author: WALLACE, Judge.

text:
    Christopher FORREST and The Forrest Law Group, Appellants, v. CITI RESIDENTIAL LENDING, INC.; Nationwide Title Clearing, Inc.; Bryan Bly; Crystal Moore; Dhurata Doko; Vilma Castro; Peter Y. Morlon; Barbara Morlon; and Deutsche Bank National Trust Company, Appellees.
    No. 2D10-5667.
    District Court of Appeal of Florida, Second District.
    June 29, 2011.
    Rehearing Denied Aug. 19, 2011.

      Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota; James K Green of James K. Green, P.A., West Palm Beach; and Randall C. Marshall and Maria Kayanan of American Civil Liberties Union Foundation of Florida, Inc., Miami, for Appellants.
    Katherine E. Giddings, Nancy M. Wallace, and Kelly J.H. Garcia of Akerman Senterfitt, Tallahassee; William P. Heller of Akerman Senterfitt, Fort Lauderdale; and Adina L. Pollan of Akerman Senter-fitt, Jacksonville, for Appellees Citi Residential Lending, Inc.; Nationwide Title Clearing, Inc.; Bryan Bly; Crystal Moore; Dhurata Doko; and Vilma Castro.
    Barbara A. Couture of Shapiro & Fish-man, LLP, Tampa, for Appellee Deutsche Bank National Trust Company.
    No appearance for Appellees Peter Y. Morion and Barbara Morion.
   WALLACE, Judge.

The Appellants, Christopher Forrest and The Forrest Law Group, challenge a nonfinal, temporary injunction, enjoining them “from posting, publishing, disseminating, or maintaining materials from the video depositions” of the individual Appellees “until further order” of the circuit court and directing them to remove the video depositions from YouTube. We reject the Appellants’ argument that the injunction amounts to an unconstitutional prior restraint on their protected First Amendment speech. Instead, we uphold the injunction as an appropriate exercise of the trial court’s discretionary authority to prevent the abuse of the discovery process. However, we agree with the Appellants that the trial court erred in failing to require a bond.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Christopher Forrest and his law firm represent Peter Y. Morion and Barbara P. Morion, who are defendants in the underlying mortgage foreclosure action filed by Deutsche Bank National Trust Company. The original owner of the Morions’ note and mortgage was Ameriquest Mortgage Company. Deutsche Bank apparently acquired the note and mortgage by assignment from Ameriquest.

The Appellants are Mr. Forrest and his law firm. Although named as Appellees, neither the Morions nor Deutsche Bank have filed a brief in this court. The remaining Appellees are all nonparties to the underlying mortgage foreclosure action. Questions raised by the Morions about the execution of the assignment of the note and mortgage from Ameriquest to Deutsche Bank explain the involvement of the Appellees in the litigation. Citi Residential Lending, Inc., executed the assignment in question as attorney-in-fact for Ameriquest. Crystal Moore signed and acknowledged the assignment as the vice president of Citi Residential Lending. Vilma Castro and Dhurata Doko witnessed the assignment. Bryan Bly, a notary public, took the acknowledgment of Ms. Moore’s signature on the instrument. Nationwide Title Clearing, Inc. (NTC), employs all four of the individual Appellees.

Mr. Forrest sought to take the depositions of the NTC employees, purportedly to discover facts pertinent to the Morions’ defense that the assignment was invalid because it was improperly executed. The Appellees responded by moving for a protective order to prevent the depositions from taking place. Mr. Forrest and the Appellees’ attorney were unable to resolve their dispute about the depositions, and the matter was set for a hearing before the circuit court.

The hearing on the motion for protective order filed by the Appellees might have appeared to be a typical pretrial skirmish in a routine residential foreclosure. But the controversy concerning the role of so-called “robo-signers” in the foreclosure crisis currently confronting the court system lent the matter additional significance.

At the hearing on the motion for protective order, counsel for the Appellees argued, in pertinent part, that the mortgage assignment and the depositions of the NTC employees were irrelevant to the disposition of the underlying matter. She claimed that the assignment of the mortgage was not necessary for Deutsche Bank to establish its standing to foreclose because standing was based upon its status as the holder of the note. In addition, counsel observed that the Morions did not challenge the content of the assignment or argue that the mortgage was not properly assigned. Instead, the Morions took issue with the manner in which the assignment was executed.

The Appellees’ counsel pointed out the current robo-signer scandal and argued that the Appellants were “trying to just jump on the bandwagon and make a national issue here.” She expressed concern that “these type of depositions are going to continue going on all over the State, as this is the new, in-vogue tactic to fight foreclosure.” In addition, counsel pointed out that the Appellants were seeking to take the video depositions of the individual Ap-pellees and that while there might be legitimate reasons for taking the depositions by video, “not once in their response do [the Appellants] try to provide a legitimate reason for this request. And we believe it’s obvious they just want to post this on the Internet.” (Emphasis added.) Finally, counsel articulated her belief that the depositions would severely prejudice the individual nonparty Appellees. She noted that Mr. Bly’s name had already been spread “all over the Internet” and that while “these employees have nothing to hide, ... they have nothing to do with this case and they shouldn’t be subject to harassment ... on a document that has no relevance.” Thus the Appellees’ counsel expressly voiced her concern that Mr. Forrest intended to post the video depositions of the four individual Appellees on the Internet.

The circuit court asked Mr. Forrest to respond to the Appellees’ arguments. Mr. Forrest replied:

[W]hether or not taking these depositions might be the new, in-vogue defense tactic, this case is not about the national scene, it’s not about the robo signers scandal that’s hit the media, this case is about the Morions. I’m here to defend these folks against a foreclosure action against their home.

Mr. Forrest argued that the Morions had the right to depose the individual Appel-lees “when the facts to be elucidated during that deposition have direct bearing on the arguments that can be presented at summary judgment hearing and/or trial on this case.” He contended that the assignment was relevant because Deutsche Bank alleged that it did not have the note and that it had filed a claim to reestablish a lost instrument. Deutsche Bank had also attached the assignment as an exhibit to the complaint. Mr. Forrest also articulated his belief based on other discovery that there were irregularities in the signatures on the assignment.

With regard to the Appellees’ counsel’s suggestion concerning his intent in videotaping the depositions, Mr. Forrest represented:

And to respond briefly to the allegations about some ulterior motives I have for taking them by videotape, I’m quite concerned with the current scandal that’s going on that these people may not be available when it comes time to try and present them at hearing or trial.
There’s a lot of attention being focused on them; a lot of scrutiny. I don’t want to have trial come up and then not be able to find them or locate them because they quit or been fired or they’ve moved.
By videotaping these depositions, I can preserve the evidence to be used later in this case. That’s the only reason I want them videoed. Oh, no, I take that back. That’s reason number one. Reason number two is: I anticipate, based on the response I’ve gotten here and the vigorous attempt to block when I attempt to take these depositions, that I’m going to run into some serious obstacles in taking these depositions, whether they’re objections and attempts to obstruct my ability to take them.
... And I would like to create a video record of that, in case we need to come before the Court and have rulings on whether or not particular questions in the deposition are relevant, and whether or not opposing counsel, you know, is obstructing my ability to move forward.
They’re obviously quite concerned that this — that my little case will have these huge ramifications. I don’t want those concerns to affect my ability to do my job on behalf of my clients.

Thus Mr. Forrest did not expressly say that he did not intend to post the video depositions of the individual Appellees on the Internet. But his denial of “some ulterior motives” and his recitation of the reasons for taking the video depositions were calculated to leave the impression that he harbored no such intent.

At the conclusion of the hearing, the circuit court denied the Appellees’ motion for protective order. Significantly, the court noted the liberality of the rules of discovery and the fact that the depositions could be relevant to the Morions’ defense. Thus the four individual Appellees submitted to the taking of their depositions by Mr. Forrest on November 4, 2010, without the benefit of any court-imposed limitations. Only a few days later, between November 7 and 9, Mr. Forrest posted the video depositions of Crystal Moore, Dhura-ta Doko, and Bryan Bly on YouTube. Notably, Mr. Forrest acted before the individual Appellees even had an opportunity to read and sign the deposition transcripts and, if necessary, to make any changes. See Fla. R. Civ. P. 1.310(e) (providing for witness review of deposition testimony that is transcribed).

On November 9, Mr. Forrest filed with the clerk a “Notice of Filing Video Depositions.” This paper purported to give notice of the filing of the video depositions of Crystal Moore, Bryan Bly, Dhurata Doko, and Vilma Castro. The certifícate of service reflects service of a copy of the notice on counsel for Deutsche Bank, but not on the Appellees’ counsel. According to the Appellees, the Appellants did not actually file the depositions with the clerk, only the one-page notice. The Appellants do not dispute this claim.

