text:
    WTVJ-NBC 6, and Jeff Burnside, Petitioners, v. Mohd A. SHEHADEH a/k/a Mike A. Shehadeh, and the City of Homestead, Respondents.
    No. 3D10-3438.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Lynn D. Carrillo, for petitioners.
    Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, and Alfonso J. Perez and Miguel R. Lara, Coral Gables; Weiss Se-rota Helfman Pastoriza Cole & Boniske, and Joseph H. Serota, Miami and Matthew H. Mandel, Ft. Lauderdale, for respondents.

      Before SUAREZ, SALTER, and EMAS, JJ.
   SALTER, J.

WTVJ-NBC 6, a television network affiliate (WTVJ), and its reporter, Jeff Burnside, seek a writ of certiorari to quash an order compelling Burnside to appear for deposition on a limited topic relating to an earlier news broadcast. The broadcast (as well as the underlying lawsuit in which the subpoena was served on WTVJ and Burnside) covered a dispute between the City Council of the City of Homestead, Florida, and its former City Manager, Mike Sheha-deh. The issue presented below was whether WTVJ and Burnside were entitled to a protective order under Florida’s “journalist’s privilege,” section 90.5015, Florida Statutes (2010).

We find that WTVJ and Burnside were entitled to invoke the qualified privilege set forth in section 90.5015; that Shehadeh did not “make a clear and specific showing” regarding two of the three elements identified in the statute; and that the trial court’s order compelling WTVJ and Burnside to appear for a limited-scope deposition should be quashed.

Background

In the subpoena duces tecum and motion by Shehadeh to compel WTVJ and Burnside to appear for deposition, Sheha-deh sought “the original of a CD/Diskette of pin messages; text messages; and/or e-mails of employees and/or officials of the City of Homestead believed to have been turned over to the press, including [WTVJ], in connection with the investigation of former Homestead City Manager [Shehadeh].” Shehadeh’s motion represented “upon information and belief’ that the diskette had been given to WTVJ and Burnside between December 2009 and March 2010 “by officials of the City of Homestead, Pat Franklin Investigations, or Richard Weiss, Esq., the City Attorney of the City of Homestead.” Shehadeh and his attorneys also alleged that the diskette “has been circulated to a number of news organizations and other private individuals.” Finally, Shehadeh’s motion to compel alleged that video news reports authored by Burnside suggested that Burnside had received the diskette “either through a public records request from the City of Homestead or a ‘leak.’ ”

The trial court conducted a short motion calendar hearing on the cross-motions to compel filed by Shehadeh and for a protective order filed by WTVJ and Burnside. Shehadeh’s counsel advised the court that he wanted Burnside “to tell us how he got the CD.” The trial court concluded that Burnside could be compelled to appear for a deposition “limited to questioning as to whether he filed a public records request” (because it was a question about a “public act”) and entered an order to that effect; WTVJ’s and Burnside’s present petition is directed to that order.

The Qualified Privilege

Section 90.5015 was enacted in 1998 to protect “professional journalists” against the disclosure of sources and information obtained while actively gathering news. We need not determine here whether it displaced or codified preexisting decisional law affording a similar form of limited privilege.

There is no dispute on this record that WTVJ and Burnside are entitled to invoke section 90.5015 with respect to the information gathered by Burnside regarding the Homestead-Shehadeh controversies. The question is whether Shehadeh made the “clear and specific showing” of all three elements as required to overcome the limited privilege:

(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
(b) The information cannot be obtained from alternative sources; and
(c) A compelling interest exists for requiring disclosure of the information.

Regarding the first of these elements, the underlying proceeding is an action for breach of Shehadeh’s employment agreement with Homestead. Sheha-deh has taken the position in an earlier, successful motion in limine that his “private and personal PIN and text messages do not constitute public records and are, therefore, not subject to public disclosure.” In his response to the petition for certiora-ri here, however, Shehadeh maintains that he is entitled to know whether a City Commissioner “leaked” the CD to Burnside (as opposed to Burnside’s use of a public records request to obtain the CD and its contents). If the messages were leaked, Shehadeh argues that this “could lead to additional claims against the City and others.” Burnside’s answer to the question, “did you obtain the CD from the City of Homestead through a public records request?” is relevant and arguably material to unresolved issues regarding the City’s basis for terminating Shehadeh’s employment.

Shehadeh has failed, however, to establish the second and third elements as required to overcome the qualified privilege. The City of Homestead can answer questions about public record requests filed by Burnside, WTVJ, or others. She-hadeh has alleged that “the CD has been circulated to a number of news organizations and other private individuals,” but there is no indication in the record before us that any of the “other private individuals” have been questioned regarding the source of their copies. Shehadeh has an array of discovery procedures available to determine whether any of the Commissioners or Homestead employees “leaked” information to Burnside or WTVJ, as an alternative to questioning professional journalists. And Shehadeh has shown no “compelling interest” in the limited questioning authorized by the trial court, as opposed to seeking discovery of parties and non-parties who are not professional journalists engaged in news-gathering.

The statutory journalist’s privilege and its common law antecedents are intended to provide a limited degree of protection for a reporter’s sources of information. The record presented here is precisely the kind of scenario in which the assertion of the privilege should be upheld. The requirements for certiorari — a departure from the essential requirements of law, resulting in “cat out of the bag” irreparable harm — have been met.

Certiorari granted; the order of December 16, 2010, which granted Shehadeh’s motion to compel and denied the motion by WTVJ and Burnside for a protective order, is quashed.

      . We previously stayed the trial court's order pending our consideration of additional responses to the petition for certiorari by the respondents.

      . "Pin messages” are typically unencrypted text messages sent from one personal han-dheld device, such as a Blackberry, to another without going through an intermediate server.

      . § 90.5015(2), Fla. Stat. (2010).

      . TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 949 (Fla. 4th DCA 2009) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995)).


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    MECHAIA INVESTMENTS, LLC, Appellant, v. Denise ROMANO, Appellee.
    Nos. 3D09-3291, 3D09-1736.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Mase, Lara, Eversole and Richard D. Lara, Miami, and Valentina M. Tejera, for appellant.
    Holland & Knight and James D. Wing, Miami, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   RAMIREZ, C.J.

Denise Romano appeals the trial court’s order granting summary judgment. Mechaia Investments, LLC, cross-appeals the trial court’s denial of attorney’s fees and costs. Because we believe that genuine issues of material fact exist, the entry of the trial court’s order granting summary judgment in favor of Mechaia was improper. We therefore reverse and remanded.

On April 5, 2006, Romano and Mechaia entered into a contract whereby Romano agreed to purchase a residence from Mechaia for $2,250,000. The contract terms required Romano to pay an initial deposit of $200,000, as well as an additional $250,000 at closing. The balance of $1,800,000 was to be financed by Romano. The contract further required that Romano apply for the financing within ten days of the April 5th effective date and that she provide Mechaia with a written Financing Commitment or Approval Letter within thirty days of the effective date. The contract provides that if Romano, “using diligence and good faith, [could not] provide the commitment within the commitment period, the contract [would] be terminated and buyer’s deposits refunded.”

As required by the contract, Romano contacted a loan consultant at a local bank and applied for the loan. On May 17, 2006, the last date of the commitment period, Romano received a one-page fax from the bank, which read: “[w]e are pleased to inform you that your application for a mortgage loan ... has been approved-Enclosed for your information is the commitment letter outlining the terms and conditions of your loan.” Based on this, Romano believed she was approved for the $1,800,000 loan. However, this was not the case. Had Romano received the second page of the fax, she would have discovered that she had only been approved for a $1,500,000 loan; leaving her $300,000 short of the contracted for amount. That day, Romano forwarded the fax to Mechaia and its agents. It was not until June 26, 2006, the day before the closing date, that Romano was informed that she had not been approved for the full amount.

Romano’s attorney contacted Mechaia’s counsel, informed them as to Romano’s inability to proceed to closing. Several extensions were made in an attempt to close on the property; these were all unsuccessful. Subsequently, on October 7, 2007, the escrow holder of the $200,000 deposit filed an interpleader complaint against Romano and Mechaia in order to determine who was entitled to the deposit. Mechaia and Romano answered and filed cross-complaints against each other, each claiming a right to the deposit. Mechaia moved for summary judgment, which the court granted. Romano then moved for clarification and rehearing, which the trial court summarily denied.

We review the trial court’s order granting summary judgment de novo and view the evidence in the light most favorable to the non-moving party. See Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In doing so, we conclude that there is a genuine issue of fact which precludes the entry of summary judgment.

