text:
    Yolanda EMMANUEL, Appellant, v. LPP MORTGAGE LTD, et al., Appellee.
    No. 5D13-2915.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2014.
    Rehearing Denied March 20, 2014.
    Yolanda Emmanuel, Orlando, pro se.
    Kimberly N. Hopkins, of Shapiro, Fish-man & Gaché, LLP, Tampa; Trida J. Duthiers and Dora F. Kaufman, of Liebler, Gonzalez & Portuondo, P.A., Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

TORPY, C.J., GRIFFIN and BERGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mathew C. ZUMMO and Mathew L. Zummo, Appellants, v. FLORIDA OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 4D13-1366.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2014.
    Mathew C. Zummo and Mathew L. Zummo, Delray Beach, pro se.
    Douglas M. Holcomb, Orlando, for ap-pellee.
   PER CURIAM.

Appellants Mathew C. Zummo and Mathew L. Zummo challenge a final order issued by Florida’s Office of Financial Regulation (“OFR”), imposing a $48,000 fine for violations of chapter 517, Florida Statutes. The final order was issued in the absence of a chapter 120 administrative hearing as OFR found the request for hearing was not filed until March 15, 2013 — the day after expiration of the governing twenty-one day period. See Fla. Admin. Code R. 28-106.111(4). Appellants invite this court to apply the doctrine of equitable tolling, asserting their request for hearing was mailed on March 5th and in OFR’s post office box on March 14th the day it was due. See Brown v. State, Dep’t of Fin. Servs., 899 So.2d 1246, 1247 (Fla. 4th DCA 2005) (recognizing failure to request hearing within twenty-one days is not a jurisdictional defect). As OFR has not yet had the opportunity to address these allegations, we reverse the final order and remand for a ruling on the limited issue of whether equitable tolling applies so as to entitle appellants to a hearing. We make no determination as to the merits of appellants’ equitable tolling claim, leaving that initial determination and any factual findings in that regard to OFR. If OFR determines that it is necessary to resolve disputed facts to decide appellants’ equitable tolling claim, OFR may hold a limited evidentiary hearing. Cf. Hurley v. Dep’t of Bus. & Prof'l Regulation, 965 So.2d 359 (Fla. 4th DCA 2007).

Reversed and Remanded.

STEVENSON, CIKLIN and LEVINE, JJ., concur.


author: ROTHENBERG, J.

text:
    Mona Kamal ABOUELSEOUD, Appellant, v. Hesham Roshdy ELBADRAWI, Appellee.
    No. 3D12-2329.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 2014.
    Mona Kamal AbouElSeoud, in proper person.
    Hesham Roshdy ElBadrawi, in proper person.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

Mona Kamal AbouElSeoud (“Mother”) appeals the trial court’s Interim Order Granting Former Husband’s Supplemental Petition to Establish Parental Responsibility, Visitation, and Parenting Plan/Time Sharing Schedule, etc. (“Interim Order”), which gave Hesham Roshdy ElBadrawi (“Father”) visitation rights to see the parties’ minor child. Because this order grants the Father visitation rights, we have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(c)(iii) (granting appellate jurisdiction over non-final orders that determine “the right to immediate monetary relief or child custody in family law matters”); § 61.503(4), Fla. Stat. (2012) (defining a “child custody determination” as any order “providing for the legal custody, physical custody, residential care, or visitation with respect to a child”) (emphasis added); Hickey v. Burlinson, 33 So.3d 827, 829 (Fla. 5th DCA 2010).

The Mother raises several arguments in her brief, the majority of which relate to the trial court’s jurisdiction over the Mother, and all of which have no merit. The record reflects that the Mother appeared many times before the trial court, both in person and through counsel, and a return of service stating that the mother had been served in this action was filed with the trial court on September 8, 2009. Therefore, the trial court clearly had jurisdiction over the Mother at all times in the lower court proceedings. See Emmer v. Brucato, 813 So.2d 264, 266 (Fla. 5th DCA 2002) (holding that “a return of service, which is regular on its face, is presumed valid unless clear and convincing evidence is presented to the contrary”).

The Mother’s remaining arguments regarding the trial court’s rulings likewise are without merit. The record reflects that the Mother failed to appear at the hearing on the Father’s Supplemental Petition despite clear notice to the Mother that the hearing would resolve the Father’s Supplemental Petition, including child custody and visitation, as well as all pending motions. When the Mother failed to file a responsive pleading or to attend the scheduled hearing or to otherwise contest the Supplemental Petition, she waived her objections to the relief requested and failed to preserve any objections she may have had.

Affirmed.


text:
    Johnnie JOHNSON, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D12-3903.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2014.
    Rehearing Denied March 17, 2014.
    Johnnie Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Marcus 0. Graper, Assistant Attorney General, and Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Head v. McNeil, 975 So.2d 583, 585 (Fla. 1st DCA 2008); Canete v. Fla. Dep’t of Corr., 967 So.2d 412, 415 (Fla. 1st DCA 2007).

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


author: SALTER, J.

text:
    D.C., the Mother, Petitioner, v. J.M. and R.M., etc., et al., Respondents.
    No. 3D13-3158.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.

      Christine B. Bollong, Key West, for petitioner.
    Karla Perkins, Miami, for appellees, Department of Children and Families; Hillary S. Kambour, for respondent, Guardian ad Litem Program; Thomas Butler, Miami Beach, for respondents J.M. and R.M.; Joseph Alsbury, for respondent J.R.; Angela Vigil, Attorney Ad Litem for respondent G.R.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

D.C., the mother of five minor children, seeks a writ of certiorari quashing a “Partial Order on Foster Parents’ Motion to Intervene” entered by the circuit court. The foster parents’ motion alleged that they had “direct and immediate interests” in the dependency cases relating to J.K. and D.D., and that they had a right to intervene and become parties rather than remain mere “participants” as defined by section 39.01(50), Florida Statutes (2013).

The trial court granted the foster parents’ motion in part, ordering that the foster parents be provided the “unfettered right to view, copy or otherwise access all Court files in this matter,” and extending that right to the foster parents’ attorneys as well. The mother, joined by the Guardian Ad Litem Program (as to all five minor children) and by an attorney ad litem for one of the half-siblings (G.R.), alleges that the order violates the privacy rights of the petitioning mother, the father, and three half-siblings, thus departing from the essential requirements of law, causing irreparable injury, and leaving no adequate remedy on appeal. We agree.

Analysis

Section 39.01(50) expressly includes foster parents as “participants” in a dependency proceeding such as this, affording them rights to receive notice of hearings involving children in their care and allowing the court to permit them “to be heard without the necessity of filing a motion to intervene.” Chapter 39 does not, however, authorize the foster parents to receive every record in a confidential, pending dependency case court file that may relate, for example, to the natural parents, or to siblings that are in other placements and are not in the care of the foster parents. The order in this case did not exclude any such records, thus jeopardizing the constitutional (Art. I, § 23, Fla. Const.) and statutory (§ 39.0132(3), Fla. Stat. (2013)) rights of the natural parents and siblings to privacy and confidentiality.

The foster parents rely on an alleged right to intervene in the circuit court dependency case based on I.B. v. Department of Children & Families, 876 So.2d 581 (Fla. 5th DCA 2004). But in that case, foster parents sought intervention relating to the adoption of the child in their care (for the past sixteen months); the rights of the natural parents had been terminated in a prior and separate proceeding, and no siblings were involved. The trial court denied intervention, and the district court reversed, remanding the case to the trial court to conduct a hearing to determine whether the change in placement (from the foster parents while the petition for adoption was pending) was in the child’s best interests.

I.B. is readily distinguishable from the case at hand. In the present case, the parental rights of the natural mother have not been terminated. The foster parents have access to the foster children’s case records as maintained by the case management agency that has contracted with the foster parents, but such rights do not extend to the entire family’s dependency court records.

We thus conclude that the challenged order departs from essential constitutional and statutory requirements of law; that the petitioning mother, the father, and the siblings of J.K. and D.D. will be irreparably injured if the order stands; and that they have no adequate remedy at law. Accordingly, we grant the writ and quash the “Partial Order on Foster Parents’ Motion to Intervene” entered by the circuit court on November 13, 2013.

Petition granted.

      . The five children are J.K. and D.D. (the minors in the two dependency cases involved here, and as to whom the petitioners have served as foster parents for several years), and their siblings (though by another father) also involved in dependency cases, G.R., J.D., and J.R.

      . The Department of Children and Families has represented that it has no position supporting or opposing the mother’s petition and challenged order. The Department took the same non-position in the trial court.

      . See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987).

      . § 39.00145(2)(d), Fla. Stat. (2013).

      . The Court acknowledges the pro bono legal assistance provided by the attorney ad litem for one of the siblings (respondent G.R.), Angela C. Vigil, and her law firm, Baker & McKenzie LLP.


author: CIKLIN, J.

text:
    Diana L. BYRNE, Appellant, v. Jeremiah P. BYRNE, Appellee.
    No. 4D13-1150.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2014.
    Rehearing Denied March 26, 2014.

      Amy L. Fischer and F. Malcolm Cunningham, Jr. of The Cunningham Law Firm, P.A., West Palm Beach, for appellant.
    Matthew S. Nugent, Christopher R. Bruce and Adam M. Zborowski of Nugent Zborowski & Bruce, North Palm Beach, for appellee.
   CIKLIN, J.