On November 11, the Appellees served a motion for sanctions and a motion to determine confidentiality of court records. The motion to determine confidentiality asserted that the posting of the depositions on YouTube invaded the individual Appellees’ privacy and subjected them to unnecessary abuse and harassment. The Appellees sought to classify the individual Appellees’ video depositions as confidential under Florida Rule of Judicial Administration 2.420(c)(9)(A)(v) to “avoid substantial injury to innocent third parties.” On the same day, the Morions served their own motion for sanctions and a response to the motion to determine the confidentiality of court records.

On November 17, the circuit court contacted the Appellees’ counsel by e-mail and requested that she set a one-hour hearing on the various motions for Friday, November 19. But when the Appellees’ counsel attempted to contact Mr. Forrest to coordinate the hearing, she was told that he was “out of the country” until Monday, November 22. Because of the Thanksgiving holiday, the circuit court was unavailable for hearings during the week that Mr. Forrest was scheduled to return, and the court’s next available hearing date was December 1, almost two weeks later. The juxtaposition of Mr. Forrest’s sudden unavailability and the trial court’s holiday schedule left the Appellees’ counsel with limited options to address timely the posting of the video depositions on YouTube. Thus she filed the emergency motion for a temporary injunction on November 19.

II. THE TEMPORARY INJUNCTION

The circuit court heard the emergency motion on November 19, the same day that it was filed, without further notice to Mr. Forrest. After an ex parte hearing, the circuit court granted the emergency motion. The order granting the temporary injunction provides, in pertinent part, as follows:

The Court fully supports First Amendment Rights and the public’s access to information. However, in this case, until the issue can be more fully explored in an expedited hearing, the Court finds that the public interest favors the temporary injunction because of the potential for permanent injury to those individuals who were called as witnesses, but who are not named as parties to this law suit.
The Court ORDERS a temporary and mandatory injunction in this lawsuit of the actions of Christopher Forrest and The Forrest Law Firm, including:
1. Christopher Forrest and The Forrest Law Firm, and all persons acting in concert with either, are enjoined from posting, publishing, disseminating, or maintaining materials from the video depositions of the NTC Employees, until further order by this Court;
2. Christopher Forrest and The Forrest Law Firm are to immediately remove the video depositions of Ms. Moore, Mr. Bly, and Ms. Doko from The Forrest Law Firm ‘YouTube” channel, until further order by this Court; and
3. Christopher Forrest is to show cause to this Court why this temporary injunction should not be permanent.

Mr. Forrest and his law firm did not file a motion to dissolve or to modify the temporary injunction under Florida Rule of Civil Procedure 1.610(d). Instead, they filed this appeal.

III.THE APPELLANTS’ ARGUMENTS

On appeal, the Appellants make three arguments. First, they argue that the temporary injunction constitutes an unconstitutional prior restraint on their right to free speech. Second, the Appellants assert that the temporary injunction is overly broad and that the circuit court improperly entered it without notice. Third, they contend that the temporary injunction is defective because it does not require the Appellees to post a bond. The Appellants’ second argument is without merit and does not warrant further discussion. We will address their first and third arguments below.

IV.PRELIMINARY MATTERS

We begin our consideration of the propriety of the entry of the temporary injunction with the applicable appellate standard of review. Our review of orders granting temporary injunctions is for abuse of discretion. Atomic Tattoos, LLC v. Morgan, 45 So.3d 63, 64 (Fla. 2d DCA), petition for review dismissed, 50 So.3d 1137 (Fla.2010). We apply a de novo standard of review to the determination of whether a temporary injunction constitutes an unconstitutional prior restraint on free speech. Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 609 (Fla. 5th DCA 2007). Here, because the Appellants did not seek to dissolve the ex parte injunction, the scope of our review is limited to the legal sufficiency of the order on appeal, the motion for the injunction, and any supporting documents. See High Sch. Activities Ass’n v. Marsonek, 805 So.2d 868, 869 (Fla. 2d DCA 2001).

V.DISCUSSION

A. Prior Restraint or Prevention of Abuse of the Discovery Process?

The Appellants view the temporary injunction as “a prior restraint on the publication and dissemination of matters of great public importance.” They argue that the posting of the video depositions on the Internet constitutes speech. And according to the Appellants, the temporary injunction, which requires them to remove the depositions and prohibits them from “posting, publishing, disseminating, or maintaining materials from the video depositions,” amounts to an unconstitutional prior restraint of that speech because it necessarily determines that the First Amendment does not protect that conduct. In support of their position, the Appellants rely on Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and similar cases condemning prior restraints on speech as inconsistent with the freedom of speech guaranteed by the First Amendment.

The Appellees frame the issue before us differently. They argue that this case “is about a trial court’s authority to control pretrial discovery procedures and the conduct of attorneys who appear before it.” We agree with the Appellees that the temporary injunction does not amount to an unconstitutional prior restraint of the Appellants’ free speech. Our conclusion on this point is guided by the teaching of the United States Supreme Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

In Seattle Times, the Court addressed “whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process.” Id. at 22, 104 S.Ct. 2199. In that case, the respondent, Mr. Rhinehart, filed a suit against the petitioners, Seattle Times and others, for defamation and invasion of privacy in connection with the publication of several articles concerning Mr. Rhinehart and his religious group, the Aquarian Foundation. Id. at 22-23, 104 S.Ct. 2199.

After suit was filed, the petitioners initiated discovery and sought certain financial information from the respondents, including the identity of the Foundation’s donors and members during the preceding ten years. Id. at 24, 104 S.Ct. 2199. The trial court granted the petitioners’ motion to compel discovery of this information, and it granted the respondents’ motion for protective order in connection with that information. Id. at 24-27, 104 S.Ct. 2199. “The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case.” Id. at 27, 104 S.Ct. 2199. The order did not apply to information that the petitioners gained by means other than the discovery process. Ultimately, the Supreme Court of Washington approved both the order compelling the discovery and the protective order limiting its use, id. at 27-28, 104 S.Ct. 2199, and the Supreme Court accepted review.

The Supreme Court noted that Washington, like most states, had adopted discovery rules modeled after the Federal Rules of Civil Procedure and that Washington Superior Court Civil Rule 26(b)(1) permitted a party to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Id. at 29, 104 S.Ct. 2199 (quoting Wash.Super. Ct. Civ. R. 26(b)(1)). Further, “discovery is not limited to matters that will be admissible at trial so long as the information sought ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ ” Id. at 29-30, 104 S.Ct. 2199 (quoting Wash.Super. Ct. Civ. R. 26(b)(1)). It noted that the rule did not distinguish between private or intimate information and information to which no privacy interests attach. Id. at 30, 104 S.Ct. 2199. “Thus, the [r]ules often allow extensive intrusion into the affairs of both litigants and third parties,” and “[i]f a litigant fails to comply with a request for discovery,” a court may direct compliance enforceable through its contempt powers. Id.

The Supreme Court observed that “[t]he critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used.” Id. at 32, 104 S.Ct. 2199. In addressing that question, the Court recognized that “it is necessary to consider whether the ‘practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression’ and whether ‘the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.’ ” Id. (alterations in original) (quoting Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)).

The Court found it significant that in the case before it, the petitioners had obtained the information that they wanted to disseminate “only by virtue of the trial court’s discovery processes.” Id. And, because the rules authorizing discovery were adopted by the state legislature, that process was a matter of legislative grace. Thus, the court concluded, “[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit.” Id.

The Court also found it significant that pretrial depositions and interrogatories are not public information and that, generally, such discovery is conducted in private. Id. at 33, 104 S.Ct. 2199. Further, much of the information obtained during pretrial discovery may be unrelated or merely tangentially related to the underlying case so that restraints placed upon discovered, but not yet admitted, information do not restrict a traditionally public source of information. Id.

Finally, the Court observed that an order prohibiting dissemination of information discovered before trial is not the type of “classic prior restraint that requires exacting First Amendment scrutiny.” Id. This is because such orders prevent a party from disseminating only that information obtained through the discovery process and do not prevent a party from disseminating the identical information covered by the protective order as long as it is gained through independent means.

The Court found that “Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression” and that “[b]ecause of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c).” Id. at 34, 104 S.Ct. 2199. The Court reasoned, “[t]here is an opportunity ... for litigants to obtain — incidentally or purposefully— information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes.” Id. at 35, 104 S.Ct. 2199. The Court held “that where ... a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.” Id. at 37, 104 S.Ct. 2199.

