author: HAZOURI, J.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Morris STASZOWER, Fern Lisa Conn and Terrence H. Dunn, Appellees.
    No. 4D10-1164.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.

      Richard A. Sherman, Sr., and James W. Sherman of Law Offices of Richard A. Sherman, P.A., and Dolina Lordeus of Law Offices of Leonard C. Bishop, Fort Laud-erdale, for appellant.
    Charles B. Patrick of Charles B. Patrick, P.A., Miami, for appellees Morris Staszower and Fern Lisa Conn.
   HAZOURI, J.

Morris Staszower and Fern Lisa Conn, his wife, filed a complaint for negligence against Terrence Dunn, claiming personal injuries resulting from an automobile accident. In addition to Dunn, Staszower and Conn joined their uninsured/underinsured motorist (UIM) carrier, Allstate Insurance Company (“Allstate”), alleging that the injuries sustained exceeded Dunn’s liability limits.

Prior to trial, Allstate offered two separate proposals for settlement to both Staszower and Conn in the amount of $100.00 each. Both refused the offers. At trial, the jury returned a verdict only for Staszower, awarding damages in the amount of $1670.00.

Allstate filed a motion for final judgment in its favor, setoffs, attorney’s fees, and costs, contending that the verdict was below Dunn’s liability policy limits of $10,000.00 and, therefore, the UIM coverage of Allstate was not activated. The trial court ruled that Staszower and Conn were the prevailing parties and entered a $12,168.33 cost judgment against Dunn and Allstate. The trial court denied Allstate’s motion for final judgment in its favor, setoffs, attorney’s fees, and costs. We reverse.

The trial court erred in determining that Staszower and Conn were the prevailing parties as to Allstate, because the award was within Dunn’s $10,000.00 liability policy limit. When an UIM insurer is joined as a party defendant and the verdict does not exceed the tortfeasor’s liability limits, the UIM insurer is the prevailing party and entitled to its costs. See, e.g., State Farm Mut Auto. Ins. Co. v. Marko, 695 So.2d 874, 875 (Fla. 2d DCA 1997); State Farm Mut. Auto. Ins. Co. v. Ferro, 581 So.2d 605, 606 (Fla. 2d DCA 1991) (determining that where the plaintiffs damages are less than the policy limits of the tortfeasor’s primary insurance company, the UIM provider has no liability and the trial court should enter judgment on their behalf); Gov’t Emps. Ins. Co. v. Brewton, 538 So.2d 1375, 1377 (Fla. 4th DCA 1989) (finding that “only an award which activates the UM coverage would qualify appellees as prevailing parties. Any lesser award totally favors the UM carrier who thus fits the traditional concept of ‘prevailing party.’ ”).

In Marko, the plaintiff was injured in an automobile accident and sued the tortfea-sor, who had liability policy limits of $50,000.00, and his UIM carrier, State Farm. State Farm made an offer of judg: ment of one dollar, which the plaintiff did not accept. Ultimately, the jury returned a verdict for $30,000.00. Accordingly, a judgment was entered in favor of the plaintiff and against the tortfeasor in the amount of $30,000.00; a separate judgment was entered in favor of State Farm and against the plaintiff. State Farm then sought its attorney’s fees and costs pursuant to the offer of judgment filed under section 768.79, Florida Statutes (1993). The trial court denied State Farm’s motion.

On appeal, the Second District determined that State Farm was entitled to recover its costs pursuant to section 57.041(1), Florida Statutes (1993), because it was the prevailing party. The appellate court then examined whether State Farm was entitled to costs and attorney’s fees under the offer of judgment statute. The Marko court found that State Farm’s offer of judgment was independent of any offer, or lack of offer, by the tortfeasor. The Marko court also determined that under the circumstances, “the good faith of the $1 offer of judgment [was] demonstrated.” Marko, 695 So.2d at 876. “The $1 offer of judgment [was] a statement by State Farm that it believes it has no liability and should not be a part of the litigation.” Id. Accordingly, the appellate court reversed the order denying State Farm its attorney’s fees under section 768.79 and its costs pursuant to section 57.041(1).

Likewise, in the instant case, the jury returned a verdict only in favor of Stasz-ower in the amount of $1670.00. The final judgment declared that “[i]t is adjudged that the plaintiff, Morris Staszower, recover from the defendant, Terrence H. Dunn ... the sum of One Thousand, Six Hundred and Seventy Dollars ($1670.00), said sum to bear interest at the rate of six percent (6%) per annum, for which let execution issue.” Notably, the final judgment did not state that Staszower would collect damages from Allstate. As Dunn had a $10,000.00 liability policy, the damages did not reach the necessary threshold to trigger Allstate’s UIM coverage. Accordingly, the trial court erred when it failed to enter judgment in Allstate’s favor.

The trial court’s error in failing to enter final judgment in favor of Allstate then resulted in a snowball effect: the trial court entered a cost judgment against Allstate, even though there was no underlying judgment against it. In “Plaintiffs’ Motion to Tax Litigation Costs Against Defendant,” Staszower and Conn allege that they were the “prevailing parties against the defendants during the trial of this action and are entitled to an award of their litigation costs against the defendants.” However, Staszower and Conn only prevailed against Dunn; because the jury did not award damages above the $10,000.00 policy limit, Allstate was the prevailing party. See Brewton, 538 So.2d at 1377.

Staszower argues that taxable litigation costs are considered damages for which an injured plaintiff may recover against his or her UIM earner if the underlying liability coverage of the tortfeasor is insufficient to cover the taxable costs or the liability policy does not extend to include taxable costs beyond its stated limits. As authority for this proposition, Staszower cites Rutkin v. State Farm Mutual Automobile Insurance Co., 195 So.2d 221 (Fla. 3d DCA), aff'd, 199 So.2d 705 (Fla.1967).

Rutkin is distinguishable and not applicable to the instant case. Rutkin involved a claim for UIM coverage where the tort-feasor was uninsured, as opposed to under-insured. The State Farm policy called for personal injury claims to be resolved through arbitration. Rutkin prevailed in the arbitration and sought as the prevailing party costs which would be taxable pursuant to section 58.04, Florida Statutes (1967).

The trial court had denied Rutkin’s motion to recover taxable costs. The district court reversed, holding that as the prevailing party, Rutkin was entitled to recover his taxable costs. Conversely, Staszower was not the prevailing party in regard to Allstate and, therefore, is not entitled to tax costs against Allstate.

Finally, the trial court erred in denying Allstate’s motion for attorney’s fees under section 768.79(1), Florida Statutes (2010). Staszower and Conn contend that the trial court’s cost judgment exceeded the $100.00 proposal for settlement, thereby rendering Allstate ineligible for attorney’s fees. We disagree. “[T]he offer only applied to any potential recovery in excess of a net verdict within the ... coverage of $10,000, section 768.79 entitles Allstate to an award of attorney’s fees and costs, as the $100 offer clearly exceeded plaintiffs zero recovery from Allstate.” Allstate Ins. Co. v. Silow, 714 So.2d 647, 650 (Fla. 4th DCA 1998).

Further, the record supports that Allstate’s $100.00 offer was made in good faith. See Eagleman v. Eagleman, 673 So.2d 946, 947 (Fla. 4th DCA 1996) (finding that “[o]nce the statutory prerequisites have been met, the only discretion afforded the trial court by section (7)(a) is the authority to disallow the attorney fee award when an offer is not made in ‘good faith’ ”). At the hearing, Allstate’s counsel contended that when Allstate made the offer, it had reason to believe there was no exposure to it. “We had an IME report from a doctor that said the plaintiff had no permanent injury, and at that time, there were no reports saying that the plaintiff needs x amount of surgery.” In light of Dunn’s underlying liability coverage and the resulting verdict, the proposals for settlement of $100.00 each for Staszower and Conn was manifestly made in good faith. Thus, the trial court erred when it denied Allstate’s motion for attorney’s fees. We reverse and remand and direct the trial court to vacate the final cost judgment against Allstate and further to determine a reasonable attorney fee to be assessed in favor of Allstate.

Reversed and remanded for further proceedings consistent with this opinion.

GROSS, C.J., and CIKLIN, J., concur.

      . The statute states in pertinent part:
      (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on his behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
      § 768.79(1), Fla. Stat. (1993).

      . Now section 57.041, Florida Statutes (2011), entitled "Costs; recovery from losing party” and stating:
      (1) The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.
      (2) Costs may be collected by execution on the judgment or order assessing costs.


source: Caselaw Access Project

license: Public Domain

text:
    NITV, L.L.C., Appellant, v. Elwood Gary BAKER, Appellee.
    No. 4D10-1503.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Rehearing Denied June 24, 2011.

      Andrea Cox and Joel Rothman of Arn-stein & Lehr, L.L.P., Miami, for appellant.
    Scott W. Zappolo and Jeffrey G. Farwell of Watterson & Zappolo, P.A., Palm Beach Gardens, for appellee.
   HAZOURI, J.

National Institute for Truth Verification (NITV) appeals a $575,000 judgment entered in favor of Elwood Gary Baker, based upon Baker’s claim of defamation. The jury verdict rendered in the case was an itemized verdict which consisted of the following: (a) loss of ability to earn money in the past $225,000; (b) loss of ability to earn money in the future $116,000, reduced to its present value of $100,000; (c) injury to his reputation $250,000. Total of (a), present value of (b), and (c) equals $575,000. We affirm the award of $250,000 for damage to reputation, but reverse the award for loss of the ability to earn money in the past and in the future.

