author: SILBERMAN, Chief Judge.

text:
    SUNCOAST HOME IMPROVEMENTS, INC., Appellant, v. Donna ROBICHAUD and Patricia Hamilton, Appellees.
    No. 2D12-2645.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Kimberly Sharpe of Johnson, Pope, Bo-kor, Ruppel & Burns, LLP, Clearwater, for Appellant.
    David K. Oaks of David K. Oaks, P.A., Punta Gorda, for Appellees.
   SILBERMAN, Chief Judge.

Suncoast Home Improvements, Inc., appeals a nonfinal order that grants a motion to transfer venue from Pinellas County to Charlotte County. Suncoast filed an action for damages against homeowners Donna Robichaud and Patricia Hamilton (the owners) for failure to pay for work performed on a contract for residential repairs after Hurricane Charley. We determine that the place of payment venue rule applies to this case. Because Sun-coast alleged that payment was due in Pinellas County and the owners failed to file an affidavit to controvert the allegations, we reverse the order and remand for further proceedings.

Suncoast filed a complaint against the owners and alleged that it was a successor in interest to ICC General Contractors and that the owners had entered into a written repair contract with ICC in 2004. Sun-coast further alleged that ICC performed labor and services and provided materials under the contract. The contract, which was attached to the complaint, indicated that the owners engaged ICC to perform building repairs covered by the owners’ casualty insurance. The contract stated the cost of the work would be in accordance with the insurance estimates prepared by the contractor and approved by the owners and the insurance adjustor, plus any written change orders or additional work requested.

Suncoast alleged that ICC substantially completed the project in April 2005. In August 2005 the owners were provided an invoice for work performed on the contract, and they failed to pay the balance due. The attached invoice reflected a total of $26,519.36 with payments/credits of $9638, for a balance due of $16,881.36. The contract reflected an address for ICC in Clearwater, Florida, which is in Pinellas County. The invoice requested that payment be remitted to the Clearwater address. Suncoast alleged that payment on the account was due and payable in Pinel-las County and that the contract was breached in Pinellas County when payment was not received.

The owners filed a motion to transfer venue and asserted that “based on the license number contracted under, the proper party is Michael Christy d/b/a ICC whose registered address is in Charlotte County, Florida.” The owners further asserted that “[t]he work was performed in Charlotte County, Florida, payment was allegedly due in Charlotte County, Florida[,] and venue is proper in Charlotte County, Florida.” The owners did not submit any affidavits.

Without stating any reasoning for its decision, the trial court entered an order granting the motion to transfer venue to Charlotte County. Suncoast timely appealed the nonfinal order. See Fla. R.App. P. 9.130(a)(3)(A).

In an action against a Florida resident, venue is proper “where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2005). When the defendant files a motion to transfer venue based on the plaintiffs allegedly improper venue selection, “the trial court must resolve any relevant factual issues and then determine whether the plaintiff has made a legal venue selection.” Residential Sav. Mortg., Inc. v. Keesling, 73 So.3d 280, 282 (Fla. 2d DCA 2011). The appellate court reviews the factual findings to determine whether they are supported by competent, substantial evidence or are clearly erroneous. Id. Review of legal conclusions is de novo. Id.

An unsworn complaint is sufficient to allege venue unless the defendant challenges the plaintiffs venue selection. Id. at 283. When the defendant challenges venue and files an affidavit that disputes the plaintiffs venue choice, the burden then shifts to the plaintiff to establish that the venue selection is proper. Id. Here, the owners never filed any affidavits to dispute the venue choice. However, they argue that their motion challenging venue was sufficient because the complaint did not allege sufficient facts on its face to lay venue in Pinellas County. See Pozo v. Roadhouse Grill, Inc., 790 So.2d 1255, 1258 (Fla. 5th DCA 2001) (determining that because the plaintiff failed to meet its initial burden to sufficiently plead venue, the defendant’s challenge to venue by motion was sufficient without affidavits).

Suncoast argues that venue is proper in Pinellas County because the cause of action accrued there. It alleged in its complaint that the owners breached the contract by failing to make payment and that payment was due in Pinellas County. A cause of action for breach of contract accrues for venue purposes where the contract is breached. Dep’t of Transp. v. Cone & Graham, Inc., 884 So.2d 224, 226 (Fla. 2d DCA 2004). A special “place of payment” venue rule applies for the breach of contract to pay money. See id.

If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed.

Id. (quoting Thomas v. David Kilcoyne Real Estate Group, Inc., 791 So.2d 550, 551-52 (Fla. 2d DCA 2001)). When a contract involves the payment of money and the contract fails to specify a place of payment, payment is due where the creditor resides. Koslow v. Sanders, 4 So.Sd 37, 38 (Fla. 2d DCA 2009).

However, the place of payment venue rule applies only “when a debtor-creditor relationship exists between the plaintiff and defendant and the promise sued on is for the payment of a specified amount of money.” Id. When the damages are unliquidated and must be determined by the presentation of evidence, the debt- or-creditor rule does not apply. RJG Envtl., Inc. v. State Farm Fla. Ins. Co., 62 So.3d 678, 679 (Fla. 2d DCA 2011). This court recognized that damages are not necessarily liquidated just because the complaint seeks a sum certain. See id. ‘When there is no liquidated debt, the court looks at the allegations in the complaint to determine where the cause of action accrued and where venue lies.” Id. at 679-80.

This court determined that the place of payment rule did not apply in Cone & Graham when the breach was for failure to make an adjustment, pursuant to contract specifications, for additional compensation and the complaint sought an equitable adjustment to the contract and did not seek a sum certain. 884 So.2d at 227. In Koslow, this court again determined that the place of payment rule did not apply when the defendants did not promise to pay a specified sum of money and the plaintiff sought an accounting and declaration of the amount owed. 4 So.3d at 38.

The owners rely upon I-Net Technologies, Inc. v. Salazar, 82 So.3d 1007, 1009, n. 1 (Fla. 4th DCA 2011), which dealt with an employment agreement for which the place of payment venue rule was inapplicable. There, the Fourth District noted that damages are unliquidated when the complaint fails to demand a specific amount and alleges only general damages. Id.

Here, we recognize that the allegations in the complaint are sparse, but Suncoast sought a sum certain that the owners allegedly failed to pay and attached an invoice to the complaint reflecting that amount. It is clear that payment is based on the insurance estimates referenced in the contract. The allegations with the attached contract and invoice are sufficient to show a liquidated debt, especially in light of the defense failure to file any affidavits challenging venue. In addition, the owners did not argue in the trial court that the debt was unliquidated. Therefore, we conclude that the allegations were sufficient to lay venue in Pinellas County based on the place of payment venue rule. Accordingly, we reverse the order granting the motion to transfer venue to Charlotte County and remand for further proceedings.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Scott BLACK, Appellant, v. TOMOKA STATE PARK and Division of Risk Management/State of Florida, Appellees.
    No. 1D12-3386.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.
    Rehearing Denied Feb. 20, 2013.
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, and Mark Zimmerman, Deland, for Appellant.
    C. Anthony Schoder, Jr., of Smith, Scho-der & Bledsoe, LLP, Daytona Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying, as barred by the statute of limitations, all claims asserted in his petition for benefits (PFB) filed in February 2011. Claimant raises two arguments in the alternative to each other. Because we conclude reversal is warranted on one of those arguments, we decline to address the other.

Longley v. Miami-Dade County School Board, 82 So.3d 1098 (Fla. 1st DCA 2012), is dispositive. The facts of Longley are analogous to the facts here. In both cases, the claimants had filed a prior PFB, compliant with section 440.192, Florida Statutes, asserting both a claim for medical benefits and claims for attorney’s fees and costs. In both cases, the claims for medical benefits in those prior PFBs were resolved — by agreement in Longley (memorialized by letter cancelling mediation), and here by Claimant’s voluntary dismissal of the PFB. In both cases, the claims for fees and costs were expressly reserved upon (not dismissed) — in Longley, by the letter’s statement that “there are no other outstanding issues other than attorney’s fees and costs,” and here by the wording of the Notice of Voluntary Dismissal, “reserving any claim for attorney’s fees and costs relating thereto.” In both cases, the outstanding claims for fees and costs were not thereafter resolved, and were not dismissed for lack of prosecution under the authority of section 440.25(4)(i), Florida Statutes. In both cases, a subsequent PFB (the disposition of which was appealed in each), seeking benefits for the same date of accident, was denied as barred by the statute of limitations. And in both cases, the same rule applies: pending claims asserted via PFB — even claims for fees and costs — toll the statute of limitations.

REVERSED and REMANDED for further proceedings.

LEWIS, CLARK, and RAY, JJ., concur.


author: COHEN, J.

text:
    Rachell NEUMAN, Appellant, v. James HARPER, Appellee.
    No. 5D11-3144.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.

      Rachell Neuman, Bunnell, pro se.
    Tammy L. Jaques, DeLand, for Appel-lee.
   COHEN, J.

Rachell Neuman appeals from a final judgment establishing James Harper’s paternity of their minor child, P.N., ordering shared parental responsibility, and awarding Harper majority time-sharing in Mississippi. Because there was competent substantial evidence to support the final judgment, we affirm.

Virtually every fact adduced at trial was controverted. For instance, the parties could not agree on when they began their intimate relationship and when it ended. Neither date is of particular import, but rather is reflective of the disputed nature of the testimony. When faced with such conflicting evidence, the trial court made a determination as to credibility, and that determination was not flattering to Neu-man.

