe’s community control officer testified that when she confronted Rothe with the positive urinalysis result, he acknowledged he had cocaine in his system but claimed it came from handling bags of cocaine he found strewn around his yard. Rothe’s admissions constitute sufficient non-hearsay evidence of cocaine possession allowing the trial court to consider and rely on the hearsay test results. See Hayes v. State, 345 So.2d 765, 765 (Fla. 4th DCA 1977) (affirming probation revocation for heroin possession where supported by non-hearsay testimony from officers who saw offender buy “foil packets” and by hearsay testimony about field and lab test results). Of. Carter (reversing probation revocation for cocaine possession where prosecution’s only evidence was lab test results, which were hearsay, and testimony of probation officer not qualified to interpret field test results); Bray (reversing community control revocation for cocaine possession where offender denied using cocaine and only evidence of violation was hearsay testimony of community control officers regarding in-office and lab test results).

AFFIRMED.

WETHERELL, MARSTILLER and SWANSON, J.J., concur.


author: HAWKES, J.

text:
    Eugene McCOSKEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1035.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Rehearing Denied Jan. 10, 2012.
    James T. Miller, Jacksonville, for Petitioner.

      Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Ralph F. Guerra, Assistant Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   HAWKES, J.

Eugene McCoskey is petitioning this Court to grant a writ of certiorari, requiring that the trial court permit him to present evidence of his intent to drive during his trial for violating the Florida DUI statute. We deny his petition, finding the lower court did not depart from any essential requirement of law by prohibiting petitioner from making his subjective intent an issue at trial.

Facts

Petitioner, Mr. McCoskey, was arrested for driving under the influence (“DUI”). Prior to trial, Respondent, the State of Florida, filed an Omnibus Motion in Li-mine with the trial court, seeking to prevent Petitioner from arguing that the State must prove his “intent to drive” in order to convict him for DUI. Specifically, the State moved for the following:

The State of Florida, by and through the undersigned Assistant State Attorney, files this Omnibus Motion in Limine and requests this Honorable Court to enter an order limiting evidence, comments, and arguments either at trial or injury selection as follows:
6. There shall be no argument or comment that the State must prove an “intent to drive” in order to prove Actual Physical Control. There is no statute, case, or jury instruction that defense can cite to stand for the proposition that the state need prove an intent to drive for actual physical control, as DUI is a general intent crime, which covers the driving/actual physical control element....
7. There shall be no eliciting of testimony concerning the defendant contacting other people for him to get a ride home, that this was a usual, arrangement, and/or that he was just waiting in the car until his ride came....

The trial court entered an order denying the State’s motion as it related to the aforementioned paragraphs and holding Petitioner could elicit testimony relating to his intent to operate his car prior to his arrest. Soon thereafter, the State filed an appeal to the above order in circuit court. The circuit court, acting in its appellate capacity, reversed the trial court’s denial of the State’s motion.

Analysis

This Court will only grant a petition for writ of certiorari when a lower tribunal has acted: (1) beyond its jurisdiction; or (2) in a manner that departed from the essential requirements of the law. See Haines City Community Development v. Heggs, 658 So.2d 528, 525 (Fla.1995).

Florida DUI law reads, in pertinent part, as follows:

Fla. Stat. 316.198, Driving Under the Influence:
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

In the instant case, the circuit court properly determined the State could preclude Petitioner from arguing he had no intention to operate his car on the night of his arrest. Although Florida law guarantees a defendant the right to argue his theory of defense, a defendant may do so only so long as the “theory is valid under Florida law.” Peterson v. State, 24 So.3d 686, 690 (Fla. 2d DCA 2009). Here, Petitioner sought to present evidence that he did not commit DUI because he did not have the intent to operate a vehicle. Intent to operate a motor vehicle is not an element of the charge of DUI, nor is lack of intent to operate a motor vehicle a legally cognizable defense to DUI. See § 316.193, Fla. Stat. (2010).

