author: TAYLOR, J.

text:
    Allen F. STEWART, Appellant, v. Jennifer S. WALKER, Appellee.
    No. 4D08-838.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2009.

      Allen F. Stewart, Fort Lauderdale, pro se.
    Jennifer Walker, Taunton, MA, pro se.
   TAYLOR, J.

Allen Stewart, the biological father of Tyler Stewart, appeals the trial court’s Final Order on Motion for Evidentiary Hearing and Reconsideration. The order determined that the father did not have standing to bring claims of intentional interference in custodial rights and intentional infliction of emotional distress against Jennifer Walker, the biological mother of his child. The father argues that the trial court incorrectly applied the common law principle that an unwed father has no equitable interest in his own child rather than abiding by § 742.031(2), Florida Statutes. He also asserts that intentional infliction of emotional distress is not dependent on a familial relationship. We affirm the trial court’s order regarding the claim of intentional interference in custodial rights, but reverse dismissal of the claim of intentional infliction of emotional distress.

Appellant acknowledged paternity at Tyler’s birth in a Florida hospital, and both he and Jennifer Walker, the biological mother, executed an acknowledgment. Without the father’s knowledge or consent, the mother moved with Tyler to Massachusetts. Eventually, the mother filed a com- . plaint to establish paternity in a Massachusetts court.

A November 2006 order from a Massachusetts court outlined the parties’ lengthy litigation. The Massachusetts court found that:

Massachusetts does have subject matter jurisdiction because it was the home state of the child when the initial action was brought and Father’s acknowledgment of paternity is not the equivalent of a child custody determination under Massachusetts law, Florida law, or Federal law. Indeed, after the child resided in Massachusetts for six months, Florida lost any subject matter jurisdiction it may have had under its statutes.

The court noted that the Massachusetts proceedings were initiated in April 2004, after the mother and Tyler had lived there for more than six months, but that Florida custody proceedings were not initiated by the father until March 2005. The court further explained that the father had never proven that the mother wrongfully left Florida. It concluded that it had jurisdiction under the Massachusetts Child Custody and Jurisdiction Act, the Parental Kidnapping and Prevention Act, and Uniform Child Custody Jurisdiction and Enforcement Act.

In December 2006 a Florida trial court issued a Case Management Order. It determined that Massachusetts had proper jurisdiction over the matter and that Florida could not exercise jurisdiction unless Massachusetts relinquished jurisdiction. The trial judge explained that the fact that Tyler had a Florida birth certifícate listing Stewart as a parent was irrelevant to the custody determinations. In January 2007, a Massachusetts court ordered that, on a temporary basis, the father had the right to visit Tyler every other weekend, certain holidays, and ten continuous days in the summer months.

In January 2007 the father filed a complaint against the mother in a Florida court, alleging that the mother had engaged in tortious misconduct by unilaterally relocating the couple’s son. He specifically accused the mother of tortious interference with the parent-child relationship and tortious intentional infliction of severe emotional distress.

In January 2008 a Florida trial judge rendered a Final Order Denying Plaintiffs “Motion for Jurisdictional Hearing and to Unabate Discovery” and Order on Court’s Sua Sponte Motion Dismissing Cause for Lack of Standing. The trial court stated, “[t]he Plaintiff herein lacks standing to bring this suit because he is not the custodial parent. Florida law deems the biological mother as custodial parent of a child born out of wedlock. §§ 742.081; 744.801 Fla. Stat.” The trial court later rendered a Final Order on Motion for Evidentiary Hearing and for Reconsideration, in which it denied the motions with prejudice. This appeal followed.

In Stone v. Wall, 734 So.2d 1038, 1047 (Fla.1999), the Florida Supreme Court first recognized the cause of action of tortious interference with a custodial parent-child relationship by a non-parent. The court cited Restatement of Torts (Second) § 700 (1977) for the modern definition of this cause of action:

One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.

Id. at 1041-42; see also Brown v. Brown, 800 So.2d 359, 361 (Fla. 4th DCA 2001). A key element of the cause of action is that “the plaintiff had superior custody rights to the child and that the defendant intentionally interfered with those rights.” Stone, 734 So.2d at 1042 (emphasis added).

The trial judge in this case determined that the father did not have standing to bring the claim under the two Florida statutes discussed below. Section 744.301(1), Florida Statutes (2007), provides that:

The mother and father jointly are natural guardians of their own children and of their adopted children, during minority.... The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.

§ 744.301(1), Fla. Stat. Under the statute, when an unwed father “demonstrates and carries out the requisite settled purpose to be a father, he comes within the first sentence of the statute, making him a natural guardian along with the unwed mother.” State v. Earl, 649 So.2d 297, 298 (Fla. 5th DCA 1995) (citing DeCosta v. N. Broward Hosp. Dist., 497 So.2d 1282 (Fla. 4th DCA 1986)). The last sentence, which states that the mother of a child born out of wedlock is the natural guardian, applies only when there is no father who has declared his paternity and acted like a father to the child. Id. The trial judge erred in determining that the father had no standing based on this particular statute, because the father had formally acknowledged his paternity and acted as a father to Tyler in both an economic and emotional sense.

However, the trial judge was correct in finding a lack of standing pursuant to a second statute. Section 742.031(2), Florida Statutes (2007), states:

If a judgment of paternity contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting primary residential care and custody to the other parent without prejudice. If a paternity judgment contains no such provisions, custody shall be presumed to be with the mother.

§ 742.031(2), Fla. Stat.

In this case, the father had been temporarily granted visitation by a Massachusetts court, so the mother was the parent with primary residential care and custody pursuant to the first sentence of section 742.031(2). Under the definition of tortious interference with a custodial parent-child relationship, therefore, the father had no standing because he did not have custody of Tyler. Moreover, his parental rights were inferior to the mother’s. Thus, the trial judge properly found that the father did not have standing to bring this cause of action against the mother under § 742.031(2), Fla. Stat.

With regard to the intentional infliction of emotional distress claim, the trial court erred in determining that the father lacked standing and in dismissing the claim. The elements of this cause of action are the following:

(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
(2) The conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
(3) The conduct caused emotional distress; and
(4) The emotional distress was severe.

LeGrande v. Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004). The concept of “standing” in terms of custodial rights is therefore irrelevant if the father can satisfy the four elements of the tort. The trial court erred in dismissing this cause of action.

We therefore affirm the trial court’s order dismissing the intentional interference with custodial rights claim, but reverse that portion of the order dismissing the intentional infliction of emotional distress claim and remand for further proceedings.

Affirmed in part; Reversed in part and Remanded.

HAZOURI, J, and BLANC, PETER D., Associate Judge, concur.

      . The father previously appealed a final order of dismissal with prejudice. That appeal had to do with his custody battle in the Florida court system. In his initial brief he argued that the trial court erred in presuming that the mother was the custodial parent of the child, that the parties’ paternity affidavit acted as a judicially entered judgment of paternity and therefore must be given full faith and credit as a child custody determination, and that the trial court erred in determining that a Massachusetts court’s exercise of jurisdiction was proper. This court issued a PCA in Stewart v. Walker, 981 So.2d 1219 (Fla. 4th DCA 2008).


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    Terry L. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6355.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Rehearing Denied April 9, 2009.
    Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Joel T. Remland, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Resisting an officer with violence, in violation of section 843.01, Florida Statutes (2006), is a “felony that involves the use or threat of physical force or violence against an individual,” and so is punishable under the prison releasee reoffender statute. § 775.082(9)(a)l.o., Fla. Stat. (2006). In affirming on this basis the partial denial of Mr. Harris’ Florida Rule of Criminal Procedure 3.800 motion, we align ourselves with the Second and Fifth Districts. See Rawlings v. State, 976 So.2d 1179, 1181-82 (Fla. 5th DCA 2008); Green v. State, 973 So.2d 1253, 1253 (Fla. 5th DCA 2008); Walker v. State, 965 So.2d 1281, 1283-84 (Fla. 2d DCA 2007).

Like our sister courts, we begin our analysis with the statute itself, read in light of the supreme court’s opinion in State v. Hearns, 961 So.2d 211, 216 (Fla.2007), which construes another sentencing statute with similar language. There the supreme court said that, “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular [factual] circumstances,” Hearns, 961 So.2d at 212, harking back to an earlier decision where the court had taken the same approach. See Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991). See also Dautel v. State, 658 So.2d 88, 89 (Fla.1995) (holding “only the [statutory] elements of the out-of-state crime should be considered in determining whether that conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet”).

The statutory language to be construed in the present case defines offenses eligible for prison releasee reoffender sentencing to include any felony involving “the use or threat of physical force or violence ... within 3 years after [the felon’s] ... release[] from a state correctional facility.” § 775.082(9)(a)l.o., Fla. Stat. (2006). Appellant stands convicted of “resisting officer with violence to his or her person” during the relevant time period, in violation of section 843.01, which provides:

Whoever knowingly and willfully resists ... any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree....

§ 843.01, Fla. Stat. (2006). Offering to do violence plainly involves the “threat of physical force or violence” while actually doing violence plainly involves the “use ... of physical force or violence.” § 775.082(9)(a)l.o., Fla. Stat. (2006). Under section 775.082(9)(a)l.o., any felony— or felony attempt — that, like appellant’s, occurs within the relevant time period qualifies as punishable by prison releasee reoffender sentencing if an element of the felony involves even the threat of violence.