Neuman’s past behavior no doubt impacted her credibility. Although they were no longer a couple, Harper allowed Neuman to continue living in his home during the pregnancy, while he was out of state performing cleanup services following Hurricane Katrina. On three occasions Neuman changed the locks, effectively excluding Harper from his own residence. Additionally, Neuman filed criminal charges and a domestic violence injunction against Harper, both of which were ultimately dismissed. As a result of Neuman’s ex parte application for the domestic violence injunction, however, Harper was unable to attend the birth of his child.

Worse still were Neuman’s efforts to conceal P.N.’s paternity. Neuman did not acknowledge Harper as the child’s father on the birth certificate, and for the first eighteen months of the child’s life, refused Harper any contact with P.N. Harper filed this paternity action in September 2007. Neuman delayed DNA testing, but finally complied with court-ordered testing. However, instead of taking P.N. to be tested, she took a different child — apparently her sister’s — who was born close in time to P.N. Upon receiving the negative test results, Harper, still convinced he was the child’s father, conducted his own investigation. Through social media, he viewed photographs of P.N. and discovered the photographs were not those of the child Neuman presented for DNA testing.

Harper filed a motion for a second DNA test which the trial court granted. For this test, Neuman brought two children whose faces were obscured by hoods. At first, Neuman tried to prevent Harper from seeing the children in order to further confuse the testing process, but ultimately, the staff, with Harper’s assistance, determined the correct child for testing. That test confirmed Harper as P.N.’s father.

Neuman testified at trial that she knew Harper was P.N.’s father from the time of the child’s birth. Nevertheless, she failed to denote Harper as the father on the birth certificate, filed numerous pleadings denying Harper was the father, and fraudulently procured false DNA test results, all with the intent to deceive both Harper and the court.

The evidence adduced at trial also reflected that Neuman’s parenting skills were less than stellar. P.N. has respiratory issues which necessitate the use of a breathing machine. Although the trial court ordered time-sharing with Harper on a temporary basis, Neuman refused to provide him with any medical information relating to P.N. Harper hired a private investigator whose videotaped surveillance revealed that, despite P.N.’s respiratory issues, Neuman smoked cigarettes in an automobile with P.N. present and lived in a small trailer with five dogs and a cat. Also, during the surveillance, P.N. and his older half-brother were observed wandering alone in a large store, searching for their mother.

In crafting a parenting plan in the best interests of the child, the trial court considered and weighed the factors set forth in section 61.13(3), Florida Statutes (2011). The majority of factors considered by the trial court in determining a proper time-sharing schedule weighed in favor of the father. In pertinent part, the trial court found that Neuman engaged in a deceptive and continuous course of conduct intended to thwart any relationship between the father and child; that Harper provides a more stable and satisfactory environment for the child; and that Neuman has demonstrated a disregard for both the physical and emotional health of P.N. The trial court ultimately concluded that P.N. would reside the majority of the time with his father in Mississippi.

On appeal, Neuman raises a number of challenges to the final judgment, none of which have merit. Neuman argues that Harper’s paternity petition did not request a designation of the “primary residential parent,” and that the final judgment does not articulate “how it is in the best interest of the child to designate a Primary Residential Parent.” While the final judgment does not specifically designate a “primary residential parent,” the time-sharing schedule placed P.N. with the father in the role of what traditionally would have been considered the primary residential parent. The trial court’s decision was based on the statutory factors and in consideration of the fact that the parties live in different states. We find no abuse of discretion in that decision. See Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003) (noting a trial court’s decision regarding child custody matters is reviewed for an abuse of discretion).

Neuman also challenges several of the trial court’s factual findings. She, however, misconstrues the role of this Court in reviewing the evidence. Our review is limited to determining whether there is competent substantial evidence to support the findings of the court below. See Ferri v. Apple, 900 So.2d 673, 673 (Fla. 2d DCA 2005). In doing so, we view the evidence in the light most favorable to the appellee, Harper. Sinclair v. Sinclair, 804 So.2d 589, 594 (Fla. 2d DCA 2002). The fact that Neuman presented evidence disputing the trial court’s findings is not sufficient to warrant reversal. See Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998). Here, the lower court’s findings were supported by competent substantial evidence. Finding no merit in the remaining issues raised on appeal, we affirm.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . Conversely, the trial court found that Harper had taken extensive measures to share parental responsibility, despite Neuman’s conduct.


author: NORTHCUTT, Judge. KELLY,

text:
    In the Interest of C.Z. and A.Z., children. J.Z., Appellant, v. Department of Children & Family Services and Guardian Ad Litem Program, Appellees.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.

      Cassandra L. Denmark of Meeks & Denmark, L.L.P., Bartow, for Appellant.
    Deborah Anne Schroth of Children’s Legal Services, Jacksonville, for Appellee Department of Children & Family Services.
    Laura E. Lawson, Tavares, for Appellee Guardian ad Litem Program.
   NORTHCUTT, Judge.

J.Z. appeals an order that adjudicated two of his children dependent. We find no merit either in his argument that the adjudication was unsupported by competent, substantial evidence or in his claim that the circuit court abused its discretion by limiting J.Z.’s contact with the children pending some progress with his case plan tasks. Nevertheless, we must reverse the dependency order because the court failed to make the required findings.

When entering a dependency order, a circuit court is required by statute and rule to recite the facts that support the adjudication. § 39.507(6), Fla. Stat. (2011) (requiring the court to enter an order “briefly stating the facts upon which the [dependency] finding is made”); Fla. R. Juv. P. 8.332(a) (requiring the court to enter an order “specifying the facts upon which the finding of dependency is based”); see Ware v. In re J.N.M., So.2d 716 (Fla. 2d DCA 1994) (reversing dependency order that failed to include supporting facts; remanding for a new hearing because the original judge was no longer sitting on the circuit court).

This case is somewhat unusual in that the order purports to contain factual findings, but they are merely a verbatim repetition of the allegations in the dependency petition filed by the Department of Children and Family Services. The testimony at the dependency hearing confirmed some of those allegations — enough to support the dependency adjudication — but not others. Some of the order’s factual findings purport to reflect testimony of witnesses who did not even testify at the hearing. This simple parroting of the dependency petition, including allegations that were not even addressed at the hearing, creates “an appearance that the judgment does not reflect the judge’s independent decision-making.” See M.D. v. Dep’t of Children & Family Servs., 924 So.2d 827, 831 (Fla. 2d DCA 2005).

Moreover, written findings facilitate meaningful appellate review. J.C.G. v. Dep’t of Children & Families, 780 So.2d 965, 966 (Fla. 5th DCA 2001). Where it is possible to do so, however, we may review a dependency adjudication notwithstanding that the order is deficient, in order to provide an early resolution of a child’s placement. Fitzpatrick v. State, Dep’t of Health & Rehabilitative Servs., 515 So.2d 319, 321 (Fla. 3d DCA 1987) (remanding for factual findings where court had not previously stated any findings, the record was unclear on the legal basis for dependency, and the department failed to file a brief on appeal). In this case, we have a complete record and transcript, including oral findings announced by the court at the conclusion of the hearing. Having reviewed the evidence and the court’s oral findings, we conclude that the evidence was sufficient to support the dependency adjudication.

But the oral findings do not cure the defective order. See A.F. v. Dep’t of Children & Family Servs., 86 So.3d 1144, 1146 n. 1 (Fla. 3d DCA 2012) (reversing deficient order when trial court made no specific findings but simply alluded to testimony and evidence was conflicting) (Shepherd, J., concurring specially) (“In a dependency case, oral findings in the record may not be relied upon to cure an otherwise defective written order.”); E.B. v. Dep’t of Children & Families, 54 So.3d 1090, 1090 n. 1 (Fla. 4th DCA 2011) (rejecting guardian ad litem’s suggestion that reversal was unnecessary when trial court made oral findings). This is because the required findings serve important purposes aside from appellate review.

The findings are useful to help parents, counselors, and [Department] representatives understand what the court found to be the reasons for dependency and to plan for remedial action. Furthermore, section 39.408(3) [now section 39.521(1) ] requires the court to review the order of adjudication to determine whether “the facts alleged in the petition for dependency were proven in the adjudicatory hearing....” It is also useful to the court to remind itself why it ruled as it did if it is later necessary to consider whether the adjudication of dependency should be dissolved; written findings of fact might permit the court to reach a decision without having to review the record and attempt to recall how the adjudication decision was made. The findings will also aid a successor judge who must determine the reasoning of a predecessor who is no longer in office ....

J.C.G., 780 So.2d at 966-67 (quoting Williams v. Dep’t of Health & Rehabilitative Servs., 568 So.2d 995, 997 (Fla. 5th DCA 1990)).

Indeed, dependency order findings are not merely useful or convenient; they can prove critical to future determinations in the case. Thus, for example, a case plan is required to contain “[a] description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department.” § 39.6011(2)(a). When called upon to approve a case plan, the court must determine “[w]hether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency.” § 39.603(l)(f). Later, the court’s determination whether there has been “substantial compliance” with the case plan will turn on whether “the circumstances which caused the creation of the case plan have been significantly remedied.” § 39.01(73); cf. N.F. v. Dep’t of Children & Family Servs., 82 So.3d 1188, 1192-93 (Fla. 2d DCA 2012) (reversing termination of parental rights, in part because trial court failed to focus on circumstances that caused creation of case plan).

For these reasons, the inclusion of an unwarranted finding in a dependency order could have an enormous impact on the rights of the parents and the welfare of their children. Courts are duty-bound to ensure that their dependency orders reflect only facts proved by competent, substantial evidence presented at the dependency hearing, and no more.