Romano argues that the plain terms of the contract required her to satisfy a financing contingency which required that she: (1) apply for financing within ten (10) days of the effective date; (2) provide the seller with the a written financing commitment or approval letter with thirty (30) days of the effective date; (3) keep the seller and broker informed of the loan application status, progress, and commitment issues; and (4) authorize the lender and mortgage broker to disclose all information to the seller and the broker. The contract states that “[o]nce [the] buyer provides the commitment to the seller, the financing contingency is waived and [the] seller [is] entitled to retain the deposits if the transaction does not close by the closing date.... ” However, the contract language also allows the buyer to retain the deposits if the “buyer, using diligence and good faith, cannot provide the Commitment within the Commitment Period, the Contract will be terminated and the buyer’s deposits refunded.”

There is no dispute that Romano failed to provide Mechaia with the commitment letter within the established commitment period. What Romano received from the bank and what she provided to Mech-aia was nothing more than a fax cover sheet. It lacked the necessary information one would expect in a commitment letter (e.g. loan amount, interest rate, and other terms). See Black's Law Dictionary 308-309 (9th ed. 2009). In fact, in its brief, Mechaia conceded that the document Romano provided was not a commitment letter, but rather it was an approval letter. This is a distinction without a difference. What the contract appears to require is written proof that the buyer has acquired the necessary financing. Whether it is called a commitment letter or an approval letter, the document should contain information that the seller can rely upon as proof that the buyer is taking the steps necessary to close on the property. What Romano provided did not contain such information. For these reasons, we cannot agree with Mechaia that Romano waived the financing contingency.

. Here, obtaining the financing commitment was a condition precedent to the sale of the property. Romano argues that her failure to obtain the commitment during the established commitment period terminates the contract. We agree. See Dennard v. Tri-Corp. Custom Homes, Inc., 583 So.2d 811 (Fla. 2d DCA 1991).

What remains for determination, however, is whether Romano exercised “diligence and good faith” to obtain a financial commitment as the contract required. If she did, the contract specifically stipulates that she should have the deposit returned to her. However, if she did not, Mechaia would be entitled to the funds. Whatever the case, summary judgment was not the proper vehicle to determine this question because “[t]he issue of whether a purchaser exercises due diligence and makes a good faith effort to secure the requisite financing is ordinarily a question of fact for the trier of fact.” Quirch v. Coro, 842 So.2d 184, 186 (Fla. 3d DCA 2003). Additionally, any claims of deception made by Mechaia would likewise not be appropriately disposed unless the moving party can show no genuine issue of material facts exists. See Payne v. Cudjoe Gardens Prop. Owners Ass’n, Inc., 837 So.2d 458 (Fla. 3d DCA 2002).

Because Romano neither waived the financing contingency nor satisfied its term within the commitment period, the contract terminated. What remains to be determined is whether Romano exercised diligence and good faith in trying to obtain financing. We therefore conclude that the trial court erred when it granted summary judgment in Mechaia’s favor.

Reversed and remanded.


author: SUAREZ, J.

text:
    Andrew MARKOWITZ and Fraternal Order of Police Lodge 20, Appellants, v. CITY OF MIAMI, Appellee.
    No. 3D10-683.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      Phillips, Richard & Rind, and Osnat K. Rind, for appellants.
    Julie O. Bru, City Attorney, and Iliana Forte and John A. Greco, Assistant City Attorneys, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

The Fraternal Order of Police [“FOP”] appeals from an order vacating in part an arbitration award. We affirm. The trial court’s order correctly finds that the arbitrator’s award was in excess of his jurisdiction.

The FOP filed a grievance solely on behalf of Andrew Markowitz, a police officer with the City of Miami, pursuant to the collective bargaining agreement [“CBA”] between the FOP and the City. The grievance claimed that the City was required to provide but denied ‘light duty” work to Markowitz as he recovered from an off-duty injury. The FOP, on behalf of Markowitz, went through each step of the grievance procedure as set forth in the CBA, and the City denied Markowitz relief at each step. Subsequent to the City’s final denial, the FOP requested arbitration pursuant to the provisions of the CBA. At the beginning of the arbitration hearing, the FOP brought in several officers to testify claiming that each of these officers, as well as others, had also been denied light duty by the City after an off-duty injury. The FOP claimed that, as such, the arbitration was being brought as a class action on behalf of these and other similarly situated officers. The City objected to inclusion of any other aggrieved party, and argued that it had never been advised that the FOP was seeking relief as a class action grievance on behalf of other similarly affected FOP members. The FOP claimed that the City had verbal notice that the arbitration was being brought as a class action and that the City had agreed to it. The arbitrator concluded that the Markowitz grievance should be considered a class action and proceeded to take testimony. The arbitrator entered an award granting relief to all FOP members who were injured off duty without regard to length of time of light duty, and awarded benefits not requested by Markowitz, including reinstatement. The arbitrator denied the City’s request for reconsideration. The City then filed a petition in circuit court to vacate or modify in part the award pursuant to sections 682.13(l)(c) and 682.14(l)(b), Florida Statutes (2009), claiming that the arbitrator exceeded his authority by converting the Markowitz grievance into a class action. After hearing argument and reviewing the record, the trial court agreed and vacated those aspects of the award that gave damages to any party other than Markowitz, finding that the arbitrator had exceeded the scope of his authority. This appeal followed and we affirm.

The FOP failed to bring the grievance as a class action by failing to reduce the demand to writing as the CBA requires. Nothing in the CBA-required Election of Remedy form put the City on notice that the arbitration would proceed as a class action. The Election of Remedy was brought solely on behalf of Markowitz. Notwithstanding the FOP’s assertion that there was an oral agreement, no provision of the CBA allows for oral notification of any form of grievance. To the contrary, paragraph 6.8 of the CBA expressly provides that the parties must mutually agree in writing as to the statement of the matter to be arbitrated prior to a hearing. The only written claim was brought by the FOP on behalf of Markowitz. Paragraph 6.8 additionally provides that the arbitrator has no authority to modify or rewrite the agreement and he is bound by it. See Sch. Bd. of Seminole County v. Comelison, 406 So.2d 484 (Fla. 5th DCA 1981) (holding that an arbitrator lacks the authority to revise an agreement in a manner the parties did not contemplate and to which they did not assent); see also Metro. Dade Cnty. v. Molloy, 456 So.2d 1280 (Fla. 3d DCA 1984) (finding it error for a grievance panel to decide an issue not framed by pleadings, not tried by consent, or not put into issue by the grievant).

Therefore, we entirely agree with the trial court’s ruling, that “[t]he arbitrator in this case exceeded his power in expanding the grievance filed in writing exclusively on behalf of Markowitz by the FOP to include not only bargaining unit members who testified at the hearing, but anyone who was denied light duty because the injury or illness occurred off duty,” and by awarding “damages beyond the parameters of the Markowitz grievance and in excess of what was requested in the Mar-kowitz grievance form.”

Affirmed.


text:
    Thomas ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2764.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      Thomas Rolle, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Thomas Rolle seeks review of an order dismissing his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

Rolle and a co-defendant were convicted of armed robbery of three victims. The victims were ordered to lie face-down while the robbery occurred. Two of the victims were unable to identify either assailant. The third victim testified as state’s witness against Rolle and identified him in court as one of the two men who robbed him.

In 2007, Rolle filed his first rule 3.850 petition claiming newly discovered evidence. Rolle’s motion alleged that the only one of the three victims who had identified him at trial had recanted his testimony against Rolle, and as such requested an evidentiary hearing. The trial court denied relief because the victim’s affidavit was not made under oath and contained no language of penalty of perjury. See Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002); see Robinson v. State, 736 So.2d 93 (Fla. 4th DCA 1999) (holding that while an evidentiary hearing is “usually required to make that determination,” summary denial is authorized where “the purported recantation testimony is neither sworn nor particularized”); Davidson v. State, 638 So.2d 626 (Fla. 3d DCA 1994) (unsworn recantation).

Rolle’s present motion raised the same claim, but this time the victim’s amended affidavit did contain the required language and was made under oath. The trial court denied this petition not on the merits, but based on successiveness. The motion was not, however, successive. Once the affidavit was cured of its procedural defects, the court should have held an evidentiary hearing to determine whether the recantation was valid, and if so, whether that would have had an effect on the outcome of trial. This is especially true given that the victim was the sole state’s witness to identify Rolle as a perpetrator.

Because the allegations are not refuted by the record, we remand for a hearing to determine whether the evidence was not known by the trial court, the parties or counsel at the time of trial, and that neither the defendant nor defense counsel could have known of such evidence by the use of diligence, and to determine whether the newly discovered evidence is of such a nature that it would probably produce an acquittal on retrial or yield a less severe sentence. See Jones v. State, 591 So.2d 911 (Fla.1991); Keen v. State, 855 So.2d 117 (Fla. 2d DCA 2003); see also 15A Fla. Jur.2d § 2211 (2010).