In this regard, resisting an officer with violence to his or her person, in violation of section 843.01, differs significantly from simple battery on a law enforcement officer, which the He arras court ruled did not qualify as a forcible felony. Our supreme court held that simple “battery on a law enforcement officer” might involve merely a nonviolent, albeit unwanted, touching, and need “not ‘involve the use or threat of use of physical force or violence.’ ” Hearns, 961 So.2d at 213. See also id. at 219-20; D.C. v. State, 436 So.2d 203, 206 (Fla. 1st DCA 1983) (“[I]t is clear from Section 784.03 that any intentional touching of another person against such person’s will is technically a criminal battery.”); L.D. v. State, 355 So.2d 816, 817 (Fla. 3d DCA 1978) (“[I]t is clear that the force used in criminal battery need not be sufficient to injure.”).

Unlike battery on a law enforcement officer, however, resisting an officer with violence to his or her person in violation of section 843.01, does qualify for prison re-leasee reoffender sentencing. As every other court considering the question has held, “ ‘[s]ince resisting arrest with violence is a felony that involves the use or threat of physical force or violence, the offense is a qualifying offense under’ the PRR statute.” Walker, 965 So.2d at 1283-84 (quoting Watson v. State, 749 So.2d 556, 556 (Fla. 2d DCA 2000)). See Rawlings, 976 So.2d at 1181-82; Green, 973 So.2d at 1253.

Affirmed.

WOLF and BROWNING, JJ., concur.

       The violent career criminal statute the Hearns court construed applies to any offense defined as a forcible felony by section 776.08. See State v. Hearns, 961 So.2d 211, 216-17 (Fla.2007). Section 776.08, Florida Statutes (2006), provides:
      "Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.


author: PER CURIAM.

text:
    TRI-CITY ELECTRIC and Amerisure Insurance Co., Appellants, v. R. James WERNER, Appellee.
    No. 1D08-3996.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Scott A. Cole and Luisa M. Linares of Cole, Scott & Kissane, P.A., Miami, for Appellants.
    Joan Dymond Horenstein of the Law Office of Joan Dymond Horenstein, P.A., Davie, for Appellee.
   PER CURIAM.

The Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC) award of temporary partial disability benefits, a second, one-time change in physicians, and the award of attorney’s fees and costs. We affirm in part, reverse in part, and remand. Our review indicates the JCC’s award of temporary partial disability benefits, as well as entitlement to an attorney’s fee and costs for securing the same, is supported by competent, substantial evidence. Consequently, we affirm on these issues. However, the JCC erred as a matter of law by awarding Claimant a second, one-time change in physician. Accordingly, we reverse that award, as well as the award of attorney’s fees and costs based on securing that benefit.

Claimant sustained a hernia and a low back injury as a result of his February 28, 2007, accident. When Claimant was dissatisfied with his first general surgeon, he requested and received a change of physician. Later, he came under the care of an orthopedic physician for his low back injury. When he became dissatisfied with the authorized orthopedic physician, he once again requested a change of physician. The E/C denied his request. The JCC found the E/C’s denial was “untenable because the nature of the claimant’s injuries requires different specialties.”

We addressed whether section 440.13(2)(f), Florida Statutes, permitted one change in physician for each accident, or one change per specialty, in Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008). In that case, we held the plain language of the statute allowed only one change per accident. Because the JCC erred in awarding a second, one-time change in physician, the award of an attorney’s fee and costs for obtaining that benefit is reversed as well.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.


text:
    Nazar KALOUSTIAN, Appellant, v. TAMPA ARMATURE WORKS, INC. and Liberty Mutual Insurance Company, Appellees.
    Nos. 1D08-3088, 1D08-3940.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Tara L. Sa’id of Law Office of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

In these consolidated appeals, Claimant 'raises two issues. The first concerns the Judge of Compensation Claims’ (JCC) award of costs to the Employer/Carrier (E/C) pursuant to section 440.34(3), Florida Statutes. The second concerns the JCC’s finding that Claimant’s claim for an independent medical examination (IME) was barred by the statute of limitations. For the reasons explained below, we reverse as to the first issue. We affirm as to the second without further comment.

Claimant filed two petitions for benefits (PFBs), one of which requested, inter alia, an orthopedic IME. Both PFBs pertained to the same August 15, 2003, date of accident. In response to these PFBs, the E/C filed two motions for summary final order, and in both motions asserted entitlement to costs pursuant to section 440.34, Florida Statutes. The JCC granted both summary final order motions, and awarded the E/C costs payable by Claimant pursuant to section 440.34(3), Florida Statutes.

On appeal, the E/C concedes the award of prevailing party costs was error, because Claimant’s date of accident predates the October 1, 2003, version of section 440.34(3), which permits such an award. The E/C asserts, however, that citation to that section in both of their motions, and in both of the JCC’s summary final orders, was a scrivener’s error. The E/C contends the proper statutory basis for awarding costs was section 440.32, Florida Statutes.

Section 440.32(1) provides for an award of costs if the JCC “determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground.... ” Section 440.32(2) provides for an award of costs if the JCC “determines that the proceedings were maintained or continued frivolously....” However, in neither of the E/C’s motions for summary final order did the E/C assert Claimant’s PFBs included claims instituted or maintained without reasonable ground, or that the PFBs themselves were maintained or continued frivolously. Likewise, the JCC made no such findings in either of her orders. Significantly, the E/C did not attempt to correct the purported scrivener’s error by filing a motion for rehearing or clarification. See Wal-Mart Stores, Inc. v. Lopez, 742 So.2d 301, 302 (Fla. 1st DCA 1998) (holding this court will not reverse a JCC’s order for a readily correctable technical error that the JCC was not asked to correct within the time available for correction).

Consequently, to the extent, if any, the JCC erred in not awarding costs pursuant to section 440.32, Florida Statutes, the error was invited by the E/C. Thus, they cannot argue on appeal that the JCC was mistaken in basing her cost award on section 440.34, Florida Statutes. See Muina v. Canning, 717 So.2d 550, 553 (Fla. 1st DCA 1998) (holding that, under the “invited error” rule, a party cannot successfully complain about error for which it is responsible).

Because the JCC incorrectly applied the post-October 1, 2003 version of section 440.34(3), Florida Statutes, to a claim with a pre-October 1, 2003, date of accident, the JCC’s award of costs to the E/C pursuant to that statute was reversible error. REVERSED in part, AFFIRMED in part, and REMANDED for proceedings consistent with this opinion.

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Gail ELMER, Appellant, v. SOUTHLAND CORPORATION/7-11 and Broadspire Services, Inc., Appellees.
    No. 1D08-3394.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.

      Robert E. Keezel, Fort Myers, and Bill McCabe, Longwood, for Appellant.
    Lamar D. Oxford and Michael A. Lowe of Dean, Ringers, Morgan & Lawton, Orlando, for Appellees.
   PER CURIAM.

Claimant challenges an order of the Judge of Compensation Claims (JCC) denying her requests for: (1) authorization for referral to a pain management specialist recommended by her authorized treating physician; (2) an award of palliative care; and (3) attorney’s fees and costs. For the reasons explained below, we reverse as to the first and third issues. Because Claimant failed to preserve the second, we affirm without further comment.

The JCC found that the employer/carrier (E/C) failed not only to timely respond to repeated written requests by Claimant’s authorized treating physician for a referral to a pain management specialist, but failed to respond at all. Despite this finding, the JCC denied Claimant’s request for this referral because he found the medical evidence showed the referral was not reasonably and medically necessary. Claimant argues that, pursuant to either section 440.13(3)(d) or (i), Florida Statutes (2002), the E/C was estopped from arguing the referral was not medically necessary because it failed to timely respond to the doctor’s written referral requests. We agree.

Section 440.13(3)(d) provides in relevant part:

A carrier must respond, by telephone or in writing, to a request for authorization by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. (Emphasis added).

Section 440.13(3)(i) provides in relevant part:

Notwithstanding paragraph (d), a claim for specialist consultations ... is not valid and reimbursable unless the services have been expressly authorized by the carrier, or unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required.

(Emphasis added.)

This court has held that section 440.13(3)(d) must be read in pari materia with sections 440.13(2)(a), and (c). See St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, 917 So.2d 280, 284 (Fla. 1st DCA 2005) (holding these sections are properly read together). The latter two statutes provide a caveat that any medical care provided under section 440.13 must be medically necessary as a result of a compensable injury.

Here, it is undisputed that the E/C did not respond to the authorized treating doctor’s multiple requests for authorization for referral to a pain management specialist within either three or ten business days after receiving them. While the statutes in question do not require an E/C to.authorize a referral request by an authorized treating doctor within the time specified, they do require an E/C to respond. If there is no response, the plain language of statute provides that the E/C has consented to the medical necessity of the treatment. Thus, an E/C who fails to comply with the statutory requirement forfeits the right to contest whether the referral is reasonably and medically necessary.

Applying section 440.13(2)(a), an E/C that fails to timely respond to a referral request is only required to continue providing the recommended treatment so long as it is reasonably and medically necessary. See Providence Prop. & Cas. v. Wilson, 990 So.2d 1224 (Fla. 1st DCA 2008); Dawson v. Clerk of the Cir. Ct.— Hillsborough County, 991 So.2d 407 (Fla. 1st DCA 2008) (holding that, although an E/C is obligated to comply with a claimant’s request for a one-time change of physician pursuant to section 440.13(2)(f) regardless of the E/C’s opinion as to the medical necessity of further treatment, an E/C is only obligated to provide treatment recommended by the new doctor that is reasonably and medically necessary).