Moreover, the evidence Petitioner sought to admit (that he had called for a ride and was waiting, in his car with the radio on, for that ride at the time of his arrest) is irrelevant to whether or not petitioner committed DUI — specifically, the “actual physical control” requirement. See § 90.401, Fla. Stat. (2010) (defining relevant evidence as “evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings”). Evidence of Petitioner’s alleged lack of intent to drive would not operate to prove or disprove whether the petitioner was in “actual physical control” of his vehicle. In fact, such irrelevant speculation regarding the Petitioner’s subjective intentions would only serve to do one of three things: (1) confuse the jury; (2) lead the jury to believe that “intent” is an element of the crime of DUI; and/or (3) create sympathy for the petitioner, possibly resulting in a jury pardon.

In light of the above, the circuit court did not depart from the essential requirements of law in ordering the trial court to grant the State’s motion to preclude Petitioner from admitting evidence of subjective intent to drive during his trial for violating the Florida DUI statute. Accordingly, we DENY Mr. McCoskey’s petition for writ of certiorari.

DENIED.

MARSTILLER, and RAY, JJ., concur.


author: GRIFFIN, J.

text:
    James Jay DAVIS, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1807.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 2011.

      James Jay Davis, Sr., Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner, James Jay Davis, Sr. [“Davis”], seeks a second appeal, claiming that his appellate counsel rendered ineffective assistance. We agree that his counsel rendered ineffective assistance by failing to raise a sentencing error.

Davis was charged by information with two counts of sexual activity with a child by a person in familial or custodial authority (Counts I and II), two counts of lewd, lascivious or indecent acts upon a child (Counts III and V), and one count of lewd, lascivious or indecent act in the presence of a child (Count IV) on August 5, 1993. The information was subsequently amended as to Count II to change the offense to attempted sexual activity with a child by a person in familial or custodial authority. Davis pled guilty to each count and was sentenced to ten years in the Florida Department of Corrections [“DOC”] followed by ten years probation on Count I, and ten years of probation on each of the remaining counts, to run concurrently with each other but consecutive to his prison sentence. Davis’s supervisory term was standard probation, not sexual offender probation. However, as a special condition of his probation, Davis was ordered to successfully complete a sex offender treatment program. Davis completed the prison portion of his sentence on Count I and was released from the DOC on January 9, 1998. Davis was subsequently arrested for violating his probation. On January 17, 2008, the trial court reinstated Davis’s probation, modified the conditions, and added nine months of probation to each count.

A second affidavit of violation of probation was filed on August 29, 2008, and a hearing on the violation was held, after which the trial court found Davis in violation of his probation. Davis was sentenced to seventeen years in DOC, followed by ten years of probation on Count I and fifteen years of incarceration on the remaining counts to run concurrently with his sentence on Count I. Davis’s probation on Count I included “[standard sex offender conditions 14 through 30” pursuant to section 948.30, Florida Statutes (2006). Davis appealed, raising only an issue concerning the sufficiency of the evidence to prove that his violation was willful and substantial. Davis’s convictions and sentences were affirmed per curiam by this Court on June 23, 2009. See Davis v. State, 12 So.3d 237 (Fla. 5th DCA 2009).

On October 15, 2010, Davis filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 8.800(a), asserting that sexual offender conditions 14 through 30 were illegally imposed because his offenses were committed prior to the effective date of the relevant statute and the conditions themselves were never announced during the hearing.

In denying the motion, the trial court agreed that the conditions were “not statutorily-authorized,” but the trial court found that, by failing to raise his claim in a Rule 3.800(b) motion prior to, or during, the pendency of his direct appeal, the error was not preserved. Davis appealed, and this Court per curiam affirmed. Davis v. State, 65 So.3d 1064 (Fla. 5th DCA 2011). Davis now seeks a belated appeal based on appellate counsel’s failure to raise the imposition of standard sex offender conditions of probation 14-30 as error in his appeal. In response to this Court’s order to show cause directed to the State, the State does not dispute Davis’s ineffective assistance claim, saying only that this Court should “fashion any remedy it sees fit.” Accordingly, we grant the petition and remand with instructions to amend the sentencing order by removing the invalid probation conditions.

Writ GRANTED; REMANDED to remove probation conditions.

ORFINGER, C.J. and PALMER, J., concur.

      . We find no merit to the claim related to the testimony of Sonya Taylor.