Reversed and remanded.


text:
    Kevin HARVEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-2957.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Rehearing Denied April 5, 2011.
    Kevin Harvey, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   SUAREZ, J.

Kevin D. Harvey petitions for writ of habeas corpus alleging ineffective assistance of appellate counsel. We dismiss the petition as premature, without prejudice to refile his petition once the pending motions below have been heard and finally determined, in particular, his motion to vacate the judgment and sentence now set for hearing.

Dismissed without prejudice.


author: LAGOA, J.

text:
    Isaac LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3105.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Isaac Lee, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   LAGOA, J.

Appellant, Isaac Lee, appeals from an order denying his motion for mitigation of sentence filed pursuant to Rule 3.800(c), Florida Rule of Criminal Procedure. We dismiss the appeal.

Notwithstanding the language in the trial court’s order of dismissal, the denial of a Rule 3.800(c) motion to mitigate is not an appealable order. See Mann v. State, 26 So.3d 664 (Fla. 3d DCA 2010); Falco v. State, 44 So.3d 198, 198 (Fla. 4th DCA 2010) (“Despite the language in the order of dismissal informing appellant that she had thirty days to appeal, there is no right to appeal from the denial of a rule 3.800(c) motion.”). Accordingly, we dismiss the appeal for lack of jurisdiction.

Appeal dismissed.


author: PER CURIAM.

text:
    Richard UTRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1604.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    ' Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.200.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. D.O., a juvenile, Appellee.
    No. 3D09-3206.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The State of Florida appeals from the trial court’s dispositional order of dismissal pursuant to Florida Rule of Juvenile Procedure 8.090(m). We reverse.

D.O. was arrested on August 3, 2009. The State filed a petition for delinquency, charging D.O. with possession of marijuana with the intent to sell it. On November 3, 2009, D.O. moved to discharge the petition, arguing that the State had allowed the ninety-day speedy trial period to expire without proceeding with an adjudicatory hearing. On November 6, the trial court held a hearing on the motion for discharge, and set an adjudicatory hearing date for November 18, 2009.

On November 18, 2009, the trial court was presented with two motions: (1) the State moved to extend the speedy trial period because the lead detective was injured and not available; and (2) D.O. moved to dismiss the petition for delinquency. In support of his motion for discharge, D.O. argued that under the plain language of rule 8.090(m)(3), because no hearing was held within ten days of the hearing on the motion for discharge, the State’s motion was untimely, requiring a discharge of the petition. Without ruling on the State’s motion to extend the speedy trial period, the trial court granted D.O.’s motion and dismissed the petition for delinquency.

On appeal, D.O. properly concedes that the trial court’s dismissal of the petition was error. D.O. concedes that a violation of the five-day and ten-day periods provided in rule 8.090(m)(3) is harmless if a respondent is brought to an adjudicatory hearing within fifteen days of the filing of his motion for discharge. Furthermore, he concedes that the trial court’s dismissal of the State’s petition was premature where the trial court had not yet ruled on the State’s motion to extend the speedy trial period, and the fifteen-day window had not yet elapsed. See State v. Salzero, 714 So.2d 445, 447 (Fla.1998) (holding that in an adult case, “a violation of the five and ten-day periods provided in [Florida Rule of Criminal Procedure] 3.191(p)(3) is harmless if a defendant is actually brought to trial within fifteen days of filing his notice of expiration”); S.D. v. State, 924 So.2d 963, 964 (Fla. 4th DCA 2006) (finding rule 8.090(m)(3) substantively indistinguishable from rule 3.191(p)(3), and that the rule 3.191(p)(3) analysis in Salzero applies to rule 8.090(m)(3)).

Despite D.O.’s confession of error, he argues that this Court should affirm the trial court’s order dismissing the petition because the State cannot demonstrate exceptional circumstances for the extension of the speedy trial period under rule 8.090(f)(2). We are not persuaded by this argument. A ruling on a motion to extend the speedy trial period involves factual determinations and is thus a determination to be resolved by the trial court, not an appellate court.

Because the trial court prematurely dismissed the State’s petition, we reverse the trial court’s order and remand for further proceedings. On remand, the State has ninety days from the date of the issuance of this Court’s mandate to bring D.O. to an adjudicatory hearing. Fla. R. Juv. P. 8.090Q); State v. Rohm, 645 So.2d 968 (Fla.1994).

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    S.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3463.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Rehearing Denied March 28, 2011.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before, SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from an order finding the appellant delinquent, but withholding adjudication. On the merits, we affirm the determination that S.F. committed a simple battery, as a lesser included offense of the charged offense of burglary with a battery. See Williams v. State, 957 So.2d 595, 599 (Fla.2007); Fla. R. Juv. P. Rule 8.110(j)(2), Florida Statutes (2008).

The respondent’s challenge to several of the items of the court costs assessed below, however, has considerable merit. First, we agree that the $20 crimes prevention program cost, see section 775.083(2), Florida Statutes (2009), does not apply to juvenile withholds of adjudication like this. See J.Z. v. State, 46 So.3d 1218 (Fla. 4th DCA 2010); J.S. v. State, 19 So.3d 380 (Fla. 2d DCA 2009); T.L.S. v. State, 949 So.2d 290, 292 (Fla. 5th DCA 2007). On the same ground, neither the $65 additional court cost nor the $85 temporary criminal surcharge authorized by Section 939.185(l)(a)-(b), Florida Statutes (2009), may be assessed. See J.W.J. v. State, 994 So.2d 1223, 1227 (Fla. 1st DCA 2008); M.D.J. v. State, 936 So.2d 774, 775 (Fla. 5th DCA 2006); T.L.S., 949 So.2d at 292-93. This is also true as to the $3 teen courts fee, see section 938.19, Florida Statutes (2009), which also fails because Miami-Dade. County has not, as section 938.19 requires, specifically elected to apply the cost to delinquencies. See Miami-Dade County, Fla., Code of Ordinances, § 98-185; EM. v. State, 53 So.3d 1236 (Fla. 3d DCA 2011); E.J. v. State, 912 So.2d 382 (Fla. 2nd DCA 2005).

Affirmed in part; stricken in part.


author: WELLS, Judge.

text:
    REYNOLDS AMERICAN, INC., and R.J. Reynolds Global Products, Inc., Appellants, v. Gabriel GERO, Individually, Appellee.
    No. 3D10-2066.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      Carlton Fields, Benjamine Reid, Cristina Alonso, and Olga M. Vieira, Miami, for appellants.
    Levey, Filler, Rodriguez, Kelso & De Bianchi, and John R. Kelso, Miami, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   WELLS, Judge.

Reynolds American, Inc. (“RAI”) and Reynolds Global Products, Inc. (“RGP”) appeal from orders denying their respective motions to dismiss for lack of personal jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(i). Because we agree that there are insufficient jurisdictional facts to bring this action within the purview of Florida’s long-arm statute, we reverse. See § 48.193, Fla. Stat. (2010); Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

According to Gabriel Gero, he invented a new and novel packaging idea, called the Swingpak, in the early 1960’s. In 1971, he presented this idea to RJR Reynolds Tobacco Company (“RJR”) (a North Carolina corporation), which expressed interest in it. Gero and RJR thereafter had continuing discussions about the Swingpak for at least the next twenty years, including after Gero moved to Florida in 1992. In those discussions, RJR continually expressed interest in the packaging concept and encouraged Gero to refine and make improvements to it. Ultimately, RJR rejected the Swingpak concept, claiming that it could not be economically produced.

Sometime in 2003, Gero learned that RJR “or one of RJR’s affiliated companies” — which would allegedly include RAI (RJR’s parent corporation) and RGP (another RAI subsidiary) — was using his idea in packaging its cigarettes. In 2006, Gero filed the instant action for relief against RJR, RAI and RGP in the lower court stemming from the alleged misappropriation of his novel cigarette packaging idea. RJR filed an answer conceding jurisdiction. RAI and RGP separately moved to dismiss the amended complaint for lack of personal jurisdiction on the ground that the facts alleged were insufficient to satisfy the Florida’s long-arm statute. The trial court denied both motions. We review both of these orders de novo and reverse. See Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 83 (Fla. 2d DCA 2003) (“Our standard of review on the issue of personal jurisdiction over a foreign corporation is de novo.”).