The rationale of Seattle Times applies here. Although this case involves a temporary injunction rather than a protective order, the circumstances are analogous to the situation in Seattle Times. The reasoning in that case supports the conclusion that the circuit court’s order does not constitute an unconstitutional prior restraint on the Appellants’ free speech. Significantly, the Appellants used the discovery process and the subpoena power of the court to obtain the video depositions at issue here. And the individual Appellees have demonstrated that the posting of those depositions on the Internet infringes upon then’ privacy rights and has already subjected them to harassment. We acknowledge that the Appellees sought to block the depositions entirely rather than seeking a protective order against the posting of the depositions on the Internet and other dissemination of the depositions. However, the transcript of the hearing on the motion for protective order leaves little doubt that the circuit court allowed the depositions to go forward without restriction based on representations that gave the conscientious and experienced circuit judge an incomplete account of Mr. Forrest’s intended use of them. In our view, these disquieting circumstances invoke the same substantial interest in preventing the abuse of the circuit court’s processes that the United States Supreme Court recognized in Seattle Times.

We also note that other courts have imposed restrictions on the release of videotaped depositions for good cause shown. See Stern v. Cosby, 529 F.Supp.2d 417, 423 (S.D.N.Y.2007) (prohibiting the release of the video or transcript of the defendant’s deposition, including excerpts, portions, or copies thereof, to the public absent further order of the court); Baker v. Buffenbarger, No. 03-C-5443, 2004 WL 2124787, at *4 (N.D.Ill. Sept. 22, 2004) (not reported in F.Supp.2d) (limiting the use of the defendants’ videotaped deposition testimony to purposes directly related to settlement and trial preparation in the case and prohibiting the dissemination of the depositions prior to trial); Paisley Park Enters., Inc. v. Uptown Prods., 54 F.Supp.2d 347, 349-50 (S.D.N.Y.1999) (imposing restrictions on the copying, storage, and dissemination of the video deposition of Prince, the well-known rock artist); Seaman v. Wyckoff Heights Med. Ctr., Inc., 8 Misc.3d 628, 798 N.Y.S.2d 866, 871, 873 (N.Y.Sup.Ct.2005) (prohibiting dissemination of deposition and discovery materials to the press or any other persons except attorneys of record and imposing monetary sanctions on attorneys who delivered the only copy of the videotaped deposition of the president and chief executive officer of the defendant to persons associated with the television program, A Current Affair), affirmed, 25 A.D.3d 598, 806 N.Y.S.2d 888 (N.Y.App.Div.2006), petition for review dismissed, 7 N.Y.3d 864, 824 N.Y.S.2d 609, 857 N.E.2d 1139 (2006).

Moreover, the video depositions and the testimony contained in them, like the information at issue in Seattle Times, are not court records that are open to the public but were obtained as part of the pretrial discovery process. Depositions and other discovery material frequently contain matters that are inadmissible in evidence, irrelevant to the issues in litigation, defamatory, or prejudicial. This fact argues strongly against turning the discovery process into a means to obtain information for publication in the press or other media. See Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378, 382-84 (Fla.1987) (discussing the Seattle Times case at length). And Mr. Forrest’s filing of a notice of filing depositions without actually filing them does not transform the depositions into court records that are open to the public. See Fla. R. Jud. Admin. 2.420(b)(1)(A) (defining court records as “the contents of the court file”).

We conclude that the order under review falls within the limitations recognized in Seattle Times. The requirements for the entry of a temporary injunction are more stringent than the showing of “good cause” required for the entry of a protective order. In addition, the order only addresses the nonparty witnesses’ pretrial •video depositions, and it does not purport to restrict the dissemination of the information contained in the video depositions if Appellants obtain that information from other sources. Accordingly, we conclude that the temporary injunction does not amount to an unconstitutional prior restraint on the Appellants’ First Amendment rights. The circuit court acted properly within the broad scope of its discretion in entering the temporary injunction to protect the individual Appellees and to prevent the abuse of the discovery process.

B. The Failure to Require a Bond

However, the circuit court erred in entering the injunction without requiring the Appellees to post a bond. Florida Rule of Civil Procedure 1.610(b) provides that “[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” “An injunction is defective if it does not require the movant to post a bond. ‘The trial court cannot waive this requirement nor can it comply by setting a nominal amount.’ ” Fla. High Sch. Activities Ass’n v. Mander, 932 So.2d 314, 315—16 (Fla. 2d DCA 2006) (quoting Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997)). However, “[n]o bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.” Fla. R. Civ. P. 1.610(b) (emphasis added).

Here, the order granting the injunction states “that the injunctive relief granted herein does not require a bond” without explaining the basis upon which the court concluded that no bond was required. The order adopts the arguments in the Appel-lees’ motion in determining that they had a clear legal right to the requested relief and a substantial likelihood of success on the merits, that they had suffered and would continue to suffer irreparable harm unless relief was granted, and that they lacked an adequate remedy at law. The emergency motion for temporary injunction does not assert that the Appellees are entitled to the injunction without posting a bond.

On appeal, the Appellees argue that the physical injury or abuse exception to the bond requirement applies in this case, stating that the circuit court issued the injunction solely to prevent the physical injury or abuse of the individual Appel-lees. We disagree. To be sure, persons viewing the video depositions on the Internet reacted with a variety of unflattering remarks and vague threats. However, such negative comments do not constitute the “abuse” contemplated by rule 1.610(b) sufficient to excuse the requirement of posting a bond.

Moreover, the motion for temporary injunction asserts the violation of the Appellees’ privacy rights, including the disclosure of their identities as a basis for imposing the injunction. The order granting the injunction adopted the arguments in the motion in support of its issuance, and thus the injunction was not issued “solely” to prevent physical injury or abuse as required by rule 1.160(b). See United Farm Workers of Am., AFL-CIO v. Quincy Corp., 681 So.2d 773, 777 (Fla. 1st DCA 1996) (holding that where the temporary injunction prohibited actions broader than those required “solely to prevent physical injury,” waiver of the bond requirement was error).

The Appellees also argue that no bond was required because the Appellants were not parties to the underlying action and because the circuit court has the inherent power to protect nonparty witnesses. But the Appellees have not cited any authority for that proposition. Accordingly, we reject this argument.

VI. CONCLUSION

For the foregoing reasons, we affirm the order under review to the extent that it grants the requested temporary injunctive relief. We reverse the order to the extent that it fails to require a bond in accordance with Florida Rule of Civil Procedure 1.610(b). On remand, the circuit court shall promptly set the bond in an appropriate amount after providing the parties to the litigation and the interested nonparties with an opportunity to be heard on this issue. See Finder v. Finder, 817 So.2d 1104, 1105 (Fla. 2d DCA 2002).

Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ., Concur.

      . "YouTube is a video sharing service that allows users to watch videos posted by other users and upload videos of their own.” Tech Terms Computer Dictionary, http://www. techterms.com/definition/youtube (last visited Apr. 26, 2011).

      . For convenience, we will refer to the Appel-lees who were nonparties in the circuit court as "the Appellees.” Also, we will refer to Bryan Bly, Crystal Moore, Dhurata Doko, and Vilma Castro as "the individual Appellees.”

      . A "robo-signer” is "[a]n employee of a mortgage servicing company that signs foreclosure documents without reviewing them. Rather than actually reviewing the individual details of each case, robo-signers assume the paperwork to be correct and sign it automatically, like robots.” Investopedia, http://www. investopedia.com/terms/r/robo-signer.asp (last visited Apr. 28, 2011).

      . For reasons unexplained in our limited record, Mr. Forrest apparently did not post the video deposition of Vilma Castro on YouTube.

      . Rule 1.610(d) provides that "[a] party against whom a temporary injunction has been granted may move to dissolve or modify it at any time.... [T]he motion shall be heard within 5 days after the movant applies for a hearing on the motion.”

      . Florida Rule of Civil Procedure 1.280(b)(1) similarly provides as follows:
      Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
      The Florida Supreme Court has also observed that " ‘the objective in promulgating the Florida [Rules of Civil Procedure] has been to harmonize our rules with the federal rules.’ Thus, we look to the federal rules and decisions for guidance in interpreting Florida’s civil procedure rules.” Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282, 1283-84 (Fla.1992) (citations omitted) (quoting Miami Transit Co. v. Ford, 155 So.2d 360, 362 (Fla.1963)).