Baker distributes and provides training for the Digital Voice-Stress Analyzer (DVSA), a “truth verifier” that conducts voice stress analysis. The DVSA is a software program that can be installed on computers owned by law enforcement agencies. NITV also distributes and provides training for a similar instrument, the Computer Voice Stress Analyzer (CVSA), in competition with Baker.

The two parties have a contentious history. NITV originally sued Baker in federal court for false advertising and unfair competition. NITV and Baker resolved the suit at mediation in December of 2004. Approximately one month later, NITV prepared two documents entitled “Law Enforcement Alert” and “Law Enforcement Scam Alert,” that it published to Baker’s actual and potential customers. Charles Humble, the managing member of NITV, and David Hughes, the Executive Director of NITV, authored the alerts.

The law enforcement alerts were published to 300 law enforcement agencies in Illinois and as many as 8500 other departments throughout the country. In response to these alerts, Baker filed a complaint for defamation. NITV answered the complaint and raised the following affirmative defenses: truth, conditional privilege, qualified privilege, and that the publications were made in good faith and without malice.

The parties proceeded to a jury trial and at the close of Baker’s case, NITV moved for a directed verdict, arguing the following three grounds: (1) Baker failed to prove any damages; (2) the information within the alerts was true; and (3) NITV had a conditional privilege to make the statements. The trial court denied the motion.

Prior to the jury retiring to consider its verdict, it was properly instructed on the definition of what constituted defamation and whether NITV made statements concerning Baker which tended to expose Baker to hatred, ridicule, or contempt, or tended to injure Baker in his business, reputation, or occupation. The jury was further instructed as to what constitutes the defense of truth, opinion, conditional privilege, abuse of privilege and finally, causation and damages.

At the conclusion of the jury’s deliberation, it returned the following verdict:

WE, THE JURY, return the following verdict:
1. Did NITV, LLC make a defamatory publication regarding ELWOOD GARY BAKER?
Yes X No_
If your answer is Yes, go to Question 2. If your answer is No, you do not need to answer any further questions. Verdict should be entered in favor of NITV, LLC and the Foreperson should date and sign at the end of this document.
2. Did the publication made by NITV, LLC tend to impute to ELWOOD GARY BAKER conduct incompatible with the proper exercise of his trade or business or tend to injure ELWOOD GARY BAKER in his business, reputation or occupation?
Yes X No_
If you answered Yes to either or both Questions 1 and 2, go to Question 3.
3. Was the publication made by NITV substantially true and made with good motives?
Yes_ No X
If your answer is Yes, you do not need to answer any further questions. Verdict should be entered in favor of NITV, LLC and the Foreperson should date and sign at the end of this document. If your answer is No, go on to Question 4.
4. Did NITV have a conditional privilege to make the publication?
Yes_ No X
If your answer is Yes, you should answer question 5. If your answer is No, you should skip question 5 and go to question 6.
5. Did NITV abuse its conditional privilege by making the publication with improper motives and purpose to gratify its ill will, hostility and intent to harm ELWOOD GARY BAKER, rather than to advance or protect NITV’S interest, right or duty to speak on that subject?
Yes_ No_
If your answer is Yes, go to question 6. If your answer is No, your verdict is for NITV, LLC, and the Foreperson should date and sign at the end of this document.
6. What is the total amount of damages suffered by ELWOOD GARY BAKER due to NITV LLC’s defamatory publication?
A. Loss of ability to earn money in the past:
$225,000.00
B. Loss of ability to earn money in the future:
$116,000.00
Amount immediately above reduced to present value:
$100,000.00
C. Injury to reputation:
$250,000.00
Total of A, present value of B, and C above:
$575,000.00
If you entered a verdict for ELWOOD GARY BAKER but found that no losses, injuries, or damages were proved, you may award Nominal Damages to vindicate a right where a wrong is established.
D.The amount of Nominal Damages is: |0

“The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo.” Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006) (citing Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005)). “Upon a directed verdict motion, the weight of the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party.” Pascale v. Fed. Exp. Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995) (citing Kowkabany v. Home Depot, Inc., 606 So.2d 716 (Fla. 1st DCA 1992)). “[A] trial court should direct a verdict against the plaintiff only if there is no evidence, or reasonable inferences therefrom, upon which a jury may find for the nonmoving party.” Id. (citations omitted). A “motion for directed verdict must be denied if the evidence presented is conflicting or different conclusions can be drawn from it.” CDS Holdings I, Inc. v. Corp. Co. of Miami, 944 So.2d 440, 443 (Fla. 3d DCA 2006) (citations omitted).

“To establish a cause of action for defamation, a plaintiff must show that (1) the defendant published a false statement about the plaintiff, (2) to a third party, and (3) the falsity of the statement caused injury to the plaintiff.” Razner v. Wellington Reg’l Med. Ctr., Inc., 837 So.2d 437, 442 (Fla. 4th DCA 2002) (citing Valencia v. Citibank Int’l., 728 So.2d 330, 330 (Fla. 3d DCA 1999)).

“A jury verdict must be sustained if it is supported by competent substantial evidence.” State, Dep’t of Children & Family Servs. v. Amora, 944 So.2d 431, 435 (Fla. 4th DCA 2006) (citing Richey v. Modular Designs, Inc., 879 So.2d 665, 667 (Fla. 1st DCA 2004)). “Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). Baker’s damages award as it relates to loss of money earned in the past and in the future was not supported by competent substantial evidence. ,

Baker’s business model consists of him providing DVSA software to law enforcement agencies for free or at a nominal cost. He then charges a fee per officer to attend the seminars. Baker testified that he had scheduled training seminars with four law enforcement agencies. However, following January 2005, after the publication and circulation of the alerts, all four departments cancelled their seminars.

Baker testified that he expected approximately twenty to twenty-five officers to attend each training course. However, Baker provided no documentation of this figure and did not have specific officers enrolled. While the hosting agency was typically not charged, Baker charged each participant $1250. Based on previous attendance, Baker expected fifteen non-hosting students at each class at a cost of $1250 each, plus an additional $300 every four years for recertification. Baker testified that based on his experience, “almost all” departments recertify “[e]very year.” Again, however, there was no evidence of the exact number of officers that would choose to recertify outside of Baker’s testimony.

Additionally, Baker provided very general figures regarding his overhead costs. When asked about seminar expenses, Baker testified that he had “[v]ery little overhead. It’s my time that’s involved of [sic] working, setting them up and so forth, but minimal travel, hotel, many times I drive. Less than $1,000 per seminar would be my cost.” This testimony was the extent of Baker’s description of his overhead; he provided no itemized list or documentation of his specific overhead costs.

Baker’s damages also included the work he expected from the Florida Department of Corrections (DOC) to perform sex offender polygraph examinations. In 2005, Baker testified that the DOC questioned his qualifications and he had to prove that he was a qualified polygraph examiner. Since this time, the DOC has not engaged Baker’s services. Prior to 2005, however, Baker testified that he typically performed between 200-250 polygraph tests with the DOC per year. Baker charged between $150-$185 per test and had very little overhead. In closing argument, Baker’s counsel stated that Baker performed 130 tests per year at a cost of $150 per test. Accordingly, Baker’s counsel proposed that damages from 2005-2009 for the canceled polygraph tests amounted to $97,500. Notably, there was no explanation for the discrepancy between Baker’s testimony that he performed 200-250 tests per year, and his counsel’s decision to propose he performed 130 tests per year.

Further, Baker’s tax returns demonstrated that his income increased from 2003 to 2006. According to Baker’s 2003 tax return, he earned $25,016. In 2004, Baker earned $42,800 before expenses. In 2005, Baker’s income declined slightly and he earned $38,538. Remarkably, however, in 2006, the year following publication of the alerts, Baker’s income increased substantially to $58,499. Baker did not file tax returns in 2007 or 2008.

Baker’s testimony concerning his economic damages was vague and ill defined. Baker’s tax returns demonstrated that his earnings increased following January of 2005. Further, Baker did not know exactly how many officers would have taken the courses and recertified, nor did he give specific figures for his expected profits. Thus, Baker’s request that the jury calculate damages by simply multiplying the number of students who did not attend the seminars by their cost of attendance was an inaccurate measure. Accordingly, there was not substantial competent evidence to support his claim for damages for lost earnings in the past or in the future.

Although we reverse the award for economic damages, we affirm the award of $250,000 for damage to Baker’s reputation. Communication that imputes to another conduct, characteristic, or condition incompatible with the proper exercise of his lawful business, trade, profession or office is slander per se. See Campbell v. Jacksonville Kennel Club, 66 So.2d 495, 497 (Fla.1953); Wolf son v. Kirk, 273 So.2d 774, 777 (Fla. 4th DCA 1973). In slander per se actions, general damages are presumed. See Hood v. Connors, 419 So.2d 742, 743 (Fla. 5th DCA 1982).

General damages are those which the law presumes must naturally, proximately and necessarily result from publication of the libel or slander. They are allowable whenever the immediate result is to impair the plaintiffs reputation, although no actual pecuniary loss is demonstrated. 20 Fla. Jur. Libel and Slander sections 6, 88. Words which are actionable in themselves, or per se, necessarily import general damages and need not be pleaded or proved but are conclusively presumed to result.

