author: POLSTON, J.

text:
    BANCO INDUSTRIAL DE VENEZUELA C.A., MIAMI AGENCY, et al., Petitioners, v. Esperanza DE SAAD, et al., Respondents.
    No. SC10-21.
    Supreme Court of Florida.
    June 9, 2011.
    Rehearing Denied Aug. 17, 2011.

      Carol A. Licko, Richard C. Lorenzo, Mark R. Cheskin, and Brian L. Lerner of Hogan and Hartson, LLP, Miami, FL, and Jessica L. Ellsworth of Hogan and Hart-son, LLP, Washington, D.C., for Petitioner.
    Dinah Stein, Mark Hicks, and Shannon Kain of Hicks, Porter, Ebenfeld and Stein, P.A., Miami, FL, William L. Petros of Petros and Elegant, Coral Gables, FL; H. Eugene Lindsey, III of Katz Barron, Squitero, and Faust, Miami, FL, William L. Richey and Catherine Shannon Christie of William L. Richey, P.A., Miami, FL, for Respondents.
   POLSTON, J.

Banco Industrial de Venezuela, C.A., Miami Agency, and its subsidiary, BIV Investments and Management, Inc. (collectively referred to as “BIV”), seek review of the decision of the Third District Court of Appeal in Banco Industrial De Venezuela, C.A., Miami Agency v. de Saad, 21 So.3d 46 (Fla. 3d DCA 2009). For the reasons expressed below, we quash the Third District’s decision.

I. BACKGROUND

The following facts are set forth in the Third District’s decision:

De Saad is the former vice-president and general manager of Banco [Industrial de Venezuelaj’s Miami agency, BIV. As part of an undercover sting operation involving a U.S. Customs confidential informant, de Saad was alleged to have facilitated the deposit of approximately $4 million in drug proceeds into BIV accounts. On May 19, 1998, the United States charged de Saad with ten counts of money laundering and one count of conspiracy to launder money while acting in her capacity as the vice-president of BIV. De Saad retained the services of attorney Beeler to represent her in the criminal proceedings. As part of their fee agreement, de Saad assigned Beeler her right to seek indemnification for attorney’s fees and costs under sections 607.0850(1) and (3), Florida Statutes ....[ ] After a lengthy trial in which the jury found her guilty on all counts, the trial judge granted de Saad’s motion for judgment of acquittal as to all counts finding that the United States had failed to prove all of the necessary elements of the alleged crimes. The United States filed an appeal of the trial court’s acquittal. Seven months after her acquittal, de Saad was charged and pled guilty to one count of money structuring on the condition that the government drop the appeal of the judgment of acquittal on the money laundering and conspiracy charges[] The government dropped the appeal. De Saad then sought from BIV her past wages pursuant to her contract of employment and also sought indemnification for attorney’s fees incurred in her defense of the money laundering and conspiracy charges. BIV denied both claims.
De Saad then filed the present state court action against BIV. Her amended complaint seeks statutory indemnification pursuant to section 607.0850 to recover the costs and attorney’s fees in defending the money laundering charges and claims past wages based on breach of her Employment Contract with BIV. Beeler filed a complaint in intervention based on the assigned right to attorney’s fees and costs in defending de Saad on the money laundering charges. De Saad, Beeler and BIV moved for sum7 mary judgment on the indemnification claims. The trial court entered summary judgment on liability in favor of de Saad and Beeler on the statutory indemnification counts. The trial court held a bench trial on indemnification damages and awarded de Saad $2,895,096.41 on the indemnification claim and Beeler $1,636,168.13. Following the bench trial, both sides moved for summary judgment on the breach of contract claims.... On the breach of contract claims, the trial court entered final summary judgment in favor of de Saad and Beeler and awarded $1,058,023.82 to de Saad exclusively.[]

Banco, 21 So.3d at 47-48 (footnotes omitted).

On appeal, BIV contended that summary judgment in favor of de Saad and Beeler on the indemnification claim was improper because a question remained as to whether the statutory requirements of indemnification were satisfied. Id. at 48. However, applying a Delaware case interpreting a Delaware indemnification statute, the Third District affirmed the trial court, explaining that “de Saad was prosecuted ‘by reason of the fact’ that she was [a] director, officer, employee, or agent of the corporation and was acquitted because she was ‘successful on the merits or otherwise.’” Id. at 49 (quoting § 607.0850(1), (3), Fla. Stat.).

Before the Third District, BIV also argued that the trial court erred in granting summary judgment in favor of de Saad and Beeler on the breach of contract claim. BIV did not terminate de Saad as allowed by the employment contract but instead suspended her without pay, relying on a provision in the personnel manual that provides for suspension of an employee while charges are pending for clarification. Id. at 50. The Third District concluded that the charges against de Saad were clarified by either the United States’ filing of a superseding indictment against de Saad or by BIV’s own internal audit after de Saad’s indictment. Id. Because BIV kept de Saad on unpaid suspension rather than compensate or terminate her, the Third District affirmed the summary judgment on the breach of contract claim. Id.

II. INDEMNIFICATION

We agree with BIV that the Third District erréd in its interpretation of the statutory indemnification provisions. First, summary judgment in favor of de Saad and Beeler on the statutory indemnification claim was improper because Florida’s indemnification statute is not applicable to foreign corporations, such as Banco Industrial de Venezuela, C.A., Miami Agency, a Venezuelan bank authorized to conduct business in Florida (“Banco”). Second, even if the indemnification statute was applicable to the foreign bank, or its Florida subsidiary, BIV Investments and Management, Inc., de Saad is not entitled to statutory indemnification because she cannot satisfy the requirements of section 607.0850, Florida Statutes.

Chapter 607, Florida Statutes, is the Florida Business Corporation Act, which regulates the structure and activity of Florida corporations. See § 607.0101, Fla. Stat. As used in the Act, “ ‘Corporation’ or ‘domestic corporation’ means a corporation for profit, which is not a foreign corporation, incorporated under or subject to the provisions of this act.” § 607.01401(5), Fla. Stat. In contrast, “‘Foreign corporation’ means a corporation for profit incorporated under laws other than the laws of this state.” § 607.01401(12), Fla. Stat.

In some circumstances, foreign corporations are subject to regulation under this Act. Specifically, section 607.1505(1), Florida Statutes, provides that “[a] certificate of authority authorizes the foreign corporation to which it is issued to transact business in this state.” Further, section 607.1505(2), Florida Statutes, provides that a foreign corporation conducting business under a certificate of authority has rights and obligations substantially similar to those of a Florida corporation:

A foreign corporation with a valid certificate of authority has the same but no greater rights and has the same but no greater privileges as, and except as otherwise provided by this act is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character.

(Emphasis added.)

Section 607.1505(3), Florida Statutes, then sets out the following important exception: “This act does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.” Therefore, although Banco is a foreign corporation that operates under a certificate of authority and possesses the same rights, privileges, duties, restrictions, penalties, and liabilities as Florida corporations subject to the entire Act, Banco is not subject to regulation by the Act in matters of its organization or internal affairs. Corporate indemnification is one such matter of internal affairs. See Chatlos Found., Inc. v. D’Arata, 882 So.2d 1021, 1023 (Fla. 5th DCA 2004) (“Indemnification of corporate directors, like the fiduciary obligations of corporate directors, is an ‘internal affair’ of a corporation and is therefore subject to the law of the state of incorporation.” (quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1527 (9th Cir.1985))). Accordingly, pursuant to section 607.1505(3), Banco is not subject to Florida’s indemnification provision, section 607.0850.

De Saad argues that Banco subjected itself to section 607.0850 by executing an employment contract with de Saad, which stipulates the following: “This contract shall be governed solely and exclusively by the laws of the State of Florida, specifically those of Dade County, Florida.... Therefore, it is agreed that the [laws] of other States and countries shall not be applicable to this Contract or to the Employee/Employer relationship governed hereby.” However, this choice-of-law clause simply makes Banco subject to the laws of the State of Florida. And under the laws of Florida described above, Banco is a foreign corporation that is not subject to regulation of its internal affairs, including corporate indemnification.

Moreover, even if Florida’s indemnification statute applied to BIV, de Saad would still not be entitled to indemnification because the requirements of the statute are not satisfied.

Section 607.0850(1), Florida Statutes, provides that a corporation may indemnify its agents for legal expenses under certain conditions:

A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.

(Emphasis added.) Subsection (8) lists the types of expenses for which such an agent must be indemnified:

To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.

Read together, subsections (1) and (3) set out the relevant framework for permissive and mandatory indemnification of corporate agents. Subsection (1) describes when it is within the power of a corporation to indemnify its agent. In comparison, subsection (3) describes when a corporation must indemnify its agent.

Certainly, there are circumstances that satisfy subsection (1) but not subsection (3) — i.e., when a corporation has the right to indemnify a corporate agent but the agent is not necessarily entitled to indemnification. The reverse is not true. A corporate agent cannot be entitled to indemnification when the corporation is powerless to indemnify her. Therefore, the requirements of subsection (1) must be met before an agent seeking indemnification can obtain mandatory indemnification under subsection (3). In other words, the mandatory indemnification provided for by subsection (3) may be reached only after the criteria for subsection (1) indemnification are established. See § 607.0850(3), Fla. Stat. (“To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.”) (emphasis added).

Here, de Saad did not meet the requirements for indemnification under subsection (1) because she was not prosecuted “by reason of the fact” that she was a corporate officer. See § 607.0850(1), Fla. Stat. Although de Saad may have had access to the laundered funds due to her position as a corporate officer, she was prosecuted for her conduct, not on account of her position. This conduct was not required by her position as a corporate officer and was, in fact, contrary to corporate policy.