In Venetian Salami Co., the Florida Supreme Court set forth the procedure for determining whether personal jurisdiction over a foreign corporation is appropriate. This two-step inquiry requires a the trial court to first determine whether sufficient jurisdictional facts exist to bring the action within the ambit of Florida’s long-arm statute (section 48.193), and then to determine whether the foreign corporation possesses sufficient “minimum contacts” with Florida to satisfy federal constitutional due process requirements. Venetian Salami Co., 554 So.2d at 502.

In this case, Gero alleged specific jurisdiction over RAI and RGP on an agency theory, claiming that RJR, acting as RAI and RGP’s agent, committed a tortious act in Florida, see § 48.193(l)(b), Fla. Stat. (2010), and breached a contract in Florida. See § 48.193(l)(g), Fla. Stat. (2010). RAI (RJR’s parent corporation), as the amended complaint avers, is a North Carolina corporation formed in 2004 — well after the misappropriation complained of here — with its principal place of business in that state. RGP (also an RAI subsidiary) is a Delaware corporation formed in 2003 — again well after the misappropriation complained of here — with its principal place of business in North Carolina.

According to Gero, who concededly “never dealt” with RAI or RGP while in Florida or elsewhere, RAI and RGP are subject to personal jurisdiction in Miami-Dade County because RJR, RAI, and RGP are all agents of one another. More particularly, Gero claims that these entities are all agents of one another because: RAI and RGP “could only have accessed [the Swingpak] from RJR”; “[after] Gero introduced RJR to the Swingpak under terms of confidentiality, RJR then introduced Gero’s novel idea to its then-Parent [RATs predecessor]”; and RGP then “accessed that concept ... through RAI (or its predecessor).” Thus, according to Gero, “RJR and its then-Parent [RAI’s predecessor] and its other subsidiaries became agents of each other, and the Parent and its other subsidiaries similarly became agents of each other, as the Reynolds network of companies, including [RGP], appropriated the Swingpak to their commercial use to sell product.” Even if taken as true, these claims are not sufficient to confer jurisdiction over RAI and RGP.

An agency relationship exists where the following are demonstrated: “1) acknowledgment by the principal that the agent will act for it; 2) the agent’s acceptance of the undertaking; and 3) control by the principal over the action of the agent.” Enic, PLC v. F.F. S. & Co., 870 So.2d 888, 891 (Fla. 5th DCA 2004); State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998). None of these elements is alleged or demonstrated to exist here. There is no claim or evidence that RAI or its predecessor acknowledged RJR, the purported initial misappropriator,' as an agent to act for it. Nor is there claim or evidence that RJR agreed to so act. Likewise, there is no claim or evidence that RJR was the acknowledged agent of RGP, or that RJR agreed to so act. And, there certainly is no claim or evidence that RAI, its predecessor or RGP exercised the requisite control over RJR’s actions. Rather, Gero’s claim simply relies upon the parties’ parent/subsidiary relationship to fill this void, asserting only RJR’s act of “introducing” the Swingpak concept to RAI (or its predecessor), which then allegedly “shared” the Swingpak concept with another subsidiary, RGP. This is wholly inadequate to support the existence of an agency relationship for, indeed, in order to establish an agency relationship between a parent and its subsidiary, or even a between sister subsidiaries for that matter, a “high and very significant” level of control exerted by the parent over the subsidiary’s actions must be demonstrated. Enic, PLC, 870 So.2d at 891; see also Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1162 (Fla. 4th DCA 2006) (finding that the parent corporation must exert “operational control” over the subsidiary “to subject the parent to jurisdiction under the agency theory of section 48.198(1)”); Am. Tobacco Co., 707 So.2d at 855 (holding that, “[a]s to the control element of the agency relationship, the amount of control the parent exercises must be very significant”). No such control is claimed here.

It is, of course, well settled that “[a] parent corporation and its wholly-owned subsidiary are separate and distinct legal entities.” See Am. Int’l Group, Inc. v. Cornerstone Businesses, Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004); Gladding Corp. v. Register, 293 So.2d 729, 732 (Fla. 3d DCA 1974) (stating that “that the fact that one corporation, the parent, owns all of the stock of a subsidiary company does not erase the latter’s identity as a legal entity, nor create any conclusions that the latter is only the alter ego of the former”). Moreover, the fact that one corporation “owns” or is the parent of another does not, by itself, make the parent liable for the torts or breaches of the subsidiary. See Am. Int’l Group, Inc., 872 So.2d at 336 (finding that “a parent corporation is not liable for torts committed by its subsidiary”); Unijax, Inc. v. Factory Ins. Ass’n, 328 So.2d 448, 453-54 (Fla. 1st DCA 1976) (recognizing that “courts have uniformly held that a parent company is not liable for the torts of its subsidiaries, unless the subsidiary is operated as a ‘mere instrumentality’ of the pai'ent”). It is therefore no surprise that it is also “well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction.” Enic, PLC, 870 So.2d at 891; Qualley v. Int’l Air Serv. Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992) (“Florida decisions under the closely related provisions of subsection 48.181(1), Florida Statutes (1989), as well as section 48.193, have held that the presence of a subsidiary corporation within Florida is not enough, without more, to subject a non-Florida parent corporation to long-arm jurisdiction within this state.”); see also Am. Exp. Ins. Servs. Europe Ltd. v. Duvall, 972 So.2d 1035, 1039 (Fla. 3d DCA 2008) (noting that “[t]he corollary is also true-jurisdietion over a parent company does not, without more, confer jurisdiction over the subsidiary”). This same reasoning applies to sister subsidiaries, such as RJR and RGP.

In short, we agree with RAI and RGP that insufficient jurisdictional facts exist to confer personal jurisdiction over them under Florida’s long-arm statute. While this conclusion makes it unnecessary to address the constitutional prong of Venetian Salami Co., we nonetheless note that even if the undisputed facts fell within the ambit of section 48.193, RAI and RGP’s conduct would still not be such that they should reasonably anticipate being haled into court in Florida. See Venetian Salami Co., 554 So.2d at 500; Homeway Furniture Co. of Mount Airy, Inc. v. Horne, 822 So.2d 533, 536 (Fla. 2d DCA 2002) (“If Florida’s long-arm statute does not provide a basis for personal jurisdiction under the initial statutory prong of the [Venetian Salami Co.] inquiry, the constitutional analysis is unnecessary.”) Accordingly, the orders denying RAI and RGP’s motions to dismiss for lack of personal jurisdiction are reversed.

REVERSED and REMANDED.

      . According to Gero, these discussions were conducted with the express understanding and agreement that his idea was not to be shared with anyone, but was to remain confidential. Apparently, no written agreement embodying this understanding was entered into since none is referenced in the amended complaint, nor attached to it.

      . The amended complaint also brings claims against four British-American Tobacco defendants. This group of defendants is comprised of Imperial Tobacco Canada Ltd., British American Tobacco, PLC, British American Tobacco (Brands) Inc., and British American Tobacco (Investments) Ltd.

      . The amended complaint asserts claims sounding in misappropriation of a novel idea (Count I), breach of implied contract (Counts II and III), equitable accounting (Count IV), and injunctive relief (Count V). All of these claims stem from the same alleged misappropriation of Gero's novel cigarette packaging idea.

      . The British-American defendants also moved to dismiss for lack of personal jurisdiction; that motion remains pending in the lower court. Thus, this appeal deals solely with the orders denying RAI and RGP’s motions to dismiss for lack of personal jurisdiction.

      . Long-arm jurisdiction over a foreign corporation under section 48.193 may be either general, see § 48.193(2)(where the defendant is "engaged in substantial and not isolated activity”), or specific. See § 48.193(l)(a)-(h) (where the defendant either "personally or through an agent does any of the acts enumerated in those subsections”) (emphasis added).


text:
    LARA’S CABLING CORP., et al., Appellant, v. FINANCIAL EXCHANGE NETWORK, Appellee.
    No. 3D10-2016.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Brian Barakat, Miami, for appellant.
    Dorta & Ortega, Giselle Hugues and Omar Ortega, Coral Gables, for appellee.
    Before, SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This appeal filed on July 28, 2010 from an order dated June 14, 2010, which denied appellant’s verified motion to set aside a previously entered default judgment is dismissed for lack of jurisdiction as untimely. Although appellant filed a motion for reconsideration of the order on June 24, 2010, which was denied on July 14, 2010, that motion was unauthorized and therefore did not toll the 30-day appeal time. See Fla. R.App. P. 9.130(a)(5); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA 1986), review denied, 494 So.2d 1153 (Fla.1986); see also Bastida v. Vitaver, 590 So.2d 1092 (Fla. 3d DCA 1991).