Because the E/C here failed to respond to the authorized treating doctor’s written requests for a referral to a pain management specialist, the E/C violated both sections 440.13(d), and (i) and thus it was error for the JCC to deny authorization of a pain management specialist on the ground it was not reasonably and medically necessary. Consequently, it was also error to deny Claimant’s request for attorney’s fees and costs for prevailing on this issue.

REVERSED in part, AFFIRMED in part, and REMANDED for proceedings consistent with this opinion.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    Nicholas GIGGETTS, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4646.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.

      Nicholas Giggetts, III, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his rule 3.800(a) motion to correct illegal sentence. Because the trial court denied the appellant’s claim for jail credit on an improper basis, we reverse the trial court’s denial of the motion and remand this case to the trial court for further consideration.

Pursuant to a guilty plea, the appellant was sentenced to twenty years’ incarceration with credit for 698 days. The appellant alleged in his motion that he is entitled to 910 days of jail credit instead of the 698 days that he was awarded. The trial court denied the appellant’s claim on the basis that he entered a guilty plea and stipulated that he would receive credit for 698 days. The trial court attached a copy of the plea agreement and a copy of the plea transcript, both of which indicated the appellant stipulated that he would receive 698 days of credit. However, the plea agreement and plea transcript do not establish that, as part of his plea, he knowingly waived any additional credit which he may have been due. A waiver of jail credit cannot be shown merely by a defendant’s stipulation to a certain amount of credit in the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right. See Murphy v. State, 930 So.2d 794, 796 (Fla. 1st DCA 2006) (the record must establish a “clear and knowing waiver of entitlement to additional jail credit”); Davis v. State, 968 So.2d 1051 (Fla. 5th DCA 2007) (written plea agreement that called for 1,531 days of credit was not conclusive evidence that defendant knowingly and voluntarily waived entitlement to any additional credit he was owed); cf. Reed v. State, 810 So.2d 1025, 1027 (Fla. 2d DCA 2002) (“the court records must establish the defendant’s clear intent to waive a portion of his or her accrued jail time before we could affirm a defendant’s stipulation to credit for less jail time than was actually served. It seems to this court that a defendant should not lose credit for jail time actually served due to a mistake by the defendant, defense counsel, or the State”).

Accordingly, the denial of appellant’s rule 3.800(a) motion is REVERSED and the cause REMANDED for the trial court to determine if the record demonstrates appellant’s right to the requested credit. If the trial court records demonstrate an entitlement to relief, the additional jail credit should be awarded. If they do not, the claim should be denied. See Cary v. State, 997 So.2d 423 (Fla. 1st DCA 2008).

KAHN, DAVIS, and CLARK, JJ., concur.


text:
    William CARPENTER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-4666.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    William Carpenter, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. All pending motions are denied.

WEBSTER, BROWNING, and LEWIS, JJ., concur.


text:
    Ruth CRUZ and Yvonne Pillach, Co-Personal Representatives of the Estate of Luz Cruz, deceased, Appellants, v. The HERTZ CORPORATION, Erick Matos, and APAC, Inc., Appellees.
    No. 3D08-1780.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.
    Wasson & Associates, Roy D. Wasson, and Annabel Majewski, Miami; Brotman, Nusbaum & Fox, and Marc C. Brotman, Boca Raton, for appellants.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, Warren B. Kwav-nick, and J. Marcos Martinez, Ft. Lauder-dale; Murnaghan & Ferguson, P.A., and Peter Murnaghan, Tampa, for appellees.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Kumarsingh v. PV Holding Corp., 983 So.2d 599, 601 (Fla. 3d DCA 2008) (holding “that the Graves Amendment, by its clear and unambiguous wording, supersedes and abolishes all state vicarious liability laws as they apply to lessors of motor vehicles for causes of action filed on or after August 10, 2005”).


author: ORFINGER, J.

text:
    Joanne M. WEISS, Appellant, v. Mitchell H. WEISS, et al., Appellee.
    No. 5D08-974.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2009.

      Gary S. Israel, Orlando, for Appellant.
    Diana Knowles Dunlop, of Dunlop, Dun-lop & Dunlop, P.A., Winter Park, for Ap-pellee.
   ORFINGER, J.

A fee dispute arose between Joanne M. Weiss and her former attorney, J. Erwin Dunlop, in a dissolution of marriage proceeding. As a consequence, and after withdrawing as her attorney, Mr. Dunlop filed a motion for attorney’s fees and for a charging lien. After providing notice to Ms. Weiss and conducting a hearing, the trial court granted the requested fees and imposed a charging lien. We affirm the order imposing the charging lien without further comment.

At the hearing on the fee motion, Mr. Dunlop advised the trial court that Ms. Weiss had published statements, which he contended were defamatory concerning their fee dispute on various internet websites. The statements related to Ms. Weiss’s allegation that Mr. Dunlop had fraudulently charged $7,500 as a partial fee on one of her credit cards without permission. Mr. Dunlop strongly denied doing so, and the court found the charge to be proper.

But that did not put the matter to rest. In addition to imposing the charging lien, at Mr. Dunlop’s request, the trial court ordered Ms. Weiss to stop making the allegedly defamatory statements about Mr. Dunlop and remove the statements about him from the websites where they had been posted, ruling:

THE COURT: ... So I’m ordering you — and Mr. Dunlop is going to prepare an order — to pay his bill. You are ordered to remove any reference to anything that Mr. Dunlop did from whatever website you put it on. You are ordered to discontinue telling anyone that Mr. Dunlop in any way charged anything on your credit card without your permission, because he didn’t. And if you — he’s going to prepare that order, and it’s going to be sent to you, and you’re going to do what’s on it or Mr. Dunlop will bring you in here on a motion for contempt and I will put you in jail. Do you understand that, Ms. Weiss?
MS. WEISS: For how many days, Your Honor?
THE COURT: Well, I’m not — do you want to know today? Do you want to just go ahead and go to jail?
MS. WEISS: I will go to jail, Your Honor, because I am an honest woman.

The court then entered an order, incorporating these oral rulings.

Ms. Weiss correctly contends that the order entered by the trial court was outside the jurisdiction of the dissolution proceeding that brought her before the court. The order provides injunctive relief, which was improper as there was no pleading before the court stating a cause of action that would allow the entry of an injunction. Waterman Broad. Corp. v. Saro, 555 So.2d 1273 (Fla. 2d DCA 1989). Indeed, a trial court may not entertain injunctive relief sua sponte in the absence of the required pleadings and notice. First Union Nat’l Bank of Fla., N.A. v. Peoples Nat’l Bank of Commerce, Miami, 644 So.2d 538, 539 (Fla. 3d DCA 1994). In the absence of some other independent ground for invoking equitable jurisdiction, equity will not enjoin either an actual or threatened defamation. Demby v. English, 667 So.2d 350 (Fla. 1st DCA 1995); Reiter v. Mason, 563 So.2d 749 (Fla. 3d DCA 1990). In fact, most prior restraints on an individual’s constitutional right of free expression are presumptively unconstitutional. Animal Rights Foundation of Fla., Inc. v. Siegel, 867 So.2d 451, 457 (Fla. 5th DCA 2004). Because injunctive relief is generally unavailable, a complainant is typically left to his or her remedy at law. Moore v. City Dry Cleaners & Laundry, 41 So.2d 865 (Fla.1949); United Sanitation Servs. of Hillsborough, Inc. v. City of Tampa, 302 So.2d 435 (Fla. 2d DCA 1974).

For these reasons, the order imposing a charging lien is affirmed. The order enjoining Ms. Weiss’s alleged defamatory comments is reversed.

AFFIRMED in part; REVERSED in part, and REMANDED.

PALMER, C.J. and SAWAYA, J., concur.


author: CASANUEVA, Judge.

text:
    Timothy Jon EISEMANN, Appellant, v. Patti Ann EISEMANN, Appellee.
    Nos. 2D08-192, 2D08-1308.
    District Court of Appeal of Florida, Second District.
    March 6, 2009.

      Joseph C. Hood, Tampa, for Appellant.
    Jaime L. Wallace and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee.
   CASANUEVA, Judge.

In this consolidated appeal of orders resulting from a postdissolution modification action in which both former spouses sought modification of alimony, the Former Husband, Timothy Jon Eisemann, challenges the final judgments increasing his alimony payments to his Former Wife, Patti Ann Eisemann, and ordering that he pay her attorney’s fees. We reverse.

Background

After a twenty-one-year marriage, the parties were divorced in 2002. Prior to the dissolution, the parties entered into a Marital Property and Settlement Agreement. Its provisions included a requirement that the marital home be sold and that Mr. Eisemann pay Mrs. Eisemann $1900 a month in permanent alimony. This amount was based, in part, on his annual earnings at that time of between $85,000 and $89,000 and Mrs. Eisemann’s anticipated annual income of $18,000 from expected full-time employment. Mrs. Ei-semann testified in the modification proceedings that this was a “bare bones” estimate of her postdissolution needs and Mr. Eisemann’s ability to pay at that time because the parties had agreed that Mr. Eisemann solely would be responsible for the expenses of their daughter’s upcoming college education. Because of the settlement agreement, there was no evidence presented to the court of the parties’ actual expenses and ability to pay at the time of dissolution. The marital home was sold, and each party left the marriage free of debt and with an equitable distribution of $165,000.

Since the final judgment of dissolution, the trial court, in the modification proceeding, found that Mrs. Eisemann’s salary had substantially increased to $28,701 annually. It was this substantial increase in her salary that motivated Mr. Eisemann to seek a reduction in alimony. With all sources of income, including alimony, her annual income was now approximately $52,795. Mr. Eisemanris annual income had increased at the time of the modification proceeding to $129,000.