      . On February 11, 2010, Davis filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, Davis alleged that his sentence was illegal. On April 26, 2010, the trial court granted relief and changed Davis's sentence for Count I to seventeen years in the Florida Department of Corrections followed by 2 years and 4½ months of probation.


text:
    Willie CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3645.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2011.
    Rehearing Denied Jan. 10, 2012.
    Willie Carter, East Palatka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PALMER, MONACO and COHEN, JJ„ concur.


author: SILBERMAN, Chief Judge.

text:
    Willie Leroy PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-906.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Willie Leroy Palmer seeks review of his judgment and sentence for resisting arrest with violence. Palmer was charged with battery on a law enforcement officer and entered a negotiated guilty plea to the reduced charge while reserving the right to appeal the denial of two dispositive motions to dismiss. We affirm as to the denial of both motions but write to discuss why Palmer was not entitled to dismissal under the speedy trial rule.

The applicable speedy trial rule, Florida Rule of Criminal Procedure 3.191(a), provides that a defendant must be brought to trial within 90 days of being arrested if he is charged with a misdemeanor and within 175 days of being arrested if he is charged with a felony. Following an incident on November 23, 2008, Palmer was arrested and subsequently charged with misdemeanor battery. The speedy trial period for the misdemeanor charge expired on February 21, 2009.

At that point, Palmer was entitled to enforce his speedy trial right by filing a notice of expiration of speedy trial. See State v. Pfeiffer, 872 So.2d 313, 314 (Fla. 4th DCA 2004). The notice would trigger the recapture period under rule 3.191(p)(2). Id. However, Palmer did not seek to enforce his speedy trial rights by filing a notice of expiration.

The ease proceeded to arraignment on March 23, 2009, and the court set a trial date. Two days before trial was scheduled, defense counsel moved for a continuance. The trial court granted the motion, but the State nol prossed the misdemeanor charge before the rescheduled trial date.

On April 29, 2009, the State filed an information based on the November 2008 incident charging Palmer with battery on a law enforcement officer. Absent waiver or tolling of the time, the speedy trial period for this felony charge would have expired on May 17, 2009, which was 175 days after Palmer’s initial arrest on November 23, 2008. Palmer’s first notice of the felony charge was provided when he was arrested on the charge in October 2009. On November 3, 2009, Palmer was arraigned. He subsequently filed a motion to dismiss the felony battery charge based on the expiration of the speedy trial period under rule 3.191(a).

In his motion to dismiss, Palmer argued that he was entitled to immediate discharge because he was not brought to trial for the felony charge within the 175-day speedy trial period. The State argued that Palmer waived speedy trial by filing a motion to continue the misdemeanor charge. Palmer asserted that his motion for a continuance did not waive speedy trial in the misdemeanor case; rather, it was a nullity because the speedy trial period expired before he sought the continuance. The question before the trial court was whether Palmer effectively waived speedy trial for the felony charge by filing a motion to continue after the expiration of the speedy trial period for the misdemean- or charge.

The supreme court has recently answered this question in State v. Nelson, 26 So.3d 570 (Fla.2010). In Nelson, the juvenile defendant was arrested, and the State filed a petition for delinquency against him. Id. at 572. Shortly after the expiration of the juvenile speedy trial period, defense counsel requested and was granted a continuance. The adult felony speedy trial period then expired. A few days later, the State filed an information in felony court with new charges. The State subsequently nol prossed the juvenile charges but then filed a second felony information with the same charges that had been contained in the petition for delinquency. Id.

The defendant filed motions for discharge in both adult felony cases based upon the expiration of the speedy trial periods. The trial court denied the motions based on its determination that the defense continuance waived speedy trial. The defendant then filed petitions for writs of prohibition, and the Fourth District granted the petitions based on its determination that the continuance did not constitute a waiver of speedy trial because it was sought after the speedy trial time had expired. Id. The court held that the continuance was a nullity. The Fourth District certified the following question for review:

Does a motion for continuance made after the expiration of the speedy trial period but before a defendant files a notice of expiration under the rule, which activates the right of recapture period, waive a defendant’s speedy trial rights under the rule?

Id. at 571-72.

The supreme court answered the certified question in the affirmative. Id. at 572. The court explained that rule 3.191(a) is not self-executing but must be triggered by the defendant’s filing a notice of expiration of the speedy trial period. Id. at 574. “In other words, the recapture period illustrates the principle that a defendant has a right to speedy trial, not a right to speedy discharge without trial.” Id. at 576.