The former wife appeals an order holding her in contempt for failing to pay mortgages on the former marital home, and appointing a receiver to collect rental income from the former marital home in order to pay the mortgages. She argues, among other things, that contempt cannot be used to enforce equitable distribution, and that the former husband lacked standing to seek appointment of a receiver. We agree on these points and find no need to address the former wife’s remaining arguments which are either moot or lack merit.

The parties divorced in 2010. Under the final judgment of dissolution of marriage, the marital home was equitably distributed to the former wife. The associated mortgages that secured promissory notes were made a financial responsibility of the former wife although the former husband was the only party actually named as a payor on the notes. Shortly after the final judgment was entered, the former husband moved for contempt and enforcement, alleging that the former wife failed to notify the bank that she was responsible for the mortgage payments.

The trial court entered an order correctly finding that it could not hold the former wife in contempt of court for failure to pay the mortgages because those “debts to third parties ... are not ‘support’ related.” But the trial court did hold that it was “appropriate to enter an order directing the Former Wife to utilize the rental income [received by leasing the former marital home] to pay the mortgages” because the former wife had the ability to do so. The order required the former wife to “immediately bring both mortgages current .

The former wife failed to comply and the bank instituted foreclosure proceedings. This led the former husband to file a second motion for contempt and to request the appointment of a receiver to collect the rental income.

After a hearing, the trial court entered an order finding the former wife in civil contempt. The court found that the former wife failed to comply with the trial court’s previous order requiring that she use the rental income associated with the former marital home to “bring both mortgages current.” The court imposed a purge amount of $15,000 to be paid by a specified date to avoid incarceration. The court also appointed a receiver to collect the rental income.

On appeal, the former wife argues that contempt cannot be used to enforce her obligation to pay the mortgages. We agree. The law is well-settled that contempt does not lie to enforce a property settlement arising out of a dissolution of marriage. See Simpson v. Simpson, 68 So.3d 958, 961 (Fla. 4th DCA 2011); Randall v. Randall, 948 So.2d 71, 74 (Fla. 3d DCA 2007); Filan v. Filan, 549 So.2d 1105, 1106 (Fla. 4th DCA 1989); Hobbs v. Hobbs, 518 So.2d 439, 441 (Fla. 1st DCA 1988). Contrary to the former husband’s contention, this is not a case where the trial court used its contempt powers to compel performance of an act. See Riley v. Riley, 509 So.2d 1366, 1369 (Fla. 5th DCA 1987) (affirming contempt order which was based on former husband’s failure to designate former wife the primary beneficiary of a life insurance policy, as required by the property settlement agreement); Burke v. Burke, 336 So.2d 1237, 1238 (Fla. 4th DCA 1976) (affirming portion of order which found former husband in contempt for failing to execute documents as provided for in a property settlement agreement).

We also agree with the former wife that the former husband lacked standing to request and receive appointment of a receiver to collect the rental payments made by tenants living in the former marital home. This court has held that a receiver may not be appointed unless the person seeking appointment has standing “by virtue of a legal or equitable claim, such as a claim of ownership of the property in controversy, or a lien or property right therein .... ” Warrington v. First Valley Bank, 531 So.2d 986, 987 (Fla. 4th DCA 1988) (citation omitted). Pursuant to the final judgment of dissolution, the former husband was left with no legal interest in the former marital home. Further, nothing in the record established that at the time of the hearing, the former husband had an equitable interest in the former marital property, such as a lien or other property right. Based on the foregoing, we reverse the contempt order in its entirety.

Reversed.

STEVENSON and LEVINE, JJ., concur.

      . On the former husband's motion, the court also entered an order requiring the former wife to show cause why she should not be held in indirect criminal contempt. However, the court did not ultimately find the former wife in indirect criminal contempt.


author: SUAREZ, J.

text:
    Jonathan L. SAWYER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-2319.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Jonathan L. Sawyer, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   SUAREZ, J.

We treat this motion as a petition for a Writ of Habeas Corpus and deny. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012), rehearing denied, 115 So.3d 385 (Fla. 3d DCA 2013).


author: PER CURIAM. EMAS, J.,

text:
    Ronald JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3064.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Ronald Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Geter v. State, 115 So.3d 375 (Fla.2012).

ROTHENBERG and LOGUE, JJ., concur.

EMAS, J.,

dissenting.

For the reasons expressed in my dissent to the denial of motion for rehearing en banc in Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013), I respectfully dissent from the majority’s affirmance of the instant case to the extent it holds that the rule announced in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively to cases already final on direct appeal. See also Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013), review granted, No. SC13-865 (Fla.2013).


text:
    Edward Elwood MASTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2377.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Rehearing Denied March 24, 2014.

      Nancy A. Daniels, Public Defender; and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant; Michael Bossen, Jacksonville, Court-Appointed Counsel for Supplemental Briefing.
    Pamela Jo Bondi, Attorney General; and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

In this Anders appeal, Appellant challenges his conviction and sentence on several grounds; the only one that merits discussion is his claim that he was convicted of an uncharged “aggravated” offense. Based on our independent review of the record and the supplemental briefs of counsel filed pursuant to this Court’s Causey order, we find no reversible error but remand for correction of a technical error in the judgment.

The State’s information charged Appellant with a violation of section 316.1935(3)(a), Florida Statutes (2010), relating to fleeing or attempting to elude a law enforcement officer, and the factual allegations in the information track the language of this statutory provision. However, the information lists the title of the offense as “aggravated” fleeing or attempting to elude a law enforcement officer. This incorrect title was repeated by the attorneys and the court throughout the proceedings below, but the evidence presented at trial, the instructions to the jury, and the verdict form all corresponded to the elements of the non-aggravated offense. The written judgment cites the correct statutory provision and degree of crime for the non-aggravated offense, but again, incorrectly uses the term “aggravated” in the title of the crime.

Because it is clear that Appellant was charged with, and found guilty of, the non-aggravated offense proscribed by section 316.1935(3)(a), we affirm his conviction and sentence but remand for the trial court to correct the written judgment to reflect the title of the offense as “fleeing or attempting to elude a law enforcement officer.” See Jones v. State, 620 So.2d 236 (Fla. 1st DCA 1993); Palmer v. State, 935 So.2d 630 (Fla. 1st DCA 2006). Appellant need not be present for this purely ministerial correction. Jones v. State, 969 So.2d 1126 (Fla. 1st DCA 2007).

AFFIRMED and REMANDED with instructions.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . State v. Causey, 503 So.2d 321 (Fla.1987).


author: SALTER, J. SHEPHERD, C.J.,

text:
    Irina CHEVALDINA, Appellant, v. R.K./FL MANAGEMENT, INC., et al., Appellees.
    No. 3D12-3189.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2014.

      Marc J. Randazza, Altamonte Springs; Coffey Burlington and Jeffrey B. Crockett, Miami, for appellant.
    Paul Morris, Miami; Kluger Kaplan Sil-verman Katzen & Levine, and Alan J. Kluger and Todd A. Levine, Miami, for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   SALTER, J.

Irina Chevaldina appeals an order granting a preliminary injunction to “enjoin tortious interference, stalking, trespass and defamatory blogs” entered in favor of Raanan Katz and the other named appellees, plaintiffs in the circuit court. We vacate the order and injunction.

Background

Raanan Katz and RK Associates own and manage commercial properties in South Florida. Ms. Chevaldina and her husband Dmitri Chevaldine are former tenants of the RK Associates retail centers. More precisely, the Chevaldines are very unhappy former tenants of RK Associates. This appeal is one of eight South Florida legal proceedings between the Chevaldines and Raanan Katz/RK Associates.

In 2009, the Chevaldines sued Raanan Katz, Daniel Katz, and two of Raanan Katz’s companies in Miami-Dade circuit court for breach of lease and defamation. Both cases were dismissed with prejudice in 2010. In May 2011, the appellees became aware of an anonymous blog about RK Associates and Mr. Katz. Some illustrative blog posts were: “Bottom line, when you sign a lease with RK Associates, Raanan Katz goes after YOUR money no matter what”; “If you do not want to lose your business, your investment, your ideas, think twice, talk to their tenants, and do your research to learn what can happen to you after signing the lease with the landlord like RK Associates”; and “Raanan Katz and Daniel Katz are the most immoral human-being[s] in the world. They are dare enough to take bread from little Jewish special needs child to support their luxury lifestyle [sic].”

The appellees filed a complaint in the circuit court alleging defamation per se and libel as against the anonymous blogger. After obtaining discovery from an internet service provider identifying Irina Chevaldina as the previously-anonymous blogger, the appellees filed a second amended complaint adding counts for tor-tious interference with contractual relationships, tortious interference with advantageous business relationships, invasion of privacy, trespass, civil conspiracy, injunction to stop tortious interference, injunction to prevent trespass, and injunction to prevent stalking.

In 2012, Raanan Katz also filed a civil lawsuit in the United States District Court for the Southern District of Florida against Ms. Chevaldina alleging copyright infringement. Mr. Katz alleged that he owned (by assignment) all rights to a photo of himself published in Israel the preceding year. The photo is somewhat unflattering — in it, Mr. Katz has part of his tongue sticking out of the far left side of his mouth. Mr. Katz alleged that Ms. Chevaldina placed the image on her blogs without his authorization, and that she had “realized and continues to realize profits or other benefits rightly belonging to Katz” by doing so. The photo appears in several of the blog entries alleged to be defamatory in the circuit court action as well.