Other circumstances found by the trial court to support the modification of alimony were the increase in Mrs. Eisemanris condominium assessment dues, including a large special assessment; increases in the cost of food, gas, and electricity; her diagnosis of breast cancer and the resulting treatment, including the expenses of three surgeries and ongoing medications; and the decrease in Mr. Eisemanris monthly expenses. The trial court concluded that Mrs. Eisemann had never been able to achieve the standard of living she enjoyed during the marriage and had been forced to live much more modestly since.

Analysis

A. The Change in Circumstances

“To justify a modification of alimony, the moving party must establish: ‘(1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.’ ” Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002) (quoting Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000)); see also Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992).

The trial court considered the financial impact Mrs. Eisemann experienced in the unexpected and significant expenses to her condominium residence manifested in the special assessment. It also considered the increased financial need that she experienced as a result of her medical issues. Because these changes meet the Pimm, Antepenko, and Rahn requirements for modification of alimony, the trial court did not err in factoring them into the equation for increasing her alimony.

B. The Marital Standard of Living

Next, the trial court focused upon Mrs. Eisemanris marital standard of living. In the modification judgment, the trial court found that her needs, as established by the marital standard of living, were not initially met in the dissolution judgment because Mr. Eisemann was unable at that time to fully meet those needs. But because his earnings have substantially increased subsequent to the dissolution and her needs continued to remain unmet, the trial court concluded that this circumstance justified an upward modification under Bedell v. Bedell, 583 So.2d 1005 (Fla.1991), and Schlesinger v. Emmons, 566 So.2d 583 (Fla. 2d DCA 1990). We disagree not with the trial court’s result but with its rationale.

We begin by examining Bedell’s origins and its progress through the appellate system. Bedell v. Bedell, 561 So.2d 1179 (Fla. 3d DCA 1989), reversed, 583 So:2d 1005 (Fla.1991). Mrs. Bedell filed a petition seeking an upward modification of the amount of alimony awarded in the final judgment of dissolution of marriage; Mr. Bedell counterclaimed, seeking downward modification. The trial court denied relief to both parties and Mrs. Bedell sought review. Only two of the several issues she presented to the Third District are relevant to our disposition of this case.

In the first issue, the district court discussed the criteria necessary to sustain a modification of alimony; the second issue related to the relatively rare exception to the general rule where a recipient spouse’s initial needs were not and could not be met in the original final judgment due to the then-existing financial inability of the paying spouse to meet those needs, and the recipient’s needs continued to be unmet at the time modification was sought. An examination of the supreme court’s opinion reviewing the district court’s Bedell rationale demonstrates that it was only the first, and not the second, issue that resulted in the supreme court’s holding.

In Bedell, 583 So.2d 1005, the supreme court considered the application of section 61.14(1), Florida Statutes (1985), which states that alimony may be modified where an ex-spouse files a petition seeking a modification in alimony and where “the circumstances or the financial ability of either party has changed.” The court construed the statute to mean “that proof of a substantial change in the financial ability of a paying spouse may, by itself, properly support an order for an increase in alimony.” Id. at 1007. But it qualified this statement by adding “that a substantial increase in the financial ability of the paying spouse, standing alone, may justify but does not require an order of increased alimony.” Id. (emphasis added).

Applying this rule to the demonstrated increased financial expenses of Mrs. Be-dell, including an increase in the mortgage and maintenance payments on her townhouse, the supreme court found that her needs had substantially increased and “coupled with the husband’s [stipulated] ability to pay, the failure to award the wife an increase in alimony was an abuse of discretion.” Id. at 1008. It is noteworthy that the originally unmet needs of the receiving spouse did not determine the supreme court’s holding. Although the supreme court reversed, it added, “We would reach this conclusion even under the rationale of the Third District Court of Appeal because the wife clearly demonstrated an increased need.” Id. at 1007-08. Thus, the supreme court’s holding in Bedell does not support the trial court’s ruling in this case that focused on the still unmet initial needs of the recipient spouse.

It is the second issue previously mentioned that is relevant to our analysis. There the district court discussed the exception to the rule requiring a substantial postdissolution increase in the recipient spouse’s needs as a prerequisite to an upward modification of alimony. It said:

This exception obtains in the relatively rare case where the recipient spouse’s needs, as established by the standard of living maintained during the marriage, were not, and could not be, initially met by the original final judgment of marriage dissolution due to the then-existing financial inability of the paying spouse to meet those needs, which needs continue to remain unmet at the time the modification is sought.

Bedell, 561 So.2d at 1182. To meet this exception, it must be established that a “trial court was legally required to award an amount of alimony which did not meet the needs of the recipient spouse.” Id. at 1184.

This court in Schlesinger v. Emmons, 566 So.2d 583 (Fla. 2d DCA 1990), considered the exception as outlined by the Third District’s Bedell opinion. We concluded that the exception applied in Schlesinger because in the original judgment of dissolution the former wife’s demonstrated need for permanent alimony to maintain the relatively high marital standard of living was not able to be met at that time. This was so because the trial court could not consider the husband’s expected inheritance in determining his ability to pay. Id. at 584-85. Judge Campbell, writing for the court, went on to state:

The trial judge provided for wife as well as could be done based upon husband’s available income and the remedies available to the court at this time. However, since wife’s demonstrated needs were unable to be adequately provided for in the final judgment, it was proper to consider, on wife’s petition for modification, husband’s then-vested inheritance resulting in a massive increase in his annual income.

Id. at 585.

In Schlesinger, the record of the initial proceeding and the trial court’s express findings then established the former wife’s entitlement to the exception. This is not the state of the record in the Eisemanns’ case. This case arises from a similar fact pattern as was presented to the Third District in Bedell, i.e., both began with a final judgment of dissolution of marriage that incorporated a prior marital settlement agreement. To be entitled to the exception, the recipient spouse must show that in the original judgment of dissolution, the trial court was “legally required, Bedell, 561 So.2d at 1184, to award alimony that did not meet the needs of the recipient spouse, based on the marital standard of living, because the paying spouse was financially unable to meet those needs. Mrs. Eisemann provided no evidence, other than her opinion, that at the time of their dissolution, the trial court was legally required to award an insufficient amount of alimony because Mr. Ei-semann could not pay more. The Eisem-anns’ final judgment of dissolution was not directly appealed or challenged by a motion to vacate. By the terms of their settlement agreement, Mr. Eisemann was contractually obligated to pay for the college education of their daughter. The record is silent whether Mr. Eisemann assumed that cost voluntarily or the parties agreed to that provision because the other financial provisions, including alimony, were mutually acceptable.

In Mrs. Eisemann’s case, the original award of alimony was based upon a contract — their settlement agreement — and not after a trial where the court made the requisite findings of one’s needs and the other’s demonstrated inability to pay the legally required amount. Based on the evidence presented, Mrs. Eisemann’s case does not come within the exception. Thus, the trial court erred, but only in using Bedell as a basis to modify the alimony award.

The final judgment modifying alimony must be reversed and remanded for reconsideration in light of Mrs. Eisemann’s current unmet needs that fulfill the criteria of substantial change that was not contemplated at the time of dissolution that are material, permanent, and involuntary — not because her needs at the time of the dissolution were unmet — and Mr. Eisemann’s current ability to pay. See Bedell, 588 So.2d at 1007 (holding “that a substantial increase in the financial ability of the paying spouse, standing alone, may justify but does not require an order of increased alimony [and] the final decision rests with the circuit court”; citing with approval on this point Schlesinger v. Emmons, 566 So.2d 583 (Fla. 2d DCA 1990)).

C. Attorney’s Fees

Finally, we address the award of attorney’s fees to Mrs. Eisemann. The central inquiry for such an award is the need of one spouse for the fees and the other’s ability to pay the fees. “If one party has no financial need for fees, the other party cannot be compelled to pay them solely because his or her sizeable assets minimize the financial strain of such a payment.” Von Baillou v. Von Baillou, 959 So.2d 821, 828 (Fla. 4th DCA 2007). Because we reverse the amount awarded by modification as permanent periodic alimony, we must also reverse the attorney’s fee award to Mrs. Eisemann and remand for recalculation. We caution the trial court that should it require a substantial immediate-payment of fees, it set forth specific findings supporting such a determination, particularly as to her need and the source from which funds are to be paid.

Reversed and remanded for further proceedings.

VILLANTI, J., and SCHOONOVER, JACK R., Senior Judge, Concur.

      . We find without merit Mr. Eisemann’s argument that the parties’ Marital Settlement Agreement incorporated into the final judgment of dissolution is nonmodifiable.

      . The supreme court did not disapprove of the Third District's opinion regarding this exception; in fact, this exception was not mentioned by the supreme court. But given the supreme court's discussion, we believe the supreme court's own holding would encompass it.


text:
    Rodny SCHENCK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2130.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Rehearing Denied April 7, 2009.
    Rodny Schenck, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Montero v. State, 996 So.2d 888, 892 (Fla. 4th DCA 2008).


author: LaROSE, Judge.

text:
    Larry David HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5520.
    District Court of Appeal of Florida, Second District.
    March 11, 2009.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Larry David Harper appeals the imposition of a 33.4-month sentence following his no contest plea to charges of criminal mischief, felony petit theft, and burglary of a structure. He claims that the scoresheet erroneously included 3.1 points for two additional offenses that the State dropped as part of the plea agreement. The State concedes that the scoresheet is incorrect. Mr. Harper preserved this issue for appeal by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(d); Jackson v. State, 988 So.2d 562, 572 (Fla.2008) (noting that scoresheet error is sentencing error properly preserved through a rule 3.800(b) motion); State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (same).