Bobenhausen v. Cassat Ave. Mobile Homes, Inc., 344 So.2d 279, 281 (Fla. 1st DCA 1977).

It is clear from the two publications, the “Law Enforcement Alert” and “Law Enforcement Scam Alert,” that NITV intended to cause damage to Baker’s reputation. There were conflicts in the testimony and it was within the province of the jury to decide whether the statements made in these two publications were false and defamatory. The jury resolved those conflicts in favor of Baker. In the publications, NITV accused Baker inter alia of being unfit to be in the truth verification business and of providing false information concerning law enforcement agencies that utilized his system. The very title of one of the circulars, “Law Enforcement Scam Alert,” refers to Baker’s business as a scam. There is little doubt that a jury could conclude that NITV intended to impugn Baker’s integrity and damage his reputation.

The jury was properly instructed as to causation and damages. In particular, as to damage to reputation, the jury was instructed as follows: “[a]ny injury to reputation experienced in the past or to be experienced in the future. There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any award should be fair and just in light of the evidence.” Accordingly, on the issue of damage to reputation, the jury having been properly instructed and having resolved the conflicts in the testimony, we affirm the award of $250,000 for damage to Baker’s reputation.

We reverse and remand for the trial court to vacate the judgment for economic damages in the amount of $325,000 and affirm the award of $250,000 for injury to Baker’s reputation.

Affirmed in Part; Reversed in Part and Remanded.

GROSS, C.J., and CIKLIN, J., concur.


author: WELLS, Judge.

text:
    E.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-394.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.

      Carlos J. Martinez, Public Defender, Andrew Stanton, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Douglas Glaid and Michael C. Greenberg, Assistant Attorney Generals, for appellee.
    Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   WELLS, Judge.

E.M. appeals from a delinquency adjudication which for the following reasons we reverse and remand for a new trial.

E.M. was charged with possession of marijuana. At the adjudicatory hearing, Miami Police Sergeant Misrael Reyes, Supervisor of the Little Havana Problem Solving Team, described his encounter with E.M. as follows:

[SGT. REYES]: I was driving southbound on Southwest Ten Avenue, about Third Street, and that’s what we call a hot area, hot spots for narcotics. Southwest Ten Avenue and Fourth Street—
[DEFENSE COUNSEL]: Objection, relevance. Move to strike.
JUDGE PRESCOTT: Overruled.
[SGT. REYES]: I was driving southbound on Ten Avenue, 329 Southwest Ten Avenue was a location that we had checked the prior week for narcotics and guns, involving gang members.
[DEFENSE COUNSEL]: Objection, relevance. Move to strike.
JUDGE PRESCOTT: Overruled.
[SGT. REYES]: Involving the gang, Wylo.
So it called my attention to that location as I was driving I see a car parked with the Respondent standing on the outside of the car, on the east side of Ten Avenue, facing northbound.
The Respondent was outside the car talking to someone inside the car, on the driver’s side.
At first my attention was not so much to the Respondent, but to who I saw on the passenger seat of the car. It was the subject that we had dealt with a couple of weeks, a week or two prior to it.
[DEFENSE COUNSEL]: Objection, relevance. Move to strike.
JUDGE PRESCOTT: Overruled.

(Emphasis added).

Sergeant Reyes next testified that he stopped his car and went to talk to the passenger. As he walked in front of the car, the sergeant noticed E.M. moving his hand toward the “windshield area” of the car and then “saw [E.M.’s] hand open, and a marijuana cigarette roll[] down to the end of the windshield into that little crevice there.” Reyes testified that, based on the appearance and odor of the substance contained in the cigarette, the substance was marijuana. E.M. was adjudicated delinquent and committed to the Department of Juvenile Justice.

E.M., pointing to numerous authorities, argues here that it was error to overrule his objections to the officer’s characterization of the area where he was spotted as being “a hot area, hot spot[ ] for narcotics” and “a location that we had checked the prior week for narcotics.” See State v. Johnson, 575 So.2d 1292 (Fla.1991); Gillion v. State, 573 So.2d 810 (Fla.1991); Fleurimond v. State, 10 So.3d 1140 (Fla. 3d DCA 2009); Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991). We agree. As we observed in Fleurimond, 10 So.3d at 1145, “Florida law disapproves references to the area in which a defendant is observed as a location known to be a place where drugs are sold because such evidence is irrelevant to the issue of guilt.” See Johnson, 575 So.2d at 1292; Gillion, 573 So.2d at 811.

While the State agrees that the comments at issue were improper, it nonetheless argues that because a non-jury bench trial was involved, this court may presume that the trial court disregarded this inadmissible evidence in making its determination. We cannot agree. Where, as here, the court below admits improper evidence over objection and then fails to state on the record that it is not relying on that erroneously admitted evidence in making its determination, this court may not presume that such evidence was disregarded:

When an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper.

Petion v. State, 48 So.3d 726, 737-38 (Fla.2010).

Since the State admits that Sergeant Reyes’ statements regarding the neighborhood in which E.M. was arrested were improperly admitted, and because there is no statement on the record that this testimony was not considered by the court in adjudicating E.M.’s guilt, we cannot presume that these highly prejudicial and improper statements played no part in the trial court’s guilt determination.

We certainly cannot conclude that Sergeant Reyes’ statements were inconsequential or that no reasonable possibility exists that these statements had no effect on the final judgment. See Petion, 48 So.3d 737-38 (“[T]he addition, the appellate court still must conduct a harmless error analysis to determine whether there is a reasonable possibility that the challenged error affected the final judgment. This harmless error analysis is necessary to prevent reversals based on the admission of inconsequential or immaterial evidence, which can sometimes occur during a bench trial for the purposes of expediency and conservation of judicial resources.”). To the contrary, the totality of the evidence regarding the possession charge was Sergeant Reyes’ observation of a “cigarette,” which to him had the appearance and smell of marijuana, falling from E.M.’s hand onto a car windshield. On this record, we cannot say that Sergeant Reyes’ testimony that he observed this while in a narcotics hot spot recently checked for narcotics, guns, and gangs played no part in the ultimate determination. We therefore reverse the adjudication of guilt rendered below and remand for a new trial before another judge.

Reversed and remanded.

      . Johnson, 670 So.2d at 1121, 1123 (Fla. 5th DCA 1996), addresses the analysis that has been employed:
      [T]he question of whether a statement that a transaction took place in a "high drug area” is unduly prejudicial to a defendant depends on the facts and circumstances associated with each case. Black v. State, 578 So.2d 1102 (Fla.1991); Gillion v. State, 573 So.2d 810 (Fla.1991); Jefferson v. State, 560 So.2d 1374 (Fla. 5th DCA), review denied, 574 So.2d 141 (Fla.1990). Reversible error has been found where such references become a feature of the trial and are highlighted in closing argument. Gillion; Beneby. Courts also consider whether the testimony is being offered to establish a chain of events or whether it is being offered solely to establish bad character or propensity. Dorsey v. State, 639 So.2d 158 (Fla. 1st DCA 1994). Such references are also considered by some courts to be less harmful in those cases in which the defendant denies being present during the transaction, since under these circumstances the defendant is less likely to be convicted through "guilt by association.” See Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990). Where an "isolated characterization of a neighborhood was a brief comment and was not repeated in the remaining testimony or mentioned in closing,” the error has been considered harmless and deemed insufficient to provide a basis for reversal on appeal. Davis, 562 So.2d at 444.


text:
    K.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1285.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.

      Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   WELLS, Judge.

K.N., a juvenile, appeals from an order of restitution entered after she pled no contest to misdemeanor trespass. Because the State failed to prove a sufficient causal connection between a portion of the restitution ordered and the trespass offense, we reverse that portion of the restitution order.

The State charged K.N. with burglary of an unoccupied dwelling, criminal mischief, and grand theft. According to the delinquency petition, K.N. allegedly entered an unoccupied residence by breaking a sliding glass door (after damaging another door of the home) and then stole cash and jewelry from the home. Pursuant to a plea agreement, K.N. agreed to plead no contest to misdemeanor trespass — a lesser included offense of burglary — with the State abandoning the grand theft and criminal mischief charges. There was no written plea agreement. At the plea hearing, the only reference to restitution was a statement by the prosecutor that “[wje’re reserving on restitution as well.” The lower court withheld adjudication and placed K.N. on probation.

At the subsequent restitution hearing, the State argued that K.N. should be ordered to pay not only the cost of repairing the doors damaged during the trespass, but also the cost of the jewelry and cash stolen from the home. While K.N. agreed that she should pay for the damage to the doors, which she conceded was associated with the trespass charge, she disputed the propriety of a restitution order which she claimed would be related to the abandoned theft charge. Following an evidentiary hearing at which the homeowners testified about the damage to the doors of their home, the condition of their home on the day of the trespass, and the value of cash and items missing that day from their home, the court below ordered K.N. to pay restitution for the damaged doors, the jewelry and the cash.

