author: KELLY, Judge.

text:
    J. Robert BROWN, as Trustee under the Buckeye Road Trust Agreement dated April 15, 2005, Appellant, v. CHAMAX, LLC, a Florida limited liability company; Tom Chapman; Mark Schreiber; and Larry Maxwell, Appellees.
    No. 2D09-2931.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2010.

      John Marc Tamayo and Barbara W. Davis of Valenti Campbell Trohn Tamayo & Aranda, Lakeland, for Appellant.
    Joseph P. Mawhinney and Natasha S.W. Rieger of Clark, Campbell, Mawhinney & Lancaster, P.A., Lakeland, for Appellees.
   KELLY, Judge.

J. Robert Brown, as Trustee under the Buckeye Road Trust Agreement, appeals a final judgment entered in favor of appel-lees Tom Chapman, Mark Schreiber, and Larry Maxwell after the trial court dismissed the Trust’s fraud claims against them. We find merit in the Trust’s argument that the trial court should have permitted it to amend its claims for fraudulent inducement and in its argument that the trial court erroneously concluded that its other fraud claims were barred by the economic loss rule.

In early 2005, Lerian Investment Corporation entered into an agreement with Chamax, LLC, for the purchase of undeveloped land in Manatee County. The parties contemplated that Lerian or its successors or assigns would subdivide the property after obtaining the proper zoning for development of a residential community. During negotiations, Tom Chapman, a manager of Chamax, and Mark Schreiber, a vice-president of Chamax, told Lerian’s owner and president, Richard Neff, that the purchase agreement provided Lerian parity of terms with the purchase agreement entered into by Ryland Homes, the purchaser of an adjacent parcel.

After Lerian and Chamax entered into the purchase agreement, Neff created the Buckeye Road Trust to purchase and develop the property. Lerian then assigned the purchase agreement to the Trust. Neff was the Trustee when the Trust accepted the assignment. After failing to obtain the necessary zoning, the Trust terminated the purchase agreement. Cha-max sued the Trust alleging that it had breached the purchase agreement, and the Trust filed a counterclaim.

During discovery, the Trust obtained information that caused it to amend its counterclaim to add several fraud counts. Some of the counts alleged that the Trust had reimbursed Chamax for costs that Chapman, Schreiber, and Larry Maxwell, an owner and officer of Chamax, had represented were actual costs Chamax had incurred when in fact they were not. The other counts asserted claims that the Trust was fraudulently induced into accepting the assignment of the purchase agreement. Those counts allege that Chapman and Schreiber’s representations regarding parity with Ryland were false, that they knew they were false, and that Neff relied on those representations not only in having Lerian enter into the purchase agreement, but also in having the Trust take the assignment of the agreement. The Trust alleges it would not have accepted the assignment had it known about the lack of parity.

Chapman, Schreiber, and Maxwell moved to dismiss the fraud claims for failure to state a cause of action. Pertinent to this appeal, Chapman and Schreiber argued that the Trust’s fraudulent inducement claims failed because the Trust did not allege and could never allege that Chapman and Schreiber intended to induce the Trust to rely on the representations regarding parity with Ryland. Chapman, Schreiber, and Maxwell argued the other fraud claims were barred by the economic loss rule. The trial court dismissed all the claims with prejudice concluding that the allegations in the fraud counts “do not show that the counter-plaintiff was assigned such claims or was the intended victim of the alleged fraud or had any personal dealings with the counter-defendants.” The trial court noted that in making its decision it was “aware of the allegation that Richard Neff was the President of Lerian Investment Corporation at the time it entered into the real estate contract with Chamax, and at the time the contract was assigned to Buckeye Road Trust he was a trustee.”

On appeal, the Trust argues that although Chapman and Schreiber made the alleged misrepresentation regarding parity to Lerian, it has nevertheless stated a cause of action for fraudulent inducement as to the Trust because Neff relied on the misrepresentation, not only in having Lerian enter into the purchase agreement, but also in having the Trust accept an assignment of the purchase agreement. To state a cause of action for fraudulent inducement, however, it is not enough to merely allege reliance. The complaint must allege that the representor intended that the misrepresentation would induce another to rely on it. Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999). The Trust has not alleged, nor has it claimed it could allege, that at the time they made the representation, Chapman and Schreiber intended to induce the Trust, which did not exist at the time, to rely on it. Although Neff eventually represented both Lerian and the Trust, the Trust has never alleged that at the time Chapman and Schreiber made the representations to Neff as president of Lerian, they knew he would later create the Trust and become its Trustee. Accordingly, we agree with the trial court that the Trust failed to state a cause of action for fraudulent inducement.

Having concluded that the trial court properly dismissed those claims, we turn to the Trust’s argument that the trial court should have given it another opportunity to amend those claims. At the hearing on the motion to dismiss, the Trust argued that if the court concluded that it had failed to state a cause of action, it should be allowed to amend the counterclaim to allege that Lerian had assigned its fraudulent inducement claim to the Trust. The Trust stated that Lerian could still assign its claim to the Trust, and thus, it could amend the counterclaim to reflect that assignment. The trial court’s order dismissing the counterclaim with prejudice does not set forth the basis for the trial court’s refusal to permit the amendment.

This court’s standard for reviewing a lower court’s ruling on a motion to amend a complaint is an abuse of discretion. See Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001). The “refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993). Typically, leave to amend is freely granted. See, e.g., Highlands Cnty. Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So.2d 90 (Fla. 2d DCA 1980); see also Fla. R. Civ. P. 1.190(a) (“Leave of court shall be given freely when justice so requires.”).

The appellees do not contest the Trust’s claim that Lerian can still assign its fraudulent inducement claim to the Trust, and they have not asserted any other viable reason why an amendment alleging the assignment would be futile. Nor have they argued that the Trust has abused the privilege to amend or that they would be prejudiced by the amendment. Instead, they contend that the Trust should have obtained the assignment sooner. We disagree.

When the Trust filed its third amended counterclaim it alleged that Lerian had assigned its fraud claim when it assigned the purchase agreement to the Trust. Chapman and Schreiber countered that the language in the purchase agreement assignment, a copy of which was attached to the counterclaim, negated that allegation. Accordingly, at the hearing on the motion to dismiss, the Trust asked for an opportunity to accomplish the assignment and amend its counterclaim in the event the trial court agreed that the claim had not already been assigned. It was not until the trial court rejected this contention in the order dismissing the third amended counterclaim that the Trust knew that it needed to obtain an assignment to proceed with its claim. Accordingly, we conclude that the trial court abused its discretion when it refused to allow the Trust an opportunity to amend its counterclaim.

The Trust also challenges the dismissal of its claims alleging that Chapman, Schreiber, and Maxwell misrepresented the amount of actual costs Chamax had incurred; costs which the Trust was contractually obligated to reimburse Chamax. The costs at issue were detailed in an amendment to the purchase agreement. The third amended counterclaim alleges that Chapman, Schreiber, and Maxwell knew that the costs specified in the amendment were not the actual costs Cha-max had incurred and that the Trust would not have paid those amounts had it known they did not represent the actual costs incurred.

On appeal, the appellees argue that dismissal of these fraud claims was proper because they are barred by the economic loss rule. We find no merit in this contention. Where a contract exists, a tort action will lie only for intentional or negligent acts that are independent from acts that breach the contract. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996) (holding that where the fraud complained of relates to the performance of the contract the economic loss doctrine will limit the parties to their contractual remedies). The economic loss rule does not bar tort actions based on fraud if the fraud alleged does not relate to an act of performance under the contract but instead relates to a term in the agreement. Allen v. Stephan Co., 784 So.2d 456, 457 (Fla. 4th DCA 2000). Here, the alleged misrepresentations related to a term of the contract with Chamax, not to any performance Chamax owed under the contract. See, e.g., id. at 457-58. In addition, no contract with Schreiber, Maxwell, and Chapman exists; therefore, no breach of contract action could lie against them; rather, the action against them is for intentional or negligent acts independent of any contract. See HTP, 685 So.2d at 1239. Accordingly, we reverse the dismissal of the Trust’s fraud claims against Schreiber, Maxwell, and Chapman.

Reversed in part, affirmed in part, and remanded for further proceedings.

VILLANTI and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    Jose DIAZ, Appellant, v. Jose F. CABEZA and La Dorada Coral Gables, Inc., Appellees.
    No. 3D09-2954.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Rehearing Denied Jan. 20, 2011.

      Ivette Gonzalez, Miami; Rima Bardawil, Hialeah, for appellant.
    Jorge L. Piedra and Alejandro R. Alvarez, Miami, for appellees.
    Before RAMIREZ, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   RAMIREZ, C.J.

This is an appeal of a summary final judgment in a personal injury case. The question is whether the corporate defendant is vicariously liable for the acts of its president. As a jury question has been presented, we reverse the summary judgment now before us. La Dorada Coral Gables, Inc., defendant below, is a restaurant (“the restaurant”). Its president and sole shareholder is Jose F. Cabeza, also a defendant below. For several years, the restaurant employed Jose Diaz, plaintiff below, as a waiter and busboy.

Cabeza is the owner of the restaurant and resides in Spain. His son manages the restaurant when Cabeza is not there. When Cabeza is present at the restaurant, he runs the restaurant and supervises the staff. According to the depositions, Cabe-za supervise the kitchen, and possibly other parts of the restaurant. While giving orders, Cabeza is loud and verbally abusive. A female deponent stated that Cabe-za had pushed her. The affidavits from three of the employees stated Cabeza was verbally and physically abusive.