In this appeal, we review a temporary injunction in the circuit court action which determined that “the Defendants have blogged extensively about the Plaintiff and many of these blogs are arguably defamatory. Although ultimately a defamation trial will be held, this Court ORDERS the Defendants not to enter defamatory blogs in the future.” The court determined that:

Plaintiffs have a substantial likelihood of ultimately prevailing on the merits of their claims, and there is a substantial threat of irreparable injury to the Plaintiffs if injunctive relief is not granted, that the threatened injury to Plaintiffs outweighs whatever damage the injunction would cause the Defendants, and that the injunction would not be adverse to the public interest.

The order enjoined Ms. Chevaldina from “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual and business relationships,” ordered Ms. Chevaldina to remain at least 200 yards away from the appellees and their immediate families, and enjoined Ms. Chevaldina from trespassing upon the appellees’ properties. Ms. Chevaldina appealed the entry of the injunction under Florida Rule of Appellate Procedure 9.130(a)(3)(B).

Analysis

A temporary injunction “should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to relief.” Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996). In order to establish the right to a temporary injunction the moving party must show: the likelihood of irreparable harm; the unavailability of an adequate remedy at law; the substantial likelihood of success on the merits; the threatened injury to the petitioner outweighs the possible harm to the respondent; and the granting of the temporary injunction will not disserve the public interest. E.g., City of Miami Beach v. Kuoni Destination Mgmt., Inc., 81 So.3d 530, 532 (Fla. 3d DCA 2012).

We review the temporary injunction for an abuse of the trial court’s discretion. Angelino v. Santa Barbara Enters., 2 So.3d 1100, 1103 (Fla. 3d DCA 2009).

A. Injunction Against Tortious Interference and Defamatory Blogs

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So.3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id. There is, however, a limited exception to the general rule where the defamatory words are made in the furtherance of the commission of another intentional tort. E.g., Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA 2010); Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987).

Both Zimmerman and Murtagh involved statements made as part of alleged tortious interference with advantageous business relationships. In Zimmerman, the court applied the exception because the party demonstrated a special harm of irreparable injury, i.e., that the damages were “incalculable.” Similarly, in Murtagh, the court held that injunctive relief was an available remedy because it was alleged that the defamatory statements caused current medical patients to terminate their relationships with Dr. Murtagh. Murtagh, 40 So.3d at 66-67. However, the court found that Dr. Murtagh had not established entitlement to an injunction because he failed to “present any evidence that demonstrated or would allow an inference that [the defendant’s] conduct ‘had a deleterious effect on’ Dr. Murtagh’s business.” Id. at 67.

Here, the appellees alleged defamation and intentional interference with advantageous business relationships. As recognized in Murtagh, if the appellees presented “proof to a reasonable certainty of the cause of action stated in the complaint,” then they would have established a right to injunctive relief under Zimmerman. Id. However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tor-tious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees. See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla.1995) (holding that the tort of interference is not met by communications to the public at large).

At the hearing on the motion for an injunction, a real estate broker testified (over a hearsay objection) about a call he received from the director of real estate from a fast food chain, Subway, expressing concern about some of Ms. Chelvadina’s blog posts. The witness admitted, however, that Subway had not withdrawn from any leases in the RK Associates properties, and that he himself had not stopped doing business with RK Associates after reading the blogs. Subway had not gone forward with one lease transaction, he said, “because of a space requirement,” not because of the blogs.

The remainder of the appellees’ “evidence” at the injunction hearing consisted of requests for judicial notice of certain pleadings, two affidavits (over objection and from declarants who did not testify), and testimony about “search engine optimization techniques” and “word stuffing” on the internet. While interesting, these materials fall woefully short of competent, substantial evidence that any blog entry interfered with any business or contractual relationship of the appellees.

Additionally, the injunction is overly broad. An injunction should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case. E.g., DeRitis v. AHZ Corp., 444 So.2d 93, 94 (Fla. 4th DCA 1984) (quoting Fla. Peach Orchards, Inc. v. State, 190 So.2d 796, 798 (Fla. 1st DCA 1966)). Entry of an overly broad injunction can constitute a violation of the First Amendment. See, e.g., Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 456 (Fla. 5th DCA 2004); Adoption Hot Line, Inc. v. State, 402 So.2d 1307, 1308-09 (Fla. 3d DCA 1981). The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

B. Injunction Against Stalking and Trespassing

Section 784.046, Florida Statutes (2012), provides that a person may obtain an injunction for protection in cases involving repeat violence and requires that a sworn petition include specific facts and circumstances to form the basis upon which relief is sought. Repeat violence is defined as two incidents of stalking or violence. The act of stalking consists of “willfully, maliciously, and repeatedly” following or harassing another person. § 784.048(2). The term “harass” is defined as engaging in a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(2). The trial court, pursuant to section 784.046, may rely upon a verified pleading and affidavit, and “[w]hen it appears to the court that an immediate and present danger of violence exists, the court may grant a temporary injunction which may be granted in an ex parte hearing, pending a full hearing, and may grant such relief as the court deems proper.” § 784.046(6)(a).

In the present case, there was no testimony regarding the temporary injunction against stalking and trespassing, and the affidavits and verified pleadings fail to form the basis upon which relief is sought in accordance with section 784.046(4)(a). The verified pleading and affidavits of Suzanne and Daniel Katz cited the incident of August 8, 2012, but failed to state with specificity other incidents in which Ms. Chevaldina had come in close proximity of their place of business for the purposes of harassing. The appellees argue that Ms. Chevaldina’s blog posts constituted “cyber-stalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language ... directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.” § 784.048(l)(d); see also Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st DCA 2011) (“ ‘Harassment’ is a ‘course of conduct directed to a specific person that causes substantial emotional distress ... and serves no legitimate purpose.’ ‘Cyberstalking’ entails harassment by means of electronic communications.”). Consequently, the record lacks a basis for finding stalking and fails to support a temporary injunction to enjoin stalking and trespassing.

C. Lack of Factual Findings

Finally, the trial court failed to make specific findings to support the elements required for the entry of an injunction. See Fla. R. Civ. P. 1.610. “A temporary injunction that merely recites legal conclusions is insufficient to support its entry.” Angelino v. Santa Barbara Enters., 2 So.3d 1100, 1103 (Fla. 3d DCA 2009). The order on appeal fails to set forth factual findings justifying the entry of the temporary injunction and is therefore inconsistent with the requirements of Florida Rule of Civil Procedure 1.610. Nor does the transcript of the hearing on the motion provide any such specific findings.

Conclusion

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that' proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

For all these reasons, the non-final “Order on Plaintiffs’ Motion for Preliminary Injunction to Enjoin Tortious Interference, Stalking, Trespass, and Defamatory Blogs,” is reversed and vacated in its entirety. The scope of our review and this opinion are confined to the claims and motions for temporary injunctive relief. We express no opinion regarding the merits of the still-pending claims for money damages by the appellees based on alleged defamation, trespass, invasion of privacy, tortious interference, and conspiracy.

Reversed; non-final order vacated.

SHEPHERD, C.J.,

concurring.

I concur in the majority opinion. I write only to emphasize that the alleged claims for damages in this case for defamation, tortious interference, and invasion of privacy arise solely out of alleged nefarious blog postings by the appellant. Proof of harm in a case where, as here, the claimant is alleging potential customers or tenants did not contact them is difficult. See Murtagh v. Hurley, 40 So.3d 62, 66 (Fla. 2d DCA 2010). Individual identification of customers who did not call or walk into a claimant’s place of business may not always be necessary. Id. at 65-66. In this case, however, we need not concern ourselves with this type of conundrum. R.K. Associates stipulated at the injunction hearing that there were substantially no vacancies in any of their rented space. This is a sufficient basis on which to reverse the injunction in this case.

      . The appellees filed both an emergency motion for a temporary injunction and a motion for a preliminary injunction in the circuit court. The second amended complaint seeks an "injunction.” Florida Rule of Civil Procedure 1.610 only differentiates between "temporary injunctions,” which may under limited circumstances be granted without notice, and "injunctions.” "Preliminary injunctions” and "temporary restraining orders” are unique to federal practice under Federal Rule of Civil Procedure 65. Here the circuit court issued, and we are reviewing, a "temporary injunction” entered after notice and an evi-dentiary hearing, but before a trial of all issues on the merits.

      . The companies named as the appellees are referred to collectively here as RK Associates, though the group is now known as RK Centers.

      . Daniel Katz, also a plaintiff below and ap-pellee here, is the son of Raanan Katz and an officer of RK Associates. Appellee Suzanne Katz is Daniel's wife and Raanan Katz’s daughter-in-law.

      . Indeed, a review of the actual blog posts in the appendix to the second amended complaint, and the absence of comments and "followers,” indicate that the posts were largely ignored.


text:
    STATE of Florida, Appellant, v. Christina CHRISTMAS, Appellee.
    No. 4D13-397.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   CIKLIN, J.

The state appeals the trial court’s order granting Christina Christmas’s motion to suppress, arguing the trial court granted the motion based on the reliability of a dog sniff when that issue was not raised by Christmas in her motion to suppress pursuant to Florida Rule of Criminal Procedure 3.190. Because the defense sought to suppress certain evidence obtained through the use of a narcotics dog based upon an asserted lack of reliability and training of the animal performing the sniff and because the state was never given the requisite advance notice that these were to be included as matters at issue, we reverse and remand.