The State argues here, as it did below, that restitution for the jewelry and cash was appropriate because such restitution was expressly part of the plea agreement. See § 775.089(1)(b)(2) (“A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.”). According to the State, it would not have agreed to reduce the burglary charge to trespass and to abandon the grand theft and criminal mischief charges without KN.’s agreement to pay restitution for these losses and that this agreement was confirmed by the prosecutor’s statement that “[wje’re reserving on restitution as well.” We do not agree that either the State’s unilateral intention or this statement evidences any such agreement on K.N.’s part. See R.A.B. v. State, 932 So.2d 1227, 1229 (Fla. 2d DCA 2006) (“Although the State indicated that it was seeking restitution at the plea hearing, defense counsel did not concede that restitution was appropriate but merely agreed to set a restitution mediation date. Furthermore, the court did not inform [defendant] that he was waiving his right to contest restitution during the plea colloquy.”). Thus, the instant appeal turns on whether the restitution ordered is for “[d]amage or loss caused directly or indirectly by the defendant’s offense” and whether that “[d]amage or loss related to the defendant’s criminal episode.” § 775.089(1)(a)1.-2., Fla. Stat. (2010).

With regard to the doors to the home in question, there can be no doubt that these criteria were met. The same cannot be said as to the missing cash and jewelry. To order restitution under section 775.089, the State must prove that the loss or damage for which the defendant is being ordered to pay, is causally connected to the offense and bears a significant relationship to it. See § 775.089(7), Fla. Stat. (2010); Watson v. State, 699 So.2d 835, 836 (Fla. 3d DCA 1997). In this case, K.N. pled guilty to trespass and admitted only to entering or remaining in the home at issue without permission. She did not admit to criminal mischief or to theft, both of which were abandoned. Therefore, to obtain restitution for the loss or theft of the missing cash and jewelry, the State had to show that the loss would not have occurred but for the trespass. See Socorro v. State, 901 So.2d 940, 941 (Fla. 5th DCA 2005) (“[I]f ‘but for’ the criminal episode, damages would not have been incurred by the victim, restitution is proper.”); Davis v. State, 741 So.2d 1213, 1214 (Fla. 2d DCA 1999) (reversing restitution for stolen items when the defendant pled to attempted burglary, not theft). Because it failed to do so K.N. should not have been ordered to pay for these losses.

As our sister court in G.C. v. State, 944 So.2d 1099 (Fla. 2d DCA 2006), has confirmed, pleading guilty to a trespass, without admitting to a charged theft or agreeing to pay restitution for that theft, will not support restitution for items stolen absent proof of causation or nexus between the trespass and the theft loss. Thei’e, as here, the defendant, G.C., was charged with trespass, there for allegedly entering a business without permission. There, as here, the defendant was charged with a theft, there for taking an all-terrain vehicle which was never recovered. There, as here, G.C. pled no contest to trespass, there to trespass in a conveyance — a lesser included offense of the burglary charge— and trespass on property. There, as here, the State nol prossed the theft charges. The trial court in G.C. thereafter granted restitution for the loss of the vehicle. The Second District reversed the restitution order for the theft of the vehicle because G.C. pled only to trespass, did not admit to the theft, and did not agree to pay restitution stemming from the theft, and because the State had failed to prove the required causation or nexus between the trespass in a conveyance offense and the stolen vehicle:

By pleading no contest to trespass [in a conveyance], G.C. admitted only to entering or remaining in the vehicle without permission. See § 810.08(1). He did not admit to grand theft, and in the plea deal the State abandoned that charge without securing G.C.’s agreement to pay restitution for the victim’s loss occasioned by the theft of the [all-terrain vehicle]. See § 775.089(1)(b)(2) (“A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.”).
Therefore, to obtain a restitution award for the loss of the vehicle, the State had to show that the loss would not have occurred but for the trespass. See, e.g., Socorro v. State, 901 So.2d 940, 941 (Fla. 5th DCA 2005) (“[I]f ‘but for’ the criminal episode, damages would not have been incurred by the victim, restitution is proper.”); Davis v. State, 741 So.2d 1213 (Fla. 2d DCA 1999) (reversing restitution for stolen items when defendant pleaded to attempted burglary, not theft, and there was no significant relationship between offense and victim’s loss). Because the State failed to prove the causation or nexus between G.C.’s trespass and the victim’s loss, we reverse the restitution order.

G.C., 944 So.2d at 1100.

The same reasoning applies here. K.N. pled only to the trespass charge. She did not admit to the charged theft, nor did she agree to pay restitution for losses stemming from it. And since the State failed to prove causation or nexus between the trespass and the theft losses, that portion of the restitution order requiring K.N. to pay for the stolen cash and jewelry must be reversed.

We therefore reverse that portion of the restitution order requiring restitution for the loss of the stolen cash and jewelry and affirm that portion of the order requiring restitution relating to damage to the doors of the home.

Affirmed in part; reversed in part; remanded.


author: PER CURIAM.

text:
    ASPEN SPECIALTY INSURANCE COMPANY, Appellant, v. OMAS INVESTMENTS, LLC d/b/a Kings Row Apartments, Appellee.
    No. 3D10-3175.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, and Michaela D. Scheihing and Michael B. Germain, Dayton Beach, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez & Gomez, and Paul B. Feltman, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

ON CONFESSION OF ERROR

Upon the appellee’s proper and commendable confession of error, the order of November 1, 2010, is reversed. This case is remanded to the circuit court for further proceedings including, without limitation, an evidentiary hearing regarding the ap-pellee’s compliance with post-loss obligations under the applicable policy of insurance.

The Court declines to address the appellant’s arguments regarding the validity or enforceability of the insurance policy, as the non-final order granting the appellee’s motion to compel appraisal did not specifi-eally address that issue. This ease will be removed from the oral argument calendar for May 31, 2011.


text:
    Isaac KODSI, Appellant, v. LAE NYY, LLC, etc., Appellee.
    No. 3D10-1378.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Feingold & Kam, and David J. Feingold and Adam R. Schloss, for appellant.
    Lipscomb Eisenberg and Deborah B. Baker, for appellee.
    Before GERSTEN, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

Affirmed. See Robert & Co. v. Mortland, 160 Fla. 125, 33 So.2d 732, 734 (1948); Jones v. McConnon & Co., 100 Fla. 1158, 130 So. 760, 762 (1930).


text:
    Armando Cesar SANTANA, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 3D10-401.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Armando Cesar Santana, in proper person.
    Robyn Blank Jackson, Tallahassee, Senior Attorney, Division of Legal Services, for appellee Department of Financial Services.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Armando Santana, pro se, appeals a final order of the Department of Financial Services denying his application for licen-sure as a resident Florida title insurance agent. The Department’s denial was based on Santana’s prior criminal record, and the order further imposed a 24-year waiting period for re-application. We summarily affirm the denial under Florida Rule of Appellate Procedure 9.315(a), finding that the Department was well within its discretion in denying the application. However, we summarily reverse and remand for recalculation of the waiting period.

During the pendency of this appeal, the First District Court of Appeal per curiam affirmed the Department’s appeal from the Amended Final Order in Santana v. Department of Financial Services, No. 09-0829RX (Dept. of Admin. Hearings Apr. 29, 2010), finding that the Department had improperly enacted and interpreted its Rules for the computation of waiting periods when it denied an application for licen-sure based on the applicant’s prior criminal history. Dept. of Financial Servs. v. Santana, 1D10-2744, 2011 WL 1289035 (Fla. 1st DCA April 5, 2011)(per curiam affirmed). As this is a pipeline case, i.e. still pending on appeal when there has been a change in the law as applied specifically to him, State v. Ruiz, 863 So.2d 1205, 1209 n. 6 (Fla.2003) (“Pipeline cases are those cases pending on direct appellate review or are otherwise not yet final at the time of a pertinent change in the law.”), Santana is entitled to the benefit of that result. “An appellate court must apply the law that exists at the time of the appeal.” St. John v. Coisman, 799 So.2d 1110 (Fla. 5th DCA 2001) (citing Lowe v. Price, 437 So.2d 142 (Fla.1983)). On this basis Santana is entitled to relief from the 24-year (net) waiting period imposed in his case as the rules applying to calculation of these waiting periods have been affected.

Summarily affirmed in part, reversed in part, and remanded for further proceedings.

      . §§ 626.611, .841, Fla. Stat. (2008).

      . The final order applied the twenty-five year waiting period under Florida Administrative Code Rule 69B-211.042(8) and (9), reduced by one year as mitigation for his return to higher education after his release from incarceration. Fla. Admin. Code R. 69B-211.042(10)(a)6.


text:
    Angelo ZANGHI, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1248.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.

      Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, and Chad R. Laing of Laing Law Group, P.A., Boca Raton, for respondent.
   PER CURIAM.

In an indirect criminal contempt case arising from a marital dissolution case, the husband seeks a writ of prohibition following the denial of his verified motion to disqualify the circuit judge. The circuit judge denied the motion, finding that the motion was untimely and legally insufficient. We grant the petition and remand for the clerk to reassign the indirect criminal contempt case to another circuit judge.

The motion was both timely and legally sufficient. “A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e) (2010). Here, the husband filed the motion within ten days of the date on which the indirect criminal contempt case was transferred to the circuit judge. The husband could not have filed the motion any earlier because the circuit judge was not presiding over the indirect criminal contempt case until the case was transferred to the circuit judge.

As for legal sufficiency, “[wjhile a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So.2d 56, 58 (Fla. 4th DCA 2004) (citations omitted). Here, the circuit judge’s comments in the marital dissolution case, effectively stating that the husband should be convicted in the indirect criminal contempt case, were made before the indirect criminal contempt case was transferred to the judge and go beyond mere impressions and opinions. Instead, the comments created a well-grounded fear of having pre-judged the merits of the indirect criminal contempt case. See Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996) (“[A] party seeking to disqualify a judge need only show ‘a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.’ ”) (citations omitted).