But even if the prosecution were interpreted to be “by reason of the fact” that de Saad was a corporate officer, other requirements for indemnification under subsection (1) are not met. De Saad did not “act[ ] in good faith and in a manner ... she reasonably believed to be in, or not opposed to, the best interests of the corporation,” as evidenced by her guilty plea as well as the fact that her actions were contrary to corporate policy. § 607.0850(1), Fla. Stat. Furthermore, unlawful monetary transactions made through the corporation could not be “reasonably believed to be in, or not opposed to, the best interests of the corporation.” Id. Nor could such transactions constitute “act[ing] in good faith.” Id.

Accordingly, because de Saad was not eligible for indemnification under subsection (1), she also was not entitled to indemnification under subsection (3). Therefore, summary judgment on the indemnification claim was improperly granted in favor of de Saad and Beeler.

III. BREACH OF CONTRACT

BIV also urges this Court to reverse the final summary judgment in favor of de Saad and Beeler on the breach of contract claim, including the $1,058,023.82 award to de Saad against BIV. We do so because de Saad’s employment contract gave BIV the right to suspend de Saad until the merits of the pending charges were clarified by her plea to money structuring.

On December 1, 1997, de Saad entered into an employment contract with BIV. Section E.2 of the personnel manual, which is incorporated into the employment contract, specifies certain grounds for immediate dismissal or for suspension “[pjending [cjlarification of [cjharges.” One of the grounds listed is “[cjonclusive evidence of dishonesty or involvement in a misdemean- or or felony.”

Based upon these provisions, BIVs board of directors convened and executed a resolution to suspend de Saad immediately after her arrest without pay “with the understanding that if the findings against her taking place in U.S. Courts are negative, her remunerative payment will be acknowledged retroactively.” However, de Saad continued to maintain her innocence about all of her conduct even after the December 20, 1999, jury verdict finding her guilty on all counts and the subsequent judgment of acquittal. Ultimately, de Saad’s suspension continued because the merits of the charges were not clarified until de Saad pled guilty to the money structuring charge in February 2001, which was after the employment contract expired. And because clarification did not occur until that time, BIV did not breach the contract by keeping de Saad on unpaid suspension.

In contrast, the Third District concluded that the charges against de Saad were clarified by the United States’ filing of the superseding indictment or BIV’s internal audit after the indictment. Banco, 21 So.3d at 50. The Third District reached this conclusion by construing “clarif[y]” to mean that BIV simply needed to understand the nature of the charges against de Saad. See id. However, in this employment contract, the plain meaning of “clarify” is “to make clear” and “to free (the mind or understanding) of confusion, doubt or uncertainty.” Webster’s Third New International Dictionary Unabridged 415 (1981). In this case, BIV was not clear and free from doubt or uncertainty about the pending charges until de Saad pled guilty to money structuring. Therefore, summary judgment in favor of de Saad and Beeler on the breach of contract claim was improper.

IV. CONCLUSION

As explained above, Florida’s indemnification statute does not apply to foreign corporations, such as Banco. And even if the statute did apply to BIV, de Saad would not be entitled to statutory indemnification because she cannot satisfy the requirements of section 607.0850(1). Furthermore, because clarification of the charges did not occur until de Saad pled guilty to money structuring, BIV did not breach the employment contract by keeping de Saad on unpaid suspension. Accordingly, we quash the Third District’s contrary decision and remand with instructions for entry of final judgment in favor of BIV against the claims of de Saad and Beeler in accordance with this opinion.

It is so ordered.

CANADY, C.J, and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . Section 607.0850, Florida Statutes, has remained unchanged since 1989 with the exception of gender neutrality amendments in 1997. See ch. 89-154, § 93, Laws of Fla.; ch. 97-102, § 30, Laws of Fla.

      .In connection with her guilty plea, de Saad was fined $50,000, sentenced to one year of probation, and agreed never to seek or accept employment with any financial institution in the United States without the prior express written consent of the U.S. Attorneys’ Office.

      . Additionally, the trial court entered final judgment in favor of de Saad and Beeler on BIV’s counterclaim for damages for expenses, costs, and attorney's fees. Specifically, the trial court stated that BIV "takes nothing by this action and Plaintiff, Esperanza de Saad, and Intervenor, Joseph Beeler, P.A., shall go hence without day.” Because BIV failed to raise any specific issues regarding this ruling before the Third District and this Court, BIV has waived all grounds for contesting the final judgment on its counterclaim. See Philip J. Padovano, Florida Appellate Practice § 8:10 (2011 ed.). BIV’s mention of the counterclaim in its initial briefs to the Third District and this Court in a footnote is insufficient. See Shere v. State, 742 So.2d 215, 217 n. 6 (Fla.1999) (noting that claims raised in appellate brief that contain no argument or grounds for reversal are deemed abandoned). Accordingly, any cross-appeal issues raised by de Saad and Beeler in the Third District regarding BIV's counterclaim are moot.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    Bradley WOMACK, Appellant, v. Dawn LARUE, individually, and as parent and natural guardian of Devan J. Larue, a minor, Appellee.
    No. 2D10-1502.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.
    Shea T. Moxon of Swope Rodante, P.A., Tampa, for Appellant.
    Stuart J. Freeman of Brasfield, Freeman, Goldis & Cash, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

Bradley Womack appeals a final summary judgment entered in favor of Dawn Larue, individually and as parent and natural guardian of Devan Larue. After a thorough review of the record, we conclude that the trial court correctly found that there were no genuine issues of material fact to be determined and that Ms. Larue was entitled to summary judgment as a matter of law. Accordingly, we affirm.

DAVIS and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Bradford S. MATHENY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2756.
    District Court of Appeal of Florida, First District.
    June 10, 2011.
    Rehearing Denied Sept. 13, 2011.
    Bradford S. Matheny, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

DAVIS, ROBERTS, and ROWE, JJ., concur.


text:
    GAMMA CONSTRUCTION, INC., Appellant, v. BRIDGELOAN INVESTORS, INC., etc., Appellee.
    No. 3D10-1803.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.

      Patrick J. Goggins; Joel S. Perwin, Miami, for appellant.
    Hall, Lamb & Hall and Andrew C. Hall and Matthew P. Leto, Miami, for appellee.
    Before GERSTEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. See Nat’l Loan Investors, L.P. v. Burgher, 742 So.2d 406 (Fla. 4th DCA 1999).


author: SUAREZ, J.

text:
    CITY OF MIAMI BEACH, a municipality of the State of Florida, Petitioner, v. STAR ISLAND ENTERTAINMENT LLC, d/b/a Mansion, Respondent.
    No. 3D09-2547.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Rehearing Denied Sept. 21, 2011.
    Jose Smith, City Attorney, Debora J. Turner, First City Attorney, and Sheri Sack, First Assistant City Attorney, for petitioner.
    Levine & Partners, and Alan W. Levine, Paul Levine, Clearwater, Robert J. Levine and Suzan Jon Jacobs, Miami, for respondent.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   SUAREZ, J.

Petition for Writ of Certiorari denied. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010).


author: MORRIS, Judge.

text:
    CELLCO PARTNERSHIP, d/b/a Verizon Wireless and Alltel Corporation, Appellant, v. Michael Jason KIMBLER, Greta Tagliavia, Sprint/United Management Company, Sprint Spectrum LP, and Nextel South Corp., Appellees.
    No. 2D10-2536.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.
    Rehearing Denied Sept. 1, 2011.

      Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa; William F. Hamilton and Kelli A. Edson of Quarles & Brady LLP, Tampa; and Thomas M. Gonzalez, Gregory A. Hearing, James M. Craig, and Sacha Dyson of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellant.
    Elizabeth M. Rodriguez and Robert D. Hall, Jr., of Ford & Harrison LLP, Miami, for Appellee Michael Jason Kimbler.
    April L. Boyer of K & L Gates LLP, Miami, and Jonathan C. Koch of Bush Ross, P.A., Tampa, for Appellees Greta Tagliavia, Sprint/United Management Company, Sprint Spectrum LP, and Nex-tel South Corp.
   MORRIS, Judge.

Célico Partnership, d/b/a Verizon Wireless and Alltel Corporation, appeals a nonfinal order denying its motion for temporary injunction. Célico sought the injunction against Michael Jason Kimbler, a former Alltel employee who, shortly after Célico d/b/a Verizon acquired Alltel through a merger transaction, left to work for Sprint/Nextel. Célico alleged that Kimbler sent a list of sixty current Alltel customers to his new supervisor at Sprint. Célico claimed that the list qualified as a trade secret and that Kimbler violated a confidentiality agreement, thereby necessitating the injunction. We affirm the denial of the temporary injunction, but we write solely to address the issue of enforcement of the nondisclosure and nonsolicitation agreement that Kim-bler had with Alltel (the Ailtel-Kimbler agreement).

I. Background

Kimbler began his employment with Alltel in March 2002, and shortly thereafter, he signed the Ailtel-Kimbler agreement. The parties to that agreement were listed as Kimbler and “Alltel or any of its affiliated companies.” At the time the agreement was signed, Célico and Alltel were competitors, not affiliated companies. The Ailtel-Kimbler agreement does not contain an assignment clause permitting Alltel to assign the rights under the contract to any other entity. Nor does the agreement identify Célico as a third-party beneficiary to the contract. It is undisputed that Kimbler never signed a restrictive covenant with Célico. Kimbler worked for Alltel until February 2009 when he became employed by Verizon as a result of the merger. Then, in July 2009, Kimbler went to work for Sprint/Nextel, a competitor of Verizon.

During Kimbler’s employment with Alltel in June 2008, Célico, AirTouch, and nonparty Abraham Merger Corporation entered into an agreement and plan of merger (reverse merger plan) with Alltel and its parent corporation, Atlantis Holding Co. The reverse merger plan went into effect on January 9, 2009, resulting in Abraham’s ceasing to exist and Alltel’s emerging as the surviving corporation. At that time, Alltel assigned its Florida customer contracts to Célico.