Facts

The state charged Christmas with one count of possession of methadone, one count of possession of twenty grams or less of cannabis, and one count of possession of drug paraphernalia. The charges arose from a police search of Christmas’s vehicle after a narcotics dog alerted during a traffic stop of Christmas’s vehicle.

Christmas filed a written pre-trial “Motion to Suppress Arrest, Physical Evidence and Statements Made by the Defendant.” The motion stated, in pertinent part:

COMES NOW, THE DEFENDANT, by and through her undersigned counsel, and moves this Honorable Court for an Order suppressing the arrest in this case, identification of the driver, any statements made by the defendant, and the physical evidence seized, as there was no ground [to] stop the defendant, the subsequent detention and search were the products of an illegal search and seizure effected without warrant or exigent circumstances and in support thereof the Defendant would state as follows:
13. The officer took far more time than was necessary to simply write two traffic citations, and called for the K-9 unit while maintaining possession of the defendant’s driving documents such that she could not feel free to leave, especially in view of the fact that she was ordered out of the car and direct it [sic] to position herself at the officer’s patrol unit.
14. The search performed while the defendant was effectively detained was a warrantless search, performed illegally, whether effected by a person or by a K-9 officer.
15. While it could be argued that the initial stop was justified (which is not conceded) as it would be extremely unlikely that at that time of the night the officer could determine that the tint was improper, defendant also maintains that three out of the four taillights were operable and that the stop was therefore a purely pretextual stop.
16. The fact that stopping officer orders the defendant out of the car and then being denied consent search the car [sic] immediately calls for the K-9 unit which belies the legitimacy of the traffic stop.
18. Counsel respectfully submits that the stop was pretextual, the defendant was seized without reasonable suspicion, the defendant was unlawfully questioned and the warrantless search of the defendant’s car and person were done improperly and unlawfully.
19. Other grounds to be argued Ore Tenus[.]

(All emphasis in original).

The case proceeded to a hearing on Christmas’s motion to suppress. Fort Lauderdale Police Officer Jason Fithian testified that he was performing road patrol when he observed Christmas’s car. Fithian suspected her window tinting was too dark to comply with Florida law, and observed that her car had a non-functioning taillight.

Fithian performed a traffic stop on Christmas’s car and, after determining the tint on her window was not in compliance with the applicable statute, issued Christmas a citation. During the stop, Fithian requested a police narcotics dog and handler. Fithian also ran a check on Christmas’s driver’s license and found that her license was expired. While Fithian was writing Christmas a second citation for driving with an expired license, the police dog and handler arrived.

Fithian directed the handler to perform a “free air sniff’ outside Christmas’s vehicle and the dog alerted. Fithian proceeded to perform a search of Christmas’s vehicle and found marijuana. Christmas then removed a pill from her bra area and gave it to the police.

On cross-examination, Christmas’s attorney primarily questioned Fithian regarding the timing of the traffic stop, Fithian’s request for the narcotics dog, and the citations Fithian chose to issue. Christmas’s attorney asked no questions regarding the training or reliability of the narcotics dog.

The dog’s handler also testified at the hearing. The handler testified that he arrived at Christmas’s traffic stop about ten to twelve minutes after being informed to go there. The state did not ask the handler any questions about the qualifications of the dog that performed the sniff. Christmas’s attorney performed no cross-examination of the handler.

No other witnesses testified at the hearing. After the officers testified, the state argued the trial court should deny the motion to suppress because Officer Fithian had a valid reason to stop Christmas’s car and Fithian did not unreasonably prolong the stop in order to conduct the dog sniff.

In his closing argument on the suppression motion, Christmas’s attorney responded by arguing that assuming the stop was lawful and the police did not unreasonably detain Christmas, the court should nevertheless grant the motion to suppress because the state introduced no evidence of the reliability or training of the dog that performed the sniff. Christmas relied on the Florida Supreme Court’s decision in Harris v. State, 71 So.3d 756 (Fla.2011). The state argued it was not required to prove the reliability of the dog in the suppression hearing because Christmas’s motion to suppress never raised any issues specifically pertaining to the reliability of the dog.

The trial court, relying on paragraphs fourteen and eighteen of the written motion, concluded the written motion sufficiently raised the issue of the reliability of the dog. The state conceded that it had offered no evidence of the reliability of the dog, and the state understandably requested an additional hearing so that the state “can actually bring in the officers again with the proper documents ... and put on a three-hour hearing about the dog.”

The court did not explicitly respond to the state’s request for an additional hearing, and said “based upon the Harris opinion, Florida Supreme Court, no evidence being presented verifying the reliability of the canine to warrant a search of the defendant’s car, the motion to suppress will be granted.” The court then entered a written order granting the motion to suppress.

Analysis

“ ‘[T]he standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.’ ” State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010) (quoting State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006)).

A defendant seeking to suppress evidence must clearly state the reasons why suppression is proper. Florida Rule of Criminal Procedure 3.190(g)(2) provides that “[ejvery motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based.”

In this case, the defendant’s written motion to suppress failed to provide the state notice that Christmas sought to make the reliability of the dog an issue to be argued before the trial court. Christmas’s motion raised issues relating to the legality of the initial traffic stop, the detention of Christmas before the dog sniff occurred, and issues relating to police questioning of Christmas. While the motion mentioned the dog, it made no allegations relating to the dog’s training or reliability. The portions of the motion relied on by the trial court, paragraphs fourteen and eighteen, merely stated the search was performed “illegally” and “improperly and unlawfully.”

Much too frequently, we observe that in motions to suppress brought pursuant to 3.190, practitioners imprudently utilize the catch-all phrase: “Other grounds to be argued ore tenus.” The use of these words in the context of a 3.190 motion to suppress is meaningless because it is the antithesis of the specificity required by the rule and serves no useful purpose. Without more, the movant is prohibited from relying upon the phrase as one of the “clear” reasons for seeking suppression. Certainly the trial court and the state are not required to engage in a game of “20 questions” to decipher its intended meaning. The phrase has no legitimate place in 3.190 jurisprudence and is a legal misnomer.

We think State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), provides useful guidance for the instant case. In Laveroni, the defendant moved to suppress the results of a search of a car after a narcotics dog alerted outside the car. Id. at 334. “The only argument advanced by defendant at the hearing on the motion to suppress was that there had been an unreasonable delay between the stop and the arrival of the narcotics dog,” but the evidence presented at the suppression hearing did not support that contention. Id. The court then, on its own, raised the issue of whether there was sufficient proof the narcotics dog was sufficiently qualified to support the legality of the search. Id. No evidence had been presented of the qualifications of the dog, and “the state asked the court to permit it to call witnesses to testify as to the qualifications of the dog.” Id. at 335. The court refused the state’s request and granted the motion to suppress. Id.

On appeal, we reversed the suppression because “[n]either the motion to suppress, nor the argument presented by defendant at the evidentiary hearing, raised the qualifications of the narcotics dog.” Id. This court concluded “the court should have granted the state’s request to call witnesses to qualify the dog” because “the state was not on notice that this was an issue until the court raised it.” Id. (citations omitted).

Christmas’s untimely disclosure that she was challenging the reliability of the dog deprived the state of notice in the same way that the trial court’s action deprived the state of notice in Laveroni The state requested an opportunity to factually rebut the allegation that the dog was not reliable, and “the court should have granted the state’s request to call witnesses to qualify the dog.” Id. (citations omitted); see also State v. Williams, 538 So.2d 1346, 1347-48 (Fla. 4th DCA 1989). Accordingly, we reverse and remand the order suppressing evidence.

On remand, Christmas may properly move to suppress the evidence.

Reversed and remanded.

STEVENSON and LEVINE, JJ., concur.

      . After the trial court suppressed the evidence in this case, the standard for the reliability of dog sniffs set forth in Harris v. State was overruled by the United States Supreme Court. Florida v. Harris, - U.S. -, -, 133 S.Ct. 1050, 1059, 185 L.Ed.2d 61 (2013).


author: DAMOORGIAN, C.J.

text:
    John McDOUGHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4175.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Rehearing Denied March 4, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

John McDoughall appeals the revocation of his probation and the resulting judgment and sentence in his underlying criminal case. We affirm the revocation of McDoughall’s probation but remand for the trial court to enter a written revocation order and resentence McDoughall based solely on the remaining law violation.

McDoughall was placed on three-years probation for possession of oxycodone and marijuana. One of the conditions of probation was that McDoughall not commit any new crimes. While on probation, McDoughall was pulled over for a traffic violation. As a result of what occurred during the traffic stop, McDoughall was charged with: (1) possession of a weapon/ammunition by a felon; (2) trafficking hydromorphone; (3) trafficking oxycodone; (4) possession of alprazolam; (5) driving with a suspended license; (6) possession of Ritalin; and (7) possession of methadone.