      . The courts have shown more reluctance to limit the dissemination of video depositions in cases involving current or former public officials. See Morrow v. City of Tenaha, No. 2-08-cv-288-TJW, 2010 WL 3927969, at *4 (E.D.Tex. Oct. 5, 2010) (only Westlaw citation currently available) (observing that "[c]ourts are especially unwilling to issue a protective order merely to spare the defendant embarrassment where, as here, the defendants are public officials and the issues in the case are matters of public concern”); Padberg v. McGrath-McKechnie, No. CV-00-3355 RJD SMG, 2005 WL 5190385, at *2-*3 (E.D.N.Y. Apr. 27, 2005) (not reported in F.Supp.2d) . (declining to prohibit the release of former Mayor Rudolph Giuliani’s videotaped deposition to the press because of public interest in the case, but prohibiting the parties and their counsel from making improper use of the deposition by selling it or using it for commercial gain); Condit v. Dunne, 225 F.R.D. 113, 119-20 (S.D.N.Y.2004) (declining to prohibit dissemination of the defendant television commentator’s videotaped deposition, in part, because of public interest in a former congressman’s defamation action against the defendant); Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y.2001) (holding that a former mayor defendant failed to establish good cause for a protective order restricting the use and reproduction of his video deposition based upon the potential for embarrassment before his constituents in light of the public interest in unfettered access to court proceedings, "particularly when they involve elected officials and the performance of their governmental responsibilities”). In this case, the individual Appellees are private citizens with no public role. This fact tends to support the circuit court's issuance of the temporary injunction.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    RESIDENTIAL SAVINGS MORTAGE, INC., a Florida corporation, Appellant, v. Ramona KEESLING and Potomac Mortgage Capital Incorporated, a Virginia corporation, Appellee.
    No. 2D10-3947.
    District Court of Appeal of Florida, Second District.
    June 29, 2011.

      Andrew M. Kassier of Andrew M. Kassier, P.A., Coral Gables, for Appellant.
    James A. Staack of Staack, Simms & Hernandez, P.A., Clearwater, for Appellee Ramona Keesling.
    No appearance for Appellee Potomac Mortgage Capital, Incorporated.
   SILBERMAN, Judge.

Ramona Keesling filed suit against Residential Savings Mortgage, Inc., based on claims of fraud and negligence regarding Residential’s solicitation of and inducement to Keesling to take out a new mortgage loan. Residential appeals a nonfinal order denying its motion to transfer venue from Pinellas County to Broward County. We reverse and direct the trial court on remand to transfer venue to Broward County where the causes of action accrued.

Keesling, who resides in Pinellas County, filed an unsworn, four-count complaint against Residential, the mortgage broker, and Potomac Mortgage Capital Incorporated, the mortgage lender, for (1) false information negligently provided, (2) negligence, (3) fraud, and (4) exploitation of the elderly by deception. All counts arose from Residential’s solicitation of Keesling by telephone to refinance her home. Keesling alleged that she anticipated reducing her existing monthly obligations by borrowing $120,000 from Potomac. She claimed that Residential represented that her total monthly mortgage payment would not exceed $700 but that Residential knew that, including escrows, her payments would be approximately $1200 per month. She asserted that Residential knew that she would not be able to pay the higher amount based on her fixed income.

Keesling alleged that the entire transaction was handled over the telephone and through the mail. She stated that she was unable to make the first payment on the loan and that she had to enter into a “reverse mortgage” to pay off the Potomac loan. She claimed that as a result, she lost all the equity in her home.

Residential filed a motion to transfer venue, alleging that Broward County was the only proper venue for Keesling’s suit under section 47.051, Florida Statutes (2007). Residential asserted that its principal and only place of business in Florida was in Broward County. Residential further argued that the claims alleged in the complaint accrued for venue purposes in Broward County and that there was no real property in litigation. See § 47.051.

Residential filed the affidavit of Darren Scott in support of the motion to transfer venue. The affidavit asserted that Scott was “the Director” of Residential and that Residential maintained only one office in Florida located in Broward County. The affidavit further asserted that “[t]he settlement/closing for the refinancing referred to in the Complaint took place on October 15, 2007[,] in Broward County, Florida, and the funds which were subsequently disbursed on October 19, 2007[,] to fund that refinancing were disbursed from Bro-ward County.”

The trial court conducted a hearing on the motion. Keesling did not file any affidavits or submit any evidence in opposition to the motion. The parties’ counsel presented legal argument centering on where the causes of action accrued. Keesling’s counsel did not dispute that Residential’s only office in Florida was in Broward County or that the closing occurred in Bi'oward County, although he reiterated that Keesling was solicited in Pinellas County and signed documents there. After hearing the motion, the trial court denied it without making any findings.

In ruling on a motion to transfer venue based on the allegation that the plaintiffs venue choice is improper, the trial court must resolve any relevant factual issues and then determine whether the plaintiff has made a legal venue selection. PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999). On review, the appellate court determines whether the trial court’s factual findings are supported by competent, substantial evidence or are clearly erroneous. Id. The appellate court reviews the legal conclusions de novo. Id.

Under the venue statute for corporations, a domestic corporation may be sued only (1) in the county where the “corporation has, or usually keeps, an office for transaction of its customai'y business,” (2) “where the cause of action accrued,” or (3) “where the property in litigation is located.” § 47.051. Keesling does not dispute that venue would be proper in Broward County because that is the only county in Florida where Residential has an office. And as to property in litigation, although the causes of action concern a refinancing on her home in Pinellas County, Keesling is seeking money damages. The real property is not in litigation by virtue of her claims, which sound in negligence, misrepresentation, and fraud. See McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 508-09 (Fla. 4th DCA 2010) (determining that real property was not in litigation when plaintiff sought money damages for negligence and fraud in connection with a closing on real property); Attorneys Title Servs. of Dade County, Inc. v. Wells, 468 So.2d 1120, 1121 (Fla. 4th DCA 1985) (recognizing that the property was not in litigation for venue purposes when lawsuit for an accounting and refund of alleged overpayment arose from prior mortgage foreclosure lawsuit). Thus, the only other way that venue would be proper in Pinellas County is if at least one of the causes of action accrued in Pinellas County. See §§ 47.041, .051; PricewaterhouseCoopers, 761 So.2d at 1184.

An unsworn complaint is sufficient to allege venue when the defendant has made no challenge to the plaintiffs venue selection. Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010). But “when a defendant challenges venue by filing an affidavit controverting the plaintiffs venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection.” Id. Here, Residential filed an affidavit stating that the loan closing occurred in Broward County and that the funds were disbursed from Broward County. Based on that factual assertion, Residential argued at the hearing that the causes of action accrued when the closing was completed in Broward County.

Keesling did not present any evidence to refute the assertion that the closing occurred in Broward County. Keesling’s counsel argued that Residential called Keesling in Pinellas County to solicit the loan, that Keesling signed the loan documents in Pinellas County, and that the transaction was conducted over the telephone and through the mail. Keesling’s counsel argued that there was no “nexus” between the loan transaction and the site of the mortgage broker. Counsel contended that the injury occurred to Keesling in Pinellas County where she suffered the loss of the equity in her home because she could not make the loan payments and had to resort to a reverse mortgage.

In PricewaterhouseCoopers, this court explained that “[t]he concept of ‘nexus’ is not used to determine whether a tort action accrued in Pinellas County for purposes of venue under sections 47.011 or 47.051.” 761 So.2d at 1134. For venue purposes, a tort claim accrues where the last event needed to make the defendant liable for the tort occurs. Id.; McDaniel Reserve Realty, 39 So.3d at 509. “Stated another way, a tort accrues in the county where the plaintiff first suffers injury.” McDaniel Reserve Realty, 39 So.3d at 509. This court has recognized that although “the plaintiff may suffer subsequent damages, even its greatest damage, in another county, the tort accrues with the first compensable damage.” PricewaterhouseCoopers, 761 So.2d at 1134.

Keesling’s complaint reflects that she first suffered damages when she became obligated on the loan. Although she may have signed the documents in Pinellas County, she did not contest the factual assertion that the closing was completed in Broward County. In PricewaterhouseCoopers, the plaintiff alleged claims of negligent misrepresentation, fraudulent misrepresentation, and a statutory cause of action for securities fraud in connection with the defendants’ misrepresentations of the financial soundness of a corporation in which the plaintiff acquired stock. Id. at 1132. This court determined that the causes of action accrued when the plaintiff acquired ownership of the stock at the closing in Orange County. Id. at 1134. In making this determination, the court stated that the fact that the plaintiff obtained financial documents in Pinellas County before the closing or that the stock certificates were later mailed to the plaintiff in Pinellas County did not alter where the causes of action accrued. Id.; see also McDaniel Reserve Realty, 39 So.3d at 510 (stating that fraud count accrued in county where closing occurred when the action was based on alleged misrepresentations that affected the value of the property and induced the plaintiff to enter into purchase contract).

Similarly, Keesling was first injured when she became obligated on the loan when the closing was completed in Bro-ward County. In addition to her not submitting any evidence to dispute that the closing was completed in Broward County, the settlement statement attached to her complaint indicates that the place of settlement was Sunrise, Florida, which is in Broward County. Had the loan not closed, Keesling would have no compensable damages. The closing was the last event needed to make Residential liable for the causes of action alleged.