Although we have been aided by the court’s oral findings and are thus able to conclude that the evidence was sufficient to support the dependency adjudication, we reverse and remand for entry of an order that states only facts that were supported by evidence at the hearing and that were relied upon by the court when adjudicating the children dependent.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

KELLY, J., Dissents with opinion.

KELLY,

Dissenting.

I would affirm the adjudication of dependency because I believe that the order on appeal is salvageable and that, as the majority has explained, the evidence was more than sufficient to support it. See Williams v. Dep’t of Health & Rehabilitative Servs., 568 So.2d 995, 997 (Fla. 5th DCA 1990) (explaining that reversal was necessary because the order contained no factual findings and could not be salvaged as it was “difficult, if not impossible, to review the basis upon which the trial court arrived at its determination of dependency in the absence of those [factual] findings”); Castellanos v. Dep’t of Health & Rehabilitative Servs., 545 So.2d 455, 458 (Fla. 3d DCA 1989) (finding no merit to contention that the trial court’s order did not state the facts upon which the finding of dependency was based even though the order “largely tracked the factual allegations of the dependency petition” because “the trial court obviously found that these facts had been established at trial”); Fitzpatrick v. State, Dep’t of Health & Rehabilitative Servs., 515 So.2d 319, 320-21 (Fla. 3d DCA 1987) (explaining that an appellate court may review a facially insufficient dependency order to provide an early resolution of a child’s placement if the record supports the dependency, but declining to review the appealed order and instead remanding for factual findings where the court was “unable to evaluate the merits” of the appellant’s claim because neither the record, the petition, nor the order revealed the theory upon which the dependency was predicated).


text:
    Margetta LANGLOIS, Appellant, v. G.R.P. LOANS, Appellee.
    No. 2D12-6085.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.

      Margetta Langlois, pro se.
    No appearance for Appellee.
   PER CURIAM.

This proceeding was initiated December 10, 2012, upon receipt of a transmission letter from the circuit court clerk in Pasco County along with an extensive collection of documents that the Pasco clerk determined was an attempt to commence an appeal in this court. Conspicuously absent from this submission was anything resembling a conventional notice of appeal.

This court’s clerk assigned an appellate case number to this proceeding, but the absence of the order that is being appealed prevented this court from ascertaining its jurisdiction. Accordingly, on December 11, 2012, this court issued orders requiring Ms. Langlois to show cause why the appeal should not be dismissed as untimely, and why the appeal should not be dismissed for her failure to provide a copy of the order appealed as required by Florida Rule of Appellate Procedure 9.110(d), its absence rendering the court unable to determine its jurisdiction. Although Ms. Langlois has filed additional papers with this court, she has failed to show cause why this proceeding should not be dismissed as untimely. Thus, this appeal is dismissed.

Unfortunately, this appeal follows in a series of twenty-five proceedings that Ms. Langlois has filed in this court since 2010 that were dismissed based on Ms. Lan-glois’ failure to eomply with the Florida Rules of Appellate Procedure. Accordingly, on December 18, 2012, this court issued an additional order to Ms. Langlois requiring her to show cause why she should not be prohibited from instituting civil proceedings in this court unless submitted by a licensed attorney. As we explained in that order,

Ms. Langlois’ filing of principally indecipherable documents in large volume taxes the limited resources of this court’s clerk and his staff. None of her disposed cases ever reached the briefing stage. It appears that Ms. Langlois harbors the belief that the submission of her notice of appeal along with scores of pages of circuit court pleadings, her own commentary, and other documents fulfills her requirements to perfect an appeal.
These lengthy submissions seeking review of unknown, or often very old, circuit court activity consume an inordinate amount of the time of this court’s clerk’s personnel, causing delay in servicing the appeals brought by other litigants who respect the need to comply with the appellate rules and who seek timely review of appealable circuit court orders. Judicial labor of three-judge panels was required to determine the propriety of dismissing her proceedings for failing to follow simple orders from this court. All dismissals were preceded by orders directing her to remedy shortcomings in her appeals or otherwise address concerns of the court regarding jurisdiction.
Ms. Langlois’ abusive submissions to this court and her repetitive, argumentative phone calls with staff interfere with the orderly processing of appeals of deserving litigants. Further, to the extent that they can be determined, the claims she has advanced in the 25 proceedings that have been dismissed appear to have lacked merit.
Finally, but not insignificantly, Ms. Langlois’ unauthorized faxing to this court’s clerk of large volumes of documents causes unnecessary public expense in paper costs.

In her submission in response to our show cause order, Ms. Langlois has failed to show cause why she should not be prohibited from instituting civil proceedings in this court unless submitted by a licensed attorney, and we have determined that her frivolous and repetitious filings burden the resources of this court. See Werdell v. State, 16 So.3d 875, 877 (Fla. 2d DCA 2009). Accordingly, Margetta Langlois is prohibited from initiating any civil appeals or original proceedings in this court unless submitted by a member in good standing of The Florida Bar. See Broom v. Tucker, 94 So.3d 502, 504 (Fla.2012). The clerk of this court is directed to deposit any submissions from her that may otherwise qualify to be treated as civil appeals or original proceedings in an inactive file that shall receive no judicial attention. Ms. Langlois is also prohibited from sending by facsimile transmission any documents to this court’s clerk or any other offices of this court.

This proceeding, Case No. 2D12-6085, is dismissed.

SILBERMAN, C.J., and NORTHCUTT and BLACK, JJ., Concur.


text:
    R.S., Father of A.R.S., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D12-4021.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2013.
    Ryan Thomas Truskoski, Special Assistant Regional Counsel, Stephen Teaster, Assistant Regional Counsel, and Jeffrey Deen, Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Deborah A. Schroth, Department of Children & Families, Jacksonville, for Ap-pellee.
    Wendie Michelle Cooper, Guardian ad Litem Office, Tavares.
   PER CURIAM.

Appellant, R.S. [“R.S.”], appeals the order of adjudication, finding his child, A.R.S., dependent and entering a case plan with a goal of permanent guardianship. A.R.S. was sheltered after R.S. was arrested for multiple drug offenses, his third in two years. The mother is deceased. The Department of Children and Families [“DCF”] subsequently filed a dependency petition that alleged that R.S. engaged in chronic substance abuse and that he was currently incarcerated. R.S. denied the dependency allegations.

Without taking any evidence, the trial court entered an adjudication that DCF had proven by a preponderance of the evidence that the child was dependent. The court then set a disposition hearing, to which R.S. objected in the absence of an adjudicatory hearing. A case plan with a goal of permanent guardianship was nevertheless entered by the lower court.

The Guardian ad Litem and DCF both properly concede that the court erred in failing to hold an adjudicatory hearing. Accordingly, we reverse and remand for that purpose.

REVERSED and REMANDED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.


author: WARNER, J.

text:
    INFORMATION SYSTEMS ASSOCIATES, INC., Petitioner, v. PHUTURE WORLD, INC., Respondent.
    No. 4D12-3094.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.

      Cory Chandler of Spector Gadon & Ro-sen, P.C., St. Petersburg, for petitioner.
    Glenn A. Crickenberger and Robert J. Gorman of Robert J. Gorman & Associates, P.A., Fort Pierce, for respondent.
   WARNER, J.

In this petition for writ of certiorari, Information Systems Associates, Inc. (“ISA”), challenges a court order granting respondent, Phuture World, Inc.’s, motion to revoke attorney Daniel J. Dugan’s admission to appear pro hac vice, barring him from appearing or representing any interest in the pending suit between the two parties. The trial court found that Dugan had engaged in the unauthorized practice of law in Florida by representing one of ISA’s witnesses at his deposition and because of a conflict of interest. We conclude that an alleged conflict of interest asserted by someone not a party to the attorney/client relationship is not a ground for revoking the pro hac vice status of a foreign attorney. We also conclude that in this case, the foreign attorney did not provide representation beyond the order authorizing his pro hac vice status. We grant the petition.

This case arises out of a dispute between ISA and Phuture regarding Phuture’s provision of software development for ISA. Phuture wrote source code for ISA, but ISA discharged Phuture and hired Kirk Haynes to perform the work. Haynes was the nephew of one of the principals of ISA and was hired on an hourly basis as an independent contractor. Phuture sued ISA for royalties, because it contended that Haynes used Phuture’s source code. ISA claimed that Haynes had rewritten the entire software program produced by Phuture so that it was not entitled to royalties.

Attorney Dugan, with the law firm of Spector Gadon & Rosen (“SGR”), a Philadelphia law firm with an office in St. Pe-tersburg, Florida, moved for pro hac vice status at the beginning of the case. Du-gan and his firm had represented ISA and its principals for several years. In his motion, Dugan affirmed that he was a member in good standing of three state bars and the District of Columbia Bar. He has never been subject to any disciplinary proceedings. Cory Chandler, of SGR’s St. Petersburg office, and a member in good standing of the Florida Bar, associated with Attorney Dugan for this matter. Attorney Dugan requested permission to appear in the Nineteenth Judicial Circuit “for this cause only.” The court granted the motion.

Nearly two years later, in June 2011, Phuture sought to take the deposition of Haynes. That deposition was coordinated through Dugan’s office, as ISA agreed to produce Haynes without subpoena. Phu-ture sent notice of deposition duces tecum asking Haynes to bring certain documents to the deposition. Dugan appeared at Hayne’s deposition. At the commencement of the deposition, Phuture’s attorney asked for the documents, and Haynes stated that he had not brought the documents on the advice of Dugan. Dugan told counsel that he was advising Haynes for the purposes of the deposition, and he had told him not to bring the documents, because they had already been produced. Later, however, it appeared that Haynes had other documents which were covered by the request which had not been produced. Phuture filed a motion to compel production of those documents. The trial court granted the motion in December 2011.