At the violation of probation (“VOP”) hearing, the trial court heard testimony from the officers who performed the traffic stop. The officer who initiated the stop discovered that McDoughall’s license was suspended and that he was on felony probation for opiate possession. A second officer (“responding officer”) arrived on the scene and placed McDoughall under arrest for violating his probation by driving with a suspended license. Before the vehicle was towed, the responding officer conducted a vehicle inventory, which revealed “approximately 150 pills ... of different prescription medications” in the center console. The responding officer testified that she did not personally test the pills but that she contacted Poison Control and sent the pills to the lab to confirm that they were oxycodone. The state introduced the following testimony to identify the pills:

State: Did you end up weighing [the pills] before you took them in?
Officer: I weighed the oxycodone. I am going to refer to my report because I did weigh some of the pills.
Officer: Yes. From my report, the small blue circular pills ... and the small[er] light blue circular pills ... were oxycodone ....
Defense: For the record, I’m going to object to-I know it is admissible, but as to the classification of the drugs as hearsay.
Court: I don’t think it is hearsay at this point. She has already testified that she weighed the oxycodone. I didn’t hear any objection from you, so at this point it is in evidence that it is oxy. Let’s proceed.

During closing argument, McDoughall argued that the state failed to prove that the pills seized from his vehicle tested positive for the charged substances. The trial court rejected this argument, noting that the responding officer identified the pills as oxycodone and that the hearsay objection to the identification came too late. Moreover, the trial court emphasized that there was a sufficient basis to find a VOP based on the license suspension charge. At the conclusion of the hearing, the trial court orally found that McDoug-hall materially and substantially violated his probation by failing to live without violating the law and by possessing drugs or narcotics without a prescription. The trial court adjudicated McDoughall guilty of the underlying criminal charges and imposed concurrent five-year state prison sentences.

On appeal, McDoughall argues that the trial court erred in finding a VOP based on the new law violations for drug possession and trafficking (condition 5) and possession of drugs or narcotics without a prescription (condition 7) because the only evidence identifying the pills as oxycodone was hearsay. We agree.

Hearsay is admissible at a revocation of probation hearing. Russell v. State, 982 So.2d 642, 646 (Fla.2008). However, “[t]he law is clear that a person’s probation cannot be revoked solely on the basis of hearsay evidence.” Hall v. State, 744 So.2d 517, 520 (Fla. 3d DCA 1999). The hearsay must be corroborated by non-hearsay. J.F. v. State, 889 So.2d 130, 131—32 (Fla. 4th DCA 2004).

In this case, the responding officer testified that the pills she found in the center console of the vehicle were oxyco-done. This identification was solely based on the information contained in the lab report and the call to Poison Control, and thus was hearsay. The lab report was not admitted into evidence and the state did not introduce testimony from the lab technician, or any other individual who was qualified to identify the pills as oxycodone. Accordingly, the responding officer’s uncorroborated hearsay testimony was not sufficient evidence to support the court’s revocation of McDoughall’s probation based on the new charges for drug possession and trafficking. See Forbes v. State, 38 So.3d 232, 233-34 (Fla. 3d DCA 2010); see also Lewis v. State, 995 So.2d 1123, 1124-25 (Fla. 4th DCA 2008). Because we find that the evidence was insufficient to prove that the pills were illegal substances, we also sustain McDoughall’s challenges to the trial court’s finding that he violated condition 7 by possessing drugs or narcotics without a prescription.

We reject the State’s argument that McDoughall failed to object to the introduction of the responding officer’s testimony and thus failed to preserve the issue for appellate review. The trial court found that McDoughall’s hearsay objection was made too late because the responding officer testified that she “weighed the oxy-codone” two questions before the objection was made. This was error.

“[A] probationer need not object to every bit of hearsay introduced by the state during [a VOP] hearing in order to ultimately argue that there is insufficient non-hearsay evidence to justify a revocation of probation.” Hall, 744 So.2d at 520 n. 4. A challenge to the sufficiency of the state’s non-hearsay evidence is preserved so long as it is raised at the revocation of probation hearing. Cf. Lacey v. State, 831 So.2d 1267, 1268 (Fla. 4th DCA 2002) (appellant’s argument that the VOP was based exclusively on hearsay testimony was not preserved because the argument was not raised with the trial court).

Here, McDoughall objected to the identification of the pills as oxycodone during the responding officer’s direct examination — albeit, two questions after she testified that she “weighed the oxycodone.” Furthermore, McDoughall renewed his objection to the evidence as hearsay during closing argument and argued that there was no evidence, other than the responding officer’s hearsay testimony, that the pills found in the vehicle tested positive for the charged substances. Accordingly, the issue was properly preserved for appellate review.

Despite the trial court’s errors, we affirm the revocation of McDoughall’s probation. “A trial court is authorized to revoke probation based on a single violation of probation alone.” Whitehead v. State, 22 So.3d 846, 847-48 (Fla. 4th DCA 2009). As the Second District articulated in Lee v. State, 67 So.3d 1199 (Fla. 2d DCA 2011):

When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. Only when this court cannot determine from the record whether the trial court would have revoked the defendant’s probation based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court.

Id. at 1201-02 (citations omitted).

Here, the trial court’s finding that McDoughall violated his probation by committing the new offense of driving with a suspended license was supported by competent substantial evidence. Thus, there were proper grounds for revocation presented at the hearing.

While it is clear from the record that the trial court would have revoked McDoug-hall’s probation based solely on the new charge for driving with a suspended license, it is not clear whether the court would have imposed the same sentence if this were the only basis for revoking probation. McDoughall correctly points out that the trial court failed to enter a written order specifying the condition of probation that was violated. We agree. See Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011) (affirming the trial court’s order revoking the defendant’s probation but remanding the case with directions to enter a formal written order).

Accordingly, we affirm the revocation of McDoughall’s probation, but remand for the trial court to enter a revocation order based solely on the new law violation for driving with a suspended license. We likewise remand for the trial court to reconsider the defendant’s sentence. See Wilson v. State, 967 So.2d 1107, 1108 (Fla. 4th DCA 2007) (remanding the case for the trial court to reconsider the defendant’s sentence because the record provided “too little guidance ... to determine if the trial judge would have imposed the same ... sentence if faced with only [some of the] violations”).

Affirmed in part, Reversed in part and Remanded with instructions.

GROSS and TAYLOR, JJ., concur.


author: EMAS, J.

text:
    The STATE of Florida, Appellant, v. Dexter DAVIS, Appellee.
    No. 3D12-1853.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2014.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Dexter Davis was charged with four felonies. The case proceeded to trial, and the jury found Davis guilty as charged of attempted first-degree murder, burglary and two counts of child abuse. Davis’ criminal punishment code scoresheet reflected 383.325 months (31.94 years) as a minimum prison sentence, and life imprisonment as the maximum sentence. At sentencing, and over the State’s objection, the trial court imposed a downward departure sentence on Davis.

The State appeals the downward departure sentence. Davis cross-appeals the judgments of conviction. We affirm without further discussion the judgments of conviction for the four felony counts. For the reasons that follow, however, we reverse the sentences imposed and remand for a new sentencing proceeding.

The relevant facts are as follows:

Following the return of the verdict, Davis was mistakenly released from jail on October 17, 2011. Upon being released, Davis went to a nearby hospital and sought treatment for mental illness. Davis was returned to custody three days later, and the court appointed two doctors to evaluate Davis and determine his competency to proceed. Each doctor submitted a written report, one finding Davis competent and the other finding Davis incompetent. The court appointed a third doctor, who evaluated Davis and submitted a report finding Davis incompetent. At a subsequent hearing, the State and defense stipulated to the three doctors’ reports, and the court found Davis was incompetent to proceed and met the criteria for commitment. See Fla. R. Crim. P. 8.212(c). The court committed Davis to the Department of Children and Families for treatment to restore his competency.

Thereafter, on April 17, 2012, the Department of Children and Families reported to the court that Davis had been restored to competency, but the report strongly emphasized that “maintenance of [Davis’] psychiatric stability and competence was dependent on his remaining compliant with the current medication regimen.”

On April 27, 2012, the court reappointed two of the three doctors to examine Davis. Both doctors submitted written reports finding Davis competent to proceed. The State and defense again stipulated to the written reports, and the court found Davis competent to proceed to sentencing.

The court held a sentencing hearing on July 6, 2012. At that time, the defense requested that the court depart below the minimum guidelines sentence of 31.94 years by imposing a lengthy term of imprisonment followed by a lengthy term of probation. The defense argued that the statutory basis for the downward departure was section 921.0026(2)(d), Florida Statutes (2009), which provides that a downward departure may be granted if “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” The defense relied on the reports prepared by the doctors who performed the competency evaluations of Davis.

The State, however, objected to the reports as hearsay and objected to the use of these reports at sentencing. Although the State had previously stipulated to the admission and use of these reports, that stipulation was for the limited purpose of determining Davis’ competency to proceed. The State argued that it had not stipulated to the use of the reports for any other purpose and that the information contained in the reports was hearsay and inadmissible for sentencing purposes. The State suggested that if the defense sought to rely upon the information and opinions contained in these reports to support a downward departure, the doctors should be brought to court where they could testify and be subject to cross examination on this issue. Finally, the State argued the conclusions contained in the reports were “suspect” as they addressed manifestations of mental illness which arose only after Davis was found guilty.

Defense counsel argued the doctors’ reports established Davis’ need for specialized treatment — specifically, residential treatment following a lengthy term of imprisonment. Defense counsel offered to subpoena the doctors to testify at the sentencing hearing, but the trial court rejected this offer, noting that courts frequently rely on such doctors’ reports and the State had previously stipulated to their admission.