Shortly after Kimbler left to work for Sprint, Célico brought suit against him seeking a temporary injunction based on his alleged misuse of the customer information and breach of his duty of loyalty. Célico was successful in obtaining an ex parte temporary injunction. However, after Kimbler sought to dissolve the injunction and after Sprint intervened and joined in the dissolution request, the trial court dissolved the temporary injunction holding that the complaint was insufficiently verified. The trial court then set a further evidentiary hearing to determine whether the injunction should be reinstated.

In the interim, Célico filed a second amended complaint adding Kimbler’s supervisor at Sprint as a defendant, adding Alltel as a party plaintiff, and adding a count for breach of the Ailtel-Kimbler agreement. In March 2010, the evidentia-ry hearing was conducted. The trial court ultimately denied Cellco’s request for in-junctive relief. In doing so, the trial court determined in part that Célico could not enforce the Ailtel-Kimbler agreement because the rights within it were still held by Alltel and had not been assigned to Célico. The court also ruled that Alltel was no longer engaged in the retail cell phone aspect of the business and no longer had any customer accounts or agreements in Florida. There is competent, substantial evidence to support these findings, and we agree with the trial court.

II. Analysis

We review an order denying a request for a temporary injunction for abuse of discretion. See LaRose v. A.K., 37 So.3d 265, 266 (Fla. 2d DCA 2009) (citing Ware v. Polk Cnty., 918 So.2d 977, 979 (Fla. 2d DCA 2005)).

In order to prove its entitlement to a temporary injunction, Célico was required to prove “ ‘(1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (B) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest support the entry of the injunction.’ ” LaRose, 37 So.3d at 266 (quoting Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005)).

Here, Célico argues that it is entitled to a temporary injunction based on an enforceable restrictive covenant, to wit: a nondisclosure and nonsolicitation agreement. “An enforceable restrictive covenant is one in which ‘the contractually specified restraint is reasonably necessary to protect [a] legitimate business interest.’ ” Walsh v. PAW Trucking, Inc., 942 So.2d 446, 448 (Fla. 2d DCA 2006) (alteration in original) (quoting § 542.335(1)(c), Fla. Stat. (2003)). Therefore, to satisfy the irreparable harm requirement based on an alleged breach of a restrictive covenant, the party seeking a temporary injunction must show “that the covenant protects a legitimate business interest as defined by section 542.335(1)(b) and that the covenant was violated.” Id. But it is a defense to such an action “that the person seeking enforcement no longer continues in business in the area .... ” § 542.335(l)(g)(2), Fla. Stat. (2008-2009). Indeed, in Wolf v. James G. Barrie, P.A., 858 So.2d 1083, 1085 (Fla. 2d DCA 2003), we held that “[i]f the employer is not in a like business, it has no legitimate interest in protecting against competition in that business.”

In this case, the record supports the trial court’s finding that Alltel is “no longer engaged in the retail cell phone side of the business” in Florida and that Alltel no longer has any customer accounts or agreements because it assigned those accounts and agreements to Célico after the reverse merger occurred. Consequently, Alltel has no legitimate business interest in enforcing the Alltel-Kimbler agreement.

Célico contends that it may enforce the agreement because it is a postmerger affiliate of Alltel and that the Alltel-Kimbler agreement defines employer as “Alltel and Alltel’s affiliates.” However, the Alltel-Kimbler agreement fails to expressly identify Célico as an affiliate and fails to extend the agreement’s application to future unknown affiliated companies. Célico and Alltel were not affiliates when the agreement was entered into in 2002; rather, they were competitors and remained so until 2009. The parties’ intentions at the time of executing the contract are what control their agreement as to the definition of affiliates. See James v. Gulf Life Ins. Co., 66 So.2d 62, 63 (Fla.1953); Sheldon v. Tiernan, 147 So.2d 167, 169 (Fla. 2d DCA 1962). Because the agreement fails to reference Célico as either a known affiliate or unknown future affiliate, we refuse to extend the term affiliate to encompass Célico in this case.

We acknowledge that section 542.335(l)(f) provides for limited circumstances in which a nonparty to a restrictive covenant may seek to enforce it. Specifically, the statute provides that a court may not refuse to enforce a restrictive covenant on the basis that the person seeking enforcement is a third-party beneficiary of the contract or an assignee or successor to a party in such a contract. § 542.335(l)(f)(l) & (2). But those exceptions only apply where the third-party beneficiary, assignee, or successor is expressly named and authorized to enforce the covenant. See id.; Tusa v. Roffe, 791 So.2d 512, 514 (Fla. 4th DCA 2001) (denying enforcement where agreement did not identify Tulsa as a third-party beneficiary or indicate that the agreement was intended for Tulsa’s benefit). And here, the undisputed evidence was that Alltel and Célico did not merge and that Alltel did not assign the restrictive covenant rights to Célico. As a result, Célico cannot enforce the Alltel-Kimbler agreement because it is not a party to the agreement nor is it a third-party beneficiary, assign-ee, or successor in interest. Further, Céli-co and Alltel are separate legal entities, and as such, Célico — the parent corporation — cannot “exercise the rights of its subsidiary.” Am. Int’l Group Inc. v. Cornerstone Buss., Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004) (citing Unijax, Inc. v. Factory Ins. Ass’n., 328 So.2d 448, 453-54 (Fla. 1st DCA 1976)).

III. Conclusion

We hold that based on Alltel and Cell-co’s relative positions — -with Alltel’s no longer participating in the retail cell phone business in Florida and with Cellco’s not being a party, third-party beneficiary, as-signee, or successor in interest to the Alltel-Kimbler agreement — neither Alltel nor Célico could enforce the terms of the Alltel-Kimbler agreement. We therefore affirm the denial of the motion for temporary injunction.

WHATLEY and SILBERMAN, JJ., Concur.

      . Célico owns AirTouch Cellular, a nonparty to this action. In turn, AirTouch is the 100% owner of Alltel. But Célico and Alltel remain separate legal entities.

      . Our resolution of the case on this ground dispenses with the need to address whether the customer list qualified as a trade secret.


text:
    Benjamin F. KNOX, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4227.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    Rehearing Denied Sept. 8, 2011.
    Benjamin Knox, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 636 So.2d 534 (Fla. 5th DCA 1994) (recognizing failure to award equitable credit pursuant to Fraser v. State, 602 So.2d 1299 (Fla.1992) does not render a sentence illegal).

MONACO, LAWSON, and COHEN, JJ., concur.


text:
    Alberto RAMIRES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3694.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    Rehearing Denied Sept. 13, 2011.

      Alberto Ramires, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Yony DUARTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3332.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2011.
    Rehearing Denied Sept. 8, 2011.
    James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Yony Duarte, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Crider, 625 So.2d 957 (Fla. 5th DCA 1993).

MONACO, TORPY and LAWSON, JJ., concur.


text:
    Garren J. WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1669.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Garren J. Washington, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Garren J. Washington seeks post-conviction relief by way of filing an original Petition for Writ of Habeas Corpus, following the trial court’s denial of his motion for jail credit for time served. We dismiss this petition for habeas corpus, treat the petition as a motion properly filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and affirm denial of relief without prejudice for Washington to first seek and exhaust his administrative remedies with the Department of Corrections. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999) (holding that, when seeking credit for time served after sentencing, the defendant must exhaust administrative remedies with the Department of Corrections before requesting judicial relief). After exhausting such remedies, Washington may file a petition for writ of mandamus against the Department.

Habeas Petition dismissed; 3.800(a) denial of relief affirmed.


text:
    Terry WEAVER, Appellant, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D11-2774.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Rehearing Denied Sept. 13, 2011.
    Terry Weaver, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Beverly Brewster, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 24, 2011, as well as the record on appeal, the appeal is hereby dismissed for lack of jurisdiction. The dismissal is without prejudice to seek review after a final order disposing of the appellant’s Petition for Writ of Mandamus has been rendered. All pending motions are denied.

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


author: LaROSE, Judge.

text:
    CHARLOTTE COUNTY, a political subdivision of the State of Florida, Appellant, and Ameditrans, Inc., Intervenor/Appellant, v. GRANT MEDICAL TRANSPORTATION, INC., a Florida corporation, Appellee.
    No. 2D10-5758.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2011.

      Janette S. Knowlton, County Attorney; Philip Fairman and Kira C. Honse, Assistant County Attorneys, Port Charlotte, for Appellant Charlotte County.
    K’Shana J. Haynie and Clayton W. Crevasse of Roetzel & Andress, LPA, Fort Myers, for Intervenor/Appellant Amedi-trans, Inc.
    Darol H.M. Carr and George T. Williamson of Farr, Farr Emerich, Hackett & Carr, P.A., Punta Gorda, for Appellee.
   LaROSE, Judge.

Charlotte County and Ameditrans, Inc., appeal an order granting a temporary injunction in favor of Grant Medical Transportation, Inc. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(B). The County and Ameditrans argue that the trial court erred in enjoining the enforcement of a contract between them because the contract was in performance, Grant failed to satisfy the elements necessary to support entry of a temporary injunction, and the trial court failed to provide sufficient findings of fact showing the need for injunctive relief. We reverse.

Grant was an unsuccessful bidder to provide the County with bus drivers and bus washers for a transit program for the disabled. Ameditrans won the contract. Grant sued, claiming that Ameditrans failed to satisfy the County’s bid requirements when it responded to a request for bids (RFB). At the time Grant moved for a temporary injunction, the County and Ameditrans were already in contract negotiations. By the time the trial court granted Grant’s motion, the contract was final and Ameditrans had begun providing services to the County.