Three months later, Phuture moved to revoke Dugan’s pro hac vice status, alleging that he had engaged in the unauthorized practice of law by acting as Haynes’ attorney at the deposition and again before the court on the motion to compel. It did not raise any conflict of interest in its motion. The only mention of conflict of interest was by Dugan who said there was no conflict between ISA and Haynes and thus representation of Haynes at the deposition was a normal part of defending ISA in the proceedings. On rebuttal, Phuture pointed to a reference in the deposition where Phuture’s counsel stated to Dugan: ‘You have an apparent conflict here. You represent the Defendant here, as well as the witness.” Dugan responded, “yeah, I do.” The trial court thereafter revoked Dugan’s pro hac vice status both because of unauthorized practice of law and because of a conflict of interest.

Certiorari lies to review the revocation of an attorney’s pro hac vice status. Brooks v. AMP Servs. Ltd., 979 So.2d 485, 487 (Fla. 4th DCA 2008). Not only is a party deprived of its attorney of choice, but the action will have future adverse consequences on the attorney both in this jurisdiction and others. Id. at 438. Moreover, because the attorney is barred from further involvement, he has no remedy on appeal. See THI Holdings, LLC v. Shattuck, 93 So.3d 419, 422 (Fla. 2d DCA 2012). Having established irreparable harm not remediable on appeal, the petitioner must also establish that the trial court departed from the essential requirements of law. Id. at 424. Where the record does not provide any basis for denying pro hac vice status or for revoking it, the trial court has failed to follow the essential requirements of law. Id.

The trial court concluded that a conflict of interest was shown based upon an admission by Dugan at the deposition, requiring revocation. Although we do not deem the quoted statement and response as an admission of conflict but of representation of both Haynes and ISA, nevertheless, a conflict of interest is an improper basis for revocation of pro hac vice status. See id.; Srour v. Srour, 733 So.2d 593 (Fla. 5th DCA 1999). “ ‘[A] party ... does not have standing to seek disqualification where, as here, there is no privity of contract between the attorney and the party claiming a conflict of interest.”’ THI Holdings, 93 So.3d at 424 (quoting Cont’l Cas. Co. v. Przewoznik, 55 So.3d 690, 691 (Fla. 3d DCA 2011)). Therefore, revocation based upon conflict of interest is a departure from the essential requirements of law.

The court also found that Dugan had engaged in the unauthorized practice of law by representing Haynes, ISA’s software writer, at his deposition. Dugan was granted pro hac vice status “for this cause only.” He appeared at the deposition on behalf of both ISA and Haynes, the scope of whose work appears to be the central issue in the case. Florida Bar Rule 4-5.5(c)(2) permits a lawyer authorized to practice in another United States jurisdiction to practice law on a temporary basis in Florida where the legal services “are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer is authorized by law or order to appear in such proceeding....” (Emphasis supplied). Here, Dugan obtained authorization to appear in this proceeding. The order did not specify that he could represent only ISA. In fact, the interests of ISA and Haynes are aligned, and appearing on behalf of Haynes would be similar to appearing on behalf of an employee of ISA. Certainly, Dugan’s representation was reasonably related to the pending proceeding. This limited representation does not constitute the unauthorized practice of law or a violation of the disciplinary rules of the bar where pro hac vice status had been granted for the cause.

Moreover, we conclude that the motion to revoke was not made with reasonable promptness. “A motion to disqualify should be made with reasonable promptness after the party discovers the facts which lead to the motion.” Transmark, USA, Inc. v. State, Dep’t of Ins., 631 So.2d 1112, 1116 (Fla. 1st DCA 1994) (citations omitted). “The rationale behind this rule is to prevent a litigant from using the motion as a tool to deprive his opponent of counsel of his choice after completing substantial preparation of the case.” Id. at 1116 (citing Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725, 729 (11th Cir.1988)). Here, Phuture’s counsel was well aware of the facts, and at the deposition and in subsequent pleadings, Phuture made reference to its contention that Dugan had exceeded his pro hac vice status. Despite this, it waited until nine months after the deposition to file a motion to revoke Du-gan’s status. It apparently did not object to Dugan’s representation of Haynes’ interest at the motion to compel which was heard in December 2011. Three months later it filed its motion to revoke. Under these circumstances, we conclude that the motion was delayed unreasonably.

For these reasons, we quash the order revoking attorney Dugan’s pro hac vice status and order his reinstatement as an attorney pro hac vice in this case.

POLEN and TAYLOR, JJ., concur.


text:
    Pilar PAULINO, Appellant, v. BJ’S WHOLESALE CLUB, INC., Appellee.
    No. 4D12-167.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.

      Dana M. Gallup of the Law Offices of Dana M. Gallup, P.A., Hollywood, for appellant.
    S.Jordon Rappaport and Pedro J. Torres-Diaz of Jackson Lewis LLP, Miami, for appellee.
   KEYSER, JANIS BRUSTARES, Associate Judge.

The plaintiff appeals an order granting the defendant’s motion to strike her amended complaint. The trial court granted the motion to strike based on its finding that a prior order on a motion to dismiss was a final judgment which precluded the filing of an amended complaint. We find that the prior order was not a final judgment which prevented the plaintiff from filing an amended complaint and, thus, the trial court erred in striking the amended complaint. We reverse and remand to the trial court to allow the filing of the amended complaint.

In April of 2011, the plaintiff filed suit against the defendant, her former employer, alleging that the defendant violated Florida’s Civil Rights Act (FCRA) by engaging in sexual discrimination and that she was terminated from her employment in retaliation for her complaints of sexual discrimination. The defendant filed a motion to dismiss, asserting that the plaintiff failed to exhaust her administrative remedies. The defendant also moved to dismiss on statute of limitation grounds.

In a September 9, 2011 order entitled “Order on Defendant’s Motion to Dismiss Plaintiffs Complaint,” the trial court granted the motion to dismiss. The order reads as follows:

The motion is granted. It appears plaintiff failed to exhaust administrative remedies, allegations in the complaint go beyond those arguably presented in the administrative charge, and plaintiffs allegations are time barred.

The order does not state whether the dismissal is with or without prejudice; it does not grant the plaintiff leave to amend; and it does not actually dismiss the complaint:

Less than a week later, the plaintiff filed an amended complaint. The defendant filed a motion to dismiss on the same grounds it had moved to dismiss the original complaint. The defendant subsequently filed a “Motion to Strike Plaintiff’s Amended Complaint or, Alternatively, Supplemental Motion to Dismiss Plaintiffs Amended Complaint.” The defendant asserted that the September 9, 2011 order granting the motion to dismiss was a final judgment and no motion for rehearing or notice of appeal was filed by the plaintiff. The defendant argued that the plaintiff could not revive her lawsuit by filing an amended complaint. Alternatively, the defendant sought dismissal on the same grounds asserted in its previously-filed motion to dismiss. The plaintiff responded that the September 9, 2011 order was not a final order of dismissal; and, since no answer had been filed, she had an absolute right to amend pursuant to Florida Rule of Civil Procedure 1.190(a).

On December 12, 2011, the trial court rendered an order on the defendant’s motion, granting the motion to strike the plaintiffs amended complaints. The trial court apparently accepted the defendant’s argument that the “Order on Defendant’s Motion to Dismiss Plaintiffs Complaint” was a final judgment of dismissal, and that entry of the final judgment served to bar the filing of the plaintiffs amended complaint.

Ordinarily, a trial court’s ruling on a motion to strike a pleading is reviewed for an abuse of discretion. See, e.g., Upland Dev. of Cent Fla., Inc. v. Bridge, 910 So.2d 942, 944 (Fla. 5th DCA 2005). Here, however, the order on appeal is essentially a ruling on a question of law: whether a prior court order was a final judgment, which required the taking of an appeal to challenge the same. Therefore, de novo review is appropriate. Cf. Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 392 (Fla. 2d DCA 2012) (holding that, because ruling on jury instruction decided as an issue of law, de novo review appropriate); Univ. of Miami v. Francois, 76 So.3d 360, 364 (Fla. 3d DCA 2011) (recognizing questions of law are reviewed de novo), review denied, 99 So.3d 943 (Fla. 2012).

To constitute a final order, an order of dismissal need not state that the dismissal is “with prejudice” or expressly deny any right to amend. Hayward & Assocs., Inc. v. Hoffman, 793 So.2d 89, 91 (Fla. 2d DCA 2001). On the other hand, it is well-established that an order which merely grants a motion to dismiss, as contrasted with an order dismissing a complaint or an action, is not a final order. Id.; Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 698 (Fla. 4th DCA 2010).

In Hayward, as here, the trial court struck an amended complaint based upon its finding that an earlier order granting a motion to dismiss was a final, appealable order which precluded further amendment. That earlier order was entitled “Order Granting Defendant’s Motion to Dismiss” and contained language stating that it was “ordered and adjudged that the motion to dismiss ... is granted” as to each of the counts. 793 So.2d at 90. The order included paragraphs containing an analysis of each count of the complaint and concluded that each count failed to state a cause of action. Id. The Second District held that, since the order never expressly dismissed the entire complaint, the order was non-final and, thus, the trial court had erred in striking the amended complaint. Id. at 91.