The court found the defense established that Davis needed specialized treatment for his mental health conditions and was amenable to such treatment. The court departed downward from the minimum sentence of 81.94 years imprisonment and imposed the following sentences:

• Attempted first-degree murder (Count One): 25 years’ imprisonment to be followed by 10 years’ probation with a special condition of mental health evaluation and appropriate treatment as necessary;

• Burglary (Count Two): 25 years’ imprisonment to be followed by 10 years’ probation with a special condition of mental health evaluation and appropriate treatment as necessary, sentence to run concurrent with Count One;

• Child Abuse (Count Three): Five years’ imprisonment, sentence to run concurrent with the sentences in Counts One and Two;

• Child Abuse (Count Four): Five years’ imprisonment, sentence to run concurrent with the sentences in Counts One, Two and Three.

ANALYSIS:

To determine the appropriateness of a downward departure, a two-step process must be followed:

First, the trial court must determine whether there is a valid legal ground for a downward departure and whether there is adequate factual support for the ground for departure. Second, if there is a valid basis for the trial court to permissibly depart, it must determine whether departure is the best sentencing option for the defendant in the pending case. In other words, the first prong is whether the trial court can legally depart and the second prong is whether the trial court should depart. The trial court’s determination regarding the first prong is a mixed question of law and fact, which will be sustained on review if the trial court applied the correct rule of law and there is competent substantial evidence to support the ruling; whereas the second prong involves a judgment call within the sound discretion of the trial court, which will be sustained on appellate review absent an abuse of discretion.

State v. Salgado, 948 So.2d 12, 15 (Fla. 3d DCA 2006).

Section 921.002(l)(f), Florida Statutes (2009) provides:

Departures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence. The level of proof necessary to establish the facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.

Section 921.0026(2)(d) further provides that mitigating circumstances include those in which “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”

Here, the State contends that the court improperly relied upon inadmissible hearsay — the doctors’ reports — as the basis to depart downward from the minimum guidelines sentence. The defense contends, however, that the doctor’s reports were not inadmissible hearsay because they had been stipulated to by the State on a prior occasion. We need not reach the more general issue of the extent to which hearsay may be admissible at a sentencing proceeding, though we do acknowledge the law in this area is not altogether clear. The precise issue in this case, however, is governed by the express language of Florida Rule of Criminal Procedure 3.211, which provides in pertinent part:

Rule 3.211. Competence to Proceed: Scope of Examination and Report
(d) Limited Use of Competency Evidence.
(1) The information contained in any motion by the defendant for determination of competency to proceed or in any report of experts filed, under this rule insofar as the report relates solely to the issues of competency to proceed and commitment, and any information elicited during a hearing on competency to proceed or commitment held pursuant to this rule, shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.
(2) The defendant waives this provision by using the report, or portions thereof, in any proceeding for any other purpose, in which case disclosure and use of the report, or any portion thereof, shall be governed by applicable rules of evidence and rules of criminal procedure. If a part of the report is used by the defendant, the state may request the production of any other portion of that report that, in fairness, ought to be considered.

(Emphasis added).

The rule makes clear that the doctors’ reports, and the information contained therein, “shall be used only in determining the mental competency to proceed or the commitment or other treatment of the defendant.” By its terms, the rule does not permit the use of such a report for any other purpose. Therefore, the trial court erred in its determination that, by having previously stipulated to the contents of these reports for purposes of a competency determination, the State was precluded from objecting to the admission of these reports in support of a downward departure. Although the State did not specifically cite to this portion of the rule, it did properly preserve its objection and noted correctly that its prior “stipulation” was limited to the use of these reports for competency purposes only, and was not a stipulation to their admissibility for any and all purposes.

The defense counters that this rule was created for the benefit of the defendant and that, pursuant to rule 3.211(d)(2), the defendant can (and in this case, did) waive this restriction by seeking admission of the reports in support of a downward departure. While it is true that subdivision (d)(2) does permit the defendant to waive application of the rule by using the report for another purpose, that same subdivision provides that upon such waiver, the “use of the report ... shall be governed by applicable rules of evidence and rules of criminal procedure.” There is no rule of evidence or rule of criminal procedure which permits the admission of these competency reports at sentencing over the hearsay objection of the State.

Given the hearsay nature of this evidence, the clear and unambiguous language of rule 3.211(d), and the absence of any rule of evidence or rule of criminal procedure permitting admission of these reports at sentencing, the State’s prior stipulation to the use of these reports for competency purposes did not serve as a basis for the trial court, over the State’s objection, to admit or rely upon these reports as a basis for a downward departure sentence.

Because the trial court imposed a downward departure sentence based upon the erroneous admission of these reports, we vacate all four felony sentences and remand for a new sentencing proceeding, at which time the defense may again seek a downward departure sentence. Jackson v. State, 64 So.3d 90 (Fla.2011).

Convictions affirmed. Sentences vacated and cause remanded for a new sentencing proceeding.

      . Prior to trial, Davis pled guilty to a misdemeanor charge (violation of condition of pretrial release) and was sentenced to 364 days in the county jail on this count.

      . In light of the stipulation by the parties, no evidentiary hearing was required and the court was permitted to determine the issue of competency based on the submitted reports. Fowler v. State, 255 So.2d 513 (Fla.1971); Lopez v. State, 405 So.2d 484 (Fla. 3d DCA 1981); Jones v. State, 125 So.3d 982 (Fla. 4th DCA 2013). By stipulating to the contents of the reports, the parties agreed that these three doctors, if called to testify at an evidentiary hearing, would testify consistently with the contents of their respective reports.

      . Rule 3.212(c)(3) provides the criteria which must be met before a defendant may be committed for treatment for restoration of competency:
      3) A defendant may be committed for treatment to restore a defendant’s competence to proceed if the court finds that:
      (A) the defendant meets the criteria for commitment as set forth by statute [section 394.467, Florida Statutes];
      (B) there is a substantial probability that the mental illness or mental retardation causing the defendant's incompetence will respond to treatment and that the defendant will regain competency to proceed in the reasonably foreseeable future;
      (C) treatment appropriate for restoration of the defendant’s competence to proceed is available; and
      (D) no appropriate treatment alternative less restrictive than that involving commitment is available.

      . The record before us contains no written motion for downward departure. Thus, it appears the State was unaware of Davis’ intention to seek a downward departure sentence until the actual day of sentencing.

      . By "hearsay” we mean hearsay that is not otherwise admissible as a hearsay exception under sections 90.803, 90.804 and 90.902, Florida Statutes (2012), or another statutory provision. See § 90.802, Fla. Stat. (2012) ("Except as provided by statute, hearsay evidence is inadmissible.”).

      . Although federal law explicitly provides that the federal rules of evidence do not apply at sentencing proceedings, see Fed.R.Evid. 1101(d)(3); U.S. v. Paisley, 178 Fed.Appx. 955 (11th Cir.2006), the Florida Evidence Code contains no such parallel provision. Florida Rule of Criminal Procedure 3.720(b) provides that, at sentencing, “[t]he court shall entertain submissions and evidence by the parties that are relevant to the sentence.” The rule does not define the term "submissions” and neither expressly permits nor prohibits the admission of hearsay evidence. Cf. § 921.141(1), Fla. Stat. (2012) (providing that in a capital sentencing proceeding “[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.”) See also, Perri v. State, 441 So.2d 606 (Fla.1983).
      Some of the decisions regarding the admissibility of hearsay evidence at sentencing also appear to depend on the nature of the proceeding or the particular issue sought to be established at sentencing. For example, cases have uniformly held hearsay is admissible at a probation revocation hearing, which has been described as a "deferred sentencing proceeding.” Peters v. State, 984 So.2d 1227, 1230 (Fla.2008) (citing Green v. State, 463 So.2d 1139, 1140 (Fla.1985)). However, hearsay evidence may not form the sole basis for a revocation; non-hearsay evidence must also be presented to support a finding of a violation of probation. See Russell v. State, 982 So.2d 642 (Fla.2008); Thompson v. State, 994 So.2d 468 (Fla. 3d DCA 2008).
      As another example, at least one court has applied a relaxed evidentiary standard in restitution hearings, holding that hearsay is admissible in such hearings provided the hearsay evidence bears “some minimal indicia of reliability.” Box v. State, 993 So.2d 135 (Fla. 5th DCA 2008). But see, Smith v. State, 941 So.2d 479 (Fla. 3d DCA 2006) (restitution amount could not be based solely upon hearsay evidence to which defendant objected); Bianchini v. State, 77 So.3d 247 (Fla. 4th DCA 2012) (hearsay not admissible in a restitution hearing when there is a proper objection to its admission); T.J.N. v. State, 977 So.2d 770 (Fla. 2d DCA 2008) (same). Restitution is a criminal sanction and considered a part of the sentence, and a restitution order must be imposed at the time of the sentence or within 60 days thereafter. State v. Sanderson, 625 So.2d 471 (Fla.1993); § 775.089, Fla. Stat. (2012) (providing generally that "[i]n addition to any punishment, the court shall order the defendant to make restitution to the victim ...” unless the court finds clear and compelling reasons not to do so).
      As a final example, hearsay evidence offered at non-capital sentencing to establish that a defendant qualified for enhancement as a habitual felony offender or prison releasee reoffender was held inadmissible absent a showing that it met a hearsay exception under the Evidence Code. In King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991), the First District held it was error to admit, over objection, the contents of a Department of Corrections printout (to prove the defendant qualified as a habitual felony offender) because the State failed to establish the document met the business records exception under section 90.803(6). In Yisrael v. State, 993 So.2d 952 (Fla.2008), the Florida Supreme Court held that a Department of Corrections "Crime and Time Report” was admissible, as against a hearsay objection, because the State established the report qualified under the public records exception to the hearsay rule, see section 90.803(8), and was a self-authenticating document signed and under seal. See § 90.902(1), Fla. Stat. The Court determined, however, that a release-date letter prepared by the Department of Corrections was hearsay and was improperly admitted at sentencing where it did not qualify as a business record under section 90.803(6).