The plaintiff alleged Cabeza verbally abused him and then struck him with a wine bottle and poked or stabbed him with a fork. According to the plaintiff, this physical contact occurred for no apparent reason. The plaintiff sued Cabeza for assault and battery; he sued the restaurant on the theory that the restaurant was vicariously liable for Cabeza’s acts.

The restaurant moved for summary judgment on the theory that it could not be held vicariously hable for Cabeza’s intentional torts. The restaurant argued that Cabeza’s acts of assault and battery could not have been motivated by a purpose to serve the interests of the restaurant, and therefore there could be no vicarious liability on the part of the restaurant. The trial court entered summary judgment in favor of the restaurant and the plaintiff has appealed.

The question is whether Cabeza’s actions were within the scope of his employment. Usually this is a factual issue for the jury. Canaveras v. Cont’l. Group, Ltd., 896 So.2d 855 (Fla. 3d DCA 2005); Montadas v. Dade Scrap Iron & Metal, Inc., 666 So.2d 1054 (Fla. 3d DCA 1996); Woods v. City of Miami, 646 So.2d 836 (Fla. 3d DCA 1994); Rivas v. Nationwide Personal Sec. Corp., 559 So.2d 668 (Fla. 3d DCA 1990); Gonpere Corp. v. Rebull, 440 So.2d 1307 (Fla. 3d DCA 1983).

Because this is a summary judgment, we interpret the factual record in the light most favorable to the plaintiff as the nonmoving party. Further, all factual inferences must be drawn in favor of the plaintiff as the nonmoving party. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla.2002).

A fair reading of the record is that on the day in question, the plaintiff was at work at the restaurant. The owner, Cabe-za, was there and giving orders. While on the premises and while work was ongoing, Cabeza struck the plaintiff with a bottle and poked or stabbed him with a fork. Based on the allegations and the depositions and affidavits, a jury could reasonably conclude that Cabeza employed aggressive behavior to make his staff work harder and faster. Because that is a permissible inference from the stated facts, there is an issue for the jury.

In Montadas, the plaintiff was a pizza delivery person who made a delivery to the defendant’s work place. The pizza was delivered late and the owner of the defendant company attacked the delivery person. This court held that there was a factual issue about whether the president/owner was acting in furtherance of the business. 666 So.2d at 1055.

In Rivas, the defendant corporation employed Arthur Hinton as a security guard at a supermarket. He got into an argument with the supermarket manager and began choking the manager. Plaintiff Rivas screamed for help and Hinton struck Rivas to silence her. The trial court entered a directed verdict in favor of the defendant. This Court overturned the directed verdict and ordered that the jury verdict in favor of Rivas be reinstated. Our Court concluded that there was a jury issue about whether the “assault and battery sued upon arose out of a job dispute and was therefore within the scope of Hinton’s employment with Nationwide Personal Security Corporation.” 559 So.2d at 669.

The restaurant relies on a statement by the plaintiff that Cabeza struck him for no apparent reason. The restaurant argues that if Cabeza acted for no apparent reason, then it is impossible Cabeza was acting in furtherance of the restaurant’s interests. This argument reads the record in the wrong light. When saying that Cabeza struck the plaintiff for no apparent reason, the plaintiff is saying he did not do anything to give Cabeza cause to strike him. That is, the plaintiff did not strike or push Cabeza or start a fight with Cabeza, such that Cabeza would have been justified in striking the plaintiff. That statement, however, cannot be read to mean that Cabeza struck for no apparent business reason. A jury under these facts could well conclude that Cabeza’s purpose for abusing his employee was to make him work harder and faster.

We reverse the summary judgment and remand for further proceedings consistent herewith.

      . The plaintiff also made a worker's compensation claim. That claim was settled for a nominal sum. The settlement documents specifically allowed the plaintiff to pursue his tort claims in the lawsuit now before us.

      . The claims against Cabeza individually remain pending in die trial court.


author: WELLS, Judge. SHEPHERD, J.,

text:
    Shelley A.E. CROMBIE, Appellant, v. Ian WILLIAMS, Appellee.
    No. 3D09-567.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Rehearing Denied Feb. 3, 2011.
    Charmaine C. Powell, Miami, for appellant.
    Diane H. Tutt, Davie, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   WELLS, Judge.

Shelley A.E. Crombie appeals from a “Final Judgment on Time Sharing,” denying her petition to relocate to Jacksonville with the minor child. Finding no abuse of discretion, we affirm but do so with instructions.

In September 2003, Crombie gave birth, out of wedlock, to NIW. A little over a year later, in November of 2004, Ian Williams petitioned against his ex-girlfriend to establish paternity, custody, and child support of this child. In April of 2006 a final judgment establishing Williams as the father and designating Crombie as primary residential parent was entered. That judgment also set a visitation schedule for Williams while reserving jurisdiction to determine a child support award. It further provided that neither party could relocate NIW without the other’s agreement or a court order:

14. Neither the Mother nor the Father may relocate the child’s residence outside of Miami-Dade or Broward County without written agreement of the other parent or Court Order.

Crombie subsequently lost her job and decided to live with family in Jacksonville. On September 22, 2007, she filed a notice of intent to relocate. By the time Williams received the notice two days later, Crom-bie had already left South Florida with NIW. Williams immediately sought NIW’s return, which resulted in a contempt order against Crombie for violating the final judgment’s relocation clause.

Crombie thereafter sought relief from the final judgment and petitioned the court for permission to relocate to Jacksonville. Williams sought both an order redetermining time-sharing with NIW and also changing custody to name him as primary residential parent. Crombie’s motion to modify or for authority to relocate was denied; Williams’ motion for redetermination of time-sharing was granted with NIW being placed in his home in Miami while Crombie was in Jacksonville.

We find no abuse of discretion in the trial judge’s decision that staying in South Florida was in the child’s best interest and denying relocation. We also find no abuse in adjusting the parties’ visitation schedule. See Muller v. Muller, 964 So.2d 732, 733 (Fla. 3d DCA 2007) (“We review a trial court’s order regarding relocation under an abuse of discretion standard. Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003) (citing Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001)).”); Fredman v. Fredman, 917 So.2d 1038, 1041 (Fla. 2d DCA 2006) (instructing that where court approval was required “the trial court must consider the factors outlined in section 61.13(2)(d)”); Buonavolonta v. Buonavolonta, 846 So.2d 649, 651-52 (Fla. 2d DCA 2003); Hardwick v. Hardwick, 710 So.2d 124, 125 (Fla. 4th DCA 1998); see also § 61.13(2)(d), Fla. Stat. (2006) (concluding in part, “No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent”). We therefore affirm the order on appeal but in doing so confirm, as the trial judge concluded, that the order does not constitute a custody modification. Thus, no showing of a substantial change in circumstances is necessary to reinstate the original visitation schedule (that is, the original schedule with the child residing in Crombie’s home) if Crombie returns to South Florida.

On remand, the court below shall also determine, on an expedited basis, Crom-bie’s pending petition for child support. This decision shall take effect immediately and the mandate issue simultaneously with this opinion without regard to any motion for rehearing.

Affirmed with instructions.

LAGOA, J., concurs.

SHEPHERD, J.,

concurring in part, dissenting in part.

I agree the trial court did not abuse its discretion in denying Shelley Crombie’s motion to relocate to Jacksonville with the minor child. That, of course, is the only issue before us. However, because the majority implies that some force other than herself is responsible for the mother’s predicament and sua sponte remands for a determination of child support, I write to offer the following additional considerations to balance the majority’s digression.

In her Notice of Intent to Relocate with a Child, Crombie provides her reasons for relocating are:

Mother is finding it difficult to live in South Florida with no support system. She is not receiving any child support from child’s father and cannot afford to pay for daycare for said child by herself. Cost of living is less in Jacksonville so mother feels it will be easier to purchase a home in Jacksonville.

Furthermore, Crombie complains she is unable to find work in South Florida and has been unemployed since March 2007. The record, however, reveals that: (1) the mother’s employer, Spectrum Programs, recalled her to employment just one month after she was laid off, but, according to the trial court in the Final Judgment on Time-sharing, “she failed to report,” making it “her actions that caused her unemployment;” (2) contrary to her allegations in her Notice of Intent to Relocate with a Child, Crombie admitted at the hearing on the petition to relocate that Williams had been voluntarily paying some child support to the mother monthly (with one exception) since February 6, 2006, “even though there was no court order for him to do so, and even though the minor child was with the Father seven (7) nights out of fourteen (14)”; and (3) although Crombie filed a Motion to Establish Child Support in September 2006 and has been continuously represented by counsel in these proceedings since their commencement on November 18, 2004, (except for a period of sixty days immediately after she left for Jacksonville unannounced, causing her counsel to withdraw), she has not actively pursued the motion for hearing or otherwise sought to challenge the amount of the father’s voluntary monthly payments.

I am not unmindful of the several good reasons why Crombie wishes to move to Jacksonville. I write only to remark that we tread on dangerous ground when we opine on matters not before us, and express my belief it is as likely as not in this case that Crombie has been, at least to some extent, the author of her own undoing.

With these additional considerations, I concur in the decision of the majority, with the exception, of course, of the majority’s sua sponte remand for a determination of child support when the issue is not before us.