Keesling also argues that this court should consider her amended complaint filed after the trial court denied the motion to transfer venue. The amended complaint was based on the same essential facts as the original compliant. It asserted claims of (1) false information negligently provided, (2) negligence, (3) violation of the Florida Deceptive and Unfair Trade Practices Act, and (4) exploitation of the elderly by deception. Keesling continued to seek money damages, and even under the amended complaint, she did not suffer any damages until she became obligated on the loan when the loan closed. Thus, although there is authority for this court to consider the amended complaint on the venue issue, see Fogarty Van Lines, Inc. v. Kelly, 443 So.2d 1070, 1071 (Fla. 2d DCA 1984), the amended claims also accrued when the loan closed.

Therefore, as required by the venue statute and the applicable cases, we reverse the denial of the motion to transfer venue.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . Potomac Mortgage Capital Incorporated, the other defendant in the trial court, did not file an appearance in this appeal.

      . The copy of the complaint contained in Residential’s appendix differs from the one contained in Keesling’s appendix in that the former omits page six, which sets out the claim of exploitation of the elderly by deception pursuant to sections 772.11, 825.101(3) and 825.103, Florida Statutes (2007). This discrepancy does not alter our analysis.


author: PER CURIAM.

text:
    James E. LANG, Petitioner, v. STATE of Florida, Secretary Florida Department of Corrections, et al., Respondents.
    No. 1D11-3947.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 31, 2011.
    James E. Lang, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

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

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


text:
    Cydney ABRAMS, Appellant, v. SEMINOLE COUNTY SCHOOL BOARD, Appellee.
    No. 5D10-1627.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Rehearing and Rehearing En Banc Denied Nov. 1, 2011.
    Tobe Lev, of Egan, Lev <& Siwica, P.A. Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, and Ned N. Julian, Jr., Sanford, for Appellee.
   PER CURIAM.

Cydney Abrams [“Abrams”] appeals a final order of the Seminole County School Board that terminated her employment as a teacher. We conclude that the Seminole County School Board’s [“School Board”] decision improperly disregarded the recommended order of the Administrative Hearing Officer assigned to hear the case. Accordingly, we reverse.

Abrams was employed by the School Board as a special education teacher at Winter Springs High School. On March 11, 2009, Abrams engaged in what she acknowledges was a prolonged, unprofessional, and inappropriate verbal exchange with one of her students, J.P., during her third period math class. Another student recorded twenty-six minutes of this exchange on her MP3 recorder.

The recording captures an almost frenzied shouting match between teacher and student. J.P. is highly agitated and engages in a rapid-fire argument with Abrams over a range of topics, during the course of which Abrams makes innumerable statements or comments that do not appear to be appropriate for a classroom teacher. At times, Abrams’s conduct appears to be calculated to reason with J.P., or to distract her, but other times, it seems to degenerate into a game of one-upmanship with the child that drives the child deeper into a frenzy. Even if the avalanche of words could be captured in an accurate transcript, listening to the audio is the only way this event can be appreciated. When J.P. complains that Abrams does not help her; Abrams tells J.P. she “must be crazy,” after which a sustained shouting match ensues between student and teacher as to which of them is crazy and who called whom bad names. When Abrams told J.P. that she will not do her work for her because she will have to do her own work in life, J.P. retorted that she will have a better life than Abrams, prompting Abrams to reply, “Child, that’s a joke” that she could look at J.P. and tell what her life was going to be.

J.P. repeatedly asked to leave the class, but Abrams would not allow it. J.P. said that Abrams “always talks a bunch of crap” and called Abrams an idiot. Abrams responded in kind. J.P. told her: “You don’t know shit.” Abrams responded: “And J.P. don’t have to know shit. I done told you curse words don’t bother me, baby.” J.P. asked Abrams: “What the fuck are you gonna do?” Abrams responded: “I don’t have to do a fucking thing, J.P. What the fuck are you gonna do? Are you just gonna use profanity and think that’s gonna shock me?”

As the two continued to argue, Abrams asked J.P. what caused her to “pop off’ on her when she simply told her to stop talking to another student. J.P. accused Abrams of being a poor teacher; “You was one of my favorite teachers, now you don’t do nothing.” The two then argued about Abrams’s handling of another student, B. Abrams again asked J.P. what was going on with her; it was the first time in three years that she had seen her like this. Abrams asked if she had been smoking or drinking, which J.P. referred to as a “stupid” question. Then, in another extended portion, Abrams repeatedly told J.P. to go to the administration and to ask to be removed from her class because she (Abrams) was a “lousy idiot of a teacher.” When Abrams responded that she does “a damn good job” as a teacher, J.P. said that all the students only like Abrams because she takes them on field trips and gives them food. Abrams told J.P. that she does not have to worry about that because she will not be going on any more field trips. Abrams then called another teacher and told her that because J.P. had been cursing at her and had been so disrespectful and verbally abusive, J.P. will no longer be able to go on field' trips. The withdrawal of this privilege appears to have made J.P. even more distraught and led to an argument between Abrams and J.P. over what curse words had been used and by whom. Finally — mercifully—the bell rings and the class ends.

As a result of this incident, Abrams was suspended, first with pay and later without pay. After an investigation was conducted, the Superintendent of Schools petitioned the School Board to terminate Abrams’s employment for just cause on the grounds that her actions constituted conduct unbecoming a School Board employee and misconduct in office. Abrams requested a due process hearing.

The hearing was held on November 30 and December 1, 2009, before Administrative Law Judge, R. Bruce McKibben [“ALJ”]. The School Board presented the testimony of four witnesses: John Reic-hert [“Reichert”], the Executive Director of Human Resources for the School Board; Michael Blasewitz [“Blasewitz”], the principal of Winter Springs High School; P.M., the father of a student in Abrams’s class, and Abrams. Over Abrams’s objection, the recording of the exchange was admitted into evidence. Abrams presented the testimony of ten witnesses: Dr. Joseph Trim [“Trim”], a mental health counselor; Cornelius Pratt [“Pratt”], the former assistant principal at Winter Springs High School; Jimmie Blake [“Blake”] and Margo Rolle [“Rolle”], special education teachers; Joyce Smith [“Smith”], a paraprofessional; T.L., L.R-B, M.M., and D.B., the parents of students taught by Abrams; and Abrams.

Reichert testified that he recommended to the Superintendent that Abrams be immediately suspended and her employment terminated. This recommendation was based on the degree of misconduct in this incident combined with two letters that were already in Abrams’s personnel file. One letter addressed Abrams’s inappropriate unprofessional communication with another staff member. Another letter dealt with Abrams’s inappropriate communication and profanity with students.

Reichert opined that the intention of and duration of Abrams’s conduct could not be a mere lapse of judgment: he characterized it as embarrassing to the student and disparaging to the student and her family, a violation of student confidentiality and the school’s civility policy. Reichert said it was “one of the worst cases of misconduct that five seen in my time in education.” “This was an ongoing, intentional, willful act, in my opinion, that the teacher was trying to exasperate, irritate, and really degrade the student in the presence of other students.”

On cross-examination, Reichert admitted that Abrams’s evaluations from 2004 to 2008 were satisfactory. Reichert also admitted that he has no special expertise with exceptional student education and did not meet with J.P. or her mother.

Abrams had Reichert identify the disciplinary files of five other Seminole County teachers and one employee for the use of profanity, violation of the civility policy, or violation of the Code of Ethics or Principles of Professional Conduct, and these exhibits were admitted into evidence on behalf of Abrams. Of the six, only three involved students or the classroom. In the first case, a student was giving a female teacher a hard time in letting her pass down the stairs, and a male teacher told the student “to get the F out of the way.” There were no prior issues with this teacher. He was reprimanded, recommended for a two-day suspension, and notified that subsequent use of profanity could result in termination of employment. In the second case, a teacher became upset during a staffing meeting regarding her son and walked off campus indicating that she was “sick of this place.” She did not have permission to leave the campus and left her students unattended. She was technically “AWOL” for the remainder of the day. The issue did not involve profanity. She was suspended for three days. The third case involved a female teacher who made inappropriate comments, including some profanity, in the classroom. A two-day suspension without pay was recommended.

Blasewitz testified that he supported the Superintendent’s recommendation to terminate Abrams’s employment “because of the prolonged and continuous argument that took place in her classroom that resulted in disparaging remarks, profanity, unprofessional behavior over a good period of time.” Word about the incident leaked out on campus, and a number of teachers expressed concern, disappointment and dismay about what they had heard. Bla-sewitz contacted the parents of the students in Abrams’ class, and they expressed anger, outrage, and shock about the incident. J.P. was immediately moved to another class, and at least two students asked to be moved because they were afraid of Abrams. In his opinion, Abrams’s conduct impaired her effectiveness as a teacher: “In my twenty plus years of being a principal, it’s one of the most unprofessional exhibits I’ve ever been exposed to.” On cross-examination, Blasewitz admitted that he could not speak to what might happen if Abrams were transferred to a different school. Blasew-itz also admitted that the two students who sought to be removed from Abrams’s class were among those who had recorded the incident and were worried about retribution from Abrams if they remained in her classroom.