Appeal dismissed.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. MIAMI DADE COUNTY MRI CORP., Health Diagnostic of Miami, LLC., d/b/a Stand Up MRI of Miami Hallandale Open MRI, LLC., and Open MRI of Miami Dade, Appellees.
    Nos. 3D09-3102, 3D10-848.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.
    Michael J. Neimand, Miami, for appellant.
    Buchalter, Hoffman & Dorchak, and Kenneth Dorchak, North Miami, for appel-lees.
    Before WELLS, SALTER and EMAS, JJ.
   WELLS, Judge.

Affirmed. § 86.011, Fla. Stat. (2010) (“The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights.... ”); United Auto. Ins. Co. v. Kendall S. Med. Ctr., 54 So.3d 548 (Fla. 8d DCA 2011) (“[T]he Miami-Dade Circuit Court has jurisdiction of a declaratory action only if the amount in controversy exceeds $15,000 and only the county court has jurisdiction of any amount in controversy less than $15,000.”); Canonico v. Devine, 130 So.2d 319, 321 (Fla. 3d DCA 1961) (“Separate and unrelated demands cannot be joined to give jurisdiction to a court which does not have jurisdiction of any one of the claims because each is below the amount required to give jurisdiction to the court.”); see also § 627.428, Fla. Stat. (2010) (“Upon the rendition of a judgment or decree ... against an insurer and in favor of any named or omnibus insured ... the trial court ... shall adjudge ... in favor of the insured ... a reasonable sum as fees.”); Dawson v. Aetna Cas. & Sur. Co., 233 So.2d 860, 861 (Fla. 3d DCA 1970) (insured entitled to a fee award upon dismissal of an action brought by insurer even though the same issue was then pending in an administrative proceeding).


author: EMAS, J.

text:
    K.S.H., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-1409.
    District Court of Appeal of Florida, Third District.
    March 9, 2011.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., GERSTEN, and EMAS, JJ.
   EMAS, J.

K.S.H. appeals an order placing him on probation, following an adjudicatory hearing in which he was found to have committed a misdemeanor battery. K.S.H. asserts that the trial court erred in denying his judgment for dismissal at the close of the evidence. We affirm.

At trial, it was undisputed that K.S.H. struck the victim, Neltha Clerisier. The defense asserted, however, that K.S.H. was justified in using force in the defense of his sister, Ketley. Three witnesses testified at the trial: Dr. Clifton Hamilton (a teacher at the school), Isabel Samuel, (the investigating police officer) and Neltha. The evidence introduced at trial, viewed in a light most favorable to the trial court’s finding of delinquency, Banks v. State, 732 So.2d 1065 (Fla.1999), established the following:

Testimony of Neltha:

Neltha, K.S.H., and Ketley all attend the same school. Neltha testified that on January 31, 2010, she and K.S.H. had an argument at school. During the argument, K.S.H. “chinned” Neltha, and in response Neltha shoved K.S.H. The next day, February 1, Neltha was on her way to class when she was stopped by KS.H.’s sister, Ketley. Ketley and Neltha began to argue. As the argument grew louder, a crowd of students began to form around them. The argument was soon broken up and Ketley walked away, accompanied by her friends. Neltha then began running toward the bathroom (which she testified she needed to use), but the bathroom was in the same general direction of Ketley. One of Neltha’s friends thought Neltha was running after Ketley, and grabbed Neltha. At the same time, Dr. Hamilton came up and grabbed Ketley. Also at this time, K.S.H. arrived at the scene. Neltha testified that K.S.H. “thought I was running towards his sister to go hit her. And that’s when he punched me, I guess.”

Testimony of Dr. Hamilton:

Dr. Hamilton testified that when he first arrived on the scene, he saw Neltha waving her arms and screaming at Ketley in the hallway. The two girls were surrounded by a group of students. Dr. Hamilton grabbed Ketley by the arm to move her away from Neltha, at which point he saw that Neltha stopped screaming and put her hands down. As Dr. Hamilton was walking away with Ketley, he looked back and saw Neltha with her arms down, not shouting, and not moving. He then saw K.S.H. running towards Neltha. K.S.H. threw a “running punch” by raising one leg, lunging at Neltha, and punching her without slowing down. K.S.H. used his right hand and punched Neltha in the left eye. When K.S.H. threw the running punch, Neltha was near the bathroom and was more than thirty feet away from Ketley. Dr. Hamilton did not have any concern that Neltha was going to attack Ketley because of the distance separating them.

Testimony of Officer Samuel:

Officer Samuel testified that she interviewed K.S.H. after the incident and he wrote out a statement indicating that he was standing by his sister when Neltha tried to “rush me and my sister so I try to stop her so I put my hand in front of her so she fell.” Officer Samuel testified that after she reviewed KS.H.’s written statement, she inspected K.S.H.’s hand and noticed that it was swollen. At that point, K.S.H. acknowledged that he hit Neltha. Fire Rescue was called to address KS.H.’s injury, and determined that it was not broken, but required ice to reduce the swelling.

On appeal, K.S.H. asserts that the trial court erred in denying his motion for judgment of dismissal, arguing that the State failed to adequately rebut the evidence of defense of others as established through the testimony of Neltha and KS.H.’s written statement. We review de novo the trial court’s decision denying the motion for judgment of dismissal, Troy v. State, 948 So.2d 635 (Fla.2006), but we view the evidence, and all reasonable inferences from the evidence, in a light most favorable to the State (as the prevailing party), to determine whether there is substantial, competent evidence to support the factfinder’s determination. Banks, 732 So.2d at 1067.

Section 776.012, Florida Statutes (2010), provides:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

Ordinarily, whether the use of force (and whether the amount of force used) was justified is a question to be determined by the trier of fact. Fowler v. State, 921 So.2d 708 (Fla. 2d DCA 2006). Once the defense produces evidence supporting a claim of defense of others, the State is required to rebut this defense by proving beyond a reasonable doubt that the actions were not taken in justifiable defense of another. S.R. v. State, 11 So.3d 442 (Fla. 3d DCA 2009). If the State fails to produce legally sufficient evidence to rebut the prima facie evidence of defense of others, the court must grant a motion for judgment of dismissal. E.A.B. v. State, 933 So.2d 676, 679 (Fla. 2d DCA 2006). The evidence in “rebuttal” of the defense can come from the testimony of the State’s witnesses during its case-in-chief, and from the reasonable inferences flowing from that testimony. Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); K.W.S. v. State, 924 So.2d 80 (Fla. 5th DCA 2006).

The defense of others defense permits the use of force only “to the extent that .the person reasonably believes that such conduct is necessary to defend ... another against the other’s imminent use of unlawful force.” § 776.012, Fla. Stat. (2010). (emphasis added). Thus the trier of fact must necessarily determine whether the use of any force was justified under the circumstances, and, if so, whether the amount of force used was justified under the circumstances. See Fla. Std. Jury Instr. 3.6(g) (“The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.”) (emphasis added).

Had Neltha been the only witness to testify at the adjudicatory hearing, KS.H.’s claim might be well taken. However, K.S.H. largely ignores the testimony of the two other witnesses; this testimony supported a finding that the State proved beyond a reasonable doubt that K.S.H. was not justified in the amount of force used, or that K.S.H. was not justified in the use of any force at all.

For example, in his written statement following the incident, K.S.H. indicated that he merely put his hand in front of Neltha to stop her. Officer Samuel testified that when K.S.H. was questioned about his swollen hand, however, K.S.H. acknowledged that he hit Neltha. Dr. Hamilton testified that K.S.H. threw a “running punch,” striking Neltha in the eye. Dr. Hamilton also testified that, before K.S.H. began running at Neltha, Nel-tha already had put her arms down, was not shouting, and was not moving. This evidence, if believed, certainly would support a finding that, under the circumstances, K.S.H. used excessive force in defense of Ketley.

In fact, given Dr. Hamilton’s testimony that Ketley and Neltha were more than thirty feet apart when K.S.H. punched Neltha, the trier of fact could reasonably have concluded that the State established beyond a reasonable doubt that, under the circumstances, K.S.H. was not justified in the use of any force.

This case is thus distinguishable from the cases relied upon by K.S.H.: S.R. v. State, 11 So.3d at 442, M.P.W. v. State, 702 So.2d 591 (Fla. 2d DCA 1997), and D.M.L. v. State, 773 So.2d 1216 (Fla. 3d DCA 2000). In each of these cases, the evidence establishing the defense was neither controverted nor rebutted by the State.

In the instant case, by contrast, the State presented competent, substantial evidence to rebut the claim of defense of others, and proved beyond a reasonable doubt that K.S.H. had committed misdemeanor battery. The evidence was legally sufficient and it was the province of the trier of fact to resolve the conflicts in the evidence and determine the weight to be given to each witness’ testimony. As the Florida Supreme Court observed in Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982):

As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a'jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.