Accordingly, we grant the petition for writ of prohibition and remand for the clerk to reassign the indirect criminal contempt case to another circuit judge. We withhold formal issuance of the writ on the assumption that the current circuit judge will comply with this opinion. This opinion has no bearing upon the circuit judge’s ability to continue hearing the marital dissolution case.

Petition granted.

GROSS, C.J., POLEN and GERBER, JJ., concur.


text:
    Pedro MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2023.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Pedro Martinez, Hialeah, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Florida Rule of Criminal Procedure 3.800(a) motion without prejudice to file a sufficient postconviction motion. Rodriguez v. State, 728 So.2d 1172 (Fla. 4th DCA 1999). Appellant’s unsworn Rule 3.800(a) motion did not establish that the face of the record established a clear entitlement to additional jail credit in this case. State v. Mancino, 714 So.2d 429 (Fla.1998).

Appellant failed to show that concurrent sentences were imposed. Daniels v. State, 491 So.2d 543, 545 (Fla.1986); Ransone v. State, 20 So.3d 445 (Fla. 4th DCA 2009), approved, 48 So.3d 692 (Fla.2010). Appellant also failed to show that the face of the record clearly established that he was arrested on the warrant in this case on the date he alleges. Martinez v. State, 932 So.2d 337 (Fla. 4th DCA 2006); see also Hines v. State, 4 So.3d 726 (Fla. 4th DCA 2009).

Appellant’s motion was filed within the time for bringing a Rule 3.850 motion. Accordingly, we affirm without prejudice for appellant to raise his jail credit claim in a sworn and legally sufficient Rule 3.850 motion that must be filed within thirty days of the date of the mandate to be issued in this case.

Affirmed.

MAY, DAMOORGIAN and CONNER, JJ., concur.


text:
    HOMESTEAD AIR BASE DEVELOPERS, INC., Appellant, v. MIAMI-DADE COUNTY, etc., Appellee.
    No. 3D09-3295.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.

      Segall Gordich, Lawrence A. Gordich, and Melissa Alagna, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and David M. Murray, Debra Herman, and Jorge Martinez-E steve, Assistant County Attorneys, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Racing Props., L.P. v. Baldwin, 885 So.2d 881 (Fla. 3d DCA 2004).


author: SCHWARTZ, Senior Judge.

text:
    Louis BRADSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3115.
    District Court of Appeal of Florida, Third District.
    May 25, 2011.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Bradshaw was charged and convicted of second degree murder. We are compelled to reverse because the lower court fundamentally erred, requiring a new trial even without objection below, in charging the jury on the lesser included offense of manslaughter by instructing only as to the culpable negligence prong and omitting entirely the manslaughter by act aspect of the crime. See Bolin v. State, 8 So.3d 428 (Fla. 2d DCA 2009) (identical situation); Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988) (applying rule to reverse situation in which manslaughter by act given and culpable negligence omitted); see generally State v. Lucas, 645 So.2d 425 (Fla.1994). Contrary to the State’s contention that this case is governed by the exception which applies when the defendant affirmatively requests or specifically agrees to the omission, see Lucas, 645 So.2d at 427, it is settled that that defendant’s desire to have no manslaughter instruction given at all, as was the case here, does not amount to an agreement to have the issue instructed upon in a fundamentally erroneous fashion. See Jimenez v. State, 994 So.2d 1141, 1143 (Fla. 3d DCA 2008) (holding that the trial court committed fundamental error in failing to give complete manslaughter instruction and the “fact that the defendant unsuccessfully tried to waive instructions on lesser offenses cannot be construed as a specific waiver of, or affirmative request to limit, the justifiable and excusable homicide instruction”); see also Reyes v. State, 924 So.2d 932 (Fla. 3d DCA 2006) (reversing second degree murder conviction where it was not clear from the record that defense counsel affirmatively agreed to exclude portion of manslaughter instruction defining justifiable and excusable homicide); Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004) (holding that in order for the Lucas waiver exception to apply defense counsel “must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction”).

Since a new trial is therefore required in any event, it is not necessary and we therefore do not determine whether the appellant’s other point individually presents reversible error. The issue .in question concerns the treatment below of assertions made by the investigating officer in the course of questioning the defendant in an interrogation which was admitted into evidence. This issue has recently been canvassed in comprehensive detail by the Fourth District Court of Appeal with ranging results, in Sparkman v. State, 902 So.2d 253 (Fla. 4th DCA 2005), on the one hand, and Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011), and Derival v. State, 58 So.3d 357 (Fla. 4th DCA 2011), on the other. As guidance at the retrial, however, the trial court’s attention is directed to those decisions and particularly to the helpful suggestion in Eugene that the problem may be obviated by a limiting instruction to the jury. 53 So.3d at 1112 n. 4.

Reversed and remanded for a new trial.


text:
    Michael D. MAYFIELD, Bonnie J. Mayfield, and Branch Banking and Trust Company, Appellants, v. FIRST CITY BANK OF FLORIDA, Appellee.
    No. 1D11-0208.
    District Court of Appeal of Florida, First District.
    May 26, 2011.
    T.A. Borowski, Jr., J. Scott Duncan, and Darryl Steve Traylor, Jr. of Borowski & Duncan, P.A., Pensacola, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

Dismissed. See generally Harrison v. J.P.A. Enterprises, L.L.C., 51 So.3d 1217 (Fla. 1st DCA 2011); Hoffman v. Hall, 817 So.2d 1057 (Fla. 1st DCA 2002); Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Richard L. McPEEK, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6030.
    District Court of Appeal of Florida, First District.
    May 26, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Thomas D. Winokur, Assistant Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Richard McPeek appeals an order revoking his probation, asking us to reverse the order because the State did not prove that he willfully violated the condition of probation that he not change his residence without first procuring the consent of his probation officer. We agree that the state’s evidence was insufficient to prove a willful violation of this condition. Accordingly, we reverse the revocation order and remand for further proceedings.

We review a revocation of probation for abuse of discretion. See Russell v. State, 982 So.2d 642, 646 (Fla.2008). “To establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995)).

The state did not, in short, prove that Mr. McPeek violated probation by changing his residence without first procuring the consent of the probation officer. See, e.g., Thompson v. State, 974 So.2d 594, 599 (Fla. 2d DCA 2008); Gauthier v. State, 949 So.2d 326, 327 (Fla. 5th DCA 2007). The lower court therefore abused its discretion in finding he violated this condition.

Because the record does not clearly reveal whether the trial court would have revoked probation based on the remaining violation, we reverse the order revoking Mr. McPeek’s probation and remand for consideration of this issue in the trial court. See Faircloth v. State, 50 So.3d 788, 790 (Fla. 1st DCA 2010).

Reversed and remanded.

BENTON, C.J., WEBSTER, and LEWIS, JJ., concur.


text:
    Joseph Michael DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2322.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Joseph Michael Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1236 (Fla.2004).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Charlie J. BURROUGHS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2324.
    District Court of Appeal of Florida, First District.
    May 27, 2011.

      Charlie J. Burroughs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(c)(4)(B); 9.141(c)(5)(C).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    Kenton BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5124.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon the State’s proper concession of error, we reverse the revocation of Appellant’s probation and resulting sentence. The State presented insufficient evidence below that Appellant committed the new law violation of resisting an officer without violence. See Harris v. State, 647 So.2d 206, 208 (Fla. 1st DCA 1994). Accordingly, we REVERSE the revocation of Appellant’s probation and REMAND for reinstatement of probation.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


author: PER CURIAM. WETHERELL, J.,

text:
    The JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. OFFICIAL REPORTERS, INC., Respondent.
    No. 1D11-0232.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Petitioner.
    Henry M. Coxe, III, and Ashley W. Greene of Bedell, Dittmar, DeVault, Pil-labas & Coxe, P.A., Jacksonville, for Respondent.
   PER CURIAM.

The Justice Administrative Commission petitions for a writ of certiorari, arguing that the trial court departed from the essential requirements of the law in directing it to pay respondent, Official Reporters, Inc., for court reporting services in the Fourth Judicial Circuit pursuant to the rates set forth in respondent’s contract with the Circuit rather than the rates set forth by statute. We reject this argument and find no departure from the essential requirements of the law.

In its order, the trial court noted that the issue was the appropriate amount of compensation to be awarded to respondent for preparation of appellate transcripts in each of the cases before it during the remaining first term of respondent’s contract with the Circuit, “to June 30, 2011.” Finding that acceptance of the Commission’s argument would result in a virtual absence of reporting services in the Circuit due to the fact that respondent was the sole bidder for the Circuit’s contract and the fact that respondent would not provide its services at the lower statutory rates, the court ordered the Commission to compensate respondent in the cases at issue at the contractual rates “until the contract terms ends on June 30, 2011.” The court also ordered the Commission to pay at the contractual rates in other cases until such time as the Commission secures an official court reporter willing and able to provide the services in the Circuit at the statutory rates. We interpret this latter directive as applying only to services performed within the contractual period through June 30, 2011. To order payment at the contractual rate after that date would constitute a departure from the essential requirements of the law. See Justice Admin. Comm’n v. Neighbors, 927 So.2d 218, 219 (Fla. 1st DCA 2006) (vacating the order requiring the Commission to pay costs other than those enumerated in the pertinent statute); see also Justice Admin. Comm’n v. Lenamon, 19 So.3d 1158, 1165 (Fla. 2d DCA 2009) (quashing the order requiring the Commission to pay more for attorney’s fees than the rate provided by statute); Justice Admin. Comm’n v. Peterson, 989 So.2d 663, 665-66 (Fla. 2d DCA 2008) (quashing the order requiring the Commission to pay attorney’s fees because the applicable statute did not create a right to publicly-funded counsel).