P.M. testified that he listened to the tape and said that Abrams “had dug her own grave.” Instead of arguing with the student, Abrams should have called security and had her removed from the class. P.M. thought that Abrams deserved another chance, but should not teach special education students. P.M. had never met Abrams, and his son has not had any problems with Abrams.

Abrams testified that she has a Bachelor of Science degree from the University of Florida and a Florida Department of Education Professional Teaching Certificate. Abrams is certified to teach kindergarten through twelfth grade for Exceptional Student Education [“ESE”] and Emotionally Handicapped students. Abrams began teaching in 1992, and started teaching at Winter Springs High School in July 2002.

Abrams taught J.P. twice a day, in her social studies class and in her third period math class, which was classified for the educable mentally disabled [“EMD”]. During the exchange with J.P., Abrams was handing out papers and assisting or distributing information to the four remaining students in the class. Abrams was unaware that a student was recording the dispute.

Normally, as an ESE teacher, Abrams would ask a student who was upset to sit down, be quiet, and begin work. If the student did not comply, Abrams would have the student removed from the class. In hindsight, Abrams admitted that she should have done this with J.P., but J.P. “being the type of student she was with me, I did not send her out.” J.P. did not appear to be a threat and “the relationship that I had with her did not merit [removal].”

Abrams said she and J.P. had a wonderful rapport, a wonderful relationship. Abrams was like a mother to her and she would often discuss personal issues with Abrams. In her first period class, J.P. had confided in Abrams that her family was possibly going to leave Florida and that she did not want to go.

By the third period math class, J.P. was a different student. As J.P. entered the class, one of her good Mends was being sent out with a referral to the Dean’s Office. Abrams believes that the referral aggravated J.P. J.P. came to class upset and Abrams told her “shake it off” and get to work. J.P. started talking to another student and Abrams told her to move to the front of the classroom. “And one thing led to another....”

Abrams had been told that J.P. was a disciplinary problem; she was feisty but “when she would get kind of off track, I could pull her back in.” Abrams was not surprised at the words that J.P. was using; J.P. curses and uses profanity. J.P. can be very emotional and Abrams used to tease her that “she’s my little drama queen.” Abrams was surprised that J.P. said the things she did about hating her because “I was her mom first period, third period, I hate you, you never meant us any good, so I was very surprised.”

Abrams admitted that her conduct was extremely unprofessional and agreed it supported suspension, but not termination: “I don’t think those twenty-six and-a-half minutes can encapsulate the nineteen years of professional services I’ve done with education.”

Abrams explained that the 2004 reprimand involved an emotionally handicapped student who was placed in a classroom with EMD students. The student used profanity on several occasions and Abrams decided “to make an instructional lesson about what words were and were not appropriate to be used in the classroom. As a result I was called into the dean’s office and a written reprimand was provided.” The words that the student was using (hell, damn, and ass) were part of the lesson that they were not supposed to be used in a classroom and were not uttered in anger.

Dr. Trim was accepted as an expert in mental health counseling and evaluating and counseling teachers with workplace issues. Dr. Trim met with Abrams and reviewed a transcript of the incident. Dr. Trim did not listen to the recording but assumed that it was very intense, angry, abrasive, and unprofessional. Dr. Trim was of the opinion that there was a low risk of Abrams repeating the behavior in the short term because the event had been significantly traumatic for her. In the long term, Abrams would benefit from anger management training and counseling. Abrams had accepted responsibility, expressed her remorse and willingness to go to counseling; therefore, Dr. Trim opined that Abrams would not have a further occurrence.

Pratt testified that his primary responsibilities included supervision of the ESE Department; he was Abrams’s immediate supervisor. Abrams did a great job of teaching and was very concerned about the students. Pratt often sent teachers who were having trouble in the ESE Department to Abrams for advice. Pratt used Abrams as a “lead” teacher to help new or struggling teachers. On a scale of one to ten, Pratt would give Abrams’ classroom management a nine. Most of her students had behavior problems as well as learning problems. Abrams very seldom wrote a referral on a student and tried to handle problems within the classroom. Abrams always received very good evaluations.

Pratt is familiar with J.P., who, like many ESE students, struggled academically, which sometimes showed in her emotional behavior. J.P. wanted to change classes quite often, and she has been challenging to other teachers in terms of wanting to have her own way. “She would become disrespectful, which is not unusual for some students who struggle with her disability. When they’re academically challenged, there are sometimes [sic] when they’re not going to be taken out of a class immediately they will act out knowing that eventually that would constitute a change.”

Pratt believed that teaching special education students was a “gift” because of the challenge and the need for nurturing the students. Abrams nurtured her students and the students, even J.P., playfully referred to her as “mother.” After the incident, J.P. came to him and asked what was going to happen to Abrams; J.P. told Pratt that she did not want Abrams to lose her job.

When the information about the incident initially came to Pratt, he contacted the principal, Blasewitz. When Blasewitz listened to the recording, his comment was “we got her now.” Even though Pratt customarily makes recommendations for discipline of teachers, Pratt was not asked to do so in this case.

Pratt expressed the view that Abrams’s behavior was inappropriate and warranted disciplinary action, but not termination. “I find it very hard to deal with because other people on the campus use such language and — you know, I mean, you have to terminate a whole lot of people if you’re gonna do that, starting with your coaching staff, the entire coaching staff.” Severe profanity happens at all sporting events. Pratt has often witnessed coaches chastise students using profanity, and they were not reprimanded; the excuse always given is that it is the “culture” of coaching.

Blake testified that he has known Abrams since 2004. Blake was sent by an administrator to observe Abrams during his internship because they liked her teaching styles and methods. Abrams helped Blake when he came to Winter Springs High School as a new teacher, and she was his mentor. Abrams was like a mother figure to the students; she was very caring and concerned about them. Abrams would pay the fees for field trips and buy food for the students with her own money. Blake did not believe that Abrams had lost her effectiveness as a teacher and that the incident was not characteristic of what he observed in her classroom over the years.

Rolle testified that she knew Abrams from middle school where they both taught. In her opinion, Abrams was an “awesome” teacher. The students loved her and called her “mom” and “auntie.” Rolle heard the recording of the incident, but still respects Abrams as a colleague and believes that she can be an effective teacher.

Smith testified that she had been Abrams’s instructional assistant until 2008. At that time, Smith was told that the School Board no longer had the funding for an EMD assistant. Abrams was a very good teacher and actually taught the students; some of the other teachers would just show movies most of the day. Smith never saw Abrams act in a harsh or demeaning manner.

T.L., who is also a teacher, testified that Abrams taught his autistic son for three years. T.L. had a very favorable impression of Abrams; she cared about his son’s needs. T.L. retained confidence in Abrams’s ability.

L.R-B., also an educator, testified that Abrams taught her autistic son for three years. Abrams was an advocate for her son and was able to get him to do what was needed to be successful; as a result, her son was on the Honor Roll. L.R-B’s son loves Abrams and was very disappointed when she was removed from the classroom. L.R-B believes that “enough buttons were pushed where she at that moment got lost in that” and would “absolutely” put Abrams back in the classroom.

M.M. testified that Abrams taught her educable mentally disabled son for three years. M.M. was very impressed with Abrams, who was a very caring teacher. M.M. still has confidence that Abrams can be an effective teacher.

D.B. testified that Abrams taught her son in the EMD program for four years. She and her son had a good experience with Abrams. D.B. opined that Abrams “could have just had a bad day. The girl might have had pushed her buttons.”

The ALJ concluded that the School Board proved that Abrams’s behavior was inappropriate and a violation of the standard of conduct expected of teachers. To determine whether Abrams’s behavior constituted “just cause” for termination of employment, the ALJ looked to section 1012.83(l)(a), Florida Statutes, for the definition of “just cause,” which includes “misconduct in office.” “Misconduct in office” is defined under the Florida Administrative Code as a violation of the Code of Ethics and Principles of Professional Conduct for the Education Profession that is “so serious as to impair the individual’s effectiveness in the school system.” The ALJ concluded that the School Board did not prove that Abrams’s effectiveness in the school system had been impaired. The incident, while egregious, was not indicative of Abrams’ normal demeanor and Abrams has shown remorse and willingness to prevent further outbursts. The ALJ recommended that the School Board find that Abrams’ behavior was inappropriate, uphold her suspension without pay to date, reinstate her as a teacher, and place her on probation for two years.