Appellate review of temporary injunctions is a matter of right. Id.; City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 753 (Fla. 1st DCA 1994), approved, 659 So.2d 1046 (Fla.1995). We review the trial court’s order for abuse of discretion. H & M Hearing Assocs., LLC v. Nobile, 950 So.2d 501, 503 (Fla. 2d DCA 2007). The issuance of a temporary injunction remains an extraordinary remedy, granted sparingly. Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002). Generally, injunctive relief is an inappropriate remedy for what has already happened. Naegele, 634 So.2d at 754 (citing Quadomain Condo. Ass’n v. Pomerantz, 341 So.2d 1041, 1042 (Fla. 4th DCA 1977)); see also Wilkinson v. Woodward, 105 Fla. 376, 141 So. 313, 313 (1932); City of Coral Springs v. Florida Nat’l Props. Inc., 340 So.2d 1271, 1272 (Fla. 4th DCA 1976).

To obtain temporary injunctive relief, the movant must satisfy each of the following elements: (1) the movant has a clear legal right to the requested relief or, in other words, it has a substantial likelihood of success on the merits; (2) the movant will suffer irreparable harm if the trial court refuses to grant the injunction; (3) the movant does not have available another adequate remedy at law; and (4) a public interest will be served by the imposition of the injunction. Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996).

A verified complaint or motion, by itself, is inadequate to establish the necessary proof when there is a noticed and contested evidentiary hearing. See Orkin Extermination Co. v. Tfank, 766 So.2d 318, 320 (Fla. 4th DCA 2000). There, the movant presented no evidence or testimony at the contested hearing. It simply rested on its verified complaint. Id. at 319. The trial court denied a motion for injunctive relief, and the appellate court affirmed. Id. at 319-20; but cf. Fla. R. Civ. P. 1.610 (delineating requirements for ex parte temporary injunction issued for limited duration, which may rest on a verified complaint).

Here, Grant’s motion stated, “As alleged in the Complaint, [Grant] will suffer irreparable harm if Charlotte County is not enjoined from engaging in contract negotiations with Ameditrans and from entering into contracts with Ameditrans.” Grant’s allegations about the nature of the irreparable harm were sparse:

[Grant] has and will continue to suffer irreparable harm as a result of the County’s actions causing it significant irreparable damage along with disruption of its business operations. [Grant] •will also be irreparably harmed if the Ameditrans contract to provide professional services related to the RFB is approved.

Grant presented no evidence of irreparable harm. At the hearing on its motion, Grant advanced the same conclusory allegations through its attorney. This is not enough. See Brand v. Elliott, 610 So.2d 37, 38 (Fla. 5th DCA 1992) (“In the absence of a clear stipulation of counsel, argument of counsel alone does not constitute evidence from which the trial court can determine the propriety, vel non, of granting injunctive relief.”).

Grant’s allegations as to its likelihood of success also were conclusory; Grant offered little, if any, evidence on this point. We observe that the RFB required all bidders to acknowledge receipt of any addenda from the County in writing prior to the close of all bids. Grant complied. Pri- or to the bid award, the County discovered that Ameditrans failed to acknowledge receipt of two addenda. After the bid opening but prior to the contract award, the County required Ameditrans to acknowledge receipt of the addenda. Ameditrans did so promptly. The Board of County Commissioners subsequently awarded the contract to Ameditrans and negotiations began.

Grant argues that the RFB required bidders to acknowledge receipt of addenda. According to Grant, Ameditrans’ failure to do so before bid opening rendered its bid nonresponsive. However, a Senior Division Manager for the County’s Purchasing Department testified, without rebuttal from Grant, that neither addendum was significant and the successful bidder would have to perform the contract, including addenda terms. She also testified that Ameditrans’ failure to initially acknowledge the addenda was a minor deficiency. Under the RFB, the County reserved the right to waive any minor irregularities or technicalities in the bid. See Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla.1982) (holding that Liberty County could reserve right to waive minor technical defects in Advertisement for Bids where there was otherwise substantial compliance with bidding process).

Grant offered no countervailing evidence. On this record, we must conclude that Grant failed to show a likelihood of success on the merits. Nevertheless, the trial court found that a temporary injunction was necessary. This was error. See Naegele, 634 So.2d at 754 (stating that findings must “do more than parrot each tine of the four-prong test”); Snibbe, 682 So.2d at 570 (citing Florida Rule of Civil Procedure 1.610(c) and reiterating that findings must specify reasons); Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997) (“Clear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a temporary injunction”) (quoting Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994)).

Grant failed to establish each element needed for entry of a temporary injunction. Accordingly, we reverse the trial court’s order.

Reversed.

SILBERMAN, C.J., and KELLY, J., Concur.


author: TAYLOR, J.

text:
    FLORIDA GAMCO, INC., Frank Mirabella, Pamela McKinnon and Charlie Price, Appellants, v. Gale FONTAINE, individually and derivatively on behalf of Florida Gamco, Inc., a Florida corporation, Appellee.
    No. 4D10-4402.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Shannon P. McKenna of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellants-Florida Gamco, Inc.
    Frank Mirabella and John A. Rudolph, Jr. and M. Drew Parker of Ard, Shirley & Rudolph, P.A., Tallahassee, for Appellants-Pamela McKinnon and Charlie Price.
    Keith T. Grumer and Theodore D’Apuz-zo of Grumer & Macaluso, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

The defendants, Florida Gamco, Inc., Frank Mirabella, Pamela McKinnon, and Charlie Price, appeal the trial court’s non-final order denying their motion to transfer venue from Broward County to Leon County. Because the defendants met their burden of proving that venue was improper in Broward and proper in Leon, and Plaintiff Gale Fontaine, individually and derivatively on behalf of Florida Gam-co, Inc., failed to meet her burden of establishing the propriety of Broward, we reverse and remand for an order transferring venue to Leon County.

Fontaine, individually and on behalf of Florida Gamco, filed a verified complaint against Florida Gamco, Mirabella, McKin-non, and Price. Mirabella, McKinnon, and Price are Florida Gamco’s officers. Fon-taine alleged that: she is a Broward County resident; Florida Gamco is a Florida corporation with its principal address in Tallahassee; Mirabella is a Leon County resident; McKinnon is a Leon County resident; Price is a Leon County resident; and that “[v]enue is proper in Broward County, Florida as the place where SHAREHOLDER resides and where all relevant actions or omissions occurred.”

Counts I and II of the complaint allege breaches of fiduciary duty to Fontaine and Florida Gamco, respectively, due to misappropriation of corporate funds, and assert that the officers breached their duty by: exploiting Florida Gamco’s finances for their own pecuniary gain; wasting corporate assets; failing to make distributions to shareholders; maladministration of Florida Gamco; breaching their duties as officers and board members; failing to disclose self-dealing; defaulting on the contract with DAV 18 by failing to timely remit payment for rent and other disbursements; distributing gift cards to individual officers; reimbursing officers’ travel and meal expenses unrelated to Florida Gamco; and participating in oppressive majority practices for their own personal benefit. Count III, slander, alleges that Mirabella made false and defamatory statements about Fontaine, and orally published these statements in October 2009 during phone conversations with James Barron and Daniel Cassiani. Count IV, libel, alleges that Mirabella made defamatory statements about Fontaine, and published these to a third party, including Denis Desmarais, through email on December 28, 2009.

The defendants moved to dismiss the complaint, or in the alternative to transfer venue, requesting the court to transfer the case to Leon County. They asserted that all the defendants reside in Leon County, the alleged actions occurred in Leon County, and Florida Gamco’s principal place of business is Tallahassee. The defendants argued that Fontaine failed to specifically allege any facts supporting venue in Bro-ward as appropriate.

The trial court held an evidentiary hearing on the motion to transfer venue. Frank Mirabella, president and CEO of Florida Gamco, testified to the following: that he resides in Tallahassee, along with Price and McKinnon; Florida Gamco was incorporated in Tallahassee, and its principal place of business is in Tallahassee, with no offices in Broward; Florida Gamco’s corporate and business records are maintained in Leon County, and decisions relating to Florida Gamco’s business are made in Leon County; the actions alleged in the complaint would have occurred in Leon County; the company, DAV 18, named in the breach of contract claim is located in Manatee County, not Broward; Mirabella, Baron, and Cassiani, who were parties to the alleged 2009 phone conversations were located in Leon County; any email to Des-marais would have been sent from Leon County.

Other witnesses testified to contracts between Florida Gamco and their companies located in Broward County. Fontaine testified that Florida Gamco had no customers in Leon, but the offices were placed there because of Mirabella. Fon-taine testified that Florida Gamco’s customers (three commercial bingo halls and two arcades) are in Broward, and that not all of the witnesses for those fraternal organizations are in Broward; some are in Bradenton. On cross, Fontaine admitted that Florida Gamco was incorporated in Leon, its principal place of business is in Leon, Mirabella is a resident of Leon, McKinnon is a resident of Leon, Price is a resident of Leon, and Florida Gamco’s office is in Leon. When asked, “whatever it is you’re saying that they [meaning Mira-bella, Price, and McKinnon] did, when they did it they did it in Leon County, right?”, Fontaine said, “Yes, they did it in Leon County.” When asked, “And if you have an allegation in your complaint that Frank Mirabella, who has slandered you and libeled you, and if he did that, that would have been done while he was in Leon County, Florida?” Fontaine agreed. On further cross-examination, when asked if Gamco would have made payment to Fon-taine for the pull tabs, Fontaine admitted that those payments would have come from the Leon County office.

Price testified that he resided in Tallahassee, Leon County, but owned several other properties around Florida, none of which are in Broward. He said that the Board of Directors meetings are generally held in Tallahassee, although one was held in Bradenton.