      . Crombie in her notice of intent to relocate identified as one of her reasons for relocating, William's failure to pay any child support. Her motion at that time reflected that by the parties’ own numbers, Williams was earning $3692.06 a month, twice the amount ($1677.94) that she had earned, and yet she was receiving only $300 a month from him. Subsequent financial materials reflected that Williams was earning more than $3692.06, while Crombie had become unemployed.
      The February 2, 2009 order under review observed that there was "evidence of payments by the father even though there was no court order for him to do so.” However, that order in no manner addressed the amount or sufficiency of those payments, but rather provided only:
      L. Child Support issues were referred by this Court to the Hearing Officer, and those issues are reserved to be heard by the Hearing Officer.
      It is inherently inequitable to require a parent, already designated the child’s primaiy residential parent and claiming relocation is necessary for financial reasons, to make a relocation decision without receiving needed and due child support. Expedited resolution of this issue, therefore, is imperative. See Miller v. Schou, 616 So.2d 436, 439-40 (Fla.1993) (McDonald, J. concurring) (”[T]he setting of reasonable child support, whether initially or on modification, should not be a complicated affair. Needs and abilities are not that difficult to define. Hence, it should be done expeditiously and relatively inexpensively.’’).


author: ROTHENBERG, J.

text:
    RELIANCE WHOLESALE, INC., Appellant, v. Samantha GODFREY, et al., Appellees.
    No. 3D10-82.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.

      Littler Mendelson, P.C., and Courtney B. Wilson, Miami, for appellant.
    Richard S. Ross, for appellee Samantha Godfrey; Greenspoon Marder and Peter R. Siegel, and Mitchell D. Adler, Fort Lauderdale, for appellees Anthony Minnu-to and Allied Medical Supply, Inc.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The plaintiff, Reliance Wholesale, Inc. (“Reliance”), appeals from a non-final order denying its Renewed Motion for Temporary Injunction. We reverse and remand for entry of an order granting the motion.

In 2008, Reliance filed suit against Samantha Godfrey (“Godfrey”), Anthony Minnuto (“Minnuto”), and Allied Medical Supply, Inc. (“Allied”), seeking temporary and permanent injunctive relief and damages, stemming from the alleged breach of two Non-Compete, Non-Solicitation, and Non-Disclosure Agreements allegedly executed by Godfrey in 2005 (“2005 Agreement”) and 2008 (“2008 Agreement”).

In early 2009, the trial court denied Reliance’s initial request for injunctive relief without prejudice to renew after conducting discovery. In August 2009, Reliance filed its Renewed Motion for Temporary Injunction.

Following an evidentiary hearing on Reliance’s Renewed Motion for Temporary Injunction, the trial court entered an order making the following findings of fact. In 2005, when Godfrey started working for Reliance, a licensed distributor of hard-to-find pharmaceuticals, she executed the 2005 Agreement, which is “valid and binding.” While at Reliance, Godfrey was a senior staff member, attending tradeshows at Reliance’s expense, which allowed her to establish personal, business relationships with customers and potential customers. Further, Godfrey had an expense account to meet and entertain prospective customers.

As part of its operations, Reliance purchased a computer database program which is available on the open market. However, as Reliance did business, it updated the database with information such as the name and e-mail addresses of the purchasing agent, and the product that was purchased. This information was used for future sales. The name and email addresses of the purchasing agent for each hospital or entity are readily available by contacting the hospital or entity. Although Godfrey did not keep sales records, she knew which customers were the most profitable.

In early 2008, Reliance deducted $58,000 from Godfrey’s commissions because it believed that it had overpaid Godfrey two years earlier, and it also charged her $10,500 for “bad debts.” Based on a chart presented by Godfrey, Reliance was unjustified in taking Godfrey’s commissions and Reliance actually owed Godfrey money. Godfrey left Reliance after it instituted a new commission structure, substantially reducing Godfrey’s commissions.

After the trial court entered its initial order denying injunctive relief, Godfrey went to work for Reliance’s competitor, Allied, whose principal is Minnuto. Allied, however, fired Godfrey on the same day that the hearing on the Renewed Motion for Temporary Injunction commenced— August 81, 2009.

Based on these findings of fact, the trial court denied the Renewed Motion for Temporary Injunction, concluding that Reliance failed to carry its burden of establishing a substantial likelihood of success on the merits because its “unilateral recovery of commissions allegedly overpaid to [Godfrey] two years earlier, presents a viable and unrebutted defense to [Reliance’s] entitlement to enforcement of the non-compete agreement.” The trial court further concluded that Godfrey rebutted the presumption of irreparable injury; Reliance has an adequate remedy at law because the value of any business loss is ascertainable through discovery; and the value of any information that Godfrey and the other defendants have used subsequent to Godfrey leaving Reliance is limited and “minimal at best.” This appeal followed.

Reliance contends that the trial court abused its discretion by denying its Renewed Motion for Temporary Injunction where it established the prerequisites for entry of a temporary injunction. We agree. See Carricarte v. Carricarte, 961 So.2d 1019, 1020 (Fla. 3d DCA 2007) (quoting Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006)) (“A trial court is afforded broad discretion in granting, denying, dissolving or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.”).

“A temporary injunction is an extraordinary and drastic remedy which should be sparingly granted.” Cordis Corp. v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986). To grant a temporary injunction, the moving party must plead and establish:

(1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent!;] and (4) that the granting of a temporary injunction will not disserve the public interest.

Id. at 489-90 (footnote and citations omitted).

We first address the trial court’s conclusion that Reliance failed to establish that it had a substantial likelihood of success on the merits. In doing so, we look to section 542.335(1), Florida Statutes (2009), which addresses the enforceability of a restrictive covenant and provides in relevant part as follows:

(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1.Trade secrets, as defined in s.688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

Here, the trial court’s-findings of fact reflect that Reliance established the existence of two “legitimate business interests.” First, Reliance’s database qualifies as “[v]aluable confidential business or professional information that otherwise does not qualify as trade secrets.” § 542.335(l)(b)2. Although the findings of fact reflect that information such as the name and e-mail address of each purchasing agent was readily available on the internet, information as to Reliance’s sale of each product, such as price and quantity, was not available to the general public. The trial court found that as Reliance did business, it updated its database with this information, this information was utilized for future sales, and Godfrey knew exactly which products were more profitable. Thus, the trial court’s conclusion that the value of this information was “minimal at best” is contradicted by the trial court’s findings of fact.

Second, the trial court’s findings of fact also demonstrate that Reliance established the existence of a second “legitimate business interest” — “[sjubstantial relationships with specific prospective or existing customers.” § 542.335(1)(b)3. During her employment with Reliance, Godfrey, at Reliance’s expense, attended several tradeshows where she “would go to meet and greet customers and potential customers, so as to establish personal relationships for business purposes,” and Godfrey was also given an expense account to “meet and entertain potential customers.” Through these relationships established at Reliance’s expense, God-frey was able to take customers with her to Allied. As with many sales positions, regardless of the industry, forming relationships with prospective and existing customers is invaluable and often vital for success. Therefore, pursuant to section 542.335(1)(b), Reliance established that the restrictive covenant contained in the 2005 Agreement is enforceable.

Next, we address the trial court’s conclusion that Godfrey presented a viable and unrebutted defense as to Reliance’s enforcement of the 2005 Agreement, and therefore, Reliance failed to establish that it had a substantial likelihood of success on the merits. The viable unrebutted defense relied on by the trial court is Godfrey’s claim that Reliance breached the 2005 Agreement prior to Godfrey’s breach of the non-compete clause by not paying earned commissions and by assessing a “charge back” based on an overpayment allegedly made to Godfrey in 2006. Although a prior breach by Reliance could be a defense to the enforcement of the non-compete provision in the 2005 Agreements, Reliance certainly did rebut this defense and the 2005 Agreement unambiguously disputes the “viability” of this defense.

First, Reliance argued that when the overpayment and commission issues surfaced, the parties negotiated and settled their disagreements, and thus there could be no breach. The trial court did not make any factual findings regarding this evidence, but rather, incorrectly concluded that this defense was unrebutted. Second, and more importantly, Florida law limits this defense to “dependent covenants.” See Cordis, 482 So.2d at 490 (holding that in the non-compete and trade-secret context, an employer’s prior breach of the employment contract is relevant when deciding whether to grant the employer a temporary injunction where the breach involves a dependent covenant); Capraro v. Lanier Bus. Prods., Inc., 445 So.2d 719, 721 (Fla. 4th DCA 1984). A plain reading of the non-compete clause of the 2005 Agreement demonstrates that they are independent, not dependent, covenants:

The covenants set forth herein shall be construed as agreements independent of any other provision in any other agreement by, between, among, or affecting Reliance Medical Wholesale, Inc. and Employee, and the existence of any claim or cause of action of Employee against Reliance Medical Wholesale, Inc., whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement.

(emphasis added).

We therefore hold that, as a matter of law, Godfrey’s asserted defense — that she is excused from performance of the non-compete provision of the 2005 Agreement based on Reliance’s prior breach — is not a valid or “viable” defense to the issuance of a temporary injunction in this ease. Thus, we hold that the trial court erred by concluding that Reliance failed to establish that it has a substantial likelihood of success on the merits.

Next, we address the trial court’s conclusion that injunctive relief is not appropriate because Reliance has an adequate remedy at law and that Godfrey rebutted the presumption of irreparable injury created by section 542.335(1)(j). In Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974), and then again in Capraro, the Florida Supreme Court specifically recognized that although a trial court may award damages for a breach of an employee’s agreement not to compete, “the normal remedy is to grant an injunction. This is so because of the inherently difficult, although not impossible, task of determining just what damage actually is caused by the employee’s breach of the agreement.” Capraro, 466 So.2d at 213 (quoting Miller, 300 So.2d at 12 (citations omitted)); see also Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (quoting N. Am. Prods. Corp. v. Moore, 196 F.Supp.2d 1217, 1230-31 (M.D.Fla.2002)) (holding that “[t]he focus of preliminary injunctive relief is on maintaining long standing relationships and preserving the goodwill of a company built up over the course of years of doing business .... Plaintiffs argument that there is no irreparable harm because Plaintiffs injuries, if any, are subject to a monetary judgment, is equally without merit and has been rejected by other courts, where, as here, there is a statutory presumption of irreparable harm.”); U.S. Floral Corp. v. Salazar, 475 So.2d 1305, 1306 (Fla. 3d DCA 1985) (noting that entry of temporary injunction is “favored remedy” for violation of non-compete agreement).