Both sides filed exceptions to the recommended order. The School Board rejected two paragraphs of the recommended order as not being supported by the evidence, and made additional findings of fact. The School Board rejected paragraph sixteen, in which the ALJ found that the argument between J.P. and Abrams carried an underlying hint of the long and friendly relationship between the parties, and paragraph twenty-six, in which the ALJ found that Reichert’s recommendation that Abrams’ employment be terminated lacked weight because he was unfamiliar with other salient facts. The School Board added paragraphs twenty-seven through thirty-one, finding that Blasewitz had been contacted by teachers who expressed concern, dismay, and disappointment about the incident, that some parents of students in the class expressed anger, outrage, and shock regarding Abrams’ conduct, that J.P. was transferred to another class, that two other students requested transfers, and that Blasewitz believed that Abrams’ behavior constituted one of the most severe exhibitions of unprofessional conduct that he had encountered and had undermined her effectiveness as an educator.

The School Board also substituted several of its own conclusions of law. One of these was a conclusion that “conduct unbecoming a School Board employee” was a basis for termination separate and apart from misconduct in office, that it was supported by the record, and that the School Board proved that Abrams’ effectiveness in the school system had been impaired. The School Board also concluded that Abrams’ conduct was far more serious than conduct by other teachers who had only been suspended. The School Board finally determined that the ALJ’s findings of fact as supplemented by the School Board established a basis to terminate Abrams’ employment.

Section 120.57(1)(£), Florida Statutes (2009), provides that an agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and the interpretation of administrative rules over which it has substantive jurisdiction, but when rejecting or modifying a conclusion of law, the agency must state with particularity its reasons for rejecting or modifying the conclusion and must make a finding that its substituted conclusion is as or more reasonable than that which was rejected or modified. Moreover, the agency may not reject or modify findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.

The termination of School Board employees is governed by section 1012.33, Florida Statutes, and Rule 6B-4.009 of the Florida Administrative Code. Blackwood v. Div. of Admin. Hearings, 2 So.3d 386, 387 (Fla. 4th DCA 2009). Section 1012.33, Florida Statutes (2008), provided in part:

§ 1012.33. Contracts with instructional staff, supervisors, and school principals
(l)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
(4)(e) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any school principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education.
(6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (l)(a).

(Emphasis added). Rule 6B-4.009 provides in part:

6B-4.009. Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, F.S. [now section 1012.33]. The basis for each of such charges is hereby defined:
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

(Emphasis added). In the “Conclusions of Law” portion of the recommended order, the AL J stated:

35. The School Board did not prove, by a preponderance of the evidence, that [Abrams’] effectiveness in the school system had been impaired by her actions. The incident, while egregious in its own right, does not seem indicative of [Abrams’] normal demeanor. Despite having engaged in the admittedly wrong behavior, [Abrams] has shown the requisite remorse and willingness to prevent any further outbursts.

The School Board substituted the following conclusion for the ALJ’s conclusion:

The School Board proved, by a preponderance of the evidence, that [Abrams’] effectiveness in the school system has been impaired by her actions.

Abrams contends on appeal that the ALJ’s “conclusion” was in reality a finding of fact and the School Board erred by substituting its own finding. Abrams points out that the fact/law label used by the agency is not determinative. See, e.g., Pillsbury v. State, Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1041-42 (Fla. 2d DCA 1999). She relies on several cases in which the courts refer to the issue of a teacher’s impaired effectiveness as an issue of fact. McNeill v. Pinellas Cnty. Sch. Bd., 678 So.2d 476, 477 (Fla. 2d DCA 1996) (“We reverse because there is substantial competent evidence in the record to support the hearing officer’s findings that McNeill’s conduct did not impair his effectiveness in the community or the school system.”); McKinney v. Castor, 667 So.2d 387, 389 (Fla. 1st DCA 1995) (“In the present case, there was a dearth of record evidence to support a finding that McKinney’s conduct ... was ‘sufficiently notorious’ to bring McKinney and the education profession ‘into public disgrace or disrespect and impair [McKinney’s] service in the community,’ or that McKinney’s conduct seriously reduced his effectiveness as an employee of the school board.”); Braddock v. Sch. Bd. of Nassau Cnty., 455 So.2d 394, 395 (Fla. 1st DCA 1984) (“The issue with which we are here concerned is whether there is in the record competent substantial evidence to support the Board’s finding that Braddock’s conduct and behavior were of such character as to result in a diminution of his effectiveness as a teacher. We conclude that there is not.”).

Abrams acknowledges that this Court in Purvis v. Marion County School Board, 766 So.2d 492 (Fla. 5th DCA 2000), established that impaired effectiveness may be decided as a matter of law in cases where impaired effectiveness is inherent in the nature of the misconduct. At the heart of the School Board’s position in this appeal is its view that Abrams’s misconduct was of such a nature and extent that the statutory test is met as a matter of law. Abrams’s position is that her misconduct, when examined in the context of her overall job performance and considered in light of all the facts, did not, as a matter of law, establish a loss of effectiveness as a teacher. Abrams points out that the School Board’s conclusion of impaired effectiveness required the School Board to create new findings and conclusions not found by the ALJ. Packer v. Orange Cnty. Sch. Bd., 881 So.2d 1204, 1207 (Fla. 5th DCA 2004) (if there is competent substantial evidence to support the ALJ’s findings of fact, the agency may not reject them, substitute its findings, or make new findings). Finally, Abrams urges that three of the new findings were supported only by hearsay. Forehand v. Sch. Bd. of Gulf Cnty., 600 So.2d 1187 (Fla. 1st DCA 1992).

The School Board rests its position on Purvis and Walker v. Highlands County School Board, 752 So.2d 127 (Fla. 2d DCA 2000), which held that the teacher’s loss of effectiveness in the school system in that case was “patent and obvious.” The School Board urges that the misconduct in this case was more serious and even more egregious than the misconduct in Purvis and Walker because Abrams repeatedly and intentionally publicly humiliated and embarrassed J.P. during almost an entire class period and ignored the other students.

We apply well-established principles here: while an administrative agency may reject conclusions of law without limitation, neither an agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent substantial evidence in the record. Maynard v. Fla. Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). If there is competent substantial evidence in the record to support the ALJ’s findings of fact, the agency may not reject them, modify them, substitute its findings, or make new findings. Rogers v. Dep’t of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005). Nor may the agency reject a finding that is substantially one of fact simply by treating it as a legal conclusion. Maynard, 609 So.2d at 145.

In this case, the School Board improperly rejected paragraph sixteen, in which the ALJ found that the tone of the argument, though heated, carried an underlying hint of the long and friendly relationship between Abrams and J.P. The School Board also improperly rejected paragraph twenty-six in which the ALJ found that Reichert’s recommendation, while reasonable based on his experience, lacks weight due to his unfamiliarity with other salient facts. These findings were supported by the evidence.

Nor was the School Board free to add new findings of fact. Fla. Power & Light Co. v. State, 693 So.2d 1025, 1026-27 (Fla. 1st DCA 1997). The School Board expressly based termination of Abrams’ employment on the “findings of fact made by the ALJ as supplemented by the School Board.” (Emphasis added).

In Resnick v. Flagler County School Board, 46 So.3d 1110 (Fla. 5th DCA 2010), this court reversed an order terminating the employment of a school nurse where the Flagler County School Board had taken an approach similar to the school board. In that case, the ALJ found only two instances of minor misconduct and recommended that the school board discipline the nurse by imposing a written reprimand and requiring him to undergo a medical evaluation. The school board substantially changed the ALJ’s findings of fact, conclusions of law, and recommended penalty, with the result being the termination of employment. This Court concluded that the school board had erred in so doing:

In a fact-driven case such as this, where an employee’s conduct is at issue, great weight is given to the findings of the administrative law judge, who has the opportunity to hear the witnesses’ testimony and evaluate their credibility. An administrative agency such as the School Board may not modify an administrative law judge’s factual findings “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence.” § 120.57(1)(Z), Fla. Stat. (2007). If the administrative law judge’s findings are supported by competent substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent substantial evidence. An agency abuses its discretion when it improperly rejects an administrative law judge’s findings. We conclude the School Board abused its discretion in this case when it modified the factual findings in the recommended order. The administrative law judge’s findings were supported by competent substantial evidence. The School Board improperly substituted certain of its own findings to support the desired result of termination. When “the reasons for the change are legally insufficient, it is entirely appropriate to remand with instructions to approve the hearing officer’s recommendations.” Dep’t of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla.1988). Accordingly, we reverse and remand with directions to the School Board to adopt the administrative law judge’s recommended order.