The court in Hayward further noted that the order at issue in that case did not foreclose the possibility that the complaint could be amended to properly assert at least some of these claims. Id. at 90 n. 3. Since this was Hayward and Associates’ first complaint, the court stated “to enter a final order dismissing the complaint with prejudice and without opportunity to amend would have been an abuse of discretion.” Id. (citing Kapley v. Borchers, 714 So.2d 1217 (Fla. 2d DCA 1998)).

Here, as in Hayward, the September 9, 2011 order at issue does nothing more than grant a motion to dismiss. There is no language in the order actually dismissing the complaint or action. There is also no language in the September 9, 2011 order clearly indicating that judicial labor was at an end and there could be no possibility of amendment. See Hinote v. Ford Motor Co., 958 So.2d 1009, 1010 (Fla. 1st DCA 2007) (recognizing that order of dismissal can be rendered final as result of language making it clear judicial labor in the case is at an end).

The language of the order is somewhat equivocal, i.e., it “appears plaintiff failed to exhaust administrative remedies, allegations in the complaint go beyond those arguably presented in the administrative charge, and plaintiffs allegations are time barred.” (emphasis added). It is simply not clear from the September 9, 2011 order that the defects in the original complaint are beyond cure. Therefore, the order is merely a non-final order granting a motion to dismiss and, as such, did not serve to preclude further pursuit of the action by the filing of an amended complaint.

Accordingly, we reverse and remand with instructions to the trial court to permit the filing of the amended complaint. As the trial court never ruled on the motion to dismiss directed to the amended complaint, the motion to dismiss must be addressed on remand.

Reversed and Remanded.

POLEN and CONNER, JJ„ concur.


text:
    Brian CRENSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4345.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

PER CURIAM.

The motion for rehearing is granted. We withdraw our prior opinion and substitute the following in its place.

We affirm the summary denial of appellant’s motion for postconviction relief. Our affirmance is without prejudice to appellant filing a motion to correct an illegal sentence based on the court’s failure to continue appellant’s youthful offender status upon violation of probation for a crime on which appellant was originally sentenced as a youthful offender. See Christian v. State, 84 So.3d 437, 444-45 (Fla. 5th DCA 2012) (youthful offender who violates probation is still entitled to be sentenced as a youthful offender on original offense; even though six-year cap may not apply, other aspects of youthful offender sentencing would still apply) ; see also St. Cyr v. State, 106 So.3d 487 (Fla. 4th DCA 2013).

Affirmed.

WARNER, CIKLIN and GERBER, JJ„ concur.

      . In Christian, the issue of the youthful offender status came to the court by way of a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800.

      . St. Cyr also addressed the youthful offender status in a motion to correct an illegal sentence.


author: SCHWARTZ, Senior Judge.

text:
    Margarita CARRASQUERO, Appellant, v. MAPFRE INSURANCE COMPANY OF FLORIDA, etc., Appellee.
    No. 3D11-2971.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Lidsky & Montes Law Firm, P.L. and Juan C. Montes, Hialeah, for appellant.
    Thornton Davis & Fein and Barry L. Davis, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The holding in Carrasquero v. Ethan’s Auto Express, Inc., 949 So.2d 223 (Fla. 3d DCA 2006), that Ethan’s was not the owner of the vehicle involved in the instant accident compels, as the trial court correctly held in dismissing the complaint, the concomitant conclusion that it and its driver, the actual owner, were not covered under Ethan’s liability policy with the ap-pellee insurer here. See State Farm Mut. Auto. Ins. Co. v. Hartzog, 917 So.2d 363 (Fla. 1st DCA 2005); Se. Fidelity Ins. Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987).

Affirmed.


text:
    Dennis PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-101.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Eduardo Soto, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne Burham, Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Chance DAWKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3211.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Cubelo v. State, 41 So.3d 263, 267-68 (Fla. 3d DCA 2010); see also Haygood v. State, 54 So.3d 1035, 1036-38 (Fla. 2d DCA 2011), rev. granted, 61 So.3d 410 (Fla.2011).


text:
    MYERS CONSTRUCTION GROUP, INC., Appellant, v. AEGIS SECURITY INSURANCE COMPANY, Appellee.
    No. 3D12-1581.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Braude Law Group, P.C. and Herman M. Braude and Richard Y. Rho, Washington, for appellant.

      Kopelowitz Ostrow Ferguson Weisel-berg Keechl and John J. Shahady, Fort Lauderdale, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 598 So.2d 195, 198 (Fla.1992); Ohio Cas. Ins. Co. v. Oakhurst Homes, Inc., 512 So.2d 1156, 1157 (Fla. 2d DCA 1987).


text:
    Daniel Ellis LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5352.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2013.
    Curtis S. Fallgatter of Fallgatter Far-mand & Catlin, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: PER CURIAM. CLARK, J.,

text:
    D.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1475.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.

      Nancy A. Daniels, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s Final Disposition Order finding Appellant guilty of resisting a law enforcement officer without violence. The order withholds adjudication and places Appellant on probation.

Appellant asserts two bases for reversal: 1) the trial court’s denial of his timely motion for judgment of dismissal; and 2) the trial court’s decision to admit testimony he contends was hearsay. As explained below, we affirm as to the first issue. We affirm as to the second issue without further comment.

Factual Summary

Officers Fahey and Chance, the two police officers involved in the incident in question, testified they went to a residence in response to an anonymous telephone call informing them that a person with an outstanding warrant, one Corey Johnson, was at the residence. The only description the caller gave was that the alleged fugitive was a black male. Officer Fahey went to the front door of the house and Officer Chance went around to the rear to prevent escape. After Officer Fahey knocked on the door, a man answered and provided information that he was not the person whom Officer Fahey was looking for. Officer Fahey saw Appellant and asked if he was the person being sought; Appellant said he was not and did not have any identification. After the front door was closed, Officer Fahey went around the house to discuss matters with Officer Chance.

Officer Chance informed Officer Fahey that he had encountered a young girl who told him that the man they were looking for was hiding in the house. The officers then contacted their sergeant and requested his presence. Officer Fahey testified that, before the sergeant’s arrival, he saw some children leaving the residence, which did not raise any concern. Sometime after the sergeant arrived, however, the sergeant discovered there was no water or electrical service on in the house. Officer Fahey farther testified that police learned from neighbors that children lived in the residence.

Soon after the discovery that children were living in a house without water or electricity, Appellant and the man who had answered the door left the house. Officer Fahey testified that he approached Appellant and again asked for identification; Appellant responded that it was in the house and, when asked to retrieve it, Appellant said the door was locked, thus, he could not get to it. Officer Fahey explained to Appellant that police were looking for an individual with a warrant, a Corey Johnson, and that they were now investigating a felony case of child neglect, thus, he needed to identify Appellant. Officer Fahey also told Appellant that if he couldn’t provide identification, they would have to fingerprint him for identification. Officer Fahey testified that he needed to know if Appellant was a parent, the person with the outstanding warrant, or a minor, and therefore a potential victim of child neglect.

Appellant did not respond to Officer Fa-hey’s explanation as to why he needed identification. Officer Fahey then grabbed Appellant underneath the armpit of his left arm and attempted to escort him to the police cruiser. Appellant “jerked away,” and at that point, Officer Fahey testified, Appellant was under arrest for resisting.

At the close of the State’s case, Appellant moved for judgment of dismissal, contending the issue was whether the officers were exercising a lawful duty at the time Appellant resisted. Appellant argued they were not. The trial court denied the motion, relying on the original call to the officers informing them of a wanted person at the address, the subsequent information from the child in the rear of the house regarding the potential fugitive, which in turn led to the discovery that there was no water or electricity in the home, which gave rise to “a subsequent investigation regarding the suitability of the home [for] children or whether there was a violation of failure to provide necessities at the home.” The court concluded that, based on the information police had at the time, they had sufficient reason to conduct a stop and try to ascertain the identity of the child.

Analysis

“[A] motion in a juvenile delinquency proceeding is akin to a motion for judgment of acquittal in an adult criminal trial,” and “review of the denial of a motion for judgment of dismissal is de novo.” J.W.J. v. State, 994 So.2d 1228, 1224 (Fla. 1st DCA 2008). “The question presented by the motion is whether the evidence is legally adequate to support the charge.” Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). “A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

“To obtain a conviction for resisting an officer without violence, the State must prove (1) that the officer was engaged in the lawful execution of a legal duty and (2) that appellant’s actions amounted to obstruction or resistance of that lawful duty.” D.T. v. State, 87 So.3d 1235, 1239 (Fla. 4th DCA 2012). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). Here, Appellant argues that the State failed to establish that the police were engaged in the lawful execution of a legal duty when the resistance occurred. The State contends that the police had two sufficient reasons to stop Appellant: 1) the need to ascertain whether Appellant was the subject of the fugitive warrant; and 2) the need to investigate a child neglect case which, in turn, necessitated ascertaining whether Appellant was a victim or a suspect.

We agree with the State as to the second ground: Regardless of whether the officers were justifiably at the house, after discovering the house lacked any water or electrical service, police had a legitimate basis for temporarily detaining Appellant based on a reasonable suspicion that he was either a child neglect victim or the parent of a child neglect victim and, thus, subject to arrest. See, e.g., State v. Frierson, 926 So.2d 1139, 1143-45 (Fla.2006) (explaining that information obtained after an initially illegal arrest or search can be admissible if the information is gained as a result of an intervening circumstance if a search incident to that circumstance is sufficiently distinguishable from the illegal stop so as to purge the taint of that illegality, and the police misconduct was not flagrant). As required by law, we view the officers’ conduct under an objective standard. See Whren v. U.S., 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary.”). Under this standard, the officers had a reasonable suspicion that Appellant could be the victim of child neglect and required state protection. Thus, objectively, Appellant’s temporary detention was justifiable under the circumstances. Even if the initial investigation was not lawful, the subsequent investigation of child neglect was lawful and was sufficiently distinguishable from the initial investigation to purge the taint of illegality.