The trial court’s order does not directly address the third and fourth prerequisite for entry of a temporary injunction as set forth in Cordis. Its denial of the Renewed Motion for Temporary Injunction was based solely on the other prerequisites addressed in this opinion. Nonetheless, we find that the record before this Court demonstrates that Reliance also established the prerequisites not addressed in the trial court’s order. Finally, the remaining issue raised by Godfrey as to Reliance’s standing was not raised below, and therefore, was not properly before this Court. See Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So.2d 1201 (Fla. 2d DCA 2009) (holding that standing cannot be raised for the first time on appeal). Accordingly, we reverse the order under review and remand for entry of an order granting Reliance’s Renewed Motion for Temporary Injunction.

Reversed and remanded.

      . Godfrey acknowledged that she executed the 2005 Agreement, but argued below that she did not execute the 2008 Agreement. The trial court found that the "authenticity of the [2008 Agreement] is subject to question, and may well be [a] forger[y].” Reliance does not challenge this finding of fact and, therefore, relies solely on the 2005 Agreement.

      . Section 542.335(1)(j) provides in part: “The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”


text:
    A-1 PRESTO ROOFING, CORP., Appellant, v. Maria ESPINOSA, Appellee.
    No. 3D10-1270.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.

      Aran Correa Guarch & Shapiro, and Craig B. Shapiro, Coral Gables, for appellant.
    Harvey D. Rogers, Miami, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is an appeal from an order granting dismissal for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). Because the order was entered by following the requirements of the rule, we affirm.

Rule 1.420(e) provides as follows:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Thus, under the rule, if there is any record activity within the ten (10) months immediately preceding the service of such notice, the case should not be dismissed. See Wilson v. Salamon, 928 So.2d 363 (Fla.2005). It is undisputed that no such record activity took place. The second option to avoid dismissal is to create record activity within the next sixty (60) days immediately following the service of such notice. It is undisputed that no such record activity took place within sixty (60) days of the court serving its Notice of Lack of Prosecution. The third option under the rule to avoid dismissal is to show good cause in writing within five (5) days before the hearing on the motion as to why the action should remain pending. It is undisputed that no such writing was filed nor good cause was shown.

Appellant would have us create a fourth way to keep a case from being dismissed, and that is by filing a paper after the sixty (60) days have elapsed. Here, appellant filed a Notice of Readiness for Non-Jury Trial on November 6, 2009, three days before the hearing on the court’s notice, but well after the sixty (60) days contemplated by the rule. We decline to rewrite the rule as suggested by appellant. The trial court properly dismissed the action. The dismissal is of course without prejudice.

Affirmed.


author: PER CURIAM.

text:
    F. Daniel BENNETT, Appellant, v. The SOCIETY OF LLOYD’S, Appellee.
    Nos. 3D10-200, 3D10-893.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    F. Daniel Bennett, in proper person.
    Shutts & Bowen, Maxine M. Long and Patrick G. Brugger, Miami, for appellee.
    Before GERSTEN, CORTINAS, and SALTER, JJ.
   PER CURIAM.

F. Daniel Bennett (“Bennett”) appeals from an order denying his claim of exemption and a final judgment in garnishment. We reverse.

The Society of Lloyds (“Lloyds”) obtained a judgment against Bennett. Thereafter, Lloyds sought to satisfy the judgment through garnishment proceedings. The trial court issued a post-judgment writ of garnishment directed to Regions Bank where Bennett maintained two accounts.

Subsequently, Bennett filed a claim of exemption, alleging that the bank accounts contained his direct deposited Social Security benefits, which are exempt from garnishment. Bennett attached a bank transaction history showing several deposits, including the Social Security benefits. Bennett requested a hearing on his claim of exemption. Due to a death in his family, Bennett failed to appear for the scheduled hearing.

The trial court denied the claim of exemption without prejudice, allowing Bennett ten days to file a motion for rehearing showing “a meritorious substantive defense.” Bennett, who is a pro se litigant, filed a motion for rehearing addressing only the reason for his failure to appear at the hearing. The trial court denied the motion for rehearing and later entered a final judgment in garnishment.

On appeal, Bennett asserts that the trial court erred in ruling on his claim of exemption without a hearing. Lloyds, on the other hands, contends the trial court properly ruled based on the bank transaction history, showing a commingling of exempt and non-exempt funds. We agree with Bennett.

In Beardsley v. Admiral Insurance Co., 647 So.2d 327, 329 (Fla. 3d DCA 1994), this Court stated “it is not correct to say that the commingling of a nonexempt deposit with an exempt account will automatically cause the entire account to lose its exempt status.” Instead, the Court held that in these circumstances, if possible, the trial court should make an allocation between exempt and non-exempt funds.

Here, the trial court did not attempt to allocate between the exempt and nonexempt funds. Consistent with Beardsley, we, therefore, reverse and remand for an evidentiary hearing giving Bennett an opportunity, if possible, to prove the source of funds in the bank accounts. The trial court then can determine which funds in the bank accounts are exempt from garnishment.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded with instructions.


text:
    Gerardo BONET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2654.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Rehearing Denied Jan. 19, 2011.
    Gerardo Bonet, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Gabriel v. State, 962 So.2d 920 (Fla. 3d DCA 2007).


text:
    Terrance COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2616.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 2010.
    Rehearing Denied Jan. 19, 2011.
    Terrance Cooper, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See McKnight v. State, 773 So.2d 577 (Fla. 3d DCA 2000).


author: LAWSON, J.

text:
    HIGHWOODS DLF EOLA, LLC, Appellant, v. CONDO DEVELOPER, LLC, and The City of Orlando, etc., Appellee.
    No. 5D09-3234.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.

      Robert D. Gatton, of Robert D. Gatton, P.A., Broad and Cassel, Orlando, for Appellant.
    H. Ray Allen, II, Joseph Hagedorn Lang, Jr., and Erin E. Banks of Carlton Fields, P.A., Tampa, for Appellee, Condo Developer, LLC.
    Janet M. Courtney, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellee, Vue-Orlando, LLC.
   LAWSON, J.

Highwoods DLF EOLA, LLC, (“High-woods”), appeals an order denying its motion for leave to intervene. We agree that the lower court abused its discretion in failing to recognize Highwoods as a party in the case, and reverse.

Highwoods is a Delaware limited liability company, which owns real property located at 200 East Robinson Street, in Orlando, Florida, (“Highwoods’ Property”). Highwoods’ Property is part of an existing master plan comprised of several parcels of land known as the Eola Park Centre Master Plan, approved by the City of Orlando several years ago. In 2007, High-woods applied to the City for a master plan amendment so that it could build a forty-two story mixed-use, high-rise building on its property.

Condo Developer, LLC, (“Condo Developer”), a Florida limited liability company, owns a multifamily residential high-rise building called “The Vue,” which is located across the street and to the west of High-woods’ property. If Highwoods is allowed to build the proposed forty-two story highrise on its property, the new building would block a portion of the view, from The Vue, of downtown Orlando’s Lake Eola and Lake Eola Park. Condo Developer objected to Highwoods’ requested master plan amendment in quasi-judicial proceedings before the City.

Ultimately, the City approved High-woods’ requested master plan amendment, and Condo Developer challenged the City’s decision in circuit court, in the case below, by filing a petition for writ of certiorari pursuant to the Florida Rules of Appellate Procedure. See Fla. R.App. P. 9.190(b)(3) (“Review of quasi-judicial decisions of any administrative body, agency, board, or commission not subject to the Administrative Procedure Act shall be commenced by filing a petition for certiorari in accordance with rules 9.100(b) and (c), unless judicial review by appeal is provided by general law.”); see also, Board of County Comm’rs v. Snyder, 627 So.2d 469, 474-75 (Fla.1993) (quasi-judicial land use proceeding properly reviewable by petition for certiorari).

Florida Rule of Appellate Procedure 9.100(b) dictates that when a party files a certiorari petition to challenge a quasi-judicial land use proceeding, as Condo Developer did here, “all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents.” As the applicant in the proceeding before the City, Highwoods was obviously a party to the proceeding below, and should have been named in the petition as a respondent. Id. We also note that Highwoods actively participated as a party, at all stages of the quasi-judicial proceeding that resulted in the order challenged in Condo Developer’s petition. When Condo Developer filed its petition naming only the City as a respondent, the City sent a courtesy copy to Highwoods. Highwoods first filed a motion to dismiss for failure to include Highwoods as an indispensible party under rule 9.100(b). When the circuit court denied that motion, Highwoods then filed its motion to intervene, see Fla. R. Civ. P. 1.230 (“Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention .... ”), which the circuit court also denied. This appeal followed.

We see no legal basis for the circuit court’s denial of Highwoods’ motion to intervene, in light of the plain language of rule 9.100(b). In addition, Highwoods meets the long-standing test for intervention set forth in Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918): “[T]he interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” In this case, Condo Developer seeks to quash the order granting Highwoods’ requested master plan amendment, and allowing Highwoods to develop its property in accordance with its plans. As such, it is Highwoods which will be most directly affected — which most directly stands to “gain or lose” — by the outcome of Condo Developer’s certiorari proceeding.