We reverse and remand for resentenc-ing.

CASANUEVA and DAVIS, JJ., Concur.

      . Because the trial court did not rule on Mr. Harper’s motion within sixty days of filing, the motion is deemed denied. See Henson v. State, 977 So.2d 736, 739 (Fla. 2d DCA 2008).


text:
    Anthony S. HILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5012.
    District Court of Appeal of Florida, First District.
    March 17, 2009.
    Anthony S. Hills, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial of a facially-sufficient motion, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is entitled to no relief.

REVERSED AND REMANDED for further proceedings.

BENTON and BROWNING, JJ., concur; WOLF, J., dissents without opinion.


author: WALLACE, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. U.J. HOFER, Respondent.
    No. 2D07-5610.
    District Court of Appeal of Florida, Second District.
    March 18, 2009.

      Robin F. Lotane, General Counsel, Tallahassee, and Damaris E. Reynolds, Assistant General Counsel, Lake Worth, for Petitioner.
    Harold M. Stevens of Harold M. Stevens, P.A., Fort Myers, for Respondent.
   WALLACE, Judge.

The Department of Highway Safety and Motor Vehicles (the DHSMV) petitions this court for a writ of certiorari to review the circuit court orders that granted U.J. Hofer’s petition for writ of certiorari and reinstated his driver’s license. The circuit court quashed the administrative order issued by the DHSMV that suspended Mr. Hofer’s driver’s license following his arrest for driving under the influence (DUI). Because we conclude that the circuit court failed to apply the correct law when it decided that due process required that a hearing officer determine the legality of the initial stop in a postsuspension hearing authorized by section 322.2615, Florida Statutes (2006), we grant the petition and quash the circuit court’s orders.

I. BACKGROUND

A. The Factual Background

On October 13, 2006, a Cape Coral police officer stopped Mr. Hofer for failing to dim his headlights. The police officer noticed signs that Mr. Hofer was under the influence of alcohol and asked him to perform field sobriety tests. Based on Mr. Hofer’s performance on those tests, he was arrested for DUI. Mr. Hofer refused to submit to a breath test after the police officer read him the implied consent warnings. Mr. Hofer’s driver’s license was then suspended because he refused the breath test.

B. The Administrative Proceeding

Mr. Hofer exercised his right to formal review, see § 322.2615(l)(b)(3), Fla. Stat. (2006), and challenged the suspension of his license. At the hearing, Mr. Hofer attempted to challenge the legality of the initial stop. However, the hearing officer advised Mr. Hofer that issues concerning the legality of the stop were not within the scope of review authorized by section 322.2615(7)(b) unless the circumstances surrounding the stop indicated the driver’s impairment.

In his written decision, the hearing officer found that a preponderance of the evidence established that (1) the arresting officer had probable cause to believe Mr. Hofer was driving under the influence, (2) Mr. Hofer refused to take the breath test after being requested to do so, and (3) Mr. Hofer was told that refusal would result in suspension. Consequently, the hearing officer sustained the suspension of Mr. Hofer’s license for refusal to submit to a breath, blood, or urine test under section 322.2615.

C. Certiorari Review in the Circuit Court

Mr. Hofer challenged the hearing officer’s written decision by petition for writ of certiorari in the circuit court. Mr. Hofer’s petition argued that the administrative proceeding did not afford him procedural due process because, among other things, the hearing officer refused to consider the legality of the stop. Mr. Hofer noted that according to section 322.2615, in any implied consent case, the license suspension is based on a refusal to take a breath, blood, or urine test or on an alcohol level in excess of the legal limit. He also explained that the obligation to submit to a breath, blood, or urine test is imposed by section 316.1932, Florida Statutes (2006), which requires that any such test must be incident to a lawful arrest. Thus, Mr. Hofer concluded, the implied consent statutory scheme made a lawful arrest a necessary factor before a driver’s license could be suspended and the hearing officer’s refusal to consider the legality of Mr. Hofer’s stop was “repugnant to any notion of due process.”

The DHSMVs response contended that the legislature had authorized the hearing officer’s actions. The DHSMV explained that the lawfulness of the arrest was within the scope of review authorized by section 322.2615(7)(b) before October 1, 2006. The legislature, however, specifically removed the consideration of the lawfulness of the arrest from the scope of review when it amended section 322.2615(7)(b). See ch. 2006-290, § 45, at 2957, 2960-61, Laws of Fla. The DHSMV also cited Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). In Conahan, the Fifth District found that section 322.2615, Florida Statutes (1991), afforded drivers procedural due process. Id. at 989-90. Thus the DHSMV argued that Mr. Hofer’s due process argument failed because he had been given “notice and a hearing at which he was provided the opportunity to be, and in fact was, heard.”

Before the circuit court ruled on his petition, Mr. Hofer filed a notice of supplemental authority calling the circuit court’s attention to Failla v. State of Florida, Department of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 812a (Fla. 7th Cir. Ct. June 20, 2007), cert. denied, No. 5D07-2738 (Fla. 5th DCA May 23, 2008). In Failla, the Volusia County Circuit Court held that “[i]f a hearing officer is to uphold a license suspension, due process requires a finding that the refusal to submit to a breath test was incidental to a lawful arrest.” Id. at 813.

Here, the circuit court agreed with the reasoning in Failla. Accordingly, the circuit court found that the “[h]earing [o]ffieer departed from the essential requirements of [the] law when he failed to determine whether the stop and the arrest [of Mr. Hofer] were lawful.” Hofer v. State of Fla., Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 48a (Fla. 20th Cir.Ct. Aug. 14, 2007). Based on this conclusion, the circuit court granted the petition and quashed the hearing officer’s decision. The circuit court subsequently denied the DHSMV’s motion for rehearing and ordered the DHSMV to reinstate Mr. Hofer’s license. The DHSMV seeks certio-rari review of the order granting Mr. Hofer’s petition and of the order denying the DHSMV’s motion for rehearing.

II.STANDARD OF REVIEW

The DHSMV may petition for a writ of certiorari to review a circuit court appellate decision reversing an administrative order sustaining the suspension of a driver’s license. Dep’t of Highway Safety & Motor Vehicles v. Rosenthal, 908 So.2d 602, 604 (Fla. 2d DCA 2005). We may grant the DHSMV’s petition for second-tier certiorari if the circuit court (1) did not afford procedural due process or (2) failed to apply the correct law. Dep’t of Highway Safety Motor Vehicles v. DeGroot, 971 So.2d 237, 239 (Fla. 2d DCA 2008). This two-part analysis allows this court to “decid[e] whether the lower court ‘departed from the essential requirements of [the] law.’ ” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). “A ruling constitutes a departure from the essential requirements of [the] law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Id. (quoting Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)); see State v. Farino, 915 So.2d 685, 686 (Fla. 2d DCA 2005) (explaining that failure to apply the correct law must result in a miscarriage of justice to warrant the issuance of a writ of certiorari).

III.PRELIMINARY CONSIDERATIONS

The DHSMV’s petition for second-tier certiorari contends that the circuit court departed from the essential requirements of the law because the lawfulness of the stop and arrest of a driver is not within the scope of review in a postsuspension hearing under section 322.2615(7)(b). Specifically, the DHSMV contends that the circuit court applied the incorrect law when it found that due process required that the hearing officer consider the lawfulness of the stop. The DHSMV has not claimed that the circuit court’s decision deprived it of procedural due process. Consequently, this court may not grant relief unless the circuit court departed from the essential requirements of the law with a resulting miscarriage of justice. See Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002).

IV.THE CIRCUIT COURT’S DUE PROCESS ANALYSIS

A. Essential Requirements of the Law

The circuit court departed from the essential requirements of the law in reaching its conclusion that the hearing officer had to consider the legality of the arrest in an administrative proceeding under section 322.2615. The crux of Mr. Hofer’s petition for certiorari was that the administrative proceeding did not afford him procedural due process because he could not challenge the legality of the stop. The United States Supreme Court has explained that driver’s “licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). “Procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests,” Massey v. Charlotte County, 842 So.2d 142, 146 (Fla. 2d DCA 2003), including state efforts to legislate the suspension of driver’s licenses, Bell, 402 U.S. at 539, 91 S.Ct. 1586. In Bell, the United States Supreme Court has expressly ruled:

Once [driver’s] licenses are issued ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.”

402 U.S. at 539, 91 S.Ct. 1586 (citations omitted); see Mackey v. Montrym, 443 U.S. 1, 10-19, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977).

“Procedural due process requires both fair notice and a real opportunity to be heard ... ‘at a meaningful time and in a meaningful manner.’ ” Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). In other words, “[t]o qualify under due process standards, the opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive.” Rucker v. City of Ocala, 684 So.2d 836, 841 (Fla. 1st DCA 1996). The determination of whether the procedures employed during a particular hearing provide a real opportunity to be heard in a meaningful manner depends on the nature of the private interest at stake and the nature of the government function involved. Cafeteria Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Accordingly, the amount of process due varies based on the particular factual context surrounding an administrative proceeding. Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); see Bell, 402 U.S. at 540, 91 S.Ct. 1586 (“A procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case.”).