McKinnon testified that she resides in Tallahassee, Leon County. She stated that there were no payments for pull tab sales to be made to Fontaine. Although denying the complaint’s allegations, McKinnon testified that if those alleged events occurred, they would have taken place in Leon County. Further, Florida Gamco’s only office is in Leon. On cross, McKinnon stated that there are no vendors or fraternal organization gaming halls that are customers in Leon.

In sum, the defendants argued that all the defendants reside in Leon County; that any alleged actions or statements made would have occurred in Leon; that Florida Gamco had its office in Leon; that the business was conducted in Leon; and that the causes of action accrued in Leon. In defense of her venue choice, Fontaine referred to Mirabella’s testimony that Florida Gamco did business in Broward, that the events giving rise to the causes of action occurred in Broward, and that all of the witnesses to these breaches are in Broward. She argued that venue should remain in Broward.

The court denied the motion, finding as follows:

[T]he Court finds that the allegations based upon testimony that the Court heard, that breaches occurred in Bro-ward County and that the corporation was doing business in Broward County gives Broward County sufficient venue to hear this case, so the Court must respectfully deny....
Well, the factual findings, so it’s clear, are that there are sufficient allegations of doing business in Broward County, there’s sufficient allegations of breaches in Broward County. The Court does not have to reach the issue of forum non-convenience because you have witnesses in both the Ford Motor Company case that you showed me which I read. Certainly well-reasoned is that in that particular case the van was actually rented down here in Dade or Broward, the vehicle left from here, and Ford Motor Company clearly does business here in Broward, so I think that the judge made a wise decision in that particular case.
For all those reasons, the Court respectfully denies your motion.

The defendants appealed the denial of their motion to transfer venue from Bro-ward County to Leon.

“ ‘[W]hen a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection, the defendant is arguing that, as a matter of law, the lawsuit has been filed in the wrong forum. In order to rule on such a motion, the trial court needs to resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable. A trial court’s factual decisions in this context are reviewed to determine whether they are supported by competent, substantial evidence or whether they are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.’ ” Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1002 (Fla. 4th DCA 2010) (quoting PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999)) (alteration in original).

“The plaintiff has the prerogative ‘to select the venue and as long as that selection is one of the alternatives provided by statute, the plaintiffs selection will not be disturbed.’ ” Padin v. Travis, 990 So.2d 1255, 1256 (Fla. 4th DCA 2008) (quoting Premier Cruise Lines, Ltd., Inc. v. Gavrilis, 554 So.2d 659, 660 (Fla. 3d DCA 1990)). If the defendant contests the plaintiffs venue selection, the defendant has the burden to prove plaintiffs venue selection was improper. Id. (citing Pier Point Developers, LLC v. Whitelaw, 912 So.2d 18, 19 (Fla. 4th DCA 2005)). Further, to establish this burden, this defendant must then show where proper venue is. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l Bank of Melbourne & Trust Co., 238 So.2d 665, 667 (Fla. 4th DCA 1970). We explained that “ ‘once a defendant has challenged venue with an affidavit controverting a plaintiffs venue allegation, the burden is upon the plaintiff to prove that the selection of venue is proper.’ ” Miller v. Southland, Ins. Co., Inc., 513 So.2d 800, 801 (Fla. 4th DCA 1987) (quoting Tropicana Prods., Inc. v. Shirley, 501 So.2d 1373, 1375 (Fla. 2d DCA 1987)). If the defendant makes the proper showing, the court should, if possible, transfer the case to the correct venue, pursuant to Florida Rule of Civil Procedure 1.060(b), rather than dismiss it. Merrill Lynch, 238 So.2d at 667 (citing Foy v. State Rd. Dep’t, 166 So.2d 688 (Fla. 3d DCA 1964)).

Section 47.011, Florida Statutes (2010), provides in pertinent part that “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” With respect to a suit filed against a corporation, section 47.051, Florida Statutes (2010), provides in pertinent part that “[ajctions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” Here, it is undisputed that there is no property involved in the litigation, such that the question turns on whether the defendants reside in Broward or whether the causes of action accrued in Broward.

Venue is proper where the defendants reside. § 47.011. Here, Mirabella, McKinnon, and Price were sued individually, such that venue would be proper where they reside. As the complaint alleged, and as the officers each testified, Mirabella, McKinnon, and Price reside in Tallahassee, Leon County. Thus, venue is proper in Leon County and improper in Broward.

However, as to Florida Gamco, the trial court incorrectly found that venue was proper in Broward because Florida Gamco was doing business in Broward County. Section 47.051 provides, with regard to a domestic Florida corporation, that venue is proper “in the county where such corporation has, or usually keeps, an office for transaction of its customary business.” This section distinguishes between Florida and foreign corporations: “A Florida corporation resides where it has an office for the transaction of its customary business,” while “[a] foreign corporation doing business in Florida resides where it has an agent or other representative.” Aladdin Ins. Agency, Inc. v. Jones, 687 So.2d 937, 939 (Fla. 3d DCA 1997) (citations omitted). Here, the trial court erred in finding that venue was proper because there are sufficient allegations of doing business in Broward County. A corporation in Florida “resides where it has an office for transaction of its customary business. ‘Doing business’ is not the test.” Id. (emphasis added) (citations omitted). See also U-Haul Co. of N. Fla., Inc. v. Fuller, 417 So.2d 1102, 1103 (Fla. 4th DCA 1982) (“Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic, as opposed to a foreign, corporation.”). Here, it was undisputed that Florida Gamco has its principal place of business in Leon County. The trial court’s finding that Florida Gamco conducted business in Broward, and, as such, any breaches occurred in Broward, was an improper basis for its ruling on venue. Under section 47.051, Leon is the only proper place for venue.

The final inquiry is whether any causes of actions accrued in Broward to support venue. Fontaine, as the plaintiff, had the prerogative to select venue. The burden then shifted to the defendants to establish that venue was improper in Bro-ward and proper in Leon. If they met this burden, the burden then shifted back to Fontaine to establish that venue was indeed proper in Broward.

If the plaintiff alleges several causes of action, venue is appropriate “ ‘in any county where any of the causes of action arose.’ ” McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 510 (Fla. 4th DCA 2010) (quoting § 47.041, Fla. Stat.). Fontaine alleged Counts I and II, breach of fiduciary duty to Fontaine and Florida Gamco, respectively; Count III, slander by Mira-bella; and Count IV, libel by Mirabella.

The breach of fiduciary claims contained in Counts I and II are detailed above. Fontaine made a blanket and vague assertion in the complaint that “[v]enue is proper in Broward County, Florida as the place where SHAREHOLDER resides and where all relevant actions or omissions occurred.” Because breach of fiduciary duty claims sound in tort law, venue is proper in Leon County, not Broward; Fontaine failed to rebut this. See Moscowitz v. Oldham, 48 So.3d 136, 138 (Fla. 5th DCA 2010) (applying venue rule for tort to both a legal malpractice claim and a claim for breach of fiduciary duty).

“[A] tort claim accrues for venue purposes ‘where the last event necessary to make the defendant liable for the tort took place,’ or where the harmful effect of the defendant’s acts first took effect. Stated another way, a tort accrues where the plaintiff first suffers injury.” Weinberg v. Weinberg, 936 So.2d 707, 709 (Fla. 4th DCA 2006) (citations omitted). Therefore, “a cause of action for tortious conduct accrues at ‘the moment the wrong and the injury both accrue.’ ” McDaniel Reserve, 39 So.3d at 509 (quoting PricewaterhouseCoopers, 761 So.2d at 1134). Despite “that the plaintiff may suffer subsequent damages, even its greatest damage, in another county, the tort accrues with the first compensable damage.” PricewaterhouseCoopers, 761 So.2d at 1134.

The defendants testified that Florida Gamco had only one office, located in Tallahassee. Mirabella testified that Florida Gamco had no offices in Broward. Mira-bella further testified that all decisions relating to Florida Gamco are made in Tallahassee and that all of the alleged wrongdoing would have occurred in Tallahassee, in Leon County. Any of the aforementioned actions would have manifested in the Florida Gamco office in Leon, and the injury to plaintiff would have occurred in Leon County. Therefore, the defendants met their burden of proving that venue was improper in Broward and proper in Leon.

Fontaine failed to meet her burden to show Broward was the proper venue for the breach of fiduciary duty counts when it shifted back to her. During her testimony, she conceded that any misconduct allegedly committed by Mirabella, Price, and McKinnon occurred in Leon County.

A “ ‘ “cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party fails to perform an act it has agreed to do.’”” Goheagan, 35 So.3d at 1003 (quoting Koslow v. Sanders, 4 So.3d 37, 38 (Fla. 2d DCA 2009)). Specifically regarding the allegations of the breach of contract with DAV 18, Mirabella testified that DAV 18 is located in Manatee County, not Broward. If there was a default on the contract, it would have either accrued in Leon County, where Florida Gamco resided, or in Manatee County, where DAV 18 resided. Therefore, as to Counts I and II, the defendants met their burden of establishing that venue was only proper in Leon County; Fontaine failed to rebut this.

As to Count III, slander, and Count IV, libel, these causes of action would have accrued “at the time of the first publication.” § 770.07, Fla. Stat. (2010). Mirabella testified that the phone conversations and email originated from Leon County, shifting the burden to Fon-taine. Fontaine agreed in her testimony that the libel and slander counts accrued in Leon County, failing to meet her burden that venue was proper in Broward. As such, these counts accrued in Leon County, and venue is only proper there.

Because the defendants established that venue was proper in Leon County, and Fontaine failed to rebut this by proving the propriety of venue in Broward, the trial court erred in denying the motion to transfer venue. Accordingly, we reverse and remand for an order consistent with this opinion.