Despite Highwoods’ citation to rule 9.100(b), the circuit court was persuaded in its decision by Condo Developer’s argument that Highwoods was not an indispensable party by virtue of the holdings in Brigham v. Dade County, 305 So.2d 756 (Fla.1974); Concerned Citizens of Bayshore Community v. Lee County, 923 So.2d 521 (Fla. 2d DCA 2005); and City of St. Petersburg, Bd. of Adjustment v. Marelli, 728 So.2d 1197 (Fla. 2d DCA 1999).

In Brigham, the Florida Supreme Court held that a property owner and zoning change applicant was not an indispensable party to a certiorari action filed to challenge a county’s approval of the applicant’s requested zoning change. The Court reached this result, in part, because “nothing in the appellate rules relating to appeals or to petitions for writs of certiorari requir[ed] joinder of [the original applicant]” as a party to the certiorari case. Id. at 758. It was later that the Court amended rule 9.100(b) to add the requirement “that all parties in the lower tribunal be named as either petitioners or respondents,” In re Amendments to Florida Rules of Appellate Procedure, 609 So.2d 516, 517 (Fla.1992), and then to make this requirement expressly applicable to certio-rari actions like the one initiated by Condo Developer below. Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla.1996); Amendment to Florida Rule of Appellate Procedure 9.020(a) and Adoption of Florida Rule of Appellate Procedure 9.190, 681 So.2d 1132 (Fla.1996). Because the Florida Supreme Court made these changes to the appellate rules after deciding Brigham, and the rule changes expressly dictate a different result, Brigham is no longer controlling on this point.

In Marelli, the Second District addressed a case in which a property owner, Compro Corporation, had successfully applied to the City of St. Petersburg for a zoning variance, but was then not allowed to participate in a circuit court certiorari action filed by neighboring property owners to challenge the zoning variance granted for Compro’s property. The court stated that it found no merit to the argument that Compro should have been included as a party in the certiorari proceeding, simply citing to Brigham. Id. at 1198. Nowhere in the Marelli decision does the court reference the rule changes that should have dictated a different result, so it is not clear that the applicable appellate rules were brought to that court’s attention.

In Concerned Citizens, the Second District quashed a circuit court order that dismissed a certiorari petition challenging a county zoning order. The circuit court had dismissed the petition, with prejudice, because the petitioners failed to name the land owner who had requested the zoning change, U.S. Home, as a party. The Second District held that U.S. Home was not an indispensable party to the action, again citing to Brigham. Id. at 523. The court, however, also ruled that rule 9.100(b), requiring “that all parties in the lower tribunal be named as either petitioners or respondents,” did not apply to the certiorari action. Id. We do not understand the basis for this ruling, given the plain language of the applicable rules. But, the court then went on to alternatively hold that even if the appellate rules did apply, the certiorari petition should not have been dismissed with prejudice for failure to name U.S. Home as a party since the rules would have automatically made U.S. Home a respondent, even if the petitioner had failed to name U.S. Home as a respondent on the face of its petition. Id. at 523 n. 1.

We agree with Highwoods that Concerned Citizens, as a dismissal case, is distinguishable from our case, in which Highwoods was simply seeking to be recognized as a party so that it could meaningfully participate in the certiorari appeal of its zoning decision. But, to the extent that either Marelli or Concerned Citizens can be read as holding that an applicant for a zoning change affecting its property, who participates as a party in quasi-judicial proceedings before a local governmental body, can then be barred from participating in a certiorari appeal of its own case, we would disagree with those cases, and would conflict with them. Also cf. Wingrove Estates Homeowners Ass’n v. Paul Curtis Realty, 744 So.2d 1242 (Fla. 5th DCA 1999) (holding that it was an abuse of discretion to deny intervention by two neighboring homeowner associations, which had sought to intervene in a circuit court certiorari appeal regarding the denial of a commercial development plan for nearby property).

Finally, we note that Condo Developer attacks Highwoods’ appeal from the denial of its intervention motion on grounds that Highwoods should have challenged the decision by filing a petition for writ of certiorari in our court. We recognized that our court did review the denial of a petition to intervene under similar circumstances in Wingrove Estates. However, that case was initially filed as a cer-tiorari case, and it does not appear that the panel considered the issue of whether a direct appeal was authorized. Earlier this year, our en banc court, in Superior Fence & Rail of North Florida v. Lucas, 35 So.3d 104, 105 (Fla. 5th DCA 2010), “[took the] opportunity to clarify decisional law from this court regarding whether the denial of a motion to intervene is reviewed by certiorari or appeal.” We unanimously concluded that “an order denying a motion to intervene is appealable as a matter of right, by plenary appeal, because the order constitutes a final determination of the proceeding as to the parties seeking to intervene.” Id. at 105 (citations omitted). Although we neglected to specifically identify Wingrove Estates in the Superior Fence en banc decision, we did “recede from our prior case law holding that the denial of a motion to intervene is renewable by certiorari ... [and instead held] that the denial of a motion to intervene is reviewable by appeal.” Id.

Accordingly, we reject Condo Developer’s argument that the order below is not appealable, reverse the order, and remand with directions that Highwoods’ motion be granted and that Highwoods be allowed to fully participate in the certiorari proceeding as a respondent.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . There is no question that we have jurisdiction to review the trial court’s denial of High-woods’ intervention motion, either under our appeal jurisdiction or certiorari jurisdiction. See Fla. R.App. P. 9.030(b). And, we would reach the same result either way. Cf. Wingrove Estates. Having just undertaken the effort in Superior Fence to clarify that the denial of a motion to intervene should be reviewed using our appeal jurisdiction, we aré not inclined to interject confusion by recognizing an exception for cases where the final decision on the merits will come to us, if at all, by second tier certiorari. While we recognize that "final orders of circuit courts acting in their review capacity” fall within our certiorari jurisdiction, Fla. R.App. P. 9.030(b)(2)(B), the decision to deny High-woods’ motion to intervene was not a review decision by the circuit court. Highwoods had fully participated as a party in the quasi-judicial proceedings before the City, and no one argues that the City should have barred Highwoods from that proceeding. Therefore, the rationale for using the more deferential standard designed for second-tier review does not apply here, see, e.g., Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995) ("As the case travels up the judicial ladder, review should consistently become narrower, not broader.”), where it is the circuit court's original decision (never before subjected to judicial review), that is being challenged. Cf. Wesley Group Home Ministries, Inc. v. City of Hallandale, 670 So.2d 1046 (Fla. 4th DCA 1996) (direct appeal of original attorneys’ fee decision made by circuit court in certiorari case).


text:
    Robert MICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-300.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2010.

      F.W. Blankner, Jr., of Jaeger & Blank-ner, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Robert Michael appeals from his conviction and sentence on a single charge of burglary of a dwelling, arguing that the evidence at trial was insufficient to sustain the conviction. We agree with Michael that Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006), when applied to the facts of this case, would require a reversal with instructions that the trial court enter a conviction to the lesser charge of burglary of an unoccupied structure. As in Munoz, the uncontroverted evidence in this case established that the structure burglarized was “designed to be occupied by people lodging therein at night,” had been occupied as a dwelling in the recent past, had an intact roof, but was undergoing interior renovations that rendered it temporarily uninhabitable.

The issue before us is one of statutory construction. In our view, the statute in plain terms defines a structure that is designed to be occupied by people for lodging at night as a dwelling, even if temporarily rendered unsuitable for that use. The majority in Munoz added an additional element to the plain language of the statute which requires the state to also prove that the structure was habitable as a dwelling on the date of the offense. The Munoz majority reached this result based upon its reading of Perkins v. State, 682 So.2d 1083 (Fla.1996). We agree with the well-reasoned dissent in Munoz, which concluded that Perkins does not require that this additional element be read into the statute, and explains why the statute should be read in accordance with its unambiguous terms. We see no reason to repeat that analysis here, but affirm Michael’s conviction and certify conflict with Munoz. See Baker v. State, 636 So.2d 1342, 1344 (Fla.1994) (“The power to prohibit and criminalize certain acts is within the province of the legislature, not the courts. The burglary statute is clear and unambiguous, and this Court ‘may not modify it or shade it out of any consideration of policy or regard for untoward consequences.’ ”) (quoting McDonald v. Roland, 65 So.2d 12, 14 (Fla.1953)).

In doing so, we note that we find no merit to Michael’s contention that the evidence was insufficient to demonstrate his unauthorized entry into the structure as well. The State presented direct evidence from a neighbor who saw Michael pry open a fence and enter the back yard of the dwelling, and another eye witness who noted the tag number of the vehicle that Michael used to approach and leave the scene. These witnesses testified that Michael disappeared from view into the back yard of the home, and emerged about fifteen minutes later. The homeowner’s contractor had been at the house before Michael arrived, but had left to buy some supplies at Lowe’s. He testified that the house was secured when he left. He returned after Michael’s entry into the back yard, and found that screens on the back of the house had been removed; that windows had been partially opened; and, that some of the insulation and woodwork had been removed. It was clear from the testimony that this damage was done in an unsuccessful attempt to gain entry into the house itself. It appears undisputed that whoever damaged the back of the house had entered the curtilage without the owner’s permission. See § 810.011(2), Fla. Stat. (2008); Dukes v. State, 796 So.2d 1265 (Fla. 4th DCA 2001) (“[0]nce appellant entered the curtilage ... the burglary of ‘a dwelling or the curtilage thereof was complete.”). We agree with the State that the combination of its direct eyewitness testimony placing Michael in the back yard along with the circumstantial evidence (the condition of the home before and after Michael’s entry into the backyard) showing unauthorized entry into the curtilage, was legally sufficient to permit a verdict.

AFFIRMED; CONFLICT CERTIFIED.

GRIFFIN and ORFINGER, JJ., concur.