Conclusion

For the foregoing reasons, we AFFIRM the trial court’s order withholding adjudication of delinquency and imposition of probation.

WOLF and THOMAS, JJ., concur.

CLARK, J., Dissenting with Written Opinion.

CLARK, J.,

dissenting.

Respectfully, I dissent and would reverse the final disposition order and conclude that the officer was not lawfully performing a legal duty when the appellant pulled his arm away from the officer’s grasp. The appellant’s refusal to be taken from the scene and be fingerprinted, in the absence of the lawful performance of an official duty, does not constitute the offense of resisting an officer in the “lawful execution of any legal duty,” as proscribed by section 843.02, Florida Statutes. See e.g. D.T. v. State, 87 So.3d 1235 (Fla. 4th DCA 2012). The trial court therefore should have granted the appellant’s motion to dismiss.

The majority disregards the unlawful police conduct in this ease by applying the attenuation doctrine delineated in State v. Frierson, 926 So.2d 1139 (Fla.2006). Fri-erson established that a primary taint of unlawful police activity may become so attenuated by intervening circumstances as to avoid the application of the exclusionary rule. However, Frierson was addressing a claim that evidence should be suppressed as the product of an illegal search, and did not address the issue presented here. The present case does not involve the admissibility of evidence, or any issue with regard to the exclusionary rule. It is therefore doubtful that the Frierson doctrine is applicable.

Even if Frierson is considered here, the circumstances of the present case do not bring it within the attenuation doctrine as described in Frierson, where a police officer uncovered evidence while executing an outstanding arrest warrant unrelated to the officer’s improper stop of the defendant. Here the detention of the appellant for police investigation resulted in large part from information obtained as a result of the officers’ unlawful presence behind the house.

Even if the stop was valid, the ultimate question in this case is whether the police officer was acting lawfully when he grabbed the appellant to take the appellant to be fingerprinted. The majority applies Frierson to attenuate any taint which preceded the stop outside the house, but the officer’s further action in grabbing the appellant’s arm to take him away from the scene to have him fingerprinted was itself unlawful police conduct. The United States Supreme Court clearly established in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), that detention for the purpose of fingerprinting is itself subject to the constitutional protection against unreasonable searches and seizures. See also Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). In Davis the Court explained that the brief investigatory detention which might be allowed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), does not permit the police to remove an individual from the scene and compel him to be fingerprinted, without probable cause or judicial authorization. The Court reiterated that ruling in Hayes, while emphasizing that the constitutional “line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Hayes, 470 U.S. at 816, 105 S.Ct. 1643. As in Davis and Hayes, the officer’s attempt to remove the appellant from the scene in this case to take him to be fingerprinted against his will in order to identify him, without probable cause or judicial authorization, exceeded the bounds of a proper investigative stop.

Because the officer was not acting lawfully, the appellant’s response in pulling his arm away from the officer s grasp was not resisting arrest under section 843.02, and the court should have granted the appellant’s motion to dismiss.

      . We note that, ultimately, Appellant’s mother was arrested for child neglect.

      . The officer's approach to the front door was constitutionally permissible, but going to the rear of the house was an unlawful incursion into a constitutionally-protected area. See e.g. Glass v. State, 736 So.2d 788 (Fla. 2d DCA 1999).


text:
    Jason Edward HETZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and EG Systems Inc., Appellees.
    No. 1D13-0080.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.
    Jason Edward Hetz, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

To be timely, a notice of appeal must be filed with the appropriate court within 30 days of rendition of the order on appeal. Fla. R.App. P. 9.110(b). Merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient. Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Further, the filing of a notice of appeal is jurisdictional. Florida courts are required to dismiss an appeal if the notice is not filed within the applicable time limit. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003).

Here, the order was rendered on December 5, 2012. The thirtieth day following rendition was January 4, 2013. Although appellant represents that he mailed the notice within 30 days of rendition, appellant’s notice of appeal was not filed with the court until January 7, 2013. Therefore, the Court’s jurisdiction was not timely invoked and the appeal must be dismissed as untimely.

DISMISSED.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Curtis Bernard HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0492.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2013.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Curtis Bernard Hamilton, appeals his convictions and sentences for attempted second-degree murder, robbery, and burglary of a dwelling with battery. Appellant raises ten issues on appeal, only one of which merits discussion.

Appellant argues that he was improperly tried and convicted of burglary of a dwelling with battery when the State charged him with burglary of a structure with battery. Although, as the State concedes, the caption of the charging document alleged burglary of a dwelling with battery while the body of the document alleged burglary of a structure with battery, burglary, which is defined in part as “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein,” is a first-degree felony when an offender makes an assault or battery upon any person in the course of committing the burglary. See § 810.02(2)(a), Fla. Stat. (2010). The charging document cited to this statute as did Appellant’s judgment. Thus, regardless of whether the victim’s tent was alleged to have been a structure or a dwelling, Appellant was charged and convicted of the first-degree felony of burglary with a battery. As we have explained, a defect in an information is waived if no objection is timely made so long as the information does not wholly fail to state a crime. See State v. Burnette, 881 So.2d 693, 694 (Fla. 1st DCA 2004). Finding no fundamental deficiency in the charging document and no merit in Appellant’s other arguments, we AFFIRM.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


author: SHEPHERD, J.

text:
    Fernando SUBIRATS, et al., Appellants, v. FIDELITY NATIONAL PROPERTY, etc., Appellee.
    No. 3D12-68.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Joseph W. Ligman and Jeffrey A. De-thuin, for appellants.
    Cooney Trybus Kwavnick Peets, Warren B. Kwavnick, Bruce M. Trybus, and Meredith Chaiken-Weiss, Fort Lauderdale, for appellee.

      Before WELLS, C.J., and SHEPHERD and SALTER, JJ.
   SHEPHERD, J.

The decisive issue in this case is whether an insurer who fails to comply with an administrative rule requiring it to notify its insured within five days of receiving a claim that he or she has the right to participate in a state-sponsored mediation program waives the insurer’s right to enforce a policy appraisal provision. Based upon our study of the pertinent legislation, we conclude that in adopting the five-day rule, the Florida Department of Financial Services (“Department”) exceeded its rule-making authority. Accordingly, we affirm the decision of the trial court.

The Subiratses had a residential property insurance policy with Fidelity. On February 19, 2010, they presented a claim for water damage to their home due to a plumbing failure. On March 5, 2010, Fidelity notified the Subiratses in writing of their right to participate in mediation, pursuant to section 627.7015, Florida Statutes (2009). After completing their investigation, Fidelity tendered partial payment on the claim. Subsequently, the Subiratses’ public adjuster notified Fidelity the insureds were invoking appraisal and provided the name of their selected appraiser. The Subiratses’ appraiser and Fidelity’s appraiser met and agreed to an amount for the remainder of the claim. The Subirats-es’ appraiser, however, failed to sign the appraisal award. Fidelity wrote the Subi-ratses advising of their appraiser’s lack of cooperation, and informing them the claim would be considered abandoned if they did not respond. When neither their appraiser nor the Subiratses responded, Fidelity closed its claim file.

Thereafter, the Subiratses commenced the instant action for breach of contract, which the trial court stayed pending completion of appraisal. The Subiratses contend in granting the stay the trial court erred because Fidelity waived its right to appraisal by failing to notify them of the right to mediation within five days from the date the claim was filed, pursuant to Section 627.7015, Florida Statutes (2009), and Florida Administrative Code Rule 69J-166.031.

In 1993, the Florida Legislature added section 627.7015 to the Florida Insurance Code. This new section of the Code authorized “a non-adversarial alternative dispute resolution procedure for mediation of insurance claims” in advance of a purportedly “[more] adversarial appraisal process,” which increasingly had found its way into property insurance contracts. The law provided in pertinent part:

627.7015. Alternative procedure for resolution of disputed property insurance claims
(2) At the time a first-party claim within the scope of this section is filed, the insurer shall notify all first-party claimants of their right to participate in the mediation program under this section. ...
(4) The department shall adopt by rule a property insurance mediation program to be administered by the department or its designee. The department may also adopt special rules which are applicable in cases of an emergency within the state. The rules shall be modeled after practices and procedures set forth in mediation rules of procedure adopted by the Supreme Court. The rules shall provide for:
(a) Reasonable requirement for processing and scheduling of requests for mediation.
(b) Qualifications of mediators....
(c) Provisions governing who may attend mediation conferences.
(d) Selection of mediators.
(e) Criteria for the conduct of mediation conferences.
(f) Right to legal counsel.

§ 627.7015, Fla. Stat. (1998).

Failure to give notice excuses an insured from participating in any contractual loss appraisal process. § 627.7015(7), Fla. Stat. (2005). However, the case presented to us is not a case in which the insurer has failed to give notice. It merely is a case in which the insurer did not give notice before the deadline established by Department rule. That rule, adopted pursuant to section 627.7015(4), states: “Within five days of the insured filing a first-party claim which falls within the scope of this rule, the insurer shall notify the insured of their right to participate in this program.” Fla. Admin. R. 69J-166.031(4)(a)(l). It is there the Department exceeded its charge.