Reversed and Remanded.

HAZOURI and CONNER, JJ., concur.

      . Florida Rule of Civil Procedure 1.060(b) (2010) provides that if an action is filed laying venue in the wrong county, the court may transfer it to the proper county in accordance with the venue statutes.


author: RAMIREZ, J.

text:
    Samantha GODFREY, Petitioner, v. RELIANCE WHOLESALE, INC., Respondent.
    No. 3D11-2050.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Rehearing Denied Sept. 27, 2011.

      Richard S. Ross, Fort Lauderdale, for petitioner.
    Kluger, Kaplan Silverman, Katzen & Levin, and Alan J. Kluger and Lisa Jerles, Miami; Littler Mendelson, and Courtney B. Wilson, Miami, for respondent.
    Before WELLS, C.J., and RAMIREZ and SHEPHERD, JJ.
   RAMIREZ, J.

This is a petition for a writ of prohibition based on the circuit court’s denial of Samantha Godfrey’s motion to dismiss due to lack of standing by Reliance Wholesale, Inc. We deny the petition because a lack of standing is insufficient to deprive a circuit court of subject matter jurisdiction so as to invoke the extraordinary writ of prohibition.

We agree with the petitioner that we may grant a writ of prohibition where there are no disputed issues of fact and the circuit court is poised to proceed without subject matter jurisdiction. DHL Express (USA), Inc. v. State, ex rel. Grupp, 60 So.3d 426, 428 (Fla. 1st DCA 2011); Am. Mar. Officers Union v. Merriken, 981 So.2d 544, 547 (Fla. 4th DCA 2008). Unless the petitioner can show, however, that (1) there are no disputed facts and (2) the circuit court lacked subject matter jurisdiction, a writ of prohibition is unavailable. In Roberts v. Brown, 43 So.3d 673, 677-78 (Fla.2010), the Florida Supreme Court quoted the following passage:

Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction. It is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do. Its purpose is to prevent the doing of something, not to compel the undoing of. something already done.

(citing English v. McCrary, 348 So.2d 293, 296-97 (Fla.1977)).

There is much confusion as to what constitutes “[s]ubject matter jurisdiction.” When dealing with subject matter jurisdiction, we look at the nature of the case and the type of relief sought. The Florida Supreme Court stated in Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n. 3 (Fla.2003): “[s]ubject matter jurisdiction ‘means no more than the power lawfully existing to hear and determine a cause.’ Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994) (quoting Malone v. Meres, 91 Fla. 709, 109 So. 677, 683 (Fla.1926)).” “Subject matter jurisdiction is conferred upon a court by a constitution or statute, and cannot be created by waiver, acquiescence or agreement of the parties.” Snider v. Snider, 686 So.2d 802, 804 (Fla. 4th DCA 1997). “The term [subject matter jurisdiction] is inapplicable to the court’s jurisdiction over a specific case because of a contention that a party has not complied with a legal requirement not involving the general power of the court over the case.” McGhee v. Biggs, 974 So.2d 524, 526 (Fla. 4th DCA 2008).

The Third Amended Complaint which the petitioner sought to dismiss seeks Temporary and Permanent Injunc-tive Relief and Damages in excess of $15,000. The circuit court is a court of general jurisdiction and has subject matter jurisdiction over these types of cases. See Art. V, § 20(c)(3), Fla. Const. §§ 26.012(2)(a), 34.01(l)(c) Fla. Stat. (2010).

The petitioner relies on language contained in Askew v. Hold The Bulkhead-Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972) (“Standing has been equated with jurisdiction of the subject matter of litigation....”). We do not agree that a circuit court that otherwise had jurisdiction over the subject matter, i.e., “the general power of the court over the case,” would lose such jurisdiction because the plaintiff may lack standing. McGhee, 974 So.2d at 525-26.

We thus hold that the denial of a motion to dismiss for lack of standing is not reviewable by writ of prohibition.

Petition denied.

      . See prior appeal of this case in Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561 (Fla. 3d DCA 2010).


author: EVANDER, J.

text:
    Justin Lee KIRBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2762.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.
    Rehearing Denied Sept. 8, 2011.

      Loren D. Rhoton, of Loren Rhoton, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Kirby was convicted of burglary of a conveyance with an assault and sentenced to life imprisonment as a prison releasee reoffender. He contends that although the State’s evidence might have been sufficient to establish the commission of a battery during the course of the burglary, it was insufficient to prove an assault. We affirm.

We recognize that Kirby’s argument is motivated by the fact that he could not be sentenced as a prison releasee reof-fender if convicted of burglary of a conveyance with a battery, but was eligible to be so sentenced upon his conviction of burglary of a conveyance with an assault. See Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009) (recognizing irony that burglary with assault is qualifying offense under PRR statute, but burglary with battery is not); but see State v. Hockley, — So.3d -, 2010 WL 4273625 (Fla. 1st DCA 2010) (holding that burglary with assault is not qualifying offense under PRR statute; certifying conflict with Shaw), rev. granted, 55 So.3d 1288 (Fla.2011). However, in the instant case, the State charged Kirby with burglary of an occupied conveyance with an assault only. He was not charged with the commission of a battery during the course of a burglary. Thus, the issue presented is whether the State’s evidence is legally sufficient to support Kirby’s conviction.

Assault and battery are separate and distinct offenses because they proscribe different acts. Casselman v. State, 761 So.2d 482, 484 (Fla. 5th DCA 2000). An “assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2009). The offense of battery occurs when a person intentionally touches or strikes another person against that person’s will, or intentionally causes bodily harm to another. § 784.03(l)(a), Fla. Stat. (2009). Accordingly, one can commit both an assault and a battery in a single criminal episode. See, e.g., Casselman (defendant could be convicted of both battery and assault where after punching victim, defendant attempted to strike victim again).

Here, the evidence established that during the course of the burglary of the victim’s motor vehicle, Kirby committed both a battery and an assault. He entered the victim’s vehicle without her consent, punched her, and then threatened (by act) to strike her again — creating a well-founded fear in the victim that additional violence was imminent.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . § 810.02(l)(b),(2)(a), Fla. Stat. (2009).

      . § 775.082(9)(a)l.o„ Fla. Stat. (2009).


author: BENTON, C.J.

text:
    REPUBLIC WASTE SERVICES, INC./EAST BAY SANITATION SERVICES and CCMSI, Appellants/Cross-Appellees, v. Nelson RICARDO, Appellee/Cross-Appellant.
    No. 1D10-5776.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Rehearing Denied Sept. 13, 2011.
    Philip R. Augustine and James M. Hess, Maitland, for Appellants/Cross-Appellees.
    Bill McCabe, Longwood, and Manuel G. Franco, Tampa, for Appellee/Cross-Appel-lant.
   BENTON, C.J.

In proceedings below, the judge of compensation claims awarded temporary partial disability benefits to an injured worker, but denied penalties and interest the claimant sought. The employer and its insurance carrier appeal the award of benefits, and the claimant cross-appeals the denial of penalties and interest on benefits the employer and carrier failed to pay when due. On the main appeal, we affirm the award of benefits without further discussion. On the cross-appeal, we reverse the denial of penalties and interest, and remand so they may be awarded.

The judge of compensation claims found that the claimant did not submit DWC-19 “Employee Earnings Report” forms to his employer, and denied penalties and interest for that reason, ruling “that the payment of such TPD benefits was not due and owing until claimant filed earnings reports for the appropriate time periods. See, Jack Feagin Electric[, Inc.] v. Hallmark, 894 So.2d 1083 (Fla. 1st DCA 2005).” But the evidence did not establish, and the judge of compensation claims did not find, that the employer or its insurance carrier ever sent DWC-19 forms to the claimant in the present case.

Relying on Florida Administrative Code Rule 38F-8.0191(9)(2001), we reversed the award of temporary, partial disability benefits in Hallmark because the claimant had not submitted DWC-19 forms for the time periods in dispute there. See Hallmark, 894 So.2d at 1083 (“Although the JCC held the E/C was not required to pay benefits for these time periods until the Claimant filled out and returned the forms, the JCC erred by finding the benefits due and owing and awarding fees, before the forms were submitted.”). Under the ruling in Hallmark, an injured employee must return DWC-19 forms in order to establish entitlement to payment of temporary, partial disability benefits — but only where the forms are first sent to the employee by the claims-handling entity. See id. (stating “unless the forms are completed and returned, benefits may never be due and owing”) (emphasis supplied). See also Catalina Yachts v. Warren, 946 So.2d 76 (Fla. 1st DCA 2006). In the present case, it was error to conclude that temporary partial disability benefits were not due and owing until the claimant filed DWC-19 forms he apparently never received and may never have heard of.

The current administrative rule — applicable here — requires the claims-handling entity to send any injured employee who has been released to work on a restricted basis a letter along with DWC-19 forms, explaining the employee’s eligibility for temporary, partial disability benefits. This letter to the injured employee must include notice that temporary partial disability benefits may “cease” if the injured employee “do[es] not return, if requested, Form DFS-F2-DWC-19, ‘Employee Earnings Report’, as adopted in Rule 69L-3.025, F.A.C, to this claims office within 21 days after you receive it.” Fla. Admin. Code R. 69L-3.01915(l)(b)4.(2001) (emphasis supplied). Similarly, Florida Administrative Code Rule 69L-3.021provides in part:

(2) Upon request of the ... claims-handling entity, any employee eligible for ... temporary partial [disability], ... shall complete, sign, and return Form DFS-F2-DWC-19, as adopted in Rule 69L-3.025, F.A.C., within 21 days after receiving it to report all earnings of any nature, including all social security benefits. The ... claims-handling entity may require the employee to send Form DFS-F2-DWC-19 no more than once a month.
(3) If the employee refuses to report information requested in accordance with subsection ... (2) above within 21 days after receipt of the request, payments of workers’ compensation disability benefits for ... temporary partial [disability], ... shall cease until such time as the employee furnishes the signed form.