      . We deem this issue to be preserved at least to the extent that Appellant raises the specter of ineffectiveness of trial counsel. Nesbitt v. State, 819 So.2d 993, 995 n. 1 (Fla. 5th DCA 2002) (Harris, J., concurring specially); Eure v. State, 764 So.2d 798 (Fla. 2d DCA 2000).


author: PER CURIAM. JACOBUS, J.,

text:
    Robert M. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1682.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2010.
    Robert M. Young, Kissimmee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Robert M. Young appeals the summary denial of his rule 3.850 motion. Young’s postconviction motion made several claims of ineffective assistance of trial counsel. Two of those claims merit discussion and warrant reversal.

Young was convicted by a jury of one count of lewd and lascivious exhibition. The crime was perpetrated when an adult male, allegedly Young, exposed his genitalia under the stall of a department store restroom to a young boy in the adjoining stall. The State’s argument at trial was that Young had to be the perpetrator, in part because no other person was in the restroom at the time.

At trial, the testimony of the investigating officer revealed that there was a surveillance videotape depicting the entrance to the restroom area. In his postconviction motion, Young asserted that defense counsel was ineffective for failing to discover the videotape prior to trial and for failing to move for a mistrial when he learned of the tape at trial. These claims should not have been summarily denied. Young alleges that the tape would have confirmed his contention that other men entered and exited the restroom during the time when the State’s witnesses testified that only Young and the victim occupied the room. Because the record attachments do not conclusively refute these allegations, Young is entitled to an eviden-tiary hearing on the claims.

REVERSED and REMANDED for an evidentiary hearing.

LAWSON and EVANDER, JJ., concur.

JACOBUS, J., concurs and concurs specially, with opinion.

JACOBUS, J.,

concurring specially.

It is troubling to this judge that the surveillance tape was not originally secured by the investigating officer. It would be apparent to anyone that the tape would be a critical piece of evidence and a copy, at the minimum, should have been secured. It is also troubling that the officer was permitted to discuss the contents of the tape before the jury since that testimony was clearly inadmissible hearsay. Once the existence of the tape was discovered by Young’s counsel, it would seem that Young would be entitled to a Richardson hearing, even though, as the State claims, the tape was never offered into evidence and was never in its possession.

      . Fla. R.Crim. P. 3.850.

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


text:
    WH SMITH, PLC, Appellant, v. BENAGES & ASSOCIATES, INC., Appellee.
    No. 3D10-1509.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.

      Hunton & Williams and Christopher N. Johnson, Miami, for appellant.
    Joseph A. Carballo, Miami, John Rodriguez, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal from a non-final order denying WH Smith, PLC’s (“Smith PLC”) motion to dismiss for lack of personal jurisdiction, based on the trial court’s finding that Benages & Associates, Inc. (“Benag-es”) established personal jurisdiction under an alter ego theory. Following our de novo review, see Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002), we reverse and remand with instructions to grant Smith PLC’s motion to dismiss as Benages failed to, and cannot, establish personal jurisdiction against Smith PLC under the alter ego theory.

On March 30, 2001, Benages and W.H. Smith, Inc. entered into an Agreement for Consultancy Services (“Agreement”), in which Benages agreed to assist W.H. Smith, Inc. to obtain a five-year lease for retail concessions at Miami International Airport (“MIA”). The Agreement provides that it can be terminated by giving ninety days written notice, but once W.H. Smith, Inc. is operating retail concessions at MIA, the Agreement cannot be terminated. Further, W.H. Smith, Inc. agreed to pay Benages a monthly retainer fee until the lease is executed, and thereafter, a success fee for five years. The Agreement was signed by Sean Anderson as Chief Executive Officer (“CEO”) of W.H. Smith, Inc., which is located in Georgia.

On October 1, 2003, W.H. Smith, Inc. notified Benages that it was terminating the Agreement because W.H. Smith Group Holdings (USA), Inc. decided to exit the United States airport and hotel markets, and therefore, neither WH Smith Airports, Inc. nor any other WH Smith entity would be pursuing or entering into a lease to operate retail concessions at MIA. Benag-es was paid the monthly retainer for ninety days as required by the Agreement, but did not receive the success fee.

In 2003, Benages filed an action against W.H. Smith, Inc., W.H. Smith Airport Partners, Inc., W.H. Smith of Florida, Inc., and W.H. Smith Group Holdings, Inc. (“Smith U.S. Defendants”) and others, alleging, in part, a breach of the Agreement. In August 2009, a final default judgment was entered against the Smith U.S. Defendants, which are now defunct.

Thereafter, in February 2010, Benages filed its Amended Motion to Pierce the Corporate Veil of W.H. Smith Group Holdings and to Implead W.H. Smith, P.L.C. (“Motion to Pierce”), setting forth jurisdictional allegations based on an alter ego theory. The Motion to Pierce requested that the trial court enter an order (1) piercing the corporate veil of the Smith U.S. Defendants; (2) impleading the alter ego corporate parent of the Smith U.S. Defendants — Smith PLC; and (3) holding Smith PLC liable as the alter ego of the Smith U.S. Defendants. The Motion to Pierce asserted, in part, that the Smith U.S. Defendants were dominated and controlled by their corporate parent, Smith PLC, and Smith PLC used the Smith U.S. Defendants for an improper purpose— Smith PLC directed the Smith U.S. Defendants to breach the Agreement knowing that any judgment against the Smith U.S. Defendants would be uncollectible. The Motion to Pierce relied, in part, on the 2009 deposition of Sean Anderson, the former CEO of W.H. Smith, Inc., who testified that “all decisions with regard to U.S.A. were made in London.”

In response, Smith PLC filed a Motion to Dismiss for Lack of Personal Jurisdiction (“Motion to Dismiss”) and several affidavits in support of its Motion to Dismiss, asserting as follows. W.H. Smith Group Holdings, Inc. is a Nevada corporation which directly or indirectly owned the remaining three Smith U.S. entities — W.H. Smith, Inc., W.H. Smith Airport Partners, Inc., and W.H. Smith of Florida, Inc. Smith PLC asserted that it has no minimum contacts with Florida because it does not own or lease property in Florida; has no agents, offices, registered agent, or employees in Florida; has never held a meeting in Florida; and has never done business in Florida. Further, Smith PLC is a public limited company organized under the laws of England and Wales, with its principal place of business in the United Kingdom, and the Smith U.S. Defendants are United States-based, indirect subsidiaries of Smith PLC.

Smith PLC argued that Benages failed to allege any facts to support its allegations that the Smith U.S. Defendants had no independence or that the Smith U.S. Defendants were mere “shams” or “shells.” Rather, the affidavits reflect that the WH Smith entities in the United States had thousands of employees and hundreds of retail stores, and had significant assets and revenues, with W.H. Smith Group Holdings, Inc. reaching over $800 million in sales in 2003. The Smith U.S. Defendants had their own bank accounts, with United States-based employees and managers who were signatories on these bank accounts. The Smith U.S. Defendants never leased any property from Smith PLC, and instead, the Smith U.S. Defendants leased properties in their own names, with none being co-signed or guaranteed by Smith PLC. Further, decisions relating to the Smith U.S. Defendants were not made by Smith PLC, and the Smith U.S. Defendants operated independently. As to the Agreement, Smith PLC was not a party to the Agreement; Smith PLC has never had business dealings with Benages; and Smith PLC did not have any involvement in any attempt to obtain a concession at MIA. Although Smith PLC and the Smith U.S. Defendants had separate board of directors and officers, at various times, they did have one overlapping officer.

Following the Motion to Dismiss, Benag-es filed the affidavit of Michael Benages, who, in essence, averred that by April 2002 — which is after Benages and W.H. Smith, Inc. entered into the Agreement but before the “formal Concession bidding process began” — Smith PLC already had decided to exit the United States markets and to sell the Smith U.S. Defendants. To make the sale of the Smith U.S. Defendants more attractive to potential buyers, Smith PLC used the Smith U.S. Defendants to “fool” Benages into believing that the Smith U.S. Defendants intended to actually operate concessions at MIA once it obtained the concessions through the bidding process. Benages, however, was not aware that Smith PLC was making “all significant decisions” for the Smith U.S. Defendants and that Smith PLC had already decided to sell off the Smith U.S. Defendants.

In addition to Mr. Benages’ affidavit, Benages also filed a second affidavit which was executed by Mr. Anderson, stating: “[D]uring my tenure with W.H. Smith, Inc., WH Smith PLC dominated the Smith U.S. Defendants and made all significant decisions for the Smith U.S. Defendants, each of which took direction from Smith PLC.”

Following a hearing, at which no live testimony was taken, the trial court, relying on the voluminous discovery, denied the Motion to Dismiss, concluding:

Well, motion to dismiss is denied. Not because of the allegations I heard about bid rigging or campaign contributions or securities fraud. But my belief is the acts of PLC in terms of — I’m sorry — the acts of Smith U.S.A. going forward with attempting to get the bid when it appears as if through PLC they’d already made the decision not [to] follow through with the contract for the purpose of making Smith U.S.A. look more marketable was sufficient.

The trial court entered an order denying Smith PLC’s motion to dismiss. This non-final appeal followed.

Smith PLC contends that the trial court erred by denying its Motion to Dismiss. We agree because, as a matter of law, based on the disputed facts, which we view in the light most favorable to Benages, and the uncontroverted facts, Benages cannot establish that Smith PLC was the alter ego of the Smith U.S. Defendants.