Affirmed.

      . The petition alleged K.S.H. committed a felony battery, but the trial court found that the evidence sustained a finding of delinquency on the lesser included offense of misdemeanor batteiy. Fla. R. Juv. P. 8.110(h).

      . "Chinning” was described as the act of one person placing his finger under the chin of another, and then flicking that person's chin.

      . There was no objection to Neltha testifying about K.S.H.'s state of mind or about why K.S.H. hit her.

      . K.S.H. presented no witnesses or other evidence during the hearing. The evidence of his defense came from the testimony of the state’s three witnesses.


author: COHEN, J.

text:
    ECOVENTURE WGV, LTD., Appellant, v. SAINT JOHNS NORTHWEST RESIDENTIAL ASSOCIATION, INC., Appellee.
    No. 5D10-542.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    Jeffrey C. Regan of Regan Zebouni & Walker, P.A., Jacksonville, for Appellant.
    Rosanne P. Perrine of Law Office of Rosanne Perrine, P.A., Ponte Vedra Beach, for Appellee.
   COHEN, J.

Ecoventure WGV, Ltd. (hereafter “Eco-venture”), challenges whether section 720.3085, Florida Statutes (2007), may be applied to impose joint and several liability on it for the unpaid homeowner’s association assessments incurred by its mortgagor. Concluding it cannot, we reverse.

In 1997, Ecoventure purchased a parcel of property that was subject to Saint Johns Northwest Residential Association, Inc.’s Declaration of Covenants and Restrictions (hereafter “Declaration”). In 2001, Ecoventure sold the property to DMHB Holdings, LLC, taking back a purchase money mortgage. Ecoventure foreclosed on its mortgage after DMHB defaulted and was issued title after being the high bidder at the foreclosure sale in March 2008.

Subsequently, the Association demanded Ecoventure pay more than two years’ worth of assessments incurred by DMHB. Ecoventure refused and the Association filed suit, arguing that its Declaration and section 720.3085 imposed an obligation on Ecoventure to pay the delinquent assessments. In relevant part, the trial court found that section 720.3085 operated “outside of the Declarations” and imposed “an additional requirement on a certain class of property ownei's over and above what the Declarations may require.” Because Ecoventure was a parcel owner as defined by section 720.3085(1), the trial court concluded it was jointly and severally liable for the unpaid assessments.

The trial court rejected Ecoventure’s argument that imposing liability was a retroactive application of the statute because liability only attached for unpaid assessments that were due at the time title was transferred and Ecoventure obtained title after the statute’s effective date. The trial court also found that applying the statute did not impair Ecoventure’s rights under its mortgage with DMHB because the statute permitted it to seek recovery from DMHB of any amounts it paid. Consequently, the trial court entered judgment against Ecoventure for the unpaid assessments, interest, and administrative costs. We review these legal conclusions de novo. See Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008).

Of the arguments raised by Ecoventure, the one we find dispositive is whether applying section 720.3085 impaired its contract rights. The trial court concluded the statute could be applied because it did not impair Ecoventure’s rights under its mortgage with DMHB. This, however, is not the appropriate contract on which to focus.

The Association made two promises, by and through section 6.5 of its Declaration, to induce lenders to extend mortgages on property subject to the Declaration. First, it promised that any lien for unpaid assessments was subordinate to any mortgage that was “perfected by recording” before its claim of lien was recorded. Second, it promised that any mortgagee who subsequently obtained title to the property “by deed in lieu of foreclosure, pursuant to a decree of foreclosure, or ... any other proceeding in lieu of foreclosure of such mortgage,” would not be entirely responsible for the unpaid assessments of its mortgagor. Instead, the unpaid assessments would be added back to the Association’s budget for common expenses and paid by all of the homeowners, including the mortgagee, on a pro-rata basis.

When Ecoventure extended its mortgage to DMHB in 2001, its rights under the Declaration vested. Imposing section 720.3085, which was enacted after the mortgage was extended, completely alters Ecoventure’s vested rights by making it jointly and severally liable with the “previous parcel owner for all unpaid assessments that came due up to the time of transfer of title.” § 720.3085(2). The court in Coral Lakes Community Association, Inc. v. Busey Bank, N.A., 30 So.3d 579, 584 (Fla. 2d DCA 2010), recently addressed the very issue raised in this appeal and concluded the enactment of “section 720.3085 cannot disturb that prior, established contractual relationship.” We likewise agree that imposing the statute on Ecoventure “would operate to severely, permanently, and immediately change the parties’ economic relationship ... a circumstance not supportable under the law.” Id.; see also Sarasota County v. Andrews, 573 So.2d 113 (Fla. 2d DCA 1991). Accordingly, we reverse the final judgment.

REVERSED.

GRIFFIN and PALMER, JJ., concur.

      . Section 6.5 Subordination of Lien to Mortgages.

        The lien of the assessments provided for by this Declaration shall be subordinate to the lien of any bona fide mortgage which is perfected by recording prior to the recording of the claim of lien for any such unpaid assessments. Such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of the Building Site by deed in lieu of foreclosure, pursuant to a decree of foreclosure, or pursuant to any other proceeding in lieu of foreclosure of such mortgage. The total amount of assessment which remains unpaid as a result of a mortgagee obtaining title to the Building Site, shall be added to the total budget for Common Expenses and shall be paid by all owners including the mortgagee on a pro rata basis. No sale or other transfer shall relieve any Building Site from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessments. A written statement of the Association that its lien is subordinate to a mortgage shall be dispositive of any question of subordination.

      . This conclusion is not altered by the fact that the "present parcel owner may [seek] to recover any amounts paid by the present owner from the previous owner.” § 720.3085(2), Fla. Stat. When a homeowner’s association’s declaration provides for either reduced or no liability, having the right to attempt to recover from the prior owner is hardly meaningful relief. This is particularly true when title is obtained as a result of foreclosure proceedings and, as in this case, the foreclosed property owner filed for bankruptcy.

      . The Association could have incorporated the subsequent enactment of section 720.3085 into the Declaration by including language expressly incorporating by reference the provisions of Chapter 720. See Angora Enters., Inc. v. Cole, 439 So.2d 832 (Fla. 1983). However, no such language was in the Declaration.


author: PALMER, J.

text:
    De’Javar Cashe DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4111.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

De’Javar Cashe Davis (defendant) appeals his judgments and sentences for second-degree murder and burglary of a dwelling. Determining that the trial court fundamentally erred by incorrectly instructing the jury on the lesser included offense of manslaughter by act, we reverse the defendant’s conviction for second-degree murder and remand for a new trial thereon.

In December 2008, the standard jury instruction for the crime of manslaughter by act was amended and approved by the Florida Supreme Court. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). Notably, the Court amended the manslaughter by act instruction to read as follows:

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007).

Id. (emphasis added). It is undisputed that the trial court failed to issue this amended manslaughter instruction during the defendant’s trial and, instead, the court issued the following instruction:

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

No objection was raised to the issuance of the improper instruction.

The defendant argues that the trial court’s improper jury instruction constitutes fundamental error. To support this claim, the defendant relies upon State v. Montgomery, 39 So.3d 252 (Fla.2010), wherein the Florida Supreme Court held that the trial court’s erroneous instruction on the crime of manslaughter by act constituted fundamental error:

[Bjecause Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena [v. State, 901 So.2d 781, 787 (Fla. 2005) ], fundamental error occurred in this case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.

The Court reversed Montgomery’s judgment and sentence, and remanded the matter for a new trial on the second-degree murder charge.

The State argues that the facts in Montgomery are distinguishable from those in the present case because here the defendant was convicted as charged rather than on a lesser included offense, and because the defendant agreed to the manslaughter instruction as given. The State cites to Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), in which the First District held that Montgomery was distinguishable, and thus not legally controlling, because Joyner was convicted as charged, Joyner’s attorney invited the error by specifically agreeing to and incorporating the manslaughter instruction into his closing argument, and the trial court instructed the jury on manslaughter by culpable negligence which provided the jury with the option of finding the defendant guilty of a lesser included offense that did not require proof of an intent to kill. We conclude that the State’s reliance on Joyner is misplaced. The culpable negligence instruction distinction is not applicable in the present case because the trial court did not instruct the jury on manslaughter by culpable negligence. And, in a similar appeal regarding the issuance of an erroneous manslaughter by act instruction, our court rejected the two other distinguishing factors relied upon by the court in Joyner.