An administrative agency is empowered to adopt rules when a statute grants rule-making authority and when there is a specific law to be implemented. § 120.536(1), Fla. Stat. (2009) (“An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.”); see also § 120.52(8). Conversely, where a statute does not contain a specific grant of legislative authority for a certain rule, any such rule is an invalid exercise of delegated legislative authority. See Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 599-600 (Fla. 1st DCA 2000). Moreover, an administrative rule may not modify, enlarge or contravene a statute. See State Farm Fla. Ins. Co., v. Unlimited Restoration Specialists, Inc., 84 So.3d 390 (Fla. 5th DCA 2012).

The most casual perusal of section 627.7015(4) reveals the Department was not granted the authority to promulgate a deadline for notifying an insured of the right to mediation. In so doing, the Department impermissibly modified and enlarged the scope of the statute. The action of the Department also unlawfully contravened the clear statutory scheme established by the law. Section 627.7015(2) requires the insurer simply to “notify the policyholder of its right to participate in the mediation program ... [at] the time” of presentation of “a first-party claim within the scope of this section.” The delegation provision of the statute, section (4) of the law, does not authorize or delegate to the Department any authority to establish a deadline for the notification. It is a familiar interpretive principle that when a legislature uses particular language in one section of a statute and omits it from another section, courts must presume the omission was intentional. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005); see also Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996) (“Under the principle of statutory construction, expressio unius est exclusio al-teráis, the mention of one thing implies the exclusion of another.”). We presume the failure of the legislature to authorize the adoption of the rather draconian five-day deadline was intentional.

Not only is there no statutory authority for an administrative rule imposing a five-day deadline to notify insureds of their right to mediation, but also if, as the Subiratses argue, the failure to give notice within five days results in a waiver of the right to appraisal, the administrative rule also creates an invalid, additional instance in which an insurer waives the right to appraisal. Just recently, the Fifth District Court of Appeal invalidated an administrative rule promulgated under the same statute involved here, authorizing a waiver for a reason other than those specified in the statute. State Farm Fla., 84 So.3d at 395. The Court explained:

The rule modified and enlarged the statute when it allowed the insured the choice of how to proceed following an unsuccessful mediation that the insured, itself, requested. That option is simply not contained within the statute. The statute only contemplates a waiver of appraisal when the insurer fails to notify the insured of the right to mediation, or the insurer itself requests mediation and mediation is unsuccessful. Neither of those conditions occurred here.

Id. at 894; see also Sw. Fla. Water Mgmt. Dist., 773 So.2d at 594 (invalidating a rule that created an additional exemption not articulated in the enabling statute); Lamar Outdoor Advertising-Lakeland v. Fla. Dep’t of Transp., 17 So.3d 799 (Fla. 1st DCA 2009) (concluding a FDOT rule was invalid where the enabling statute conferred certain duties on the FDOT but did not specifically authorize the rule in question).

The cases cited by Appellants are inap-posite. In those cases, the insurer never notified the insured of the right to mediation on the claim at issue, which is a violation of the statute that gives rise to a waiver of appraisal. In the case primarily relied upon by Appellants, Universal Property & Casualty Insurance Co. v. Colosimo, 61 So.3d 1241 (Fla. 3d DCA 2011), the insurer never sent notice to the insured in connection with the claim that was at issue. Our glancing reference to Rule 69J-166.031 in a footnote in the opinion was clearly dicta. Id. at 1243 n. 1. The Appellants cite no case holding that violation of Rule 69J-166.031(4)(a)(l) results in a waiver of an insurer’s right to invoke the appraisal provision. To the contrary, the penalty specified in the rule for an insurer’s failure to give the required notice is referral to the Office of Insurance Regulation for administrative action, pursuant to section 624.15, Florida Statutes. See Rule 69J-166.031(4)(a)(4).

It bears mentioning that the purpose of the notice provision in section 627.7015 was not thwarted. That purpose is to prevent an insurer from withholding notification and thereby trapping “an uninformed insured into the very same potentially lengthy and costly appraisal process the statute was meant to guard against.” Colosimo, 61 So.3d at 1245. Fidelity did not withhold notification or “trap” the Subiratses into a lengthy and costly appraisal process. To the contrary, the insurer in this case did notify the Subiratses of their right to avail themselves of the statutory mediation program. The Subiratses elected to proceed directly to appraisal. In accordance with the Subi-ratses’ election, Fidelity’s appraiser promptly met with the insureds’ appraiser and the two actually agreed to the amount of the loss. All that remained was to formally complete the appraisal process. We affirm the trial court’s order staying litigation of the breach of contract claim until the parties complete the appraisal process.

Affirmed.


author: SUAREZ, J. SHEPHERD, J.,

text:
    J.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2447.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Carlos J. Martinez, Public Defender, and Kathryn Strobaeh, Assistant Public Defender, for appellant.
    Pamelo Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   SUAREZ, J.

J.H. appeals from a withheld adjudication of delinquency for carrying a concealed weapon and possession of a firearm by a minor. We reverse and remand solely as to the counts of concealed weapon and possession of firearm.

J.H. was charged with carrying a concealed firearm (Count 1), possession of a firearm by a minor (Count 2), battery on a police officer (Count 3), and resisting an officer with violence (Count 4). J.H. filed a motion to suppress the firearm on grounds that it was obtained as the result of an unlawful search and seizure. The trial court denied the motion. The court withheld adjudication of delinquency and placed J.H. on probation for one year.

The record shows that the arresting police officer received a dispatch to an address based on an anonymous tip that there was a fight between several males, one of whom was wearing black clothing and carrying a taser. When the Officer arrived at the location, there were about thirty people milling around. She did not observe a fight. She did not see anyone except J.H. wearing black clothing. The Officer testified at the suppression hearing that J.H. was “sweating and attempting to catch his breath” and appeared “nervous.” Because J.H. was wearing clothing that matched the anonymous tip description and appeared to be anxious, she ordered him to come towards her and to place his hands on a car, where she proceeded to pat him down. The Officer testified that she conducted the pat down for safety reasons because the dispatch indicated the male had a taser. The officer did not, however, see any suspicious bulge on J.H. that might indicate a weapon. As the Officer patted J.H. down, she felt a cylindrical object in his pocket. Believing it to be a revolver, she stuck her hand in J.H.’s pocket to retrieve the object, then J.H. grabbed her arm, pushed her, and ran. Another officer ultimately stopped and arrested J.H.

The issue on appeal is whether the Officer had the required reasonable suspicion to conduct the stop of J.H. Based on the facts of this case, we conclude the Officer did not have reasonable suspicion to conduct the stop. It is important to note that the tip which led the officer to the location was anonymous. Anonymous tips justify a Terry stop only when “sufficiently corroborated by independent police investigation that confirms some details of the tip.” Alabama v. White, 496 U.S. 325, 881-32, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The courts have attempted to clarify reasonable suspicion in fact situations such as this:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Florida v. J.L., 529 U.S. 266, 269-70, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (citations omitted). In J.L., the officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Id. The tip in that case lacked the moderate indicia of reliability present in White , and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. All the police had to go on was the “bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” Just because the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: the reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. Id.

This is precisely the case at bar. The arresting officer did not observe any criminal or suspicious activity prior to stopping and frisking J.H. We cannot find a single case that supports sweating or appearing out of breath as an evasive or suspicious activity. The dispatch also lacked any predictive information and thus, the Officer could not test the informant’s knowledge or credibility. Moreover, the Florida Supreme Court further clarified reasonable suspicion in accordance with J.L. in Baptiste v. State, 995 So.2d 285, 298 (Fla.2008):

Here, the record does not reflect any additional circumstances or facts which might have established a reasonable suspicion. At best, when the officer first observed Baptiste, he was merely walking down the street — not running away from the grocery store or engaged in any suspicious conduct. Additionally, when the officers viewed Baptiste, he was not engaged in any illegal, suspicious, or furtive behavior, and the officers did not see a firearm or any bulges in his clothing indicative of a gun.... Thus, the sole basis for seizing Baptiste at gunpoint was the purely anonymous tip which, according to the specific requirements of our United States Supreme Court, failed to provide reasonable suspicion for Officer Williams to believe that Baptiste had or was engaged in illegal or dangerous conduct.

Here, the arresting officer only saw J.H. walking away from a gathering of people. She merely observed him sweating and catching his breath. She did not see any bulge in his clothing indicative of a weapon, or observe any illegal, suspicious or furtive behavior. The sole basis for the Officer’s search and seizure of J.H. was the anonymous tip, which the Officer failed to corroborate. This is insufficient to generate reasonable suspicion to believe J.H. was armed and dangerous. We reverse the trial court’s denial of the motion to suppress the gun and remand for the trial court to reverse the withheld adjudication of delinquency as to the counts of carrying a concealed weapon and possession of a firearm by a minor and discharge J.H. as to those counts.

Reversed and remanded as to Counts 1 and 2 only.

SALTER, J., concurs.

SHEPHERD, J.,

concurring in part; dissenting in part.

I concur with the majority in affirming the withhold of adjudication of delinquency with regard to counts 3 and 4, but respectfully dissent with the reversal of counts 1 and 2. I also would affirm the charges of carrying a concealed firearm and possession of a firearm by a minor because in this case, in my opinion, based on the totality of the circumstances, the police officer had sufficient reasonable suspicion to stop and frisk J.H.

As the majority acknowledges, an anonymous tip can provide the basis for an investigatory stop when criminal aspects of the tip are corroborated by independent police investigation. J.L. v. State, 727 So.2d 204 (Fla.1998). Here, the officer received information of a fight taking place at a specific location, involving a male dressed all in black and in possession of a taser. Upon arriving at the specified location, the officer observed a large group of people, but only J.H. was dressed all in black. The officer further noticed J.H. was sweating, attempting to catch his breath, and appeared nervous, all signs giving rise to a reasonable suspicion J.H. had been fighting and was interrupted by the police arrival. These additional onsite observations corroborated the anonymous tip and distinguish this case from those cited by the majority where the tip alone provided the basis for the stop.