Both the rule and the letter contemplate an antecedent request, and both require that the employee be furnished DWC-19 forms, as a condition precedent to the injured employee’s obligation to complete and return the forms he or she has been given to fill out. See Perdue v. Sebring Marine Ind. Inc., — So.3d -, 2011 WL 3331255 (Fla. 1st DCA 2011). In the present case, when the claimant established that he was entitled to temporary, partial disability benefits, and proved that he was not paid these benefits within seven days of the date they became due, he made out a prima facie case for penalties and interest. See § 440.20(6)(a), Fla. Stat. (2009).

Section 440.15(4), Florida Statutes (2009), which provides for the payment of temporary, partial disability benefits, contains no requirement that a temporarily, partially disabled employee file any specific form in order to be entitled to benefits. It will always be within the knowledge of the claims-handling entity, moreover, whether it sent the injured worker DWC-19 forms, and should not be hard to prove, if it has been done. In the circumstances, we see no good reason to burden claimants with proof of a negative. In the present case, because the employer and carrier did not prove that the forms were ever sent to the claimant, they failed to prove that any duty ever arose on the claimant’s part to complete and return the forms. See Perdue, — So.3d - (Fla. 1st DCA 2011). The judge of compensation claims erred in denying penalties and interest merely because the claimant had not completed DWC-19 forms it was never proven anybody had ever furnished him or apprised him of.

Accordingly, the compensation order is affirmed, but the order denying penalties and interest is reversed, and the case is remanded for entry of an order awarding penalties and interest for late temporary, partial disability benefits.

CLARK and MARSTILLER, JJ., concur.

      . The judge of compensation claims decided that, "[bjecause no TPD was due and owing until claimant filed the earnings reports, I denied the claim for interest and penalties.”

      . Subsection (9) included the same twenty-one day requirement now found in Florida Administrative Code Rules 69L-3.01915 and 69L-3.021. The court said that "because the JCC expressly found Claimant had not submitted the forms at the time of the hearing, TPD benefits were not due and owing.” Jack Feagin Electric, Inc. v. Hallmark, 894 So.2d 1083, 1083 (Fla. 1st DCA 2005).

      . The statute does, however, authorize the Department of Financial Services to develop "forms and procedures governing the method and time for payment of temporary disability benefits.” § 440.15(4)(e), Fla. Stat. (2009). Promulgated pursuant to this authority, Florida Administrative Code Rule 69L-3.01915 applies to temporary partial benefits for dates of accident on or after October 1, 2003.


author: EMAS, J.

text:
    Arold MERRITT, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-148.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Sept. 21, 2011.

      Arold Merritt, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and EMAS, JJ.
   EMAS, J.

Arold Merritt (“Merritt”) seeks review of the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons that follow, we reverse and remand this cause to the trial court with directions to conduct an evidentiary hearing.

FACTS AND PROCEDURAL BACKGROUND

Merritt was arrested in 1994 and charged with first-degree murder, two counts of armed robbery, and possession of a firearm during the commission of a felony. Following a jury trial, Merritt was convicted and sentenced to life in prison. His convictions and sentences were affirmed on direct appeal. Merritt v. State, 687 So.2d 72 (Fla. 3d DCA 1997).

On September 29, 2009, Merritt filed the instant motion for postconviction relief, based upon newly-discovered evidence. Merritt attached to his motion three affidavits, the averments of which we summarize as follows:

1. Affidavit of Anthony Nottage (dated April 29, 2009). Nottage averred that he was being held at the Dade County Jail in 2006 when he observed an argument between Merritt and a person known as “Ced.” Nottage learned from others that their argument stemmed from Ced having committed the murder for which Merritt had been charged. Nottage later spoke with Ced and learned his full name was Cedric Brantley. Nottage asked Brantley about the earlier argument between him (Brantley) and Merritt. Brantley told Nottage that “he and Merritt were about to fight because he [Brantley] refused to come forth with ‘the truth’ that he [Brant-ley] had shot the victim for personal reasons that were unrelated to the fight in which Merritt and his co-defendant were engaged.” Nottage did not see Merritt again until 2009; at that time he told Merritt about this conversation with Brantley.

2. Affidavit of Emmanuel Charles (dated June 3, 2009). Charles averred that while in prison in 2004 he had a conversation with Cedric Brantley. At one point the two began talking about Merritt. Charles stated that during this conversation, Brantley “admitted to me that Merritt did not commit the ‘M-one’ that he was in prison for and oddly began to laugh.” When Charles asked Brantley why he was laughing, Brantley replied: “How the shit happened, that’s all. How it happened.” The next time Charles saw Merritt was in 2009, and he told Merritt about this conversation with Brantley.

3.Affidavit of Willie Mercer (dated May 14, 2009). Mercer averred that while in prison in 2003 he was housed with an inmate named Cedric Brantley. Mercer stated that Brantley already was serving a sentence for murder. Mercer asked Brantley why, if Brantley was already in prison for murder, he would not free Merritt. Mercer states that Brantley replied “that he was not going to help Merritt until he was sure that he had no possible way of getting out of prison.” The next time Mercer saw Merritt (in 2009) he told Merritt about this conversation with Brantley.

The trial court summarily denied relief without an evidentiary hearing and did not attach any portions of the record conclusively refuting the factual allegations or otherwise conclusively establishing that Merritt was entitled to no relief. The trial court based its summary denial upon a finding that the motion “failed to meet the two prong test set out in Jones v. State, 709 So.2d [512,] 525, that there be admissible evidence likely to result in acquittal at retrial. The pending motion fails to state any legal or factual basis for the relief sought.”

DISCUSSION

In reviewing a trial court’s summary denial of postconviction relief without an evidentiary hearing, we must accept Merritt’s factual allegations as true to the extent they are not refuted by the record. Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000); Peede v. State, 748 So.2d 253, 257 (Fla.1999); Fla. R.App. P. 9.141(b)(2)(D) (on appeal from an order summarily denying a postconviction motion without an evidentiary hearing, the order shall be reversed unless the record shows conclusively that the appellant is entitled to no relief). To qualify as newly-discovered evidence, justifying a new trial, Merritt must meet the two-prong test set forth in Jones v. State, 591 So.2d 911, 916 (Fla.1991) (“Jones I"):

1. The proffered evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known of such evidence by the use of diligence; and
2. The proffered evidence must substantially undermine confidence in the outcome of the prior proceedings; stated another way, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Jones I, 591 So.2d at 915).

The State does not take issue with the newly-discovered nature of the evidence. Rather, the State contends that the affidavits constitute hearsay evidence which do not meet any hearsay exception and would be inadmissible if offered at a new trial.

Although it is true that the affidavits are themselves “hearsay,” the pertinent question in determining whether to grant an evidentiary hearing is not whether the affidavits would be admissible if offered at a new trial. The question is whether the affiants’ testimony, as proffered through the affidavits attached as exhibits to the motion, would be admissible if offered at a new trial. This determination would have to be made at an eviden-tiary hearing. See, e.g., Robinson v. State, 707 So.2d 688 (Fla.1998); Lightboume v. State, 644 So.2d 54 (Fla.1994). The statements Brantley made to affiants Nottage and Charles could, under the proper predicate, qualify as statements against penal interest, under section 90.804(2)(c), Florida Statutes, which provides:

(2) The following are not excluded under s. 90.802, provided that the declar-ant is unavailable as a witness:
(c) Statement against interest. — A statement which, at the time of its making, was so far contrary to the declar-ant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

The test for admissibility under 90.804(2)(c) is 1) whether the declarant is unavailable, and if so, 2) whether the statements are relevant, 3) whether the statements tend to inculpate the declarant and exculpate the defendant, and 4) whether the statements are corroborated. Voorhees v. State, 699 So.2d 602, 613 (Fla.1997); Masaka v. State, 4 So.3d 1274, 1280 (Fla. 2d DCA 2009).

The trial court erred in denying the motion without an evidentiary hearing. At that hearing, Merritt would have the opportunity to present the live testimony of the affiants (or of Brantley himself). Should the trial court determine that the testimony is admissible, the trial court would then be called upon to assess whether the newly-discovered evidence “is of such a nature that it would probably produce an acquittal on retrial.” Jones I, 591 So.2d at 915.

CONCLUSION

Merritt’s motion was supported with affidavits from three individuals. One of these individuals stated under oath that Brantley admitted to committing the murder for which Merritt was convicted. A second individual stated under oath that Brantley admitted that Merritt did not commit the murder for which Merritt was convicted. A third individual stated under oath that Brantley said he would not help Merritt until it was certain that he (Brant-ley) had no chance of getting out of prison himself. While we express no opinion as to the veracity of the testimony proffered by these affidavits, we must accept it as true for purposes of our determination. We conclude that the trial court erred in denying an evidentiary hearing on Merritt’s claim.

Reversed and remanded for the trial court to hold an evidentiary hearing on Merritt’s claim.

      . The affidavit fails to explain how Mercer was aware that Brantley had any involvement or culpability in the murder for which Merritt was convicted.

      . The State acknowledges that the only attachment to the order denying relief was the State's two-page memorandum of law in response to Merritt’s motion. That memorandum argued that the affidavits are hearsay and would be inadmissible if offered at trial.

      . Implicit in this prong is the requirement that the newly-discovered evidence be admissible at a new trial. See Jones I, 591 So.2d at 916; Jones v. State, 709 So.2d 512, 521 (Fla.1998) ("Jones II ”).

      . Section 90.804(1) defines "unavailability as a witness” to include situations in which the declarant (in this case, Brantley) "persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so”; or in which the declarant "is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.”