A court faced with a procedural due process challenge to an implied consent statutory scheme must employ the balancing test mandated by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mackey, 443 U.S. at 10, 99 S.Ct. 2612; see Conahan, 619 So.2d at 989-90. Thus the circuit court should have examined:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893. The circuit court failed to apply the balancing test mandated by Matheivs to Mr. Hofer’s due process challenge. Consequently, it departed from the essential requirements of the law in granting Mr. Hofer’s petition for certiorari review.

B. Miscarriage of Justice

Although we find that the circuit court departed from the essential requirements of the law, this court cannot grant certiorari absent a showing that the failure to apply the correct law resulted in a “miscarriage of justice.” An important factor to consider when determining whether the circuit court’s error amounts to a “miscarriage of justice” is the adverse precedential effect the error might have on subsequent cases. Alliston, 813 So.2d at 145. A circuit court’s decision will generally not merit certiorari review if it is issued without a written opinion or is particularly fact-dependent or fact-specific because it lacks precedential value. Id. Appellate courts, however, have found a miscarriage of justice and exercised their certiorari jurisdiction when a decision applies incorrect law and establishes principles of general application binding in subsequent cases. See Maple Manor, Inc. v. City of Sarasota, 813 So.2d 204, 207 (Fla. 2d DCA 2002); Alliston, 813 So.2d at 145-46; State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007).

The order granting Mr. Hofer’s petition establishes the general principle that a hearing officer must consider the legality of the stop and arrest in postsus-pension hearings authorized by section 322.2615. Furthermore, the circuit court appellate decision in this case has prece-dential value and will result in the repetition of the same error in other proceedings involving the suspension of driver’s licenses. See Alliston, 813 So.2d at 145. Because the circuit court’s application of incorrect law established a legal principle applicable to future administrative proceedings, the circuit court’s decision results in a miscarriage of justice that warrants the exercise of this court’s certiorari jurisdiction.

C. The Pelham, Hernandez, and McLaughlin decisions are distinguishable.

In the circuit court proceedings, Mr. Hofer briefly mentioned the relationship between sections 316.1932 and 322.2615. In Department of Highway Safety & Motor Vehicles v. Pelham, 979 So.2d 304 (Fla. 5th DCA), review denied, 984 So.2d 519 (Fla.2008), the Fifth District addressed the interplay between sections 316.1932 and 322.2615 in considerable detail. The Fifth District’s decision in Pelham issued after the circuit court entered its order and after the Department’s petition and Mr. Hofer’s response were filed with this court. In McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008), this court discussed Pelham and certified conflict with it. The First District agreed with Pelham in Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008).

However, the circuit court focused on Mr. Hofer’s claim that the hearing officer must consider the legality of the stop “ ‘in order to maintain the constitutionality of [section] 316.1932 and [section] 322.2615.’ ” Hofer, 15 Fla. L. Weekly Supp. 48a. The circuit court ruled only on this limited issue when it found that “ ‘[i]f a hearing officer is to uphold a license suspension, due process requires a finding that the refusal to submit to a breath test was incidental to a lawful arrest.’ ” Id. (quoting Failla, 14 Fla. L. Weekly Supp. 812a). In contrast to the circuit court’s approach, Pelham did not consider any constitutional arguments, 979 So.2d at 308 n. 4, and McLaughlin is silent on the constitutional issue raised by Mr. Hofer. Hence, Pelham, Hernandez, and McLaughlin are distinguishable and do not control the narrow due process issue addressed by the circuit court in this case.

Nevertheless, on remand, the circuit court must follow McLaughlin if Mr. Hofer raises a statutory construction argument based on Pelham or Hernandez.

V. CONCLUSION

The circuit court departed from the essential requirements of the law when it granted Mr. Hofer’s petition for writ of certiorari because it applied the incorrect law when analyzing his due process claim and created precedent applicable to numerous other administrative proceedings involving the suspension of driver’s licenses. Accordingly, we grant the DHSMV’s petition for writ of certiorari and quash the circuit court’s orders granting Mr. Hofer’s petition for writ of certiorari and reinstating his driver’s license. On remand, the circuit court shall reconsider Mr. Hofer’s petition in a manner consistent with this opinion and with McLaughlin.

Petition granted, orders quashed, and case remanded.

SILBERMAN, J., Concurs.

CANADY, CHARLES T., Associate Judge, Concurs in result only.


author: MAASS, ELIZABETH T., Associate Judge.

text:
    STATE of Florida, Appellant, v. Rajae DISHMAN, Appellee.
    No. 4D08-1908.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
   MAASS, ELIZABETH T., Associate Judge.

Rajae Dishman was charged with trafficking in cocaine. He entered an open no contest plea to the court and filed a motion for downward departure under the Florida Youthful Offender Act, section 958.011, et seq., Florida Statutes (2007). The trial court granted the motion and sentenced Dishman to two years in prison with a recommendation he be sent to boot camp, but withheld adjudication of guilt. The state appealed, arguing that the withholding of adjudication was error, since Dish-man was sentenced to more than 364 days of incarceration. We agree. See State v. Butler, 719 So.2d 344 (Fla. 4th DCA 1998). We vacate Dishman’s sentence and remand the action to the trial court for re-sentencing in conformity "with this opinion.

GROSS, C.J., and FARMER, J., concur.


text:
    Julio RAMIREZ, Appellant, v. SOUTH MOTOR COMPANY OF DADE COUNTY d/b/a South Motors BMW, Appellee.
    No. 3D08-1828.
    District Court of Appeal of Florida, Third District.
    March 18, 2009.
    Rehearing Denied April 13, 2009.
    Timothy Carl Blake, Miami, for appellant.
    Kirschbaum, Birnbaum, Lippman & Gregoire, and Nancy W. Gregoire, Fort Lauderdale; Goldsmith and Atlas, and Mark Atlas, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

Affirmed. See Stacy David, Inc. v. Consuegra, 845 So.2d 303, 307 (Fla. 2d DCA 2003).


text:
    Donald Gene DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5148.
    District Court of Appeal of Florida, First District.
    March 19, 2009.
    Donald Gene Davis, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the May 19, 2008, order denying motion to correct illegal sentence issued in Escambia County Circuit Court case numbers 1989-CF-6596-A and 1989-CF-6612-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Petitioner, v. Anthony SMITH, Respondent.
    No. 1D08-6205.
    District Court of Appeal of Florida, First District.
    March 19, 2009.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, and Scott Shevenell, Assistant General Counsel, Tallahassee, for Petitioner.
    C. Dennis Roberts, Public Defender, Third Judicial Circuit, and Herbert W. Ellis, Assistant Public Defender, Lake City, for Respondent.
   PER CURIAM.

Respondent’s motion for remand is granted, the November 19, 2008, order of the circuit court is quashed, and this cause is remanded for further proceedings.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: PALMER, C.J.

text:
    MARION COUNTY, Appellant, v. C. Ray GREENE, III and Angus S. Hastings, et al., Appellee.
    No. 5D07-1239.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.

      Thomas L. Wright, County Attorney and Thomas D. MacNamara, Ocala, for Appellant.
    Wayne E. Flowers of Lewis Longman & Walker, P.A., Jacksonville, for Appellees C. Ray Greene, III and Angus S. Hastings.
    Timothy A. Smith, Senior Assistant General Counsel, Palatka, for Appellee, St. Johns River Water Management District.
   PALMER, C.J.

ON MOTION FOR REHEARING EN BANC

Marion County fried a motion for rehearing en banc and for certification. We deny the motion, but withdraw our previous opinion and substitute this corrected opinion in its stead.

Marion County appeals the final order entered by the St. Johns River Water Management District (District) adopting the order of the Administrative Law Judge (ALJ), which recommended approval of the application filed by C. Ray Greene and Angus S. Hastings (collectively Greene) for a consumptive use permit (CUP). Determining that the ALJ committed no reversible error, we affirm.

Greene submitted a CUP application to the District, requesting authorization to withdraw groundwater from an existing well for bottling and distribution as drinking water. Marion County objected to the issuance of a permit, contending that the proposed withdrawal and use were not in the public interest and were inconsistent with Marion County’s interests, plans, and regulations. After receiving further submissions by all parties, the District published a notice of its intent to approve Greene’s application. Marion County responded by filing a petition for an administrative hearing.

The ALJ conducted a formal administrative hearing. Several expert witnesses testified on behalf of Greene. In sum, Greene’s expert witnesses testified that the proposed use did not violate any of the criteria set forth by applicable CUP statutes. Marion County’s witnesses proffered testimony that the bottling of water on the subject property required a special use permit (SUP) under the Marion County Land Development Code and that no SUP had been issued to Greene. The ALJ rendered a recommended order concluding that the District should approve Greene’s application.

The District approved the ALJ’s order, thereby adopting the ALJ’s findings of fact and conclusions of law and rejecting all of the parties’ exceptions but one which was added as an additional conclusion of law. This appeal timely followed.

The standard of review of a final agency order by a district court of appeal is whether the agency’s interpretation of the law is clearly erroneous. Novick v. Dep’t of Health Bd. of Medicine, 816 So.2d 1237 (Fla. 5th DCA 2002).

Section 373.223(1) of the Florida Statutes sets forth the core criteria for issuance of a CUP and specifies the statutory conditions as follows:

§ 373.223 Conditions for permit.—

(1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water:
(a) Is a reasonable-beneficial use as defined in s. 373.019;
(b) Will not interfere with any presently existing legal use of water; and
(c) Is consistent with the public interest.