In the instant case, Benages relied on the “alter ego theory,” not Florida’s long-arm statute, section 48.193, Florida Statutes (2009), to establish personal jurisdiction over Smith PLC. Under the alter ego theory, “[a] nonresident shareholder of a corporation doing business in Florida may be subject to long-arm jurisdiction” if the alter ego test can be met. Aldea Comm’ns, Inc. v. Gardner, 725 So.2d 456, 457 (Fla. 2d DCA 1999); see also Bellairs v. Mohrmann, 716 So.2d 320, 322 (Fla. 2d DCA 1998) (“Under the alter ego theory of long-arm jurisdiction, a nonresident shareholder of a resident corporation may be subject to long-arm jurisdiction where the alter ego test can be met.”).

To establish jurisdiction under the alter ego theory, the plaintiffs pleading must set forth sufficient jurisdictional allegations to pierce the corporate veil of the resident corporation. Bellairs, 716 So.2d at 322. The corporate veil cannot be pierced unless the plaintiff can establish “both that the corporation is a ‘mere instrumentality’ or alter ego of the defendant, and that the defendant engaged in ‘improper conduct’ in the formation or use of the corporation.” Id. at 323 (citing Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120-21 (Fla.1984)); see also Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008); Merkin v. PCA Health Plans of Fla., Inc., 855 So.2d 137 (Fla. 3d DCA 2003); Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254 (Fla. 4th DCA 1984).

“[T]he procedure for determining long-arm jurisdiction set forth in Venetian Salami ... is universal and therefore applicable to the alter ego theory.” Merkin, 855 So.2d at 141 (citing Bellairs, 716 So.2d at 323). As summarized in Bellairs, the procedure set forth in Venetian Salami is as follows:

[A] plaintiff must first allege a jurisdictional basis in his pleading. Then, if the defendant wishes to contest these allegations, he must file an affidavit specifically addressing the allegations. Once a defendant submits an appropriate affidavit, the plaintiff must support his allegations with an affidavit of his own. If no disputed factual issues appear on the face of the opposing affidavits, the trial court can decide the long-arm issue without holding an evidentiary hearing. However, if the opposing affidavits conflict with one another, the trial court must “hold a limited evidentiary hearing in order to determine the jurisdiction issue.”

Bellairs, 716 So.2d at 823 (quoting Venetian Salami, 554 So.2d at 502-03).

In the instant case, as outlined above, after Benages filed its Motion to Pierce, setting forth the jurisdictional allegations under the alter ego theory, the burden shifted to Smith PLC to contest the allegations. Smith PLC then filed several affidavits specifically addressing the allegations set forth in Benages’ Motion to Pierce, thereby shifting the burden back to Benages. In response to Smith PLC’s motion to dismiss and affidavits, Benages then filed Mr. Anderson’s second affidavit, which averred: “[DJuring my tenure with W.H. Smith, Inc., WH Smith PLC dominated the Smith U.S. Defendants and made all significant decisions for the Smith U.S. Defendants, each of which took direction from Smith PLC.” At the hearing on Smith PLC’s Motion to Dismiss, the trial court did not hear any live testimony, but instead relied solely on the arguments of the parties and the voluminous discovery relating to jurisdiction over Smith PLC based on the alter ego theory.

In reviewing the pleadings and the affidavits filed by the parties, we conclude that portions of the affidavits submitted by Benages and Smith PLC are in conflict. Generally, if the opposing affidavits conflict with one another, the trial court is required to “hold a limited evidentiary hearing in order to determine the jurisdiction issue.” Venetian Salami, 554 So.2d at 502-03. Therefore, we are required to reverse and remand for an evidentiary hearing, unless we can conclude that, as a matter of law, based on the uncontroverted facts and the controverted facts, viewed in the light most favorable to Benages, it cannot establish the two-prong test to pierce the corporate veil — that the Smith U.S. Defendants were “mere instrumental-ities” or alter egos of Smith PLC, and that Smith PLC engaged in “improper conduct” in the formation or use of the Smith U.S. Defendants.

First, we address whether the Smith U.S. Defendants were “mere instru-mentalities” or alter egos of Smith PLC. In Gasparini, this Court stated that in order to establish the first prong, the plaintiff must plead and prove that “the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation.” 972 So.2d at 1055.

Without rehashing the facts set forth above, the undisputed evidence showed that the Smith U.S. Defendants were incorporated and existed in the United States years before W.H. Smith, Inc. and Benages entered into the Agreement. While in existence, the Smith U.S. Defendants (1) leased their own offices, without Smith PLC co-signing or guaranteeing any of the leases; (2) maintained their own bank accounts, with United States-based employees being signatories on the accounts; (3) had hundreds of retail units and thousands of employees, with W.H. Smith Holdings, Inc. generating over $300 million in revenues in 2003; and (4) had separate management, board of directors, and officers, although at various times, Smith PLC and the Smith U.S. Defendants shared one officer. Further, viewing the disputed facts in the light most favorable to Benages, Smith PLC: (1) made “all significant decisions” for the Smith U.S. Defendants; (2) directed the Smith U.S. Defendants to continue their effort, with the assistance of Benages, to obtain the MIA concessions, although Smith PLC had already decided to sell the Smith U.S. Defendants and exit the U.S. market, and therefore, even if awarded the MIA concessions, the Smith U.S. Defendants would never operate concessions at MIA; and (3) never informed Benages of this decision, which was made to make the Smith U.S. Defendants more attractive to potential buyers. Based on these facts, many of which were taken in the light most favorable to Benages, although Smith PLC made “all significant decisions” for the Smith U.S. Defendants, the Smith U.S. Defendants were far from being “shams” or “shells.” Therefore, as Benages cannot establish the first prong, the trial court erred by denying Smith PLC’s Motion Dismiss.

Although we have concluded that Benages cannot establish the first prong, and therefore the order under review must be reversed, we briefly address the second prong — whether Smith PLC engaged in “improper conduct” in the formation or use of the Smith U.S. Defendants. In essence, even if it is true that Smith PLC instructed the Smith U.S. Defendants to breach the Agreement, this conduct, without more, does not constitute the type of “improper conduct” necessary to pierce the corporate veil. See Geigo Props., LLP v. R.J. Gators Real Estate Grp., Inc., 849 So.2d 1109, 1110 (Fla. 4th DCA 2003) (“The trial court did not err when it found that the mere use of a shell corporation to enter into the lease, and the subsequent breach of the lease by failing to pay rent, did not constitute the type of improper conduct necessary to pierce the corporate veil.”); see also N. Am. Clearing, Inc. v. Brokerage Computer Sys., Inc., 666 F.Supp.2d 1299, 1308 (M.D.Fla.2009) (holding that under Florida law, “[clausing a corporation to intentionally breach a contract or commit conversion, without more, does not mislead or defraud creditors such that the corporate veil should be pierced.... However, creditors are defrauded incident to a breach of contract or act of conversion where the breaching alter ego transfers funds out of the corporation such that the corporation’s creditors cannot collect on their claims”).

Accordingly, we reverse the order under review and remand with instructions to enter an order granting Smith PLC’s Motion to Dismiss.

Reversed and remanded.

      . As Benages was traveling under the alter ego theory of long-arm jurisdiction, not section 48.193, it was not required to establish the "two-step process for establishing long-arm jurisdiction as set forth in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).” Bellairs v. Mohrmann, 716 So.2d 320, 323 (Fla. 2d DCA 1998). The two-step process is as follows: "First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of [section 48.193]; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Venetian Salami, 554 So.2d at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987) (citations omitted)).


text:
    Manuel ISMAEL, Appellant, v. CERTAIN LANDS UPON WHICH SPECIAL ASSESSMENTS ARE DELINQUENT, Appellee.
    No. 3D10-1394.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Rehearing Denied Jan. 28, 2011.

      Peter C. Bianchi, Jr., Miami, for appellant.
    Kuvin & Stettin and Eric L. Stettin, Fort Lauderdale, for appellee Joel Israel; John L. Penson, Bay Harbor Islands, for appellee Bullet Cement Co.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

Manuel Ismael (“the former owner”) appeals from an order denying his exceptions to the report and recommendation of the general magistrate, and the final order denying his motion to vacate the default final judgment and foreclosure sale. We affirm.

In 2003, the City of Miami passed an ordinance authorizing the City Attorney “to take any action in law or in equity to collect on municipal liens, including, but not limited to foreclosure,” and providing the City Attorney with the power to “delegate this authority to the holders of municipal liens or their counsel.” Miami, Fla., Resolution R-03-1221 (Dec. 18, 2003). Joel Israel (“the lienholder”) had previously purchased lien certificates from the City on multiple properties upon which special assessments were outstanding. One of those properties (“Parcel 9”) belonged to the former owner. On June 1, 2004, the City Attorney sent a letter to the lienholder, assigning to him the City’s right to take any action at law or in equity to collect on the lien certificates the lienholder held.

Pursuant to that assignment, counsel for the lienholder mailed two written notices of his intent to foreclose on Parcel 9 to the former owner. The former owner did not respond. In July 2005, the lienholder, “as authorized delegate and assignee of the City of Miami,” filed the instant action in rem to foreclose on a number of properties, including Parcel 9. The lienholder proceeded under section 173.02, Florida Statutes (2005), which provides for actions in rem to foreclose upon outstanding special assessment liens. Section 173.04(1) provides that such suits shall be brought “in the name of the city or town whose ... special assessments are sought to be enforced.”

Notice and a copy of the complaint were sent by certified mail and received by the former owner. Also, the clerk of the trial court published notice of the lawsuit in a weekly newspaper. The former owner did not appear, and the trial court granted the lienholder’s motion for default. On April 3, 2006, the trial court entered a final default judgment of foreclosure as to Parcel 9. The trial court appointed a special master to conduct the foreclosure sale. Notice of the sale was mailed to the former owner and published by the clerk of the trial court in a weekly newspaper. Bullet Cement Co. (“Bullet”) was the highest bidder at the foreclosure sale. On May 18, 2006, the trial court confirmed the sale, and Bullet obtained title to Parcel 9.