The certiorari petition is DENIED on the merits.

DAVIS and LEWIS, JJ., concur; WETHERELL, J., concurs with opinion.

WETHERELL, J.,

concurring.

I concur in the per curiam opinion because it limits the scope of the trial court’s order to these specific cases and only until the end of the initial term of the contract on June 30, 2011. I write separately to make two additional points.

First, I understand the conundrum faced by the trial court because it has an obligation to ensure that its proceedings are properly recorded and that transcripts are prepared in a timely manner to facilitate appellate review by this court, but Respondent was apparently the only provider that responded to the chief judge’s solicitation for bids for an official court reporter and it is unwilling to provide these services at the uniform statewide rates. However, I find it hard to believe that there are no court reporters in the Fourth Judicial Circuit willing to provide court reporting services at the uniform statewide rates, and based on the Commission’s representation that “[ojther than the Fourth Judicial Circuit with its single provider model, there is no other circuit in which [the Commission] has been required to pay for all hearing and appellate transcripts at a rate in excess of the rates established by law,” it seems to me that the chief judge may have to reconsider having Respondent provide court reporting services in cases funded by the Commission or the chief judge may have to fund the costs in excess of the statutory rates in those cases. See §§ 29.007 (requiring the state to pay the “[reasonable court reporting and transcription services necessary to meet constitutional or statutory requirements” from state revenues) and 29.018, Fla. Stat. (2010) (authorizing cost-sharing agreements between the state court system and Commission for court reporting and other due process services funded by the state). Moreover, while I see no reason that the Commission could not assist the chief judge in identifying other court reporters willing to provide services at the statutory rates, I am unaware of any authority that would permit the Commission to secure an “official reporter” for the circuit court as implicitly required by the order under review.

Second, it seems to me that the Florida Supreme Court may need to revise Florida Rule of Judicial Administration 2.535 based on the recent amendments to Chapter 27, Florida Statutes. Thé rule requires the chief judge of each circuit to develop and implement a plan for court reporting services of all proceedings required to be reported at public expense and it also authorizes the chief judge “to adopt an administrative order establishing maximum fees for court reporting services.” Fla. R. Jud. Admin. 2.535(e), (h)(2). However, this language pre-dates the significant statutory changes made in 2007 and 2010 that make clear that the Legislature is responsible for setting the maximum rates for court reporting services. See Ch. 2007-62, Laws of Fla. (abolishing the local indigent services committees that had been responsible for establishing the fee schedule for court reporting and other due process services, but authorizing the chief judge of each circuit to recommend compensation rates for court reporting and other due process services to be included in the court system’s budget request) and Ch. 2010-162, Laws of Fla. (eliminating the language in section 27.425 authorizing the chief judge to recommend compensation rates and instead providing in that section and section 27.5305(3) that the maximum compensation rates will be established in the General Appropriations Act). These statutory changes call into question the chief judge’s authority under the rule to unilaterally select an official court reporter and agree to pay the reporter more than the uniform statewide rates established by the Legislature.


text:
    Kyle BRUNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6423.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    Kyle Brunson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence in Santa Rosa County Circuit Court case number 09-1324-CFA entered on March 23, 2010, rendition of which was postponed pending rendition of the September 21, 2010, order denying petitioner’s motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(0, ⅛ granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

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


text:
    William L. CONTI and Micki Conti, Appellants, v. B & E HOLDINGS, LLC, Ellyson Place, LLC.; et al., Appellees.
    No. 1D10-5695.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    William L. Conti, pro se, for Appellants.
    No appearance for Appellees.
   PER CURIAM.

The appellants seek review of an order entitled “Final Judgment as to William L. Conti a/k/a Lawrence William Conti a/k/a Larry Conti and Micki Conti in Favor of B & E Holdings, LLC,” which enters what appears to be an executable money judgment against the appellants for amounts due under a promissory note. However, the appeal is premature. Fla. R.App. P. 9.110(l). The order “preserves all other rights and remedies allowable to the Plaintiff under the note, loan documents, [and] Mortgage.... ” The trial court has not resolved the mortgage foreclosure action, which was brought against the appellants and other defendants in a separate count of the complaint. Therefore, the order is not final. Cf. Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); see also Couch v. Tropical Breeze Resort Assn., Inc., 867 So.2d 1219 (Fla. 1st DCA 2004); Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003).

The appellants argue the order is appealable as a partial final judgment under Florida Rule of Appellate Procedure 9.110(k). However, the order does not totally dispose of the entire case as to the appellants. Cf. Batur v. Signature Props, of Nw. Florida, Inc., 903 So.2d 985, 988 (Fla. 1st DCA 2005) (finding appellate jurisdiction to review partial final judgment to the extent it disposed of the entire case as to defendants). As endorsers of the promissory note secured by the mortgage, the appellants are proper parties to the foreclosure action. See, e.g., Hobbs v. Florida First Nat’l Bank of Jacksonville, 480 So.2d 153, 155 n. 1 (Fla. 1st DCA 1985) (noting endorsers of the mortgage note are proper parties to the foreclosure action and mortgagee is not required to bring a separate action to seek a deficiency judgment against them after foreclosure); First Union Nat’l Bank v. Goodwin Beach P’ship, 644 So.2d 1361, 1362 n. 1 (Fla. 5th DCA 1994) (noting a deficiency proceeding is an integral part of the foreclosure action). Further, the order does not dispose of a separate and distinct cause of action because the pending foreclosure action is interrelated with the claim disposed of by the order on appeal. See Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) (analyzing whether order disposed of a separate and distinct cause of action). Therefore, the Court lacks appellate jurisdiction to review the instant order at this time. Fla. R.App. P. 9.080(b)(1)(A).

DISMISSED.

WOLF, DAVIS, and HAWKES, JJ., concur.


text:
    Steven Wayne JEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1210.
    District Court of Appeal of Florida, First District.
    May 27, 2011.
    James Owens, Public Defender, and David A. Dunkerley, Assistant Public Defender, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having determined that the notice of appeal failed to timely invoke the Court’s jurisdiction to review the Final Judgment and Order of Commitment, rendered on January 26, 2011, the appeal is hereby dismissed.

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


author: WALLACE, Judge.

text:
    COMPASS CONSTRUCTION, INC., Appellant, v. FIRST BAPTIST CHURCH OF CAPE CORAL, FLORIDA, INC., Appellee.
    No. 2D09-5444.
    District Court of Appeal of Florida, Second District.
    May 27, 2011.

      Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Appellant.
    W. Gus Belcher, II, of Nuckolls, Johnson, Belcher <& Ferrante, P.A., Fort Myers, for Appellee.
   WALLACE, Judge.

Compass Construction, Inc., challenges the amount of the attorney’s fees awarded to First Baptist Church of Cape Coral, Florida, Inc., in an action for indemnification. The fees awarded to First Baptist substantially exceeded the amount actually charged by First Baptist’s attorney for his services. Because the trial court was limited by the noncontingent fee agreement between First Baptist and its attorney in making the award of fees against Compass, we reverse the final judgment for attorney’s fees.

I. THE FACTS AND PROCEDURAL HISTORY

Compass and First Baptist were both named as defendants in an action arising from a construction accident. First Baptist defended the main action and also pursued a cross-claim for contractual indemnity against Compass. Ultimately, First Baptist prevailed against the plaintiff in the main action and on its cross-claim for indemnity.

Compass conceded that First Baptist was entitled to an award of attorney’s fees as part of its indemnity claim. However, the parties disagreed about the appropriate hourly rate at which the fee for First Baptist’s attorney should be calculated. Compass argued that the fee for First Baptist’s attorney must be limited to the hourly rate actually charged and billed to the client. First Baptist contended that its attorney was entitled to a fee calculated on the basis of a substantially higher hourly rate.

First Baptist had insurance coverage for the claim made against it in the main action. The insurance company assigned an attorney to represent First Baptist and provided a defense to the plaintiffs claims. The attorney assigned to the case had a written fee agreement with the insurance company for the defense of personal injury and wrongful death cases brought against the company’s insureds, such as First Baptist. In accordance with the agreement, the attorney billed the insurance company for his services at the rate of $170 per hour. The insurance company’s obligation to pay the agreed hourly rate was not contingent in any respect.

The agreement contained an additional provision which — in the attorney’s words— “specifically states that if someone other than the insurance company is to pay the fees, then the amount will be the greater of the amount charged the insurance company and the amount to be determined by the Court.” Such provisions are generally seen in contingency fee agreements. See Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990); Tampa Bay Publ'ns, Inc. v. Watkins, 549 So.2d 745 (Fla. 2d DCA 1989). This court has previously described a similar provision as “an alternative fee recovery clause.” Watkins, 549 So.2d at 747.