Having established reasonable suspicion to detain J.H., the officer prudently proceeded to pat him down to determine whether J.H. was armed as indicated by the tipster. For his or her own protection or the safety of others, a police officer may conduct a pat-down search for weapons when he or she reasonably believes the detainee may be in possession of a weapon. § 901.151(5), Fla. Stat. (2010); see also United States v. Robinson, 2010 WL 4181736 (E.D.Pa.2010); Enich v. State, 838 So.2d 1216 (Fla. 3d DCA 2003).

For these reasons, I would affirm the trial court’s findings as to Counts 1 and 2 of the petition for adjudication of delinquency.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . White held that an anonymous telephone tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make investigatory stop of defendant’s vehicle.

      . Counts 3 and 4, battery on a police officer and resisting arrest with violence, respectively, remain.


text:
    The STATE of Florida, Appellant, v. Severino MARRON, Appellee.
    Nos. 3D11-1900, 3D11-1781.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.
    Ana M. Davide and Andrew McCut-cheon, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The appellee was convicted, after trial, of possession of cannabis in excess of twenty grams and possession of a place for purpose of trafficking. Although his sentencing score merited a prison term of twenty-one months to twenty years, the trial court, over the State’s objection, sentenced the appellee to three-hundred sixty-six days in prison followed by community control and reporting probation. The State appeals the downward departure. Because we find that the trial court departed from its statutory obligations, we reverse and remand.

I.

It is axiomatic that a trial court choosing to depart from the sentencing guidelines must provide valid written reasons for doing so. State v. McCray, 31 So.3d 871 (Fla. 3d DCA 2010). The legislature has provided numerous avenues for complying with this requirement. The court may either annotate the scoresheet, Fla. R.Crim. P. 3.704(d)(27)(A), file written reasons within seven days after sentencing, id.; § 921.00265(2), Fla. Stat. (1998), or, if it orally pronounces its reasoning at the sentencing hearing, provide a written transcription of that pronouncement, id. Despite the State’s repeated objections to the downward departure, the lower court failed to file any written reasons for its decision until twenty-seven days after the date the written judgment and sentence was filed and forty days after the oral pronouncement of the departure sentence. We reject the appellee’s claim that, in any appropriate sense, the court’s reasons were ever “orally announced.” The claim is based upon the fact that during the sentencing colloquy, the trial judge asked questions such as, “[H]e was cooperative with police. Right?” and, “What about the fact [sic] going back to work and being a productive member in society?” Questions like this during an oral colloquy, either in the trial or the appellate court, surely cannot serve as a cognizable statement of a judge’s actual ruling. We are thus obligated to vacate the sentence and remand for the imposition of a new sentence that accords with the statutory requirements.

II.

We also find that the grounds for departure cited in the court’s ad hoc justification are invalid. Its finding that the appellee cooperated with the State’s investigation is unsupported in the record. His admission that two houses, which he owned, contained marijuana grow operations, upon being discovered by police unloading barrels of soil onto one of the properties, does not constitute the type of cooperation contemplated by the statute. See, e.g., State v. Ertel, 886 So.2d 423, 425 (Fla. 2d DCA 2004). His alleged cooperation did not lead to the solving of any crimes or the arrest of any persons. See State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005). The finding that the appellee was a mere accomplice or minor participant is also unfounded. The appellee’s assertion, cited in the trial court’s order, that he was merely an unknowing landlord is not supported by competent, substantial evidence. See State v. Massingill, 77 So.3d 677, 679 (Fla. 3d DCA 2011). See also U.S. v. Rodriguez De Varon, 175 F.3d 930, 944 (11th Cir.1999) (“The fact that a defendant’s role may be less than that of other participants engaged in the relevant conduct may not be dispositive of role in the offense, since it is possible that none are minor or minimal participants.”).

III.

We therefore vacate the sentence, and reverse and remand for a new sentencing hearing. See Jackson v. State, 64 So.3d 90 (Fla.2011). This ruling does not preclude the trial court from imposing a downward departure sentence, supported by valid grounds and procedurally compliant, on remand.

Reversed and remanded.

      . This is refuted most clearly by the fact that the jury convicted the appellee of (and the appellee was being sentenced for) possession of a place or structure for trafficking, which required the State to prove that the appellee was "knowingly ... in actual or constructive possession of [a] place [or] structure ... with the knowledge that the place [or] structure ... will be used for the purpose of trafficking in a controlled substance....” § 893.1351(2), Fla. Stat. (2008). The appellee’s claim at sentencing that he was merely an "unknowing landlord” cannot be reconciled with the jury’s finding of guilt on this charge.


author: SUAREZ, J.

text:
    NEWPORT OPERATING CORP., a Florida Corporation, Appellant, v. WESTGATE MIAMI BEACH, LTD., a Florida Limited Partnership, Appellee.
    No. 3D12-1180.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Arnstein & Lehr and Franklin L. Zemel and John M. Cooney and Jorge R. Delgado, Fort Lauderdale, for appellant.
    Robert P. Frankel, Miami, for appellee.
    Before SHEPHERD, SUAREZ and LOGUE, JJ.
   SUAREZ, J.

Newport Operating Corporation (“Newport”) appeals from the denial of a Florida Rule of Civil Procedure 1.540 motion seeking relief from an order granting prejudgment interest. We affirm.

The case between Westgate Miami Beach, Ltd. (“Westgate”), and Newport arises out of a series of commercial disputes involving timeshare agreements at the Newport Beachside Hotel in Sunny Isles. Westgate prevailed at trial and was awarded prejudgment interest. The Third District affirmed on appeal. Newport Operating Corp. v. Westgate Miami Beach, Ltd. (“Westgate /”), 982 So.2d 698 (Fla. 3d DCA 2008). On certification of the question of whether the Court should recede from its precedent in order to avoid inadvertent waiver of prejudgment interest, the Florida Supreme Court quashed the Third District’s affirmance and remanded “with directions to remand to trial court for a calculation and award of prejudgment interest in this case.” Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567, 577 (Fla.2010) (‘West-gate II ”) (receding from McGurn v. Scott, 596 So.2d 1042 (Fla.1992), and holding that an appeal from a final judgment reserving jurisdiction to award prejudgment interest will not divest the trial court of jurisdiction to award prejudgment interest).

Weeks earlier, in a separate, unrelated federal ADA case, Westgate and Newport executed settlement documents and agreed to a broad general Release (the “Burke Release”). The Burke Release supposedly releases Newport of any and all causes of action without limitation. The question then became whether that release had any applicability to Westgate’s entitlement to prejudgment interest in the case now before us. In its opinion remanding the prejudgment interest issue, the Florida Supreme Court denied Newport’s suggestion of mootness and declined to address the Burke Release issue because “it was not presented to the trial court or the Third District.” Westgate II, 55 So.3d at 577, n. 11.

On remand from Westgate II, the trial court continued to state on the record that it did not rule on entitlement, but merely set the amount of the prejudgment interest award. Newport filed a Rule 1.540(a) and (b) motion asking the trial court to clarify its order setting prejudgment interest. Fla. R. Civ. P. 1.540(a), (b). Because the issue of the applicability of the Burke Release to any other extant case between the parties had never been addressed or determined in a court below, the trial court declined to modify its order to indicate any such determination.

Newport here appeals from the trial court’s denial of its Rule 1.540 motion. We review the order below for abuse of discretion. Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d DCA 2011) (holding that a trial court’s denial of a Rule 1.540 motion for relief from judgment is reviewed for abuse of discretion); Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3d DCA 1978) (“The discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”). The applicability and scope of the Burke Release is not at issue in this case because it has, apparently, never been raised in any trial court. The trial court was directed on remand to set the amount of the prejudgment interest award and it has done so without determining Westgate’s entitlement to prejudgment interest. The record is replete with the trial judge’s explicit statements that he was not determining Westgate’s entitlement to prejudgment interest, but was merely carrying out his ministerial duty per Court order to set the amount of interest only. We therefore affirm the trial court’s denial of Rule 1.540 relief where no abuse of discretion is apparent in this record.

Affirmed.

      . Lower Case No. 03-12769.

      . We follow the Florida Supreme Court's lead in refusing to consider the Burke Release because no lower court has yet addressed the Burke Release and its effect, if any, on West-gate's entitlement to prejudgment interest in this case.


text:
    Charles SCRIVEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2774.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    SOUTHEAST FISH AND SEAFOOD CO., etc., Appellant, v. Edsel CADENA, Appellee.
    No. 3D12-1246.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Roniel Rodriguez, IV, Aventura, for appellant.
    Ritter Chusid Bivona & Cohen, LLP, and Shawn R. Horwick, Boca Raton, and Gregory Ritter, Coral Springs, for appel-lee.
    Before SUAREZ, CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See, e.g., Pariz v. Colon, 77 So.3d 721, 722 (Fla. 3d DCA 2011) (holding that a trial court had in rem jurisdiction over property situated within the county); Griveas v. Amoco Oil Co., 854 So.2d 841, 843 (Fla. 4th DCA 2003) (“Only the circuit court in the county where the real property is located has in rem jurisdiction.”).


text:
    Rudolph MANUEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-987.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. Colitto, 929 So.2d 654 (Fla. 4th DCA 2006).