§ 373.223(1), Fla. Stat. (2007). These three requirements are commonly referred to as the “three-prong test.” See Southwest Fla. Water Mgmt. Dist. v. Charlotte County, 774 So.2d 903 (Fla. 2d DCA 2001). The Legislature has granted the District the authority to adopt rules to implement the provisions of law regarding permitting of consumptive uses of water. See §§ 373.113, 373.171, Fla. Stat. (2007). As a result, the District has adopted rules specifying conditions for issuance of a CUP. For example, Rule 40C-2.301(2) & (3) & (4) of the Florida Administrative Code provides:

40C-2.301. Condition for Issuance of Permits.
* * *
(2) To obtain a consumptive use permit for a use which will commence after the effective date of implementation, the applicant must establish that the proposed use of water:
(a) Is a reasonable beneficial use; and
(b) Will not interfere with any presently existing legal use of water; and
(c) Is consistent with the public interest.
(3) For purposes of subsection (2)(b) above, “presently existing legal use of water” shall mean those legal uses which exist at the time of receipt of the application for the consumptive use permit.
(4) The following criteria must be met in order for a use to be considered beneficial:
(a) The use must be in such quantity as is necessary for economic and efficient utilization.
(b) The use must be for a purpose that is both reasonable and consistent with the public interest.
(i) The consumptive use must not cause water levels or flows to fall below the minimum limits set forth in Chapter 40C-8, F.A.C.

Fla. Admin. Code Rules 40C-2.301(2) & (3) & (4). In addition, the District adopted, by rule, the Applicant’s Handbook: Consumptive Uses of Water which provides further explanation of the criteria found in Chapter 40C-2 as well as direction to applicants regarding the type of information and data that must be submitted in order to obtain a CUP.

Marion County asserts that the final order of the District is clearly erroneous because the District improperly overlooked county public interests when considering the public interest requirement for issuance of a CUP. We disagree.

Before issuance of a CUP, an applicant must show that the proposed use of water is a reasonable beneficial use. Section 373.019(16), Florida Statutes (2007), defines reasonable beneficial as: “[t]he use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.” Public interest is defined as being “[t]hose rights and claims on behalf of people in general. In determining the public interest in consumptive use permitting proceedings, the Board will consider whether an existing or proposed use is beneficial or detrimental to the overall collective well-being of the people or to the water resources in the area, the District and the State.” § 9.3, Applicant’s Handbook.

In the present case, Greene presented sufficient evidence indicating that there was a need for the amount of water requested. Additionally, the evidence presented was sufficient to demonstrate that the CUP was consistent with the public interest.

Next, Marion County claims that the use proposed by Greene requires issuance of a SUP from Marion County and, because Greene did not show that a SUP had been issued prior to issuance of the CUP, the District erred in issuing the CUP. We again disagree.

Chapter 373 of the Florida Statutes grants the District exclusive authority to approve CUP applications. Section 373.217(3) expressly states that when a county ordinance is in conflict with the water management district’s exclusive authority, the ordinance is deemed superseded for purposes of regulating the consumptive use of water. Neither the statutes nor the rules regarding CUPs impose any requirements on the District related to compliance with a local government’s comprehensive plan or land development regulations. As such, the ALJ properly found:

The District does not consider whether local government approvals have been obtained prior to issuance of a CUP for purposes of determining whether the application is consistent with the public interest. Neither does the District consider impacts related to local roads from trucks transporting the water or other impacts not related to water resources. No such requirements are included in the District’s adopted permitting criteria.

Marion County also argues that the District has a duty to manage the water resources of the District to ensure their sustainable use, including future increases in demand, and that the District violated that duty by granting Greene’s CUP because the planning study document shows that groundwater withdrawals in the county will be limited if all anticipated groundwater demands come to fruition within a 20-30 year time period. We disagree.

The ALJ had substantial, competent evidence before him that the proposed use of the water would have little or no impact on other water users because of the minimal drawdown associated with the withdrawal, even taking into account increased water demand during the twenty year duration of the permit.

Marion County also argues that the record evidence fails to demonstrate that Greene’s proposed use of water was consistent with the public interest as required by the third prong of the test. In examining whether an application is consistent with the public interest, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose. The inquiry focuses on the impact of the use on water resources and existing legal users. The evidence presented was sufficient to support the District’s decision to approve the permit application.

Marion County also contends that the District erred by failing to consider statutory factors set forth in section 373.223(3) of the Florida Statute (2007). However, the language of the statute ex.pressly exempts bottled water from consideration. Specifically, the introductory language of section 373.223(3) of the Florida Statutes (2007) provides:

373.223 Conditions for a permit.—
* * *
(3) Except for the transport and use of water supplied by the Central and Southern Florida Flood Control Project, and anywhere in the state when the transport and use of water is supplied exclusively for bottled water as defined in s. 500.03(l)(d), any water use permit applications pending as of April 1, 1998, with the Northwest Florida Water Management District and self-suppliers of water for which the proposed water source and area of use or application are located on contiguous private properties, when evaluating whether a potential transport and use of ground or surface water across county boundaries is consistent with the public interest, pursuant to paragraph (l)(c), the governing board or department shall consider:
* * *

§ 373.223(3), Fla. Stat. (2007)(emphasis added). Thus, the factors set forth in this section need not have been considered while evaluating the instant CUP application. Instead, section 373.223(2) of the Florida Statutes applies. That section states:

373.223 Conditions for a permit.—
* * *
(2) The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest, and no local government shall adopt or enforce any law, ordinance, rule, regulation, or order to the contrary.

§ 373.223(2), Fla. Stat. (2007). The District fully evaluated whether the CUP was consistent with the public interest and properly determined that it was consistent.

AFFIRMED.

MONACO and LAWSON, JJ., concur.

      . The testimony was proffered because Greene previously filed a motion in limine, which the ALJ granted. The motion argued that evidence concerning compliance with Marion County's comprehensive plan and zoning regulations was irrelevant to the application for the CUP.

      . The additional conclusion of law clarified that only the first paragraph of section 373.223(3) of the Florida Statutes applies to the application because that paragraph excepts the transport and use of water supplied exclusively for bottled water from the remainder of the subsection.


text:
    4 CORNERS INSURANCE, INC., Appellant, v. SUN PUBLICATIONS OF FLORIDA, INC., d/b/a Clermont News Leader, and Michael Palanti, Appellees.
    No. 2D08-1971.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.

      Roy T. Mildner of Blake, Mildner & Ohle, P.A., Fort Pierce, for Appellant.
    Mark A. Sessums of Sessums & Ses-sums, P.A., Lakeland, for Appellee Sun Publications of Florida, Inc.
    No appearance for Appellee Michael Pa-lanti.
   GALLEN, THOMAS M., Associate Senior Judge.

4 Corners Insurance, Inc. (“4 Corners”), seeks review of the final summary judgment, in which the court determined that 4 Corners was not entitled to any recovery in its action for breach of contract and wrongful eviction against Sun Publications of Florida, Inc. (“Sun Publications”). 4 Corners argues that the trial court erred as a matter of law in determining that it could not prove damages incurred from the breach of contract and wrongful eviction. We reverse because 4 Corners has presented evidence that establishes a genuine issue of material fact regarding whether it incurred damages in this case.

In its second amended complaint, 4 Corners alleged that Sun Publications changed the locks on the leased premises without notice despite 4 Corners’ timely attempt to exercise its right to renew its commercial lease. 4 Corners alleged that this action by Sun Publications constituted a breach of contract and wrongful eviction. 4 Corners acknowledged that it was eventually able to collect its possessions from within but claimed it was forced to relocate to another location. The wrongful eviction claim set forth the following allegations regarding damages:

29. That Plaintiff, 4 CORNERS has been damaged by the intentional acts of Defendants, [Sun Publications], which include employing self-help eviction without complying with the clear statutory requirements provided in Florida Statute Chapter 83.
30. That as a result of the Defendant’s wrongful actions, the Plaintiff was forced to hire the law firm of Blake, Torres & Mildner and pay them reasonable attorney’s fee[s].
31. Plaintiff reserves the right to add a claim for punitive damages in this count upon completion of discovery and leave of court for punitive damages.

The breach of contract claim set forth the following allegations regarding damages:

37. That the Plaintiffs’ damages are as a result of the Defendants^] breach[.]
38. That as a result, Plaintiff, 4 CORNERS has been damaged by loss of business and clientele and incurring attorneys’ fees and costs as a result of Defendants, [Sun Publications’], breach of the Agreement between the parties. 39. That the Plaintiff paid rent and/or was current in rent when the Defendants changed the locks.

Sun Publications filed a motion for summary judgment, arguing that 4 Corners was unable to establish damages arising from the wrongful eviction and breach of contract claims. Sun Publications also alleged that 4 Corners failed to mitigate its damages by acquiring a new location in the same area. Sun Publications filed two affidavits in support of the motion.

The affidavit of Charles Foss, CPA, attested that 4 Corners had failed to produce any documents that evidenced any loss of income and that the documents produced reflected an increase in revenue. Foss attested that 4 Corners’ gross income increased $141,499 between 2004 and 2005 and $328,121 between 2005 and 2006. Foss claimed that 4 Corners had a net book income of $4032 in 2004, $5957 in 2005, and $146,914 in 2006. Foss also claimed that the net book income plus officer compensation was $44,032 in 2004, $122,462 in 2005, and $166,914 in 2006.