In Kenner v. State, 48 So.3d 117 (Fla. 5th DCA 2010), the trial court improperly instructed the jury on manslaughter by act. Defense counsel did not specifically agree to the instruction or rely on it in closing arguments. Kenner was convicted as charged of second-degree murder. Our court found Joyner distinguishable because the trial court did not provide a culpable negligence manslaughter instruction and defense counsel did not invite error. Our court reversed Kenner’s judgment and sentence, and remanded the matter for a new trial.

We find no merit in the other claims of error raised by defendant in this appeal.

Accordingly, we affirm the defendant’s judgment and sentence for burglary of a dwelling, but reverse and remand for a new trial on the second-degree murder charge.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


text:
    Johnnie M. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1267.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Johnnie M. Jones appeals the judgments and sentences entered in three cases, all from Citrus County, Florida. His sole challenge on appeal is to the public defender attorney’s fees imposed against him in each case. The trial court assessed these fees pursuant to section 938,29, Florida Statutes. However, it did so without advising Jones of his right to contest or object to the amount of the fees assessed. The State concedes that this was error. We reverse and remand for further proceedings. On remand, Jones shall have 30 days from the issuance of our mandate to file a written objection to the amount of the fees imposed by the trial court. If an objection is filed, the trial court shall conduct a hearing. Otherwise, the trial court may reimpose the public defender fees without a hearing. See White v. State, 32 So.3d 132 (Fla. 2d DCA 2010).

REVERSED and REMANDED with directions.

ORFINGER, TORPY and JACOBUS, JJ., concur.


text:
    Vincent MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-48.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    Vincent Mitchell, Moore Haven, pro se.
    No Appearance for Respondent.
   PER CURIAM.

ON ORDER TO SHOW CAUSE

After denying Petitioner, Vincent Mitchell’s [“Mitchell”], Petition for Writ of Ha-beas Corpus, his seventh post-conviction challenge to his judgment and sentence in Fifth Circuit Case No. 2005-CF-001324, and determining that the petition was mer-itless, as were his preceding filings, we issued a Spencer show cause order directing Mitchell to demonstrate why he should not be barred from further pro se challenges to his convictions and sentences in this case. Having considered Mitchell’s response and finding it to be unpersuasive, we conclude that he is abusing the judicial process and should be barred from further pro se filings. Therefore, we now prohibit Mitchell from filing with this Court any further pro se pleadings concerning Marion County, Fifth Circuit Case case number 2005-CF-001324. The Clerk of this Court is directed not to accept any further pro se filings from Mitchell concerning this case. Any additional pleading regarding this case will be summarily rejected by the clerk, unless filed by a member in good standing of The Florida Bar. See Johnson v. State, 652 So.2d 980 (Fla. 5th DCA 1995). The clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005); § 944.279(1), Fla. Stat. (2010).

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author:
PALMER, J.
      COHEN, J.,

text:
    Dontay REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4503.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Dontay Reddick (defendant) appeals his conviction and sentence on the charge of aggravated battery. Determining that the defendant was convicted of a crime not charged in the information, we reverse and remand for a new trial.

The defendant was charged with committing the crimes of aggravated battery and discharging a firearm in public. On the aggravated battery charge, the information alleged that the defendant committed a battery on the victim by “actually and intentionally touching or striking” the victim “against his will, or by intentionally causing bodily harm” to the -victim. The jury returned a verdict form stating that the defendant was guilty as charged, and the trial court sentenced the defendant accordingly.

The defendant appeals his aggravated battery conviction arguing that the trial court fundamentally erred by instructing the jury on a theory of the crime of aggravated battery that was not charged in the information. Specifically, the defendant argues that the trial court erred in instructing the jury on the elements of aggravated battery by use of a weapon, rather than aggravated battery due to great bodily harm as was charged in the information. In a related claim, the defendant argues that his sentence on the aggravated battery charge must be reversed because he was not properly convicted on the aggravated battery charge as set forth in the information. We agree.

Section 784.045 of the Florida Statutes (2009) defines the crime of aggravated battery, as follows:

784.045. Aggravated battery
(l)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.

§ 784.045(l)(a), Fla. Stat. (2009).

Here, the information filed by the State against the defendant expressly alleged that the defendant committed an aggravated battery on the victim by causing bodily harm to the victim; there was no allegation in the information that the crime occurred through the defendant’s use of a deadly weapon. However, the record demonstrates that the jury instruction issued on the aggravated battery charge was as follows:

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.
1. Dontay Lamont Reddick intentionally touched or struck [the victim] against his will.
2. Dontay Lamont Reddick in committing the battery used a deadly weapon.
A weapon is a “deadly weapon” if it is used or threatened to be .used in a way likely to produce death or great bodily harm.

(Emphasis added). As such, the jury was instructed on, and found the defendant guilty of committing, a crime that was not charged in the information. However, no objection was made by either party to the trial court’s instruction.

“As a general rule, it is a violation of due process and therefore fundamental error to convict a defendant of a crime not charged in the information or indictment.” Green v. State, 18 So.3d 656, 658 (Fla. 2d DCA 2009).

The trial court’s issuance of the faulty aggravated battery instruction constituted fundamental error in this case because the record is clear that the jury found the defendant guilty of committing a crime that was not charged in the information. Accordingly, the defendant’s aggravated battery conviction and sentence is reversed and this matter remanded for a new trial thereon. See Jaimes v. State, 51 So.3d 445 (Fla. Dec. 9, 2010)(holding that offense of aggravated battery by causing great bodily harm was never charged by the State such that trial court’s unobjected-to jury instruction on the offense, resulting in defendant’s conviction, violated defendant’s due process rights and constituted fundamental error).

REVERSED and REMANDED.

TORPY, J., concurs.

COHEN, J., concurs specially, with opinion.

COHEN, J.,

concurring.

Dontay Reddick shot Cordell Powell twice, nearly killing him. Powell underwent extensive surgery and was in critical condition. As a result of the shooting, he lost a kidney.

There are two ways the State could have charged Reddick with aggravated battery. It could have alleged he intentionally caused great bodily harm, or used a deadly weapon in the commission of a battery. Those theories could have been pled in the alternative. Given that he discharged a firearm and a jury could find great bodily harm, Reddick faced mandatory minimum sentencing under section 775.087(2)(a), Florida Statutes, (commonly known as the “10-20-Life Statute”). However, the State attempted to charge the aggravated battery under section 775.087(1) so it could utilize the sentencing reclassification. This presented certain problems.

The State could not allege battery committed with a deadly weapon because the firearm would have been an essential element of the charged offense, rendering section 775.087(1) inapplicable. Instead, the State alleged that Reddick intentionally and knowingly caused great bodily harm, permanent disability, or permanent disfigurement, citing section 784.045(l)(a). It further alleged that in the course of committing the aggravated battery, Red-dick carried, displayed, used, threatened, or attempted to use a weapon or firearm, citing section 775.087(1). It is obvious the State intentionally avoided charging Red-dick with aggravated battery through the use of a deadly weapon. However, when the trial court reviewed the proposed jury instructions, the State made no effort to correct the erroneous instruction, despite having drafted an information with a specific goal in mind. This is not a case where the defense was on notice of the charge, despite an inartfully drafted information or indictment. I agree that reversal for a new trial is required.

      . We note that the jury answered a special interrogatory on the battery conviction, finding that the defendant "actually discharged a firearm and caused serious bodily injury or death to another, during the commission of the offense.” However, this finding of serious bodily injury was not sufficient to support the aggravated battery conviction as charged here since, in order to prove aggravated battery as charged, the State was required to prove that the defendant "intentionally or knowingly caused great bodily harm”.


text:
    Lawrence GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-278.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Lawrence Green appeals his conviction for sexual battery, alleging that the trial court committed reversible error by excluding rebuttal evidence that would have impeached the alleged victim. Because Green’s counsel failed to lay a proper predicate for admission of the evidence, or demonstrate its relevance in response to the State’s objection to its admission, we find no tidal court error and no basis for reversal. Although Green may ultimately be entitled to relief based upon his counsel’s failure to secure admission of this evidence at trial, or, alternatively, to preserve the issue for appellate review, that issue must be addressed through a timely motion for postconviction relief filed with the trial court.

Green was charged, and ultimately convicted, of forcing non-consensual sex on A.M. Green admitted the sexual encounter, but defended the charge on a theory that A.M. consented to sex. As to this critical issue, the case rested primarily on A.M.’s credibility. During the cross-examination of A.M. by Green’s counsel, A.M. began to cry. Defense counsel asked her why she was crying, and she responded:

Because it hurts me. Every single morning, when I have to wake up in the morning I don’t be around men no more. I don’t talk to nobody no more. It just screwed me up so bad and emotionally. I can’t sleep in the bedroom without my door being locked and no one being home.