The court also noted that a defendant may waive speedy trial by requesting and being granted a continuance. Such a waiver is an ongoing waiver, and it applies to any newly filed charges that arise from the same incident. Id. While some courts have considered motions for continuances made after the expiration of speedy trial to be nullities instead of waivers, those eases were decided before the 1984 enactment of the rule amendment that provided for the recapture period. Id. at 577. Before this amendment, the court lost jurisdiction over a case once the speedy trial time period expired, and any motions filed thereafter were a nullity. However, with the enactment of the recapture period, the court generally did not automatically lose jurisdiction and the nullity concept was generally inapplicable. Id. at 578.

The supreme court noted that “[t]he nullity principle may or may not have continued life in circumstances where the State is not entitled to the recapture period.” Id. The court acknowledged that there were limited circumstances under which the State was precluded from exercising its recapture rights, but the court declined to address those circumstances because they were not present. Because the State was entitled to the recapture period, the court concluded that a postexpiration continuance operated as a waiver of the defendant’s speedy trial rights. Id. at 579. Any other outcome would “ignore the terms of the rule and the intent of the 1984 amendment to allow the State an opportunity to remedy a mistake through the recapture period.” Id. at 580.

The trial court in this case concluded that under Nelson, Palmer’s postexpiration continuance in the misdemeanor case operated as a waiver of his speedy trial rights that carried over to his newly filed felony charges because they arose from the same incident. Palmer argues that Nelson does not apply because (1) the speedy trial period and the fifteen-day recapture period had already expired when Palmer moved for a continuance and (2) the State was not entitled to the recapture period because it failed to notify Palmer of the refiled charges.

Palmer’s first argument misses the point. The Nelson court did not determine that the defense continuance constituted a waiver because it was granted within the fifteen-day recapture period. Instead, its decision was based on the fact that the State would have been entitled to the recapture period had a notice of expiration been filed.

In Palmer’s second argument, he claims that this case involves one of the exceptions in Nelson for cases in which the nullity principle is applicable because the State is precluded from exercising its recapture rights. Palmer claims that the State’s failure to notify him of the refiled charges before expiration of the speedy trial period would preclude its exercise of its recapture rights under State v. Gantt, 688 So.2d 1012 (Fla. 3d DCA 1997).

In Gantt, the defendant was arrested for a new offense while on controlled release for prior charges. Id. at 1012. The court then revoked his controlled release and incarcerated him. The State subsequently “ ‘no actioned’ ” the new charge but refiled the same charge four days later without notifying the defendant, who was still incarcerated. Id. at 1012-13. When the defendant failed to attend the arraignment on the refiled charges, the court entered a capias. Although the defendant was still incarcerated, he was not arrested on the refiled charge until after the speedy trial period expired. Id. at 1013.

The defendant filed a motion for discharge based upon the expiration of the speedy trial period. Id. The trial court rejected the State’s argument that it was entitled to the recapture period and granted the motion. On appeal, the Third District affirmed, holding that it would be inequitable to allow the State the benefit of the recapture period because the State should have notified the defendant of the refiled charges prior to the expiration of the speedy trial period and should have arranged for his presence at the arraignment. The court concluded, “To allow the state an additional fifteen days in which to bring the defendant to trial, in view of the State’s inaction, would impermissibly prejudice the defendant’s speedy trial rights.” Id.

The First and the Fourth Districts have similarly held that the State is precluded from exercising its recapture rights if it nol prosses charges and then refiles new charges based on the same incident without informing the defendant. See, e.g., Puzio v. State, 969 So.2d 1197, 1201 (Fla. 1st DCA 2007); State v. Morris, 662 So.2d 378, 379 (Fla. 4th DCA 1995). This court has not expressly ruled on the issue but has indicated agreement with this line of cases. See State v. McCullers, 932 So.2d 373, 376 (Fla. 2d DCA 2006). But see State v. Jimenez, 44 So.3d 1230, 1236-37 (Fla. 5th DCA 2010) (holding that a defendant is not entitled to automatic discharge upon the expiration of speedy trial even though he was not provided actual notice that the charges were refiled); Brown v. State, — So.3d —, — n. 2, 2010 WL 1687659 (Fla. 3d DCA 2010) (same).