The affidavit of Larry Szrom attested that 4 Corners had failed to prove that it had lost income due to the loss of the rental space at issue because the space was not unique and numerous other potential rental sites existed in the proximate geographic area. Sun Publications also filed income tax returns of 4 Corners, which supported Foss’s claim that 4 Corners’ gross income increased in 2005 and 2006.

4 Corners filed a motion in opposition to the motion for summary judgment that asserted that Sun Publications had miscalculated its gross revenues because it did not consider the cost of premiums. 4 Corners also asserted that the Szrom affidavit did not conclusively rebut its assertion that. comparable rentals were not available. 4 Corners attached the affidavit of its owner, Michael Palanti, in which Palanti attested that 4 Corners had been unable to find a comparable location to rent within the immediate area for the same rental amount and that 4 Corners was damaged financially by the wrongful eviction. Palanti also attested that, according to industry standards, a small business such as 4 Corners should not have merely grown its gross revenues but should have doubled its gross revenues in the first three to five years. Palanti attested that 4 Corners’ revenues did not continue to double after the breach of contract and wrongful eviction. At the hearing on the motion, 4 Corners also argued that it suffered relocation expenses as a result of the breach of contract and wrongful eviction.

The trial court granted the summary judgment motion based on its findings that 4 Corners had not alleged a reasonable basis for damages and that, without a reasonable basis, the jury would not be permitted to speculate as to damages. The court did not expressly rule on the mitigation issue or whether 4 Corners is entitled to relocation expenses. On appeal, 4 Corners argues that the trial court erred as a matter of law in determining that it could not prove damages incurred from the breach of contract and wrongful eviction.

This court reviews an order granting final summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Although the trial court did not expressly rule on 4 Corners’ request for relocation expenses, the court must have implicitly determined that 4 Corners did not present sufficient evidence to establish a genuine issue of material fact regarding these damages because it granted final summary judgment in Sun Publications’ favor. We conclude that there is a genuine issue of material fact regarding whether 4 Corners is entitled to relocation expenses. Specifically, Michael Palanti attested that 4 Corners had been unable to find a comparable location to rent within the immediate area for the same rental amount and that 4 Corners was damaged financially by the wrongful eviction.

As to lost profits damages, we conclude that the trial court erred in determining that 4 Corners had not alleged a reasonable basis for these damages. Damages for lost profits are allowable for a breach of a lease agreement as long as they are established with reasonable certainty. Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 902 So.2d 901, 902 (Fla. 4th DCA 2005); see also U.S. Home Corp. v. Suncoast Utils., Inc., 454 So.2d 601, 605 (Fla. 2d DCA 1984) (“Damages for lost profits must be reasonably certain and established by competent proof.”). However, a trial judge is not precluded from awarding damages due to an inability to provide an exact amount if the evidence establishes a reasonable basis for the damage award. Clearwater Assocs. v. Hicks Laundry Equip. Corp., 433 So.2d 7, 8 (Fla. 2d DCA 1983).

There are differences ... in the degree of certainty with which the inference that profits would have been made can be drawn. Speculative profits are those the evidence of which is so meager or uncertain as to afford no reasonable basis for inference. The rule applicable to profits is in no respect different from that applicable to all gains prevented or losses suffered; it is by proving income and outgo that the amount of any profit is established. The kind and the amount of evidence that will be held to afford a sufficient basis for estimation varies [sic] greatly in different kinds of cases. Doubts are generally resolved against the party committing the breach of contract.

Restatement (First) of Contracts § 331 cmt. c. (1932).

Lost profits are generally proven by one of two methods: (1) the “before and after theory” or (2) the “yardstick test.” G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526, 1538 (11th Cir.1985). The yardstick test is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits. This test compares the profits of businesses “that are closely comparable to the plaintiffs.” Id.

The restatement explains the use of the yardstick test by offering the following illustration:

10. A employs B as master of a whaling ship on a five-year voyage, the compensation to be a share of the net proceeds of oil taken on the voyage. After two years B is wrongfully discharged and at once brings action. Although the earnings of the ship after B’s discharge are contingent and uncertain, B may be able to lay a sufficient basis for their estimation by giving evidence of the conditions and experience in the whaling industry.

Restatement (First) of Contracts § 331 illus. 10 (1932).

What the trial court in this case did was reject 4 Corners’ attempted use of the yardstick test as too speculative. However, 4 Corners has presented evidence that establishes a genuine issue of material fact regarding whether it incurred lost profits damages under this theory. Specifically, the affidavit of Michael Palanti attested that, according to industry standards, 4 Corners’ gross revenues should have done more than simply increase each year; they should have doubled. Palanti also attested that 4 Corners’ revenues did not continue to double after the breach of contract and wrongful eviction.

While this evidence in itself might not be sufficient to sustain a verdict for lost profits damages, it is sufficient to establish a genuine issue of material fact on the issue. See Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) (holding that the trial court is precluded from weighing the evidence or ruling on the witnesses’ credibility in ruling on summary judgment). “[T]he merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000).

Accordingly, we reverse the final summary judgment and remand for further proceedings in this matter.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ., Concur.


text:
    Oscar VEGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2652.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Clame Alvey, Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Finding no abuse of discretion, we affirm the order of restitution. See A.G. v. State, 718 So.2d 854, 856 (Fla. 4th DCA 1998) (“The trial court has broad discretion to take into account any factor in arriving at a fair amount that will compensate the victim for his or her loss.”).


text:
    Jheremmy MARQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3032.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

      Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

While defense objections to the prosecutor’s final argument may have been incorrectly overruled, none of the remarks warranted a mistrial, which was the only relief sought below. Hence, we find no abuse of discretion in the denial of those motions and affirm the conviction and sentence below. See Lopez v. State, 555 So.2d 1298 (Fla. 3d DCA 1990).


author: GERSTEN, C.J.

text:
    Robert GIELCHINSKY, Petitioner, v. VIBO CORPORATION, a Florida corporation, d/b/a General Tobacco, Respondent.
    No. 3D08-2614.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Bryon G. Petersen, for petitioner.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson, Alan H. Fein, and Kelly R. Melchiondo, for respondent.
    Before GERSTEN, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
   GERSTEN, C.J.

Robert Gielchinsky (“Gielchinsky”) petitions this Court for writ of certiorari and/or mandamus to quash the trial court’s order denying his motion to dispense with special magistrate services. We grant the petition and quash the order.

Previously, both parties agreed to the appointment of a special magistrate to conduct discovery. After a great deal of discovery under the auspices of the special magistrate, Gielchinsky no longer sought, or agreed to the continuing special magistrate services. Ultimately, Gielchinsky withdrew his consent to have a special magistrate and moved to dispense with the special magistrate’s services.

Consent of the parties is required to refer any matter to a special magistrate. See Fla. R. Civ. P. 1.490(c). See also Pesut v. Miller, 773 So.2d 1185 (Fla. 2d DCA 2000); Miller v. Lifshutz, 558 So.2d 195 (Fla. 4th DCA 1990). Concomitantly, if a party withdraws his consent, as Giel-chinsky did here with good cause due to financial reasons, then it logically follows that the matter is no longer appropriate for a special magistrate.

Accordingly, we grant the petition, and quash the trial court’s order denying the motion to dispense with special magistrate services.

Petition granted, order quashed.


text:
    Carles J. WILLIAMS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Marriott International, Inc., Appellees.
    No. 3D08-2885.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Carles J. Williams, in proper person.
    John D. Maher, Tallahassee, for Unemployment Appeals Commission.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

There was no error in the action of the Unemployment Appeals Commission in dismissing the appellant’s appeal from an adverse ruling of the appeals referee as untimely. See § 443.151(4)(b), Fla. Stat. (2007); Fla. Admin. Code R. 60BB-7.006.

Affirmed.


text:
    FORD MOTOR COMPANY, a foreign corporation, Petitioner, v. Joan HALL-EDWARDS, etc., et al., Respondents.
    Nos. 3D08-2984, 3D06-1656.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Carlton Fields and Wendy F. Lumish, and Cristina Alonso, and Joseph H. Lang, Jr., and Jeffrey A. Cohen, and Alina Alon-so, Miami, for petitioner.
    Gustavo Gutierrez, Coconut Grove; Denney & Barrett, and Richard L. Den-ney; Raster & Lynch, and Bruce R. Raster, Ocala; Alters, Boldt, Brown, Rash & Culmo, and Rimberly L. Boldt; Richard M. Mogerman, Dania, for respondents.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is a petition for Writ of Certiorari filed by Ford Motor Company asking this Court to quash orders of the trial court granting respondent Joan Hall-Edwards, individually and as Personal Representative of the Estate of Lance Crossman Hall’s, Motion to Amend Complaint to Allege Punitive Damages, and enforce its mandate to preclude a claim for punitive damages. We grant the petition because certiorari is the appropriate remedy to determine whether the trial court has conformed to the procedural requirements of section 768.72, Florida Statutes (2008). Accordingly, we remand without prejudice to hold a new hearing on the motion to amend with instructions to provide Ford Motor Company with the statutory notice of the new theory of punitive damages.

Petition granted.


text:
    Gary W. BAUDER, Petitioner, v. Harvey RUVIN, Clerk of the Court, 11th Judicial Circuit, etc., et al., Respondents.
    No. 3D09-418.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Gary W. Bauder, in proper person.
    Luis G. Montaldo, for respondent Harvey Ruvin, Clerk of the Court, etc.
    Before GERSTEN, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Upon consideration of the petition for writ of mandamus, it is ordered that said petition is hereby dismissed pursuant to Logan v. State, 846 So.2d 472 (Fla.2003), as the petitioner is represented by counsel.