      . In making this determination, the trial judge "will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones I, 591 So.2d at 916 (Fla.1991). See also Jones II, 709 So.2d at 521-522 (Fla.1998) (setting forth factors to consider in evaluating the weight to be accorded the newly-discovered evidence).


text:
    U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Rosa PAIZ, et al., Appellees.
    No. 3D11-891.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Sept. 27, 2011.

      Carlton Fields and Michael K. Winston, and Dean A. Morande, West Palm Beach, and Nancy C. Ciampa, Miami, for appellant.
    Jane M. Letwin, for appellees.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   RAMIREZ, J.

U.S. Bank National Association, as Trustee for SASCO 2007-WF2, appeals from a post-foreclosure judgment and foreclosure sale order staying execution of a writ of possession, and an order continuing the stay and permitting limited discovery.

On February 27, 2009, U.S. Bank filed its complaint for foreclosure and to reestablish lost note against the appellees, Rosa Paiz and Rigoberto Paiz. On March 10, 2009, U.S. Bank effectuated service of process on them. Paiz failed to respond. On December 19, 2009, U.S. Bank served Paiz with its motion for summary judgment. In the motion, U.S. Bank stated that it would present the original note at the hearing on the motion. An Affidavit as to reasonable attorneys fees, executed by Lisa Cullaro on December 9, 2009, and the affidavit of plaintiffs’ counsel as to attorneys fees and costs, executed by William Malone on December 17, 2009, were attached as exhibits to the motion.

On January 27, 2010, U.S. Bank filed an affidavit of amounts due and owing, executed by China Brown on March 25, 2009. On February 23, 2010, U.S. Bank filed a new affidavit of amounts due and owing, executed by Herman John Kennerty on February 16, 2010, setting forth the amounts then due under the note and mortgage. On March 10, 2011, U.S. Bank filed a third affidavit of amounts due and owing, executed by Herman John Kennerty on February 26, 2010, setting forth the amounts currently due and owing under the note and mortgage.

U.S. Bank thereafter voluntarily dismissed its count to re-establish a lost note. The hearing on the motion for summary judgment was set for and heard by the trial court as scheduled on April 27, 2010. U.S. Bank filed the original note the same day. Following the hearing, final judgment was entered in favor of U.S. Bank.

Pursuant to the final judgment, the foreclosure sale was set for and held approximately four months later, on August 6, 2010. The property was sold at the sale and the clerk filed the Certificate of Sale on August 11, 2010, and a Certificate of Title on August 25, 2010.

On October 8, 2010, U.S. Bank filed a motion for writ of possession. The hearing on the motion was set for and heard on January 18, 2011. The court entered an order on the writ of possession the same day.

On February 1, 2011, nearly two years after being served with process, ten months after the final judgment of foreclosure was entered, more than five months after the property was sold and on the eve of eviction, Paiz filed an unsworn Florida Rule of Civil Procedure 1.540(b) motion to vacate the final judgment. The only basis for the motion was the assertion by Paiz’s counsel that SASCO 2007-WF-2, the trust for which U.S. Bank was trustee, did not exist. The hearing on Paiz’s motion was set for and heard on February 15, 2011. On February 28, 2011, the trial court rendered an order staying execution of writ of possession and setting a new hearing date of March 9,2011, on Paiz’s motion.

Immediately before the March 9, 2011, hearing, Paiz filed An Amended Motion To Set Aside the judgment. The amended motion incorrectly asserted that the affidavit as to amounts due and owing executed by Herman John Kennerty on February 16, 2010, was fraudulent because it was filed on January 27, 2010. Paiz also asserted that Kennerty committed fraud in that he did not have personal knowledge of the amounts due and owing as stated in the affidavit. Paiz’s amended motion did not assert that any of the information in the affidavit — such as their default or the amounts due and owing as stated in the affidavit — was incorrect. The motion did not allege with any specificity any facts showing fraud occurred in this case. Instead, Paiz suggested, based on statements made by the affiant in a deposition in an unrelated action in the State of Washington that the affidavit may not have been made on personal knowledge.

In the amended motion to set aside the judgment, Paiz also asserted that Lisa Cullaro, the person who signed the affidavit of reasonable fees, committed fraud because she executed the Affidavit on December 9, 2009, one week before William Malone, U.S. Bank’s foreclosure counsel, prepared his affidavit as to attorneys’ fees. However, Cullaro did not state in her affidavit that she reviewed the fee affidavit. Paiz also asserted that Cullaro’s affidavit “[w]as probably executed in the complete absence of any review whatsoever” by attempting to bootstrap the admitted misrepresentations contained in affidavits as to amounts due and owing executed by a different attorney between 1997 and 2002, where he stated that he had reviewed the foreclosure attorney’s files and time records when he had not done so. In the amended motion, Paiz also belatedly asserted that that U.S. Bank violated Florida Rule of Civil Procedure 1.510 by failing to file the original note until the date of the hearing on the motion for summary judgment.

At the March 9, 2011, hearing, the trial court reserved ruling on Paiz’s motion, finding that U.S. Bank had not been given sufficient notice of Paiz’s amended motion. The court scheduled an additional hearing for March 15, 2011. In the meantime, U.S. Bank filed its response to Paiz’s motions and also filed portions of the Pooling & Servicing Agreement, demonstrating the existence of the trust and its authority to enforce the mortgage and note, which was endorsed in blank and which was in U.S. Bank’s possession at the time it filed the foreclosure action.

Over U.S. Bank’s objections, Paiz’s counsel also raised for the first time “additional defects” in the affidavits of the amounts due and owing. That is, the first affidavit signed by China Brown said the interest rate (6.875%) per diem was $84.55, but Kennerty’s subsequent affidavits stated it was $28.65. Paiz’s counsel admitted that she did not calculate the numbers to determine whether the per diem was correct. Paiz did not offer any evidence or sworn affidavits to support counsel’s belated and unconfirmed assertions or to explain how her client was prejudiced by the later affidavit which showed a lower amount due.

On March 16, 2011, the trial court entered an order granting Paiz’s motion in part, which continued the stay of execution and permits Paiz to take the deposition of Kennerty. U.S. Bank appeals from the order rendered February 28, 2011, staying execution of the writ of possession and from the March 16, 2011, order granting Paiz limited discovery and continuing the stay of execution.

Because the order under review was erroneous as a matter of law, our review is de novo. See Mourning v. Ballast Nedam Constr., Inc., 964 So.2d 889, 892 (Fla. 4th DCA 2007) (normally a court’s ruling on a rule 1.540 motion is for abuse of discretion, however, where there is no factual dispute upon which the trial court based its determination to vacate the judgment the order is reviewed de novo).

“Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.” Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961, 962 (Fla. 4th DCA 2002). See also Rutshaw v. Arakas, 549 So.2d 769, 770 (Fla. 3d DCA 1989) (“It is well settled that a 1.540 motion cannot be employed as a substitute for a timely appeal, much less for a timely preservation of error in the underlying action itself.”); Metro. Dade Cnty. v. Certain Lands Upon Which Assessments Are Delinquent, 471 So.2d 191, 193 (Fla. 3d DCA 1985) (“Rule 1.540 ... was not intended to serve as a substitute for relief available under Rule 1.530 or as a substitute for appellate review of judicial error.”).

Here, summary judgment was granted and the final judgment rendered on April 27, 2010. All the affidavits Paiz now seeks to challenge were served long before the final judgment was entered. U.S. Bank filed its motion for summary judgment five months before ifiwas granted. Yet Paiz never objected to the motion for summary judgment, never objected to U.S. Bank filing the original note on the day of the hearing on the motion, did not challenge the affidavits or note or U.S. Bank’s standing to bring this action or attempt to conduct any discovery. Paiz did not file any evidence to rebut the evidence filed by U.S. Bank. Nor did Paiz seek rehearing of the judgment or appeal the final judgment. It was not until January 31, 2011, over nine months after the final judgment was entered, five months after the property was sold at a judicially noticed auction and on the eve of their eviction, that Paiz moved to set aside the final judgment and to set aside the foreclosure sale. All of Paiz’s complaints could have and should have been raised in the pleadings or at the hearing on the motion for summary judgment. We previously have reviewed the legal sufficiency of claims that the mortgagee overstated the amount due on a mortgage under a motion filed pursuant to rule 1.540. In Herrick v. Southeast Bank, N.A., 512 So.2d 1029, 1030 (Fla. 3d DCA 1987), we stated that the rule required fraud or misrepresentation, not an arguable miscalculation. And in Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1205 (Fla. 4th DCA 2010), the court stated that the rule required that fraud be specified with particularity and, if it exists, how it would entitle the defendants to have the judgment set aside:

To entitle a movant to an evidentiary hearing on a motion for relief from judgment, a rule 1.540(b)(3) motion must specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). “If a motion does not set forth a basis for relief on its face, then an evi-dentiary hearing is unnecessary, the time and expense of needless litigation is avoided, and the policy of preserving the finality of judgments is enhanced.” Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 955 (Fla. 4th DCA 2009). The matter alleged must affect the outcome of the case and not merely be “de minimis.” Id. Thus, to obtain a hearing on a rule 1.540(b)(3) motion, the law requires a movant “to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept.” Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003).

This case is a prime example of allegations that nibble at the edges of fraud. Because the defendants did not raise a legally sufficient motion to justify an evi-dentiary hearing, a fortioñ there is no justification for the order rendered February 28, 2011, Staying Execution of Writ of Possession and the order entered March 16, 2011, Granting Defendants Limited Discovery and Continuing Stay of Execution.

We therefore reverse the orders under review and remand with instructions to allow the writ of possession to take effect.

Reversed and remanded with instructions.