Defense counsel approached the bench and sought permission to admit photos and disclosed images copied from A.M.’s “My Space” webpage. The State objected to the evidence on two grounds. First, it objected because the information had not been disclosed in discovery. Second, it objected because there was no indication of when the pictures had been taken or posted. Without any further proffer or explanation from Green’s counsel, the trial court sustained the State’s objection.

In his motion for new trial, Green alleged that the pictures showed A.M. at a male strip club posing with male dancers. In one photo, the male had his hand on A.M.’s breast, with a caption reading, “he’s got a handful....” Another picture showed A.M. with a different male dancer and a caption reading: “Omg,[] his other hand is on my ass ... Happy moment.” Green further alleged that these photos were taken well after the alleged incident.

On appeal, Green argues that the trial court erred by excluding the evidence without conducting a Richardson hearing. However, there was no reason for the trial court to explore the potential discovery violation — another possible basis for excluding the evidence — when Green had neither proffered nor presented anything to establish when the pictures were taken and posted. If the photographs were taken and posted before A.M.’s encounter with Green, they obviously would not have been relevant to impeach A.M.’s emotionally-charged description of the trauma caused by her encounter with Green. See Charles W. Ehrhardt, 1 Fla. Frac., Evidence § 402.1 (2010 ed.) (“irrelevant evidence is inadmissible.”). However, if A.M. posted the photographs after her encounter with Green, as Green later attempted to establish in post-trial filings, we agree that the evidence would have been relevant to impeach A.M.’s testimony, elicited (perhaps unwittingly) by defense counsel, regarding the impact of the encounter on her life. Because Green’s counsel did not indicate that she had any way to establish when the photographs were taken or posted, in response to the State’s objection, she cannot demonstrate that the trial court erred in sustaining the objection on those grounds.

Accordingly, if Green is entitled to any relief related to this issue, it will be in postconviction proceedings. See, e.g., Gonzalez v. State, 997 So.2d 1180, 1181 (Fla. 3d DCA 2008) (“Because the issues presented in this direct appeal were not properly preserved, we affirm without prejudice to [defendant’s] right to file an appropriate motion for postconviction relief.”) (citation omitted).

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Oh my God.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . The admissibility of "impact” testimony in general is not at issue on appeal, and is not addressed in this opinion. Cf. Tones v. State, 54 So.3d 535 (Fla. 3d DCA 2011) (Ramirez, J., dissenting) (criticizing failure to reverse conviction based upon admission of "victim impact” evidence in rape prosecution).


text:
    Byron COFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3175.
    District Court of Appeal of Florida, Fifth District.
    March 11, 2011.
    Jonathan Edward Rose of Samaan & Rose, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Byron Coffie raises the issue of ineffective assistance of trial counsel in this direct appeal. Generally, ineffective assistance of counsel is not a cognizable claim on direct appeal. See Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987). Therefore, the judgment and sentence are affirmed without prejudice to the appellant to raise the issue by way of a timely motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

LAWSON, EVANDER and JACOBUS, JJ., concur.


author: MAY, J.

text:
    Deborah ABNER, Appellant, v. Gary JOHNSON, Appellee.
    Nos. 4D09-4387, 4D10-1686.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Thomas Montgomery of Thomas Montgomery, P.A., Belle Glade, for appellant.
    Randall D. Burks of Counsel On Appeal, P.A., Wellington, for appellee.
   MAY, J.

A homeowner appeals a final judgment denying her claim to have a deed declared null and void. In a separate appeal, the purchaser of the property appealed an order denying his request for attorney’s fees. We have sua sponte consolidated the two appeals. We affirm the final judgment in case number 4D09-4387. We reverse the trial court’s order denying the purchaser’s motion for attorney’s fees in case number 4D10-1686.

The origin of this action was a foreclosure action when the homeowner failed to make mortgage payments. To avoid the foreclosure, the homeowner and her husband approached the purchaser to buy the home and convert it into a boarding house. They verbally agreed to a purchase price of $61,000.

The purchaser had difficulty obtaining a loan because of the home’s severe disrepair, mortgage arrears, and liens for unpaid expenses. The parties subsequently modified the verbal agreement to require the purchaser to bring the existing mortgage current, and make the monthly payments. In exchange, the homeowner executed a quit claim deed to the purchaser in the presence of a notary and two witnesses.

The purchaser then made a $7,000 payment to the mortgage company to stop the foreclosure, informally assumed the loan by taking over the mortgage payments, paid the property taxes, incurred other expenses to make the home habitable and rentable, and recorded the deed. The parties further agreed that the purchaser would refinance the loan at an unspecified time in the future. The homeowner filed a lis pendens, which prevented the purchaser from being able to refinance the property-

The homeowner then filed suit to declare the quit claim deed invalid, claiming that only one witness was present at the deed signing and that she was fraudulently induced to execute the deed. She further alleged that the purchaser failed to pay off the mortgage and had received profits from renting the property.

The matter' was heard nonjury. The trial court found no evidence of fraud or misrepresentation by the purchaser and that the deed had been properly executed and witnessed. The court further found that, even if the deed had not been properly executed and witnessed, the purchaser had no notice of the defect and relied upon the validity of the deed when he brought the mortgage current and invested time, labor, and resources to repair the property-

On appeal, the homeowner argues the trial court erred in its findings and that she should not have been estopped from requesting that the deed be declared invalid. The purchaser responds that the homeowner’s failure to provide a transcript defeats any argument based upon the trial court’s factual findings. The purchaser further argues that, while the trial court did not rely on estoppel in entering the final judgment, the purchaser proved the elements of estoppel.

“The findings of the trial court arrive on appeal cloaked with the presumption of correctness and, as long as competent substantial evidence exists to support its determinations, the appellate court should affirm.” Gen. Motors Acceptance Corp. v. Laesser, 791 So.2d 517, 520 (Fla. 4th DCA 2001) (citing Oceanic Int'l Corp. v. Lantana Boatyard, 402 So.2d 507, 511 (Fla. 4th DCA 1981)). We find no error in the trial court’s rulings and affirm.

In the second consolidated appeal, the purchaser argues he is entitled to attorney’s fees under Florida Rule of Appellate Procedure 9.410 as a sanction, and under section 48.23, Florida Statutes (2009). We agree with the purchaser that the trial court should have awarded fees under section 48.23. We do not reach the issue of whether the fees were properly imposed as a sanction because we hold that section 48.23 authorizes an award of attorney’s fees under the circumstances presented here.

In S & T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla.2006), our supreme court held an “award of attorney’s fees incurred in discharging a lis pendens is statutorily authorized” under section 48.28(3), Florida Statutes. Id. at 804. Because the dissolving of an injunction constitutes an adjudication on the merits, a reasonable attorney’s fee is a form of recoverable damage covered by a bond posted for the issuance of the injunction. Id. at 304-05.

The homeowner argues that S & T Builders is distinguishable because no bond was posted in this case. We disagree.

In McMillan/Miami, LLC. v. Krystal Capital Managers, LLC., 1 So.3d 312 (Fla. 3d DCA 2009), the Third District held “[ejntitlement to attorney’s fees is not contingent upon the posting of a lis pendens bond. Because section 48.23(3), Florida Statutes (2005), does not require the posting of a bond prior to the filing of a notice of lis pendens, a party cannot be allowed to file such a notice with impunity by not posting a bond.” Id. at 314.

We agree with the Third District’s holding in McMillan. We therefore reverse the trial court’s order denying the purchaser attorney’s fees under section 48.23. Because the dissolving of a lis pendens operates as an adjudication of its validity, a property owner should be entitled to attorney’s fees whether or not a bond was posted.

Affirmed in part and Reversed in part.

DAMOORGIAN and LEVINE, JJ., concur.


text:
    Lensky Matthew JEAN-BART, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4306.
    District Court of Appeal of Florida, Fourth District.
    March 16, 2011.
    Lensky Matthew Jean-Bart, Punta Gor-da, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s post-conviction motion in all respects but two. We reverse and remand for an evidentiary hearing regarding the following: Claim 2 — Appellant’s claim that his trial counsel was ineffective in failing to investigate the injuries allegedly suffered by Officer Guelli during the altercation that led to the charges in this case; and Claim 4 — Appellant’s claim that his trial counsel was ineffective in failing to investigate and secure the alleged video of the incident. Appellant has the burden of proving his claims at the hearing. Pennington v. State, 34 So.3d 151, 154 (Fla. 1st DCA 2010).

POLEN, TAYLOR and HAZOURI, JJ., concur.