The Gantt analysis does not apply here because Palmer waived the time periods applicable to the rule for speedy trial without demand before the State nol prossed the misdemeanor charges. Gantt held that the State could not terminate its pros-ecutorial efforts and then refile charges without notifying the defendant in time for him to file a notice of expiration under that rule. 688 So.2d at 1013. However, in cases such as this one, in which the defendant has already waived speedy trial under the rule, the defendant cannot file a notice of expiration to vitiate the earlier waiver. Because Palmer had waived speedy trial, we cannot conclude that he suffered “im-permissibl[e] prejudice” by the State’s failure to notify him of the refiled charges prior to the expiration of speedy trial. See Gantt, 688 So.2d at 1013.

Furthermore, the reasoning for the Nelson exception is not applicable to Gantt or this case. In explaining the exception, the Nelson court noted the following two decisions holding that the State was precluded from exercising its recapture rights under rule 3.191 and applying the nullity princi-pie: State v. Leslie, 699 So.2d 832 (Fla. 3d DCA 1997), and Ryan v. State, 768 So.2d 19 (Fla. 3d DCA 2000). See Nelson, 26 So.3d at 578.

The supreme court observed that in Leslie, the defendant’s postexpiration continuance was a nullity because the State had failed to refile charges against the defendant within the speedy trial period. Nelson, 26 So.3d at 578. Because the State was thus forever barred from refiling, the “post-expiration continuance would neither contribute to nor impact the reason that trial could not commence.” Id. (citing Leslie). As to Ryan, the supreme court noted that the defendant requested a continuance after the speedy trial period had expired. Later, he filed a notice of expiration. The trial court scheduled trial during the recapture period, but the State did not proceed to trial. The Nelson court observed that “the continuance [in Ryan ] operated as a nullity because it was not the principal reason the trial could not commence.” Id. at 578-79.

In Gantt, unlike in Leslie and Ryan, the defendant did not file a motion for continuance. Instead, the defendant was precluded from waiving or exercising his speedy trial rights by the State’s failure to notify him of the refiled charges. Thus, there was no issue regarding whether a motion for a continuance made after the expiration of the speedy trial period but before a defendant filed a notice of expiration under rule 3.191(h) waived the defendant’s speedy trial rights. As a result, there was also no issue of whether a motion for a continuance would be a nullity due to the State’s being unable to exercise its recapture rights. And in light of the Nelson conclusion that a motion for continuance after the expiration of the speedy trial time period waives a defendant’s speedy trial rights under the rule, Palmer is not entitled to relief.

In conclusion, the trial court correctly determined that, under Nelson, Palmer’s postexpiration continuance operated as a waiver of his speedy trial rights. That waiver carried over to his newly filed felony charges because they arose from the same incident. Thus, the trial court properly denied Palmer’s motion to dismiss on speedy trial grounds.

Affirmed.

CASANUEVA and MORRIS, JJ„ Concur.

      . The court would be required to conduct a hearing on the notice within five days. Pfeiffer, 872 So.2d at 315; Fla. R.Crim. P. 3.191(p)(3). If the court did not find that one of the exceptions set forth in section 3.191(j) applied, then the State would be required to bring Palmer to trial within ten days or he would be entitled to discharge. Id.

      . The State’s nol pressing of the misdemeanor charge did not toll the running of the speedy trial period. See State v. Agee, 622 So.2d 473, 475 (Fla.1993).

      . See Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980). Once a defendant waives speedy trial, the waiver carries over to any refiled charges arising from the same criminal episode. Stewart v. State, 470 So.2d 101, 102 (Fla. 1st DCA 1985), approved, 491 So.2d 271 (Fla. 1986).

      . See Nelson, 26 So.3d at 578 (discussing Ryan v. State, 768 So.2d 19 (Fla. 3d DCA 2000), and State v. Leslie, 699 So.2d 832 (Fla. 3d DCA 1997)).

        . It appears that the Third District’s decision in Brown conflicts with its earlier decision in Gantt although Brown does not acknowledge any conflict or reference Gantt. See Jimenez, 44 So.3d at 1237 (noting conflict).