        The Florida Supreme Court held in Eutsey v. State, 383 So.2d 219, 225 (Fla.1980) that where a defendant disputes the truth of hearsay statements contained in a presentence report (and those hearsay statements are material to the court’s required findings for an enhanced sentence), the State must produce evidence to corroborate those hearsay statements. In Baker v. State, 997 So.2d 1182 (Fla. 3d DCA 2008), this Court, relying upon Eutsey, held that where a defendant at sentencing disputes the existence of prior convictions which are attributed to him based only on a hearsay document, the State must provide corroborating, non-hearsay evidence to establish the defendant's prior convictions.

      . We note, however, that rule 3.713(c) ("Pre-sentence Investigation Disclosure: Parties”) provides:
      On motion of the defendant or the prosecutor or on its own motion, the sentencing court may order the defendant to submit to a mental or physical examination that would be relevant to the sentencing decision. Copies of the examination or any other examination to be considered for the purpose of sentencing shall be disclosed to counsel for the parties subject to the limitation of rule 3.713(b).
      A trial court therefore can, pursuant to rule 3.713(c), order a defendant to submit to a mental examination specifically for consideration at sentencing. However, if the trial court intends to rely upon the examining doctor's written report in making statutory findings to support a downward departure, and the State objects to hearsay contained within that report, it would appear that Eutsey v. State, 383 So.2d 219 (Fla.1980) and Baker v. State, 997 So.2d 1182 (Fla. 3d DCA 2008) (discussed supra at n. 6) would require the defendant to provide corroborating, non-hearsay evidence.

      . The defense offered to subpoena the doctors to testify at the sentencing hearing in support of the downward departure request, but the trial court deemed this unnecessary. Had such a procedure been followed, the State would have had the opportunity to question the doctors concerning the contents of their reports, including the source and accuracy of the information they relied upon in forming their opinions as they pertain to Davis’ need for "specialized treatment for a mental disorder that is unrelated to substance abuse[J” § 921.0026(2)(d), Fla. Stat. The State asserts that its interest in contesting such an issue for competency purposes was far different than its interest in contesting such an issue for downward departure purposes. We agree, and note this is especially true to the extent the doctors relied for their opinions upon the defendant’s own statements regarding his medical history, psychiatric history and history of drug abuse.

      . We recognize that the sentences imposed on counts three and four do not constitute downward departure sentences, as the court imposed the maximum sentence in each. However, because we are reversing the remaining two sentences, we wish to give the trial court the discretion to fashion a proper and lawful sentence as a whole, including counts three and four. At the new sentencing proceeding, the trial court is free to impose the same sentences it previously imposed on counts three and four.


text:
    ROYAL PALM HOTEL PROPERTY, LLC, Appellant, v. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, INC., Appellee.
    No. 3D13-1873.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2014.

      Fowler White Burnett, P.A., and Esther E. Galicia and J. Michael Pennekamp, Miami, for appellant.
    Genovese Joblove & Battista, and W. Barry Blum and Brett M. Halsey, Miami, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

Royal Palm Hotel Property, LLC (“the Hotel”) appeals an order entering final summary judgment in favor of Deutsche Lufthansa Aktiengesellschaft, Inc. (“Lufthansa”) on Lufthansa’s cross-claim for indemnification. Because the indemnification provision at issue only indemnified Lufthansa for the Hotel’s negligent acts, and the plaintiffs’ claim against Lufthansa was based solely on Lufthansa’s liability for the negligence of its own employee and not the Hotel’s negligent acts, the indemnification provision did not apply to the instant litigation. Accordingly, we reverse with instructions to enter summary judgment in favor of Royal Palm.

BACKGROUND

Lufthansa is a German airline corporation that provides flights to various United States destinations, including Miami, Florida. Lufthansa drafted and entered into an accommodations agreement (“the Agreement”) with the Hotel in 2003 whereby the Hotel would provide lodging for Lufthansa’s flight attendants needing overnight layovers in Miami. On April 19, 2008, a Lufthansa flight attendant, Juergen Wauschke (“Wauschke”), was staying at the Hotel pursuant to the Agreement. At some point during his stay, when Wauschke attempted to open his seventh floor hotel room window, the window fell out of its frame onto another Hotel guest, Jaime Young (“Young”), who was at an outdoor seating area below Wauschke’s bedroom.

In July 2008, Young and his wife (“the Youngs”) filed an action against the Hotel for the Hotel’s own vicarious negligence and subsequently added Lufthansa as well as the engineering firm allegedly responsible for the design and maintenance of the windows. The claim against Lufthansa was premised entirely on the theory that Lufthansa bore vicarious liability for the negligent actions of its employee, Wauschke.

In Lufthansa’s answer to the Youngs’ complaint, Lufthansa pled a cross-claim for indemnification against the Hotel, alleging that the Hotel was required to indemnify Lufthansa for any judgment entered against Lufthansa, and to pay for any attorney’s fees and costs incurred defending the suit, due to the indemnification provision in the Agreement. Section 6.3 of the Agreement, the indemnification clause, provides:

The Hotel agrees to indemnify and hold Lufthansa harmless from all liabilities, including damage to property or injury or death of persons, including Lufthansa property and Lufthansa personnel that may result from the negligence or wilful [sic] misconduct of the Hotel.

The trial court ultimately found Wauschke’s actions to be outside the scope of his employment with Lufthansa and granted summary judgment in favor of Lufthansa on Young’s vicarious liability claim in October 2011. This Court affirmed that ruling a year later. In early 2012, the Youngs’ negligence action against the Hotel was tried, and the jury found the Hotel 75% at fault and Wauschke, as a Fabre defendant, 25% at fault via comparative negligence. The Youngs were awarded a $900,000 judgment against the Hotel. Because the Youngs’ vicarious liability claim against Lufthansa was decided in favor of Lufthansa at the summary judgment hearing, the Youngs recovered nothing from Lufthansa. There is no claimed error in this portion of the judgment.

Because Lufthansa was not found liable in the Youngs’ negligence suit, it sought recovery of the attorney’s fees and costs it incurred defending the Youngs’ claims at both the trial and appellate court levels, prosecuting its cross-claim for indemnification against the Hotel, and litigating the attorney’s fees award amount under the Agreement.

Lufthansa and the Hotel each filed motions for summary judgment regarding the cross-claim for indemnification and, after a hearing on the motions, the trial court entered final summary judgment in favor of Lufthansa on January 18, 2013, thereby awarding Lufthansa all its attorney’s fees and costs from the suit, which totaled $157,653.59. The Hotel appeals that order, claiming that the indemnification clause only indemnifies Lufthansa for the Hotel’s negligent or willful acts, not the negligent or willful acts of Lufthansa’s employees. We agree with the Hotel. Since Lufthansa was not sued for the Hotel’s negligence, but instead, for the vicarious liability of Lufthansa’s employee, the indemnification provision of the Agreement does not apply.

DISCUSSION

The cross-claim at issue hinges entirely on the interpretation of the indemnification clause in the Agreement and, specifically, whether the clause covers the conduct that resulted in the Youngs’ claims in the underlying case. We find that it does not because the parties did not clearly and unequivocally state their intention for the Hotel to indemnify Lufthansa for its own negligence or vicariously for the negligence of its employees.

We review the trial court’s interpretation of a contract de novo. Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013). Indemnification clauses are typically enforceable subject to general principles of contract law and often allow a party to recover the attorney’s fees expended defending indemnified claims. See On Target, Inc. v. Allstate Floridian Ins. Co., 23 So.3d 180, 185 (Fla. 2d DCA 2009). However, clauses that attempt to indemnify a party against its own wrongful conduct are viewed with disfavor and will be enforced “only if they express an intent to indemnify against the indemnitee’s own wrongful acts in clear and unequivocal terms.” Cox Cable Corp. v. Gulf Power Co., 591 So.2d 627, 629 (Fla.1992) (emphasis added) (quoting Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487, 489 (Fla.1979)).

The policy disfavoring clauses that indemnify a party from its own wrongful conduct stems from the Florida Supreme Court’s decision in University Plaza Shopping Center v. Stewart, 272 So.2d 507 (1973), where the Court found that a restrictive interpretation of such clauses was necessary to give effect to the intent of the parties involved in a contract. Id. at 511. Although University Plaza specifically limited its holding to cases in which the indemnitee is the only liable party, id. (“[The indemnification clause at issue] does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee.”), the Florida Supreme Court has expressly expanded the doctrine to cover situations in which the indemnitee is jointly liable. Charles Poe Masonry, 374 So.2d at 489 (“However, the public policy underlying [University Plaza] applies with equal force here, that is, to instances where the indemnitor and indemnitee are jointly liable.”); see also Cox Cable Corp., 591 So.2d at 629 (“[I]t is clear that in the instant case the district court of appeal erred by applying a less stringent standard [than that applied in University Plaza and Charles Poe Masonry] to cases involving parties who are jointly liable.”).