46 So.3d at 1112-13. (Citations omitted).

The facts and circumstances involved in the various cases addressing the question of misconduct serious enough to impair a teacher’s effectiveness are so varied that attempting to compare them side-by-side and weigh the nuances is unsatisfactory and unfair to both the teacher and the School Board. As the cases suggest, the question of the seriousness of the misconduct in relation to impairment of a given teacher’s effectiveness is most often a question of fact. The issue of impaired effectiveness can be decided as a matter of law in an appropriate case, but should be decided on a individualized basis. It is a close question whether the conduct in this case meets the Purvis/Walker threshold, but we conclude it does not. Abrams’s misconduct must be considered in the context of the classroom event and in the context of the teacher’s overall career and standing. We cannot say, as a matter of law, that Abrams’ misconduct satisfies the test for dismissal. The hearing officer considered all the facts, and found that it did not. Accordingly, we reverse and remand to the School Board to enter a final order consistent with the recommended order of the Administrative hearing officer.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

GRIFFIN, J., dissents, without opinion.

      . Abrams's classroom has a telephone and she could have called for assistance, but she did not have an assistant in her class, so Abrams could not have stepped outside with J.P.

      . The collective bargaining agreement between the Seminole Education Association and the School Board provides that:
      F. Any dismissal or disciplinary action for continuing contract teachers or professional service contract teachers shall be for just cause in compliance with Florida Statutes and the Florida School Code.

      . Abrams also points out that some courts have referred to the ALJ’s determination on loss of effectiveness as a "conclusion” but argues that the courts nonetheless treat the conclusion as one of fact rather than law, citing MacMillan v. Nassau County School Board, 629 So.2d 226, 227 (Fla. 1st DCA 1993).

      . The School Board seeks affirmance under the alternative ground that its addition of a conclusion in the final order that just cause existed for Abrams’ dismissal based on "conduct unbecoming” a teacher would support the dismissal decision. The contention lacks support, and we conclude it has no merit.


text:
    Sammy GIBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4455.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Rehearing Denied Nov. 3, 2011.

      Sammy Gibbs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

WOLF, LEWIS, and RAY, JJ., concur.


text:
    Thomas COOK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-1520.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Rehearing Denied Nov. 3, 2011.
    Thomas Cook, pro se, Appellant.
    Anthony Andrews, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Thomas Cook seeks review of a circuit court order denying his petition for writ of mandamus. We treat his notice of appeal as a petition for second-tier certiorari review, see Florida Rule of Appellate Procedure 9.040(c), and we deny the petition because Mr. Cook has not demonstrated entitlement to relief. See generally Sheley v. Florida Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998).

DENIED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: DAVIS, J.

text:
    Garnett MELTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3439.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Rehearing Denied Nov. 3, 2011.

      James C. Banks of the Law Office of Banks & Sweeting, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

Appellant, Garnett Melton, argues on appeal that the trial court erred in denying his motion to suppress and that his convictions and sentences for the sale, manufacture, delivery, or possession with intent to sell, manufacture, or deliver methamphetamine in violation of section 893.13, Florida Statutes, (Count 1) and trafficking in methamphetamine in violation of section 893.135, Florida Statutes, (Count 2) violated his constitutional protection against double jeopardy. We find no error with the trial court’s ruling on Appellant’s motion to suppress. We do, however, agree that Appellant could not be convicted on Counts 1 and 2 when the underlying conduct, i.e., possession, was the same for both offenses. See Gibbs v. State, 698 So.2d 1206, 1210 (Fla.1997) (“[I]f prosecution is for the same conduct under both statutes [sections 893.13 and 893.135], a conviction under more than one of the statutes is a violation of double jeopardy principles.”); Williamson v. State, 859 So.2d 553, 554 (Fla. 1st DCA 2003) (“We conclude that the defendant’s convictions for both trafficking in cocaine and possession of cocaine with intent to sell violate the double jeopardy clause of the Fifth Amendment .... ”); see also Howard v. State, 916 So.2d 824, 824-25 (Fla. 2d DCA 2005) (holding that the appellant could not be convicted and sentenced for possession of methamphetamine and trafficking and noting that “[w]here, as here, the trafficking, offense is based on possession, the conduct element is the same for both trafficking and possession”). We reject the State’s argument that the language “notwithstanding the provisions of s. 893.13” found in section 893.135 requires a different result.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND with instructions that the trial court vacate Appellant’s conviction on Count 1.

PADOVANO and ROWE, JJ., concur.


author: JACOBUS, J.

text:
    Kenneth Michael HICKS, Appellant/Cross-Appellee, v. Kurt WIPPERFURTH, Appellee/Cross-Appellant.
    No. 5D09-4436.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2011.
    Rehearing and Rehearing En Banc Denied Nov. 1, 2011.

      Bruce A. Hanna, Robert Taylor Bowling, Kathryn D. Weston and Katherine Hurst Miller of Cobb Cole, Daytona Beach, for Appellant/Cross-Appellee.
    Barbara Green, of Barbara Green, P. A., Coral Gables, and Kenneth J. McKenna and Anthony Sos of Dellecker Wilson King McKenna & Ruffier, Orlando for Appel-lee/Cross-Appellant.
   JACOBUS, J.

Kenneth Michael Hicks timely appeals an order granting Kurt Wipperfurth’s motion for new trial. Wipperfurth filed a cross-appeal, raising several issues. After considering all the issues, we conclude the trial court did not err in granting Wipper-furth’s motion for a new trial and, therefore, affirm.

This case stems from an automobile accident involving both Hicks and Wip-perfurth. Based on that incident, Wip-perfurth sued Hicks, claiming Hicks negligently operated his truck and improperly changed lanes causing his vehicle to strike the car driven by Wipper-furth. After a four-day trial, the jury returned a verdict in favor of Hicks, finding no negligence on his part. Wip-perfurth subsequently filed a motion for new trial based on juror nondisclosure. That motion alleged, in part, that a juror failed to disclose: (1) prior felony convictions, and (2) that he had been involved in several automobile accidents in the past. The motion further alleged that one of the accidents occurred fewer than two years before the trial and the juror was found to be at fault for improperly changing lanes.

The trial court granted Wipperfurth’s motion after concluding that the undisclosed information was material. This conclusion was based on the finding that, had plaintiffs counsel known of the undisclosed information, it “may well have led to a peremptory challenge.” On appeal, Hicks argues that the trial court’s finding was based on the wrong standard.

In De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), the supreme court set out the standards for granting a new trial based on juror nondisclosure during voir dire. In determining whether a juror’s nondisclosure of information requires a new trial, courts use a three-prong test. Id. at 241. First, the party requesting a new trial must show that the undisclosed information “is relevant and material to jury service in the case.” Id. Second, the complaining party must prove that the juror concealed the information. Id. And third, the party must show that the “failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id. As to the first prong, the supreme court would later explain that materiality is shown only “where the ‘omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.’ ” State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla.2002) (quoting Roberts v. Tejada, 814 So.2d 334, 340 (Fla.2002)).

Here, the trial court applied a standard which asked whether a peremptory challenged “may” have been exercised if the undisclosed information were known. This is not the standard discussed in Levine. Normally we would reverse and remand the matter to the trial court for a determination as to whether or not a new trial should be granted based upon the proper standard; however, the trial judge below has since retired from the bench and the parties agreed at oral argument that this court is in just as good a position as the trial court to determine whether or not a new trial is appropriate under these circumstances.

We have reviewed the record in its entirety and it is apparent that Wipper-furth’s counsel met all the factors set forth in De La Rosa. Further, we find that the undisclosed information prevented counsel from making an informed judgment, which in all likelihood would have resulted in a peremptory challenge. Therefore, we agree that a new trial should be granted. The remaining issues on appeal are without merit and are affirmed. The cross-appeal is moot, and the order granting a new trial is affirmed.

NEW TRIAL GRANTED, remaining issues AFFIRMED, Cross-Appeal MOOT, Order Granting New Trial is AFFIRMED.

EVANDER and COHEN, JJ., concur.


text:
    Lee Richard SNYDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4766.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2011.
    Rehearing Denied Nov. 4, 2011.
    Lee Richard Snyder, pro se, Petitioner.

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

DISMISSED. See Fla. RApp. P. 9.141(d)(5).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Michael A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2528.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Rehearing Denied Nov. 1, 2011.
    Michael A. Johnson, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Dep’t of Corrections v. Mattress, 686 So.2d 740, 741 (Fla. 5th DCA 1997) (Defendant’s “entitlement to relief, if any, should be obtained through administrative channels” because “an award of credit after sentencing is a matter for DOC rather than the trial court....”).

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


text:
    Odalis CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1441.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.
    Rehearing Denied Nov. 3, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the order clarifying Odalis Cruz’s sentence. However, we strike the imposition of the $2000 fine, the related $100 surcharge, and the $20 Crime-stoppers fine because, as the State concedes, such discretionary fines are not authorized under the habitual violent felony offender sentencing scheme. Wright v. State, 48 So.3d 926 (Fla. 1st DCA 2010).

Sentence AFFIRMED; specified fines STRICKEN.

SAWAYA, MONACO and TORPY, JJ., concur.