After a hearing, the trial court ruled that First Baptist could recover from Compass “a reasonable fee to be later determined by this Court even if that amount is greater than the amount [First Baptist’s] counsel charged First Baptist Church.” The trial court determined at a later hearing that First Baptist’s attorney reasonably and necessarily expended 115.40 hours in the defense of the plaintiffs claims and that a reasonable hourly rate for the services of First Baptist’s counsel was $350 per hour. Based on these findings, the trial court entered a final judgment awarding First Baptist attorney’s fees in the amount of $40,390. This appeal followed.

II. THE STANDARD OF REVIEW

The issue of First Baptist’s right to a fee award calculated at an hourly rate higher than the rate established in the controlling, noncontingent fee agreement is a question of law. Accordingly, our review of this question is de novo. See Ware v. Land Title Co. of Fla., Inc., 582 So.2d 46 (Fla. 2d DCA 1991).

III. DISCUSSION

In the landmark case of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), the Supreme Court of Florida established a limit on court-awarded attorney’s fees “by holding that ‘in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client.’ ” Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 831 (Fla.1990) (quoting Rowe, 472 So.2d at 1151); see also Perez-Borroto v. Brea, 544 So.2d 1022, 1028 (Fla.1989) (holding that a noncontingent fee agreement between an attorney and the client limits the trial court when it applies the principles of Rowe to determine the amount of a court-awarded attorney’s fee). In this case, the trial court calculated the fee awarded to First Baptist at an hourly rate that was more than double the noncontingent, hourly rate fee arrangement negotiated by the attorney and First Baptist’s insurance company. In awarding fees to First Baptist at an hourly rate that exceeded the rate agreed to by First Baptist’s attorney, the trial court erred.

On appeal, First Baptist does not argue that it was entitled to the application of a contingency risk multiplier in determining the amount of its court-awarded fee. Such an argument would fail because there was no risk of nonpayment in the arrangement between the attorney and First Baptist’s insurance company. Under the fee agreement, the attorney was entitled to payment at his hourly rate regardless of the outcome of the case. Absent a risk of nonpayment, the application of a contingency risk multiplier in determining the amount of a court-awarded fee is not warranted. See Quanstrom, 555 So.2d at 835; Wolfe v. Nazaire, 758 So.2d 730, 734 (Fla. 4th DCA 2000) (Farmer, J., concurring specially).

First Baptist relies on the presence of the alternative fee recovery clause in the fee agreement as the basis for the trial court’s authority to award a fee calculated at an hourly rate in excess of the negotiated hourly rate in the contract. Where a fee agreement provides for the greater of a fee equal to a percentage of the recovery or the amount awarded by the court, the court may apply a contingency risk multiplier and award a fee that exceeds the amount recoverable under the percentage alternative of the fee arrangement. Fla. Patient’s Comp. Fund v. Moxley, 557 So.2d 863, 864 (Fla.1990); Kaufman, 557 So.2d at 573; Watkins, 549 So.2d at 747. But this rule applies only when the fee arrangement is contingent, i.e., the attorney has assumed the risk of nonpayment. Here, the fee arrangement was not contingent, and First Baptist’s attorney did not assume any risk of nonpayment for his services. Thus the insertion of an alternative fee recovery clause in the agreement is unavailing.

On this point, the Third District’s decision in Daniels v. Bryson, 548 So.2d 679 (Fla. 3d DCA 1989), is instructive. In Bryson, the appellees had prevailed in the trial court in an action they filed to obtain public records. Id. at 679-80. The appellees’ fee agreement provided that their attorney would be paid at the rate of $90 per hour. Id. at 682. The agreement provided further that in the event of a court award of fees, the attorney would first reimburse the appellees for attorney’s fees and costs already paid and retain any excess. Id.

The trial court awarded the appellees attorney’s fees under section 119.12, Florida Statutes (1987). Id. at 681. Applying an analysis based on Rowe, the trial court established a reasonable hourly rate of $175 per hour and awarded a contingency risk factor of 2.5. Id. at 682. The trial court’s analysis resulted in a fee award that substantially exceeded a fee calculated at the hourly rate that the appellees had agreed to pay their attorney.

On appeal, the Third District reversed the fee award. Id. at 682-83. Noting that the appellees had a conventional hourly rate fee agreement with their attorney, the Third District said that the court-awarded fee could not exceed the amount the appellees would be obligated to pay their attorney. Id. at 682. The Third District specifically considered and rejected the appellees’ reliance on the alternative fee recovery clause in the agreement as authority for the fee enhancement:

Within the context of Rowe a contingent fee is one in which “the attorney working under a contingent fee contract receives no compensation when his client does not prevail....” 472 So.2d at 1151; accord Quanstrom v. Standard Guaranty Ins. Co., 519 So.2d 1135, 1136 (Fla. 5th DCA 1988). Where, as here, appel-lees are compensated on a flat hourly basis regardless of outcome, the possibility of a court-ordered enhancement does not convert the arrangement into a contingent fee. That is particularly so where, in the present case, the hourly fee is the fee customarily charged the particular client.... While other partial contingency arrangements may be permissible, the appellees’ fee arrangement cannot be considered contingent within the meaning of Rowe and its progeny.

Id. (first alteration in original) (citation omitted). Thus the fee for the appellees’ attorney could not be calculated at a rate exceeding $90 per hour, the agreed hourly rate in the fee agreement. In this case, as in Bryson, the fee for First Baptist’s attorney had to be calculated at the agreed hourly rate in the agreement between the attorney and the insurance company.

First Baptist places special reliance on three cases in support of its position. The first of these cases is Kaufman. The fee agreement under review in Kaufman provided for a contingency fee based on a percentage of the recovery. 557 So.2d at 573. In addition, the fee agreement included an alternative fee recovery clause. Id. Kaufman is not controlling here because the fee agreement under review in Kaufman was for a true contingency fee where the attorney assumed the risk of nonpayment. That is not the case here because the fee arrangement between First Baptist’s attorney and the insurance company called for an hourly rate payable regardless of the result, not a contingency fee.

The second case upon which First Baptist relies for affirmance is Watkins. As First Baptist points out, the Watkins court held that a trial court could award attorney’s fees in an amount higher than the fee established as a percentage of the recovery in the contract with the client where there was an alternative fee recovery clause in the fee agreement. 549 So.2d at 747. However, the fee agreement under review in Watkins provided for the payment of fees on a contingency basis, not on an hourly rate. Id. at 746. The absence of any risk of nonpayment for First Baptist’s attorney is a critical difference between Watkins and this case. Thus Watkins is inápposite.

Finally, First Baptist relies on the Fourth District’s decision in Wolfe. Wolfe was a split decision in which Judge Farmer concurred in the result but disagreed with the reasoning in the majority opinion. 758 So.2d at 734. In Wolfe, the fee agreement provided for a fee calculated at a specified hourly rate “or an amount awarded by the court under the prevailing party statute, whichever yielded the higher fee.” Id. at 732. The Wolfe majority concluded that “[i]t was clearly within the trial court’s discretion to enter an award in an amount higher than the agreed upon hourly rate set forth in the contract.” Id. at 733. This conclusion tends to support First Baptist’s position here. But the Wolfe majority also suggested — somewhat inconsistently — that the contingent nature of the fee is a necessary factor when determining whether a multiplier is appropriate:

“A court may consider applying a multiplier as a ‘useful tool’ in determining a reasonable fee if the evidence in the record establishes that: (1) the relevant market requires a contingency multiplier to obtain competent counsel; (2) the attorney was unable to mitigate the risk of nonpayment in any other way; and (3) use of a multiplier is justified based on factors such as the amount of risk involved, the results obtained, and the type of fee arrangement between attorney and client.”

Id. (quoting Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 412 (Fla.1999)). The Wolfe majority actually disapproved the fee award in that case because the trial court did not explain its reasons for the use of a multiplier and the affidavits submitted in support of the fee request “neither requested] a multiplier nor provide[d] support that a contingency risk factor was involved.” Id.

Parts of the majority opinion in Wolfe appear to be consistent with the principles expressed in Rowe and Quanstrom. But Judge Farmer disagreed with the majority’s reasoning because it implied that a multiplier was permissible in the absence of an actual risk that the fee would never become due:

The essential problem with a multiplier in this case is the lack of any contingency. There was no “risk of nonpayment” in the fee agreement between defendant and her lawyer. This was an agreement for the defendant to pay specified hourly rates for the lawyer’s time spent defending the lawsuit. The duty of payment was in no way contingent or dependent on how the lawsuit turned out.

Wolfe, 758 So.2d at 734 (Farmer, J., concurring specially) (footnotes omitted). We find the view expressed by Judge Farmer in his special concurring opinion to be better reasoned.

Shortly after Wolfe was decided, the Fourth District considered the case of Pompano Ledger, Inc. v. Greater Pompano Beach Chamber of Commerce, Inc., 802 So.2d 438 (Fla. 4th DCA 2001). In that case, the Fourth District reversed an attorney’s fee order applying a contingency risk multiplier where the fee award was entered under section 57.105, Florida Statutes (2000). Citing the factors outlined in Bell and quoted in Wolfe, the Fourth District concluded:

Applying these factors to the instant case, no contingency risk multiplier should have been applied. No evidence was present that the attorneys were unable to mitigate the risk of nonpayment in any other way. In fact there was no risk of nonpayment. The insurance company was paying the attorney’s fees.

Pompano Ledger, 802 So.2d at 439. In reaching this conclusion, the Fourth District cited to Judge Farmer’s special concurring opinion in Wolfe. However, the Fourth District did not recede from or disapprove its prior decision.