The language in the indemnification clause at issue is by no means “clear and unequivocal” that the Hotel intended to indemnify Lufthansa for its own negligence. In fact, the language is substantially identical to that of the parties in Cox Cable, except that the parties in this case went further by specifically stating that indemnification is restricted only to the negligent or willful acts of the Hotel. In Cox Cable, the clause at issue stated, “The LESSEE assumes all responsibility for claims asserted by any person whatever growing out of the erection and maintenance, use or possession of said equipment, and agrees to hold the COMPANY harmless from all such claims.” Id. The Florida Supreme Court held that the language did not clearly and unequivocally invoke an intent to indemnify the company from its own conduct. Here, the clause reads:

The Hotel agrees to indemnify and hold Lufthansa harmless from all liabilities, including damage to property or injury or death of persons, including Lufthansa property and Lufthansa personnel that may result from the negligence or wilful [sic] misconduct of the Hotel,

(emphasis added). Thus, Lufthansa is precluded from indemnification for its own action not only based on principles of contract interpretation, it is also precluded based on the language in the Agreement that it drafted. Section 6.3 of the Agreement expressly provides indemnification only for the conduct of the Hotel, not for the conduct of Lufthansa or its employees.

Lufthansa’s argument that the Hotel’s negligence is the only reason Lufthansa was brought into the Youngs’ suit, and therefore this entire lawsuit arose from the Hotel’s negligent misconduct, is also unavailing. The Youngs included Lufthansa in the underlying suit not based on Lufthansa’s liability for the Hotel’s negligence, but rather, based on a claim that Lufthansa should be held vicariously liable for any negligent actions of its employee, Wauschke, through the doctrine of respon-deat superior. See Williams v. Hines, 80 Fla. 690, 86 So. 695, 697-98 (1920) (“[T]he employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior — the rule of law which holds the master responsible for the negligent act of his servant, committed while a[ ] servant is acting within the general scope of his employment and engaged in his master’s business.”).

The jury found Wauschke to be 25% at fault. However, because the trial court found that Waushcke was acting outside the scope of his employment, and Lufthansa was dismissed from the lawsuit, Lufthansa could not be held vicariously liable for Wauschke’s negligence. The Hotel did not agree to indemnify Lufthansa for the actions of Lufthansa’s own employees anywhere in the Agreement, let alone with clear and unequivocal intent. Accordingly, Lufthansa’s attorney’s fees stemmed from the negligent actions of its own employee, which are not covered by the indemnification clause, and the trial court’s entry of summary judgment in Lufthansa’s favor was error. Because we have determined as a matter of law that the indemnification clause does not cover the conduct at issue, summary judgment should have been granted in favor of Royal Palm.

Reversed with instructions to enter summary judgment in favor of Royal Palm.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993). "A 'Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged.” Claudio v. Regalado, 116 So.3d 451, 454 (Fla. 2d DCA 2013) (quoting Salazar v. Helicopter Structural & Maint., Inc., 986 So.2d 620, 622 n. 1 (Fla. 2d DCA 2007)).


author: LOGUE, J.

text:
    PORTOFINO PROFESSIONAL CENTER, etc., Appellant, v. PRIME HOMES AT PORTOFINO, etc., et al., Appellees.
    No. 3D13-523.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2014.
    Airan Pace Law, P.A., and D.S. “Dar” Airan, for appellant.
    Genovese Joblove & Battista, P.A., Richard Sarafan and Michael A. Friedman, Miami; Cole, Scott & Kissane, P.A., Kathryn L. Smith and Daniel Schwarz, for appellees.
    Before SUAREZ, FERNANDEZ and LOGUE, JJ.
   LOGUE, J.

Portofino Professional Center Condominium Association, Inc. (“the Association”) challenges an order granting a motion to strike its untimely filed amended complaint and an order denying its motion for an enlargement of time to file that complaint. Because the practical effect of these two orders is to dismiss appellant’s complaint with prejudice, and because the trial court entered the orders without considering the factors set forth by the Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), we reverse.

On February 8, 2012, the Association sued Prime Homes at Portofino Professional Center, LLC, as well as various associated entities and individuals (collectively, “the Developer”), for damages related to the alleged mismanagement of the condominium. It also joined an accounting firm, Appelrouth Farah and Co., P.A. (“Appelrouth”), for negligently failing to discover deficiencies during its financial audit of the condominium.

The Developer moved to dismiss certain counts of the complaint, alleging that the complaint was factually deficient and failed to state a cause of action. After a hearing on the motion, the trial court entered an agreed order on August 31, 2012, granting the motion to dismiss without prejudice and with leave for the Association to amend within twenty — five days. On September 25, 2012 — twenty-five days after the entry of the dismissal order — the Association filed a motion for enlargement of time to file its amended complaint, seeking an extension until October 5, 2012. This motion was not set for hearing.

The Association filed its amended complaint on October 29, 2012. The Developer, joined by Appelrouth, filed a motion to strike the complaint as untimely and a nullity. The Association’s counsel filed a response, arguing that his failure to timely file was a result of excusable neglect. After a hearing on the motion, the trial court denied the Association’s motion for enlargement of time and granted the motion to strike the complaint. The practical effect of the two orders on appeal is to foreclose any further action by the Association in this case. Although the Association may refile the suit, its complaint has been effectively dismissed. See Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA 2004) (holding that an order of dismissal is clearly final for appellate purposes where a claim can only be pursued by filing a new complaint.).

In Kozel, the Florida Supreme Court expressed concern that dismissing a complaint without leave to amend as a result of an attorney’s failure to comply with court deadlines may needlessly punish a litigant, rather than counsel. 629 So.2d at 818. To assist in determining whether a sanction is appropriate in those situations where an attorney — not the client — is responsible for an error, the court established six factors to be considered:

1) Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of negligence or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id.

Consideration of these factors provides the framework for achieving a balance between the severity of the sanction and its impact on the litigants. Alsina v. Gonzalez, 83 So.3d 962, 965 (Fla. 4th DCA 2012) (citing Ham v. Dunmire, 891 So.2d 492, 500 (Fla.2004)). It is well established that a court must first consider each of the Kozel factors before it may dismiss a cause as a sanction. Id. at 962; Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366, 367 (Fla. 3d DCA 2011).

There is no evidence that the trial court made preliminary findings of fact concerning each of the Kozel factors in this case. Accordingly, we reverse the orders on appeal and remand the case for consideration of those factors. If, after considering the Kozel factors, the trial court determines that dismissal with prejudice is appropriate, then the trial court shall include in its written order findings of fact with respect to each factor. See Kruger v. Kruger, 124 So.3d 1033, 1035 (Fla. 3d DCA 2013); Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So.3d 388, 389 (Fla. 3d DCA 2009).

Reversed and remanded.


text:
    Angela M. RIZO, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D12-3088.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2014.
    Rehearing Denied April 7, 2014.
    Marlene S. Reiss, Miami, for appellant. Flanagan & Maniotis, and Susette Luis; Elizabeth K. Russo, Miami, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

An insured homeowner, Ms. Rizo, appeals an adverse final summary judgment in a circuit court suit against her insurer, State Farm. The summary judgment was predicated on State Farm’s affirmative defense that Ms. Rizo’s claim was barred by the applicable statute of limitations, section 95.11(2)(b), Florida Statutes (2010). The pertinent dates are:

• October 2005 — date of loss (Hurricane Wilma);
• January and April 2006 — payments by the insurer on the initial claim;
• October 2010 — Ms. Rizo’s additional claim submitted to State Farm, but not adjusted or paid; and
• July 2011 — Ms. Rizo’s lawsuit for breach of contract filed.

State Farm argued, and the trial judge agreed, that the five-year limitations period began to run no later than the last payment (April 2006), such that the July 2011 lawsuit was barred. This appeal followed.

On this record, the complaint did not allege any breach of the insurance policy until 2010. The January and April 2006 payments did not anticipatorily preclude the possibility of supplemental claims or payments. The payment checks were not marked “in full and final payment,” for example. The 2006 payments evidence performance under the insurance policy, not a breach. See Slayton v. Universal Prop. & and Cas. Ins. Co., 103 So.3d 934 (Fla. 5th DCA 2012).

Measuring the five-year limitations period from the alleged 2010 breach regarding her supplemental claim, Ms. Rizo’s lawsuit was timely and was not barred. The final summary judgment below is thus reversed and remanded for further proceedings.

Reversed and remanded.

      . In 2011, section 95.11(2) was amended to shorten the limitations period for property insurance claims. Laws 2011, c.2011-39, § 1. Subparagraph (e) was added to specify that in "an action for breach of a property insurance contract,” the limitations period runs from the date of loss. § 95.1 l(2)(e), Fla. Stat. (2011). The trial court correctly con-eluded that the amendment cannot be applied retroactively. See Fla. Ins. Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., 67 So.3d 187 (Fla.2011) (finding that a substantive amendment to a statute cannot be applied retroactively).

      . Neither the initial claim by Ms. Rizo nor the two 2006 payments to her indicated payment in full, or that supplemental claims were precluded.


text:
    Phillip James CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1942.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant seeking Rule 3.800(a) relief to correct the written revocation order.

TAYLOR, MAY and LEVINE, JJ., concur.


text:
    Stanley WINCHESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2428.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Rehearing Denied March 26, 2014.

      Stanley Winchester, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Carrier v. State, 925 So.2d 386 (Fla. 4th DCA 2006).

WARNER, GROSS and GERBER, JJ., concur.