In December 2007, the former owner moved to vacate the final default judgment of foreclosure and sale, arguing that the judgment was void. The trial court referred the matter to a general magistrate who, after a series of evidentiary hearings, issued her report and recommendation rejecting the former owner’s arguments. The trial court issued an order denying the former owner’s exceptions to the general magistrate’s report and recommendation. The trial court then issued an order denying the former owner’s motion to vacate the final default judgment. This appeal followed.

The former owner first argues that the final default judgment is void because the lienholder had no standing to proceed under chapter 173. Because section 173.04(1) requires that such actions in rem be commenced “in the name of the city or town whose ... special assessments are sought to be enforced,” the former owner contends that under no circumstances may an individual commence an action under chapter 173. We disagree.

Without question, the City was authorized to commence a chapter 173 foreclosure action. By valid ordinance, the City Attorney was granted the authority to delegate and assign the City’s right to take any action at law or in equity to collect on outstanding special assessment liens to individual lienholders. By letter, in June 2004, the City Attorney assigned to the lienholder the City’s right to foreclose on multiple properties, including Parcel 9. In Florida, statutory rights are freely assignable in the absence of an express or obvious prohibition. VOSR Indus., Inc. v. Martin Props., Inc., 919 So.2d 554, 556 (Fla. 4th DCA 2005) (“Florida law recognizes the general right to assign common law and statutory rights, unless there is an express prohibition in a statute, or a showing that an assignment would clearly offend an identifiable public policy.”); see also Art. VIII, § 2(b), Fla. Const. (“Municipalities ... may exercise any power for municipal purposes except as otherwise provided by law.”); § 17.0415, Fla. Stat. (2005) (authorizing Chief Financial Officer to assign state claims against third parties to facilitate collection); Cnty. Collection Servs., Inc. v. Charnock, 789 So.2d 1109, 1110 (Fla. 4th DCA 2001) (holding that “Palm Beach County does have the power to assign [lot clearing and code enforcement] liens”).

The former owner has not provided this Court with any statutory provision, case, or persuasive policy argument suggesting that the City’s assignment of the instant special assessment liens should be invalidated. Accordingly, we hold that the lien-holder, as “delegate and assignee of the City of Miami,” had standing under chapter 173, and properly commenced this action in rem as against Parcel 9.

Next, the former owner contends that he was not notified of the lienholder’s lawsuit and subsequent foreclosure sale in strict accordance with chapter 173, and therefore, the judgment cannot stand for lack of personal jurisdiction. Again, we disagree.

The general magistrate — considering the multiple notices received at the former owner’s residence and the notices published in the newspaper — found that the former owner had both actual and constructive notice of the lawsuit and foreclosure sale. The former owner did not specifically challenge that finding, and based on the record now before us, we see no reason to disturb it. Instead, we conclude that the former owner received notice of the proceedings, and any alleged technical error in notice was harmless. See Krischer v. Sch. Bd. of Dade Cnty., 555 So.2d 436, 437 (Fla. 3d DCA 1990) (holding that technical violation of statutory notice provision did not require reversal of order terminating teacher’s employment where teacher was not prejudiced); S. Kornreich & Sons, Inc. v. Titan Agencies, Inc., 423 So.2d 940, 942 (Fla. 3d DCA 1982) (refusing to agree that technical statutory notice violation was harmful).

Furthermore, we note that the trial court’s jurisdiction over both the lands and parties involved in this case was conferred by publication of notice and of the lawsuit and sale by the clerk of the trial court in 2005. § 173.04(3). Thus, the former owner’s jurisdictional arguments (as to both personal and subject matter jurisdiction) are without merit.

We therefore affirm the trial court’s orders denying the former owner’s exceptions to the report and recommendation of the general magistrate, and denying the former owner’s motion to vacate the default final judgment of foreclosure and sale as to Parcel 9.

Affirmed.

      . As the general magistrate correctly found, the four-year statute of limitations in section 95.11(3)(p), bars any challenge to Miami, Florida, Resolution R-03-1221, and thus, the ordinance is valid.


text:
    Jarvis CRAWFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2315.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.

      Jarvis Crawford, in proper person.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Jarvis Crawford appeals the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In case no. 06-22516, on February 2, 1010, Crawford entered a plea of guilty to armed robbery with a firearm or deadly weapon and possession of a firearm by a convicted felon. On the same day, Crawford was sentenced to five years in prison, followed by seven years probation and two years community control. Crawford was sentenced as a habitual felony offender. He received 1303 days of credit for time served.

In case no. 06-25355, also on February 2, 2010, Crawford entered a plea of guilty to two counts of armed robbery with a firearm or deadly weapon and attempted armed robbery. On the same day, Crawford was sentenced to five years in prison on all three counts, to be served concurrently with the sentences imposed in case no. 06-22516. This prison sentence was followed by seven years probation and two years community control. Crawford was sentenced as a habitual felony offender.

The State claims that the sentence indicated that Crawford would be allowed a total of the specified time as credit for time served prior to the imposition of the sentence, but that the space provided to indicate the amount of credit for time served was left blank.

Crawford then filed his 3.800(a) motion for credit for time served, in which he claims that he is entitled to 1281 days credit for time served. The trial court summarily denied the motion. Crawford then filed this appeal.

Although the State claims that Crawford has received all the credit for time served to which he was entitled, nothing in the record before us reflects this. The post-conviction record before us does not conclusively refute Crawford’s allegation that he did not receive the correct credit for time served.

Accordingly, we reverse the summary denial of Crawford’s 3.800(a) motion. On remand, if the trial court again enters an order summarily denying the motion, the trial court shall attach written portions of the record conclusively refuting Crawford’s claim. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.


author: WELLS, Judge.

text:
    Eric DUQUE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3227.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Eric Duque, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA JJ.
   WELLS, Judge.

Eric Duque appeals from the denial of his Florida Rule of Criminal Procedure 3.850 motion in which he raised six claims of ineffective assistance of counsel. We agree with the court below that the first three claims raised therein regarding defense counsel’s failure to secure a psychiatric evaluation prior to Duque’s acceptance of a plea are without merit. We also agree that his fifth claim regarding whether he was adequately advised of all of the consequences of a habitual offender sentence was properly denied on the merits. However, we reverse the trial court’s summary denial of his fourth and sixth claims, which we, like Duque, treat as a single claim regarding counsel’s failure to advise him of the maximum sentence which he faced pri- or to rejecting an initial plea offer. See Revell v. State, 989 So.2d 751, 752 (Fla. 2d DCA 2008) (finding that trial counsel’s failure to advise the defendant of the possibility and consequences of being sentenced as a habitual felony offender while the State’s plea offer was still open constituted ineffective assistance of counsel).

On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for either an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

      . Duque treats these claims as a single claim in his initial brief filed herein acknowledging that, while inartful, these claims taken together raise an issue regarding counsel’s failure to advise the defendant of the statutory maximum sentence that he was facing.


text:
    Ezra NAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2011.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 2010.
    Clayton R. Kaeiser, Miami, for appellant.

      Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

In 1999, Ezra Naylor (“the defendant”) was convicted of the first-degree murder of Shawn Duncombe (“the victim”), and sentenced to life imprisonment. The defendant appeals the trial court’s summary denial of his 2009 motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

In his motion, the defendant claims he is entitled to a new trial on the basis of newly discovered evidence. The newly discovered evidence is a 1997 statement allegedly made by the now-deceased victim to a fellow inmate, that Jacqueline Mesi-dor, the arresting officer in this case, “had [the victim’s] back with other polices [sic] and dealers.” Such a claim is subject to a two-prong test: (1) the evidence must have been unknown at the time of trial (and it must appear incapable of being known by the use of due diligence) by the defendant, defense counsel and the trial court; and (2)the evidence must be of such nature that it would probably produce an acquittal on retrial. Jones v. State, 709 So.2d 512, 521 (Fla.1998).

We conclude that the first prong of the test has been satisfied. As to the second prong, the trial court found that the “newly discovered evidence” was inadmissible, and thus was not of such a nature that it would probably produce an acquittal on retrial. We review this ruling for an abuse of discretion. Carpenter v. State, 785 So.2d 1182, 1201 (Fla.2001).

The trial court found that the victim’s alleged statement was inadmissible as an exception to the hearsay rule because it did not tend to expose the declar-ant-victim to criminal liability. We agree. See § 90.804(2)(c), Fla. Stat. (2010) (providing exception to hearsay rule where the unavailable declarant’s statement is made against his or her pecuniary, proprietary, or penal interest); Perez v. State, 980 So.2d 1126, 1183 (Fla. 3d DCA 2008) (“Non-self-incriminatory statements, even if they are made within a broader narrative that is generally self-inculpatory, are not admissible.”). Because the victim’s alleged statement does not fall within any of the exceptions to the hearsay rule, we conclude that the trial court did not abuse its discretion in determining that the offered statement was inadmissible. Thus, the defendant’s motion was properly denied.

Finally, we note that a prior panel reviewing the evidence in this case found that there was “overwhelming evidence presented as to Naylor’s guilt.” Naylor v. State, 748 So.2d 385, 386 (Fla. 3d DCA 2000). This evidence included the accounts of two independent eyewitnesses that bolstered Officer Mesidor’s account of the events surrounding the victim’s murder. Accordingly, the defendant failed to meet his burden of establishing that consideration of the inmate’s statement would “probably produce an acquittal on retrial.” Jones, 709 So.2d at 521. Therefore, we affirm the trial court’s order denying post-conviction relief on the basis of newly discovered evidence.

Affirmed.