In our view, Pompano Ledger is consistent with Rowe and Quanstrom and is also consistent with Judge Farmer’s concurring opinion in Wolfe. We are unable to reconcile the majority opinion in Wolfe with the prevailing law on this issue in Florida. Arguably, Wolfe may be distinguished from the case before us on the rationale that the basis for the court-awarded fee in Wolfe was a prevailing-party statute whereas the legal basis for the court-awarded fee in this case is First Baptist’s right to contractual indemnity. However, we are not inclined to think that such a distinction has any practical significance.

IV. CONCLUSION

The trial court’s award of attorney’s fees to First Baptist at a rate higher than the agreed hourly rate in the applicable fee agreement is inconsistent with Rowe and its progeny. Moreover, First Baptist will be made whole on its claim for contractual indemnity by payment of an attorney’s fee calculated at the hourly rate agreed upon between the attorney and the insurance company. The payment of a fee calculated at a higher hourly rate results in a windfall to the attorney that Compass should not be obligated to pay.

For the foregoing reasons, we reverse the final judgment for attorney’s fees and remand for the entry of an amended final judgment for attorney’s fees to be calculated in accordance with the agreed-upon hourly rate stated in the applicable fee agreement. We certify that our decision is in direct conflict with the Fourth District’s decision in Wolfe.

Reversed and remanded with directions.

NORTHCUTT and DAVIS, JJ., Concur.


text:
    Damian SIMMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1258.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.

      Robert Wesley, Public Defender and Migdalia Perez, Assistant Public Defender, Kissimmee, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-1327-A-OS, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., TORPY and EVANDER, JJ., concur.


text:
    Michael Lamar COOK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-957.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Michael Lamar Cook, Graceville, pro se.
    No appearance for Appellee.
   PER CURIAM.

We affirm the summary denial of Michael Lamar Cook’s rule 3.850 Motion for Post Conviction Relief, but remand for correction of a scrivener’s error in the circuit court’s order, which, at one point, mistakenly refers to the defendant by another name.

AFFIRMED; REMANDED for Correction of Scrivener’s Error.

ORFINGER, TORPY, and JACOBUS JJ., concur.


text:
    Scott Robert WRAZIN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1186.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Scott Robert Wrazin, Blountstown, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2010-CF-001422, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and COHEN, JJ„ concur.


text:
    Luis A. RIOS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1160.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Luis A. Rios, Sneads, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2010-CF-001357, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Robert BLUMENFELD, Appellant, v. FIFTH THIRD MORTGAGE COMPANY, Appellee.
    No. 5D10-3638.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Michael E. Rodriguez, of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.
    Wm. David Newman, Jr. of Law Offices of Marshall C. Watson, P.A., Ft. Lauder-dale, for Appellee.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to Appellee’s confession of error, the Final Judgment of Mortgage Foreclosure is reversed and the matter remanded to the trial court for the appropriate further proceedings.

REVERSED and REMANDED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


text:
    Norman YOUNG, Appellant, v. CITY OF DAYTONA BEACH SHORES, et al., Appellee.
    No. 5D10-1723.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Edward S. Rue, of Rue & Ziffra, P.A., Port Orange, for Appellant.
    Kevin E. Jakab, and Kerry C. Collins, of Jakab Law, PLLC, Jacksonville, for Ap-pellee, Cahuenga Associates, II, Ltd.
    No appearance for Appellee, City of Daytona Beach Shores.
   PER CURIAM.

In this negligence action, Norman Young appeals from a summary final judgment entered in favor of Cahuenga Associates II, Ltd. Following our de novo review, see Volusia County v. Aberdeen at Ormond Beach L.P., 760 So.2d 126, 130 (Fla.2000), we conclude, as the trial court did, that there are no material issues of disputed fact and that Cahuenga was entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510.

AFFIRMED.


text:
    Shawn E. HAMMONDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1161.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Shawn E. Hammonds [“Hammonds”] appeals his judgment and sentences for two counts of capital sexual battery, one count of lewd or lascivious molestation, and two counts of lewd or lascivious exhibition. Hammonds argues that the trial court erred by denying his motion for judgment of acquittal on the two counts of capital sexual battery based on the State’s failure to rebut his reasonable hypothesis of innocence. In denying the motion, the trial court explained:

While there is not direct evidence that he had union with his penis and these young boys’ rectums, the fact that the young boys both testified he put his penis between their buttock cheeks and that it was painful to them, I think would allow a jury to find should they so choose — I’m not saying they will, but allow a jury to find that he is guilty of capital sexual battery.”

We agree that this evidence is sufficient to create an issue for the jury. See Wilson v. State, 622 So.2d 31 (Fla. 1st DCA 1993).

AFFIRMED.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.

      . Hammonds was charged in ten counts of sex crimes against two victims and convicted and sentenced on five counts.


text:
    Shirley A. THOMAS, Appellant, v. Aaron R. THOMAS, Appellee.
    No. 5D10-259.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, and Stacy J. Ford, of Pohl & Short, P.A., Winter Park, for Appellant.
    Shannon McLin Carlyle and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   PER CURIAM.

Shirley Thomas, the former wife, appeals a final, post-dissolution order adopting a magistrate’s findings and recommendations. She raises a number of issues that lack merit and do not warrant discussion. However, we find that a reversal is warranted as to two minor issues. First, although the trial court properly awarded fees to the former husband pursuant to the terms of the marital settlement agreement, the order on appeal does not include findings as to the reasonableness of the fees in terms of the time spent and the hourly rate awarded. These findings are required. Voronin v. Voronina, 995 So.2d 1049, 1050 (Fla. 2d DCA 2008); Rowl v. Rowl, 864 So.2d 1236 (Fla. 5th DCA 2004). Second, the trial court improperly ordered the former wife to reimburse the former husband for two days of lost wages as part of a sanction for twice failing to appear at mediation. As explained in Carbino v. Ward, 801 So.2d 1028, (Fla. 5th DCA 2001), there is no authority for a lost wage award in this context under Florida Rule of Civil Procedure 1.720(b), or any other statute or rule.

Accordingly, we reverse that portion of the sanction order requiring the former wife to reimburse the former husband for two days of lost wages, reverse the attorney’s fee award and remand for the entry of a new attorney’s fee order containing the required findings. In all other respects, we affirm.

AFFIRMED IN PART and REVERSED IN PART.

MONACO, C.J., LAWSON, and JACOBUS, JJ., concur.


text:
    Liam GILLEN and Jean T. Gillen, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 5D09-4194.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Michael E. Rodriguez, of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.
    Wm. David Newman, Jr. of Law Offices of Marshall C. Watson, P.A., Ft. Lauder-dale, for Appellee.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to Appellee’s confession of error, the Final Judgment of Mortgage Foreclosure is reversed and the matter remanded to the trial court for the appropriate further proceedings.

REVERSED and REMANDED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


author: BLACK, Judge.

text:
    Sarkis KONSULIAN, Appellant, v. BUSEY BANK, N.A. as Successor in interest by Acquisition of Tarpon Coast National Bank, Appellee.
    No. 2D10-2163.
    District Court of Appeal of Florida, Second District.
    June 1, 2011.

      Gregg Horowitz, Sarasota, for Appellant.
    Mark A. Horowitz of Warchol, Merchant & Rollings, LLP, Cape Coral, for Appellee.
   BLACK, Judge.

Sarkis Konsulian appeals the trial court’s order granting summary judgment in favor of Busey Bank (“Busey”). On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsu-lian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Because our ruling is based on the conditions precedent issue, we do not reach the issue of the accuracy of the damages calculation as challenged in Kon-sulian’s affidavit.

On October 6, 2008, Busey sent a preac-celeration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to paragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior to filing suit. Paragraph twenty-two of Konsulian’s mortgage provides as follows:

22. Acceleration; Remedies. Lenders shall give notice to the Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is given to Borrower, by which the default must be cured; and, (d) that the failure to cure the default on or before the date specified in the notice may result in an acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, a Lender, at its option, may require immediate payment in full of all sums secured by this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to all attorneys’ fees and costs of title evidence.

Konsulian appropriately raised both the timeliness argument and the sufficiency of the acceleration letter argument in his affirmative defenses. In addition, Konsulian filed an affidavit in opposition to the summary judgment motion contesting the amounts claimed by Busey. Konsulian challenged the interest and late fee calculation, as well as whether all payments were credited. At the time of the summary judgment hearing, the affirmative defenses were still viable.

On April 19, 2010, the trial court entered final judgment of foreclosure, which resulted in the sale of the property to Busey. The final judgment does not address the merits or disposition of Konsuliaris defenses.

Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the nonmoving party. See Suarez v. City of Tampa, 987 So.2d 681, 682-83 (Fla. 2d DCA 2008) (citing Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001)). “The party moving for summary judgment has the burden of showing the nonexistence of [a] genuine issue of material fact.” Richardson v. Wal-Mark Contracting Group, LLC, 814 So.2d 534, 535 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966)). A summary judgment must not only establish that no genuine issues of material fact exist as to the parties’ claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient. Moroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005).

Here, nothing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsu-lian the notice which the mortgage required. The language in the mortgage is clear and unambiguous. The word “shall” in the mortgage created conditions precedent to foreclosure, which were not satisfied. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient. Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.

Reversed and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.